By Olympia Duhart

This sounds familiar.

Keith Bardwell, the Louisiana justice of the peace who refused to marry an interracial couple recently, is using some tired, old arguments to support his biased decision.   (Video showing interview with Keith Bardwell)

“I’m not a racist,” he insisted in interviews following the media storm generated by his decision.  “I have one problem with mixed-race marriage, and that’s the offspring.”

He’s thinking of the children.  Well, are we supposed to buy that?  Guess so. It’s been working in many circles to restrict marriage rights for same-sex couples.  For years, opponents of same-sex marriages have trotted out the children as evidence that same-sex marriages should be banned.  Some opponents suggest that children of such couples will have more identity conflicts and adjustment issues than their counterparts born to heterosexual couples.

Even that was a retread.

The so-called basis for many anti-miscegenation laws was also rooted in talk about the well-being of children born to interracial couples.  While many critics have attacked Bardwell for not reading Loving v. Virginia, the landmark 1967 United States Supreme Court decision that found bans on interracial marriage unconstitutional, I happen to think he knows it quite well.  After all, Bardwell, like the opponents of same-sex marriages, relies on some of the same rhetoric in attempting to justify his prejudice.

A Virginia state court had upheld the state law that criminalized interracial marriages, declaring that its purpose in banning marriages between blacks and whites was to “to preserve the racial integrity of its citizens” and prevent “a mongrel breed of citizens.”

Another tired, old argument.

Fortunately, the United States Supreme Court didn’t buy it. The Court in Loving held that “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”  The right to marry has been recognized as a protected liberty interest.  Anti-miscegenation laws violate the Constitution.  According to some estimates, almost seven percent of the nation’s 59 million marriages are between interracial couples.

But for Bardwell, an elected justice of the peace from Tangipahoa Parish in Louisiana, the guarantees put in place by Loving don’t seem to mean much.  Especially if he has any say in the matter.  Consequently, when a white woman and her black boyfriend reached out to this justice of the peace recently to get married, Bardwell politely refused. Bardwell said he had refused to preside over nuptials for interracial couples before.

He’s since made the media circuit — explaining his views and insisting that he is not a racist.

Meanwhile, Beth Humphrey and Terence McKay , the couple, were married by another justice of the peace in the area. And to that, Bardwell now claims no harm, no foul.

But, simply put, that is not enough.

The NAACP branch of Tangipahoa Parish, the American Civil Liberties Union and the Center for Constitutional Rights are calling for action.  Some leaders are pressuring a state commission to review the case and make recommendations for censure.  Louisiana Governor Bobby Jindal has expressed his outrage and called for Bardwell’s ouster.  A lawsuit has also been filed in federal court.

“Someone else’s prejudices are not a reason to deny anyone their constitutional right,” said Professor Adele M. Morrison, Associate Professor of Law at Wayne State University Law School, who teaches family law. “This is a clear-cut constitutional issue.”

In an interview with a national morning news show, Bardwell said he based his decision on “countless” interracial couples where children were rejected by family members. His life experiences aside, is Bardwell really supposed to enforce or withhold marriage ceremonies for couples based on his personal views?

In all of the talk these days about judicial minimalism and activism and the circus surrounding the Supreme Court nomination, Bardwell’s conduct is especially egregious. Associate Justice Sonia Sotomayor’s comments about a “wise Latina woman” apparently kept many people up at night with fears of legislation from the bench and the possible threat of race-based decision making. Wonder how these same folks are sleeping at night with Bardwell making personal decisions that interfere with someone’s right to marry?   How much wisdom should we ascribe to a foolish white man?

Furthermore, the paternalistic concern about the well-being of the biracial children quickly devolves into a celebration of biracial success stories everywhere (insert President Barack Obama, Halle Berry and Tiger Woods here).  These people are important because they serve as evidence that anyone can succeed, despite their differences.  But all successful people – whether products of biracial marriages, same-sex marriages, divorced couples, or any other type of union – demonstrate that achievement can result from many variables, not just one or two.

More importantly, the success stories fail to recognize the important fact that the decision to procreate is not controlling in the protection of the right to marry.  All successful people—be they offspring of biracial marriages, same-sex marriages, divorced couples or any other type of union – demonstrate that achievement can result from many variables, not just one or two.”

“We don’t limit marriage to those who can procreate or those who choose to procreate,” said Morrison, whose scholarship focuses on race, gender and sexual orientation. “Marriage is about something much more than that.”

The United States Supreme Court recognized this simple truth more than 40 years ago when a black woman married a white man.  It should have sounded familiar to Bardwell.

Olympia Duhart is an Associate Professor of Law at Nova Southeastern University in Fort Lauderdale, where she teaches Constitutional Law, Women and the Law and Lawyering Skills and Values