An interracial couple suing a Louisiana justice of the peace for refusing to officiate at their wedding may be able to pierce the judicial immunity shield by showing that performing weddings is not part of his judicial duties.

Keith Bardwell

The bizarre, Jim Crow-esque behavior of Justice Keith Bardwell of Tangipahoa Parish has given him international notoriety. He has said he refused to perform a marriage ceremony for Elizabeth Humphrey and Terence McKay out of concern for the offspring of interracial couples.

“There is a problem with both groups accepting a child from such a marriage,” he told The Associated Press. “I think those children suffer, and I won’t help put them through it.”

The U.S. Supreme Court declared laws banning interracial marriage unconstitutional 42 years ago in Loving v. Virginia. And Humphrey and McKay sued Bardwell and his wife last week for violating their “most basic civil rights.”

Beth Bardwell allegedly told Humphrey, “We don't do interracial weddings,” and that she and McKay would have to go outside Tangipahoa Parish to get married. “[T]he freedom to marry, or not marry[,] a person of another race ... cannot be infringed upon by a public official or one acting in concert therewith,” the complaint says.

Keith Bardwell can certainly assert the absolute immunity which judges enjoy for their judicial or adjudicatory acts. In Forrester v. White, 484 U.S. 219 (1988), the U.S. Supreme Court said the immunity “protect[s] judicial independence by insulating judges from vexatious actions by disgruntled litigants” but cautioned that

Truly judicial acts ... must be distinguished from the administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform. It is the nature of the function performed -- adjudication -- rather than the identity of the actor who performed it -- a judge -- that determines whether absolute immunity attaches to the act.

Humphrey and McKay say Bardwell “acted outside the scope of and exceeded his authority as Justice of the Peace in perpetuating the racial discrimination” outlawed by Loving. But that argument may not overcome judicial immunity since behaving as a bigot would not in and of itself put Bardwell outside the scope of his jurisdiction.

Even the most despicable judicial acts, after all, are protected –- including that of a judge who approved a mother's petition to have her “somewhat retarded” teenage daughter sterilized. Stump v. Sparkman, 435 U.S. 349 (1978).

Louisiana also has not recognized a limited exception to judicial immunity which applies to judges who act maliciously or corruptly.

A more effective approach for Humphrey and McKay may be to argue that Bardwell was not acting in a judicial capacity to begin with -- and therefore is not immune from liability -- because performing marriage ceremonies is not a judicial function.

In Louisiana, justices of the peace perform such judicial functions as hearing civil cases and setting bail in criminal cases. But as far back as 1899, courts in several states have found that solemnizing marriages is not “judicial in character.”

Justices of the peace “are authorized to perform marriage ceremonies not by reason of the judicial powers incident to their office but merely as persons holding certain positions,” an Illinois appeals court said in Matthes v. Matthes, 198 Ill. App. 515 (1916).

The attorney general of Arkansas also said in a June 2008 opinion that

I cannot conclude, given the list of officials statutorily authorized to solemnize marriages (including the Governor, mayors, ministers and “any official appointed for that purpose by the quorum court ...”), that solemnizing marriages is a “judicial duty” of justices of the peace.

Humphrey and McKay got Bardwell's name from a list of people in Tangipahoa Parish who perform weddings and issue marriage licenses. They allege he and his wife have a “custom or policy of deliberate indifference toward constitutionally protected rights of individuals.”

“I’m not a racist,” Bardwell has insisted. “I just don’t believe in mixing the races that way. I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom, I treat them just like everyone else.”

By Matthew Heller
10/25/09