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

Attorney General
Supreme Court Building
P. 0. Box 12548
Austin, TX. 78711- 2548
Telex 910/874-1367
Telecopier 512/475-0266
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
4824 Alberta Ave., Suite 160
El Paso, TX. 79905-2793
1220 Dallas Ave., Suite 202
Houston, TX. 77002-6986
806 Broadway, Suite 312
Lubbock, TX. 79401-3479
4309 N. Tenth, Suite B
McAllen, TX. 78501-1685
200 Main Plaza, Suite 400
San Antonio. TX. 78205-2797
An Equal Opportunity/
Affirmative Action Employer

March 8, 1983

Mr. Maurice S. Pipkin
Executive Director
State Commission on Judicial
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

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