Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
March 8. 1983
JIM MAlTOX
!
Attorney General
Mr. Maurice S. Pipkln Opinion No. ~14-1
Supren~ Cowt Building Executive Director
P. 0. Box t2s48
State Cos4salon on Judicial Re: Whether a justice of the
Austin. TX. 78711. 2548
512/475.2501
Conduct peace may refuse to marry *n
Teler wca74-1387 211 Reagan Building InterracIal couple
Totecopier 5121475-0266 Austin. Texae 78711
Dear Mr. Pipkln:
1507 Main St.. Suite 1400
Dallas. TX. 75201-4709
2141742%%44 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. .
4824 Ahrta Ave.. Suite 150
El Paw. TX. 79905.2793
533.34B4
A justice of the peace is an elected official and a public
p” 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
12M Oallls Ave.. Suite 202 marriage ceremonies by section 1.83 of the, Family Code. State
Houston. TX. 770026986
participation In even a nominally private activity can result in a
71-
characterization of that activity a* "etate action." See llennessy v.
National Collegiate Athletic Aeaociatlon. 564 F.2d 1136. 1144 (5th
906 Bro4dway. Suite 312 Cir. 1977). In our opinion, there canibe no doubt that when a justice
Lubbock. TX. 7MO1-3479 of the peace performs a marriage ceremony. he Is acting in the name.
Scw747-5238
end under the authority. of the state of Texas, and that he is thereby
engaging In “atate action.‘f
4309 N. Twdh. Suite B
McAltm. TX. 7B501-1695 In 1967, the United States Supreme Court Invalidated. oo both
512mS2.4547 equel protectioo and due process grounds., a Virginia statute thst
prohibited .interracial marriage. Speaking for a unanimous court in
200 Main Ptua. Sutte 400
Loving Y. ~VirSinla. 388 U.S. 1 (1967). Chief Justice Warren said that
hn Antmlo.TX. 7S205.2797 marriage was eaong the “basic civil rights of oan. fuodamental to our
512/225-4191 existence and survival.” 388 U.S., at 12. Be declared:
An Equal Ommtunity/
There can be no doubt that reatrlcting the freedon
Allirm4tlw Acllon Employer to mrry solely because of racial classifications
violatee the central meanlag of the IZqual
Protection Clause. . .,
388 U.S., 8L 12. Furthermore. to iqose upon this “fundamental
freedom” a racial teat “Is surely to deprlvi all the State’s cltirens
P of liberty without due process of law.” 388 U.S., at 12. hue. it is
evident that, under the United States Constitution, the legislature
” ,:.2
P. 1
(JM-1)
could neither prohibit Interracial marriage, “or prohibit the
performance of such marriages by persons authorized to conduct
marriage ceremonies.
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 was aimed at all
official actions. not just chose of state
legislatures.
443 U.S., nt 456 (fn. 5). See also. Jackson v. Marine Exploration
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
“0 mennlng. Then the State has clothed one of its
*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
marry on racial grounds. Once a justice of the peace undertakes to
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
a justice of the pence is barred by the equallprotectlon clause from
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 of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gllpln
George Gray
Jim Moellinger
P. 3