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1983-1984 Texas Attorney General Reports and Opinions 1 (1983-1984)

handle is hein.sag/sagtx0022 and id is 1 raw text is: The Attorney General of Texas JIM MATTOX Attorney General Supreme Court Building P. 0. Box 12548 Austin, TX. 78711- 2548 5121475-2501 Telex 910/874-1367 Telecopier 512/475-0266 1607 Main St., Suite 1400 Dallas, TX. 75201-4709 214/742-8944 4824 Alberta Ave., Suite 160 El Paso, TX. 79905-2793 915/533-3484 1220 Dallas Ave., Suite 202 Houston, TX. 77002-6986 713/650-0666 806 Broadway, Suite 312 Lubbock, TX. 79401-3479 806/747-5238 4309 N. Tenth, Suite B McAllen, TX. 78501-1685 512/682-4547 200 Main Plaza, Suite 400 San Antonio. TX. 78205-2797 512/225-4191 An Equal Opportunity/ Affirmative Action Employer March 8, 1983 Mr. Maurice S. Pipkin Executive Director State Commission on Judicial Conduct 211 Reagan Building Austin, Texas 78711 Opinion No. JM-1 Re: Whether a justice of the peace may refuse to marry an interracial couple Dear Mr. Pipkin: You have requested our opinion as to whether a justice of the peace may refuse to conduct a marriage ceremony for the reason that the parties are not of the same race. A justice of the peace is an elected official and a public officer under article V, section 18 of the Texas Constitution and article 2373, V.T.C.S. He is one of the persons authorized 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 as state action. See Hennessy v. National Collegiate Athletic Association, 564 F.2d 1136, 1144 (5th Cir. 1977). In our opinion, there can be no doubt that when a justice of the peace performs a marriage ceremony, he is acting in the name, and under the authority, of the state of Texas, and that he is thereby engaging in state action. In 1967, the United States Supreme Court invalidated, on both equal protection and due process grounds, a Virginia statute that prohibited interracial martiage. Speaking for a unanimous court in Loving v. Virginia, 388 U.S. 1 (1967), Chief Justice Warren said that marriage was among the basic civil rights of man, fundamental to our existence and survival. 388 U.S., at 12. He declared: There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. 388 U.S., at 12. Furthermore, to impose upon this fundamental freedom a racial test is surely to deprive all the State's citizens of liberty without due process of law. 388 U.S., at 12. Thus, it is evident that, under the United States Constitution, the legislature p. 1

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