Reitman v Mulkey Brief Amicus Curiae

    IN  THE

Supreme Court of the United States
October Term, 1966

No. 483

NEIL REITMAN, et cd., and CLARENCE SNYDER,
Petitioners,

vs.

LINCOLN W. MULKEY, et at., and WILFRED J. 
PRENDERGAST and CAROLA EVA PRENDERGAST,

Respondents.

On Writ of Certiorari to the Supreme Court 
of the State of California

BRIEF OF NATIONAL COMMITTEE AGAINST  
DISCRIMINATION IN HOUSING, 

AMICUS CURIAE

J oseph B. R obison 
15 East 84th Street 

New York, New York 10028
Sol R abkin 

315 Lexington Avenue 
New York, New York 10016

Attorneys for National Committee Against 
Discrimination in Housing, Amiens Curiae

R obert Cabteb 
J ohn Clancy 
J ack Greenberg 
Marvin M. K arpatkin 
E phraim Margolin 
Carl R achlin

Of Counsel



T A B L E  O F  C O N T E N T S

PAGB

I nterest op the A mictjs ....................................................  2

Questions to W hich this Brief is A ddressed.............  5

A rgument

P oint One—The State of Califomia has given leg­
islative recognition to the existence and evil 
effects of discrimination in housing against 
minority groups .................................................  6
A. Discrimination against minority groups

dominates the housing market in California 6
B. Residential segregation in California has

harmful effects ............................................ 8
C. The State of California has recognized the

existence and harmful effects of racial dis­
crimination in housing by enacting legis­
lation against such discrimination ............  17

P oint Two—Article I, Section 26 violates the Equal 
Protection Clause of the Fourteenth Amend­
ment by encouraging, empowering and facilitat­
ing discrimination in housing against minority 
groups ..................................................................  19
A. The Fourteenth Amendment requires the

states to take appropriate action to prevent 
inequality in housing................................... 19

B. The momentum of California’s involve­
ment in regulation of discrimination in 
housing makes its facilitation of discrimi­
nation state action within the reach of the 
Fourteenth Amendment ............................. 21



IX

C. Article I, Section 26 places tlie support of
the legal system of California behind racial 
discrimination in housing...........................  26

D. Article I, Section 26 violates the Equal 
Protection Clause because it authorizes
and facilitates racial zoning ...................... 32

E. The Fourteenth Amendment prohibits a
state from disabling itself from fulfilling 
its constitutional responsibility to assure 
equality in housing....................................... 36

P oint T hree— Article I, Section 26 violates the 
guarantee in 42 TJ. S. C., Section 1982 of the 
right of all citizens of the United States to 
equal opportunity to purchase or lease prop­
erty without discrimination based on race ......  38
A. History of Section 1982 .............................  38
B. The Thirteenth Amendment ...................... 40
C. The Fourteenth Amendment ...................... 41
D. The effect of Section 1982 on Article I,

Section 26 .....................................................  46

PAGE

Conclusion 47



I l l

TABLE OF AUTHORITIES

Cases:

Abstract Investment Co. v. Hutchinson, 204 Cal. App.

PAGE

2d 242 (1962) ........................................................... 28
Anderson v. Martin, 375 U. S. 399 (1964) ..............27, 28, 30

Barrows v. Jackson, 346 IT. S. 249 (1953) ................... 28, 29
Bell v. Maryland, 378 IT. S. 226 (1964) .......................  43
Block v. Hirsh, 256 H. S. 135 (1921) ............................. 25
Boman v. Birmingham Transit Company, 280 F. 2d

531 (C. A. 5, 1960) .................................................  28
Buchanan v. Warley, 245 H. S. 60 (1917) ..................... 27, 32
Burks v. Poppy Construction Co., 57 Cal. 2d 463

(1962) .................................................................12,17,18
Burton v. Wilmington Parking Authority, 365 H. S.

715 (1961) ..............................................................  27

Civil Bights Cases, 109 U. S. 3, 22 (1883) 39,40, 41,44, 45
Clyatt v. United States, 197 U. S. 207 (1905) ..............  39

Eisentrager v. Forrestal, 174 F. 2d 961 (1949), re­
versed on other grounds, 339 U. S. 765 (1950) ....  37

Evans v. Newton, 382 U. S. 296 (1966) ...... 22, 23, 24, 25, 27

Gamer v. Louisiana, 368 U. S. 157 (1961) .................. 43
Gomillion v. Lightfoot, 364 U. S. 339 (1960) ............. 32
Griffin v. School Board, 377 U. S. 218 (1964) .............  31
Guinn v. United States, 238 U. S. 347 (1915) .............  32

Harmon v. Tyler, 273 U. S. 668 (1927) .........................  33
Hawkins v. North Carolina Dental Society, 355 F. 2d

718 (C. A. 4, 1966) ............................................23, 24, 25
Hurd v. Hodge, 334 U. S. 24 (1948) ............................ 41

Jackson v. Pasadena City School District, 59 Cal.
2d 876 (1963) ........................................................... 18



X V

Lane v. Wilson, 307 IT. S. 268 (1939) ...........................  32
Lee v. O’Hara, 57 Cal. 2d 476, 370 P. 2d 321 (1962) .... 17

Marsh v. Alabama, 326 U. S. 501 (1946) ......................25, 34
McCabe v. Atchison T. & S. F. Ry., 235 IT. S‘. 151

(1914) ......................................................................  28
Mnlkey v. Reitman, 64 Cal. 2d 529, 413 P. 2d 825 ........  2

Nixon v. Condon, 286 U. S. 73 (1932) ......................... 26, 28

Pennsylvania v. Board of Trusts, 353 U. S. 230 (1957) 23
Prendergast v. Snyder, 64 Cal. 2d 877, 413 P. 2d 847 2

Richmond v. Deans, 281 U. S. 704 (1930) .................... 33

Second Slaughter House Case, Butchers’ Union Co.
v. Crescent City Co., I l l  U. S. 746 (1883) ..........  36

Shelley v. Kraemer, 334 U. S. 1 (1948) ............27, 28, 33,44
Smith v. Albright, 321 U. S. 649 (1944) ..................... 27, 34

Terry v. Adams, 345 U. S. 461 (1953) .........................  27
Testa v. Katt, 330 U. S. 386 (1947) .............................  37
Truax v. Corrigan, 257 U. S. 312 (1921) ....................  24

United States v. Guest, 383 U. S. 745 (1966) .............43,44
United States v. Harris, 106 U. S. 629 (1882) ..........  40
United States v. Morris, 125 Fed. 322 (1903) ..............  44

Wright v. Rockefeller, 376 U. S. 52 (1964) .................. 32

PAGE



y

Statutes:
PAGE

Cal. Stats. 1959, c. 1681, pp. 4074-7, Health and Sanity
Code sections 35700-35741 ....................................  17

Cal. Stats. 1959, c. 1866, p. 4424, Cal. Civil Code, Secs.
51-52 (1965) ............................................................  17

Cal. Stats. 1963, c. 1853, Sec. 2, p. 3823 .......................  18
Civil Rights Act of 1870, ch. 114, 16 Stat. 140 (1870) 39
Civil Rights Act of 1875 ............................................... 45
Commission on Race and Housing, Where Shall We

Livef (1958) ....................................................7,9,10,13

42 United States Code:
Section 1982 ....................................................... 6,19,38

Other Authorities:

Abrams, Forbidden Neighbors (1955) .......................  7
50 Am. Jur., Statutes §441 ............................................ 42

California Real Estate Magazine, Yol. XLIY, Issue
No. 2 (1963) ........................................................... 30

Clark, Prejudice and Your Child (1955) 11

Departments of Commerce and Housing and Urban 
Development, ‘ ‘ Construction Reports — Sale of 
New One-Family Homes,”  Series C25-26 (1963), 
C25-27 (1964), C25-65-13 (1965) ........................... 33

Executive Order No. 11063, 27 Fed. Reg. 11527 (1962) 19

Flack, The Adoption of the Fourteenth Amendment
(Johns Hopkins Press, 1908) ............................... 43

Governor’s Commission on the Los Angeles Riots 
(Dec., 1965), Violence in the City—An End or a
Beginning ................................................................

Groner & Helfield, Race Discrimination in Housing, 
57 Yale L. J. 426 (1948) ........................................ 12



V I

Maslow, De Facto Public School Segregation, 6 Vill.
PAGE

L. Rev. 353 (1961) .................................................. 15
McEntire, Residence and Race (IT. Cal. Press,

I960) ........... ..........................................................8,12,33
Myrdal, An American Dilemma (1944) .......................  7,15

National Committee Against Discrimination in Hous­
ing, “ The Fair Housing Statutes and Ordi­
nances”  (June, 1966) ............................................

New York State Commission Against Discrimination,
In Search of Housing, A Study of Experiences 
of Negro Professional and Technical Personnel 
in New York State (1959) .....................................

President’s Committee on Civil Rights, Report, To
Secure These Rights (1947) ................................. 7,15

Robison, J. B., “ The Possibility of a Frontal Assault 
on the State Action Concept,”  41 Notre Dame 
Lawyer 455 (1966) .................................................. 43

United States Commission on Civil Rights, 1959 Re-
,P °rt ............................................................. 7,9,11,12,15

United States Commission on Civil Rights, 1961 Re­
port, Book 4, Housing ........................................ 7; 12,13

United States Commission on Civil Rights, “ 50 States
Report”  (1961) ....................................................7,14,16

21

15

Weaver, The Negro Ghetto (1948) 7



IN THE

Supreme Court of the United States
October Term, 1966

No. 483

Neil R eitman, et al., and Clakence Snyder,
Petitioners,

vs.

L incoln W . Mulkey, et al., and W ilfred J. P rendergast 
and Carola E va P rendergast,

Respondents.

On Writ of Certiorari to the Supreme Court 
of the State of California

BRIEF OF NATIONAL COMMITTEE AGAINST  
DISCRIMINATION IN HOUSING,

AMICUS CURIAE

The two proceedings before this Court on writ of cer­
tiorari to the California Supreme Court present the single 
question whether a provision recently added to the Cali­
fornia Constitution violates the Constitution and laws of 
the United States. In each case, it was asserted that the 
owner of housing accommodations had violated a Cali­
fornia statute prohibiting discrimination in the sale or



2

rental of lionsing on the basis of race, religion or national 
origin. In each case, the owner asserted that the statute 
had been invalidated by a clause added to the California 
Constitution by action of the voters on Election Day in 
1964, on what was popularly known as “ Proposition 14.”  
The operative part of the clause, which is now Article I, 
Section 26 of the California Constitution, reads as follows:

Neither the State nor any subdivision or agency 
thereof shall deny, limit or abridge, directly or indi­
rectly, the right of any person, who is willing or de­
sires to sell, lease or rent any part or all of his real 
property, to decline to sell, lease or rent such property 
to such person or persons as he, in his absolute dis­
cretion, chooses.

The Supreme Court of California, on May 10, 1966, is­
sued its decisions1 in these cases holding that Article I, 
Section 26, violated the Equal Protection Clause of the 
Fourteenth Amendment.

interest of the Amicus

This brief is filed, with the consent of the parties, on 
behalf of the National Committee Against Discrimination 
in Housing. The National Committee was founded in 1950. 
Its constitution specifies the following purpose:

To eliminate prejudice and discrimination, to lessen 
neighborhood tensions, to defend human and civil 
rights secured by law, * * *

1. Mulkey v. Reitman, 64 Cal. 2d 529, 413 P. 2d 825; Prender- 
gast v. Snyder, 64 Cal. 2d 877, 413 P. 2d 847.



3

Its member organizations are as follows:
A FL-C IO
Amalgamated Clothing Workers of 

America, a f l -cio 
American Baptist Convention 
American Civil Liberties Union 
American Council on Human Rights 
American Ethical Union 
American Friends Service Committee 
American Jewish Committee 
American Jewish Congress 
American Newspaper Guild, a fl -cio 
American Veterans Committee 
Americans for Democratic Action 
Anti-Defamation League of B ’nai B ’rith 
Brotherhood of Sleeping Car Porters, 

a fl -cio/ clc
Commonwealth of Puerto Rico, 

Department of Labor,
Migration Division 

Congress of Racial Equality— core 
Cooperative League of the U SA  
Friendship House
Industrial Union Department, afl-cio 
International Ladies’ Garment 

Workers’ Union, afl-cio 
International Union of Electrical, Radio 

and Machine Workers, a fl -cio 
International Union, United 

Automobile, Aerospace and 
Agricultural Implement Workers 
of America (U A W )

Jewish Labor Committee

League for Industrial Democracy 
The Methodist Church 
naacp  Legal Defense and Educational 

Fund, Inc.
National Association for the Advance­

ment of Colored People— naacp 
National Association of Housing 

Cooperatives
National Association of Negro Business 

and Professional Women’s Clubs 
National Catholic Conference for 

Interracial Justice 
National Committee on Tithing 

in Investment
National Community Relations 

Adivsory Council
National Council of Churches of Christ 
National Council of Jewish Women 
National Council of Negro Women 
National Urban League 
Protestant Episcopal Church 
Scholarship, Education and Defense 

Fund for Racial Equality 
Southern Regional Council 
Synagogue Council of America 
Union of American Hebrew 

Congregations
Unitarian Universalist Association 
United Church of Christ 
United Presbyterian Church 
United Steelworkers of America, afl- cio 
Young Women’s Christian Association

The National Committee submits this brief because Ar­
ticle I, Section 26 represents, in California and in all other 
states, a most potent device for indurating racial segrega­
tion in housing. The language of Article I, Section 26 is 
general and unqualified. No effort is made to catalogue 
the considerations which the amendment would immunize 
against state regulation or prohibition in a landowner’s de­
termination to withhold property from particular individ-



4

uals. Rather, by vesting ‘ ‘ absolute discretion”  in the prop­
erty owner with respect to the disposition of his property, 
the amendment attempts to extend state constitutional pro­
tection to both reasonable and unreasonable motivations, 
ethical and unethical considerations, reasons that under­
mine the general welfare as well as those that do not, for 
selecting and rejecting willing buyers and renters.

The major impact of the amendment falls upon mem­
bers of minority groups. A  constitutional amendment was 
not needed to permit property owners to withhold a lease­
hold from lessees with pets, to withhold property in a sen­
ior citizens community from purchasers who do not meet 
an age requirement, or to withhold property for any num­
ber of considerations under commonly accepted tenets of 
desirable social and economic behavior. However, in re­
cent years, the withholding of real property on purely ra­
cial or religious grounds and the resultant creation of 
segregated housing which denies equal opportunity for one 
of the essentials of living has been made the occasion for 
legal redress in California. Article I, Section 26 was pro­
posed and passed for the precise objective of reversing 
that trend by granting and guaranteeing the right to dis­
criminate on racial and religious grounds in the selling and 
leasing of real property.

The language of the amendment achieves that purpose. 
Under the phraseology used—“ absolute discretion”  and 
“ decline to sell” —all Mexicans seeking homes in Los An­
geles may be turned away because of their national origin 
by owners whose houses are on the market; all Japanese 
farmers may be denied farmland in the San Joaquin Valley



5

because they are not Caucasian; all Negroes in San Fran­
cisco may be told that they cannot rent apartments because 
of the color of their skin; all Jews may be excluded from 
a housing project because of the way they worship God. 
In those instances, at least, the amendment undeniably 
would sanction discrimination. It would even legalize total 
exclusion of specified groups from whole communities.

It is the position of Amicus that Article I, Section 26 
of the California Constitution, hy granting immunity from 
the sanctions of state law to those who discriminate against 
minority groups in selling or leasing homes, by withholding 
redress of state law from those who suffer such discrimi­
nation and by arbitrarily precluding the effective exercise 
of state power to deal with the evils and dangers to the 
state resulting from discrimination in the transfer of real 
property, is in conflict with the Constitution and laws of 
the United States.2

Questions to Which this Brief is Addressed

1. Whether, in view of the fact that discrimination 
against minority groups dominates the market for housing 
and deprives minority groups of equal opportunity to ob­
tain housing, California, by adopting Article I, Section 26

2. W e have been authorized by the following organizations to
state that they support the arguments set forth in this brief and wish 
to be viewed as joining in its presentation: A F L -C IO ; American
Civil Liberties Union; American Jewish Committee; American Jew­
ish Congress; Anti-Defamation League of B ’nai B ’rith; Industrial 
Union Department, A F L -C IO ; International Ladies’ Garment W ork­
ers’ Union, A F L -C IO ; International Union, United Automobile, 
Aerospace and Agricultural Implement Workers of America 
( U A W ) ; N A A C P  Legal Defense and Educational Fund, Inc.; 
National Association for the Advancement of Colored People; and 
Scholarship, Education and Defense Fund for Racial Equality.



6

has violated its obligation to take appropriate action to 
prevent inequality in housing imposed upon it by the Equal 
Protection Clause of the Fourteenth Amendment.

2. Whether Article I, Section 26 violates the guarantee 
in 42 IT. S. C., Section 1982 of the right of all citizens to 
equal opportunity to purchase or lease property without 
discrimination based on race.

A R G U M E N T

P O I N T  ONE

The State of California has given legislative recog­
nition to the existence and evil effects of discrimina­
tion in housing against minority groups.

A . Discrimination against minority groups dominates 
the housing market in California

The ghetto pattern that disfigures residential areas 
throughout the United States, including California, has 
been revealed in every study made of the subject, whether 
by public agencies or by private institutions. It means, in 
practice, that almost every housing unit placed on the mar­
ket, for sale or rental, for slum dwellers or for millionaires, 
bears an invisible label marking it as available for whites 
only or for Negroes only. As a result, large numbers of 
Negroes and members of other minority groups are denied 
the opportunity to purchase housing adequate for their 
needs which they could otherwise afford and are compelled 
to live in racially segregated areas of poorer quality and 
status.



7

In 1961, the U. S. Commission on Civil Rights ob­
served :3

In 1959 the Commission found that “ housing * * * 
seems to he the one commodity in the American mar­
ket that is not freely available on equal terms to every­
one who can afford to pay.”  Today, 2 years later, the 
situation is not noticeably better.

Throughout the country large groups of American 
citizens—mainly Negroes but other minorities too—are 
denied an equal opportunity to choose where they will 
live. Much of the housing market is closed to them for 
reasons unrelated to their personal worth or ability to 
pay. New housing, by and large, is available only to 
whites. And in the restricted market that is open to 
them, Negroes generally must pay more for equivalent 
housing than do the favored majority. “ The dollar in 
a dark hand”  does not “ have the same purchasing 
power as a dollar in a white hand.”

And the California Advisory Committee to the U. S. 
Commission on Civil Rights has reported :4

The State of California has a large and increasing 
Negro population. These people live mainly in segre­
gated patterns in the major urban centers of the State. 
In most cases, Negro housing areas are considerably 
less attractive than housing in other areas.

# # #

3. Report of the U. S. Commission on Civil Rights, Book 4, 
Housing, p. 1 (1961). See also, Report of the President’s Commit­
tee on Civil Rights, To Secure These Rights, pp. 67-70 (1947) ; 
Myrdal, An American Dilemma, pp. 618-27 (1944) ; Weaver, The 
Negro Ghetto (1948) ; Abrams, Forbidden Neighbors, pp. 70-81 
137-49, 150-190, 227-243 (1955) ; Commission on Race and Hous­
ing, Where Shall We Live?, pp. 1-10 (1958) ; Report of the U. S. 
Commission on Civil Rights, pp. 336-374 (1959).

4. U. S. Commission on Civil Rights, “ 50 States Report”  pp
43-46 (1961). f  W



8

As California’s Negro population increases, pres­
sure builds up in the great urban ghettos, and slowly 
but perceptibly the segregated areas enlarge. The 
Committee found that, as a general rule, Negro fami­
lies do not move individually throughout the commu­
nity. They move as a group. This is true in most 
cases of the relatively high-wage Negro professional 
group. It is practically universally true of Negroes 
in the lower mass group.

This Negro housing problem is widespread. Ne­
groes encounter discrimination not only where houses 
in subdivisions and in white neighborhoods are con­
cerned but also in regard to trailer parks and motels. 
Testimony received by the Committee indicated that 
the trailer-park situation is particularly acute and 
that, especially in the southern part of the State, few, 
if any, trailer parks will accept Negroes.5

Unquestionably there is an established pattern of segre­
gation in housing, and in the sale and rental of real estate, 
in California.

B. Residential segregation in California 
has harmful effects.

Because of the pervasive nature of discrimination in 
housing, we have in effect two housing markets, one for 
whites and one for non-whites. The resulting oppressive 
effects on the direct victims of discrimination and on the 
interests of the state as a whole are readily demonstrated.

5. The existence of housing bias in California’s two principal 
metropolitan areas is further documented in McEntire, Residence 
and Race (1960), in a chapter (pp. 32-67) studying residential pat­
terns in 12 large cities representing the major regions of the country, 
including Los Angeles and San Francisco. See particularly the maps 
showing racial concentration in those two cities, pp. 61-66.



9

1. The most obvious price paid by those who are dis­
criminated against is a loss of freedom. “ The opportunity 
to compete for the housing of one’s choice is crucial to 
both equality and freedom,”  declares the Commission on 
Race and Housing.0

Within their financial limits, majority groups in Amer­
ica are free to choose their homes on the basis of a number 
of factors germane to their pursuit of happiness : the size 
of house needed to accommodate the family; preferences 
for particular styles of housing or kinds of neighborhoods; 
the availability of community facilities such as churches, 
schools, playgrounds, clubs, shopping, and transportation.

This freedom of choice is denied members of minority 
groups. Granted the means a non-white person may buy 
any automobile, any furniture, any clothing, any food, any 
article of luxury offered for sale. But it is not possible 
for a non-white American to bargain freely, in an open, 
competitive market, for the home of his choice, regardless 
of his intellect, integrity or wealth.

The U. S. Commission on Civil Rights, referring to the 
“ white noose around the city,”  has said:6 7

There may be relatively few Negroes able to afford 
a home in the suburbs, and only some of these would 
want such homes, but the fact is that this alternative 
is generally closed to them. It is this shutting of the 
door of opportunity open to other Americans, this con­
finement behind invisible lines, that makes Negroes 
call their residential areas a ghetto.

6. Report of Commission on Race and Housing, Where Shall 
W e Live?, p. 3 (1958).

7. Commission on Civil Rights, 1959 Report, p. 378.



10

Housing discrimination also abridges the right of the 
majority group owner freely to sell or rent his property. 
The mechanics of the dual, segregated housing market re­
strict the market within which the white seller may find 
prospective purchasers. For practical purposes, he is com­
pelled by the prevailing practices in the housing market 
to offer his house to whites only or to Negroes only.

2. Housing discrimination imposes a heavy economic 
penalty on the Negro. As the H. S. Commission on Civil 
Rights pointed out in the portion of its 1961 Report quoted 
above, “ Negroes generally must pay more for equivalent 
housing than do the favored majority.” 8 This is because 
the discriminatory practices that hold down the supply of 
housing available to Negroes inevitably raise the price or 
rent they must pay.

McEntire, after reviewing all past studies as well as 
those conducted for the Commission on Race and Housing, 
concluded :9

Racial differences in the relation of housing equal­
ity and space to rent or value can be briefly summa­
rized. As of 1950, nonwhite households, both renters 
and owners, obtained a poorer quality of housing than 
did whites at all levels of rent or value, in all regions 
of the country. Nonwhite homeowners had better 
quality dwellings than renters and approached more 
closely to the white standard, but a significant differen-

8. Similarly, the Commission on Race and Housing, in its Re­
port, Where Shall W e Live? (1958), p. 36, said: “ * * * segregated 
groups receive less housing value for their dollars spent than do 
whites, by a wide margin.”

9. Op. cit. supra, p. 155.



11

tial persisted, nevertheless, in most metropolitan areas 
and value classes. * # *

3. Other, less tangible, injuries are inflicted on the vic­
tims of discrimination in housing, with resultant evil ef­
fects on the state itself.10 “ All of our community institu­
tions reflect the pattern of housing,”  the president of the 
Protestant Council of New York has stated. “ It is inde­
scribable, the amount of frustration and bitterness, some­
times carefully shielded, but the anger and resentment in 
these areas can scarcely be overestimated and can hardly 
be described; and this kind of bitterness is bound to seep, 
as it has already seeped, but increasingly, into our whole 
body politic.”  He said he could “ think of nothing that is 
more dangerous to the nation’s health, moral health as 
well as physical health, than the matter of these ghettos.” 11

Residential discrimination and segregation impede the 
social progress and job opportunities of minority groups, 
and deprive the whole community of the contributions 
these Americans might otherwise make. It is questionable 
whether we can fully comprehend the enormous harm to 
the individual and to the community in terms of waste of 
human and economic resources.

4. Perhaps the most notorious effect of the ghetto sys­
tem is its creation of slums, with all their attendant evils 
•—to the slum dweller and to the public weal. As we have 
seen, housing bias compels non-white groups to live in the

10. See, in particular, Clark, Prejudice and Your Child (1955), 
pp. 39-40.

11. U. S. Commission on Civil Rights, 1959 Report, p. 391.



12

restricted areas available to them. The California Supreme 
Court summarized the results as follows in Burks v. Poppy 
Construction Co., 57 Cal. 2d 463, 471 (1962):

Discrimination in housing leads to lack of adequate 
housing for minority groups [citations omitted], and 
inadequate housing conditions contribute to disease, 
and immorality.

In 1959, the TJ. S. Commission on Civil Eights described 
the effects of residential discrimination as follows: “ The 
effect of slums, discrimination and inequalities is more 
slums, discrimination and inequalities. Prejudice feeds on 
the conditions caused by prejudice. Restricted slum living 
produces demoralized human beings—and their demoral­
ization then becomes a reason for ‘keeping them in their 
place’ * * * Not only are children denied opportunities but 
the city and nation are deprived of their talents and pro­
ductive power.”  The Commission reported that a former 
Secretary of Health, Education and Welfare estimated the 
national economic loss at 30 million dollars a year, repre­
senting the diminution in productive power of those who 
by virtue of the inferior status imposed upon them were 
unable to produce their full potential.12

Two years later, the Commission reiterated its conclu­
sion and added: “ These problems are not limited to any 
one region of the country. They are nationwide and their 
implications are manifold * * *” 13

12. U. S. Commission on Civil Rights, 1959 Report, p. 392; 
Commission on Race and Housing, op. cit. supra, pp. 5, 36-38; Gro- 
ner & Helfeld, Race Discrimination in Housing, 57 Yale L. T. 426, 
428-9 (1948).

13. U. S. Commission on Civil Rights, 1961 Report, Book 4, 
“ Housing,”  p. 1. See also McEntire, op. cit. supra, pp. 93-94.



13

5. Tlie racial patterns of the slums resulting from 
housing bias severely impede programs of slum clearance 
and urban renewal. The price paid for these civic improve­
ments in terms of forced moves and disrupted lives, is 
often borne most heavily by the minority families that live 
in the cleared areas.

The problem has been fully described by the U. S. Com­
mission on Civil Rights.14 It points out that minorities are 
frequently the principal inhabitants of the areas selected 
for slum clearance or urban renewal.15 16 But each of these 
programs depends for success on the ability to relocate 
some or all of the slum dwellers. Urban renewal obviously 
contemplates the destruction or renovation of obsolete slum 
buildings, the residents of which must of course move. If 
they are simply moved to another segregated area, adding 
to its population densities, a new slum is created. In those 
circumstances, the renewal program represents little in the 
way of net reduction of slums.

As Albert M. Cole, former Federal Housing and Home 
Finance Administrator, has said:18

14. U. S. Commission on Civil Rights, 1961 Report, Book 4, 
“ Housing,”  c. 4 : “ Urban Renewal,” especially pp. 82-83. See also 
Commission on Race and Housing, op. cit. supra, pp. 37-40.

15. From the beginning of the Federal urban renewal program in 
1949 up to 1960, slum clearance and urban renewal projects had re­
located 85,000 families. Of the 61,200 families whose color is known, 
69%  were non-white. Housing & Home Finance Agency, Reloca­
tion from Urban Renewal Project Areas through June i960, p. 7 
(1961).

16. “ What is the Federal Government’s Role in Housing?”  A d­
dress to the Economic Club of Detroit, Feb. 8, 1954, quoted in Re­
port of the Commission on Race and Housing, Where Shall W e 
Live?, p. 40 (1958).



14

Regardless of what measures are provided or de­
veloped to clear slums and meet low-income housing 
needs, the critical factor in the situation which must 
he met is the fact of racial exclusion from the greater 
and better part of our housing supply. * * * No pro­
gram of housing or urban improvement, however well 
conceived, well financed, or comprehensive, can hope 
to make more than indifferent progress until we open 
up adequate opportunities to minority families for de­
cent housing.

The California Advisory Committee to the U. S. Com­
mission on Civil Rights discovered that these factors were 
in full operation in that State, with clearly visible harm 
to the Negro population. It reported:17

The Committee found that concentration of Negro 
families into certain specified areas within California 
cities seems to be augmented, rather than alleviated, 
by urban renewal projects. It appears that Negroes 
displaced by such projects tend to find alternative 
housing in pre-existing Negro sections. There seems 
to be little effort to guide displaced families in their 
selection of homesites. The project moves forward 
and Negro families along with other groups, must 
quickly find new homes. More often than not these 
Negro families settle in adjacent ghettos already in 
existence.

As the proportion of minority group members is 
extremely high in the so-called “ blighted areas”  of 
our State’s larger cities, this is a major problem for 
those concerned with civil rights and minority hous­
ing.

17. 50 States Report, supra, p. 45.



15

6. The harmful effects of residential segregation are 
not limited to housing. A conspicuous feature of the ghetto 
system is its tendency to produce segregation in education 
and all other aspects of our daily lives.18 19 It is primarily 
responsible for the wide-spread de facto segregation that 
hampers Negroes and persons of Puerto Rican and Mex­
ican origin in urban public schools.18 It has even impaired 
the job opportunities opened up by fair employment laws.20

One of the most disturbing features of the physical pat­
tern of segregation, whether in housing or otherwise, is 
that it builds the attitudes of racial prejudice which, in 
turn, strengthen the segregated conduct patterns. This 
was recognized two decades ago by a Presidential Commit­
tee :21

For these experiences demonstrate that segregation 
is an obstacle to establishing harmonious relationships 
among groups. They prove that where the artificial 
barriers which divide people and groups from one an­
other are broken, tension and conflict begin to be re-

18. Myrdal, An American Dilemma, p. 618 (1944) ; Commission 
on Race and Housing, op. cit. supra, pp. 35-36.

19. Maslow, De Facto Public School Segregation, 6 Vill. L. Rev. 
353, 354-5 (1961). In its 1959 Report, the U. S. Commission on 
Civil Rights said (at p. 545) : “ The fundamental interrelationships 
among the subjects of voting, education, and housing make it impos­
sible for the problem to be solved by the improvement of any one 
factor alone.”  See also pp. 389-90.

20. N. Y . State Commission Against Discrimination, In Search 
of Housing, A  Study of Experiences of Negro Professional and Tech­
nical Personnel in New York State (1959).

21. Report of the President’s Committee on Civil Rights, To Se­
cure These Rights, pp. 82-7 (1947),



16

placed by cooperative effort and an environment in 
which civil rights can thrive.22

7. All the evils discussed above combine to create the 
gravest danger of all to the security of society—the ever 
present threat of violent race conflict. Virtually every in­
stance of such violence in the last two decades—outside 
of the South—has reflected the ghetto system. It has arisen 
either out of efforts by Negro families to move into pre­
viously all white areas or out of the tensions that build up 
within the ghetto. It is enough to remind this Court of 
the riots of 1965 in the Watts and other Negro districts of 
Los Angeles that caused the loss of 34 lives and property 
damages estimated at $40,000,000.23 California would not 
have had a Watts riot if it had not had a Watts in the first 
place.

22. The impact of housing discrimination is not limited to citi­
zens of our country. The California Advisory Committee to the U. S. 
Commission on Civil Rights confirms this (SO States Report, supra, 
p. 46) :

Discrimination in housing directed against Negroes has had 
an unfortunate impact on foreign students whose skin colors are 
dark. The Committee heard testimony from an Indian student 
at Sacramento State College who indicated that he had been re­
fused accommodations in a number of instances because of his 
color. The testimony of student government leaders at the same 
school indicated that this foreign student problem is significant. 
Commendably, student groups at Sacramento State are trying to 
do something about this situation through investigation and con­
ference.

The Committee is very disturbed by the evident impact of 
discriminatory treatment on foreign students whose preconcep­
tions about American democracy have been rudely upset. These 
students are potential leaders in their own countries and the 
image of America which they take back with them can be sig­
nificantly tarnished by such experiences.

23. “ Violence in the City— An End or a Beginning,”  Report by 
the Governor’s Commission on the Los Angeles Riots (Dec., 1965),
p. 1.



17

C. The State of California has recognized the existence 
and harmful effects of racial discrimination in housing 
by enacting legislation against such discrimination.

The State of California has given formal recognition 
to the existence and evil effects of discrimination based on 
race, religion or national origin by the enactment of anti­
bias legislation. It is true that, as we note below, its policy 
has been far from consistent, particularly in housing. At 
times, in fact, its laws have affirmatively facilitated and 
even required discrimination. In recent years, however, 
until the approval of Article I, Section 26 by referendum, 
the California Legislature has recognized reality by moving 
progressively to curb' the ghetto system.

In 1959, California enacted a measure known as the 
“ Hawkins Act”  which prohibited discrimination in “ pub­
licly assisted housing accommodations.” 24 In the same 
year, it adopted the “ Unruh Act”  which revised its law 
dealing with places of public accommodation to make it 
applicable to “ all business establishments of every kind 
whatsoever.” 25 26 This law was subsequently held to apply 
to those in the business of selling or leasing residential 
housing.28

24. Cal. Stats. 1959, c. 1681, pp. 4074-7, Health and Safety Code, 
sections 35700-35741.

25. Cal. Stats. 1959, c. 1866, p. 4424, Cal. Civil Code, Secs. 51- 
52 (1965).

26. Lee v. O’Hara, 57 Cal. 2d 476, 370 P. 2d 321 (1962) (real 
estate brokers) ; Burks v. Poppy Construction Co., 57 Cal. 2d 463 
(1962) (developer of a tract of single family homes).



18

In 1963, California enacted the measure popularly 
known as the “ Rumford Act,”  which added sections 35700- 
35744 to the Health and Safety Code27 and replaced the 
provisions of the “ Hawkins Act.”  The Rumford Act was 
broader than the Hawkins Act in covering, inter alia, res­
idential housing containing more than four units, even 
though not publicly assisted. In addition, the Legislature 
vested the exclusive authority to administer the Rumford 
Act in the Fair Employment Practice Commission. The 
legislative policy which the Rumford Act implemented is 
expressed as follows (Health and Safety Code, sec. 35700):

The practice of discrimination because of race, col­
or, religion, national origin, or ancestry in housing ac­
commodations is declared to be against public policy.

This part shall be deemed an exercise of the police 
power of the State for the protection of the welfare, 
health, and peace of the people of this State.

The existence and evil effects of discrimination in hous­
ing have been recognized not only by the legislative branch 
of the state government but also by its judicial branch. 
Burks v. Poppy Construction Co., supra, 57 Cal. 2d at 471; 
Jackson v. Pasadena City School District, 59 Cal. 2d 876, 
881 (1963).

27. Cal. Stats. 1963, c. 1853, Sec. 2, p. 3823.



19

P O I N T  T W O

Article I, Section 26 violates the Equal Protection 
Clause of the Fourteenth Amendment by encouraging, 
empowering and facilitating discrimination in hous­
ing against minority groups.

A . The Fourteenth Amendment requires the states to take 
appropriate action to prevent inequality in housing.

Article I, Section 26, if valid, would disable the state 
and local legislative bodies of California from acting to 
prevent discrimination by the owners of housing in sales 
or rentals.28 It would also preclude the state judiciary 
from developing and applying common law principles that 
limit such discrimination in any manner. At one stroke, 
it would greatly limit if not undo the effect of all existing 
state regulation in this field, prohibit future action at any 
level of state government and assure to private owners of 
realty freedom from any state restraint on creation of the 
discriminatory housing conditions that create many of 
California’s serious social problems. We suggest that the 
strictures of the Fourteenth Amendment cannot be so easily 
avoided in matters of governmental responsibility.

28. Article I, Section 26 applies only to sales and rentals by the 
property owner. Presumably, therefore, it leaves the existing state 
laws in effect insofar as they apply to discrimination initiated by real 
estate brokers and discrimination by banks and other institutions in 
the financing of housing. It also goes without saying that this pro­
vision, even if valid, does not suspend the limitations of the Thir­
teenth and Fourteenth Amendments insofar as they apply to housing 
benefited by “ state action.”  Neither does it affect the power of the 
Federal Government to deal with housing bias by legislation, such 
as 42 U. S. C. Sec. 1982 referred to below, or by executive action, 
such as the Executive Order issued by President Kennedy in 1962 
barring discrimination in housing receiving certain forms of Federal 
assistance. Executive Order No. 11063, 27 Fed. Reg. 11527 (1962).



20

The purpose of the Fourteenth Amendment was to pro­
tect the rights of minority groups with respect to activities 
in which, under our political system, the state is expected 
to play a role. When this Court originally construed that 
Amendment as dealing only with “ state action,”  it did so 
on the assumption that the states would act appropriately 
to prevent abuse of their legal systems so as to permit de­
nials of equal opportunity. Thus, in the Civil Rights Cases, 
109 U. S. 3 (1883), where it held that the Federal Govern­
ment did not have power to prohibit discrimination by pri­
vate parties in operating places of public accommodation, 
it proceeded on the assumption that individual rights “ may 
presumably be vindicated by resort to the laws of the State 
for redress”  (109 XL S. at 17). It said (at 19):

We have discussed the question presented by the law 
on the assumption that a right to enjoy equal accom­
modation and privileges in all inns, public conveyances, 
and places of public amusement, is one of the essential 
rights of the citizen which no State can abridge or in­
terfere with. Whether it is such a right, or not, is a 
different question which, in the view we have taken of 
the validity of the law on the ground already stated, 
it is not necessary to examine.

It also said (at 25):

Innkeepers and public carriers, by the laws of all the 
States, so far as we are aware, are bound, to the extent 
of their facilities, to furnish proper accommodation to 
all unobjectionable persons who in good faith apply for 
them.

This Court thus made it plain that our federal system 
of government posits a responsibility on the part of the 
states to prevent inequality through protection of individual



21

rights. That responsibility, like “ state action,”  is an ex­
panding concept. Governmental responsibility generally 
has necessarily grown with the proliferation of complex 
problems in contemporary life. State and individual have 
more points of contact today than in years gone by. In 
the same way, the need for state action to insure equality 
in basic rights has grown.

As we have shown in Point One, California is scarred 
by minority group ghettoes that cause severely harmful 
effects both for the minority groups directly affected and 
for the public at large. Those evil effects have been high­
lighted by the tragic events of the Watts riots of 1965 and 
the official report on its causes and consequences.

California, like 16 other states,29 has recognized the ob­
ligation that these facts impose upon it by enacting appro­
priate legislation to curb housing bias. By now adopting 
Article I, Section 26, which in effect repudiates that obli­
gation, California has violated the mandate of the Four­
teenth Amendment.

B. The momentum of California’s involvement in regula­
tion of discrimination in housing makes its facilitation 
of discrimination state action within the reach of the 
Fourteenth Amendment.

What is at stake here is the shaping of residential areas. 
To a large extent, in our present complex society, that is 
already done or controlled by state action—in the form of 
zoning regulations, building restrictions, control over con-

29. The statutes are listed and summarized in “ The Fair Hous­
ing Statutes and Ordinances,”  Report of the National Committee 
Against Discrimination in Housing (June, 1966).



22

struction of roads and other forms of transportation as well 
as the supply of public utilities and many other factors 
that determine the nature of a community. Where there is 
no regulation by the state of sales and rental policies, those 
who own and control housing have the power to create a 
pattern of segregation and impose it on a state’s entire 
complex of residential areas. Experience shows that they 
do just that and that the result is that large segments of 
the population are denied equal opportunities because of 
their race, religion or national origin and are consequently 
compelled to live in squalid, disease-breeding ghettoes 
which create festering dangers to society.

On the basis of that experience, California recast its 
laws so as to break the pattern of segregated housing. We 
submit that this was, in effect, a fulfillment of its obliga­
tion, discussed in the preceding section, to use its legisla­
tive powers to create and enforce individual rights so as 
to prevent inequality. But whether or not we are right in 
this, it is plain that regulation of the racial character of 
neighborhoods so as to prevent denial of equality has be­
come an accepted aspect of government in California. 
Whether or not California has an obligation to undertake 
such regulation, it has done so. We submit that this Court’s 
decision in Evans v. Newton, 382 U. S. 296 (1966) estab­
lishes that any further action by the state in this area must 
be judged on the basis of whether or not it facilitates dis­
crimination, even by private parties.

In the Evans case, the city of Macon, Georgia, had be­
came involved in the administration of a public park un­
der a private will which limited use of the park to white



23

persons. The city had recognized in recent years that, 
under the Fourteenth Amendment, it could not exclude Ne­
groes from the park. See Pennsylvania v. Board of Trusts, 
353 U. S. 230 (1957). A suit was brought in the Georgia 
courts by the Board of Managers of the park against the 
city to compel it to resign as trustee so that the provision 
of the will requiring exclusion of Negroes could be ob­
served. The city thereupon tendered its resignation which 
was accepted and private trustees were appointed by the 
state court. The only reason for the appointment of the 
private trustees was to enable Negroes to be excluded from 
the park.

This Court reversed the action of the state court on 
grounds which are pertinent to the present case. It pointed 
out that, ‘ ‘ The action of a city in serving as trustee of prop­
erty under a private will serving the segregated cause is 
an obvious example”  of “ [Cjonduct that is formally ‘ pri­
vate’ ”  but which has “ become so entwined with govern­
mental policies or so impregnated with a governmental 
character as to become subject to the constitutional limita­
tions placed upon state action.”  Evans v. Newton, 382 
U. S. at 299. The essence of the opinion was that the 
state-private involvement which brought about Fourteenth 
Amendment control had not become “ disentangled”  (id. 
at 302).

The same week that this Court decided Evans v. Newton, 
the United States Court of Appeals for the Fourth Circuit 
decided Hawkins v. North Carolina Dental Society, 355 F. 
2d 718 (C. A. 4, 1966). The plaintiff in that case, a Negro, 
sued for admission as a member of the North Carolina



24

Dental Society, basing his claim primarily upon the fact 
that members of the society, by statute, elected the State 
Board of Dental Examiners, a governmental body. Follow­
ing the filing of the case, the state repealed the statute. The 
court nevertheless took note of the fact that, in actual prac­
tice, the Dental Society still exercised the powers it had had 
under the statute. Accordingly, the court held that the limi­
tations of the Fourteenth Amendment still applied and that 
the plaintiff was entitled to admission to this state agency.

These oases, Evans and Hawkins, have the common char­
acteristic that, once state control attaches, bringing in Four­
teenth Amendment limitations, repeal of the legislation or 
other termination of the state control does not automati­
cally remove the impact of those limitations. At the very 
minimum, the burden is upon those formerly subject to the 
limitations to show that there has been complete “ disen­
tanglement. ’ ’

In this case, the State of California had enacted fair 
housing legislation. This legislation was not a mere fortui­
tous sally into the area of housing regulation. It was a rec­
ognition by the State that it had a duty under its police 
power to take action against housing discrimination in order 
to prevent and eliminate inequality and other serious social 
evils. Having recognized its obligation and having pro­
vided a remedy to enforce the right to that protection, the 
state cannot now divest that right. Indeed, Evans and 
Hawkins are but particular examples in a racial context of 
the constitutional rule established by this Court in Truax 
v. Corrigan, 257 U. S, 312, 329 (1921).

It is true that no one has a vested right in any par­
ticular rule of the common law, but it is also time that



25

the legislative power of a State can only be exercised 
in subordination to tbe fundamental principles of right 
and justice which the guaranty of due process in the 
Fourteenth Amendment is intended to preserve, and 
that a purely arbitrary or capricious exercise of that 
power whereby a wrongful and highly injurious inva­
sion of property rights, as here, is practically sanc­
tioned and the owner stripped of all real remedy, is 
wholly at variance with those principles.

Implicit in the Evans and Hawkins rulings is. the concept 
that it is the fact rather than the legal structure of unequal 
protection that determines application of the Fourteenth 
Amendment. The State will not be allowed to avoid its 
constitutional obligation by attaching or removing labels 
or by fraudulently seeming to wash its hands of a respon­
sibility which it cannot in truth avoid.

Over a period of years, the State of California enacted 
a series of laws which recognized that its pre-existing legal 
system resulted in unequal opportunity, because of race, to 
obtain, a “ necessary of life.”  Block v. Hirsh, 256 U. S. 135, 
156 (1921). In Evans, this Court said, “ * * * when private 
individuals or groups are endowed by the State with powers 
or functions governmental in nature, they become agencies 
or instrumentalities of the State and subject to its constitu­
tional limitations”  (382 U. S. at 299). It also quoted its 
earlier holding in Marsh v. Alabama, 326 U. S. 501, 509 
(1946), that a State may not permit private enterprises “ to 
govern a community of citizens so as to restrict their funda­
mental liberties * * #.”

By repudiating the responsibility it acknowledged when 
it adopted its laws against discrimination in housing, to deal



2 6

with, the evil of housing bias, California has done what these 
cases say it may not do. It has restored the system under 
which every housing unit placed on the market by private 
enterprise carries a label marking it as available only to 
members of one race. It has. given private builders and 
other owners of real property the power not merely to 
“ govern”  communities but to create them in a manner that 
restricts “ fundamental liberties.”

It is also important that this Court, in Evans, recognized 
that discrimination in the park in question might not have 
been unconstitutional if the City had never been involved 
but that the involvement of the City created a “ momentum”  
that could not simply be turned off by City withdrawal (382 
U. S. at 301). So here, the state, recognizing the funda­
mental inequality in housing opportunity created under its 
laws, undertook to exercise its police power to bring about 
equality. Its present reversal o f that decision constituted 
affirmative action in support of inequality that violated 
“ the mandates of equality and liberty that bind officials 
everywhere.”  Nixon v. Condon, 286 II. S. 73, 88 (1932).

C. Article I, Section 26 places the support of 
the legal system of California behind 
racial discrimination in housing.

The decisions of this Court establish that racial dis­
crimination by private individuals is not wholly beyond the 
reach of the Fourteenth Amendment. While it has held 
that there must be a nexus between individual action and 
the state in order to bring the Federal Constitution into 
play, state involvement need not rise to the level of direct



27

or affirmative action to trigger application of the Amend­
ment.

A  state law requiring individual discriminatory acts30 
is perhaps the most obvious form of state action through 
individual conduct hut the application of the Fourteenth 
Amendment has not been limited to such flagrant situations. 
A state cannot exculpate itself merely by showing that a 
private person made the effective determination to engage 
in invidious discrimination or some other invasion of funda­
mental rights.31 Implication of the1 state through official 
authorization or encouragement of unequal treatment of the 
races,32 through the availability of its sanctions in support 
of such inequality,33 or through failure to act in an area of 
state responsibility involving discriminatory conduct,34 all 
have provided the occasion for invocation of the Fourteenth 
Amendment.

The new amendment to the California Constitution 
places the state’s legal system squarely behind private acts 
of housing discrimination. The landlord who would deny 
Negroes the opportunity to rent or purchase is given the 
signal to proceed. But discrimination authorized or en­
couraged by the state has consistently been condemned un­
der the Fourteenth Amendment, even though the decision 
to discriminate is left to private choice. See, e.g., Shelley

30. Buchanan v. Worley, 245 U. S. 60 (1917).

31. Shelley v. Kraemer, 334 U. S. 1 (1948) ; Burton v. Wilming­
ton Parking Authority, 365 U. S. 715 (1961).

32. Anderson v. Martin, 375 U. S. 399 (1964).

33. Shelley v. Kraemer, supra.

34. Smith v. Allright, 321 U. S. 649 (1 9 4 4 ); Terry v. Adams, 
345 U. S. 461 (1953 ); Evans v. Newton, 382 U. S. 296 (1966).



28

v. Kraemer, 384 U. S. 1 (1948); Barrows v. Jackson, 346 
U. S. 249 (1953); Anderson v. Martin, 375 TJ. S. 399 (1964); 
McCabe v. Atchison T. <& S. F. Ry., 235 U. S. 151 (1914); 
Nixon v. Condon, 286 U. S. 73 (1932); Boman v. Birming­
ham Transit Company, 280 F.2d 531 (C. A. 5, 1960).

The new amendment implicates state agencies in dis­
criminatory practices in a manner no different in principle 
than was the case in Shelley v. Kraemer, supra. There the 
enforcement of private discriminatory practices by state 
courts was determined to be state action within the Four­
teenth Amendment. Under the new amendment, the state 
judiciary is brought into play on the side of discriminatory 
practices in an equally meaningful way, i.e., through pro­
tecting the act of discrimination against legal interference. 
The point is illustrated by Abstract Investment Co. v. 
Hutchinson, 204 Cal. App. 2d 242 (1962), where the court 
concluded that a Negro might defend an action of unlawful 
detainer by showing that his rental property was being 
taken from him solely on account of his color. Article I, 
Section 26, however, would deprive the Negro defendant of 
his defense on the g'round that the landlord may decline 
to rent on any ground he chooses. Thus, the California 
courts would be required to strike the defense in a repeti­
tion of the Abstract Investment case. Plainly, if the Fed­
eral Constitution bars the state courts from enforcing evic­
tion on racial grounds, as held in Abstract Investment, and 
the new amendment to the State Constitution prohibits the 
judiciary from preventing such an eviction, the Federal 
Constitution and Article I, Section 26 are at war.

It is simply not true that the new amendment merely 
places the state in a neutral position—neither encourag-



29

mg nor discouraging racial discrimination. The enact­
ment of an affirmative state policy banning state interfer­
ence with landowners who discriminate against racial mi­
norities cannot he equated with the absence of statutory 
law relating to discrimination.

Unlike the situation that would exist if present fair 
housing legislation were merely repealed, the new amend­
ment (1) prevents the development of common law judicial 
remedies against private acts of racial discrimination, (2) 
precludes future State and local legislative action against 
private acts of racial discrimination, no matter how moder­
ate the action or how pressing its need, and (3) enshrines 
in the California Constitution the grant of an “ absolute”  
right in owners of real property to discriminate on racial 
and religious grounds. This we submit is not ‘ ‘ neutrality. ’ ’ 
It constitutes action of the State directly sanctioning, en­
couraging and empowering private acts of racial discrimi­
nation. There is, in fact, a difference in bind between state 
failure to prohibit private acts of racial discrimination (no 
fair housing legislation) and amendment of a state con­
stitution making private acts of racial discrimination a pro­
tected “ right.”  In the former instance, private acts of 
racial discrimination are, to be sure, not prevented by legis­
lation, but in the latter instance, they are actually en­
couraged and empowered by the State.

The new amendment on its face tends to encourage ra­
cial discrimination in housing on the part of those who de­
sire to engage in it. As observed in Barrows v. Jackson, 
346 U. S. 249, 254 (1953), there is unconstitutional encour­
agement of the practice of writing racially restrictive cove-



30

nants when the state places “ its sanction behind the [dis­
criminatory] covenants.”  Enactment of a constitntional 
provision placing acts of discrimination by all those who 
own real property beyond the reach of the state courts, the 
State Legislature and every governmental agency in the 
state encourages discrimination in housing just as surely 
as placing race labels on the ballot “ require [s] or encour­
age [s] ”  discrimination in voting. Anderson v. Martin, 375 
U. S. 399, 402 (1964). In neither case is discrimination 
compelled by the state; in both, it is at least facilitated. 
This is not “ neutrality.”  By adding Article I, Section 26 
to its constitution, the state has placed its thumb on the 
scale and tipped it in favor of discrimination.

The encouragement and assistance which the new amend­
ment affords to discrimination becomes even clearer upon 
consideration of the background events which led to its 
adoption. The measure was sponsored by the California 
Beal Estate Association and the California Apartment 
Owners Association, and it was made clear during the ef­
forts to obtain signatures on the initiative petition that the 
proposal was intended to nullify the Bumford Act and other 
fair housing laws.35 The official ballot argument in favor 
of the measure disclosed the same purpose.36 It is of course 
general public knowledge that the campaign respecting the 
proposed amendment was principally concerned with the 
issue of racial discrimination. In short, the purpose and

35. See, for example, Editorial in Vol. X L IV , Issue No. 2 of 
California Real Estate Magazine (Dec. 1963), the official publication 
of the California Real Estate Association.

36. The argument asserted that “ Under the Rumford Act, any 
person refused by a property owner may charge discrimination.”  It 
urged voters to enact the proposed amendment in order to free prop­
erty owners of any such charges.



31

expected effect of the measure was to free property owners 
from legal restrictions against discriminatory practices in 
housing. Indeed, racial considerations in the transfer of 
property constituted the only matters in controversy in 
respect to the amendment; neither proponents nor op­
ponents were in disagreement as to other considerations 
that might motivate a landowner to decline an offer to buy 
or rent, and there was no occasion to propose legislation 
in this respect.

In light of this single-minded purpose of the new amend­
ment, its constitutionality need not be evaluated in terms of 
its language alone. State laws or actions which seem neu­
tral when considered in a vacuum are the equivalent of un­
constitutional discriminatory state action where, as in the 
present case, it can be shown by reference to surrounding 
circumstances that the purpose and necessary effect is to 
bring about racial or religious discrimination. For exam­
ple, in Griffin v. School Board, 377 U. S. 218 (1964), the 
State of Virginia closed its public schools in one county but 
continued to operate its public school system in the other 
counties. This Court found it unnecessary to consider 
whether the state had authority to close its schools for law­
ful reasons since it concluded, on the basis of external cir­
cumstances surrounding the closing, that that was not the 
case. As the Court stated (377 U. S. at 231):

(The) public schools were closed and private 
schools operated in their place with state and county 
assistance, for one reason, and one reason only, (to 
discriminate against Negro children). (Emphasis 
added.)

In the light of this motivation, the state action took on an 
unconstitutional aspect.



32

To the same effect,, see Wright v. Rockefeller, 376 U. S. 
52 (1964), where the circumstances surrounding a state re­
apportionment act were inquired into for the purpose of 
ascertaining whether the districts were composed “ with 
racial considerations in mind.”  See also, Guinn v. United 
States, 238 U. S. 347 (1915); Lane v. Wilson, 307 TJ. S. 268 
(1939); Gomillion v. Lightfoot, 364 U. S. 339 (1960).

The external evidence relating to the enactment of the 
new amendment inescapably leads to the conclusion that it 
was conceived, prepared, submitted for signatures, pre­
sented to the voters and enacted with a single purpose in 
mind—emasculating fair housing legislation and immuniz­
ing discriminatory landowners against state regulation. 
In these circumstances, it cannot be validly argued that the 
new amendment does not constitute state encouragement of 
racial discrimination. Property owners have been told in 
effect that the state law stands behind any refusal by them 
to sell or rent to Negroes or members of other minority 
groups. And this is indeed the case. If the new amendment 
is allowed to stand, no statutory or common law remedy 
will be available under state law against racial discrimina­
tion in housing sales and rentals. The Fourteenth Amend­
ment, however, does not permit state involvement of this 
character in discrimination of so invidious a nature. For 
that reason alone, the amendment cannot stand.

D. Article I, Section 26 violates the Equal 
Protection Clause because it authorizes 
and facilitates racial zoning.

Fifty years ago, this Court held that the Fourteenth 
Amendment bars state and local legislation dividing resi­
dential areas into ‘ ‘ white ’ ’ and ‘ ‘ colored ’ ’ zones. Buchanan



33

v. Warley, 245 U. S. 60 (1917); see also, Harmon v. Tyler, 
273 U. S. 668 (1927); Richmond v. Deans, 281 U. S. 704 
(1930). Subsequently, in tlie Shelley case, supra, it barred 
attainment of the same result through court enforcement of 
privately initiated racial covenants. Article I, Section 26 
has the effect of authorizing and sanctioning achievement 
of racial zoning by organized and concerted, or at least 
parallel, action by those who control the housing market.

The result of permitting discrimination by those who 
sell or rent housing is not merely to sanction occasional re­
fusals here and there of individual housing units. The 
principal result, and the only one involved here,37 is to 
sanction the imposition of “ whites only”  barriers at the 
entrances to apartment houses, suburban developments and 
even entire towns. Particularly with the phenomenal 
growth in the size of housing developments—both rental 
and for sale—since World War II,38 the creation of whole 
new towns by a single company has become commonplace. 
Article I, Section 26 sanctions de facto racial zoning for 
these areas.

The Buchanan case dealt with zoning at the block level. 
Article I, (Section 26 would in effect permit racial zoning by 
private owners from the block to the city level.

37. It should be remembered that the cases now before this Court 
do not involve the sale or rental of single family homes but the rental 
of apartments in multiple dwellings. Indeed, the California statutes 
affected by Article I, Section 26 do not reach discrimination by 
owner-occupants of single family homes. They apply only to the kind 
of housing that is under the control of those to whom housing is a 
business.

38. McEntire, Residence and Race (U . Cal. Press, 1960), pp. 
176-177. See also “ Construction Reports— Sale of N ew ’One-Family 
Homes,”  Series C2S, Departments of Commerce and Housing and 
Urban Development, jointly— C25-26 (1963), C25-27 (1964), C25- 
65-13 (1965), page 1 of each report.



34

We submit that sucb de facto racial zoning cannot be 
permitted on the theory that it is initiated by private action 
and that the state does no more than facilitate it by permis­
sive legislation. The structuring of communities is a gov­
ernmental function—no different in constitutional signifi­
cance from the control of voting which this Court protected 
from discrimination by private parties in Smith v. All- 
wright, 321 U. S. 649 (1944). There, this Court said (at 
664):

This grant to the people of the opportunity for 
choice is not to be nullified by a State through casting 
its electoral process in a form which permits a private 
organization to practice racial discrimination in the 
election.

Here, it is the determination of occupancy patterns 
which the state is permitting by “ casting its * * * [laws] 
in a form which permits a private organization to practice 
racial discrimination * * Here, as there, constitutional 
significance should be denied “ so slight a change in form 
* * *”  (321 H. ,S, at 661).

Directly applicable here, we submit, is the line of argu­
ment that controlled this Court’s decision in Marsh v. Ala­
bama, 326 H. S. 501 (1946). There, it was held that the 
Fourteenth Amendment guarantee of due process (in its 
application to freedom of expression) protected the dis­
tribution of literature on the streets of a privately-owned 
company town. The Court first noted that such distribu­
tion could not be barred by municipal action and then went 
on to say (at p. 505):



35

* From these decisions it is clear that had the 
people of Chickasaw owned all the homes, and all the 
stores, and all the streets, and all the sidewalks, all 
those owners together could not have set up a municipal 
government with sufficient power to pass an ordinance 
completely barring the distribution of religious litera­
ture.

The Court held that the same results could not be 
achieved by the action of a single owner, saying (at p. 506): 
“ Ownership does not mean absolute dominion.”  Referring 
to the fact that the owner was acting as a private entity, 
the Court said (at p. 507):

* * # Whether a corporation or a municipality owns 
or possesses the town the public in either case has an 
identical interest in the functioning of the community 
in such manner that the channels of communication re­
main free.

It concluded that the action of the state in effectuating the 
restriction by prosecuting those who distributed the litera­
ture violated the Fourteenth Amendment.

Here, it is accepted that the state could not limit occu­
pancy in any area to persons of one race. Yet it is claimed 
that Article I, Section 26 can constitutionally permit own­
ers of property to achieve the same result. We submit that 
the requirements of the Fourteenth Amendment cannot so 
easily be evaded.

The concept that the state cannot be viewed as a neutral 
party in the shaping of communities, and particularly the 
racial aspect of communities, is buttressed here by the fact 
that the state of California has never been neutral in this 
matter. Whatever may be said about whether a state vio-



36

lates the Equal Protection Clause simply by baring a code 
of law which, by its silence, permits but does not discourage 
housing discrimination, that is not the case here. As shown 
in the brief for respondents (pp. 11-13), California has, for 
nearly a century, played an active role through its laws in 
affecting the racial composition of residential areas. It 
makes little difference that at times the state policy has 
been to favor segregation and in others to curb it. The 
essential fact is that California law has not been, “ neutral.”  
It cannot now become “ neutral.”

E. The Fourteenth Amendment prohibits a state from
disabling itself from fulfilling its constitutional 
responsibility to assure equality in housing.

Even if it were assumed that the Fourteenth Amendment 
imposes no obligation or responsibility on a state to enact 
or maintain urgently needed fair housing legislation, it 
would impose, we submit, at least the obligation to maintain 
the availability of the police power of the state to act in 
this area. In purporting to preclude exercise of that 
remedial power by adopting Article I, Section 26, Cali­
fornia has done what this Court has said it may not do in 
the Second Slaughter House Case, Butchers’ Union Co. v. 
Crescent City Co., I l l  U. S. 746, 753 (1883):

No legislature can bargain away the public health 
or the public morals. The people themselves cannot 
do it, much less their servants. The supervision of 
both these subjects of governmental power is continu­
ing in its nature, and they are to be dealt with as the 
special exigencies of the moment may require. Gov­
ernment is organized with a view to their preservation, 
and cannot devest (sic) itself of the power to provide



37

for them. For this purpose the legislative: discretion 
is allowed, and the discretion cannot be parted with any 
more than the power itself. (Emphasis added.)89

This is not to say that a state which has enacted fair 
housing legislation may never repeal it. There may, of 
course, be many situations in which the state could consti­
tutionally repeal such legislation, such as when the Legisla­
ture finds that the need no longer exists. Here, however, 
the state has gone beyond repeal and has disabled itself 
from carrying out a responsibility laid upon it by the Four­
teenth Amendment. It has thereby “ parted with”  the 
“ legislative discretion”  to deal with housing inequality 
“ as the special exigencies of the moment may require.”  
The Second Slaughter House case establishes that that may 
not be done. 39

39. The unconstitutionality of the instant disablement is further 
demonstrated by analogy to other illegal disablements of fundamental 
power. For example a state canot disable its courts from hearing 
and granting relief on federal causes of action. Testa v. Katt, 330 
U. S. 386 (1947). A  government cannot disable its courts, even in 
a wartime emergency, from considering a defense in a criminal case 
that the law being enforced is invalid, unless an alternative and effec­
tive procedure for reviewing the validity of the law is available to 
the defendant. Yakus v. United States, 321 U. S. 414 (1944). Simi­
larly, it is extremely doubtful that courts could be disabled from ex­
ercising the power to issue writs of habeas corpus in appropriate cases. 
See Eisentrager v. Forrestal, 174 F.2d 961, 965-966 (1949), reversed 
on other grounds, 339 U. S. 765 (1950).



38

P O I N T  T H R E E

Article I, Section 26 violates the guarantee in 42 
U. 5. C., Section 1982 of the right o f all citizens of 
the United States to equal opportunity to purchase or 
lease property without discrimination based on race.

Article VI, Section 2 of the United States Constitution,
the Supremacy Clause, provides:

This Constitution and the Laws of the United States 
which shall he made in pursuance thereof # * shall be
the supreme Law of the Land; and the Judges in every 
<State shall he bound thereby, any Thing in the Consti­
tution or Laws of any State to the Contrary notwith­
standing.

42 U. S. C., Sec. 1982 reads as follows:

All citizens of the United States shall have the same 
right in every State and Territory as is enjoyed by 
white citizens thereof to inherit, purchase, lease, sell, 
hold, and convey real and personal property.

If, as we believe, Section 1982 validly guarantees to all 
citizens the right to purchase or lease property free of dis­
crimination based on race, it nullifies Article I, Section 26 
to the extent that it purports to deny that right.

A . History of Section 1982

Less than four months after the adoption of the Thir­
teenth Amendment, Congress enacted the Civil Eights Act 
of 1866,40 its first post-Civil War civil rights act. It did so 
by overriding the veto of President Andrew Johnson. The

40. Civil Rights Act of 1866, ch. 31, §1, 14 Stat. 27 (1866).



39

Thirteenth. Amendment had become law on December 18, 
1865. It abolished slavery and sought to eradicate all forms 
and incidents of slavery and involuntary servitude.41 It 
declared and vindicated those fundamental rights which 
appertain to the essence of citizenship, and the enjoyment 
or deprivation of which constitutes the essential distinction 
between freedom and slavery.42 Section 1 of the Civil 
Eights Act of 1866 read in part:

That all * # # citizens, of every race and color * * * 
shall have the same right in every State and Territory 
in the United States # * to inherit, purchase, lease,
sell, hold, and convey real and personal property * # *48

The Fourteenth Amendment was not ratified until July 
28, 1868. It read in part as follows:

Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immu­
nities of citizens of the United States, nor shall any 
State deprive any person of life, liberty or property, 
without due process of law, nor deny to any person 
within its jurisdiction the equal protection of the laws.

Sections 2 and 5 of the Thirteenth and Fourteenth Amend­
ments, respectively, empower Congress to enforce their pro­
visions by appropriate legislation.

Thereafter, on May 31, 1870, Congress enacted a second 
Civil Rights Act44 which sought to protect the recently freed

41. Clyatt v. United States, 197 U. S. 207, 217 (1905).

42. Civil Rights Cases, 109 U. S. 3, 22 (1883).
43. See fn. 40, supra.

44. Civil Rights Act of 1870, ch. 114, 16 Stat. 140 (1870).



40

slaves from discrimination. Included in this Act as Section 
18 thereof was a specific reenactment of the Civil Rights 
Act of 1866. This act was thereafter recast and embodied 
in its present form as it appears in Section 1982 of Title 42 
in the general statutory revision of 1875 when it was desig­
nated as Revised Statutes, Sec. 1978.

B. The Thirteenth Amendment

The Civil Rights Act of 1866 was first enacted after the 
adoption of the Thirteenth Amendment and before the 
adoption of the Fourteenth Amendment. It is clear that 
the Thirteenth Amendment is applicable to the actions of 
private persons and there is no need for “ state action”  to 
trigger federal power and action under its terms. Even 
when this Court in the Civil Rights Cases, supra, was estab­
lishing “ state action”  as a prerequisite for invoking the 
protections of the Fourteenth Amendment and the civil 
rights acts enacted pursuant to Section 5 of that Amend­
ment, it also conceded that the Thirteenth Amendment gave 
“ power to Congress to protect all persons within the juris­
diction of the United States from being in any way sub­
jected to slavery or involuntary servitude, except as a pun­
ishment for crime, and in the enjoyment of that freedom 
which it was the object of the amendment to secure.” 45 
Hence, if the Civil Rights Act of 1866, our present Section 
1982 of Title 42, which was enacted under the authority of 
Section 2 of the Thirteenth Amendment,46 is read as being 
applicable to actions by private persons who violate rights

45. Civil Rights Cases, supra, 109 U. S. at 22. See also United 
States v. Harris, 106 U. S. 629 (1 8 8 2 ); Clyatt v. United States, fn. 
41, supra.

46. United States v. Harris, supra, 106 U. S. at 640.



41

it protects, without the slightest color of “ state action” , 
it is clear that such legislation is within the power granted 
to Congress by the Thirteenth Amendment.

That it should be so read, we believe, follows from the 
fact that it was enacted to implement the Thirteenth Amend­
ment which was designed to end the incidents of slavery, 
however manifested. That is the implication of this Court’s 
decision in the Civil Rights Cases, supra, 109 U. S. at 22:

Congress, as we have seen, by the Civil Eights Bill 
of 1866, passed in view of the Thirteenth Amendment, 
before the Fourteenth was adopted, undertook to wipe 
out these burdens and disabilities, the necessary inci­
dents of slavery, constituting its substance and visible 
form, and to secure to all citizens of every race and 
color, and without regard to previous servitude, those 
fundamental rights which are the essence of civil free­
dom, namely, the same right to make and enforce con­
tracts, to sue, be parties, give evidence, and to inherit, 
purchase, lease, sell and convey property, as is enjoyed 
by white citizens.

C. The Fourteenth Amendment

As already noted, the Civil Eights Act of 1866 was re­
enacted as a portion of the Civil Eights Act of 1870. We 
respectfully submit that this reenactment did not impose on 
that Act the “ state action”  limitation of the Fourteenth 
Amendment and that, consequently, this Court’s dictum in 
Hurd v. Hodge, 334 II. S. 24, 31 (1948) that Section 1982 
applies to “ governmental action”  should not be treated as 
a limitation on the section.

The history of the adoption of the two Amendments plus 
the Fifteenth and the post-Civil War civil rights acts points



42

strongly to an intent to expand and strengthen the safe­
guards embodied in those Amendments and acts. The aim 
was to insure the end of all uses of private as well as public 
power to seek to hold the freed Negro slaves in subjection 
or to deny them any of the rights essential to make them 
free, full and equal participants in the body politic and the 
economic life of the country with their white co-citizens. 
The view of the 1866 Act contained in the Hurd dictum con­
flicts with that history and the intent of the framers of the 
Amendments and the acts. The reenactment in 1870 was 
clearly intended to extend the ban on private denial of the 
right to purchase and lease property to any similar action 
by the state. A  contrary reading would transform into 
words of limitation, words of expansion of statutory remedy 
intended to meet new variations of the evil struck at. It 
would ignore the familiar canon -of statutory interpretation 
that the reenactment of a statute effects no change in the 
law but merely continues the original law in force. 50 Am. 
Jur., (Statutes §441.

Also relevant to any consideration of the impact o f the 
reenactment of the 1866 Act in 1870 after the adoption of 
the Fourteenth Amendment, is an examination of the un­
derstanding of scholars close in time to the original events. 
A  careful analysis of the legislative history of the Four­
teenth Amendment based on a study of the debates in Con­
gress and newspaper reports on the ratification debates in 
the various states, as embodied in a book published in 1908, 
led the author, H. E. Flack, to conclude that, when it was 
approved by Congress, its proponents in that body believed 
that under it “ Congress would be authorized to pass any 
law which it might declare ‘ appropriate and necessary’ to



43

secure to citizens their privileges and immunities together 
with the power to declare what were those privileges and 
immunities.” 47 The author also expressed the view that 
the framers of the Amendment believed they were making 
a great change in the powers of the Federal Government 
and that “ their failure to- do- this is due to the strained 
construction put upon their work by the Supreme Court. ’ ’48 
He concluded,

However futile were the efforts by Congress to 
give vitality to the Amendment as interpreted by it­
self and by those who had the most to do with its 
drafting and adoption, the fact remains that nearly all 
the evidence goes to sustain the position of Congress 
as far as the question of power and authority is con­
cerned. [The evidence shows that] according to the 
purpose and intention of the Amendment as disclosed 
in the debates in Congress and in the several state 
Legislatures and in other ways, Congress had the con­
stitutional power to enact direct legislation to secure 
the rights of citizens against violation by individuals 
as well as by the States.49

Recent decisions of this Court reflect an acceptance by 
at least six members of the view expressed above about the 
applicability of the provisions of the Fourteenth Amend­
ment to private action.50 These decisions indicate that Sec­
tion 5 authorizing Congress to enact appropriate legisla-

47. Flack, The Adoption of the Fourteenth Amendment (Johns 
Hopkins Press, 1908), at p. 82.

48. Id., at p. 69.

49. Id., at p. 227.
50. Garner v. Louisiana, 368 U. S. 157 (1961) ; Bell v. Mary­

land, 378 U. S. 226 (1964 ); United States v. Guest, 383 U. S. 745 
(1966). The first two of these cases are discussed in Robison, J. B., 
“ The Possibility of a Frontal Assault on the State Action Concept,” 
41 Notre Dame Lawyer 455, 458-60 (1966).



44

tion to enforce the substantive guarantees of the Amend­
ment is a broad grant of power and that, even if that 
Amendment, of its own force, does not forbid private dis­
crimination, Section 5 comprehends legislation punishing 
private persons who for racial reasons engage in acts which 
interfere with Fourteenth Amendment rights. Included 
in those rights under the privileges and immunities guar­
anteed to all is the right to purchase or lease property. 
Civil Rights Cases, supra; United States v. Morris, 125 Fed. 
322 (1903). In Shelley v. Kraemer, supra, this Court said 
(334 IT. S. at 10-11):

It cannot be doubted that among the civil rights in­
tended to he protected from discriminatory state action 
by the Fourteenth Amendment are the rights to ac­
quire, enjoy, own and dispose of property. Equality 
in the enjoyment of property rights was regarded by 
the framers of that Amendment as an essential pre­
condition to the realization of other basic civil rights 
and liberties which the Amendment was intended to 
guarantee.

In U. S. v. Guest, 383 IT. S. 745 (1966), six members 
of this Court, although not speaking for the Court, indi­
cated acceptance of the position that Congress has power 
under the Fourteenth Amendment and, therefore, has had, 
since the adoption of that Amendment, the power to enact 
legislation directed against private conspiracies interfer­
ing with the exercise of rights protected under the Amend­
ment. Although Mr. Justice Stewart in his opinion for the 
Court refused to re-examine the doctrine of a requirement 
of state action, basing his decision on a finding that state 
action was involved in the defendants’ conspiracy, Mr. Jus­
tice Brennan, concurring in an opinion in which he was



45

joined by the Chief Justice and Mr. Justice Douglas, noted 
that “ a majority of the members of the Court express the 
view today that §5 empowers Congress to enact laws pun­
ishing all conspiracies to interfere with the exercise of 
Fourteenth Amendment rights, whether or not state offi­
cers or others acting under the color of state law are im­
plicated in the conspiracy”  (383 U. S. at 782). In a foot­
note, Mr. Justice Brennan noted that a majority of the 
Court took this Anew, consisting of the three Justices join­
ing in his concurring opinion plus the three joining in Mr. 
Justice Clark’s opinion, Justices Clark, Black and Fortas. 
These latter accepted Mr. Justice Stewart’s construction of 
the indictment that it showed state action hut also stated 
their belief that the specific language of Section 5 of the 
amendment empowered Congress to enact laws punishing 
all conspiracies—with or without state action—that inter­
fere -with Fourteenth Amendment rights.

If this is true in the case of rights under an Amendment 
purporting to protect against state action, it is necessarily 
true also with respect to rights established against all per­
sons, private as well as state-authorized, as is the case un­
der the Thirteenth Amendment. But in any case, it is 
clear that the 1866 Act, even if it is considered, arguendo, 
as involving Fourteenth Amendment rights because of its 
reenactment after the adoption of that Amendment, is with­
in the constitutional power of Congress to enact and make 
applicable to private action. It appears also that the au­
thority of the decision in the Civil Rights Cases and its 
limitation of the Civil Rights Act of 1875, and possibly 
those of 1870 and 1866, to state action, is now highly ques­
tionable if it has any weight at all.



46

D. The Effect of Section 1982 on Article I, Section 26

We submit that Section 1982, viewed in the light of the 
preceding pages, is directly at war with Article I, Section 
26 of the California Constitution. Section 1982 secures to 
Negroes and all others the right, essential under our free 
democratic system, to purchase or lease real and personal 
property equal to that held by white citizens. Article I, 
Section 26 purports to secure to all owners of real property 
in California the right to decline to sell or lease their real 
property on any basis, including the race of the would-be 
purchaser. Each of these rights necessarily excludes and 
contradicts the other. The power to buy or lease real prop- 
erty without discrimination cannot exist and be secured as 
long as the right to sell or rent real property with discrim­
ination is protected by law. One of these conflicting rights 
must yield. The Supremacy Clause requires that Section 
1982 must prevail.

This conclusion is required regardless of whether Arti­
cle I, Section 26 is found to represent “ state action”  or 
“ neutrality”  on the part of the state in the practice of 
racial discrimination in housing. If, as we believe we have 
shown, Section 1982 is a valid exercise of Congressional 
power, under the Thirteenth or Fourteenth Amendments, 
to prohibit discrimination by private persons, it is the “ Su­
preme Law of the Land”  and Article I, Section 26 is 
unconstitutional.



47

Conclusion

It is respectfully submitted that the decision of the 
California Supreme Court should be affirmed.

Respectfully submitted,

J oseph B. R obison 
Sol R abkin

Attorneys for National Committee Against 
Discrimination in Housing, Amicus Curiae

R obert Cabteb 
J ohn Clancy 
Jack Greenberg 
Marvin M. K arpatkin 
E phraim Margolin 
Carl R achlin

Of Counsel

March, 1967



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