TX. 78711. 2548. 512/475.2501. Teler wca74-1387. Totecopier 5121475-0266. 1507 Main St.. Suite 1400. Dallas. TX. 75201-4
The Attorney
General
of Texas
March 8. 1983 JIM MAlTOX
!
Attorney General
Supren~ Cowt Building P. 0. Box t2s48 Austin. TX. 78711. 2548 512/475.2501 Teler wca74-1387 Totecopier 5121475-0266
1507 Main St.. Suite 1400 Dallas. TX. 75201-4709 2141742%%44
4824 Ahrta Ave.. Suite 150 El Paw. TX. 79905.2793 533.34B4 p”
12M Oallls Ave.. Suite 202 Houston. TX. 770026986 71-
906 Bro4dway.
Suite 312
Lubbock. TX. 7MO1-3479 Scw747-5238
4309 N. Twdh. Suite B McAltm. TX. 7B501-1695 512mS2.4547
200 Main Ptua. Sutte 400 hn Antmlo.TX. 7S205.2797 512/225-4191
An Equal Ommtunity/ Allirm4tlw Acllon Employer
Mr. Maurice S. Pipkln Executive Director State Cos4salon on Judicial Conduct 211 Reagan Building Austin. Texae 78711
Re: Whether a justice of the peace may refuse to marry *n InterracIal couple
Dear Mr. Pipkln: You have requested our opinion as to whether a Justice of the peace nay refuse to conduct a marriage ceremony for the reason that the parties are not of the same race. . official and a public A justice of the peace is an elected officer’ under article V. section 18 -of the Texas Constitution and article 2373. V.T.C.S. He is ooe of the persons aurhorized to conduct marriage ceremonies by section 1.83 of the, Family Code. State participation In even a nominally private activity can result in a characterization of that activity a* "etate action." See llennessy v. National Collegiate Athletic Aeaociatlon. 564 F.2d 1136. 1144 (5th In our opinion, there canibe no doubt that when a justice Cir. 1977). of the peace performs a marriage ceremony. he Is acting in the name. end under the authority. of the state of Texas, and that he is thereby engaging In “atate action.‘f In 1967, the United States Supreme Court Invalidated. oo both equel protectioo and due process grounds., a Virginia statute thst Speaking for a unanimous court in prohibited .interracial marriage. Loving Y. ~VirSinla. 388 U.S. 1 (1967). Chief Justice Warren said that marriage was eaong the “basic civil rights of oan. fuodamental to our existence and survival.” 388 U.S., at 12. Be declared:
There can be no doubt that reatrlcting the freedon to mrry solely because of racial classifications violatee the central meanlag of the IZqual Protection
P
Opinion No. ~14-1
Clause.
.
.,
to iqose upon this “fundamental Furthermore. 388 U.S., 8L 12. freedom” a racial teat “Is surely to deprlvi all the State’s cltirens of liberty without due process of law.” 388 U.S., at 12. hue. it is evident that, under the United States Constitution, the legislature ”
P.
1
,:.2
(JM-1)
could neither prohibit Interracial performance of such marriages by marriage ceremonies.
the “or prohibit authorized to conduct
marriage,
persons
The courts have made It eauallv clear that the constitutional gusrantee of equal protection exiends to all afficial state actions. In Columbus Board of Education v. Penick. 44i U.S. 449 (1979). the Supreme Court held: the Equal Protection Clause official actions. not just legislatures.
was aimed at all chose of state
See also. Jackson v. Marine Exploration 443 U.S., nt 456 (fn. 5). Company, Inc., 583 F.2d 1336. 1347 (5th Cir. 1978) (discriminatory application of.8 statute which is fair on its face). The Court’s decision in Penick wns based in part upon its earlier decision In & parte Virginia. 100 U.S. 339 (1879). in which a county judge in Virginia hnd excluded blacks from jury lists. Declaring thqt the reach of the fourteenth amendment is broad enough to encompass all state action, the Court there said that its prohibitions: have reference to actions of the political body denominated a State. by whatever instruments or In. whatever modes that action may be taken. A State acts by Its ~legislative. its executive. or Its judlclal authorities. It can net In no other way. The constitutional provision. therefore, must menn that no agency of the State. or of thelofflcers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the lavs. Whoever, by virtue of public position under a State government, deprives nnother of property. life. or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitution81 inhibition; and as he acts in the name nnd for the Sate. and is clothed with the Stnte’s power. his act Is that of the State. This must be so; oi the constitutional prohibitton has Then the State has clothed one of its “0 mennlng. *gents with power to nnnul or to evade it. 100 U.S..
nt 346-47.
In our opinion, it is clear that a justice of the peace, when conducting l ma r r ing e ceremony, “is clothed with’the State power,” and “ncte In the nnme and for the State.” As a result, the equal protection clsuse is nppllcnble to his performance of that ceremony.
P. 2
(.IM-I)
The United States Supreme Court has held that a state may not. consistent with chat constitutional provision. restrict the freedom to Once a justice of the peace undertakes to marry on racial grounds. exercise the authority granted him by article 1.83 of the Family Code. he may not refuse to exercise It on racial grounds. We conclude that clause from a justice of the pence is barred by the equallprotectlon imposing a racial test upon the right to marry.’ SUMMARY Once a justice of the peace undertakes to exercise the authority to marry people granted him by article 1.83 of the Family Code he may not. consistent with the equal protection clause of the United States Constitution, refuse to conduct a marriage ceremony for the reason thnt the parties are not of the same race.
JIM MATZOX Attorney General TOM GREEN First Assistant
Attorney
DAVID R. RICHARDS Executive Assistant
General
Attorney
General
Prepared by Rick Gilpin Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L. Garrison, Jon Bible Rick Gllpln George Gray Jim Moellinger
Chairman
P.
3
of Texas
