                                  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




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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
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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




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