Tuesday, October 20, 2009

Not Only Marriage

Honestly (though usually when someone says that, you ought to grab hold of your wallet): this is not intended to offend some liberals and most conservatives.

But it's not just interracial marriage. When news arose of the refusal of Justice of the Peace Keith Bardwell in Louisiana's Tangihopa Parish to perform the wedding ceremony for an interracial couple, reaction was swift.

Governor Bobby Jindal asserted "This is a clear violation of constitutional rights and federal and state law. Mr. Bardwell’s actions should be fully reviewed by the Judiciary Commission and disciplinary action should be taken immediately — including the revoking of his license.”

Senator Mary Landrieu, one of the two moderate-conservative Democrats representing the state in the U.S. Senate, declared “Not only does his decision directly contradict Supreme Court rulings, it is an example of the ugly bigotry that divided our country for too long.”

Posting on firedoglake.com, twolf1 quoted Bardwell and remarked sarcastically "Nope, no racism there. None at all. Just trying to protect future children."

Jindal correctly argues that the apparent legal violation committed by Bardwell should provoke consideration of disciplinary action, though his remark that "disciplinary action should be taken immediately" suggests that he already has his mind made up. Nevertheless, his comment and those of Landrieu and the bloger have something unfortunate in common- the Justice of the Peace should be punished because he is a bigot.

Oddly- because the issue is a little more personal for a civil rights organization- the local NAACP has it right, arguing "We recommend the most severe sanctions available be imposed against Mr. Bardwell in his continuing to disobey the law he is sworn to uphold.”

In this country, we don't- or shouldn't- punish individuals for their political views or sociological perspective, no matter how noxious. Nor should we carve out in law special exemptions based on one's political views or sociological perspective.

Except that we do. On October 15, Bardwell complained about his practice of refusing to perform marriage ceremonies for interracial couples

No one’s ever complained about it before. I do it to protect the children. The kids are innocent, and I worry about their futures.

(I know, I know. Others have quipped "yeah, they may grow up to be President." A good line, but.... no, just a good line).

I don't know whether children bred of interracial couples face obstacles children of same-race couples do not. But Bardwell claims that they do, might actually believe they do, and given continuing racial bigotry in this country (and elsewhere), it's hardly inconceivable.

Which shouldn't matter. Neither Bardwell's sociological perspective nor any observations he may have made about human behavior should determine the nature of his continuing employment as a Justice of the Peace. Rather, it should be his apparent refusal to perform the tasks required by someone in his position, "the law he is sworn to uphold."

But if this point is obscured in a rush to brand Bardwell a racist (or, more accurately, a bigot), it is understandable given that not everyone is required to perform the functions of a job that other individuals in the same line of employment are expected to discharge.

I speak, unavoidably, of the "conscience exception" in abortion law. As summarized by the Archdiocese of New Orleans

For decades, Congress has respected the right of health care providers to decline involvement in abortion or abortion referrals, without exception. Since 2004 the Weldon amendment, approved annually as part of the Labor/HHS appropriations act, has forbidden any federal agency or program (or state or local government receiving federal funds under the act) to discriminate against individual or institutional health care providers and insurers because they decline to perform, provide, pay for, provide coverage of, or refer for abortion. Programs such as Medicaid and Medicare, which fund the rare “Hyde exception” abortions, respect the conscience rights of providers who decline to provide any abortions at all. Other laws respect conscience rights on sterilization and other procedures to which providers may have a moral or religious objection.

Notwithstanding the language of the Weldon Amendment, there is no issue of discrimination because there is no constitutional right to a government subsidy. If a medical procedure, normally performed by health care providers, is considered legal and a provider refuses to perform that function and still retains a government subsidy, a special exemption has been carved out to accomodate that individual's perspective. Performance of the duties of the job is, well, negotiable.

Preference is clearly given to an individual or institution with a determination not to perform abortions even if that act is said to "shock the conscience" of such provider. Make no mistake about it- interracial marriage, albeit unjustifiably, shocks the conscience of Justice of the Peace Bardwell, who maintains "There is a problem with both groups accepting a child from such a marriage. I think those children suffer and I won't help put them through it."

This suggests another parallel with abortion. The emotional burden Bardwell believes the offspring of a mixed marriage carry would result not from an inherent disadvantage, but rather from the reactions of others who find mixed marriage disagreeable. Similarly, one pro-life website which welcomes the guilt many women are said to experience after having an abortion claims "For the woman who comes to believe, at some point after the abortion, that she has consented to the killing of her pre-born child, the burden of guilt is relentless." Difficult it is not to feel guilty if half the country believes you have murdered a child while half of that contingent will not let you forget it.

The professional choosing not to perform an abortion may, or may not, be on solid ethical footing. Bardwell is wrong, though his job security, barring resignation, presumably will be determined by the Judicial Commission to which Governor Jindal refers. And that is how it should be, a legal matter in which the individual's willingness to fulfill his job duties should be paramount. Elsewhere, however, other issues intervene.

1 comment:

Dan said...

interesting take on the whole issue sir.

I think you'll like my new entry, and the article it's derived from.


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