Sipes v. McGhee Record and Briefs

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M c G H E E

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« M H H n n n n f i i a i n | | |

R E C O R D
A N D

B R I E F S





1':







IN' TH E

Supreme Court of %  lotted States
October Term, 1946

No.

O rsel M cG hee and M in n ie  S. M cG h ee , 
Ms wife, Petitioners,

v.

B e n ja m in  J. S ipes and A n n a  C. S ipes, 
J am es A . C oon and A ddie A . C oon, 
et al., Respondents.

PETITION AND BRIEF IN SUPPORT OF PETITION 
FOR W RIT OF CERTIORARI TO THE SUPREME 

COURT OF MICHIGAN

F rancis D e n t ,
W r i m s  M. G r a v e s ,

446 E. Warren Ave., 
Detroit, Michigan,

T hurgood M arshall ,
20 West 40th Street, 
New York 18, New York, 

Attorneys for Petitioners.

S pottswood W. R obinson , III 
Richmond, Virginia,

M arian  W y n n  P erry ,
New York City, New York,

Of Counsel.





I N D E X

PAGE

Petition for Writ of Certiorari______________________ 1

A. Jurisdiction ___________________ ___ t ____ 2

B. Summary Statement of Matter Involved_____  2

C. Questions Presented_________________________  4

D. Reasons Relied on for Allowance of Writ_____ * 5

Conclusion_______ _______________________________ 7

Brief in Support of Petition________________________ 9

Opinion of Court Below _____ -__________ _______ 9

Jurisdiction__________________    9

Statement of the Case__________________________ 10

Errors Below Relied Upon H ere________________ 10

Summary of Argument ______    10

Argument:
I. Judicial Enforcement of the Agreement in Ques­

tion Is Violative of the Constitution and Laws 
of the United States________________________ 11

A. The Right of a Citizen to Occupy, Use and 
Enjoy His Property Is Guaranteed by the 
Constitution and Laws of the United States 11



11
PAGE

B, The State, Through the Courts Below, Has 
Been the Effective Agent in Depriving Peti­
tioners of Their Property, and the Exercise 
of Their Constitutionally Protected Rights 
Therein_______________________ ,__________  11

C. Action by a State, Through Its Judiciary,
Prohibiting or Impairing, on Account of 
Race or Color, the Right of a Person to Use, 
Occupy and Enjoy His Property Is Violative 
of the Constitutional Guarantee of Due 
Process------_----------------------------- |--------------  13

D. The Agreement in its Inception was Subject
to Constitutional Limitations Upon the 
Power of the Courts to Enforce it________ 17

E. The Issue Here Presented Has Never Been
Decided by This Court ____________________  19

II. A  Restriction Against the Use of Land by Mem­
bers of Racial Minorities Is Contrary to Public
Policy of the United States__________________  23

A. The Public Policy of the United States------ 23

B. The Demonstrable Consequences of Racial
Zoning by Court Enforcement of Restrictive 
Covenants are Gravely Injurious to the Pub­
lic Welfare _________________________    28

Conclusion ______________________________ ________ 36



Table of Cases and Authorities Cited in Brief.

PAGE

Allen v. Oklahoma City, 175 Okla. 421, 52 F. (2d) 1054 _ 15 
American Federation of Labor v. Swing, 312 U. S. 321 16
Bakery Drivers Local v. Wohl, 315 U. S. 769________  16
Bowen v. City of Atlanta, 159 Ga. 145, 125 S. E. 199- 15
Bridges v. California, 314 U. S. 252_________________  16
Brinkerhoff Faris Co. v. Hill, 281 U. S. 673________ __ 17
Buchanan v. Warley, 245 U. S. 60_____ 11,13,14,15,17,19
Civil Bights Cases, 109 U. S. 3______________ ___ ’------- 14
Cantwell v. Conn., 310 U. S. 296_____________________  16
Chicago B. & O. R. Co. v. Chicago, 166 U. S. 226_____15,16
City of Richmond v. Deans, 37 F. (2d) 712, aff’d 281

IT. S. 704 _____________________________________H
Clinard v. City of Winston-Salem, 217 N. C. 119, 6

S. E. (2d) 867 ________ - _______________________  15
Corrigan v. Buckley, 299 Fed. 899. 271 U. S. 323_____  19,

20, 21, 22
Deans v. City of Richmond, 281 U. S. 704____________ 14
Ex Parte Virginia, 100 U. S. 339___ ------_----------- — - 15
Glover v. City of Atlanta, 148 Ga. 285, 96 S. E. 562__  15
Hall v. DeCuir, 95 U. S. 485 _____  _______________  14
Harmon v. Tyler, 273 U. S. 668____________________ 11,14
Home Building & Loan Asso. v. Blaisdell, 290 TJ. S. 398 18
In Re Drummond Wren, 4 D. L. R, 674 (1945)---------- _ 25
Irvine v. City of Clifton Forge, 124 Va. 781, 97 S. E.

310 ____________________________________________  15
Jackson v. State, 132 Md. 311, 103 A. 910...  ------------- - 15
Mooney v. Holohan, 294 U. S. 103 __----------- ---------------  15
Moore v. Dempsey, 261 U. S. 86--------------------------------  17
Norman v. Baltimore & O. R. Co., 294 U. S. 240--------- 18

I l l



IV
PAGE

Powell v. Alabama, 287 U. S. 45_____________________  17
Raymond v. Chicago Traction Co., 207 U. S. 20______ 15
Scott v. McNeal, 154 U. S. 34_______ .________________  17
Slaughter House Cases, 16 Wall 36____ 1____________ 11, 24
Smith v. Allwright, 321 U. S. 649_______ __________ _ 23
Steele v. Louisville & N. R. Co., 323 TJ. S. 192_________  28
Strauder v. West Virginia, 100 U. S. 303____________ 24
Tunstall v. Brotherhood of Firemen and Engineers,

323 U. S. 210___________________________________  28
Twining v. New Jersey, 211 TJ. S. 78.__,________________ 17
Virginia v. Rives, 100 TJ. S. 313____________________  15
Ward v. Maryland, 12 Wall 418___________________ _ 11

Authorities

City of Detroit Interracial Committee, Report of 
March 17, 1947__________________________________  30

Detroit Free Press, March 17, 1945_________________  32
Detroit Housing Commission, Official Report to Mayor, 

December 12, 1944 _______ ____ ’-------------------------  32
Embree, Brown Americans (1943) -------------------------- 34
Good Neighbors, Architectural Forum, January, 1946 35
Klutznick, Philip, Public Housing Charts Its Course, 

Survey Graphic, January, 1945----- ------------------------  33
Myrdal, An American Dilemma (1944), Vol. 1, p. 625 ___ 35
Report of the Committee of the President, Conference 

on Home Building, Vol. VI, pp. 45, 46 (1932)______ 28
TJ. S. Department of Commerce, Bureau of Census

Series CA-3, No. 9, October 1, 1944-------- --------------  29
Special Survey HO. No. 1, 1943, August 23, 1944 29
Population Series, CA-3, No. 9, October 1, 1944------ 30

Woofter, Negro Problem In Cities (1938)____________ 33, 34



11ST t h e

kapron? ©mart at %  Itttteft States
October Term, 1946.

No.

Obsel M cG hee and M in n ie  8 . M cG h ee , 
his wife,

Petitioners,
v.

B e n ja m in  J . S ipes and A n n a  C. S ipes, 
J am es A . C oon and A ddie A . C oon, 
et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF MICHIGAN

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of the 
United States:

Petitioners respectfully pray that a writ of certiorari 
issue to review a judgment of the Supreme Court of the 
State of Michigan affirming a final judgment for respon­
dents and plaintiffs in the original suit in the Circuit Court 
of the County of Wayne in chancery.



2

A

Jurisdiction

The jurisdiction of this Court is invoked under Section 
237 of the Judicial Code, as amended (28 U. S. Code 344 
(b)).

The judgment sought to be reviewed was entered by 
the Supreme Court of the State of Michigan on the 7th of 
January, 1947, (R. 87) and petitioners’ motion for a re­
hearing was denied on the 3rd of March, 1947 (R. 118). 
The opinion of the Supreme Court of Michigan is reported 
at 316 Mich. 614, and is also filed as part of the record 
(R. 87).

B

Summary Statement of the Matter Involved

1. Suit and the parties thereto.

This proceeding originated as a suit in equity in the 
Circuit Court for the County of Wayne, in chancery, in 
the State of Michigan against the petitioners for the pur­
pose of obtaining an injunction restraining the petitioners 
from using or occupying property which had been pur­
chased by them and which they were occupying as their 
home (R. 16).

Petitioners were found by lower court to be Negroes 
(R. 74). Prior to the present suit, they purchased and 
became the occupants of an improved parcel of residential 
property in the City of Detroit, County of Wayne, State 
of Michigan, more fully described as 4626 Seebaldt Avenue 
(R. 16, 19). Petitioners are the owners of record title to 
the property in fee simple and occupied it as their home



3

(R. 19). In this action, the respondents sought and ob­
tained a decree requiring the petitioners to move from 
said property and thereafter restraining them from using 
or occupying the premises and, further, restraining peti­
tioners from violating a race restrictive covenant upon 
such land, set forth more fully below (R. 74, 75).

2. Theory and factual basis of the suit.
The essential facts are undisputed. On or about the 

20th day of June, 1934, John C. Ferguson and his wife, 
the then owners of the premises now occupied by peti­
tioners, 4626 Seebaldt Avenue, executed a certain agree­
ment providing in its essential parts as follows:

“ We, the undersigned, owners of the following de­
scribed property:

Lot No. 52 Seebaldts Sub. of Part of Joseph Tire- 
man’s Est. 1/4 Sec. 51 & 52 10000 A T and F r’l 
Sec. 3, T 2 S, R 11 E.

for the purpose of defining, recording, and carrying 
out the general plan of developing the subdivision 
which has been uniformly recognized and followed, 
do hereby agree that the following restriction be im­
posed on our property above described, to remain in 
force until January 1st, 1960—to run with the land, 
and to be binding on our heirs, executors, and as­
signs :

‘ This property shall not be used or occupied by any 
person or persons except those of the Caucasian race’

“ It is further agreed that this restriction shall not be 
effective unless at least eighty percent of the prop­
erty fronting on both sides of the street in the block 
where our land is located is subjected to this or a 
similar restriction”  (R. 63).



4

This contract was subsequently recorded at Liber 4505, 
page 610, of the Register of the County of Wayne on the 
7th day of September, 1935. Similar agreements were exe­
cuted on forty-nine lots of property located within the sub­
division within which the lot which is the subject of this 
suit is located (R. 55, 56). Petitioners purchased said prop­
erty on the 30th of November, 1944 from persons holding 
under the said Fergusons, who executed the restriction. 
Bill of Complaint herein was filed on the 30th of January, 
1945.

C

Questions Presented

I
Whether judicial enforcement of a restriction against 

the use of land by Negroes constitutes a violation of the 
Fourteenth Amendment.

II

Whether agreements restricting the use of land by mem­
bers of racial or religious minorities is against the public 
policy of the United States.

The foregoing questions were seasonably and properly 
raised in the Wayne County Circuit Court and in the 
Supreme Court for the State of Michigan, and were con­
sidered and decided adversely to the petitioners herein in 
both of said courts. However, the opinion of the Supreme 
Court of Michigan was based upon stare decisis, and stated:

“ The unsettling effect of such a determination by 
this court without prior legislative action or a specific 
Federal mandate would be, in our judgment, im­
proper (R. 96).



5

D

Reasons Relied on for Allowance of Writ

1. Judicial enforcement of the agreement in question is 
violative of the Constitution and laws of the United States.

(a) The right of a citizen to use, occupy and enjoy his 
property is guaranteed by the Constitution and laws of the 
United States.

United States Constitution, Article IV, Sec. 2, 
Fifth Amendment, Fourteenth Amendment;

Ward v. Maryland, 12 Wall. 418;

The Slaughter House Cases, 16 Wall. 36;

Buchanan v. Warley, 245 U. S. 60.

(b) The State, through the courts below, has been the 
effective agent in depriving petitioners of their property, 
and the exercise of constitutionally protected rights therein.

(c) Action by a state, through its judiciary, prohibiting 
or impairing, on account of race or color, the right of a per­
son to use, occupy and enjoy his property is violative of the 
constitutional guarantee of due process.

Ex parte Virginia, 100 U. S. 339;

Virginia v. Rives, 100 U. S. 313;

Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226;

Raymond v. Chicago Traction Co., 207 U. S 20;



6

Mooney v. Holohan, 294 U. S. 103;

American Federation of Labor v. Swing, 312 U. S. 
321.

(d) The agreement in its inception was subject to con­
stitutional limitations upon the power of the courts to en­
force it.

Norman v. B. <& 0. R. Co., 294 U. S. 240;
Home Building dc Loan Assoc, v. Blaisdell, 290 

U. S. 398.

(e) The issue here presented has never been decided by 
this Court.

Corrigan v. Buckley, 271 U. S. 323;

Smith v. Allwright, 321 U. S. 649.

2. A  restriction against the use of land by members of 
a racial minority is contrary to the public policy of the 
United States.

Constitution of the United States, Thirteenth, 
Fourteenth and Fifteenth Amendments;

The Slaughter House Cases, supra;

Strauder v. West Virginia, 100 U. S. 303;
Tunstall v. Brotherhood of Firemen, etc., 323 

U. S. 210;
Steele v. Louisville <& N. R. Co., 323 U. S. 192;

In re Drummond Wren, 4 D. L. R. 674;



7

United Nations Charter 
Preamble
Articles 55 and 56.

Sociologists, experts in city planning, crime prevention 
and race relations have established that limitations upon 
the use of land for living space by members of racial or 
religious minorities constitute one of the gravest dangers 
to democratic society which we face in America, and in the 
light of these dangers the courts must consider and weigh 
the effects of their use of the injunctive power to extend 
such limitations in the face of the resulting damage to the 
whole of society.

In support of the foregoing grounds of application, peti­
tioners submit herewith the accompanying brief setting 
forth in detail the pertinent facts and argument applicable 
thereto.

Petitioners further state that this application is filed 
in good faith and not for purposes of delay.

Conclusion

W herefore, it is respectfully submitted that this peti­
tion for a writ of certiorari to review the judgment of the 
Supreme Court of the State of Michigan be granted.

F rancis D e n t ,
W illis  M. Graves,

446 E. Warren Ave.,
Detroit, Michigan.

T hitrgood M arsh all ,
20 West 40th Street, 
New York 18, New York, 

Attorneys for Petitioners.

S pottswood W . R obinson , III 
Richmond Virginia,

M arian  W y n n  P erry,
New York City, New York, 

Of Counsel.





IN  THE

(Emvet of the l&nxtth #tata
October Term, 1946.

No.

O rsel M cG hee and M in n ie  S. M cG h ee , 
Ms wife,

Petitioners,
v.

B e n ja m in  J. S ipes and A n n a  C. S ipes, 
J ames A. C oon and A ddie A . C oon, 
et al.,

Respondents.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI TO THE SUPREME COURT OF MICHIGAN

Opinion of Court Below

The opinion of the Supreme Court of the State of 
Michigan is reported at 316 Mich. 614.

Jurisdiction

The jurisdiction of the Court is invoked under Section 
237 of the Judicial Code, as amended, (28 TJ. S. Code 344 
(b)).

The judgment sought to be reviewed was entered by 
the Supreme Court of the State of Michigan on the 7th of 
January, 1947 (R. 87) and application for rehearing was 
denied on the 3rd of March, 1947 (R. 118).

9



10

Statement of the Case
The statement of the case and a statement of the salient 

facts from the record appear in the accompanying petition 
for certiorari.

Errors Below Relied Upon Here
I. The Judicial Arm of the Government has Imposed Racial 

Restrictions in Violation of the Constitution and Laws of 
the United States.

II. The Restriction Against the Use of Land by Minorities 
Involved in This Case was Held not to Be Contrary to 
Public Policy.

Summary of Argument
I. Judicial Enforcement of the Agreement in Question is 

Violative of the Constitution and Laws of the United 
States.
A . The Right of a Citizen to Occupy, Use and Enjoy 

His Property is Guaranteed by the Constitution and 
Laws of the United States.

B. The State, Through the Courts Below, Has Been 
The Effective Agent in Depriving Petitioners of Their 
Property, And The Exercise of Their Constitution­
ally Protected Rights Therein.

C. Action by a State, Through Its Judiciary, Prohibiting 
or Impairing, On Account of Race or Color, The 
Right of a Person to Use, Occupy, and Enjoy His 
Property Is Violative of The Constitutional Guarantee 
of Due Process.

D. The Agreement In Its Inception W as Subject To Con­
stitutional Limitations Upon The Power of The Courts 
to Enforce It.

E. The Issue Here Presented Has Never Been Decided 
By This Court.

II. A  Restriction Against the Use of Land by Members of 
Racial Minorities is Contrary to Public Policy of the 
United States.



11

A R G U M E N T

I

Judicial Enforcement of the Agreement in Ques­
tion is Violative of the Constitution and Laws of 

United States.

A . The Right of a Citizen to Occupy, Use and Enjoy 
His Property is Guaranteed by the Constitution 
and Laws of the United States.

Petitioners were and still are the owners in fee simple 
of the premises in question. The decree complained of 
deprives them of their right to occupy, use and enjoy their 
property.

The significant protective bases of the rights thus de­
nied these petitioners are Article IV, Section 2, and the 
Fifth and Fourteenth Amendments of the Constitution of 
the United States, and Congressional legislation enacted 
pursuant thereto.

Whether privileges inherent in state or federal citizen­
ship,1 they are guaranteed safety from attack by state 
governments.2

B. The State, Through the Courts Below, Has Been 
the Effective Agent in Depriving Petitioners of 
Their Property, and the Exercise of Their Con­
stitutionally Protected Rights Therein.

When, as here, a State court enforces a racial covenant, 
it is the action of the State, and not the action of individ­

1 See Ward v. Maryland, 12 Wall. 418, 430; The Slaughter House 
cases, 16 Wall. 36.

2 Buchanan v. Warley, 245 U. S. 60; Harmon v. Tyler, 273 U. S. 
668; City of Richmond v. Deans (C. C. A. 4 ), 37 F. (2d) 712, aff’d 
281 U. S. 704.



12

uals, which deprives the Negro occupant of his right to 
enjoy his property.

The creation, modification and destruction of rights in 
property are controlled, not by individual action itself, but 
by the legal consequences which the State attaches to it. 
I f a Negro is privately persuaded to refrain from occupy­
ing or purchasing property by reason of the fact that such 
a covenant exists, or if each party to the restrictive agree­
ment, by reason of the restriction or otherwise, refuses to 
sell to a Negro, it is the action of the parties which effec­
tively keeps him out. The same is true as to other private 
sanctions which they may be able to apply without resort 
to governmental forces.

But when private sanctions are ineffective to compel 
obedience to the covenant, and it is necessary to appeal to 
the courts for its enforcement, individual action ceases and 
governmental action begins. It is obvious that in a situ­
ation where, as here, a Negro purchases and enters into the 
possession of property upon which there is a racial restric­
tion, he has lost nothing and has been deprived of nothing, 
by reason merely of the making of the restrictive agree­
ment or the private compulsions of the parties thereto; 
this is best evidenced by the fact that petitioners are still 
in occupancy and that the proponents of the covenant find 
it necessary to go into court to oust them. But when the 
Court commands him to remove from the premises, an arm 
of the State government has effected a deprivation.

The decree has all the force of a statute. It has behind 
it the sovereign power. It is not the respondent, but the 
sovereignty, speaking through the Court that has issued 
a mandate to the petitioners enjoining them from occupy­
ing, using or enjoying their property.



13

C. Action by a State, Through Its Judiciary, Pro­
hibiting or Impairing, on Account of Race or 
Color the Right of a Person to Use, Occupy and 
Enjoy His Property Is Violative of the Constitu­
tional Guarantee of Due Process.

In Buchanan v. Warley,8 this Court firmly established 
that there is a general right afforded all persons alike by 
the constitutional guaranty of due process, to use, occupy 
and enjoy real property without restriction by state action 
predicated upon race or color. In that case, the Court was 
faced with an ordinance of the City of Louisville, Ken­
tucky, providing that colored persons could not occupy 
houses in blocks where the greater number of houses were 
occupied by white persons, and which contained the same 
prohibitions as to white persons in blocks where the greater 
number of houses were occupied by colored persons. Bu­
chanan, the plaintiff, brought an action against Warley, a 
Negro, for the specific performance of a contract for the 
sale of the former’s lot to the latter. Warley defended 
upon a provision in his contract excusing him from per­
formance in the event that he should not have, under the 
laws of the state and city, the right to occupy the property, 
and contended that the ordinance prevented his occupancy 
of the subject matter of the contract. It was held, how­
ever, that the ordinance was unconstitutional as violative 
of the due process clause of the Fourteenth Amendment. 
The Court said:

“ The concrete question here is: May the occu­
pancy, and, necessarily, the purchase and sale of 
property of which occupancy is an incident, be in­
hibited by the states, or by one of its municipalities, 
solely because of the color of the proposed occupant 
of the premises? * * *3 4

3 245 U. S. 60.
4 245 U. S. 75.



14

“ Colored persons are citizens of the United 
States and have the right to purchase property and 
enjoy and use the same without laws discriminating 
against them solely on account of color. Hall v. 
DeCuir, 95 U. S. 485, 508. These enactments did 
not deal with the social rights of men, but with those 
fundamental rights in property which it was in­
tended to secure upon the same terms to citizens of 
every race and color. Civil Eights Cases, 109 U. S. 
3, 22. The Fourteenth Amendment and these stat­
utes enacted in furtherance of its purpose operate 
to qualify and entitle a colored man to acquire prop­
erty without state legislation discriminating against 
him solely because of color. * * * 5

“ We think this attempt to prevent the alienation 
of the property in question to a person of color was 
not a legitimate exercise of the police power of the 
state, and is in direct violation of the fundamental 
law enacted in the 14th Amendment of the Constitu­
tion preventing State interference with property 
rights except by due process of law. * * * ” 6 7

In Harmon v. Tyler,1 this Court was again faced with 
an attempt to accomplish substantially the same end by 
an ordinance prohibiting the sale or lease of property to 
Negroes in any “ community or portion of the city * * * 
except on the written consent of a majority of the persons 
of the opposite race inhabiting such community or portion 
of the city.”  This ordinance likewise was held to be in­
valid. Still later, legislation effecting a residential segre­
gation predicated upon the intermarriage interdiction was 
held by this Court to be bad.8 Substantially all of the State 
and lower Federal Courts since considering the constitu­

8 245 U. S. 78-79.
8 245 U. S. 82.
7 273 U. S. 668.
8 Deans v. City of Richmond, 281 U. S. 704.



15

tional validity of such legislative enactments have reached 
the same conclusion.9

For the reasons considered in Buchanan v. Warley, it 
would have been beyond the legislative power of the State 
to have enacted a law seeking the accomplishment of the 
end sought to be attained by the covenant here involved, 
or by a law providing that a covenant in the precise terms 
of that involved in the present case should be enforceable 
in its courts. It is inconceivable that, so long as the legis­
lature refrains from passing such a law, a State court may, 
by its decree, compel the specific observance of such cove­
nants and thus afford governmental sanction to a device 
which it was not within the competency of its legislative 
branch to authorize. Yet the immediate consequence of 
the decree now under consideration is to bring about that 
which the legislative and executive branches of the State 
are powerless to accomplish.

It is clear that such property rights as are protected 
by the constitutional guaranty of due process against im­
pairment by the legislature are equally protected against 
impairment by the judiciary. It is now established that 
the prohibitions of the Fourteenth Amendment apply to all 
conceivable forms of State action, including that by its 
courts.10 Such action is found when a court predicates its

9Irvine v. City of Clifton Forge, 124 Va. 781, 97 S. E. 310; 
Glover v. City of Atlanta, 148 Ga. 285, 96 S. E. 562; Jackson v. State, 
132 Md. 311, 103 A. 910; Bowen v. City of Atlanta, 159 Ga. 145, 
125 S. E. 199; Clinard v. City of Winston-Salem, 217 N. C. 119, 6 
S. E. 2d 867; Allen v. Oklahoma City, 175 Okla. 421, 52 P. 2d 1054; 
and see the cases cited, supra. It will be noted that in the Allen case, 
the ordinance was sought to be aided by an exercise of the executive 
power.

10 E x Parte Virginia, 100 U. S. 339; Virginia v. Rives, 100 U. S. 
313; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; Raymond 
V. Chicago Traction Co., 207 U. S. 20; Mooney v. IJolohan, 294 U. S. 
103.



16

judgment upon a rule of substantive law developed in the 
common law, or judge-made law, of a State. Such a rule, 
so made and applied, is as much the product of State action 
and is as much subject to the same tests of validity, as if 
made by that other form of State action, enactment by the 
legislature. This Court has had frequent occasion to apply 
this principle. Thus, where a State court grants an injunc­
tion against peaceful picketing on the ground that such 
conduct is forbidden by the common law of the State, its 
action infringes the Fourteenth Amendment to the same 
extent as would a statute in similar provision which 
abridges the freedom of speech which the Fourteenth 
Amendment commands all States to respect.11 Likewise, 
where an individual is convicted in the court of a State of 
inciting a breach of the peace, a criminal offense under 
the judge-made law of the State, its action may be con­
demned on the same grounds.12 In similar fashion, the con­
stitutional guaranties of free speech may be impinged upon 
by a State court judgment inflicting a contempt sentence 
under its version of the common law of the State with 
respect to punishable contempts of court,.13 And, where a 
judgment of a State court accomplishes a taking of private 
property without just compensation, the State has produced 
a result forbidden by the due process clause.14 The large 
body of cases holding that the State has acted where its 
courts have given effect to a rule of procedure held by it 
to be a part of the common law of the State, but in effect 
bringing about a denial of constitutional rights, also serves 
to emphasize the role of the court as an arm of the State

11 American Federation of Labor v. Swing, 312 U. S. 321; Bakery 
Drivers Local v. Wohl, 315 U. S. 769.

12 Cantwell v. Connecticut, 310 U. S. 296.
13 Bridges v. California, 314 U. S. 252.
14 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226.



17

and the consequent production of an unconstitutional re­
sult.15

The mere fact that in Buchanan v. Warley, the forbid­
den state action was initiated by the legislative department, 
while, in the instant case, the action was initially individual 
in character, makes no difference once the judicial arm of 
the State has acted. There can be no difference between 
State action predicated upon prior individual action and 
that which is not predicated thereon—the Fourteenth 
Amendment prohibits both. When the Court acts, it action 
is entirely independent of that of the litigants, and where 
private action ceases and court action commences, the per­
mission of the one ends and the prohibition of the other 
begins.

D. The Agreement in its Inception was Subject to 
Constitutional Limitations Upon the Power of the 
Courts to Enforce it.

The Supreme Court of Michigan erroneously assumed 
that when private individuals enter into a restrictive agree­
ment, the Court is obligated to enforce the same. But the 
courts cannot avoid responsibility under the Fourteenth 
Amendment by the ‘ ‘convenient apologetics ’ ’ of an obligation 
which they cannot constitutionally discharge. There is no 
absolute freedom of contract in the sense that judicial en­
forcement of an agreement is automatically forthcoming. 
The right to contract is subject to a variety of restrictions, 
of which the usury laws, gambling laws, Sunday laws, the 
Sherman Anti-Trust Act, peonage sections of the Criminal 
Code, the National Labor Relations Act and prevention of

15 Twining v. New Jersey, 211 U. S. 78; Brinkerhoff-Faris Co. v. 
Hill, 281 U. S. 673; Powell v. Alabama. 287 U. S. 45; Moore v. 
Dempsey, 261 U. S. 86; Scott v. McNeal, 154 U. S. 34.



1 8

unfair competition by the Federal Trade Commission, are 
illustrative. It is likewise clear that where, by reason of 
constitutional prohibitions, a court is prevented from en­
forcing an agreement privately made, there can be no claim 
that there has been an unjustified interference with liberty 
of contract. In such a case every individually-made contract 
from its inception is subject to the infirmity that judicial 
enforcement cannot be obtained if, so to enforce it, a vio­
lation of constitutionally protected rights will follow.

The right of an individual to make a contract is subject 
to the paramount authority vested in government by the 
Federal Constitution. Thus, in Norman v. Baltimore <& 0. 
R. Co.,16 it was held that the joint resolution abrogating the 
Gold Clause stipulation in money contract obligations could 
be applied to pre-existing private agreements, since all in­
dividual agreements are made subject to the exercise of the 
Federal power to regulate the value of money.

Again, in Home Building and Loan Association v. Blais- 
dell,17 it was held that a state statute might, in spite of the 
prohibitions in the Federal Constitution against state im­
pairment of the obligations of a contract, be applied in such 
manner that the previously made contract would be im­
paired, since all contracts made between individuals are 
subject to the paramount authority of the State to enact 
laws validly within its police power.

It is the duty of the courts to enforce contracts so long 
as the court may do so consistently with the supreme law 
of the land. If, however, a court lends its aid to the en­
forcement of a segregation restriction, with the result that 
a Negro is deprived of his constitutional right to occupy

16 294 U. S. 240.
17 290 U. S. 398.



19

property, there is an infringement of the constitutional 
guaranties of due process within the holding of this Court 
in Buchanan v. Warley.

The contract involved in this case must be understood 
as having been made subject to existing constitutional limi­
tations upon the authority of the state to enforce it, and al­
though the declination of the Court to enforce the agree­
ment effectively prevents it from ripening in the manner 
desired by the contracting parties, its action could not be 
considered as the denial to them of any constitutionally 
protected rights.

E. The Issue Here Presented Has Never Been De­
cided by This Court.

Judicial enforceability of racial restrictive covenants has 
frequently been assumed to follow from the decision of this 
Court in the case of Corrigan v. Buckley.18 A reexamina­
tion of that case makes it apparent that the issue here pre­
sented was neither presented nor decided there.

About 30 white persons, including the plaintiff and 
defendant Corrigan, who were the owners of 25 parcels of 
land, executed and recorded an indenture in which they 
mutually covenanted that no part of the properties covered 
would ever be sold to or occupied by Negroes. A year later, 
defendant Corrigan entered into a contract to sell to defen­
dant Curtis, a Negro, a house and lot situated within the 
restricted area. Plaintiff thereupon brought suit to enjoin 
the sale to and occupancy by defendant Curtis. Both de­
fendants moved to dismiss the bill upon grounds which did

18 55 App. D. C. 30, 299 Fed. 899; appeal denied 271 U. S. 323.



20

not question the constitutional propriety of judicial en­
forcement of the covenant.19 The motions were denied and 
an appeal to the Court of Appeals for the District of Co­
lumbia 20 taken, where the issue was stated as follows:

“  * * * The sole issue is the power of a number of 
landowners to execute and record a covenant running 
with the land, by which they bind themselves, their 
heirs and assigns, during a period of 21 years, to 
prevent any of the land described in the covenant 
from being sold, leased to, or occupied by Negroes.”

19 Defendant Corrigan moved to dismiss the bill on the grounds that 
the “ indenture or covenant made the basis of said bill” is (1 )  “ void in 
that the same is contrary to and in violation of the Constitution of the 
United States,”  and (2 )  “ is void in that the same is contrary to public 
policy.” Defendant Curtis moved to dismiss the bill on the grounds 
that it appeared therein that the indenture or covenant “ is void, in- 
that it attempted to deprive the defendant, the said Helen Curtis, and 
others of property, without due process of law ; abridges the privilege 
and immunities of citizens of the United States, including the defen­
dant, Helen Curtis, and other persons within this jurisdiction (and 
denies them) the equal protection of the law, and therefore, is for­
bidden by the Constitution of the United States, and especially by the 
Fifth, Thirteenth, and Fourteenth Amendments thereof, and the Laws 
enacted in aid and under the sanction of the said Thirteenth and Four­
teenth Amendments.” From the opinion of the Supreme Court of 
the United States, 271 U. S. 328-329.

20 55 App. D. C. 30, 299 Fed. 899.



21

Following an affirmance of the decree, an appeal to this 
Court21 was taken under the provisions of Section 250 of 
the Judicial Code. This Court stated the issue as follows :22

“ Under the pleadings in the present case the 
only constitutional question involved was that aris­
ing under the assertions in the motions to dismiss 
that the indenture or covenant which is the basis of 
the bill is ‘void’ in that it is contrary to and for­
bidden by the 5th, 13th and 14th Amendments. * * * ”

In dismissing the appeal for want of jurisdiction, this 
Court said:23

“ And, while it was further urged in this Court 
that the’decrees of the courts below in themselves 
deprived the defendants of their liberty and prop­
erty without due process of law, in violation of the 
5th and 14th Amendments, this contention likewise 
cannot serve as a jurisdictional basis for the appeal. 
Assuming that such a contention, if of a substantial 
character, might have constituted ground for an 
appeal under paragraph 3 of the Code provision, it 
was not raised by the petition for the appeal or by 
any assignment of error, either in the Court of Ap­
peals or in this Court; and it likewise is lacking in 
substance. * * *

“ Hence, without a consideration of these ques­
tions, the appeal must be, and is, dismissed for want 
of jurisdiction.”  (Italics supplied.)

21 271 U. S. 323.
22 271 U. S. 329-330.
23 271 U. S. 331-332.



22

It must be concluded, therefore, that the constitution­
ality of judicial enforcement of such an agreement was not 
decided in Corrigan v. Buckley,24

While the Corrigan decision contains an intimation by 
way of dictum that no constitutional question is presented

24 Close examination of the Opinion reveals that the Court actually 
decided only four propositions :

(1 )  That since the Fourteenth Amendment, by its terms, directs 
its prohibitions only to state action, it was not violated by the creation 
of the covenant. Thus, defendants’ motions to dismiss on this ground 
did not raise any constitutional question, and therefore afforded no 
basis for an appellate review in the Supreme Court as a matter of right.

(2 )  That Sections 1977 and 1978 (U . S. C , secs. 41 and 42) of 
the Revised Statutes neither render the covenant void nor raise any 
substantial federal question, but merely give all citizens of the United 
States the same right in every state and territory to make and enforce 
contracts, to purchase, lease and hold real property, etc., as is enjoyed 
by white citizens, and this, only against impairment by state action. 
Hence, individual action consisting in entering into a restrictive agree­
ment is not forbidden.

(3 )  That the contention that the covenant was against public policy, 
and therefore void, is purely a question of local law, and so could not 
afford a substantial basis for an appeal to the Supreme Court.

(4 )  That the objection that the entry of the decrees in the lower 
courts enforcing the covenant constituted state action in violation of 
the Fifth and Fourteenth Amendments, was not raised in the petition 
for appeal or by assignment of error either in the Court of Appeals or 
in the Supreme Court, and was therefore not before the Court for 
decision.

In recognition of this, the Supreme Court of Michigan in the instant 
case considered Corrigan v. Buckley inapplicable, saying:

“ It is argued that the restriction in question violates the 14th 
Amendment to the Constitution of the United States. Appellees 
say that this argument was answered in Corrigan v. Buckley, 271 
U. S. 323. W e do not so read the Corrigan case, but rather that 
the decision there turned on the inapplicability of the equal pro­
tection clause of the 14th Amendment to the District of Columbia, 
and that the appeal was dismissed for want of jurisdiction. 316 
Mich. 614. (The certified copy of the opinion and the opinion as 
reported at 25 N. W . (2d ) 638, and as filed reads as quoted. In the 
Advance Michigan reports, the second sentence reads, ‘W e so read 
the Corrigan Case, although that decision partly turned . . . .,’ ) . ”



23

by the facts of that case, it is to be remembered that this 
Court was not then committed to the doctrine that common 
law determinations of courts can constitute reviewable 
violations of the due process clause. But the Court is now 
committed to that doctrine.25

This Court has additional reason for reinterpreting its 
decision in the Corrigan case.

“ In constitutional questions, where correction 
depends upon amendment and not upon legislative 
action this Court throughout its history has freely 
exercised its power to re-examine the basis of its 
constitutional decisions. This has long been ac­
cepted practice, and this practice has continued to 
this day. This is particularly true when the decision 
believed erroneous is the application of a consti­
tutional principle rather than an interpretation of 
the Constitution to extract the principle itself.”  
(Emphasis supplied.)26

II

A  Restriction Against the Use of Land by
Members of Racial Minorities Is Contrary to 

Public Policy of the United States.

A. The Public Policy of the United States.

Fundamental national policies expressed in the Consti­
tution and laws of the United States are offended by the 
restrictive agreement involved in the present case. The 
constitutionality of judicial enforcement of such restric­
tions is challenged in another section of this brief. But it 
is clear that even before the issue of constitutionality is * 28

25 Argument, Part IC.
28Sm ithy. Allwright, 321 U. S. 649, 665, 666.



24

reached, the constitutional prohibition against legislation 
must at least reflect national policy against the abuse of 
private power to accomplish the same result.

The Thirteenth Amendment to the Constitution was 
adopted to abolish slavery and the Fourteenth and Fif­
teenth Amendments to abolish the badges of servitude 
which remained in the treatment of the recently freed slave. 
These were the first steps in creating a public policy, and 
were so recognized by this Court in 1872 when the memory 
of the struggle for the adoption of the amendments was 
still alive.

“  . . .  no one can fail to be impressed with the 
one pervading purpose found in them all, lying at 
the foundation of each, and without which none of 
them would have been even suggested; we mean the 
freedom of the slave race, the security and firm 
establishment of that freedom, and the protection of 
the newly made freeman and citizen from the op­
pressions of those who had formerly exercised un­
limited dominion over him.” 27

“  . . . The words of the Amendment, it is true, 
are prohibitory, but they contain a necessary impli­
cation of a positive immunity, or right, most valu­
able to the colored race—the right to exemption 
from unfriendly legislation against them distinc­
tively as colored; exemption from legal discrimina­
tions, implying inferiority in civil society, lessening 
the security of their enjoyment of the rights which 
others enjoy, and discriminations which are steps 
toward reducing them to the condition of a subject 
race.” 28

At the close of the Second World War, which was so 
largely waged for the principles of racial and religious 
equality as enunciated in the Atlantic Charter, the United

27 Slaughter-House Cases, 16 Wall. 36, 71.
28 Strauder v. W est Virginia, 100 U. S. 303, 308.



25

States solemnly dedicated itself, with the other members 
of the United Nations, to promote universal respect for 
the observance of “ human rights and fundamental free­
doms for all without distinction as to race, sex, language 
or religion.”  (United Nations Charter, Articles 55 and 56.) 
The preamble of the Charter of the United Nations con­
tains the following statement:

“ We, the people of the United Nations, deter­
mined to save succeeding generations from the 
scourge of war, which twice in our lifetime has 
brought untold sorrow to mankind, and to reaffirm 
faith in fundamental human rights, in the dignity 
and worth of the human person, in the equal rights 
of men and women and of nations large and small 
. . . and for these ends to practice tolerance and 
live together in peace with one another as good 
neighbors . . . ”

Such a dedication by treaty on the part of the United 
States, ratified by the Senate, has deepened and reinforced 
the previous national public policy against racial and re­
ligious discrimination at law.

Ample precedent for the adoption of the view here advo­
cated is supplied by the recent decision of a Canadian 
Court,29 which involved an application of the owner of 
certain registered lands to have declared as invalid a re­
strictive covenant assumed by him when he purchased these 
lands, and which he agreed to exact from his assigns. The 
restriction was:

Land shall not be sold to Jews or persons of objec­
tionable nationality.

The Court, after considering numerous relevant sources 
(including the San Francisco Charter, speeches of Presi- 20

20 In re Drummond Wren  (1945), 4 D. L. R. 674.



2 6

dent Roosevelt, Winston Churchill, and General Charles de 
Gaulle, and the Constitution of the Union of Soviet Socialist 
Republics), held that the restriction was void, saying:

“ How far this is obnoxious to public policy can 
only be ascertained by projecting the coverage of the 
covenant with respect both to the classes of persons 
whom it may adversely affect, and to the lots or sub­
divisions of land to which it may be attached. So 
considered, the consequences of judicial approbation 
of such a covenant are portentous. If sale of a piece 
of land can be prohibited to Jews, it can equally be 
prohibited to Protestants, Catholics or other groups 
or denominations. If the sale of one piece of land 
can be so prohibited, the sale of other pieces of land 
can likewise be prohibited. In my opinion, nothing 
could be more calculated to create or deepen divisions 
between existing religious and ethnic groups in this 
province, or in this country, than the sanction of a 
method of land transfer which would permit the 
segregation and confinement of particular groups to 
particular business or residential areas, or con­
versely, would exclude particular groups from par­
ticular business or residential areas. The unlikeli­
hood of such a policy as a legislative measure is evi­
dent from the contrary intention of the recently- 
enacted Racial Discrimination Act, and the judicial 
branch of government must take full cognizance of 
such factors.

‘ ‘ Ontario, and Canada too, may well be termed a 
province, and a country, of minorities in regard to 
the religious and ethnic groups which live therein. 
It appears to me to be a moral duty, at least, to 
lend aid to all forces of cohesion, and similarly to 
repel all fissiparous tendencies which would imperil 
national unity. The common law courts have by their 
actions over the years, obviated the need for rigid 
constitutional guarantees in our policy by their wise 
use of the doctrine of public policy as an active 
agent in the promotion of the public weal. While



27

courts and eminent judges have, in view of the powers 
of our legislatures, warned against inventing new 
heads of public policy, I do not conceive that I would 
be breaking new ground were I to hold the restrictive 
covenant impugned in this proceeding to be void as 
against public policy. Rather would I be applying 
well-recognized principles of public policy to a set 
of facts requiring their invocation in the interest of 
the public good.

“ That the restrictive covenant in this case is di­
rected in the first place against Jews lends poignancy 
to the matter when one considers that anti-semitism 
has been a weapon in the hands of our recently- 
defeated enemies, and the scourge of the world. But 
this feature of the case does not require innovation 
in legal principle to strike down the covenant; it 
merely makes it more appropriate to apply existing 
principles. If the common law of treason encom­
passes the stirring up of hatred between different 
classes of His Majesty’s subjects, the common law 
of public policy is surely adequate to void the restric­
tive covenant which is here attacked.

“ My conclusion therefore is that the covenant is 
void because offensive to the public policy of this 
jurisdiction. This conclusion is reinforced, if rein­
forcement is necessary, by the wide official acceptance 
of international policies and declarations frowning 
on the type of discrimination which the covenant 
would seem to perpetuate. ’ ’

In their effort to rise from slavery to equality with their 
fellow men, colored citizens are everywhere met by the 
effort to keep them down, and to deny them that equal 
opportunity which the Constitution secures to all. If they 
can be forbidden to live on their own land by an instru­
mentality of the government, they can be forbidden to work 
at their own trade. Yet this Court has most recently ex­
tended its protection to Negro workers against use of



2 8

government power to exclude them from their trade.30 
Without protection against such judicial action to imple­
ment private agreements, the prejudice, against which the 
war amendments were framed to defend the colored people, 
triumphs over them, and the amendments themselves be­
come dead letters—as do the solemn obligations of the 
United Nations Charter.

B. The Demonstrable Consequences of Racial Zoning 
by Court Enforcement of Restrictive Covenants 
are Gravely Injurious to the Public Welfare.

Residential segregation, which is sought to be main­
tained by court enforcement of the race restrictive covenant 
before this Court, “ has kept the Negro occupied sections 
of cities throughout the country fatally unwholesome places, 
a menace to the health, morals and general decency of cities, 
and plague spots for race exploitation, friction and riots!” 
Report of the Committee on Negro Housing of the Presi­
dent, Conference on Home Building, Yol. VI, pp. 45, 46 
(1932).

The extent of overcrowding resulting from the enforced 
segregation of Negro residents is daily increasing. The 
United States Census of 1940 examines the characteristics 
of 19 million urban dwellings. The census classifies a dwell­
ing as overcrowded if it is occupied by more than 1% 
persons per room. On this basis 8 percent of the units 
occupied by whites in the nation are classified in the 1940 
census as overcrowded, while 25 percent of those occupied 
by non-whites are so classified. In Baltimore, Maryland, 
Negroes comprise 20 percent of the population yet are

30 See Tunstall v. Brotherhood of Firemen and Engineers, 323 U. S. 
210, and Steele v. Louisville & N. R. Co., 323 U. S. 192.



29

constricted in 2 percent of the residential areas. In the 
Negro occupied second and third wards of Chicago, the 
population density is 90,000 per square mile, exceeding even 
the notorious overcrowding of Calcutta.

Census figures show that 8 percent of the non-white 
residents of the Detroit-Willow Run Area lived at a density 
in excess of 1% persons per room, while only 2.3 percent 
of the white residents were classified as overcrowded in the 
census of 1940.31

The critical lack of housing facilities in Michigan’s non­
white population is emphasized by the following quotation 
from another census study of the Detroit Metropolitan 
District.

“ Vacancy rates were generally lower in Negro 
sections than in white sections. The gross vacancy 
rate among dwelling units for Negro occupancy was
0.4 percent and among those for white occupancy 0.8 
percent.

“ Habitable vacancies represented about seven 
eighths of the unoccupied dwellings intended for 
white occupants and one half of those for Negro 
occupants.

“ Crowded dwelling units—those housing more 
than 34/2 persons a room—made up 1.3 percent of 
the dwellings in white neighborhoods and 7.4 percent 
of the dwellings in Negro neighborhoods. These units 
[Negro housing] had only one percent of all the 
entire area but were occupied by three percent of its 
population.”  (U. 8. Department of Commerce, Bu­
reau of Census, Special Survev H. O. No. 143, August 
23, 1944.)

31 U. S. Dept, of Commerce, Bureau of Census. Series C. A. 3, No. 9, 
Oct. 1, 1944.



30

The overcrowding of the entire community during the 
period from 1940 to 1944 can be emphasized hy the growth 
of the Detroit Metropolitan District’s population from 
2,295,867 in 1940 to 2,455,035 in 1944. During the same 
period the non-white population in the Metropolitan area 
increased from 171,877 to 250,195 (U. S. Department of 
Commerce, Bureau of Census, Population Series C. A. 3 
No. 9, October 1, 1944).

According to the Bureau of Census, the non-white popu­
lation of Detroit itself increased from 150,790 in 1940 to 
213,345 in June of 1944, a percentage increase of 41.5 per­
cent.

The City of Detroit Interracial Committee has recently 
completed a study of its work for the calendar year 1946, 
released on March 17, 1947, based upon wdiieh it has issued 
a statement of policy from which the following quotation is 
taken:

“ Housing
Every informed person in Detroit knows of the 

acute housing shortage existing not only locally but 
throughout the country. This shortage, which af­
fects all people, is felt especially by veterans and the 
younger married group. The already serious prob­
lem is further complicated for the Negro share of the 
population, however, by the existence of certain ob­
stacles to suitable housing over and above those en­
countered by other citizens. While other minority 
groups may have special problems, it is against 
Negroes that the principal discriminatory practices 
are most prevalent.

“ The City of Detroit Interracial Committee feels 
impelled to point out certain of these practices and 
to state what it believes to be sound principles in 
relation thereto.



31

‘ ‘ It is a fundamental principle in this country that 
all governmental activities and services and all pri­
vate business should be conducted without discrim­
ination on account of color, national origin or reli­
gious belief. The facts are, however, that this prin­
ciple is constantly disregarded in the matter of hous­
ing by both government and private individuals.

“ The following discriminatory practices in resi­
dential housing activities have been employed in De­
troit and elsewhere:

1. Covenants restricting occupancy based on race 
are imposed on residential property by developers or 
groups of owners.

2. In the absence of such covenants, owners or 
occupiers of residential property by threats or acts 
of violence attempt to prevent occupancy of homes in 
their vicinity by persons of another race, creed or 
color.

3. Lending agencies reject legitimate loans be­
cause the borrower is of a race other than that estab­
lished as the pattern of the neighborhood.

4. Real estate dealers, by agreement and a ‘ Code 
of Ethics’, attempt to prevent occupancy by persons 
because of race, color or creed, and government 
agencies approve such practices.

5. In the redevelopment of blighted areas and in 
providing public housing, government agencies have 
recognized, approved and fortified such discrimina­
tory practices.

“ The chief sufferers from those practices are the 
Negro people. Housing for Negroes is utterly in­
adequate, Negroes are forced to live in overcrowded, 
substandard houses, and these conditions foster 
disease, delinquency and civic irresponsibility. A 
free market in housing and in land for housing does 
not exist. The home building industry and the deal­
ers in homes seem to assume that the Negro popula-



32

tion can be housed in dwellings abandoned by whites, 
which is clearly not the case. They appear to disre­
gard the fact that many Negroes are financially able 
to pay for much better homes than are generally 
available to them and the fact that the ‘ hand-me- 
down’ houses of whites are not sufficient in number 
to fill the demand for Negro housing. Opportunities 
for expansion to vacant land are almost completely 
shut off to Negroes. The restrictive practices re­
ferred to above apply most effectively to vacant or 
thinly developed areas of the City and suburbs. ’ ’

The Detroit Housing Commission arrived at the conclu­
sion that the situation within the City of Detroit is such that 
the only solution for the Negro housing problem is in the 
opening of new unrestricted areas.82

The creation and growth of Negro slum areas with re­
sulting high mortality, disease, delinquency and other social 
evils, have been due in large measure to the existence of re­
strictive covenants against Negroes which have prevented 
the normal development of Negro community life. As 
stated by Mr. James M. Haswell, Staff Writer for the De­
troit Free Press on March 17, 1945 in a special feature 
article dealing with the Detroit housing situation:

“ No substantial migration possible under pres­
ent restriction patterns.

“ Nobody knows how many hundreds of restrictive 
covenants and neighborhood agreements there are 
in Detroit binding property owners not to permit 
Negro occupancy. The number has increased greatly 
in response to the Negro search for new residence 
areas. There are said to be 150 associations of prop­
erty owners promoting these agreements.”

To the same effect is the comment of the Commissioner, 
Federal Public Housing Authority, Philip M. Klutznick, in

82 Detroit Housing, Official Report to Mayor, December 12, 1944.



33

his article, Public Housing Charts Its Course, published in 
Survey Graphic for January, 1945:

‘ ‘ But the minority housing problem is not one of 
buildings alone. More than anything else it is a mat­
ter of finding space in which to put the buildings. 
Large groups of these people are being forced to 
live in tight pockets of slum areas where they in­
crease at their own peril; they are denied the op­
portunity to spread out into new areas in the search 
for decent living.

‘ ‘ The opening of new areas of living to all minor­
ity groups is a community problem. And it is one of 
national concern. ’ ’

This is not a new situation, but it is becoming more ag­
gravated from year to year. One of the most discerning 
writers in this field clearly pointed out what was happen­
ing and its social dangers:

4 4 Congestion comes about largely from conditions 
over which the Negroes have little control. They are 
crowded into segregated neighborhoods, are obliged 
to go there and nowhere else, and are subjected to 
vicious exploitation. Overcrowding saps the vitality 
and the moral vigor of those in the dense neighbor­
hoods. The environment then, rather than hereditary 
traits, is a strong factor in increasing death-rates 
and moral disorders. Since the cost of sickness, 
death, immorality and crime is in part borne by 
municipal appropriations to hospitals, jails and 
courts, and in part by employers’ losses through ab­
sence of employees, the entire community pays for 
conditions from which the exploiters of real estate 
profit. ’ ’3S

It is also widely recognized that these anti-social cove­
nants are not characteristically the spontaneous product of 83

83 Woofter, Negro Problem In Cities (1938), at page 95.



34

the community will but rather result from the pressures and 
calculated action of those who seek to exploit for their own 
gain residential segregation and its consequences.

“ The riots of Chicago were preceded by the or­
ganization of a number of these associations (neigh­
borhood protective associations); and an excellent 
report on their workings is to be found in The Negro 
in Chicago, the report of the Chicago Bace Commis­
sion. The endeavor of such organizations is to 
pledge the property holders of the neighborhood not 
to sell or rent to Negroes, and to use all the possible 
pressures of boycott and ostracism in the endeavor 
to hold the status of the area. They often endeavor 
to bring pressure from banks against loans on Negro 
property in the neighborhood, and are sometimes 
successful in this.

‘ ‘ The danger in such associations lies in the tend­
ency of unruly members to become inflamed and to 
resort to acts of violence. Although they are a usual 
phenomenon when neighborhoods are changing from 
white to Negro in northern cities, no record was 
found in this study where such an association had 
been successful in stopping the spread of a Negro 
neighborhood. The net results seem to have been a 
slight retardation in the rate of spread and the crea­
tion of a considerable amount of bitterness in the 
community.” 34 Cf. Embree, Broivn Americans
(1943) at page 34 reporting 175 such organizations 
in Chicago alone.

The same thesis with reference to the City of Detroit 
was recently elaborated by Dr. Alfred M. Lee, Professor 
of Sociology at Wayne University:

‘ ‘ Emphasizing overcrowding and poor housing as 
one of the major causes of racial disturbances, Lee 
declared that in his opinion real estate dealers and

34 Woofter, op. cit., p. 73.



35

agents have been doing more to stir up racial an­
tagonisms in Detroit than any other single group.

“  ‘ These men (real estate dealers),’ Lee said, 
‘Are the ones who organize, promote and maintain 
restrictive covenants and discriminatory organiza­
tions. I am convinced that once it is possible to 
break the legality of these covenants, a great deal of 
our troubles will disappear.’ ”  As reported in The 
Michigan Chronicle for May 9, 1945.

Other significant analyses of racial conflicts emphasize 
the evils of segregation and its contribution to tension and 
strife.

“ But they [the Negroes] are isolated from the 
main body of whites, and mutual ignorance helps 
reinforce segregative attitudes and other forms of 
race prejudice.”  Myrdal, An American Dilemma,
(1944) vol. 1, page 625.

‘ ‘ The Detroit riots of 1943 supplied dramatic evi­
dence: rioting occurred in sections where white and 
Negro citizens faced each other across a color line, 
but not in sections where the two groups lived side 
by side.”  Good Neighbors, Architectural Forum, 
January 1946.

The dangers to society which are inherent in the restric­
tion of members of minority groups to overcrowded slum 
areas are so great and are so well recognized that a court 
of equity, charged with maintaining the public interest, 
should not, through the exercise of the power given to it 
by the people, intensify so dangerous a situation. There­
fore, in the light of public interest, the court below erred 
in granting the plaintiff’s petition and ordering the defen­
dants to move from their homes.



36

Conclusion

In considering this question, it is immaterial that the 
restrictive covenants sought to be enforced are directed 
against Negroes. If valid for excluding Negroes, they would 
be equally valid and enforceable by injunction if directed 
against Jews, Catholics, Chinese, Mexicans or any other 
identifiable group. One might even envisage a similar dis­
crimination against persons belonging to a political party— 
Republicans or Democrats—depending upon the prevailing- 
opinion in the area.

Perhaps perpetual covenants against racial or religious 
minorities might not have been oppressive in frontier days, 
when there was a surplus of unappropriated land; but 
frontier days in America have passed. All the land is 
appropriated and owned. White people have the bulk of 
the land. Will they try to make provision for the irresisti­
ble demands of an expanding population, or will they 
blindly permit private individuals whose social vision is no 
broader than their personal prejudices to constrict the nat­
ural expansion of residential area until we reach the point 
where the irresistible force meets the immovable body?



37

For the reasons set forth above, it is respectfully re­
quested that this Court issue a writ of certiorari as prayed 
for in the accompanying petition.

Respectfully submitted,

F rancis D e n t ,
W illis  M. Graves,

446 E. Warren Ave., 
Detroit, Michigan,

T htjrgood M arshall ,
20 West 40th Street, 
New York 18, New York,

Attorneys for Petitioners.

Spottswood W. R obinson , III 
Richmond, Virginia,

M arian W y n n  P erry ,
New York City, New York,

Of Counsel.







L aw yers P ress, I n c ., 165 William St., N. Y . C. 7; ’Phone: BEekman 3-2300







TRANSCRIPT OF RECORD

Supreme Court o f the United States

OCTOBER TERM, 1947

N o. 8 7

ORSEL McGHEE AND MINNIE S. McGHEE, HIS 
WIFE, PETITIONERS,

vs.

BENJAMIN J. SIPES AND ANNA C. SIPES, JAMES
A. COON AND ADDIE A. COON, ET AL.

OST WRIT OF CERTIORARI TO TH E SUPREME COURT OF TH E  STATE

OF M ICH IG AN

PETITION FOK CERTIORARI FILED MAY 10, 1947. 

CERTIORARI GRANTED JUNE 23, 1947.





SUPREME COURT OF THE UNITED STATES

ORSEL McGHEE AND MINNIE S. McGHEE, HIS

BENJAMIN J. SIPES AND ANNA C. SIPES, JAMES
A. COON AND ADDIE A. COON, ET AL.

ON WRIT OF CERTIORARI TO TH E SUPREME COURT OF TH E STATE

OCTOBER TERM, 1947

N o .  8 7

WIFE, PETITIONERS,

vs.

OF M ICH IG AN

INDEX
Original Print

Proceedings in Supreme Court of Michigan..........................  1 1
Docket entries............................................................................. 1 1
Order granting stay of proceedings......................................  2 2
Order granting leave to appeal................................................  2 2
Order denying motion to dismiss, etc......................................  3 2
Minute entries of argument and submission..........................  3 3
Record from Circuit Court of Wayne County......................  9 3

Calendar entries................................................................. 9 3
Defendants’ reasons and grounds of appeal..................  12 5
Bill of complaint................................................................. 14 6
Answer to bill of complaint..............................................  19 10
Plaintiffs’ pre-trial statement..........................................  23 12
Order allowing plaintiffs’ pre-trial statement to be

filed................................................................................... 27 14
Defendants’ pre-trial statement......................................  28 15
Pre-trial statement of c o u r t ........................................... 30 16
Amended answer to bill of complaint..............................  31 16

Judd & D etw eiler  ( I n c . ) ,  P rin ters , W a s h in g t o n , D . C., Ju l y  15,1947.

—1562



11 INDEX

Record from Circuit Court of Wayne County— Continued

Settled case on appeal.......................................................
Caption and appearances........................................
Colloquy between Court and counsel......................
Testimony of Benjamin J. Sipes..............................

Charles R. Robert..............................
Dr. Norman D. Humphrey..............
Melvin Tumin ..................................

Exhibits:
1—  Plaintiffs’ pre-trial statement................
2— Defendants’ pre-trial statement...........
3— 4— Signed restrictions.............................
7—  Quotation from testimony of Mr. Sipes. .
8— Plat of Brooks & Kingons Subdivision. . .
9— Plat of Seebaldt’s Subdivision..............

10—Warranty deed ............................................
15— Birth certificate ......................................
16—  Affidavit for license to marry................
17—  Certified copy of record o f marriage....

Opinion of the court, Miller, J ........................................
Decree .................................................................................
Motion to set aside decree................................................

Affidavit attached to motion set aside decree..........
Opinion on motion for rehearing, Miller, J ....................
Order denying rehearing...................................................
Order granting leave to appeal........................................
Claim of appeal .................................................................
Stipulation as to printed record.................. ....................
Stipulation as to service of papers and certification of

exhibits ...........................................................................
Certificate of court ...........................................................

Opinion, Bushnell, J ..................................................................
Judgment ...................................................................................
Submission of motion for rehearing........................................
Application and motion for rehearing....................................

Affidavit o f Willis M. G raves..........................................
Argument ...........................................................................

Objections to rehearing ............ _.............................................
Order denying motion for rehearing......................................
Order granting stay of proceedings.........................................
Clerk’s certificate.............................. (omitted in printing).
Order allowing certiorari .........................................................

Original Print
32 17
32 17
32 17
37 21
40 23
45 27
50 31

51 32
55 35
58 37
38 22
64 43
65 44
66 45
68 47
69 48
70 49
71 51
74 52
76 54
78 55
79 55
80 56
81 57
83 57
84 58

85 59
86 59
87 60
97 70
97 70

100 70
102 71
104 72
113 77
118 80
118 80
119
120 81



1

[fol. 1] IN SUPREME COURT OF MICHIGAN

No. 43271

D ocket E ntries

Parties:
B e n ja m in  J. S ipes, et al., Plaintiffs,

vs.
Orsel M cG hee , et al., Defendants and Appellants

Plaintiffs’ Attorneys: Younglove & Chockley.
Defendants’ Attorneys: Willis M. Graves, Francis M. 

Dent.
Appeal from Wayne, In Chancery

Date Proceedings
1945

Dec. 1. Application for leave to appeal filed.
Dec. 5. Stay order issued.
Dec. 6. Motion to dismiss and brief in opposition filed.

1946
Jan. 10. Application granted, stay continued.
Apr. 17. Record on appeal filed.
Apr. 26. Note of argument filed.
May 17. Motion to dismiss filed.
May 22. Motion to continue filed.
June 3. Motion to continued granted, to dismiss denied, 

no costs.
Oct. 3. Stipulation to docket filed.
Oct. 16. Argued in part.
Oct. 17. Concluded and submitted.

1947
Jan. 7. Affirmed, costs.
Jan. 17. Record returned to Court below.
Feb. 18. Motion for rehearing submitted.
Mar. 3. Motion for rehearing denied, costs to plaintiffs. 
Mar. 24. Motion for stay of proceedings filed.
Apr. 8. Motion for stay of proceedings granted.

1—87



2

[ fo l . 2] I n  S uprem e  C ourt oe M ichigan

[Title omitted]

Order (Gran tin g  S tay—December 5, 1945

In this cause an application is filed for leave to appeal 
from the decree of the Circuit Court for the County of 
Wayne, in Chancery, and a motion is filed for the allowance 
of an stay of proceedings, and due consideration thereof 
having been had by the Court, it is ordered that all proceed­
ings under the trial court’s decree and order to show cause 
are hereby stayed pending determination of application 
for leave to appeal and until the further order of this Court.

I n S uprem e  C ourt oe M ichigan  

[Title omitted]

Order G ran tin g  L eave to A ppeal— January 10, 1946

In this cause an application is filed by defendants for 
leave to appeal from the decree of the Circuit Court for the 
County of Wayne, in Chancery, and a motion is filed to dis­
miss said application, and a brief in opposition to said appli- 
[fol. 3] cation having been filed by plaintiffs, and due con­
sideration thereof having been had by the Court, it is 
ordered that the application be and the same is hereby 
granted. It is further ordered that the stay order issued 
herein on December 5, 1945, be and the same is hereby con­
tinued in full force and effect until the further order of this 
Court.

I n  S u prem e  C ourt oe M ichigan  

[Title omitted]

Order D e n yin g  M otion to D ismiss etc .—June 3, 1946

In this cause a motion is filed by defendants to continue 
the cause over the June, 1946, Term of this Court and a 
motion is filed by plaintiffs to dismiss the appeal heretofore 
taken herein by defendants, and due consideration thereof



3

having been had by the Court, it is ordered that the motion 
to dismiss be and the same is hereby denied, but without 
costs, and that the motion to continue be and the same is 
hereby granted, but without costs.

I n  S uprem e  C ourt op M ichigan  

[Title omitted]

M in u te  E n try—October 16, 1946

[fols. 4-8] This cause coming on to be heard is argued in 
part.

I n  S uprem e  C ourt of M ichigan  

[Title omitted]

M in u te  E n try—October 17, 1946
The argument heretofore commenced herein is concluded 

and the cause duly submitted.

[fo l. 9] I n C ircuit Court of W ayne  Co u n y

Calendar E ntries

1945
Jan. 30 Bill of complaint filed. Summons issued.

30 Order to show cause signed, filed.
Feb. 2 Summons returned served, filed.

9 Appearance of defendants, filed.
16 Answer, filed.
21 Motion and notice to advance, filed.
23 Praecipe for causes ready for trial filed no. 58889. 

Mar. 1 Proof of service of motion to advance cause, no­
tice, filed.

2 Order granting motion to advance cause signed, 
filed.

5 Pre-trial statement, filed.
7 Proof of service of pre-trial statement, filed.
2—87

Apr.



4

1945
18 Fee paid. Case returned to call. Court sheet, 

Judge Guy A. Miller. $6.00.
20 Transcript of testimony, filed.

May 28 Heard by the court. Hearing in progress. Court 
sheet, Judge Miller.

29 Amended answer, filed.
29 Hearing in progress. Court sheet, Judge Miller. 

Aug. 23 Opinion of the court signed, filed.
24 Brief in support of motion to dismiss bill, filed. 
24 Brief of plaintiffs, filed.
29 Proof of service of decree and notice of settle­

ment, filed.
29 Proof of service of notice of, entry of decree, filed, 

[fol. 10]
29 Decree signed, filed, entered. Judge Guy A. 

Miller.
Sep. 19 Enrolled this date.
Oct. 26 Affidavit, motion to set aside decree and notice, 

filed.
Nov. 13 Opinion on motion for rehearing signed, filed.

16 Order denying rehearing and notice, filed.
16 Proof of service of order denying rehearing and 

notice, filed.
20 Notice of entry of order denying motion and 

proof of service, thereof, filed.
23 Motion for granting of a stay bond and a bond 

on appeal heard and denied. Court sheet, 
Judge Miller.

23 Motion for granting stay bond, and notice, filed.
27 Proof of service of claim of appeal, filed.
27 Claim of appeal, filed ($5 fee paid).

Dec. 3 Petition and order to show cause signed, filed.
6 Order staying proceedings, filed.

1946
Jan. 28 Order granting leave to appeal received, filed.

28 Claim of appeal, filed ($5 fee paid).
28 Bond to stay proceedings on appeal to Supreme

Court, filed #71867.
29 Motion to extend time and notice, filed.
29 Order extending time signed, filed, entered. 

Judge Guy A. Miller,



5

Feb. 20 Motion to extend time and notice, filed.
20 Order extending time signed, filed, entered. 

Judge Guy A. Miller.
Mar. 13 Order extending time signed, filed, entered. 

Judge Guy A. Miller.
[fol. 11]
Apr. 9 Record on appeal settled and certified this date.

Referred to Mr. Graves. Court sheet, Judge 
Guy A. Miller.

9 Settled case on appeal, filed.
9 Notice of transmission of record on appeal to the 

Supreme Court, filed.

1946

[fol. 12] I n t h e  C ircuit  C ourt for t h e  C o u nty  of W ayn e .
I n  C hancery

Hon. Guy A. Miller, Circuit Judge 

Calendar No. 43271

B enjam in  J. S ipes and A n n a  C. S ipes, J ames A. C oon and 
Addie A. Coon, et al., Plaintiffs and Appellees,

v.
Orsel M cGhee and M in n ie  S. M cG h ee , his wife, Defendants 

and Appellants

D efendants ’ R easons and  G rounds of A ppeal— Filed 
April 9, 1946

The reasons and grounds of appeal are:
The Court erred:
1. In holding that the doctrine of reciprocal negative 

easement applied in this case.
2. In holding that the instruments relied on by the plain­

tiffs as establishing a general plan or agreement were com­
plete as a matter of law.

3. In determining that the race of the defendants had 
been proved to the court.



6

[fol. 13] 4. In holding that the relief prayed was not
directly against Section 16, Article II, and other sections 
of the Constitution of the State of Michigan.

5. In holding that the alleged restriction was not void 
for uncertainty.

6. In holding that the alleged restriction was not void 
as being against public policy.

7. In holding that the enforcement of the race restriction 
set forth in the Bill of Complaint by a court of Equity or 
by a decree of a court of Equity or by a decree of any Court 
of the State of Michigan was not violative of the Four­
teenth Amendment to the Constitution of the United States 
of America and in that the enforcement of the decree by a 
court of Equity would not deny to the defendants, and each 
of them, equal protection of the laws of the State of Michi­
gan, and of the United States of America, and in that it 
would not constitute a taking of the defendant’s property 
without due process or any process of law.

8. In failing to hold that the general plan of developing 
the Subdivision had not been violated when 90% of resi­
dents on Tireman Avenue in Subdivision are Negroes.

Willis M. Graves and Francis M. Dent, Attorneys for 
Defendants and Appellants.

[ fo l . 14] I n  C ircuit C ourt of W ayne  C ou nty

B il l  of C om plain t—Filed January 30, 1945

To the Circuit Court for the County of Wayne, In Chan­
cery :
Now comes the above named plaintiffs, by Younglove 

and Chockley, their attorneys, filing this bill on behalf of 
themselves and all other owners of property in Seebaldt’s 
Subdivision and Brooks and Kingon’s Subdivision, located 
on Seebaldt Avenue, between Firwood and Beechwood Ave­
nues, in the City of Detroit, Wayne County, Michigan, who



7

may care to join herein, and respectfully show unto the 
court as follows:

1. That plaintiffs, respectively, own lots in Seebaldt’s 
Subdivision as follows:

Lot No. 53, by Benjamin J. Sipes and Anna E. Sipes, his 
wife;

Lot No. 68, by James A. Coon and Addie A. Coon, his 
wife;

Lot No. 45, by Edward F. Secunda and Anna L. Secunda, 
his wife;

Lot No. 49, by C. James Donovan and Elizabeth Donovan, 
his wife;

Lot No. 69, by William A. Kresin and Freda A. Kresin, 
his wife;

Lot No. 54, by Kathryn Lynn;
Lot No. 50, by Alvin C. Smith.

[fol. 15] 2. That plaintiffs, respectively, own lots in
Brooks and Kingon’s Subdivision as follows:

Lot No. 193, by Lora D. McMurdy;
Lot No. 196, by Herman Gluse;
Lot No. 195, by August J. Becker and Anna Becker, his 

wife;
Lot No. 192, by Daniel J. Kuntz and Carolyn Kuntz, his 

wife ;
Lot No. 200, by George A. Strohmer and Gertrude T. 

Strohmer, his wife;
Lot No. 199, by Irene L. Stofflett.

3. That all of the above described lots are located on 
Seebaldt Avenue, between Firwood and Beechwood Ave­
nue, in the City of Detroit, Michigan, and are, with one or 
two exceptions, used and occupied by plaitiffs as their re­
spective homes. 4

4. That defendants, Orsel McGhee and Minnie S. Mc­
Ghee, his wife, are the owners of Lot 52 Seebaldt’s Subdi­
vision, commonly known as 4626 Seebaldt Avenue, located 
between Firwood and Beechwood Avenues, in the same block 
in which plaintiffs’ homes are located.



8

5. That both plaintiffs’ and defendants’ properties above 
described are subject to the following restriction:

“ This property shall not be used or occupied by 
any person or persons except those of the Caucasian 
race.’ ’

which restriction was signed and imposed on defendants’ 
property by John C. Furgeson and Meda Furgeson, his 
wife, through whom defendants claim title, and was re­
corded on September 7, 1935, in Liber 4505 of Deeds, at 
page 610, Wayne County Register of Deeds Office.

6. That defendants Orsel McGhee and Minnie S. Mc- 
[fol. 16] Ghee, his wife, are not of the white or Caucasian 
race, but are of the colored or Negro race.

7. That said defendants, being of the Negro race and 
well knowing the restricted character of the neighborhood 
and particularly of the block on Seebaldt Avenue, between 
Firwood and Beechwood Avenues, have moved into and 
are now using and occupying the house at 4626 Seebaldt 
Avenue, in direct violation of said restriction limiting the 
use and occupancy thereof to persons of the white or Cau­
casian race.

8. That the restricted character of Seebaldt Avenue, 
and particularly of the block where defendants’ property 
is located, as an exclusively white residential neighbor­
hood, has been uniformly observed since the property was 
subdivided and the continued violation of said restriction 
will cause irreparable injury to these plaintiffs and all other 
owners in the vicinity by greatly reducing the desirability 
and value of their properties.

9. That defendants have been asked to abide by said 
restriction and to limit the use of the occupancy of their 
said property to persons of the Caucasian race, but have 
refused to do so.

10. That plaintiffs will suffer irreparable injury and 
damages in excess of $1000.00 each if said violation con­
tinues and are without remedy except in a court of equity.

Wherefore, plaintiffs pray:
I. That defendants Orsel McGhee and Minnie S. Mc­

Ghee, his wife, may full, true and perfect answer make to 
the matters herein stated and charged.



9

II. That a temporary injunction be issued by this Hon. 
[fol. 17] Court restraining defendants from using or occu­
pying the property known as Lot No. 52 Seebaldt’s Sub­
division and commonly known as 4626 Seebaldt Avenue, 
or permitting said property to be used or occupied by any 
person or persons except those of the Caucasian race.

III. That upon the hearing of this cause that said tem­
porary injunction be made permanent.

IV. That plaintiffs have such other, further or different 
relief as to the court shall seem just and proper.

Benjamin J. Sipes 
Anna E. Sipes 
James A. Coon 
Addie A. Coon 
Edward F. Secunda 
Anna L. Secunda
C. James Donovan 
Elizabeth Donovan 
William A. Kresin 
Freda A. Kresin

Irene L. Stofflett

Kathryn Lynn 
Alvin C. Smith 
Lora D. McMurdy 
Herman Guse 
August J. Becker 

Her cross (X) Anna Becker 
Daniel J. Kuntz 
Carolyn Kuntz 
George A. Strohmer 
Gertrude T. Strohmer

State oe M ich ig an ,
County of Wayne—ss.

On this 29th day of January, A. D. 1945, before me, a 
Notary Public in and for said County, personally appeared 
Benjamin J. Sipes, Anna E. Sipes, James A. Coon, Addie
A. Coon, Edward F. Secunda, Anna L. Secunda, C. James 
Donovan, Elizabeth Donovan, William A. Kresin, Freda
A. Kresin, Kathryn Lynn, Alvin C. Smith, Lora D. Mc­
Murdy, Herman Guse, August J. Becker, Anna Becker, 
[fol. 18] Daniel J. Kuntz, Carolyn Kuntz, George A. Stroh- 
mer, Gertrude. T. Strohmer and Irene L. Stofflett, to me 
known to be the parties above named and who made oath 
that they had read the foregoing bill of complaint by them 
subscribed, that they knew the contents thereof and that 
the same is true of their own knowledge, except as to mat­
ters therein stated to be upon information and belief and 
as to such matters they believe it to be true.

Evelyn G. McCaske, Notary Public, Wayne County, 
Michigan.

My commission expires Dec. 12, 1947.



A n sw er  to B ill  of C o m plain t— Filed February 16, 1945
Now come the defendants, Orsel McGhee and Minnie S. 

McGhee, his wife, by their attorneys, Willis M. Graves and 
Francis M. Dent, and saving and reserving unto themselves 
all manner of benefit of objection and exception to the many 
errors and inconsistencies in the Bill of Complaint con­
tained, for answer thereto or such parts thereof as they 
are advised it is material or necessary to answer, say:

1. The defendants, not having sufficient knowledge of 
the allegations set forth in paragraph 1, of the Bill of Com­
plaint, neither admit nor deny the said allegations but leave 
the plaintiffs to their proofs.

2. The defendants, not having sufficient knowledge of 
the allegations set forth in paragraph 2, of the Bill of 
Complaint, neither admit nor deny the said allegations but 
leave the plaintiffs to their proofs.

3. The defendants, not having sufficient knowledge of the 
allegations set forth in paragraph 3, of the Bill of Com­
plaint, neither admit nor deny the said allegations but 
leave the plaintiffs to their proofs.

4. The defendants admit the ownership of Lot 52 of 
Seebaldt’s Subdivision as alleged in paragraph 4 of the 
Bill of Complaint, but neither admit nor deny the remainder 
of said paragraph and leave the plaintiffs to their proofs.
[fol. 20] 5. The defendants deny that the restriction:

“ This property shall not be used or occupied by 
any person or persons except those of the Caucasian 
race’ ’

as alleged in paragraph 5 of the Bill of Complaint, if valid, 
applies to them or their use of the property owned by them.

6. The defendants say in answer to paragraph 6 of 
the Bill of Complaint that they do not have sufficient 
knowledge of their ancestry to say to which race they be­
long, but leave the plaintiffs to their proofs and further the 
defendants will demand complete and absolute proof of 
those allegations.

7. In answering paragraph 7, of the Bill of Complaint, 
the defendants say that it contains nothing but conclusions

10

[fol. 19] In Circuit Court o f  Wayne County



11

and therefore it is not subject to affirmation or denial ex­
cept the allegations of moving into the house at 4626 See- 
baldt Avenue and as to that allegation, they admit the same 
to be true.

8. The defendants say, in answer to paragraph 8 of the 
Bill of Complaint, that there is no connection between the 
allegations of the said paragraph 8 and the allegations of 
paragraph 5 of the Bill of Complaint and therefore un­
answerable in that form except the portion that alleges 
“ desirability and value”  and as to that portion, the defend­
ants neither affirm nor deny but leave the plaintiffs to their 
proofs.

9. In answering the paragraph 9 of the Bill of Complaint, 
the defendants state that persons, who are not known to 
them visited them on more than one occasion and talked about 
the neighborhood and threatened them if they did not ac­
cede to some unreasonable and unconscionable requests, 
[fol. 21] and they now ask that if such persons are the plain­
tiffs herein that they be more particularly described so that 
the defendants can more fully answer the said paragraph.

10. The defendants deny that any violation of any agree­
ment or contract made by them exists and that no injury or 
damage is caused by them to the plaintiffs.

Further answering the plaintiffs Bill of Complaint, the 
defendants say that the relief therein prayed cannot be 
granted because:

1. The Bill of Complaint does not give the court jurisdic­
tion to hear and determine the matters therein alleged.

2. The relief therein prayed is directly against Section 
16, Article II, and other sections of the Constitution of 
the State of Michigan.

The defendants say that the prayers of the said Bill 
of Complaint ought not to be granted and the said bill 
should be dismissed with costs to these defendants most 
wrongfully sustained.

Orsel McGhee, Minnie S. McGhee.
(Signed) Willis M. Graves, Francis M. Dent, Attorneys 

for Defendants. Business Address: 446 East Warren Ave­
nue, Detroit 1, Michigan.
[fol. 22] Duly sworn to by Orsel McGhee and Minnie S. 
McGhee. Jurat omitted in printing.

3—87



12

P lain tiffs  ’ P re-trial  S tatem en t— Filed April 5, 1945
It is hereby agreed between the plaintiffs and defendants 

herein, as follows:
1. Property on Seebaldt Avenue, between Firwood and 

Beechwood Avenue, in the City of Detroit, Wayne County, 
Michigan, consists of lots 36 to 71, both inclusive, of See­
baldt’s Subdivision of part of Joseph Tireman’s Estate, 
Quarter Sections 51 and 52, Ten Thousand Acre Tract and 
Fractional Section 3, Town 2 South, Range 11 East, ac­
cording to the plat recorded in Liber 27 of Plats, page 34, 
and lots 188 to 205, both inclusive, of Brooks and Kingons 
Subdivision of part of Joseph Tireman’s Estate, Quarter 
Sections 51 and 52, Ten Thousand Acre Tract and Frac­
tional Section 3, Town 2 South, Range 11 East, according 
to the plat recorded in Liber 27 of Plats, page 32, Wayne 
County Records.

2. Plaintiffs own property in said block, as follows:

[ fo l . 23] I n  C ircuit  C ourt op W ayne  C ou nty

In Seebaldt’s Subdivision

Lot No. Plaintiff
Deed Recorded 

Liber at page
53 Benjamin J. Sipes and wife 4148 201
68 James A. Coon and wife 2376 183
45 Edward F. Secunda and wife 5901 159
49 C. James Donovan and wife 5375 274
69 William A. Kresin and wife 1296 56
54 Kathryn Lynn 4202 321
50 Alvin C. Smith 5293 275

[fol. 24] In Brooks & Kingons Subdivision

Lot No. Plaintiff
Deed Recorded i 

Liber at page
193 Lora D. McMurdy 1367 475
196 Herman Guse 4224 61
195 August J. Becker and wife 6483 168
192 Daniel J. Kuntz and wife 1563 243
200 George A. Strohmer and wife 3888 63
199 Irene L. Stofflett 4750 440



13

3. Defendants own and occupy property in said block 
described as Lot 52, Seebaldt’s Subdivision, by Warranty 
Deed from Walter A. Joachim and Helen M. Joachim, his 
wife, recorded in Liber 7284, at page 135. Walter A. 
Joachim and wife obtained their title by Warranty Deed 
from John C. Ferguson and Meda Ferguson, his wife, 
recorded in Liber 7284, at page 137. John C. Ferguson and 
wife executed the restriction described below and it is 
recorded in Liber 4505, at page 610.

4. Instruments similar in form, reciting:
“ We, the undersigned, owners of the following de­

scribed property, situate and being in the City of De­
troit, Wayne County, Michigan, known and described 
as follows, to-wit: * * * for the purpose of defining, 
recording and carrying out the general plan of de­
veloping the subdivision which has been uniformly 
recognized and followed, do hereby agree that the fol­
lowing restriction be imposed on our property above 
described to remain in force until January 1st, 1960, 
to run with the land, and to be binding on our heirs, 
executors and assigns:

“ This property shall not be used or occupied 
by any person or persons except those of the 
Caucasian race.”

[fol. 25] It is further agreed that this restriction shall 
not be effective unless at least eighty per cent of the 
property fronting on both sides of the street in the 
block where above property is located is subject to this 
or a similar restriction.”

have been executed by owners of property in said block and 
are recorded as follows:

Seebaldt’s Subdivision
Lot Liber Page Lot Liber Page Lot Liber Page
36 4505 587 49 4505 587 61 4505 587
37 4505 587 50 4505 561 62 4505 561
38 4505 609 51 None 63 None
39 None 52 4505 610 64 4505 587
40 None 53 4505 587 65 6190 241
41 4505 587 6040 251 66 4505 587



14

Seebaldt’s Subdivision—Continued
Lot Liber Page Lot Liber Page Lot Liber Page
42 4505 561 54 4505 612 67 4505 587
43 4505 561 55 4505 587 68 4505 607
44 4505 561 56 4505 587 69 4505 561
45 4505 614 57 45Q5 587 70 4505 613
46 4505 561 58 4505 587 71 None
47 4505 587 59 4505 587
48 4505 561 60 4505 608

Brooks & Kingons Subdivision
Lot Liber Page Lot Liber Page Lot Liber Page
188 4505 606 194 4505 585 200 4505 587
189 4505 606 195 6040 248 4505 585
190 4505 611 196 4505 585 201 7350 75
191 7358 134 197 7347 480 4505 585
192 4505 685 198 4505 585 202 4505 615
193 4505 585 199 4505 587 203 4505 585

6020 19 7350 74 204 4505 585

[fol. 26] 5. All mention herein of liber and page of the
recordings of all instruments are understood to refer to the 
records in the office of the Register of Deeds for Wayne 
County, Michigan, unless the context clearly indicates other­
wise. All mention of “ said block”  is understood to refer 
to the block on Seebaldt Avenue, between Firwood and 
Beech wood Avenue, in the City of Detroit, Wayne County, 
Michigan.

Younglove and Chockley, Attorneys for Defendants.

[fol. 27] I n C ircu it  C ourt of W ayne  C ou nty

O rder A llow ing  P l a in t if f s ’ P re-trial  S tatem en t  to B e 
F iled— April 4, 1945

The court is advised by Mr. Chockley, attorney for plain­
tiff, that a copy of the annexed pre-trial statement has been 
submited to the attorneys for the defendants, and that no 
amendments or corrections have been proposed. Mr. 
Chockley has been present in court all morning and defend­
ants ’ attorneys have not appeared, although Mr. Chockley 
called their office. It is therefore, ordered that the annexed 
pre-trial statement be filed.

James E. Chenot, Circuit Judge.



15

[fol. 28] In Circuit Court op Wayne County

D efen d an t ’s P re-T riad S tatem ent

The defendants file herewith their objections to the pro­
posed exhibits of the plaintiffs.

Defendants challenge legality of execution of following 
lots in accordance with Section 13284 and other sections of 
the Compiled Laws of the State of Michigan for the year 
1929.

In Seebaldt’s Subdivision
Lot No. Deed Recorded in 

Liber at Page
36 (N. 30') 4505 587
37 4505 587
41 4505 587
47 4505 587
49 4505 587
53 4505 587
56 4505 587
57 4505 587
59 4505 587
61 4505 587
66 4505 587
38 Executed by Executor without 

authority of Probate Court.
4505 587

68 Executed out of State and no 4505 587
certificate of court of record.

[fol. 29] In Brooks and Kingon’s Subdivision
Lot No.

192
193
194 
196 
200
203
204
188 and 189 executed by officers 

of a corporation on behalf of 
corporation

Deed Recorded in
Liber at Page
4505 585
4505 585
4505 585
4505 585
4505 585
4505 585
4505 585
4505 585



16
All libers and pages herein mentioned are found in the 

office of the Register of Deeds for Wayne County.
Willis M. Graves, Francis M. Dent, Attorneys for 

Defendants.

Business Address: 446 East Warren Avenue, Detroit 1, 
Michigan.

[ fo l . 30] I n C ircuit C ourt of W ayne  C ounty

P re-T rial  S tatem en t  of C ourt— April 19, 1945
This is a restriction case in which the plaintiffs seek to 

enforce restrictions:
“ This property shall not be used or occupied by any 

person or persons except those of the Caucasian race.”

The plaintiffs plant themselves primarily on a written 
restriction which includes a general plan, marked Pre-trial 
Exhibits 1 and 2 respectively.

Included and attached to this pre-trial statement is a list 
of lots covered by these agreements, the original of which 
are in the possession of the plaintiff and will be produced at 
the trial.

The defendants challenge the legality of certain of these 
agreements as contravening Sections 13284, 13332 to 13335, 
13330 of Compiled Laws of 1929, a list of which they have 
submitted and is also attached to this pre-trial statement. 
Counsel for each side admit the correctness of the list as 
attached. The issue of the legality of these signatures and 
acknowledgements is of course an issue for the trial judge.

(Signed) I. W. Jayne, Circuit Judge.

[fol. 31] I n C ircuit C ourt of W ayn e  C ounty  

A mended A nsw er  to B ill  of C om plain t—Filed May 29,1945
Now come the defendants, Orsel McGhee and Minnie 

McGhee, his wife, by their attorneys, Willis M. Graves and 
Francis M. Dent, and file herewith an Amended Answer to 
the Bill of Complaint by adding to the general answers of 
the bill added paragraphs to be known as paragraphs 3, 4 
and 5 of the general answer.



17

3. The restriction against occupancy based upon the race 
or color of the occupant is void under the 14th Amendment 
to the Federal Constitution.

4. The issuance of an injunction by this court, as prayed 
for, would enforce a restrictive covenant and would pre­
vent defendants from occupying their property, because of 
their race or color, and would therefore contravene the 14th 
Amendment to the Federal Constitution.

5. The restrictive covenant, relied upon by the plaintiffs, 
would prevent occupancy of the property because of the 
race or color of the occupant, and is therefore void as 
against public policy.

Willis M. Graves, Francis M. Dent.

[fol. 32] I n Circuit  C ourt or W ayn e  C ou nty  

C a lendar No. 371-498

Settled Case on Appeal—Filed April 9, 1946
Proceedings had and testimony taken in the above en­

titled matter before the Honorable Guy A. Miller, Circuit 
Judge, at Detroit, Michigan, on May 28,1945.

A ppearances :

Mr. Lloyd Chockley, appearing on behalf of the plaintiffs.
Messrs F. M. Dent and Willis M. Graves, appearing on 

behalf of the defendants.

Colloquy

Mr. Chockley: This is a suit brought by some of the prop­
erty owners on Seebaldt Avenue in the City of Detroit, for 
the purpose of enforcing a restriction which provides that 
no property in this block shall be used or occuped by any 
person other than that of the Caucasian race. It is the claim 
of the plaintiffs that this restriction has been violated by the 
defendant, Orsel McGhee and his wife who are of the colored 
race, and who have purchased and moved into this property 
contrary to the restrictions.
[fol. 33] Mr. Dent: I have a proposed amendment. I state 
the proposed amendment. It is to the effect that the re­



18
striction in question is a violation of the Fourteenth Amend­
ment of the Constitution of the United States. Does counsel 
object to that amendment?

Mr. Chockley: No, it is perfectly all right.
Mr. Dent: We will file the written amendment in answer 

to that effect.
Mr. Chockley: I wish to offer this Exhibit No. 1, which 

is the Pre-Trial Statement which I prepared and filed in 
this court on April 3, which is a statement of the Public 
Records that we rely upon and a summary or synopsis of 
what they contain, which has not been denied under oath 
and which under Third Circuit Rule No. 14-b is admissible 
into evidence as proof of the facts therein stated.

(Plaintiff’s Exhibit No. 1 received in evidence.)
I will also offer into evidence plaintiff’s Exhibits 3 and 4. 

These are the two papers that were called into question on 
the Pre-Trial and are marked Pre-Trial Exhibit 1 and Pre- 
Trial Exhibit 2. Those were the ones you questioned at 
that time.

Mr. Dent: We object to their admission into evidence. 
Our claim is that they cannot be admitted into evidence 
under the statutes of the State.

The Court: They may be received and you may state your 
objections, but I would like to listen to the arguments when 
the case is in. I ‘ will admit them and whatever objections 
you make—we will argue out the objection when all the 
questions of law can be gathered up and argued at the same 
time.

(Plaintiff’s Exhibits No. 3 and 4 received in evidence.)
[fol. 34] Mr. Dent: We claim this might decide the entire 
case because the restriction says that at least eighty per 
cent of the property owners on each side of the street must 
sign these agreements and if under our contention, eighty 
per cent have not signed, then, that would conclude the 
case. That is, they have not been signed properly. As to 
that Lot 68 in Seebaldt Subdivision, it was executed in the 
State of Indiana and there is no certificate by the clerk of 
the court or by the Secretary of State that the Notary 
Public, who executed it, had authority to execute it on that 
date, and under the Section recited to the court, such an 
instrument may not be admitted into evidence.



19

Mr. Chockley: My answer to that objection is contained 
in the Statute, Michigan Statutes Annotated, Section
26.604,, which says no such certificate is necessary.

Mr. Dent: No certificate of Notary Public as required by 
Statute. It should be in the form as the certificate by the 
County Clerk, who certifies thereto under his seal of office. 
That is the way the Statute reads and there is no certificate 
in that acknowledgment.

The Court: Well, it reads: “ 18 day of September, A. D. 
1934, before me a Notary Public in and for said county, 
personally appeared James A. Coon and Addie Coon, to me 
known to be the same persons described in and who executed 
the within instrument who then severally acknowledged 
same to be their free act and deed. Dena P. Brickelle, 
Notary Public, St. Joseph County, Indiana. My commis­
sion expires 1-20-35.”  And impressed on it is a seal: 
“ Notary Public, St. Joseph, County, Indiana.”  What 
should be there1?

Mr. Dent: A certificate that he is a Notary Public in that 
county.
[fol. 35] The Court: He describes himself as a Notary 
Public and I don’t think anything else is necessary. What 
are Exhibits 3 and 4 ?

Mr. Chockley: The Pre-Trial Exhibits that were offered 
on the Pre-Trial and the statement says that they should 
be produced and I am producing them in accordance with 
the agreement made at the Pre-Trial, although I don’t think 
they are necessary to make out our case.

Mr. Dent: We have objections to those. As to Lot 38 of 
Seebaldt Subdivision, the restriction agreement was filed 
by an executor of an estate without authority from the Pro­
bate Court. We hold he had no right to do that.

The Court: I think he is right about that.
Mr. Chockley: I think he is right.
Mr. Dent: In Brooks-Kingon Subdivision, lots 188 and 

189 the restriction agreement was executed by officers of a 
corporation—on behalf of the corporation. The acts of 
neither the United States Government or the State Govern­
ment may put such restrictions on property. I think all 
the states in the country agree upon that. We claim that 
the state cannot create a corporation which can do some­
thing which the state itself cannot do. It was my thought 
that even though the people of the State of Michigan ordi­
narily tell the state that it may pass such resolutions, it



20

would still be declared unconstitutional by the Supreme 
Court of the United States. The state cannot go into this 
business under any circumstances and I don’t see how they 
themselves, acting through any other of its authorities, 
that is the executive, judicial or legislative could authorize 
such a corporation—that is, authorizing a corporation to do 
such a thing.

The Court: But the Statute provides here on the “ blank 
day of blank before me appeared AB, to me personally 
[fol. 36] known, by me being duly sworn did say that he is 
the President or other officer or agent and that the seal 
affixed to said instrument is the corporate seal of the said 
corporation that said instrument was signed and sealed in 
behalf of said coropration by authority of this Board of 
Directors and said AB acknowledged said instrument to be 
the free act and deed of this association. ’ ’ This form totally 
lacks the statement that these two parties are the officers 
and it makes no statement that the corporate seal is at­
tached. As a matter of fact, there isn’t any corporate seal 
attached and there lacks a statement that this is executed 
by authority of the Board of Directors. So, I don’t think 
that instrument is entitled to record under our record laws. 
That is the ruling I am making. I don’t think that instru­
ment is notice to anyone because I don’t think it is properly 
received for a record.

Mr. Dent: If the court will look at the instrument before 
it, it will see that there are a number of people who have 
signed and practically none of them on the same date. The 
acknowledgment does not state the people who appeared 
before him. It does not state what date and I think under 
these two sections that I have quoted to the court, these 
acknowledgments are not good. It does not show the people 
who appeared before him.

The Court: Well, Mr. Dent, opposite each name there is 
a date, for instance, February 26, 1934, and so on down the 
line, down to March 7, 1934, and the certificate of acknowl­
edgment says, “ Before me a Notary Public in and for said 
county, personally appeared each of the persons whose 
names are subscribed above, who respectively acknowledged 
that they signed same on the date appearing opposite their 
[fol. 37] names and severally acknowledged same to be their 
free act and deed.”  What is wrong with that?

Mr. Dent: We claim that does not comply with the 
Statute.



21

The Court: What would you have it do ?
Mr. Dent: He should name the people who appeared 

before him in the certificate and the dates that they ap­
peared before him in the Certificate. The certificate itself 
must bear a date and there is no date in the certificate.

The Court: You mean the certificate cannot refer to the 
dates set opposite to the names of the respective parties'?

Mr. Dent: That is our contention.
The Court: On the face of the certificate that is a' certifi­

cate that on the 20th day of February, 1934, Mabel S. Ball, 
owner of Lot 204, appeared before the Notary and executed 
it and acknowledged it.

S ipes, B e n ja m in  J., one o f  the p la in tiffs  b e in g  first du ly  
sworn testified as fo llo w s  :

Direct examination.

By Mr. Chockley:
My name is Benjamin J. Sipes. I live at 4634 Seebaldt, 

and that is next door to the defendant, Mr. McGhee, and I 
have lived there approximately eighteen years. I own the 
house, and signed one of the restrictions, restricting the 
property against colored people. I have seen two sons and 
Mr. and Mrs. McGhee.

Mr. Chockley: Can you tell from looking at these people 
whether they are colored people or white people?
[fol. 38] Mr. Dent: If the court please, I must object to 
that. The only person qualified to testify as to race would 
be someone who is an expert in that field.

Mr. Chockley: If the court please, I don’t believe that is 
true. I believe the man can testify in accordance with the 
average individual of ordinary intelligence that they can 
tell the difference between a white man and a negro, and 
I think he has a right to testify for whatever his testimony 
may be worth.

The Court: You may answer subject to objection.
Mr. Sipes: Colored people. During the eighteen or 

twenty years I lived in this house no colored people lived 
in this block or in the district north of Tireman and between 
Grand River on the east and Epworth Boulevard on the 
west and Joy Road on the north. If my memory serves me



22

correctly, I think it was in 1928 there was a doctor that 
moved in on Spokane—a colored doctor—and they got him 
out. He did not live there very long. I had talks with Mr. 
McGhee regarding this restriction. I presented a letter 
that I composed and a committee of taxpayers in the neigh­
borhood got together and I composed this letter, and asked 
them if it was satisfactory to everybody concerned in this 
group and they said it was. We went into the house and 
I read the letter to Mr. McGhee.

(Whereupon, a document was marked Plaintiff’s Exhibit 
7 by the Reporter.)

Q. Tell us what you said to Mr. McGhee!
A. I says, “ We are a group of taxpapers in the neighbor­

hood, who are representing the Civic Association. We are 
a group and we are asking you to kindly vacate the property. 
We don’t know if at the time you bought the property from 
[fol. 39] Larchmont to Joy Road it was restricted to the 
Caucasian only and we also wish to inform you that unless 
you vacate this—unless you move out, the Civic Association 
will take you to court. ’ ’

Q. And what did Mr. McGhee say, if anything, in answer 
to that!

A. He just says, “ Do you want to buy the property!” 
And I said, “ That isn’t for us to decide.”  He still lives 
there.

Cross-examination.

By Mr. Dent:
I changed my name in Probate Court on December 13, 

1937, from Swipes to Sipes. I am buying the property on 
contract, and have been buying for approximately around 
eighteen years. At the time I signed this agreement I was 
buying on contract.

Mr. Dent: Will counsel bring in his land contract!
Mr. Chockley: I can’t because he hasn’t any, he has a 

deed, which is recorded in Liber 4148, Page 201.
Witness Continuing: There are colored and whites that 

live on Tireman, and at the time I signed the agreement 
here, colored people lived on the north side of Tireman, and 
they are living there now. I have seen Mr. McGhee, and 
he appears to have colored features. They are more darker 
than mine. I haven’t got near enough to the man to recog-



23

tii7,p. his eyes. I have seen Mrs. McGhee, and she appears 
to he the muhat-o type. Any white man to me is a Caucasian, 
and I haven’t heard of any colored people who are Cau­
casians.

Mr. Dent: You are depending entirely upon this written 
restriction, is that true counsel?

Mr. Chockley: That is correct.
[fol. 40] Witness: I made the Mortgage to H. 0. L. C., 
May 1, 1934.

Mr. Dent: We have a case in 298 Michigan 160.
The Court: The Court holds the mortgagor cannot de­

crease the title of mortgagee on property by entering into 
restrictive covenants like this and, therefore, as against the 
mortgagee that agreement is not binding and enforceable. 
We do not have enough facts here. Well, this agreement 
here, would create an encumbrance on the property which 
would be subsequent to and is subordinate to the bank’s 
mortgage—the H. 0. L. C. mortgage—and if that mortgage 
were to be foreclosed it would wipe out this agreement so 
far as he is concerned.

Charles R . R obert, ca lled  b y  p la in tiffs  be in g  first du ly  
sworn testified as fo l lo w s :

Direct examination.

By Mr. Chockley:
My name is Charles R. Robert. I live at 4311 Seebaldt, 

and I am in the Real Estate Business, and have been since 
1915. My office is now at 7539 Grand River, between See­
baldt and Allendale. I have seen the result of influx of 
colored people moting into a white neighborhood. There 
is a depression of values to start with, general run down of 
the neighborhood within a short time afterwards. I have, 
however, seen one exception. The colored people on 
Scotten, south of Tireman have kept up their property 
pretty good and enjoyed them. As a result of this particu­
lar family moving in the people in the section are rather 
panic-stricken and they are willing to sell—the only thing 
[fol. 41] that is keeping them from throwing their stuff on 
the market and giving it away is the fact that they think 
they can get one or two colored people in there out of there. 
My own sales have been affected by this family. Since the



24

fact got around there and it seems to have gotten around 
the northwest section that colored people are on Seebaldt, 
which is one of our nicest streets, and nine out of ten calls 
on the telephone—that, of course, is the section I operate in 
—they ask which side of Grand River it is on, and the south 
side is where the colored people are. Six or seven weeks 
ago I sold a house at 5673 Seebaldt and got a deposit one 
day and got the owner’s acceptance in the evening and 
before I could deliver the owner’- acceptance to the pur­
chaser, he found out there was a colored family in the dis­
trict and he called me and stopped the deal, and on the 
request of the Securities Commission, we returned the 
deposit. I am familiar with Seebaldt Avenue.

Q. Are there any other colored families that live on See­
baldt other than the Defendants in this case?

A. Not to my knowledge. I specialize in the section 
bounded by Underwood, Colfax, Dexter, Clairmont, down 
to the colored section of Tireman.

Q. So far as you know are there any colored people in that 
section other than the Defendants?

A. So far as I know, no.

Cross-examination.

By Mr. Dent:
Mr. Robert: There are colored people living on the north 

side of Tireman, and they have lived there for the last 
eight or ten years.

Q. Do you know anybody living there as long ago as 1928? 
[fol. 42] A. I never fooled with property with colored 
people and I did not pay attention, but I think that was 
originally laid out as business property. Tireman is a busi­
ness street.

The Court: Let me ask you. Do you understand that in 
the subdivision in the plat as it was originally dedicated, 
that Tireman Avenue is designated as a business street?

The Witness: Sir, I never searched the records and I 
don’t know what it is.

The Court: Do you know if in the original dedication 
there was any restriction in the plat?

The Witness: I don’t know.



25

By Mr. Dent:
Q. Can you name any new business on the north side of 

Tireman between Firwood and Beechwood or along the two 
or three blocks there?

(Exhibit 8, plat of Brooks & Kingon’s Subdivision, and 
Exhibit 9, plat of Seebaldt’s Subdivision, received in 
evidence.)

A. I believe there are some businesses—not an the north 
side—there are some on the south side.

Q. That would be out of the subdivision?
A. That is right.
Mr. Robert: I am familiar with the property at 4626 

Seebaldt, and the value of it with a colored family in it is 
fifty-two hundred, and if there was no colored family in it 
I would say sixty-eight hundred. I would say seven thou­
sand is a fair price for that property. Very often they put 
on more stamps than it is required in order to get more 
mortgage. The mortgage evaluators very often look at the 
deeds to find out how much stamps were put on and pay 
accordingly and I know of many cases that they put on 
three or four dollars more.

(Deed to Orsel McGhee and wife, Exhibit 10 admitted in 
evidence.)

[fol. 43] By Mr. Dent:
Q. After looking at the stamps on Exhibit 10, what would 

that indicate?
A. That the worth was over a fraction of seven thousand 

dollars------
Mr. Chockley: I wish to offer into evidence exhibits 11, 

12,13, and 14, which are four additional restrictions in this 
block which have been obtained since this case was started. 
They haven’t been recorded.

Mr. Dent: If the Court please, these restrictions are all 
dated since this case has been started—the 23rd of April, 
1945, and for that reason I don’t think they are proper evi­
dence as to whether there have been any violations. There 
was certainly no notice to Defendants in this case.

Mr. Chockley: This restriction reads that it will be valid 
when eighty per cent have signed and if—which I don’t 
think is true—and if he buys without the eighty per cent



26

having signed, and it subsequently becomes eighty per cent, 
he knows that the restriction is pending and it is subject to 
be made valid by the addition of some more lots or property 
to that restriction, and for that reason it seems to be to me 
a proper method of showing the restrictions that are on. 
Those matters are all in the record. He knows when lie 
takes it that when eighty per cent sign, that the property is 
restricted.

The Court: Irrespective of whether this particular lot 52 
is restricted?

Mr. Chockley: Here is the restriction on lot 52, the lot 
in question.

(The Court excluded Exhibits 11, 12, 13, and 14.)
Mr. Dent: May I  ask off the record as to whether counsel 

claims this Exhibit 15, is the birth certificate of Defendant? 
[fol. 44] Mr. Chockley: No, this is the birth certificate 
of Defendant’s son.

Mr. Dent: May it please the Court, we object to the 
introduction of this because it is not the birth certificate 
of any of the parties to this suit.

The Court: I am assuming, of course, that is the birth 
certificate of a child of these two parties.

Mr. Dent: It does not show that. The party named is 
Orsel McGhee. The Defendant in this case. This shows 
the father is Oswald McGhee------

The Court: All right, but as a matter of fact the birth 
certificate is made evidence only for two reasons only. 
By the Statute it says: ‘ ‘ Such certified copies shall be 
accepted in all courts and places as prima facie evidence 
of the date and birth of said child.”  And with that stat­
utory authority I don’t think such certified copies are 
evidence at all. Strictly reading the statute—as I think 
I got to—that is evidence that a child of the parents named 
on the certificate was named at a certain place and at a 
certain time and that is all it is evidence of. The statute, 
Mr. Chockley, says, “ Such certified copy shall be accepted 
as prima facie evidence of the date and place of birth of 
said child.”  That is the only purpose for which the statute 
make them acceptable.

Mr. Dent: The exhibit that the Court has before it, the 
Court will notice that the name of either Defendants of 
this suit, Orsel McGhee or Minnie McGhee are not on it. 
They are different names altogther.



27

Mr. Chockley: Mr. Dent, is Mr. McGhee in the court­
room?

Mr. Dent: No, he is not.
Mr. Chockley: Do you expect to produce him?
Mr. Dent: At present, we don’t.
The Court: While there are a lot of things on here that 

[fol. 45] are purely hearsay, such as, for example, the 
ages, the birthplace, the occupation, the number of other 
children and so on, it may be admitted for the purpose of 
showing the date and place of birth and the names of the 
parents, which is as far as you can stretch the statute.

(Plaintiff’s Exhibit 15 admitted into evidence.)
Mr. Chockley: I will now offer Plaintiff’s Exhibit 16, 

the affidavit for license to marry.
Mr. Dent: I think Mr. Graves would like to see it. May 

it please the Court, I don’t know what counsel wants to 
prove by this— that the people in this exhibit are the 
Defendants in this case or not? In case that is the pur­
pose, I don’t believe that this is a proper way to prove it. 
I have no objection to having it admitted for what it shows 
on the face, but not to show that it has anything to do 
with the defendants in this case.

The Court: It may be received.
(Plaintiff’s Exhibit 16 received in evidence.)
Mr. Chockley: That is plaintiff’s case.

Dr. N orman D. H u m p h r e y , called by Defendants being 
first duly sworn testified as follows :

Direct examination.

By Mr. Dent:
My name is Norman D. Humphrey. I live in the City 

of Detroit. I am Professor of Sociology and Anthropology 
at Wayne University, or Assistant Professor. I got my 
Bachelor of Arts degree at the University of Michigan, 
Master of Arts degree of Anthropology at the University 
of Michigan, Master of Sociology degree at the University 
[fol. 46] Institute of Social and Public Administration, 
Doctor of Philosphy degree at University of Michigan. I



28

have written a number of articles in the anthropological 
journals. I belong to the American Sociological Society 
and the Alpha Kappa Delta, which is a sociological society.

Mr. Dent: Mr. Chockley, would you want to ask the 
doctor any questions as to his qualifications as an expert 
in anthropology.

Mr. Chockley: I have no questions.

By Mr. Dent:
Q. In anthropology, doctor, how many races of man­

kind are there?
A. The most common conception is that all mankind 

consists of the same genesis and species, namely Homo 
sapiens, and within that group there are three major 
races and stocks, Mongoloid, Caucasoid, and Negroid.

Q. Is there any particular way that you can determine 
whether a man is a member of one of those three classifica­
tions ?

A. There isn’t any simple one, single criterion of mem­
bership.

—. How do you determine the particular race of any par­
ticular person?

A. In order to approach knowing what racial derivative 
a person possesses, one would proceed to measure a number 
of known points by means of califcers and develop their 
relation, that is, measurements to certain averages which 
have been worked out and then work out from the measure­
ments, ratios of indexes or measurement and relate those 
in turn into average indigenous, and he would also, prob­
ably, observe further mortal observations.

The Court: I don’t follow you. You are using a lot 
of words that I cannot know what you mean.

The Witness: Structural features such as the eyefold, 
[fol. 47] degree of freeness in the upper lid which isn’t 
subject to measurement, but which is subject to observa­
tion. The shape of the nose and that sort of thing, which 
is both subject to measurement and observation.

By Mr. Dent:
Q. Professor, did you or would say that looking at an 

ordinary person you could tell which of the three races he 
belonged to?



29

A. Only insofar as yon approach the ideal types of each 
of these categories.

Q. Would yon say, in your opinion, the average layman 
could look at a person and tell what racial qualifications— 
or racial classification they should be put under?

A. I should say, no, because I think the average person 
is unfamiliar with the anthropological scientific determina­
tion of racial stocks.

The Court: That ending “ oid”  has the general meaning 
of being predominantly of the given characteristic?

The Witness: Yes, sir.

By Mr. Dent:
Q. Would you say there are any pure Caucasoid, Mon­

goloid or Negroids?
A. Well, it would be very difficult to say whether a per­

son would be a pure Mongoloid, Negroid, or Caucasoid. 
The anthropologists assume that at one time isolated 
groups inbred points-certain physical types predominant 
for this particular inbred group. However, there has been 
shown from examinations of skeleton material from even 
Paleolithic have in Europe—the last Ice Age in Europe— 
there is evidence of admixture of the so-called Neanderthal 
skeletons—the Neanderthal skeletons from Palestine are 
deviated from the anthropology in France and Germany, 
and it would appear, or at least it is induced that admixture 
took place at this time.

Q. On the question of color, white, brown, black, or 
[fol. 48] yellow, would that determine necessarily whether 
a person was Caucasoid, Negroid, or Mongoloid?

A. No, sir, it would not determine necessarily whether 
he were one or the other because skin color has been shown 
hj be a very poor index because it is not well correlated 
with other features.

Q. Do you know of any dark Causcasoids?
A. Yes, sir, I do.
Q. Will you give us an example of that?
A. Well, the average native of India whether he be a 

Moslem or a Hindu in religion.
Q. Are classified as Caucasoids?
A. Yes, sir.
Q. Do you know any light or white Negroids?
A. Yes, sir, I know of people who are called Negroids



30

who are light in skin coloring, and it is also a possibility 
for an albino to be in any one of the several racial groups.

Cross-examination.

By Mr. Chockley:
Q. Doctor, the approach that you have testified to here, 

has been the purely scientific and academic approach, has 
it not?

A. It has been the scientific and academic approach, 
yes, sir.

Q. In other words, you are not testifying to the popular 
concepts of these things, you are testifying solely as to 
the academic concepts ?

A. Yes, sir.
Q. In just ordinary language that the man in the street 

uses, what does the Negroid consist of? What is the 
common word for that?
[fol. 49] A. The average person in the street calls it 
“ nigger”  and spells it with two “ g ’s” .

Q. What is the Mongoloid? What is the term for that!
A. Again, the man in the street uses variable language— 

He may use Mongolian.
Q. And the Caucasoid, what is the common word for that?
A. Well, the commonly used term is the white race, so 

to speak, but actually there is a variance here between 
the man in the streets usage of the term, and the anthrop­
ologists ’, just as there is a difference between the chemist—

Q. I understand, but I am talking about common, ordi­
nary meaning of the man on the street—the Negroids are 
known as the black race?

A. That is right, but I am not competent to talk about 
the language of the man on the street because it is an 
ambiguous language.

Q. I grant you that, but generally speaking, the Negroid 
is the black race?

A. It is commonly felt that Negroids are black.
Q. Isn’t it a fact that they are commonly called black?
A. Commonly—to me they would be more brown than 

black.
Q. Or black or brown; but the Mongolians or Mongoloids 

are talked of by the ordinary people as a yellow race?
A. In some references, yes, and in some references, no.



31

Q. They are talked about commonly in ordinary language 
as the “ Yellow Race” , isn’t that so?

A. Yes, sir.
Q. And the Caucasoid is what is commonly considered 

to be the white race ?
A. Yes, sir.

[fol. 50] M e l v in  Tumin, called by Defendants, being first 
duly sworn, testified as follows: i

Direct examination.

By Mr. Dent:
My name is Melvin Tumin. I am a resident of the City 

of Detroit and an instructor of Sociology and Anthrop­
ology at Wayne University. I had my B.A., at Wisconsin, 
my M.A. at the University of Wisconsin and my Ph.D., at 
Northwestern in Sociology and Anthropology.

By Mr. Dent:
Q. Doctor, you have heard the testimony of Dr. Hum­

phrey, do you agree with his testimony?
A. Yes, sir.
Q. Is there any place that you disagree with his testi­

mony?
A. I can’t think of any substantial disagreements.
Mr. Dent: That is the defendants’ case. The defense 

rests.



32

[fol. 51] E x h ib it  1

Plaintiffs’ Pre-Trial Statement—Filed April 4, 1945 

S tate of M ic h ig an ,
In the Circuit Court for the County of Wayne, In 

Chancery.
No. 371,498

B e n ja m in  J. S ipes , et al., Plaintiffs,
vs.

O usel M cG h e e , et al., Defendants

It is hereby agreed between the plaintiffs and defendants 
herein, as follows:

1. Property on Seehaldt Avenue, between Firwood and 
Beechwood Avenue, in the City of Detroit, Wayne County, 
Michigan, consists of lots 36 to 71, both inclusive, of See- 
baldt’s Subdivision of part of Joseph Tireman’s Estate, 
Quarter Sections 51 and 52, Ten Thousand Acre Tract 
and Fractional Section 3, Town 2 South, Range 11 East, 
according to the plat recorded in Liber 27 of Plats, page 
34, and lots 188 to 205, both inclusive, of Brooks and Kingons 
Subdivision of part of Joseph Tireman’s Estate, Quarter 
Sections 51 and 52, Ten Thousand Acre Tract and Frac­
tional Section 3, Town 2 South Range 11 East, according 
to the plat recorded in Liber 27 of Plats, page 32, Wayne 
County Records.

2. Plaintiffs own property in said block, as follows:

[fol. 52] In Seebaldt’s Subdivision

Deed Recorded in
Lot No. Plaintiff Liber at page

53 Benjamin J. Sipes and wife 4148 201
68 James A. Coon and wife 2376 183
45 Edward F. Secunda and wife 5901 159
49 C. James Donovan and wife 5375 274
69 William A. Kresin and wife 1296 56
54 Kathryn Lynn 4202 321
50 Alvin C. Smith 5293 275



33

In Brooks & Kingons Subdivision

Deed Recorded in
Lot No. Plaintiff Liber at page

193 Lora D. McMurdy 1367 475
196 Herman Gluse 4224 61
195 August J. Becker and wife 6483 168
192 Daniel J. Kuntz and wife 1563 243
200 George A. Strohmer and wife 3888 63
199 Irene L. Stofflett 4750 440

3. Defendants own and occupy property in said block 
described as Lot 52, Seebaldt’s Subdivision, by Warranty 
Deed from Walter A. Joachim and Helen M. Joachim, his 
wife, recorded in Liber 7284, at page 135. Walter A. 
Joachim and wife obtained their title by Warranty Deed 
from John C. Ferguson and Meda Ferguson, his wife, 
recorded in Liber 7284, at page 137. John C. Ferguson 
and wife executed the restriction described below and it is 
recorded in Liber 4505, at page 610.

4. Instruments similar in form, reciting:
“ We, the undersigned, owners of the following de­

scribed property, situate and being in the City of De­
troit, Wayne County, Michigan, known and described 
[fol. 53] as follows, to-wit: * * * for the purpose
of defining, recording and carrying out the general plan 
of developing the subdivision which has been uniformly 
recognized and followed, do hereby agree that the fol­
lowing restriction be imposed on our property above 
described to remain in force until January 1st, 1960, to 
run with the land, and to be binding on our heirs, 
executors and assigns:

“ This property shall not be used or occupied by 
any person or persons except those of the Caucasian 
race.”
It is further agreed that this restriction shall not be 

effective unless at least eighty per cent of the property 
fronting on both sides of the street in the block where 
above property is located is subject to this or a similar 
restriction.”



34

have been executed by owners of property in said block and 
are recorded as follows: 5

Seebaldt’s Subdivision
Lot Liber P a g e Lot Liber Page Lot Liber Page
36 4505 587 49 4505 587 61 4505 587
37 4505 587 50 4505 561 62 4505 561
38 4505 609 51 None 63 None
39 None 52 4505 610 64 4505 587
40 None 53 4505 587 65 6190 241
41 4505 587 6040 251 66 4505 587
42 4505 561 54 4505 612 67 4505 587
43 4505 561 55 4505 587 08 4505 607
44 4505 561 56 4505 587 69 4505 561
45 4505 614 57 4505 587 70 4505 613
46 4505 561 58 4505 587 71 None
47 4505 587 59 4505 587
48 4505 561 60 4505 608

[fob 54]
Brooks & Kingons Subdivision

Lot Liber Page Lot Liber Page Lot Liber Page
188 4505 606 194 4505 585 200 4505 587
189 4505 606 195 6040 248 4505 585
190 4505 611 196 4505 585 201 7350 75
191 7358 134 197 7347 480 4505 585
192 4505 .585 198 4505 585 202 4505 615
193 4505 585 199 4505 587 203 4505 585

6020 19 7350 74 240 4505 585

5. All mention herein of liber and page of the recordings 
of all instruments are understood to refer to the records in 
the office of the Register of Deeds for Wayne County, Michi­
gan, unless the context clearly indicates otherwise. All 
mention of “ said block”  is understood to refer to the block 
on Seebaldt Avenue, between Firwood and Beechwood Ave­
nue, in the City of Detroit, Wayne County, Michigan.

Younglove and Chockley, Attorneys for Defendants.



35

[fol. 55] E x h ib it  2

D efen d an ts ’ P re-tbial, S tatem ent

In the Circuit Court for th e  C o u nty  of W ayn e , S tate of 
M ich ig an , in  Chancery

Calendar No. 371,498

B e n ja m in  J. S ipes , et al., Plaintiffs,
v.

Orsel M cG h e e , et al., Defendants

The defendants file herewith their objections to the pro­
posed exhibits of the plaintiffs.

Defendants challenge legality of execution of following 
lots in accordance with Section 13284 and other sections of 
the Compiled Laws of the State of Michigan for the year 
1929.

In Seebaldt’s Subdivision

Deed Recorded in
Lot Nr Liber at Page

36 (N. 30') 4505 587
37 4505 587
41 4505 587
47 4505 587
49 4505 587

[fol. 56]
53 4505 587
56 4505 587
57 4505 587
59 4505 587
61 4505 587
66 4505 587
38 Executed by Executor without 4505 587

authority of Probate Court
68 Executed out of State and no 4505 587

certificate of court of record



36

In Brooks and Kingon’s Subdivision

Deed recorded in
Lot No. Liber at Page

192 4505 585
193 4505 585
194 4505 585
196 4505 585
200 4505 585
203 4505 585
204 4505 585
188 and 189 executed by officers of 

a corporation on behalf of 
corporation

4505 585

[fol. 57] All libers and pages herein mentioned are found
in the office of the Register of Deeds for Wayne County.

Willis M. Graves, Francis M. Dent, Attorneys for 
Defendants.

Business Address: 446 East Warren Avenue, Detroit 1, 
Michigan.



37

/ Exhibits 3 and 4

1 \7>S. > Kd r»5f 5H5
= V iSEP 7  19380//  ̂ KOiA i 

iiAHOLD E. STOLL REWTES

*•# undersigned, oaners o f  jro («r ty  ir  fo±ioslr.g 
subdivision!

brooks and Kingon* Sub. Of K irt o f 
Joseph Tiretar* vat. 1/4 Coca. j .  a 
5J 10CCC A. T. and :-Y*l Sac. 3.
T 8 S R XI S.

fo r  thl purpoao o f deftn lrg, recording and carrying out tna 
gaoere* plan e; ..leva.eying Uia eutuiivtaion anleh baa been 
unifoi-niy recognise* and relieved , u* bars by agrao altji each 
otner that tna ftJ tw in g  rae»v-ictton be lryov*; ofi our 
property in said nubdlvlaion, to rawata in Torca unt'ii 
January l e t , 1B0C, to run v>ui u n  >r«  so ba birdiyg m
our h eir* , avecutorlr sr if asdlr y s i1

■This property snail, not ba US*d o r  occupied by any parson 
or peraora excoyt those o f  the Caucasian race.-, 
is  i t  form er a fra ad that tn la fb strta tlon  shall rot ba 
afreet lire tiriaas at *eaat eighty'percent o f  Um  property < 
fronting on both sides of the abraot in tne block share 
our lard la located la  subjected to  th is or a a trtiar 
raatrietlon .
IK MTKSSs "iiEHKOF aa liava harsunts signed our bargs on the 
date re liev in g  our respective • .»...tu r*| l

M  y -

je&t

^4- 'Id n/_





59 38

Exhibits 8 4

(Continued)

.** 4505 wa?580
>/UJ 11 l/v. joJL "ii'-jft

A*re#»#nt rocerdinu r e f l a t i o n  on gy^
that
■Site property sh ell not be *MS' or  oeeui’toA fcy any pet-eon or 

one except * “persona except those o f  toe Ceuanoiun r.-.o**,

JUB • US.JLis.
....JU bz. ± / k U jy

J jJ L .

A J J L . £ / & ./ *?

tS toJ E r. * 6 3 , A j/a^L x-Y -

JUS.., J M -J J -L

J J A - JL/*/ A * L
dtt& p*- eZ ■ / p j -e

2*2/ - s y
?<?

is S ^ L h AV fT f■**&uka:.1Lro JzJLLil.

of )
-2V.7 of "lym J 8 Z ?£ U  ^

fata *rtr<rft« c£jcA j^2^ .
”  ^™ teertVee*Si!l iL **5 '*  f*lA 3060171 erpeered

bT ^ !  eaJoiowledce that

■ 3 - 7 - i V
of tot -efeoea wests 

they togeeri toe tens e* to* sets set 
tiuti hstph  mb n c

_ o t* r* '-- it l ia  -  'Xi'a* V o e n t y i l / lo h ,«t*d««tOT expire* .r^ io,Use.





60 39

Exhibits ,'i and 4
(Continued)

slp t

31?
ill SLP T  
HAROLD E. STOU.

t U.VJirt

*•. the undersigned, eenere of p r o p e r t y  in Dm following 
sebdleietom

for tt* parpoqo u  to . '.  ra e o n i . j  ant eeorrylna oat the
general plan off d*\v> - c > . . t r i a l  wniea bee boon
uniforaly recognised t-.J f o l i c * . - «• hereby t i n t  e lth  eaoh 
other that the fo lloa ln g  r o i t r u t t n  M  tappm* on oar 
property in M i l  M M lT lilen , to r o u te  In forea ant 11 
January lo t ,  1*60, to  ran with the Infttf W ^ t*  ho binding on 
mr heirs, oxcoutor* m i » oat gnat

*1hlo property she**, w .  oo need or oeoupted by m y person 
persona exoept thorn or tae Canoeslan r * t r .
1« farther agreed that th is rastrletlon  r ia it  net he 

a ffoetlre  anlosa at loast eighty poroent o f  uw property 
fronting on both sides o f  the street la  She t i es* shore our 
Isas is  lee at o«  ia  sabjaotoS to  th is  ar a a la lia r  root r io t  ton.

at hXIMXM. M a jo r  «o were hereunto alffio* e«r  a im s  on the 
date following ear rorpoevj.ee aignatnree.

M Sort. No. 11 A »  tfmo g. Ju *»* hft Sea
i l i l i t l l

wajuj jn> u  «.a p  m > »o
ioihollu sms .4 ,«rt el *•*» i iw ** Ba

3T, -  MQa -  01 ir -b -3 *





61 40

w  isos

M iiM ti 3 aad 4 

(Continued)

Agreesent ro censing reetrta iion  on Seeu id t  subdivieion.

th*t ^ '^ ° 4 i ! 5 T i ,5rX x ^ ':rt* * 3,e* u • M l0^ ° A- ••
■Qile jsrapeifty sis a il  r o t  b$ need or eooupiog by any person m  
perseas sw ept (hope @g *&* Ceuoastan raoe*.

<U jû u .\ ’16JU ^

'\QtAA>L*m J?

loL C gtsi/  >

&

_*>rs
fi&SL
a / o t / f * ?

* .l J/ a i  > 3 ^
^ /je  -  J r '

#1 y%.i /m-

j *

u •s~/,/a*t *

¥ 7 / r 7* * #

* r I fU m -L f*  J * .  ’
T 7

g----- 'Jj.— <£/  / 7 w ^ ,

&ii_

S 3

A *^ r  J /

#L slm



in



62 41

/.c*r * t rrcr.t r * r l  in ^  r t . W r .  U n  < . 
' h o t

•*tl o .  * .  ; i :  .
■Thto p ro p e r ly  a h u ll  not K  us.*"! . , : ,4 u  a:-.y | > r o T  or
p lroona  *xc . ;-t ' . .k j , - f  thi ?•. , „ s t .

> . \ ' .-lliZ---

n * ' •’ /

3UU •* ' * ’ mi)■’•O -t • -» !

f L'm

• •' *> f a *-
’ I ,T

8 .T . NWCA-PJ 1 2 -o -J J





42
63

Exhibits :! ;inri 4 

(Continued |

n c <.TOt L REjSJSTCR 14/4 45290
t i

'•IV .
utMtO E- STOLE. RlWSTCR

We^ths undarsljtad, owner* of the .'o llo -jii^  deaoribad i r a t  
;roperty: , ,  tc.».

_  l . - £ 2- H ita llti  Sub. *f Part af
h m *  n m n  m l  v* ®i » •• xg(M0  k r i t ' f  i n . 1 , 1 1 1 , 1  us..

for the .'urpoee o f d*fInin ;, reeordln ., end carrying 
,5JfVf‘N johsral r lan o f dsvelo, In th* vu’ dlvlnlon 

• Witts had Seen u n lfo r ily  roeojnlrad and follow ed, do 
h*r*Vy »  ? n  that th* f o l l o - l n ;  restr iction  b* iepooed 
on our property abovo described, to rtnaln in foro* 
until January l o t .  1950 -  to  run with the lend, end 
to b* binding on ear h e irs , executors, and acel .-nc:
■This property shall net be used sr  occupied by any 
person or persons except those o f  th* Caucasian raee*
H is further ajreed that th is re str iction  shall not 
be effective unless at least eighty percent o f th* 
property fronting on both sides o f th* street in the 
bloel: share our lead is  located is  subjected to thl* 
or a SUiller r e s tr ic t io n .

® W1THISS JHOilor wo ha vs hereunto set our hands and 
seals thi*_s*-flday o f  Jv*------ . a . p. 1934.
•Ijesd, scaled, and 
•tflrorad In prase nee oft,•ollvered in prase nee o ft  j

'h 'in f  u r  / f r r i f  -

\JUkrvJ

\dni4JL 
WAn 0P_2ZKfidLi

T
comm or
On thl 
before U - ____A • P. 1924,

and fo r  eaId County,

— Hi iftf r> c o  

•-JU ? ' "ley of
» c , e Mo lory ^ b O T T n ___. . .  ____________ , ,

t f r t o n e l l y  s - p e a r e d  ~

J- ' t-' be the Bane . r n o n e  d e n c r l l i " d  T n V r ld ' jK o
■•■'•'t! 1 t  li.. U h l  i lr.e t rtrr.e .it * i the :.  s e e j r . l l y  

•L ' •! •» 1 f - e  ea-.t, to  be t h e i r  f r . .  a c t  and d i e d .

-A* -<■:

U d

o tary Pur 11 o

o o r .- . t> 8 i ^ n  e x p i r e s .

County , l t i > i





Ex
hi

bi
t 

8

BROOKS » KINCONS SUB.
OT

I - K r T * /  i J o - S E F ’ H ^ I l R E . N T A K S  E 6 T A T E . T  S E C T I O N S  M 9  5 1 ^ 5 2 ,

lo.ooo a T - . j F r a c t i o n a l ,  S E , c r r t o i s i  2> - T Z 5 R . i l  E\
D E T R o r r ,  C o .  > r i c w i ^ A J < r .

CD









/
66 45

Extobfl' 10
C803559

>**-.* —  «

‘Me f« H  IHipO
ian788i ns: 35

flifr; fttHestissir*, M®4s this......3M h............................. ......................^  «g

JalSBfe*.!...........  is ths r*T  rf rar Lord eat theaatad aias haadrad u d  .XVC^S.SW U____

gawese A,....Jo«.chl»...n*fl.. Holon-M. a«ash i»r h l» a l-f .,..... ..................
Bf..* fi8 6 ..3 .«« ll» ld t...A * ftn u a .,..J a tro l^  * « ? m  -CatHrty , n is h lg M ,... ...........v
........ .....................  parti a a ( i  ths in *  p u t

. . . . . . . Q>.M...wA.Jia8ftl»..fl...Jta..(tt«*»..M*..«ix» .. '
of &̂ 6 lre»«^ _AT«rus - .....

■yfg0$l-gfriL  (^ t t M s f  the sseoad partN4V
ttat the aaid pan iog of the fast p u t ter and fa rtapdsn elaa cf the tan  of

_9M.JBaU.iT M 1..QQ1...M & »J J ig £ .a »od ...* j»d ...*a ln »lilg ..fian a A jagxatA .on g
• ..ttWh. it hand paid by tht said partigS sf ths aacoad part tht m e Ip  whereof it hereby raa-

head tad wkaearledged, da...... by these pretests, g n a t bargaia, tell, remise, release, ahra aed
enlra eato raid ptrdaa m the teeead part aad.. tiO JU h»l* ~ h a h s  tad aadgas. fa r m , all

.IS # !.... errtaia piece......or panel....... of load eitoats sad being ia th t............. ............................ of
................ M *X»X% ....... coaaty e f ......... ,„ « U M ....- ................- .......... -  aad Matt at Mkhlgea,

tt M om , to w it:..id J \ ..M rS j.rJ «a * ...l.»8 J ....O f..5 *»l«a «.r.J I S H ta U .n tlp n
jw t..a t. Jo»tBh T IM M a '.j .. 8it»t«.,...4u»x.t«r.-«hettaap...liftjr-.Qa» .1511

|1 gQdtloB three (5 ) ,  town Tao UU....*»S$6a...t#»«!...*l»$«». (M l •••>, 
jUMSZAlnc Vo vb*...sl#i Uwm arx»aar.4*A..ia..lJltair..T»*atj..fl«Ma...l*.7.1. 
j lX . J l i l i  on jH U P .X M .rlj lo u r  (M le . IhJTM. Catm tj .Jdi cflrfl**.. *n4..J«J«
^Wfunly knou  u..Buabs> U U  S ettaU t iftM ie  r S tW eU , tthahlgag.

\ 1!■ • \
i j

f— 1
i 1
I_____J

r ~ i

“ 1

.P.EC.. 1 .  i fc U U

Tepther with ell eod singular the hereditaments and apporteeiaaon thereto bdoogiDg or In eejw i*. 
‘fvanlaiag; Te haee aad te hold tht aaid praatetb at hereia dteerfleed, P th  the appuneeaocee
* *  the etld part lo g o i tht ascoad pan, tad ta.......M W A*.................htbe tad eetigne, Fnreeer:
-dthenld . K t e t  A- 7t»<>h|» Wtl..8sl.*9..|l..... J oa th l* . h la . trtfa
Hrd.u at **  grM ^  t h e i r ................. heirs, easeetore ead adadniatreton, do coy- ji

mat. great bargain tad egne to tad with the said parting, ef the eacoad partti..lrueire ead ,) 
that et the tine of the eaeaaBag aad dshepy af then preeaan h l t a y e r t  j!

**ttd ¥  the eboewgraattd pen ileal la In  simple; that they are free (ton all lorumbrencee whetrert !j 
— P  each, h ̂  ^  m  ppepad lean the certa in  IntlaiaHg, aad that ....tin  jr will, end*.-toi~ ij

?

f
\
s

m3or
m
f
faa
9
ma
3
1
3





67 46

u»

sn

iW8*®**3®
Exhibit 10 

(Continued)

Wn.i

5ubl*.elL...ta..julatlu.T«am.oM1aM..ju...aC.x«.eani...

• *•“ w*Tf **'*#•* *lf#» <5;

lDwitMH«riH>M(ilHMi4fu t . l « a  e (« h « ta lp u th * v a  bcrcestoMt tlxair bud a ... awl 

JifiSiEM l» Um lay mad y*er feet above w ilb a

SifMd, m M  awl feihraretf to preeeoce o<

ir@*
Stitt of Michigan, |
Cooatjr of.......■‘.*7®.®........ ....... ,......... ]***

0 »  * l t ..........3 M I ..............toy of
in the year oo« tbo«M»d tint famfet* tad f o r t ?  fOUT...............................
• Notify Public, in iwl for stM ewwty, porootafly uppoorod JPIC.felfl. ftM.
8®. ft.. ... J.9.P c h i a  j  h i  t  % 1 f  e ,

to at kaovt to tt  A t g

\

ft
1;;
•U

,h“  *c»«w»hawi «• Mtte »  to jjfca u u l

*y cowteiMfe. W fto o ^ ljS b . S fcS fjH S r
Hottuy P«Uk

—roo» f i d »K-0|t

■ M u m
• gi I 330 w«

h:ih UMOOO 3N. »•
■"'»Al303fc

S i f t i l
M i l

t 1 i  - i i t  
i l l  j| ?

n m f o
p 1 $ z j  < t e





68 47

Exhibit 15

a r n o n  o e r A r r s w r  m mus*
Strlilor. of TIU1 Statistics

ruci or kiste UCHIOA5
HCFAKTHE.'iT OF HEALTH
WriaiHH 9 t  VIIhI •(•OiatWo

B2I3A 10-11 -17—30000

! *>-•' / car-. ify  \*>«v tho fo r o jo l t s j  
'*» ^tro '.t ^ a v ts a n t  of

Htil

la B tw o so IP « f  t*i« I'M! or A n  « '





69

“ “ “  <
STATE OF MICHIGAN

AFFIDAVIT FO R LICENSE TO M ARRY

STATE OF MICH IQ AX 

COUNTY OF WAYNE

i
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50



51

Opinion  of th e  C ourt— Filed August 23,1945
This is a bill to enjoin violation of reciprocal negative 

easements against occupation by persons not of the Cau­
casian race. The restrictions were created by mutual agree­
ments among owners after Subdivision. It is conceded that 
defendants are not of that race, but it is claimed that there 
are reasons preventing enforcement.

I
It is claimed that several acknowledgements are defective.
One is of an outstate execution before a notary with seal. 

This is expressly authorized by Section 26,604, Michigan 
Statutes Annotated.

Again, an agreement by the officers of a corporation within 
the apparent scope of their authority is valid as against 
mere irregularities. There is no proof that the corporate 
covenants were executed without authority. These cove­
nants were executed in 1934 and 1935, have been relied upon 
till now and the parties are barred by laches and estopped 
from now questioning the technical correctness of their 
execution.

Defendants rely on Moore v. Kimball 291 Mich. 455.
That case does not support them. It merely holds that 

a restriction which by its term ran for 25 years expired in 
25 years, a very reasonable conclusion.
[fol. 72] Finally mutual covenants are founded on mutual 
considerations. Each covenantor agrees with all the coven­
antors.

II
These agreements are recorded. Each lot owner had 

notice of them thereby. In terms they run with the land, and 
are binding on heirs, executors, and assigns. They are not 
mere personal^/ covenants. Each purchaser wha takes sub­
ject to such negative restrictive easements agrees with all 
others subject to them that he will observe them. This ap­
plies not only to such easements as this, but to all others, as 
for example, restrictions to residential purposes; to brick or 
stone houses; to building line restrictions, to those forbid­
ding saloons, gambling, factories, livery stables, and so on 
through the long list of restrictions, all limiting the use of 
property, and all held valid.

4—87

[fol. 71] In Cikcuit Court op Wayne County



52

III IV V
This restriction does not violate either the Federal or the 

State Constitution. This court is bound on that point by:
Paramalee v. Morris, 218 Mich. 625 
Schulte v. Starks, 238 Mich. 102 
Corrigan v. Buckley, 271U. S. 323

The restriction which is invalid is one preventing aliena­
tion to any person or class of persons entitled to hold inter­
ests in land. Porter v. Barrett, 233 Mich. 374.

The other points in question are ruled by the following 
cases:

Erickson v. Tapert, 127 Mich. 457 
Allen v. Detroit, 167 Mich. 464 
[fol. 73] Northwertern Home Ownes v. Sheehan, 310 

Mich. 188
Wilcox v. Mueller, 250 Mich. 167 
Moreton v. Palmer, 239 Mich. 409

Decree may enter for plaintiffs with costs to be taxed.
Guy A. Miller, Circuit Judge,

Dated: August 22, 1945.

[ fo l . 74] I n C ir cu it  Court of W atn e  C ou nty

D ecree:— Filed August 29, 1945
At a session of said court, held in the Wayne County 

Building, in the City of Detroit, said County and State, on 
this 29th day of August, A. D. 1945.

Present: The Hon. Guy A. Miller, Circuit Judge.
This case came on to be heard upon the pleadings and 

proofs taken in open court and was argued by counsel for 
the respective parties, and the court being fully advised in 
the premises and upon due consideration thereof, finds 
that all the material allegations in the bill of complaint are 
true as therein stated.

The court further finds that the property known as Lot 
No. 52 of Seebaldt’s Subdivision, located on the north side 
of Seebaldt Avenue, between Firwood and Beechwood Ave­



53

nues, in the City of Detroit, Michigan, and commonly known 
as 4626 Seebaldt Avenue, is restricted as follows:

“ This property shall not be used or occupied by any 
person or persons except those of the Caucasian race;”

that defendants, Orsel McGhee and Minnie S. McGhee, his 
wife, are not of the Caucasian race but are of the colored or 
Negro race; that defendants purchased said property with 
full knowledge of said restriction and are now using and 
occupying it as their residence, in violation of the above 
quoted restriction, which was placed upon said property and 
[fol. 75] duly recorded in the Office of the Wayne County 
Register of Deeds many years prior to the date said de­
fendant acquired the property.

On motion of Lloyd T. Chockley, attorney for plaintiffs, 
It is Ordered, Adjudged and Decreed that defendants 

Orsel McGhee and Minnie S. McGhee, within 90 days from 
the date hereof move from said property, and that there­
after said defendants be and they are hereby restrained and 
enjoined from using or occupying said premises, and 

It Is Further Ordered, Adjudged and Decreed that after 
the expiration of 90 days from the date hereof that said 
defendants and all persons claiming through or under them 
be and they are hereby restrained and enjoined from violat­
ing the above restriction and from permitting or suffering 
said premises to be used or occupied by any person or per­
sons excepting those of the Caucasian race, and 

The particular description of the property hereinabove 
mentioned and referred to is as follows:

Lot No. 52 Seebaldt’s Subdivision of part of Joseph 
Tireman Estate, Quarter Sections 51 and 52, Ten Thou­
sand Acre Tract and Fractional Section 3, Town 2 
South, Range 11 East, in the City of Detroit, Wayne 
County, Michigan, according to the plat thereof re­
corded in the Office of the Register of Deeds for Wayne 
County, Michigan, in Liber 27 of Plats, at page 34; 
commonly known as 4626 Seebaldt Avenue, Detroit, 
Michigan.

(Signed) Guy A. Miller, Circuit Judge.



54

M otion to S et A side, D ecree,—Filed October 26, 1945
Now come the defendants, Orsel McGhee and Minnie g, 

McGhee, his wife, by their attorneys, Willis M. Graves and 
Francis M. Dent, and move the court to grant a rehearing in 
the above matter, and to vacate and set aside the decree 
heretofore entered, for the following reasons:

1. Because there is no valid proof of record that the de­
fendants are not of the Caucasian Race.

2. Because 80% of the property in question was not 
validly restricted.

3. Because the general plan of developing the subdivision 
included a large number of persons not members of the 
Caucasian Race as shown by the testimony.

4. Because the court did not follow the rule of construc­
tion in interpreting the restriction against use of the prop­
erty as laid down by the Supreme Court of the State of 
Michigan.

5. Because the restriction itself is a clear violation of 
Article 2, 'Section 16, of the Constitution of the State of 
Michigan.

6. Because an enforcement of a restriction of this kind 
would in itself be a violation of the 14th Amendment of the 
United States Constitution.

[fol. 77] This application and motion is based upon the 
files and records in the above entitled cause, and the affidavit 
of Francis M. Dent, hereto attached.

Willis M. Graves, 446 E. Warren Avenue, Detroit 1, 
Michigan; Francis M. Dent, 4256 Russell Street, 
Detroit 7, Michigan, Attorneys for Defendants.

[ f o l .  76] I n  C ir c u it  C o u r t  or  W a y n e * C o u n t y

Dated: Oct. 26, 1945.



55

[fol. 78] A ffidavit A ttached  to M otion to S et A side
D ecree

C o u n t y  of  W a y n e , s s  :

Francis M. Dent, being duly sworn, deposes and says that 
he was one of the trial attorneys for the defendants in the 
above entitled cause, and that he is familiar with the evi­
dence and believes that the matter as set out in the motion 
and application for a rehearing are true. Deponent further 
believes that certain cases and law not cited by the court or 
by the plaintiffs are decisive in this matter and for that 
reason, he believes that the defendants are entitled to a re­
hearing.

Further, deponent saith not.
Francis M. Dent, Deponent.

Subscribed and sworn to before me this 26th day of 
October, A.D. 1945. (Signed) Herbert L. Dudley, 
Notary Public, Wayne County, Mich. My commis­
sion expires 5-31-49.

[fol. 79] I n Circu it  Court of W ayn e  C ou nty

Opinion on M otion for R ehearing—Filed November 13,
1945

Five reasons for this motion were given upon the argu­
ment.

I. That plaintiffs did not prove defendants were not of 
the Caucasian race.

Plaintiffs produced photostatic copies of public records 
relating to the marriage license and marriage of defendants. 
These show that they described themselves as of the Negro 
race. These records are admissible as evidence of transac­
tions in the business of the office of County Clerk, and con­
stitute an admission by defendants. They were in court and 
did not take the stand. If they wish to do so they may until 
November 17, 1945. However, as the evidence now stands, 
a prima facie case has been made. I do not remember that 
defendants denied being of the Negro race, in their Answer.

II, III, and IV are merely restatements of arguments 
made on the trial and are adequately covered by the previous 
decision.



56

V : That the restriction in question violates the Federal 
and State Constitutions.

That it does not is conclusively established by
Corrigan v. Buckley, 271 U. S. 322;
Porter v. Barrett, 233 Mich. 374.

I have examined the cases cited by defendants. It is nec- 
[fol. 80] essary only to say that none of them is in point, and 
none is inconsistent with the decisions above cited. Those 
decisions are conclusive of the law of the United States 
and of this State.

Motion denied except as indicated.
Guy A. Miller, Circuit Judge,

Dated:

I n C ircu it  C ourt W ayne  C ou nty

Order D en yin g  R ehearing— Filed November 16, 1945
Defendants’ motion for a rehearing of the above entitled 

cause came on to be heard and the court, after hearing the 
arguments of counsel for the respective parties and having 
given careful consideration to the brief submitted by coun­
sel for defendants, finds no merit in the motion and it is

Ordered that said motion be and it is hereby denied.
Guy A. Miller, Circuit Judge,

A  true copy, Caspar J. Lingeman, Clerk, By Elizabeth 
Holder, Deputy Clerk.



57

Order Granting L eave to A ppeal— Filed January 28, 1946
At a session of the Supreme Court of the State of Michi­

gan, held at the Supreme Court Boom, in the Capitol, in the 
City of Lansing, on the tenth day of January, in the year of 
our Lord one thousand nine hundred and forty-sis.

Present: The Honorable Henry M. Butzel, Chief Justice, 
Leland W. Carr, George E. Bushnell, Edward M. Sharpe, 
Emerson R. Boyles, Neil E. Reid, Walter H. North, Ray­
mond W. Starr, Associate Justices.

Calendar No. 43271 

B en jam in  S. S ipes, et al., Plaintiffs, 

v.

Orsel M cG h ee , et al., Defendants and Appellants

In this cause an application is filed by defendants for 
leave to appeal from the decree of the Circuit Court for the 
County of Wayne, in Chancery, and a motion to dismiss said 
application and a brief in opposition to the application 
having been had by the court, It is ordered that the applica­
tion be and the same is hereby granted. It is further ordered 
that the stay order issued herein on December 5, 1945, be 
and the same is hereby continued in full force and effect until 
the further order of this court.

[fol. 82] Clerk’s Certificate to foregoing paper omitted in 
printing.

[fol. 81] In C i r c u i t  C o u r t  o f  W a y n e  C o u n t y

[fol. 83] I n Circuit C ourt of W ayne  C ounty

Claim  of A ppeal— Filed January 28, 1946

Orsel McGhee and Minnie S. McGhee, defendants in the 
above entitled cause, claim appeal from the Decree and 
Order Denying a Re-Hearing, dated November 16,1945, by



58

the Honorable Guy A. Miller, one of the judges of the 
Wayne Circuit Court,

Appellants take general appeal.
Francis M. Dent, 4256 Russell Street, Detroit 7, 

Michigan. Willis M. Graves, 446 East Warren 
Avenue, Detroit 1, Michigan, Attorneys for Ap­
pellants.

Dated: January 28,1946.

[fol. 84] Isr C ircuit  C ourt on W ayn e  Cou nty  

S tipu lation  as to P rinted  R ecord 

It is hereby stipulated that:
1. The printed record on the appeal herein shall con­

sist o f :
Calendar Entries
Bill of Complaint
Defendant’s Answer
Plaintiff’s Pre-Trial Statement
Pre-Trial Statement signed by Judge Chenot
Defendants’ Pre-Trial Statement
Amended Answer to Bill of Complaint
Pre-Trial Statement by Judge Jayne
Opinion of Court
Decree
Motion for Re-Hearing
Opinion on Motion
Order Denying Motion
Order Granting Leave to Appeal
Claim of Appeal
Settled Case on Appeal
Statement of Reasons and Grounds of Appeal
This Stipulation.

2. Any claimed mistakes in the printed record shall he 
settled by the original files and record and the edited tran­
script and exhibits used in preparing the printed record.



59

[fol. 85] 3. All orders extending time for appeal and serv­
ice thereof were duly and timely made.

Younglove and Chockley, Attorneys for Plaintiffs. 
Willis M. Graves and Francis M. Dent, Attorneys 
for Defendants

Dated: --------- -------- .

It is hereby stipulated that all papers requiring service 
have been duly and timely served and that all exhibits bear 
the proper certifications.

Lloyd T. Chockley of Younglove & Chockley, Attor­
neys for Plaintiffs and Appellees. Willis M. 
Graves and Francis M. Dent, Attorneys for De­
fendants and Appellants.

[fol. 86] l x  Circu it  C ourt of W ayne  C ounty

Certificate of C ourt—Filed April 9,1946
I, Guy A. Miller, Circuit Judge, hereby settle the fore­

going case which sets forth the substance of all the material 
testimony taken at, and all of the proceedings during, the 
hearing resulting in the decree of August 29,1945, appealed 
from, including testimony and exhibits taken on separate 
record.

I further certify that as to the testimony as set forth in 
full by question and answer, the same are so incorporated 
because I deem same to be necessary to a full understanding 
of the questions involved.

Guy A. Miller, Circuit Judge.

We consent to the settlement of the foregoing as the 
settled case on appeal and waive notice of settling and sign­
ing same.

Younglove and Chockley, Attorneys for Plaintiffs 
and Appellees. Wallis M. Graves and Francis M. 
Dent, Attorneys for Defendants and Appellants.

_A true copy: Caspar J. Lingeman, Clerk, by Victor L. 
Hicks, Deputy Clerk.

Dated at Detroit, Michigan, this 9th day of April, 1946.



60

B e n ja m in  J. S ipes and A n n a  C. S ipes, J am es A . C oon and 
A hdie A . C oon, et al.,

v.
Orsel M cG hee and M in n ie  S. M cG h e e , His Wife, 

Defendants-Appellants

Before the Entire Bench 

O pin io n — Filed January 7, 1947 

B u sh n ell , J .:
Plaintiffs Benjamin J. Sipes, Anna C. Sipes, and others 

own and occupy property located in Seebaldt’s subdivision 
and Brooks and Kingon’s subdivision on Seebaldt avenue, 
between Firwood and Beechwood avenues, in the City of 
Detroit.

Defendants Orsel McGhee and Minnie S. McGhee, his 
wife, own and occupy property located on the same street 
in Seebaldt’s subdivision. All of the properties occupied 
by the parties hereto are encumbered by the following re­
corded covenant:

“ This property shall not be used or occupied by any 
person or persons except those of the Caucasian race.”

Defendants seek reversal of a decree upholding and en­
forcing this restriction. In order to obtain that result, this 
court is asked to overrule its holding in Parmalee v. Morris, 
218 Mich. 625, (38 A. L. R. p. 1180) where a restriction was 
upheld, which read:

‘ ‘ Said lot shall not be occupied by a colored person, nor 
for the purposes of doing a liquor business thereon.”

The questions involved in defendants’ appeal concern 
the execution of recorded instruments relied upon by plain­
tiffs, the proof of racial indentity of the defendants, and 
the uncertainty of the language of the covenant and its 
validity.
[fol. 88] Originally there were no racial restrictions af­
fecting the property in question. Subsequently, certain 
property owners, in the block in which defendants’ home is

[ f o l .  87] I n  S u p r e m e  C o u r t  o f  M ic h ig a n



61

located, entered into mutual agreements imposing the above 
quoted restrictions. These various agreements were re­
corded in the office of the register of deeds of Wayne County 
on September 7, 1935. The agreements provide that the 
restriction in question should not be effective unless at least 
80 per cent of the property fronting on both sides of the 
street in the block is subjected “ to this or a similar restric­
tion.”  The deed running to defendants, which is dated 
November 30, 1944, and recorded on December 1, 1944, is 
“ subject to existing restrictions as of record.”

The testimony taken was not extensive and decision turns 
here, as it did in the circuit court, principally on legal'ques­
tions. The main factual issue was with respect to the racial 
identity of the defendants. Sipes testified, over objections 
as to his qualifications as an expert, that defendants and 
their two sons are colored people. On cross-examination, 
he testified:

“ I have seen Mr. McGhee, and he appears to have colored 
features. They are more darker than mine. I haven’t got 
near enough to the man to recognize his eyes. I have seen 
Mrs. McGhee, and she appears to be the mullat-o type.”

Defendants did not take the witness stand, and the only 
testimony produced in their behalf was that of Dr. Norman 
Humphrey, an assistant professor of Sociology and An­
thropology at Wayne University. He expressed the opinion 
that there is no simple way in which to determine whether 
a man is a member of the Mongoloid, Caucasoid, or Negroid 
race. He explained that such classifications are very diffi­
cult and cannot be determined without scientific tests. 
Melvin Tumin, an instructor in the same department, stated 
that he agreed with the testimony of Dr. Humphrey.

The trial judge did not mention this subject in the written 
opinion which he filed, but the circuit court decree contains 
a finding—
‘that defendants, Orsel McGhee and Minnie S. McGhee, his 

wife, are not of the Caucasian race but are of the colored or 
Negro race.”
[fob 89] The testimony of Sipes is sufficient to sustain this 
finding. See People v. Dean, 14 Mich. 406, 423.

Appellants claim that the restrictive agreement was not 
pioperly executed by at least 80 per cent of the property 
owners in the block. The signature of one of the property



62

owners was acknowledged before a notary public in Indiana, 
There is no certificate of the clerk of the court or the secre­
tary of state of Indiana attached showing that the notary 
public who executed the acknowledgment had authority to 
do so on the date mentioned.

Under the uniform acknowledgment act (3 Comp. Laws 
1929, 13333, Stat. Ann. 26.604) it was held in Reid v. By. 
lander, 270 Mich. 263, that such certificate was not neces­
sary, the notary’s seal of office being sufficient.

Defendants also question the validity of the group ac­
knowledgments, and the authority of certain corporate 
officers to execute the restrictive agreement. Our de-novo 
examination of the recorded instruments discloses that they 
were properly executed and acknowledged by the owners 
of more than 80 per cent of the property covered by the 
restriction.

The policy was early established in this State that courts 
will uphold acknowledgments wherever possible and will 
not suffer conveyances or proof of them to be defeated hy 
technical or unsubstantial objections. See Morse v. Hewett, 
28 Mich. 481; Nelson v. Graff, 44 Mich. 433; King v. Merritt, 
67 Mich. 194; and Carpenter v. Dexter, 8 Wall. 513 (75 
L. Ed. 426).

Appellants argue that the restriction under considera­
tion is void for uncertainty. This argument is based upon 
the following quotation from in the Matter of the Applica­
tion of Drummond Wren, Supreme Court of Ontario, No, 
669-45, decided in October, 1945, where that trial court held 
that the phrase, “ Land not to be sold to Jews or persons of 
objectionable nationality,”  was too indefinite to be enforce­
able. Mr. Justice Mackay said in that case:

‘ ‘ Counsel for the applicant contended before me that the 
restrictive covenant here in question is void for uncertainty. 
So far as the words ‘ persons of objectionable nationality’ 
are concerned, the contention admits of no contradiction. 
The conveyancer who used these words surely must have 
realized, if he had given the matter any thought, that no 
[fol. 90] court could conceivably find legal meaning in such 
vagueness. So far as the first branch of the covenant is 
concerned, that prohibiting the sale of the land to ‘Jews,’ 
I am bound by the recent decision of the House of Lords in 
Clayton v. Ramaden, (1943) 1 All. E. R. 16, to hold that the 
covenants is in this respect also void for uncertainty; and



63

I may add, that I would so hold even if the matter were res 
Integra. The Law Lords in Clayton v. Ramsden were 
unanimous in holding that the phrase ‘ Jewish parentage’ 
was uncertain and Lord Romer was of the same opinion in 
regard to the phrase ‘ of Jewish faith.’ I do not see that 
the bare term ‘ Jews’ admits of any more certainty.”

This observation could not be made concerning the lan­
guage of the restriction now under consideration. It is 
difficult to see how language could be more certain than that 
employed, i. e., “ This property shall not be used or occupied 
by any person or persons except those of the Caucasian 
race.”

No one could contend either that persons of the Mon­
goloid or Negroid races are embraced within the term 
“ Caucasian,”  or that this term does not specifically exclude 
all other races. The covenant in question is not void on the 
ground that it is uncertain.

The principle that contracts in contravention of public 
policy are not enforceable should be applied with caution, 
and only in cases plainly within the reasons on which that 
doctrine rests. Skutt v. City of Grand Rapids, 275 Mich. 
258, 264. In this same case this court adopted the meaning 
of public policy from Pittsburgh, C. C. & St. L. R. Co. v. 
Kinney, 95 Ohio St. 64 (115 N. E. 505, L. R, A. 1917D, 641, 
643, Ann. Cas. 1918 B, 286) :

“ What is the meaning of ‘ public policy!’ A correct defi­
nition, at once concise and comprehensive, of the words 
‘public policy,’ has not yet been formulated by our courts. 
Indeed, the term is as difficult to define with accuracy as 
the word ‘ fraud’ or the term ‘ public welfare.’ In sub­
stance, it may be said to be the community common sense 
and common conscience, extended and applied throughout 
the State to matters of public morals, public health, public 
safety, public welfare, and the like. It is that general and 
well-settled public opinion relating to man’s plain palpable 
[fol. 91] duty to his fellow man, having due regard to all 
the circumstances of each particular relation and situation.

“  ‘ Sometimes such public policy is declared by Consti­
tution; sometimes by statute; sometimes by judicial deci­
sion. More often, however, it abides only in the customs 
and conventions of the people,—in their clear conscious­
ness and conviction of what is naturally and inherently



64

just and right between man and man. It regards the prf. 
mary principles of equity and justice and is sometimes ex- 
pressed under the title of social and industrial justice, as 
it is conceived by our body politic. When a course of con­
duct is emd or shocking to the average man’s conception 
of justice, such course of conduct must be held to be ob­
viously contrary to public policy, though such policy has 
never been so written in the bond, whether it be Constitu­
tion, statute or decree of court. It has frequently been 
said that such public policy is a composite of constitutional 
provisions, statutes and judicial decisions, and some courts 
have gone so far as to hold that it is limited to these. Tie 
obvious fallacy of such a conclusion is quite apparent from 
the most superficial examination. When a contract is con­
trary to some provision of the Constitution, we say it is 
prohibited by a statute, not by a public policy. When a 
contract is contrary to a settled line of judicial decisions, 
we say it is prohibited by the law of the land, but we do not 
says it is contrary to public policy. Public policy is the 
cornerstone—the foundation—of all Constitutions, statutes, 
and judicial decisions, and its latitude and longitude, its 
height and its depth, greater than any or all of them. If 
this be not true, whence came the first judicial decision on 
matter of public policy? There was no precedent for it, 
else it would not have been the first. ’ ”

The public policy of this state as to racial discrimination 
has been expressed in various ways. In chapter 21 of the 
penal code the Civil Rights sections prohibit such dis­
criminations in public educational institutions and places 
of public accommodation, amusement, and recreation, 
146-148 of Act No. 328, Pub. Acts 1931, (Stat. Ann. 28.343- 
28.345) and Ferguson v. Gies, 82 Mich. 358, and Bolden?. 
Grand Rapids Operating Corp., 239 Mich. 318.

Discrimination by State Mental institutions and in the 
public schools because of race or color is prohibited by 
statute. 2 Comp. Laws 1929, 6922 (Stat. Ann. 14.845) 2 
[fol. 92] Comp. Laws 1929, 7156 (1)., Stat. Ann 15.76 and 
2 Comp. Laws 1929, 7368 (Stat. Ann. 15.380).

Life insurance companies doing business in this State 
are prohibited from making any distinction or discrimina­
tion between white and colored persons. 3 Comp. Laws 
1929,12457 (Stat. Ann. 24.293).



65

It is also the public policy of this State, as expressed in 
decisions of this court too numerous to mention, to permit 
and enforce certain restrictions upon the use and occupancy 
of real property. See authorities listed in Callaghan’s 
Michigan Digest, Vol. 3, pp. 371-403.

Restrictions of a contractual nature are valuable prop­
erty rights. They cannot even be taken under the power of 
eminent domain without compensation. Allen v. City of 
Detroit, 167 Mich. 464, and Johnstone v. Detroit, Grand 
Haven & Milwaukee R. R. Co., 245 Mich. 65, (67 A. L. R. 
373). See, also 122 A. L. R. 1464. These rules of property, 
which have existed during most of the life of the State, 
should not be brushed aside in the absence of strong and 
cogent reasons.

As indicated in Dolby v. State Highway Commissioner, 
283 Mich. 609, 615 :

“ A recognized rule of property ought not to be over­
turned without the very best of reasons. Lewis v. Sheldon, 
103 Mich. 102; Pleasant Lake Hills Corp. v. Eppinger, 235 
Mich. 174.”

In Parmalee v. Morris, 218 Mich. 625, it was held that a 
restrictive covenant similar to the one now under consid­
eration was not void as against public policy.

Restrictions against alienation are quite aonther matter. 
This court pointed out the difference in Porter v. Barrett, 
233 Mich. 373 (42 A. L. R. 1267) following the rule enunci­
ated in Mandlebaum v. McDonall, 29 Mich. 78, and held 
that a restriction prohibiting the sale of certain lands “ to 
a colored person”  was void.

The Parmalee and Porter authorities were followed in 
Schulte v. Starks, 238 Mich. 102. See annotations in 66 
A. L. R. at page 531.

Defendants argue that a restriction prohibiting the use 
of property by other than those of the Caucasian race vio­
lates the due process clause of the Constitution of Michi­
gan. (Art. 2, 16) This applicability of this clause was not 
discussed in Parmalee v. Morris, 218 Mich. 625. While we 
[fol. 93] recognize that the concept of “ due process”  is in­
capable of exact definition, yet, ever since Buck v. Sherman, 
2 Doug. 176, we have held that this constitutional right 
means that every person having property rights affected by 
litigation is entitled to notice, and a day in court, or a rea­



66

sonable opportunity to appear and defend his interest. See 
Chrysler Corporation v. Unemployment Compensation 
Commission, 301 Mich. 351, and Dation y. Ford Motor Co., 
314 Mich. 152. Such rights were accorded the defendants 
in the instant case.

It is argued that the restriction in question violates the 
14th Amendment to the Constitution of the United States. 
Appellees say that this argument was answered in Corri­
gan v. Buckley, 271 U. S. 323 (70 L. ed. 969). We so read 
the Corrigan case, although that decision partly turned on 
the inapplicability of the equal protection clause of the 
14th Amendment to the District of Columbia, and the 
appeal was dismissed for want of jurisdiction.

Defendants argue that the language—-
“ No State shall make or enforce any law which shall 
abridge the privileges or immunities 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 pro­
tection of the laws.’ ’ (art. 14, 1 U. S. Const.)

means that the judicial acts of courts of a sovereign state 
are the acts of that state within the constitutional inhibi­
tion. They conclude therefrom that the decree in this cause 
was unconstitutional state action in that it deprived them 
of “ the equal protection of the laws.’ ’ To accept this rea­
soning would also at the same time deny “ the equal protec­
tion of the laws”  to the plaintiffs and prevent the enforce­
ment of their private contracts.

We have never hesitated to set aside a law which was 
repugnant to the equal protection clause of the amendment 
but, on the other hand, we have never applied the constitu­
tional prohibition to private relations and private contracts.

We were recently urged to apply a racial restriction to 
property under a claimed general plan, in Kathan v. Stev­
enson, 307 Mich. 485. This we declined to do. See, also, 
Kathan v. Williams, 309 Mich. 219, and G-ableman v. Depart­
ment of Conservation, 309 Mich 446. We are not aware of 
any decision of courts of last resort, State or Federal, which 
have applied this constitutional prohibition to private agree­
ments containing racial restrictive covenants.

The several amicus curiae briefs indulge in considerable 
[fol. 94] amplification and elaboration upon appellant’s



67

arguments on public policy and the constitutional questions 
involved in this appeal. In addition, these briefs contain 
valuable material with respect to the related social and 
economic problems. We are impressed with the fact that the 
Negro population of Detroit has increased from 40,438 in 
1920 to approximately 210,000 in 1944, and that it then was 
approximately 12 per cent, of the population of the city.

The arguments based on the factual statement pertaining 
to questions of public health, safety and delinquency are 
strong and convincing. However, we must confine our deci­
sion to the matters within the record submitted to us and 
the questions raised in the briefs of the parties to the cause.

It is suggested that the intervention of a World War 
and the declarations of statesmen and international delib­
erative bodies now makes the device of restrictive cove­
nants against minority racial groups a matter of concern 
and public policy rather than that of private contract, as 
was assumed by the court in the Parmalee decision in 1922. 
Some of the briefs go so far as to insist that the declaration 
of the Atlantic Charter and the United Nations’ conference 
at San Francisco are international treaties and have the 
effect of law.

We do not understand it to be a principle of law that 
a treaty between sovereig/m nations is applicable to the 
contractual rights between citizens of the United States 
when a determination of these rights is sought in State 
courts. So far as the instant case is concerned, these pro­
nouncements are merely indicative of a desirable social 
trend and an objective devoutly to be desired by all well­
thinking peoples. These arguments are predicated upon a 
plea for justice rather than the application of the settled 
principles of established law.

We direct attention to the differentiation made by Mr. 
Justice Oran M. Butler, between justice and law, in Duncan 
v. Magette, 25 Tex. 241, 251 decided in 1861. He said:

“ I avail myself of the opportunity afforded by this ap­
plication, to present my own views upon the foundation 
and force of this appeal to the sense of justice of the court, 
whether used as an influencing consideration, in interpret­
ing and enforcing the rules of law, or directly urged as the 
basis of judicial action. A frequent recurrence to first 
[fob 95] principles is absolutely necessary in order to keep 
precedents within the reason of the law.

5—87



6 8

“ Justice is the dictate of rights, according to the com­
mon consent of mankind generally, or of that portion of 
mankind who may he associated in one government, or who 
may be governed by the same principles and morals.

“ Law is a system of rules, conformable, as must be sup­
posed, to this standard, and devised upon an enlarged view 
of _the relations of persons and things, as they practically 
exist. Justice is a chaotic mass of principles. Law is the 
same mass of principles, classified, reduced to order, and 
put in the shape of rules, agreed upon by this ascertained 
common consent. Justice is the virgin gold of the mines, 
that passes for its intrinsic worth in every case, but is sub­
ject to a varying value, according to the scales through 
which is passes. Law is the coin from the mint, with its 
value ascertained and fixed, with the stamp of government 
upon it which insures and denotes its current value.

“ The act of moulding justice into a system of rules de­
tracts from its capacity of abstract adaptation in each par­
ticular case; and the rules of law, when applied to each case, 
are most usually but an approximation to justice. Still, 
mankind have generally thought it better to have their 
rights determined by such a system of rules, than by the 
sense of abstract justice, as determined by any one man, 
or set of men, whose duty it may have been to adjudge them.

“ Whoever undertakes to determine a case solely by Ms 
own notions of its abstract justice, breaks down the bar­
riers by which rules of justice are erected into a system, and 
thereby by annihilates law.

“ A sense of justice, however, must and should have 
an important influence upon every well organized mind in 
the adjudication of causes. Its proper province is to super­
induce an anxious desire to search out and apply, in their 
true spirit, the appropriate rules of law. It cannot be lost 
sight of. In this, it is like the polar star that guides the 
Voyager, although it may not stand over the port of desti­
nation.

“ To follow the dictates of justice, when in harmony with 
the law, must be a pleasure; but to follow the rules of law, 
in their true spirit, to whatever consequences they may 
lead, is a duty. This applies as well to rules establishing 
remedies, as to those establishing rights. These views will) 
[fol. 96] of course, be understood as relating to my own con­
victions of duty, and as being the basis of my own judicial 
action. ’ ’



69

In this appeal we are obliged to differentiate between 
public rights and private or contractual rights. The former 
is unquestionably the responsibility of the State, but the 
action of a State court in requiring or refusing enforce­
ment of private contractual rights is, in our opinion, not 
within the prohibitions of the 14th Amendment. To hold 
otherwise would be to nullify many sta-utory enactments 
.and overrule countless adjudicated cases. The unsettling 
effect of such a determination by this court, without prior 
legislative action or a specific Federal mandate, would be, 
in our judgment, improper.

It is impossible, within the confines of this opinion, to 
distinguish and differentiate the numerous authorities cited 
pro and con in the various briefs. We do, however, direct 
attention to a most recent annotation of authorities on the 
subject in 162, A. L. R. 180, et seq., which follows the opin­
ion in Mays v. Burgess, 79 App. D. C. 343 U. 8. 868; rehear­
ing denied, 325 U. S. 896. See, also 36 Harvard Law Re­
view, December, 1922; 12 University of Chicago Law Re­
view, February, 1945; 33 California Law Review, March, 
1945.

What we must determine in this appeal is whether we 
shall now overrule Parmalee v. Morris, 218 Mich. 625.

We are guided in our consideration of this problem by 
our statements in the recently decided case of Bricker v. 
Green, 313 Mich. 218.

After a careful study, we are not persuaded that the 
rule laid down in the Parmalee case was wrong, or is wrong 
now.

It is controlling with respect to the instant case.
The decree entered by the trial court is affirmed, with 

costs to appellees.
Signed: Q-eorge E. Bushnell, Leland W. Carr, Henry 

M. Butzel, Edward M. Sharpe, Neil E. Reid, John
R. Dethmers, Walter H. North, Emerson R. Boyles.

([File endorsement omitted.]



[ fo ls . 97-99] I n S u prem e  C ourt of M ichigan

Present the Honorable Leland W. Carr, Chief Justice, 
Henry M. Butzel, George E. Bushnell, Edward M. Sharpe, 
Emerson R. Boyles, Neil E. Reid, Walter H. North, John
R. Dethmers, Associate Justices.

B e n ja m in  J. S ipes, et ah, Plaintiffs, 
vs.

O rsel M cG h ee , et al., Defendants and Appellants

J udgm ent— January 7, 1947
This cause having been brought to this Court by appeal 

from the Circuit Court for the County of Wayne, in Chan­
cery, and having been argued by counsel, and due delibera­
tion had thereon, it is now ordered, adjudged and decreed 
by the Court, that the decree of the Circuit Court for the 
county of Wayne, in Chancery be and the same is hereby 
in all things affirmed.

And it is further ordered, adjudged and decreed that 
the plaintiffs do recover of and from the defendants, their 
costs to be taxed.

70

I n  S uprem e  C ourt of M ichigan  

[Title omitted]

S ubm ission  of M otion for R ehearing—February 18, 1947 
In this cause a motion for rehearing is duly submitted.

[ fo l . 100] I n  S uprem e  C ourt of M ichigan

[Title omitted]

A pplication  and  M otion for R ehearing

N ow  come the defendants and appellants by their attor­
neys, Willis M. Graves and Francis M. Dent, and move the 
court to grant a rehearing in the above matter, which was 
decided on January 7, 1947 because the court erred in the 
following respects:



71

L In holding that it was requested to overrule its deci­
sion in the case of Parmalee v. Morris, 218 Michigan 625.

II. In holding that the racial identity of the defendants 
had been established as Negroes.

III. In holding that the defendants were not deprived 
of equal protection of the law as guaranteed by the XIY 
Amendment of the United States Constitution.
[fol. 101] IV. In holding that the decree of a court of 
equity, holding enforcement of agreements restricting the 
legal occupancy of a man’s own home is not such State 
action as is prohibited by the XIV Amendment to the United 
States Constitution.

V. In holding that property held by title in Fee Simple 
cannot be used in any legal way by its owner.

VI. In holding that a restrictive covenant against occu­
pancy against certain races is not against the public policy 
of the State of Michigan.

VII. In holding that state courts are not bound by treaties 
of the United States as set out in Article VI, Section 2 of 
the United States Constitution.

VIII. In holding that contracts and property rights 
supersede human rights.

This motion is based upon files and record in the above 
entitled cause and upon the affidavit of Willis M. Graves 
hereto attached.

Francis M. Dent, Willis M. Graves, Attorneys for 
Defendants and Appellants.

Dated: 20th of January, 1947.

tfol. 102] [Title omitted]

A ffidavit in  S upport of M otion for R ehearing

State of M ichigan ,
County of Wayne, ss:

Willis M. Graves, being first duly sworn, deposes and 
says that he is one of the trial attorneys in the above 
entitled cause and that he has read the opinion of this



72

court as handed down on January 7, 1947, and that lie 
is familiar with all of the records and briefs in this cause 
filed herein.

Deponent further states that he believes that the rea­
sons and arguments, herein set forth for the purpose of 
the application for a rehearing, are substantial and not 
dilatory and that this motion is made to protect the rights 
[fol. 103] of the defendants and appellants and especially 
in application for an appeal to the Supreme Court of the 
United States.

Further than this deponent says not.
W ill is  M . Graves.

Subscribed and sworn to before me this 20th day of 
January, A. D. 1947. Gza A. Jolly, Notary Public, 
Wayne County, Michigan.

My commission expires June 7, 1949.

[fol. 104] [Title omitted]

A rgu m en t  in  S upport  of M otion for R ehearing

I. The defendants did not specifically ask the court to 
overrule the case of Parmalee v. Morris, 218 Michigan 625. 
In fact, the defendants requested that the court follow that 
opinion in the following respect:

“ Were defendant’s claim of rights based upon any 
action taken by the authority of the State an entirely 
different question would be presented.’ ’

Page 625—Parmalee v. Morris, supra.

We have shown or attempted to show that the authority 
of the state has been used at every point in a proceeding 
of this kind. That is, for example, the Register of Deeds 
accepts the covenant for record for which the Statute gives 
[fol. 105] him no authority to do. Then the court, acting 
as an arm of the state first, holds such a restrictive covenant 
valid, and then by virtue of its constitutional authority 
seeks to enforce said covenant by contempt proceedings and 
with the aid of the sheriff.

II. The burden of proof was upon the plaintiff as to 
the defendants ’ racial identity. In fact, no competent evi­



73

dence was submitted by the plaintiffs—since it has been 
held repeatedly by this court that only experts could give 
opinion evidence. The only such evidence introduced was 
that by the defendants. We desire that the courts specif­
ically say whether or not a layman may give opinion evi­
dence on the question of a person’s racial identity. The 
case cited by this court in People v. Dean, 14 Michigan 406, 
423, holds that:

“ All persons in whom white blood so far prepon­
derates that they have less than one-fourth of African 
blood are white, and no other persons of African des­
cent can be so regarded.”

No evidence at all as to the percentage of any kind of 
blood or descent was offered in the instant case. The 
Statutes of Michigan give the plaintiffs the right to subpoena 
the defendants for close examination. Since they did not 
do this there is no burden upon the defendants, themselves, 
to attempt to prove the plaintiffs ’ case.

III. This court in Kuhn v. Common Council, 70 Michigan 
537, makes the following statement:

“ Property does not consist merely of the title and 
possession. It includes the rights to make any legal 
wseofit * * * or to sell and transfer it * *

[fob 106] Holden v. Hardy, 169 IT. S. 366, 391, uses the 
following language:

“ Property is more than the thing which a person 
owns. It is elementary that it includes the right to 
acquire, use and dispose of it. The Constitution pro­
tects these essential attributes of property.”

“ That one may dispose of his property, subject only 
to the control of lawful enactments curtailing that 
right in the public interest, must be conceded.”

Buchanan v. Warley, 245 IT. S. 60, 75.
“ Property consists of the free, use, enjoyment and 

disposal of a person’s acquisition without control or 
diminution save by the law of the land.”

1 Blackstone’s Commentaries (Cooley’s Ed.) 127.
Certainly by no stretch of the imagination can private 

agreements by individuals make occupancy of one’s own 
property illegal.



74

IV. The defendants and appellants show in their brief 
before the Supreme Court in the instant case, pages 45 to 
47, both inclusive, that the decree of a court upholding 
restrictions is such state action as is prohibited by the 
XIV Amendment to the Federal Constitution.

We quote here a case, cited in our briefs and not dis­
cussed in the court’s opinion, that we contend is conclusive 
in that it discusses fully the question of “ occupancy.” 
That case, quoted here, did not deal primarily with pur­
chase and sale of property, but solely with the question 
of the color of the occupant. The question before the 
United States Supreme Court was stated:

[fol. 107] “ The concrete question here is: May the 
occupancy, and necessarily, the purchase and sale of 
property of which occupancy is an incident, be inhibited 
by the States, or by one of its municipalities, solely be­
cause of the color of the proposed occupant of the prem­
ises ? That one may dispose of his property, subject only 
to the control of lawful enactments curtailing that right 
in the public interest, must be conceded. The question 
now presented makes it pertinent to inquire into the 
Constitutional right of the white man to sell his prop­
erty to a colored man, having in view the legal status 
of the purchaser and the occupant.”

Buchanan v. Warley, 245 U. S. 60, 75.

We therefore contend that any action depriving a person 
of occupancy by reason of the occupant’s color, under state 
authority, is state action prohibited by the X I V  Amendment 
to the United States Constitution.

V. The Statutes of the State of Michigan define a title 
in Fee Simple in Section 12922—Sec. 2 of the Michigan 
Compiled Laws, 1929:

“ Every estate of inheritance shall continue to be 
termed a fee simple, or fee; and every such estate, 
when not defeasible or conditional, shall be a fee 
simple absolute, or an absolute fee.”

Certainly if a person is prohibited to occupy his own 
property he does not have a title in Fee Simple. The due 
processes of law clause of the XIV Amendment to the Con­
stitution, would fully protect him against any attempt of



75

a State Court to deprive Mm of the principal incident of 
property.

VI. The Constitutional Convention of the State of Michi­
gan has seen fit to grant people/ of Negro descent all the 
[fol. 108] rights that people of any other racial identity 
have in the State of Michigan. The people of the State 
of Michigan then adopted this Constitution. Nothing in 
our judgment could show more clearly the public policy 
of the entire state as opposed to some subdivision in an 
over-crowded city than this action by the people.

The elected representatives in the state legislature have 
taken every means in their power to also set out the same 
public policy for the state.

The courts of the state also followed this public policy 
until the case of Parmalee v. Morris decided in June, 1922. 
The case of Ferguson v. Gies, 82 Michigan 358, was until 
the decree of Parmalee v. Morris, possibly the strongest 
statement of the absolute rights of Negroes of the public 
policy of the State of Michigan toward them in the United 
States. The only instances in which this has been departed 
from are cases in which restrictions against the legal use 
of property has been attempted by private individuals, 
under color of law and with state authority. The only thing 
that has given these restrictions the force of a law (for 
all intents and purposes, a statute) has been the court-made 
law in this line of cases. It is difficult to say, in view of the 
above facts, how the courts of this state can say such race 
restrictions are not against public policy.

VII. Article VI, Clause 2 of the Constitution of the 
United States declares:

“ The Constitution, and the Laws of the United 
States which shall be made in Pursuance thereof; and 
all Treaties made, or which shall be made, under the 
Authority of the United States, shall be the supreme 
[fol. 109] Law of the Land and the Judges in every State 
shall be boimd thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding”  
(Italics added).

The Constitution in so many words, says that a treaty 
entered into by the United States with another or other 
nations constitutes law which has precedence over all other 
law throughout this country.



76

The rationale underlying this supremacy, has been My 
interpreted in Kennett v. Chambers, 14 How. 38, by Mr, 
Justice Taney, whose opinion states, in part, that:

“  * * # as the sovereignty resides in the people,
every citizen is a portion of it, and is himself per­
sonally bound by the laws which the representatives 
of the sovereignty may pass, or the treaties into 
which they may enter, within the scope of their dele­
gated authority.”

Missouri v. Holland, 252 United States 416;
Hauenstein v. Lynham, 100 United States 483;
Nielson v. Johnson, 279 United States 47;
De Geofrey v. Riggs, 133 United States 258;
United States v. Pink, 315 United States 203.

The court, per Taney, J. states in Kenneth v. Chambers:
‘ ‘ These treaties, while they remained in force were, 

by the Constitution of the United States, the supreme 
law, and binding not only upon the government, tat 
upon every citizen. No contract could lawfully be 
made in violation of their provisions.”

VIII. We quote the following from the opinion of the 
court in the instant case:

“ These rules of property, which have existed during 
[fol. 110] most of the life of the state, should not be 
brushed aside in the absence of strong and cogent 
reasons.”

We believe that an opinion handed down as recently as 
January 7, 1946, should be a strong and cogent reason why 
this court should put human rights above property rights. 
We quote from the opinion of Mr. Justice Black:

“ When we balance the Constitutional rights of own­
ers of property against those of the people to enjoy 
freedom of press and religion, as we must here, we re­
main mindful of the fact that the latter occupy a pre­
ferred position. As we have stated before the rights to 
exercise the liberties safeguarded by the First Amend­
ment ‘ lies at the foundation of free government by free 
men and we must in all cases ’ weigh the circumstances



and appraise the reasons in support of the regulation 
of those rights.”

Marsh v. State of Ala., 90 Lawyers Ed. No. 6, 
page 227, 66 Supreme Court 276;

Schneider v. Irvington, 308 U. S. 147, 161.

In a concurring opinion in Marsh v. Alabama, supra, Mr. 
Justice Frankfurter said:

“ So long as the scope of the guaranties of the Due 
Process Clause of the 14th Amendment by absorption 
of the First remains that which the court gave in the 
series of cases in the October term 1942, the circum­
stances of the present case appear to me to clearly 
fall within it. ’ ’

[fols. 111-112] Conclusion
In view of the above reasons and the argument in support 

thereof, we believe that the court should grant a rehearing 
and that such a rehearing should reverse and set aside the 
decree of the court below. In case this court does not feel so 
inclined, we ask that it grant a stay of proceedings in order 
that the defendants and appellants may apply for reference 
to appeal to the Supreme Court of the United States.

Respectfully submitted, Francis M. Dent, Willis N. 
Graves, Attorneys for Defendants and Appellants.

y 77

[fol. 113] I n S uprem e  C ourt op M ichigan  

[Title omitted]

O bjections to R ehearing

Plaintiffs and appellants herein object to the granting of 
a rehearing as prayed by defendants and appellees, and 
for answer to the eight assignments of error, say:
[fol. 114] I

As this court in Parmalee v. Morris, 218 Mich. 625, held 
a racial restriction valid and enforced it, we cannot see how 
it would be possible for the court to hold the restriction in 
this case invalid without overruling the Parmalee case. It 
is therefore clear that appellants by asking that the restric-



80

[fol. 117] Conclusion
In their motion for a rehearing defendants do not claim 

that the court has misapprehended the facts nor do they cite 
any authorities or advance any reasons which have not been 
fully argued and considered.

It is respectfully submitted the motion should he denied, 
Younglove & Chockley, Attorneys for Plaintiffs and 

Appellees. Business Address: 1510 Ford Building, 
Detroit 26, Michigan.

[ fo l . 118] I n S uprem e  Court op M ichigan

[Title omitted]

O rder D en yin g  M otion eor R ehearing— March 3, 1947

A motion for rehearing having been heretofore submitted 
herein, it is hereby denied, with costs to plaintiffs.

I n  S uprem e  C ourt oe M ich ig an  

[Title omitted]

O rder G ran tin g  jS tay— April 8, 1947
In this cause a motion is filed by defendants for a stay of 

proceedings pending appeal to the Supreme Court of the 
United States, and due consideration thereof having been 
[fol. 119] had by the Court. It is ordered that all proceed­
ings in said cause be stayed for a period of thirty days from 
and after this date, and that any further stay must be ob­
tained from the Supreme Court of the United States.

Clerk’s Certificate to foregoing transcript omitted in 
printing.



Obder A llow ing  C ertiorari— Filed June 23, 1947
The petition herein for writ of certiorari to the Supreme 

Court of the State of Michigan is granted, and the case is 
assigned for hearing immediately following the argument in 
No. 1268, Shelley vs. Kraemer.

And it is further ordered that the duly certified copy of 
the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response to 
such writ.

Mr. Justice Reed took no part in the consideration or 
decision of this application.

[fob 120] S upreme Court oe th e  U nited  S tates

(1562)





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IN  THE

Court of tltr luttrii Btntm
October Term, 1947

No. 87

ORSEL McGHEE and MINNIE S. McGHEE, his wife,
Petitioners, 

v.

BENJAMIN J. SIPES, and ANNA C. SIPES, JAMES 
A. COON and ADDIE A. COON, ET AL.,

Respondents.

BRIEF FOR PETITIONERS

T hurgood M arshall , 
L oren M iller ,
W illis M. Graves,
F rancis D e n t ,

W illiam H. H astie, Counsel for Petitioner.
Charles H. H ouston,
George M. J ohnson,
W illiam R. M ing , J r .,
James Nabbit, J r .,
Marian W ynn  P erry,
Spottswood W . R obinson, III 
Andrew W einberger,
Ruth W eyand,

Of Counsel.





TABLE OF CONTENTS

PAGE

Opinion Below-------------------------------------------------------- 1
Jurisdiction ----------------------------------------------------------- 1
Summary Statement of Matter Involved______1______ 2

1. Statement of the Case________________ ___4_____  2
2. Statement of Facts___________________________  2

Question Presented _______________________________  4
Errors Relied Upon______________________  4
Outline of Argument _____    5
Summary of Argument____________________________  7
Argument:
Preliminary Statement ____________________________  10

I—Racial Covenants Restrictive of Occupancy Have 
Developed Through an Uncritical Distortion of 
Doctrines Concerning Restrictions on Use of 
Property _______      1 1

A. Historical Development of Devices Restric­
tive of the Use of Real Property____________ 11

B. The Distinction Between Restrictions Upon
the Use of Property and Restrictions Upon 
the Occupancy of Property by Members of 
Unpopular Minority Groups ________    15

II—The Right to Use and Occupy Real Estate as a 
Home is a Civil Right Guaranteed and Protected 
by the Constitution and Laws of the United States 19

III—Under the Fourteenth Amendment, No State May 
Deny This Civil Right to Any Person Solely Be­
cause of His Race, Color, Religion, or National 
Origin — _____________________________________  22



IV

VI—Judicial Enforcement of This Restrictive Cove­
nant Violates the Treaty Entered Into Between 
the United States and Members of the United 
Nations Under Which the Agreement Here 
Sought to Be Enforced Is V o id _______________ 84

Conclusion________________________________________ 1
Appendix

Table of Cases

American Federation of Labor v. Swing, 312 U. S.
321 _______________________________________

Austerberry v. Oldham, 29 Ch. D. 750 _____________  14
Bacon v. Walker, 204 U. S. 311___________________  11
Bakery Drivers Local v. Wohl, 315 U. S. 769 _______ 31
Bridges v. State of California, 314 U. S. 252_________ 31
Brinkerhoff Faris Co. v. Hill, 281 U. S. 673_________ 28
Brown, Ellington & Shields v. Mississippi, 297 U. S. 

278 ___________________________________________  28
Buchanan v. Warley, 245 U. S. 60______10, 17, 18,20,21,22,

23, 24, 25,26,27,35
Cafeteria Employees Union, Local 302 v. Angelos, 320

U. S. 293______ ____-____________________________ 31
Cantwell v. Connecticut, 310 U. S. 296__________...— 29,38
Carter v. Texas, 177 U. S. 442-------------- ------------------ 28
Crist v. Henshaw, 196 Okla. 168____________________
City of Dallas v. Liberty Annex Corp., 295 S. W. 591 - 3a 
City of Richmond v. Deans, 281 U. S. 704_______ 17,22,25
City of Richmond v. Deans (C. C. A.—4th), 37 F. (2d)

712 ___________________________________________  26
Civil Rights Cases, 109 U. S. 3------------------------------2'
Clark v. Allen, 67 Sup. Ct. 1431 (Advance Sheets)----
Corrigan v. Buckley, 271 U. S. 323___________ 10,43,45,46
Corrigan v. Buckley, 55 App. D. C. 30, 299 F. 899 

(1924) ___________________________________   11
Drummond Wren, In Re, 4 D. L. R. (1945) 674



V

Erie v. Tompkins, 304 U. 8. 64.....------------------------------  32
Euclid v. Ambler Realty Co., 272 U. S. 365____________ 17
Ex Parte Virginia, 100 IT. S. 339----------------- -------------  27
Fisher v. St. Louis, 194 U. S. 361------------------------------- 17
Gandolfo v. Hartman, 49 Fed. 181---------------------------  89
Geoffroy v. Riggs, 133 U. S. 258--------------------------------  86
Gorieb v. Fox, 274 U. S. 603-------------------------------------  17
Hadacheck v. Sabastian, 239 U. S. 394________ ..._______ 17
Harmon v. Tyler, 273 TJ. 8. 668___ ___________ 17, 22, 26, 27
Hauenstein v. Lynham, 100 U. S. 483________________  86
Holden v. Hardy, 169 U. S. 366..__.__________ _________  24
Home Telegraph v. Los Angeles, 227 H. S. 278________ 36
Hurd v. Hodge, No. 290 Nov. Term 1947___________  52
Hysler v. Florida, 315 H. S. 411___ _______________ ..._ 28
Kennett v. Chambers, 55 U. S. 38____________________  88
Laurel Hill Cemetery v. San Francisco, 216 H. S. 358_ 17
Lord Grey v. Saxon, 6 Ves. 106_____________________  14
Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186 

P. 596 (1919)_________________ _______________ ...... 16
Marsh v. Alabama, 326 U. S. 501____________________  39
Martin v. Nutkin, 2 P. Wms. 266_____________________  14
Mayer v. White, 65 U. S. 317_______________________  88
Mays v. Burgess, 147 F. (2d) 869 (Dist. of Columbia

_ 1944) ---------------------------------------------------------------  10
Milk Wagon Drivers Union of Chicago, Local 753 v.

Meadowmoor Dairies, Inc., 312 U. 8. 287__________ 30
Moore v. Dempsey, 261 U. S. 86______________________  28
Norris v. Alabama, 294 U. 8. 587________________ ____ 28
Northwestern Laundry Co. v. Des Moines, 239 U. S.

486 ------------------------------------- ...__________________  17
Phillips v. Wearn, 226 N. C. 290 (1946)______________  10
Pierce Oil Co. v. Hope, 248 U. 8. 498___________ .____ 17
Powell v. Alabama, 287 U. S. 45__ _______ ____________  28
Purvis v. Shuman, 273 111. 286, 112 N. E. 679 (1916).... 13
Pemman v. Little Rock, 237 U. S. 171________________  17
Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793.... 39

PAGE



PAGE

Spencers’s Case, 5 Coke 16_________________________  13

St. Louis Poster Advertising Co. v. St. Louis, 249 U. S.
269 __________________________________________... ij

Standard Oil Co. v. Marysville, 279 U. S. 582_________  17

Strauder v. West Virginia, 100 U. S. 303___________ .
The Bello Corrnnes, 19 U. S. 152___________________  g
The Schooner Peggy, 5 U. S. 103________________    86
Thomas Cusack Co. v. Chicago, 242 U. S. 526_________ 17
Tulk v. Moxhay, 2 Phil. 774, 41 Eng. Rep. 1143_______ 14
Trustees of the Monroe Ave. Church of Christ, et al. v.

Perkins, No. 153, Oct. Term, 1947_______________  16
Twining v. New Jersey, 211 U. S. 78_______________  28
U. S. v. Belmont, 301 U. S. 324________  ___________  86
Urciola v. Hodge, No. 291, Nov. Term, 1947________ , 52
Ware v. Hylton, 3 Dali. 199 __   86
Welch v. Swasey, 214 U. S. 91_______________________  17
Yick Wo v. Hopkins, 118 H. S. 356__________________ 1  36
Zahn v. Board of Public Works, 274 IJ. S. 325_________ 17

Statutes Cited

Civil Rights Acts___________________ -__________ 19,20,27
32 Hen. VIII, c. 34 (1540)_________________________  13
51 Stat. 1031_________________________________ 1__  85
8 U. S. C. 42__________________________________19,20,h
28 U. S. C. 344 (b).____________________________ ----- 1
United States Constitution:

Article IV, Section 2
V Amendment __________-______________________ ^
XIII Amendment _____________________________19, H
XIV Amendment _____________ 2 , 4 , 1 9 , 2 0 , 21,23,27,28,

29, 31,33, 34, 35, 36,37,39, U

s mm

vi



vn

Treaties

PAGE

Potsdam Declaration ----------------------------------------------  88
United Nations Charter:

Article 2, paragraph 2__________________________  84
Article 6, Section 2______________________________  85
Article 55 ___________________________ _________ A 84
Article 56 _____________________________________  84

Authorities Cited

Abrams, Charles, Discriminatory Restrictive Cove­
nants—A Challenge to the American Bar, address 
before Association of the Bar of the City of New 
York, Feb. 1947_________________________________  47

Acheson, Dean, Letter o f  F. E. P. C., F in al  R eport op 
FEPC (1945) __________________________________  87

Annals op the A merican  A cademy oe P olitical and 
Social S cience, Vol. 243 (19 46 )________ ___________ 84 ,85

Architectural F orum , October, 1947________________  58
Beebler, Color Occupancy Raises Values, R eview  o f  

t h e  S ociety of R esidential A ppraisers (Sept.
1945) --------------------------------------------------------------75, 78

Blackstone’s Commentaries _____________________________  19

Blandford, J. B., Jr.,
The Need for Low Cost Housing, Speech before An­

nual Conference, National Urban League, Colum­
bus, Ohio (Oct. 1, 1944)_(____________________  80

Testimony before Subcommittee on Housing and 
Urban Redevelopment, Senate, 79th Congress, 
H earings, Part 6 __________________    63

Britton, New Light on the Relation of Housing to 
Health, 32 A merican  J ournal of P ublic H ealth  
W3 (1942) ______ __________________________________,_____  59



V l l l

page

B ritto n  & A ltm an , Illness  and A ccidents  among Per­
sons Living  under D ifferen t  H ousing  Conditions, 56 
P ublic  H ealth  R eports 609 (1941)..--______________ 59,60

B uilding  R eporter & R ealty  N ew s , The Urban Negro, 
F ocus  o f  the H ousing  Crisis (N ov . 1945)__ ___ __75,76

B u reau  o f  Census

H ousing  S u pplem en t—

Bloch  S tatistics , D etro it , M arch , 1940__________57,76

General Characteristics , M ichigan , 16th Census, 
1940 ___________________________________________ 51,54

N egroes in  t h e  U nited  S tates, 1920-1932 (1935)__  48
P opulation  R eports

S ixteenth  Census, 1940 ___________________________  48
Current Population  R ep orts , D etroit , April, 

1947 ______________________________________ _____48,55

S pecial Census , R ace, S ex , by  C ensus T racts

A ugust, 1945 _______________________________________  48
January , 1946 ______________________________________  48

B u rgess, R esidential S egregation  in  A m erican  Cities, 
A nnals  oe A merican  A cademy oe S ocial and Po­
litical  S cience (N ov. 1928)____      50

C ardozo , The Judge as A  L egisla tor , T h e  N ature of 
t h e  J udicial  P rocess_____________________   32

C ayton , H ousing  fo r  N egroes , C hicago S u n , Dec. 13, 
1943 ________________________________________________ -___  ®

N egro  H ousing  in Chicago , S ocial A ction (April 
15, 1940)________________________________________  78

C hicago, C ook  C ounty, H ealth  S u r v e y : R eport on 
H ousing _____________________________%_________________  ®

C h icago P a rk  D istrict, T h e  P olice and  M inority 
G roups (1 9 4 7 )_________________________________________67)78



IS

Corbin, 29 Yam L. J ournal, 771—Note---------------------  32
Clark Covenants and I nterest R u n n in g  w it h  L and

12,13,14

PAGE

Cobb, Medical Care and the Plight of the Negro, Crisis,
July, 1947---------     69

Committee on Hygiene of Housing of American Public 
Health Association, Basic Principles of Healthful 
Housing ______________________________________ 59, 63

Cooper, The Frustration of Being a Member of a Minor­
ity Group, 29 M ental  H ygiene  189 (1945)________ 62

Congressional Glo be , 39th Congress, 1st Session,
Part 1 ________________________________________ 19, 20

Cressey, T he S uccession oe C ultural G roups in  th e  
City of Chicago (1930)__________________________  76

Detroit F ree P ress, March 20, 1945__________________  80
3 Elliots D ebates, 515______________________________  85
Farris & Dunham, M en tal  D isorders in  U rban  A reas :

An Ecological Study of Schizophrenia and Other 
Psychoses (1939)_______________ ________________  62

Federal Works Agency, P ostwar U rban  D evelopment 
(1944) ____________________________________________________ 63

Flack, A doption of th e  F ourteenth  A m endm en t  (1908) 19
Frazier, Negro Y outh  at t h e  Crossway (1940)________ 70
Gover, Negro Mortality 11, The Birth Rate and Infant 

and Maternal Mortality, 61 P ublic H ealth  R e p o r t s  
43 (1946)__________________ _ _____________________________  61

Hadley, Medical Psychiatry; an Ecological Note, 7 
P sychiatry 379 (19 44 )________________________________ 61

Health D ata B ook for th e  C ity  of C hicago____________  59

Hyde & Ch ish olm , Relation of Mental Disorders to 
Race and Nationality, 77 N. E . J ournal o f  M edicine 
612 (1944)________________________________________________ 62



H y d e  & K in g le y , Studies in M edical S ocio logy ; The Re­
lation o f  M ental D isorders to Population Density, 
77 N. E. J ournal of M edicine 571 (1 9 4 4 )___________

Joh n son , P atterns of N egro S egregation (1943) _____

K ise r , S ea I sland to C it y  (1932) _______________ ____

Lem kin , Genocide as a Crim e Under International Law, 
41 A merican  J ournal of I nternational  L aw  145
(1947) __________ l________________________ __________ __J6,

M cD iarrnid, The Charter and the P rom otion  o f  Human 
W elfare , 14 S tate D epartm ent  B u lletin  210 (1946)

M aking the P eace T rea ties 1941-1947, D epartm ent of 
S tate P u b lica tion s 2774, E u rop ean  S eries  2 4 __  \

M iller , Covenants fo r  E xclusion , S urvey G raphic  (Oct. 
1947) ___________________________________________________

M oran , W h ere Shall T hey L ive, T h e  A merican  City 
( A p ril 1942) _______________________________________

M um m y and P h illip s , N egroes as N eighbors, Common 
S ense, A p r il  1944 ________ -___________________________

M yrd a l, A n  A merican  D ilem m a  (1944) ________..._______

N ational  A ssociation of R eal E state B oards, Press 
R elease No. 78, N ov. 15, 1944__________________ _____ j

N ational  H ousing  A gency

H ousing F acts, 1940 __________________________________

M cG raw , W artim e Em ploym ent, M igration and 
H ousing o f  N egroes in U. S. 1941-1944, R ace Re­
lation s S erv ice  D ocum ents S eries  A , No. 1, 
1946 _______________________________________________ 71,

N ational  P ublic H ousing  Conference, R ace Relations 
in H ousing P o licy  (1946) ____________________________

N ational  U rban  L eague, E conom ic and Cultural Prob­
lems in Evanston, Illinois, as T hey R elate to the 
Colored  Population, F eb . 1945____________________ -----

61
67

76

,87

87

87

68

78

74
69

73

66

80

66

69



PAGE

Newcomb & K yle , The H ousing Qrisis in a F ree  E con ­
omy, Law  and C ontemporary P roblems (W in ter , 
1947) ___________________________________________________

Oakland K enw ood  P r o p e r ty  O w ners A ssoc ia tion  o f  
Chicago, P resident’s Annual R eport fo r  1944_______

Park, Burgess & M cK en zie , T h e  C it y  (19 25 )___________

Paul, The Epidem eology o f Rheum atic F ev er  and sortie 
of Its Public Health A sp ects , M etrop o litan  L ife  In ­
surance Co. (19 43 )------------------------------------------------- _------

People of D etroit, M aster P lan  R ep orts , D etro it  C ity  
Planning C om m ission  (1 9 4 6 )_________________ 51, 66, 68,

President's Conference on H ome B uilding  and  H ome 
Ownership, R eport o f  C om m ittee on N egro H ousing  
(1932) S _______________________ _________________________

Robinson, Relation betw een Conditions o f  Dwellings 
and Rentals by Race, J ournal of L and and P ublic 
Utility E conomics (O ct. 1946)_____________________ 53,

Rumney & Shuman, T he Cost o f  Slums in Newark, 
Newark H ousing A u th ority , 1946_____________________

1 Sm ith ’s L eading Cases (8th Ed.) 150._________________

Smillie, P reventive M edicine and P u blic  H ealth  
(1946) _________________________________________________ 59,

Stern, Long Range E ffect o f  C olored Occupancy, R e­
view of Society of R esidential A ppraisers Jan. 
1945 ____________________________________________________

Stettinius, 13 S tate D epartm ent  B u lle tin , 928 (1945)

Stone, Equitable R ights and L iabilities o f  S trangers to 
a Contract, 18 C ol. L . R ev. 291 (1 9 1 8 )___________ 12,40 ,

Ibid, P art II , 19 C ol. L . R ev. 177 (1 9 1 9 )_____________

The F ederation of N eighborhood A ssociations (C h i-
cag °) , R estrictive Covenants (1 9 4 4 )________ .....______

The Slum— Is Rehabilitation P ossib le? (C h ica go  H ou s­
ing A uthority 1946)___________________________________ 52,

77

67

50

60

69

50

56

64

13

62

76

87

41

41

67

80



X ll

Tiffany, L andlord and  T e n a n t , I__________________ .13,14

B eal P roperty (3rd ed.)____________________ ...___ ]i

U nited  N ations, Resolution of General Assembly, Dec. 
11, 1946 _______________________________________ 87

U rban  H ousing , Federal Emergency Adm. of Public 
Works _______________     ffi

U nited  S tates C hildrens  B ureau , Our Nations Chil­
dren, No. 8  (August 1947)______________________ 60

U nited  S tates D epartm ent  of C ommerce

Survey of World War II Veterans and Dwelling 
Unit Vacancy and Occupancy in the Detroit 
Area, Oct. 31, 1946 _________________________  82

Survey of World War II Veterans and Dwelling 
Unit Vacancy and Occupancy in the St. Louis 
Area, Missouri, Nov. 26, 1946_______________  82

U nited  S tates D epartm ent  op L abor

Survey of Negro World War II Veterans and Va­
cancy and Occupancy of Dwelling Units Avail­
able to Negroes in the Detroit Area, Michigan, 
Jan. 1947 ,_____________________________ 81,82

Survey of Negro World War II Veterans and Va­
cancy and Occupancy of Dwelling Units Avail­
able to Negroes in St. Louis Area, Missouri and 
Illinois, November-Deeember, 1946___________  ®

Velie, Housing: Detroit’s Time Bomb, C ollier ’s Maga­
zine, Nov. 23, 1946__________________________ 55,65,78

PAG!



xm

Walker, Urban B light  and S l u m s , 1938_____________  63
Weaver, Chicago, A City of Covenants, Crisis Maga­

zine, March, 1946________________ l__________ 70, 71, 83
Negro L abor, A N ational  P roblem  (1946)________64, 79
Planning for More Flexible Land Use, J ournal op 

L and and P ublic U t ility  E conomics, Feb., 1947 65
Race Restrictive Housing Covenants, J ournal op 

Land and P ublic U t ility  E conomics, Aug.,
1944 ___________________________________ 49,73,74

Wedum & Wedum, Rheumatic Fever in Cincinnati in 
Relation to Rentals, Crowding, Density of Popula­
tion, and Negroes, 34 A merican  J ournal op P ublic 
Health 1065 (1945) ___________________________________  60

What Caused the Detroit Riot, NAACP Publication 
(July, 1943) ____________    71

1 Wm. Saunders (1st Am. ed.) 240a_________________  13

Winslow, H ousing por H ealth  (The Milbank Founda­
tion, 1941)--------------------------------------------------------59, 63

Wood, I ntroduction to H ousing  (1939)______________  51

Slums and B lighted  A reas in  U nited  S tates (1935) 63
Woof ter, Negro P roblems in  C ities (1928)____________ 78

PAGE





IN  THE

i ’upmne (Emtri ni th? llmtth States
October Term, 1947

No. 87

Obsel M cG-hee and M in n ie  S. M cG h ee , Ms wife,
Petitioners,

v.

Benjamin J. S ipes, and A n n a  C. S ipes, J ames A. C oon and 
A ddie A. C oon, et al.,

Respondents.

BRIEF FOR PETITIONERS 

Opinion Below

The opinion of the Supreme Court of the State of Michi­
gan appears in the Record (R. 60-69) and is reported at 316 
Mich. 614.

Jurisdiction

The jurisdiction of this Court is invoked under section 
237b of the Judicial Code (28 U. S. C. 344b).

The date of judgment of the Supreme Court of the State 
of Michigan is January 7 , 1947 (R. 70), and petitioners’ mo­
tion for a rehearing was denied on March 3, 1947 (R. 80). 
A Petition for Certiorari was duly presented to this Court 
on May 10, 1947 and was granted by this Court on June 23, 
1947 (R. 81).



2

Summary Statement of Matter Involved

1. Statement of the Case

In the Circuit Court of Wayne County, Michigan, in 
Chancery, the respondents herein sought and obtained a de­
cree requiring the petitioners to move from property whit 
they owned and which they were occupying as their home, 
and thereafter restraining them from using or occupying 
the premises, and further restraining petitioners from vio­
lating a race restrictive covenant upon such land, set forth 
more fully below (R. 52-53).

In their amended answer to the hill of complaint peti­
tioners duly raised the defense that the enforcement by the 
court of such restrictive covenant would contravene the 
Fourteenth Amendment of the United States Constitution 
and that the restrictive covenant relied upon by the respon­
dents was void as against public policy (R. 16-17). On ap­
peal to the Supreme Court of the State of Michigan the 
petitioners ’ Reasons and G-rounds of Appeal specifically as­
signed as errors of the lower court the holding that the 
enforcement of such restrictive covenant by a court of 
equity was not violative of the Fourteenth Amendment of 
the Constitution of the United States and that the race re­
strictive covenant was not void as against public policy 
(R. 5-6).

The Supreme Court of Michigan affirmed the decree 
entered by the trial court and in its opinion considered 
and adjudicated, in favor of the respondents, the issues 
raised (R. 60-69).

2. Statement of Facts

Petitioners are citizens of the United States and are 
Negroes (R. 48, 53). They own and occupy as a residence



3

Lot 52 in Seebaldt’s Subdivision of the City of Detroit, 
Michigan, commonly known as 4626 Seehaldt Avenue (E. 7). 
Respondents are the owners of lots in the same subdivision 
and an adjoining subdivision (E. 7). At various times dur­
ing the year 1934 the predecessors in title of the petitioners 
and respondents had executed and recorded an instrument 
relating to their respective lots in such subdivisions, pro­
viding in its essential parts as follows:

“ We, the undersigned, owners of the following 
described property:
Lot No. 52 Seebaldt’s Sub. of Part of Joseph Tire- 
man’s Est. % Sec. 51 & 52 10 000 A T and F r ’l Sec. 
3, T. 2S, E 11 E.
for the purpose of defining, recording, and carrying 
out the general plan of developing the subdivision 
which has been uniformly recognized and followed, 
do hereby agree that the following restriction be im­
posed on our property above described, to remain in 
force until January 1, 1960—to run with the land, 
and to be binding on our heirs, executors, and as­
signs :

“ This property shall not be used or occupied by 
any person or persons except those of the Caucasian 
race.

“ It is further agreed that this restriction shall 
not be effective unless at least eighty percent of the 
property fronting on both sides of the street in the 
block where our land is located is subjected to this 
or a similar restriction”  (E. 42).

Such restriction was sought to be imposed upon 5 3  lots 
m the two subdivisions in which respondents reside (E. 34). 
Petitioners purchased their property from persons who did 
not sign the restrictive agreement (E. 13).



4

Question Presented

Does the enforcement by state courts of an agreement 
restricting the disposition of land by prohibiting its use mi 
occupancy by members of unpopular minority groups, when 
neither the willing seller nor the willing purchaser was a 
party to the agreement imposing the restriction, violate tie 
Fourteenth Amendment and treaty obligations under the 
United Nations Charter?

Errors Relied Upon

The Supreme Court of Michigan erred in holding:

1. That the due process clause of the 14th Amendment 
afforded petitioners no rights other than notice, a 
day in court and reasonable opportunity to appear 
and defend, and was not violated by the issuance of 
the injunction enforcing the race restrictive agree­
ment (R. 65-66).

2. That court enforcement of the restriction in question 
does not violate the equal protection clause of the 
14th Amendment, because “ we have never applied 
the constitutional prohibition to private relations and 
private contracts ’ ’ and that on the contrary to refuse 
to enforce the agreement would deny equal protection 
to the plaintiffs below (R. 6 6 ).

3. That the human rights provisions of United Nations 
Charter are “ merely indicative of a desirable social 
trend and an objective devoutly to be desired by all 
well-thinking peoples.”  It is not “ a principle of law 
that a treaty between sovereign nations is applied 
to the contractual rights between citizens of the 
United States when a determination of these rights 
is sought in State courts”  (R. 67).



5

OUTLINE OF ARGUMENT

I. Racial covenants restrictive of occupancy have 
developed through an uncritical distortion of 
doctrines concerning restrictions on use of prop­
erty.

A. Historical development of devices restrictive of use 
of real property.

B. The distinction between restrictions upon the use 
of property and restrictions upon the occupancy of 
property by members of unpopular minority groups.

II. The right to use and occupy real estate as a home 
is a civil right guaranteed and protected by the 
Constitution and laws of the United States.

A. Originating in ancient common law, this civil right 
is expressly protected by the Fourteenth Amend­
ment and the Civil Rights Act.

B. This civil right includes the right to own, use and 
occupy real estate as a home.

III. Under the Fourteenth Amendment no state may 
deny this civil right to any person solely because 
of his race, color, religion or national origin.

A. It is well settled that legislation conditioning the 
right to use and occupy property solely upon the 
basis of race, color, religion or national origin vio­
lates the Fourteenth Amendment.

B. A civil right guaranteed by the Fourteenth Amend­
ment against invasion by a legislature is also pro­
tected against invasion by the judiciary.



6

IV. Judicial enforcement of the racial restrictive cove­
nant here involved is a denial by the State of 
Michigan of the petitioners’ civil rights.

A. The decree below was based solely upon race.

B. It is the decree of the state court which denies 
petitioners the use and occupancy of their home.

C. Neither the existence of the restrictive agreement 
nor the fact that the state’s action was taken in 
reference thereto alters in any way the state’s re­
sponsibility under the Fourteenth Amendment for 
infringing a civil right.

The fact that neither petitioners nor their 
grantors were parties to the covenant further 
emphasizes the state’s responsible and predom­
inant role in the action taken against them.

D. Petitioners’ right to relief in this case is not affected 
by the decision in Corrigan v. Buckley.

V. While no state-sanctioned discrimination can be 
consistent with the Fourteenth Amendment, the 
nation-wide destruction of human and economic 
values which results from racial residential segre­
gation makes this form of discrimination pecu­
liarly repugnant.

A. Judicial enforcement of restrictive covenants has 
created a uniform pattern of unprecedented over­
crowding and congestion in the housing of Negroes 
and an appalling deterioration of their dwelling 
conditions. This extension and aggravation of slun 
conditions have in turn resulted in a serious rise m 
disease, crime, vice, racial tension and mob violence,



7

B. There are no economic justifications for restrictive 
covenants against Negroes. Real property is not 
destroyed or depreciated solely by reason of Negro 
occupancy and large segments of the Negro popu­
lation can afford to live in areas from which they are 
barred solely by such covenants. The sole reason 
for the enforcement of covenants are racial prej­
udice and the desire on the part of certain operators 
to exploit financially the artificial harriers created 
by covenants.

VI. Judicial enforcement of this restrictive covenant 
violates the treaty entered into between the United 
States and other members of the United Nations 
under which the agreement here sought to be 
enforced is void.

Summary of Argument

Racial restrictive covenants of the type involved in this 
case have developed through the uncritical distortion of 
doctrines concerning restrictions on the use of property. 
Equitable enforcement of covenants restricting the use of 
land was an innovation introduced into the law of England 
to accomplish socially desirable delimitations of the func­
tions which might be carried on in particular areas. Such 
restrictions affected all persons equally and in the same way. 
During this century, however, equitably enforced restrictive 
covenants have been used in America for the new and en­
tirely unrelated purpose of preventing the ownership and 
occupancy of homes by unpopular minority groups. The 
discriminatory effect of these latter day covenants and the 
absence of any resulting advantage to society prevent the 
earlier use covenants from affording any analogy justify­
ing the enforcement of racial covenants restricting occu­
pancy.



Beyond their lack of historical or analogical justification 
in the common law, the judicial enforcement of racial restric­
tive covenants infringes the civil right to use and occupy 
real property as a home without legally sanctioned racial 
impediments. The right freely to acquire and occupy land, 
early declared by Blackstone and other common law writers, 
survives today under protection of the Constitution and laws 
of the United States. After discussion in Congress, this 
right was expressly protected in the Civil Bights Act against 
all restrictions based on race. From the Civil Rights Cases 
to Buchanan v. Warley, this Court has protected the right 
of a willing buyer to acquire property from a willing seller 
and to use it freely as his own, without state imposed im­
pediment based upon race, as a fundamental civil right pro­
tected by the Fourteenth Amendment.

While Buchanan v. Warley protected the right in ques­
tion against infringement by statute and Harmon v. Tyler 
protected it against infringement by a combination of pri­
vate action and statutory sanction, the rationale of these 
cases leaves no room for a different conclusion where ju­
dicial action in the absence of statute has accomplished the 
same result. In a growing body of analogous situations this 
Court has protected fundamental civil rights against judicial 
infringement.

The sole argument against applying a doctrine which 
struck down racial zoning statutes to the case at bar is based 
upon the fact that the court’s action here is founded up® 
a private agreement. But the private agreement is not self­
executing. The determination of the state to enforce the 
agreement involves the subordination of a fundamental civil 
right to considerations of public interest promoted by gi™1? 
covenantors the benefit of their bargain. The obligations 
of the Fourteenth Amendment may not thus be diminished



9

or evaded. This Court has consistently so ruled in a variety 
of cases involving conflicts between fundamental civil rights 
on the one hand and various interests of property and pub­
lic security on the other.

The significance of the private agreement is further 
minimized, and the role of the state as the effective engineer 
of discrimination is further emphasized by the fact that 
neither the petitioner grantees in this case nor their grant­
ors were signers of the restrictive agreement. A special 
legal doctrine and an extraordinary application of state 
force were necessary to make effective the racial discrimina­
tion of which petitioners complain.

A vast amount of authoritative sociological data demon­
strates that health, morals and safety are impaired on a 
national scale as a consequence of the widespread racial 
restrictive covenants. Property values are also impaired. 
Evils affecting the segregated minorities inevitably injure 
the community as a whole. Thus, although no state sanc­
tioned discrimination can be consistent with the Fourteenth 
Amendment, the nationwide destruction of human and eco­
nomic values which results from racial residential segre­
gation makes this form of discrimination peculiarly repug­
nant.

The human rights provisions of the United Nations 
Charter, as treaty provisions, are the supreme law of the 
land and no citizen may lawfully enter into a contract in 
subversion of their purposes. The restrictive agreement
here presented for enforcement falls within this proscrip­
tion.



10

I

A R G U M E N T

Preliminary Statement
In 1917, after the decision of this Court in Buchanan v, 

Warley, it could reasonably have been predicted that life in 
these United States would not be disfigured by the zoning of 
human beings. But seekers after legal means to accomplish 
what the Court had proscribed were persistent in their ef­
forts to bring the ghetto to America, and courts, misled by 
the presumed license of Corrigan v. Buckley, have too often 
assisted them in doing so.

The areas affected have become so large and so numer­
ous, the groups restricted so diverse, that the restrictive 
covenant today must be recognized as a matter of gravest 
national concern. Aspects of the problem have been liti­
gated in at least twenty-one states during the last twenty 
years. These cases reveal covenants affecting areas as 
large as one thousand lots a and twenty-six city blocks.11 

These restrictions do not run only against Negroes. Courts 
have been asked to exclude from the ownership or occu­
pancy of land persons of Arabian, Armenian, Chinese, 
Ethiopian, Greek, Hindu, Korean, Persian, Spanish and 
Syrian ancestry as well as American Indians, Hawaiians, 
Jews, Latin Americans and Puerto Bicans, irrespective of 
citizenship. A petition for certiorari now pending before 
this Court shows a clergyman excluded from occupancy of 
the parsonage of his churchy Such are the consequences 
of the restrictive covenant.

Surely, a device of unreason and bigotry cannot be per­
mitted to destroy the essential character and oneness of 
America as a community,—“ not while this Court sits.”

a Mays v. Burgess, 147 F. (2d) 869 (District of Columbia—1944).
*> Phillips v. Wearn, 226 N. C. 290 (1946).
c Trustees of the Monroe Avenue Church of Christ et al. v. Perk® 

et al., No. 153, October Term, 1947.



11

I

Racial Covenants Restrictive of Occupancy Have 
Developed Through an Uncritical Distortion 

of Doctrines Concerning Restrictions 
on Use of Property.

Doctrines originating in and having proper application 
to limitations of how property shall be used have in recent 
years been distorted and unjustifiably applied to limitations 
of who shall occupy property.

A. Historical D evelopm en t o f D evices Restrictive  
of the U se o f Real P roperty.

While the law relative to restrictions on the use of real 
property developed along lines historically different from 
those which led to the development of the doctrines relative 
to illegal restraints on alienation, the basic considerations 
of policy underlying each are essentially the same. A wise 
and ancient policy, which promotes those principles of law 
which permit the most beneficial use of the land resources 
of the country, is best served by allowing property to he 
freely alienable so that it may come into the hands of him 
who can best use it, and the same policy allows a person to 
put the property to the lawful use which he considers most 
advantageous.

The law has extended no greater favor to restrictions 
on the free use and enjoyment of land than to restrictions 
upon the free alienation of land. This is evidenced by the 
reluctance and, in some cases, the refusal, of courts to ex­
tend traditional devices or to create new devices wdiereby 
a more complete and simpler expedient for controlling use 
of another’s land would be afforded.



The development of the law relative to restrictions on 
use is more obscure than that relative to restrictions on 
alienation. Two devices, perhaps, antedated the restric­
tive covenant. An owner of land might convey a part 
thereof subject to a condition subsequent that the land con­
veyed should not be used in a particular manner so as to af­
fect the part retained, upon breach of which condition the 
conveyor might exercise his power to terminate the 
grantee’s estate. Or the owner of one parcel might ac­
quire by grant or reservation an easement restricting uses 
to be made upon another parcel. Neither could accomplish 
a restriction of land use save within narrow limits.1

Covenants respecting the use of land developed slowly, 
and within similarly circumscribed areas. Enforcement 
in the law courts of covenants, except as between the par­
ties thereto, was a deviation from the common law rules 
that a chose in action was nonassignable, and that only a 
party to a contract can be held liable thereon.2

It appears that prior to the middle of the sixteenth cen­
tury, both the benefit and burden of a covenant contained 
in a lease ran to an assignee of the leasehold, so that the as­

1 Both devices necessitated an instrument under seal. The power 
of termination for breach of condition could neither be assigned inter 
vivos nor devised, and easements the benefit of which was in gross 
did not run either as to benefit or burden. Common law easements 
could be created only in a limited class of cases, the law not favoring 
the creation of new forms of easements not known to the early law. 
Neither device was afforded a remedy by which actual or literal per­
formance of the restriction could be judicially compelled. Stone, 
Equitable Rights and Liabilities of Strangers to a Contract, 18 Cot. 
L. R ev. 291-293.

2 “ The terms ‘real covenants’ or ‘covenants running with the land 
are of course metaphorical. The covenants are always personal in 
the sense that they are enforced in personal actions for damages, etc., 
and they cannot actually run with the land as Coke seemed to think, 
the question is merely how far the transfer of an interest in land wu 
also transfer either the benefit or the burden of covenants concerning 
it.” Clark, Covenants and Interests R unning  with  Land, /)•



13

signee of the lessee might be held liable on the covenant, 
and became entitled to enforce it. But, neither the benefit 
of the covenant passed to, nor the burden of the covenant 
was imposed upon, the assignee of the reversion.3 In 1540, 
the Statute of Covenants4 5 declared that lessors and their 
assigns should have the right to enforce covenants and con­
ditions against lessees and their assigns, and conferred 
reciprocal rights upon lessees and their assigns to enforce 
covenants against lessors and their assigns.3 Limitations 
upon the running of such covenants were imposed in 
Spencer’s case, 6 which declared that the covenant must 
“ touch or concern”  the land demised, otherwise it would 
not run, and that even though the covenant touched or con­
cerned the land, if it concerned likewise a thing which was 
not in being at the time of the demise, but which was to be 
built or created thereafter, assignees would not be bound 
unless they were expressly mentioned.7 Where the covenant 
was made between owners in fee simple, not in connection 
with a lease, the additional requirement of “ privity of

81 Wms. Saunders, (1st Am. ed.) 240a, n. 3 ; 1 Sm ith ’s L eading 
Cases ('8th ed.) 150; 1 T iffany, L andlord & T enant, 968-969.

4 32 Hen. VIII, c. 34 (1540).
0 This statute was not enacted entirely out of a desire to broaden 

the covenant device. “ The reason for the enactment of the statute 
was that the monasteries and other religious and ecclesiastical houses 
had been dissolved and their lands had come into the possession of the 
king, who distributed them to the lords. Much of the lands was sub­
ject to leases when they fell into the hands of the king, and the monks 
had inherited in leases various covenants and provisions for their 
benefit and advantage. A t the common law no person could take the 
benefit of any covenant or condition except such as were parties or 
privies thereto, so that the grantees of the king could not enforce the 
covenants in the leases. These things were recited in the preamble, 
and the statute was enacted to give to the grantees of the king the 
same remedies that the original lessors might have had.” Purvis v. 
Shuman, 273 111. 286, 112 N. E. 679 (1916).

5 Coke 16.
These limitations caused no little confusion in the law. Clark,

°P- at. supra note 8, 74 et seq.



14

estate”  must be satisfied8 * and, even when all requirements 
were satisfied, the English courts refused to permit the 
running of the burden of such a covenants so as to be en­
forceable against a transferee of the land.® Until equity 
commenced the exercise of its peculiar powers in the cov­
enant field, the sole remedy in event of breach was, of 
course, an action for damages.

Prior to the middle of the nineteenth century, covenants 
not to use land in a particular manner were specifically en­
forceable in equity by injunction against the promisor where 
the requisite inadequacy of a legal remedy existed.10 New 
developments followed the decision in 1848 in Tulle v. Mox- 
hay,11 which established that a covenant as to the use of land 
might affect a subsequent purchaser who takes with notice 
thereof, equity in such cases enjoining a use of the land in 
violation of the covenant.12 The requirements of touching 
and concerning privity of estate were swept aside13 and a 
more workable restrictive device created.

With the urbanization of the population, and the more 
crowded conditions of modern life, the desire to secure suit

8 Here again the requirement was not exact, and divergent views 
followed. Clark, op. cit. supra note 8, 91 et seq.

®Austerberry v. Oldham, 29 Ch. D. 750; Clark, op. cit. supra 
note 8, 113; 3 T iffany, R eal Property (3rd ed.) 445.

10 Martin v. Nutkin, 2 P. Wms. 266; Lord Grey v. Saxon, 6 
Ves. 106.

112 Phil. 774, 41 Eng. Rep. 1143.
12 Whether these restrictions are enforced as contracts concerning 

the land, or as servitudes or easements on the land, is still a subject 
of speculation. The opposing theories are analyzed in C l a r k , op. a t. 
supra note 8, 149 et seq.

13 Clark, op. cit. supra note 8, 150.



15

able home surroundings led to a demand for real estate 
limited solely to development for residential purposes. This 
natural desire of householders has been exploited by land 
developers and realtors so that the restriction of particular 
areas of property in or near American cities to residential 
use is now becoming the rule rather than the exception. The 
legal machinery to achieve this end has been found in the 
main not in the ancient rules of easements or covenants 
enforceable only at law, but in the activities of courts of 
equity in enforcing restrictions as to use of land when 
reasonable. Within its historical framework, the covenant 
enforceable in equity has thus achieved widespread success 
and popularity as a device capable of accomplishing a 
measurable control over uses to which a neighbor’s land 
might be put. Its accomplishments in this wise advanced 
the public weal by promoting healthier, safer and morally 
superior residential areas through specialization of use 
activities upon propinquous lands. Such limited use restric­
tions were accomplished without entrenchment upon the 
tenet of individual freedom of use and enjoyment of prop­
erty.

B. The Distinction B etw een  Restrictions U pon the  
Use o f P roperty and Restrictions U pon the 
Occupancy o f P roperty b y  M em b ers o f Un­
popular M inority Groups.

From its inception until the wane of the last century, 
the restrictive covenant enforceable in equity was always 
and only an agent selective of the type of use which might 
be made of another’s land. Neither the history of its de­
velopment nor the economic or social justifications for its 
judicial enforcement disclose a basis for its employment as 
a racially discriminatory preventive of occupancy. This 
novel twist in the law was introduced by historical acci­



16

dent,14 and has survived only because of judicial indifference 
toward the consequent distortion of fundamental concepts 
and principles and the economic and social havoc thereby 
wrought:

1. The distinction between restrictions on use and those 
on occupancy is fundamental, but is completely ignored. 
The concept of use restrictions before the birth of racial 
restrictive covenants had been, and with their sole excep­
tion, still is in terms of type of structure or type of activity 
upon the land. Property was left open to occupancy by 
any person, including him who engaged in the inhibited 
activity in another place. The distinction is between who 
occupies the land, and what he does with it. Eestrictions 
against manufacturing uses prevented the operation of 
factories on the restricted land, but industrialists and em­
ployees might nevertheless establish their residences there; 
those against taverns, gambling dens and houses of prosti­
tution did not prohibit occupany by tavernkeepers, gamblers 
and prostitutes who plied their trade elsewhere.

2. The cases enforcing nonracial covenants dealt with 
restrictions possessing the equality of personal applica­
tion implicit in reasonableness. Race or other personal

14 The law relative to the enforceability in equity of racial restric­
tions against occupancy stems from Los Angeles Investment Co. v. 
Gary, 181 Cal. 680, 186 P. 596 (1918), which followed two years 
behind Buchanan v. Warley. The decision was 3-2 and, as the court 
expressed in its opinion, it was not “ favored by either brief or argu­
ment on behalf of the respondents,”  (186 Cal. 681) the Negro occu­
pants. The restriction was sought to be imposed by condition subse­
quent, rather than by covenant, and the court pointed out that “what 
we have said applies only to restraints on use imposed by way ot 
condition and not to those sought to be imposed by covenant merely. 
The distinction between conditions and covenants is a decided one and 
the principles applicable quite different.” (Id., 683). Nevertheless, 
and notwithstanding the fallacy' in analogizing a restriction on occu­
pancy to one on use, courts subsequently faced with the racial occu­
pancy covenant followed the lead supplied by this case.



17

considerations could not be factors in such an equation; 
only type of use could be important. All persons, irrespec­
tive of race, were alike bound by the restriction and alike 
free to make any unrestricted use of the land. Irrespective 
of race, every owner of the restricted land possessed a 
perfect privilege to put the land to any use uninhibited hy 
the covenant; nor was race ever an exemption from the 
operation of the restriction for, irrespective of race, every 
owner of the restricted land was bound to observe the 
restriction. Racial covenants, however, ignore all reason­
able considerations and ground their discriminations point­
edly on race alone.

3. Nonraeial covenants effected only prohibitions which 
accorded with the public good. The proscribed uses were 
usually illegal, immoral, or unsafe to the community. 
Many constituted indictable offenses or abateable nuisances. 
All were of such character that they could better be con­
ducted elsewhere. The same prohibitions could be, and 
frequently were, effected by legislation.15 But occupancy 
of land by members of unpopular minority groups does 
not fall within the above categories.16 The absence of all 
relation to the public health, morals, safety or general wel­
fare precludes its prohibition by statute.17

15 Standard Oil Co. v. Marysville, 279 U. S. 582; Gorieb v. Fox, 
2/4 U. S. 603; Zahn v. Board of Public Works, 274 U. S. 325 ; Euclid 
v. Ambler Realty Co.; 272 U. S. 365; St. Louis Poster Advertising 
to, v. St. Louis, 249 U. S. 269; Pierce Oil Co. v. Hope, 248 U. S. 
498; Thomas Cusack Co. v. Chicago, 242 U. S. 526; Northwestern 
Laundry Co. v. Des Moines, 239 U. S. 486; Hadacheck v. Sebastian, 
239 U. S. 394; Reinman v. Little Rock, 237 U. S. 171; Laurel Hill 
Cemetery v. San Francisco, 216 U. S. 358; Welch v. Swasey, 214
tt o' ^  ’ Bacon v. Walker, 204 U. S. 311; Fischer v. St. Louis, 194 
U. S. 361.

16 Buchanan v. Warley, 245 U. S. 60 ; Harmon v. Tyler, 273 U. S.
i °f Richmond v. Deans, 281 U. S. 704; Crist v. Henshaw,
196 Okl. 168 (1945).

17 See Point V  of this brief.



18

4. Nonracial covenants did not subvert individual rights 
of property. They affected only a single constituent of 
property—use; all other attributes of property, including 
occupancy, retained their traditional freedom. The curtail­
ment in freedom of user thus effected was a compromise 
justified by the benefit flowing from the reconciliation of 
the innumerable and conflicting freedoms of use possessed 
by others. Racial covenants destroy the essence of prop­
erty ; they represent an obliteration, not a compromise.

5. Nonracial covenants drew the substance of their 
validity from their purpose and effect as engineers of su­
perior residential areas. Racial occupancy restrictions 
cannot reasonably be considered as improving the health, 
morals, safety or general welfare of the occupants of the 
restricted area.18 On the contrary, and at the same time, 
their cumulative economic and social effects have impaired 
the health, morals, safety and general welfare of all.19

Such use of land as is characteristically proscribed by 
nonracial restrictive covenants is likely to constitute a 
serious injury to the neighboring landowner and a matter 
of concern to the state. But in our democratic society the 
skin color, national origin or religion of the occupant of 
property cannot be a legal injury to a neighbor or a matter 
of concern to the state.

The constitutional consequence of the foregoing distinc­
tions is that this Court has upheld state statutes imposing 
various reasonable restrictions on use20 but, beginning with 
Buchanan v. Warley, has uncompromisingly struck down 
every effort of the states to impose racial residential restric­
tions by legislation.21 That conclusion was inevitable.

18 See cases cited in footnote 16 supra.
19 See Point V  of this brief.
20 See cases cited in footnote 15 supra.
21 See cases cited in footnote 16 supra.



19

II

The Right to Use and Occupy Real Estate as a Home 
is a Civil Right Guaranteed and Protected by the 

Constitution and Laws of the United States.

Blackstone pointed ont that the third absolute right “ is 
that of property, which consists in the free use, enjoyment, 
and disposal of all his acquisitions, without any control or 
diminution, save only by the laws of the land. ” 22 This 
right is expressly protected by the Fourteenth Amendment 
and the Civil Rights Acts23 against invasion by the states 
on racial grounds.

The Congressional debates after the adoption of the 
Thirteenth Amendment and preceding the enactment of the 
Civil Rights Act of 1866 show that Congress intended to 
protect the fundamental civil rights of the freedmen. High 
on the list of rights to be protected was the right to own 
property. Some doubts were expressed by the opponents 
of the measure as to its constitutionality, and particularly 
the right of Congress to confer citizenship upon the former 
slaves without an amendment.24 But neither the proponents 
of the Civil Rights Act nor its opponents doubted that citi­
zens of the United States had an inherent right to acquire, 
own and occupy property.25 After the enactment of the 
Fourteenth Amendment, Congress reenacted the Civil

22 Blackstone’s Commentaries, p. 138.
23See: 8 U. S. C. 42.

Flack, Adoption of the Fourteenth Amendment (John Hopkins 
Press, 1908), p. 21.

See: Debate between Senators Cowan and Trumbull, Congres­
sional Globe, 39th Cong., 1st Session, Part 1, pp. 499-500.



2 0

Eights Act with a few modifications, expressly stipulating 
therein:

“ All citizens of the United States shall have the 
same right in every State and Territory as is en­
joyed by white citizens thereof to inherit, purchase, 
lease, sell, hold and convey real and personal prop­
erty. ” 26

Throughout the debates on the Amendment and the 
Civil Eights Bill there is a clear perception that freedom 
for the former slave without protection of his fundamental 
right to own real or personal property was meaningless. 
One of the Senators cited as an example of the oppression 
from which the freedmen must be protected the fact that in 
1866 in Georgia “ if a black man sleeps in a house over­
night, it is only by leave of a white man, ” 27 and another 
asked: “ Is a freeman to be deprived of the right of ac­
quiring property, having a family, a wife, children, 
home ? ” 28

In 1879 this Court construed the Fourteenth Amendment 
as containing a positive immunity for the newly freed slaves 
against “ legal discriminations * * * lessening the security 
of their enjoyment of the rights which others enjoy” 29 and 
in 1917 this Court construed the Civil Eights Act as deal­
ing “ with those fundamental rights in property which it 
was intended to secure upon the same terms to citizens of 
every race and color. ” 30

In the Civil Rights Cases this Court, while holding 
that sections of the Civil Eights Act were unconstitutional

26 8 U. S. C. 42.
27 Congressional Globe, 39th Cong., 1st Session, Part 1, p. 589.
28 Senator Howard, Ibid., p. 504.
29 Strauder v. W est Virginia, 100 U. S. 303, 308.
30 Buchanan v. Worley, 245 U. S. 60, 79.



2 1

because they applied to individual action, at the same time 
emphasized the application of the Fourteenth Amendment 
to state action of all types, whether legislative, judicial or 
executive.

“ In this connection it is proper to state that civil 
rights, such as are guaranteed by the Constitution 
against state aggression, cannot be impaired by the 
wrongful acts of individuals, unsupported by state 
authority in the shape of laws, customs or judicial or 
executive proceedings. ’ ’ 31

It was thus made clear that the Fourteenth Amendment does 
prohibit the wrongful acts of individuals where supported 
“ by state authority in the shape of laws, customs, or ju­
dicial or executive proceedings.”  (Italics ours.)

Among the rights listed as protected against legislative, 
judicial and executive action of the states was the right ‘ ‘ to 
hold property, to buy and to sell. ’ ’

The right that petitioners assert is their civil right to 
occupy their property as a home—the same right recognized 
by this Court in Buchanan v. Warley:

“ The Fourteenth Amendment protects life, lib­
erty, and property from invasion by the States with­
out due process of law. Property is more than the 
mere thing which a person owns. It is elementary 
that it includes the right to acquire, use, and dispose 
of it. The Constitution protects these essential at­
tributes of property * * * ” 32

In the instant case the respondents seek by means of 
state court action to evict petitioners from the property 
they own and are occupying as a home. On the face of the

31109 U. S. 3, 17.
82 245 U. S. 60, 74.



2 2

pleadings they do not seek to divest petitioners of title, 
But the effect of denying to petitioners the right to occupy 
their property as a home in a residential neighborhood, 
under any circumstances, is a denial of the civil right set 
out above.

Ill

Under the Fourteenth Amendment, No State May Deny 
This Civil Right to Any Person Solely Because of 

His Race, Color, Religion, or National Origin.

A. It is Well Settled That Legislation Condition­
ing the Right to Use and Occupy Property 
Solely Upon the Basis of Race, Color, Religion, 
or National Origin Violates the Fourteenth 
Amendment.

Racial restrictions by states of the right to acquire, use, 
and dispose of property are in direct conflict with the Con­
stitution of the United States. The first efforts to establish 
racial residential segregation were by means of municipal 
ordinances attempting to establish racial zones. This 
Court, in three different eases, has clearly established the 
principle that the purchase, occupancy, and sale of prop­
erty may not be inhibited by the states solely because of 
the race or color of the proposed occupant of the prem­
ises. 33

In Buchanan v. Warley, supra, an ordinance of the City 
of Louisville, Kentucky, prohibited the occupancy of lots by 
colored persons in blocks where a majority of the residences 
were occupied by white persons and contained the same

33 City of Richmond v. Deans, 281 U. S. 704; Harmon v. Tyler, 
273 U. S. 668; Buchanan v. Warley, 245 U. S. 60.



23

prohibition as to white persons in blocks where the majority 
of houses were occupied by colored persons. Buchanan 
brought an action for specific enforcement of a contract of 
sale against War-ley, a Negro, who set up as a defense a 
provision in the contract excusing him from performance 
unless he should have the right under the laws of Kentucky 
and of Louisville to occupy the property as a residence and 
contended that the ordinance prevented him from occupy­
ing the property. Buchanan replied that the ordinance 
was in violation of the Fourteenth Amendment.

In a unanimous opinion b y  Mr. Justice D ay , this Court 
decided the following question:

“ The concrete question here is: May the occu­
pancy, and, necessarily, the purchase and sale of 
property of which occupancy is an incident, be in­
hibited by the states, or by one of its municipalities, 
solely because of the color of the proposed occupant 
of the premises? That one may dispose of his prop­
erty, subject only to the control of lawful enactments 
curtailing that right in the public interest, must be 
conceded. The question now presented makes it 
pertinent to inquire into the constitutional right of 
the white man to sell his property to a colored man, 
having in view the legal status of the purchaser and 
occupant”  (245 U. S. 60, at p. 75).

The decision in the Buchanan case disposed of all of the 
arguments seeking to establish the right of a state to restrict 
the sale of property by excluding prospective occupants be­
cause of race or color:

Use and occupancy is an integral element of ownership 
of property:

‘ ‘ * * * Property is more than the mere thing 
which a person owns. It is elementary that it in­
cludes the right to acquire, use, and dispose of it.



24

The Constitution protects these essential attributes 
of property. Holden v. Hardy, 169 U. S. 366, 391, 
42 L. ed. 780, 790, 18 Sup. Ct. Eep. 383. Property 
consists of the free use, enjoyment, and disposal of 
a person’s acquisitions without control or diminu­
tion save by the law of the land. 1 Cooley’s Bl. Com, 
127.”  (245 U. S. 60, at p. 74.)

Racial residential legislation can not be justified as a 
proper exercise of police power:

“ We pass, then, to a consideration of the case 
upon its merits. This ordinance prevents the occu­
pancy of a lot in the city of Louisville by a person of 
color in a block where the greater number of resi­
dences are occupied by white persons; where such 
a majority exists, colored persons are excluded. This 
interdiction is based wholly upon color; simply that, 
and nothing more * * *

“ This drastic measure is sought to be justified 
under the authority of the state in the exercise of the 
police power. It is said such legislation tends to pro­
mote the public peace by preventing racial conflicts; 
that it tends to maintain racial purity; that it pre­
vents the deterioration of property owned and oc­
cupied by white people, which deterioration, it is 
contended, is sure to follow the occupancy of ad­
jacent premises by persons of color.

“ It is urged that this proposed segregation will 
promote the public peace by preventing race conflicts. 
Desirable as this is, and important as is the preserva­
tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights cre­
ated or protected by the Federal Constitution.” (245 
U. S. 60, at p. 81.)

Race is not a measure of depreciation of property:
“ It is said that such acquisitions by colored per­

sons depreciate property owned in the neighborhood



25

by white persons. But property may be acquired by 
undesirable white neighbors, or put to disagreeable 
though lawful uses with like results.”  (245 U. 8. 60, 
at p. 82.)

The issue of residential segregation on the basis of race 
was squarely met and disposed of in the Buchanan case. 
Bach of the arguments in favor of racial segregation was 
carefully considered and this Court, in determining the con­
flict of these purposes with our Constitution, concluded:

“ That there exists a serious and difficult problem 
arising from a feeling of race hostility which the law 
is powerless to control, and which it must give a 
measure of consideration, may be freely admitted. 
But its solution cannot be promoted by depriving 
citizens of their constitutional rights and privileges.”  
(245 U. 8. 60, at pp. 80-81.)

The determination of this Court to invalidate racial resi­
dential segregation by state action regardless of the alleged 
justification for such action is clear from two later cases.

In the case of City of Richmond v. Deans, a Negro who 
held a contract to purchase property brought an action in 
the United States District Court seeking to enjoin the en­
forcement of an ordinance prohibiting persons from using 
as a residence any building on a street where the majority 
of the residences were occupied by those whom they were 
forbidden to marry under Virginia’s Miscegenation Statute. 
The Circuit Court of Appeals, in affirming the judgment of 
the trial court, pointed out: “ Attempt is made to distin­
guish the case at bar from these cases on the ground that 
the zoning ordinance here under consideration bases its 
interdiction on the legal prohibition of intermarriage and 
not on race or color; but, as the legal prohibition of inter­
marriage is itself based on race, the question here, in final 
analysis, is identical with that which the Supreme Court



26

has twice decided in the cases cited. [Buchanan v. Warletj 
and Harmon v. Tyler.'] ” 34 This Court affirmed this judg­
ment by a Per Curiam decision.84 85

The principles of the Buchanan case have also been ap­
plied in cases involving the action of the legislature coupled 
with the failure of individuals to act. In Harmon v. Tyler, 
a Louisiana statute purported to confer upon all municipali­
ties the authority to enact segregation laws, and another 
statute of that state made it unlawful in municipalities 
having a population of more than 25,000 for any white per­
son to establish his residence on any property located in a 
Negro community without the written consent of a majority 
of the Negro inhabitants thereof, or for any Negro to estab­
lish his residence on any property located in a white com­
munity without the written consent of a majority of the 
white persons inhabiting the community.

An ordinance of the City of New Orleans made it unlaw­
ful for a Negro to establish his residence in a white com­
munity, or for a white person to establish his residence in 
a Negro community, without the written consent of a ma­
jority of the persons of the opposite race inhabiting the 
community in question. Plaintiff, alleging that defendant 
was about to rent a portion of his property in a community 
inhabited principally by white persons to Negro tenants 
without the consent required by the statute and the ordi­
nance, prayed for a rule to show cause why the same should 
not be restrained.

Defendant contended that the statutes and the ordinance 
were violative of the due process clause of the Fourteenth 
Amendment. The trial court sustained defendant’s posi­
tion. On appeal, the Supreme Court of Louisiana reversed,

84 City of Richmond v. Deans, C. C. A.— 4th, 37 F. (2d) 712, 713.
85 281 U. S. 704.



27

and upheld the legislation. On appeal to this Court, the de­
cision of the Supreme Court of Louisiana was reversed on 
authority of Buchanan v. Warley. A  like disposition of the 
same legislation was had in the Circuit Court of Appeals 
for the Fifth Circuit in an independent case.

In the instant case, all of the alleged evils claimed to flow 
from mixed residential areas which are relied upon for 
judicial enforcement of racial restrictive covenants were 
advanced in the Buchanan and the other two cases as justifi­
cation for legislative action to enforce residential segrega­
tion. In the Buchanan case, this Court dealt with each of 
the assumed evils and held that they could not be solved by 
segregated residential areas and did not warrant the type 
of remedy sought to be justified. Efforts to circumvent this 
decision have been summarily disposed of by this Court.36

The right petitioners here assert is the civil right to 
occupy their property as a home—the same right which was 
recognized and enforced in Buchanan v. Warley.

B. Civil Rights A r e  Guaranteed b y  the Fourteenth  
Am endm ent Against Invasion b y  the Judiciary.

It is equally well settled that the limitations of the Four­
teenth Amendment apply to the exercise of state authority 
hy the judiciary. As long ago as 1879, in Ex Parte Vir­
ginia,31 this Court specifically recognized that the judiciary 
oni°yed no immunity from compliance with the require­
ments of the Fourteenth Amendment. In that case the state 
judge was held to be subject to the federal Civil Eights Act, 
despite the plea that in selecting a jury in a manner which 
excluded otherwise qualified persons solely on account of 
their color, the judge was exercising a function of his judicial 37

37 lOcTU°WSV'339^r an^ ^ chmond v> Deans> supra.



28

office. In an unbroken line of precedents since that time, 
this Court has again and again reaffirmed this proposition. 
For example, in Twining v. New Jersey,38 this Court said:

‘ ‘ The law of the state, as declared in the case at 
bar, which accords with other decisions * * * per- 
mitted such an inference to be drawn. The judicial 
act of the highest court of the state, in authoritatively 
construing and enforcing its laws, is the act of the 
state. * * # The general question, therefore, is, 
whether such a law violates the Fourteenth Amend­
ment, either by abridging the privileges or immuni­
ties of citizens of the United States, or by depriving 
persons of their life, liberty or property without due 
process of law.”  (211 U. S. 78, at pp. 90-91.)

It is readily conceded that the ‘ ‘ law ’ ’ to which the Court 
there referred was actually one of a series of rules, common 
law as well as statutory, which had been developed by the 
state authority, legislative and judicial, for the conduct of 
criminal trials. So classified, the opinion demonstrates the 
complete acceptance by this Court of the proposition orig­
inally announced in Ex Parte Virginia, that the procedure 
of state courts, whether provided by legislation or rule of 
decision by state courts, must meet the requirements and 
limitations of the Fourteenth Amendment.39

The obligation of the state judiciary to comply with the 
limitations of the Fourteenth Amendment, however, is not 
confined to procedure. On the contrary this Court has fre­
quently tested decisions of state courts on matters of sub­
stantive law against the requirements of the federal Consti­

38 211 U. S. 78.
39 See also: Hysler v. Florida, 315 U. S. 411; Brown, Ellington & 

Shields v. Mississippi, 297 U. S. 278; M oore v. Dempsey, 261 U. S. 
86; Norris v. Alabama, 294 U. S. 587; Powell v. Alabama, 287 U. S. 
45; Brinkerhoff Faris Co. v. Hill, 281 U. S. 673; Carter v. Texas, 
177 U. S. 442.



29

tution and has equally frequently recognized that it was 
obliged so to do by the Fourteenth Amendment. This is 
aptly demonstrated by the opinion of this Court in Cant­
well v. Connecticut.40 In that case, it will be remembered, 
the petitioner had been convicted on an indictment which 
contained four counts charging violation of express statu­
tory prohibitions, and a fifth count which charged a common 
law breach of the peace. The petitioner contended in apply­
ing for certiorari that his conviction on each of these counts 
violated the Fourteenth Amendment. This Court recognized 
that both the express statutory provisions and the substan­
tive determination of the common law obligation by the 
state court raised similar constitutional questions under 
the Fourteenth Amendment. In fact, this Court stated:

“ Since the conviction on the fifth count was not based 
upon a statute, but presents a substantial question 
under the federal Constitution, we granted the writ 
of certiorari in respect of it.”  (310 U. S. 266 at p. 
301.)

Again, at pp. 307-308:
“ Decision as to the lawfulness of the conviction (on 
the fifth count) demands the weighing of two con­
flicting interests. The fundamental law declares the 
interest of the United States that the free exercise 
of religion be not prohibited and that freedom to 
communicate information and opinion be not 
abridged. The state of Connecticut has an obvious 
interest in the preservation and protection of peace 
and good order within her borders. We must de­
termine whether the alleged protection of the State’s 
interest, means to which end would, in the absence 
of limitation by the federal Constitution, lie wholly 
within the State’s discretion, has been pressed, in 
this instance, to a point where it has come into fatal

40 310 U. S. 296.



30

collision with the overriding interest protected by the 
federal compact.”

At the next term this Court, even more forcibly enunci­
ated the requirement that decisions by state courts on sub­
stantive matters satisfy the requirements of due process. 
In Milk Wagon Drivers Union of Chicago, Local 753 v. 
Meadowmoor Dairies, Inc.,41 this Court granted certiorari 
to review an injunction of an Illinois court issued on the 
authority of that state’s common law which prohibited 
picketing, peaceful and otherwise, by a labor union. Despite 
a disagreement among the members of the Court as to the 
end result, it was agreed by all of the justices that the in­
junction had to be tested against the limitations of the Four­
teenth Amendment with respect to the protection of free­
dom of speech. The majority, speaking through Mr. Justice 
F eankfxjrteb, was of the opinion that the violence which 
had occurred outside of the picket line during the particu­
lar labor dispute was sufficient ground to justify the Illinois 
court in enjoining picketing, although admittedly the in­
junction deprived the trade union of its right to dissem­
inate information with respect to the labor dispute.

The dissent voiced by Mr. Justice B lack  addressed itself 
to the propriety of limiting the right of free speech because 
of violence not directly shown to have occurred in connec­
tion with the picketing. Both majority and minority, how­
ever, applied to the injunction the test of the Fourteenth 
Amendment. The unanimity in this Court on that proposi­
tion was plainly manifested when on the same day a unani­
mous Court again in American Federation of Labor v. 
Swing 42 tested another Illinois injunction, also issued on the 
authority of the common law of that state, which restrained 
peaceful picketing on the ground that the labor dispute was

41 312 U. S. 287.
42 312 U. S. 321.



31

not one between the complaining employers and his em­
ployees. Measured in terms of the Fourteenth Amendment, 
the Court concluded that this was an unlawful interference 
by the state with the right of free speech of the members 
of the trade union involved.43 44

So strong is this Court’s determination to protect 
fundamental rights against invasion by the state-judiciary 
that even in criminal contempt eases it has tested the 
validity of such convictions against the requirements of the 
Fourteenth Amendment. Thus, in Bridges v. State of Cali­
fornia,4i the majority of the Court was of the opinion that 
punishment of a trade union official and newspaper for con­
tempt because of out of court statements, which had been 
made with respect to litigation pending in the state court, 
was a violation of the Fourteenth Amendment because it 
was an unwarranted interference with the right of free 
speech. The minority, disagreeing with respect to the un­
reasonableness of the state’s action, readily agreed that the 
conviction had to be tested against the limitations of the 
Fourteenth Amendment.

Thus, both on analysis and on authority, it is plain that 
the acts of state courts are those of the state itself within 
the meaning of the limitations of the Fourteenth Amend­

43 It is significant that in the Meadowmoor case, even the majority 
recognized that if the effect of the violence which they deemed to be 
controlling on the constitutional issue should be shown to have been 
dissipated, the Fourteenth Amendment would require that the State 
court dissolve the injunction there approved. To the same effect see 
Bakery Drivers Local v. Wohl, 315 U. S. 769. See also Cafeteria 
employees Union, Local 302 v. Angelos, 320 U. S. 293, 294, where 
;t was said, “W e brought these two cases here to determine whether 
injunctions sanctioned by the New York Court of Appeals exceeded 
the bounds within which the 14th Amendment confines State power.” 
It should be noticed that neither of the cases referred to have the 
. tate c°urt relied on more for the common law authority for the 
issuance of the injunction.

44 314 U. S. 252.



ment. Any other conclusion in a common law system would 
be untenable. For, to the extent that the decisions of 
courts serve as authoritative precepts regulatory of con­
duct beyond the case in litigation, no logical distinction can 
be drawn between between the acts of the legislature and 
the decisions of the court. The creative role of the judi­
ciary as a source of law to meet the demands of society by 
filling the interstices between precedents, and between pre­
cedent and legislation has long been recognized.45 Where 
this Court is required to review the constitutionality of 
State law, it is plain that:

“ Whether the law of the State shall be declared by 
its legislature in a statute or by its highest court in 
a decision, is not a matter of Federal concern.” 46

IV

Judicial Enforcement of the Racial Restrictive Cove­
nant Here Involved is a Denial by the State 

of Michigan of the Petitioners’ Rights 
Under the Fourteenth Amendment.

A. The Decree of the State Court Was Based 
Solely on the Race of Petitioners.

Even a cursory examination of the record discloses that 
the controlling operative fact relied upon by the state court 
to justify ouster of petitioners from their home was their 
race.47

45 Cardozo, The Judge as a Legislator, The Nature of Judicial 
Process; Arthur L. Corbin, 29 Y a l e  L. J o u r n a l  771; See Swiss 
Code, quoted by Cardozo, op. cit. 140.

46 Erie v. Tompkins, 304 U. S. 64.
47 Interesting enough the finding of race was based solely on evi­

dence with respect to color (R . 22).



33

Pleadings, proceedings, and the opinion of the State 
Supreme Court all demonstrate that under the law of the 
state precedent required petitioners’ eviction if, and only 
if, they were found to be of other than “ the Caucasian 
race” .48 If the trial court had made the determination that 
petitioners were Caucasians, they would be occupying their 
home peacefully without threat of eviction.

At this period in the history of the United States, it is 
no longer necessary to demonstrate that state action which 
discriminates because of the race, color, religion or national 
origin of persons subject to the state jurisdiction violates 
the Fourteenth Amendment.

B. It is the Decree of the State Court Which 
Denies Petitioners the Use and Occupancy of 
their Home.

The foregoing authorities and analysis were urged upon 
the highest court of Michigan in this case. Nevertheless, 
that court refused to recognize its obligation to make a deci­
sion which conformed to the requirements of the Fourteenth 
Amendment in other than procedural matters. The court 
stated:

“ While we recognize that the concept of ‘ due process’ 
is incapable of exact definition, yet, ever since Buck 
v. Sherman, 2 Doug. 176, we have held that this con­
stitutional right means that every person having 
property rights affected by litigation is entitled to 
notice, and a day in court, or a reasonable opportunity 
to appear and defend his interest. * * * Such rights

48 The complaint alleged that the petitioners were of “ the Negro 
race” (R. 8 ) ;  the answer denied knowledge of their ancestry but de­
manded strict proof (R . 10) ; evidence on both sides of this issue was 
heard and the trial court made a specific finding with respect to the 
matter (R. 53) found to be adequate by the State Supreme Court



34

were accorded the defendants in the instant case” 
(R. 65-66).

Not only on the basis of sound legal analysis is this Court 
obliged to test the decree of the state court in this case 
against the limitations of the Fourteenth Amendment, but 
the facts and surrounding circumstances dictate the neces­
sity of such an inquiry, because it is the action of the court 
which will deprive the petitioners of their right to occupy 
their property as a home.

It has already been shown that during the year 1934 
certain residents and holders of title to property located 
in Seebaldt’s Subdivision of the City of Detroit agreed that:

“ This property shall not be used or occupied by any 
person or persons except those of the Caucasian 
race.”

Subsequently, as is the usual case in connection with urban 
property, title to some of the fifty-three lots sought to be 
covered by this restrictive agreement passed into the hands 
of persons other than the original signers of the restrictive 
agreement. One such person, for reasons neither appearing 
in the record nor material to the issue here, conveyed title 
to Lot 52 to petitioners, fully complying with all of the re­
quirements of the law of Michigan with respect to the trans­
fer of title in fee to that piece of property.49

Thereafter petitioners and their family, moved into the 
dwelling and occupied the premises as their home. Sub­
sequently, other signers of the restrictive agreement, or

49 It is admitted that the federal constitution did not preclude the 
owner of any piece of property sought to be covered by such an agree­
ment from freely picking and choosing among the persons whom he 
would permit to use or occupy his property as guests, lessees or pur­
chasers on the basis of race, religion, color, personality, education, 
occupation or on the basis of absolute whim and utter caprice.



35

persons privy thereto, instituted the present action to evict 
petitioners from their home. Thus, the mere existence of 
the agreement was not sufficient to prevent petitioners and 
their family from making their home in these premises. 
Instead, respondents sought the aid of state authority to 
accomplish the purpose which they had been unable to effect 
by the execution of the restrictive agreement.

Theoretically, there were four other alternative courses 
which respondents or some of them could have taken. They 
might have sought to persuade petitioners to move out, and 
the record shows that an attempt in this direction was made 
(E. 22). It was unsuccessful. There was, of course, nothing 
unlawful about such conduct, nor did it raise any constitu­
tional question, since truly this was the conduct of indi­
viduals with respect to other individuals.

As a second alternative they might have used force or 
threats of force to cause petitioners to move out. There 
can be no doubt but that this course would have brought 
down upon respondents the full force of the state authority 
to prevent injury to the persons or property of petitioners.50

Taking a more peaceful tack, respondents might con­
ceivably have applied to the state legislature to exercise its 
authority to oust petitioners from the premises in question 
by enacting statutes which would have compelled all persons 
to respect “ racial characteristics”  of established neighbor­
hoods. This Court long ago decided that any such legisla­
tive action would violate the Fourteenth Amendment.51

60 This Court can take judicial notice that in similar situations re­
course has been had to violence and threats of violence to accomplish 
the end here brought about by the decree of the State court. (Fill in 
instances of violence and police protection.) Here, however, the 
State Circuit Court of Wayne County serves the same purpose.

Buchanan v. Warley and others. Even such an ingenious device 
as the one reviewed by the Texas Supreme Court in City o f Dallas v. 
Liberty Annex Corp., 295 S. W . 591, failed under this prohibition.



36

Recourse to the active police authority of the state might 
have been undertaken to eject petitioners, but there can be 
no doubt that the executive arm of the state government 
would have been obliged to conform to the limitations of 
the Fourteenth Amendment.52

This record is barren of any indications that it is any­
thing other than the decree of the state court which operates 
to deny to petitioners the right to occupy as their home the 
premises to which they hold title. The decree of the Circuit 
Court affirmed by the Supreme Court of Michigan ordered 
petitioners to move from their property within ninety days 
and declared that they “ are hereby restrained and enjoined 
from using or occupying said premises”  (R. 53). The 
covenant did not prevent petitioners from purchasing, using 
and occupying their property.

It is not the private respondents, but the State of Michi­
gan, acting through its courts, that prevents petitioners 
from using and occupying their property. Failure of the 
petitioners to comply with the order of the Court would set 
in motion governmental machinery leading to contempt 
citations and imprisonment in the jails maintained by the 
State of Michigan.

C. Neither the Existence of the Restrictive Agree­
ment Nor the Fact That the State’s Action Was 
Taken in Reference Thereto Alters in Any Way 
the State’s Responsibility Under the Fourteenth 
Amendment for Infringing a Civil Right.

The existence of a legal right to acquire a home from 
any willing seller and to own and occupy that home has 
already been demonstrated under Point II of this brief.

52 Home Telegraph v. Los Angeles, 227 U. S. 278; Yick Wo v. 
Hopkins, 118 U. S. 356.



37

That right is recognized by the Constitution and laws of the 
United States and the decisions of this Court. Its exercise 
is protected by the Fourteenth Amendment against any 
racial impediment imposed by any form of state action.

In this case, it appears to be the position of respondents 
that only the private covenantors do the discriminating 
while the state, as an impartial, if essential, third party 
merely enforces the private agreement without concern for 
its content, as it allegedly would do in any other business 
agreement. However, the role and responsibility of the 
state in sanctioning or refusing to sanction such an agree­
ment or any agreement cannot be divorced from the subject 
matter of the agreement. Under our system of law, judicial 
action in such a case as this can only be the result of the 
judge’s conclusion that he is vindicating some interest or 
interests of public concern and worthy of the state’s pro­
tection.

The history of restrictive covenants as outlined in Point 
I of this brief clearly shows the judicial balancing of in­
terests as new doctrine emerged. In the present case, the 
action of the courts below must have been predicated upon 
a conclusion that it was a matter of serious public concern 
to compel the carrying out of bargains in general and to 
protect the private interest of the respondents in getting 
the benefit of their bargain in this case. The state courts 
failed, however, to recognize their duty to weigh these claims 
tending to induce state action against essential interests 
adversely affected by enforcement of the agreement as well 
as against the obligation of the state to protect the civil right 
involved in this ease.

The predominance of social interests adverse to enforce­
ment has given rise to the entire body of the illegal and 
unenforceable contracts. The recognition of such interests 
here, as they are developed in Point V of this brief, would



have resulted in a conclusion that the agreement was against 
public policy. But more significant, at the present stage of 
the litigation, is the fact that this Court, in a group of 
recent cases, has held that the desire of the state to promote 
well-recognized and accepted private and public interests 
must be subordinated to the obligation of the state to respect 
fundamental constitutionally protected civil rights.

In Cantwell v. Connecticut,58 the desire to protect what 
the state understandably considered important public and 
private interests led the state court to invoke common law 
doctrine definitive of breach of the peace and to impose 
criminal sanctions against the defendant. However, in so 
doing, the state court caused the interests which appealed 
to its judgment to prevail over a fundamental civil right. 
This Court concluded that the abridgement of that civil 
right though made in favor of substantial competing inter­
ests could not stand—the constitutionally protected civil 
right had to be respected even if some sacrifice of other 
interests of legitimate concern was a necessary result.

The means employed by the court can be reasonably 
considered as being adapted to the accomplishment of this 
legitimate end. Similar basic considerations underlay the 
injunction in American Federation of Labor v. Swing F In 
addition, there was legitimate public concern with protect­
ing the interests of the employer in maintaining and operat­
ing his business. But in this case again, as in the Cantwell 
case, the state’s concern to protect property and to pre­
serve peace and good order when translated into judicial 
action came “ into fatal collision with the overriding inter­
ests protected by the federal compact” .56 53 54 55

53 310 U. S. 296.
54 312 U. S. 321.
55 3 1 0 U. S. 296, 308.

38



39

In Marsh v. Alabama,56 the concern of the state in assist­
ing the owner of land to exclude others from his property 
and the general interests of the state in peace and good 
order could not override the right of the individual to exer­
cise his fundamental and constitutionally protected liberty 
of speech and worship. A significant analogy under the 
National Labor Relations Act is presented by Republic Avi­
ation Corp. v. National Labor Relations Board.51 There 
this Court struck down the application of a general rule of 
the employer against solicitation on his property, ap­
parently imposed in good faith and for reasonable purposes, 
to a situation where solicitation of union membership had 
occurred on the employer’s parking lot at lunch time. The 
employer was not permitted to exercise normal and reason­
able control over the use of his property when the conse­
quence was the abridgement of a federally protected right.

In each of these cases, the state court concluded that 
public interests of substance were being prejudiced and in­
jury was being suffered by private persons. With an eye 
solely to such considerations it regarded any effect which 
its judgment might have upon a civil right as an unavoid­
able and unintended incident of action which had ample 
justification. Yet, in none of these cases could the state 
escape the obligation of squaring its action with the over­
riding mandate of the Fourteenth Amendment or other 
source of fundamental rights regardless of the consequence 
of such squaring to other interests. No more can the pro­
tection of the plaintiffs here from the loss of the value of 
their bargain, or the vindication of any other public interest 
which the state court may deem important, justify the state ’s 
interference with the petitioners’ right of access to a home 
free from all impediment based on race.

56326 U. S. SOI. 
67 324 U. S. 793.



3

40

The Fact That Neither Petitioners Nor Their 
Grantors W ere Parties to the Covenant Further 
Emphasizes the State’s Responsible and Pre­
dominant Role in the Action Taken Against 
Them.

Petitioners ’ grantors have not at any time agreed to 
refrain from selling their property to Negroes. The restric­
tive agreement upon which the court predicated its order 
directing petitioners to move from their home was signed 
in 1934 by predecessors in title of petitioners’ grantors. 
Neither petitioners nor their grantors are parties to the 
agreement.

If any doubt exists as to the extent or significance of 
state action involved in court enforcement of a racial re­
strictive agreement as to occupancy of land between original 
parties to the agreement, an examination of the history of 
“ covenants running with the land”  reveals that insofar as 
they impose obligations on third persons, such covenants 
are wholly the creature of equity.

The development of the various devices to give sub­
stance to restrictions on use of land has been fully discussed 
in Point I of this brief. Here it is important to note that, 
in the words of Dean (later Chief Justice) Stone, they have 
their origin in contract “ and their nature and extent de­
pend upon the extent to which equity will compel compli­
ance with the covenant, not only by and for parties to it, 
but by and for third persons. * # * ”  58

Further, it is asserted that in creating the doctrine of 
equitable servitudes as transferable choses in action, equity

58 Stone, “ Equitable Rights and Liabilities of Strangers to a Con­
tract,”  18 C o l . L. R e v . 295.



41

exercised broader power than the common law had con­
templated, for:

‘ ‘ It is obvious that equity in enforcing the burden 
of the contracts on third persons had departed from 
the rules of property, because of their inadequacy 
and inapplicability to certain situations.” 59

Since the rights thus enforced against third persons find 
their basis in the powers of courts of equity alone,

“ A legitimate limitation on the doctrine of the 
equitable burden is the rule that such contracts will 
be strictly interpreted and the rule that equity may, 
in its discretion, refuse relief where owing to the 
change of conditions, enforcement of the restrictive 
covenant would be very burdensome to the defendant 
and of little benefit to the plaintiff. ’ ’ 60

The chose in action created by the contract was not at 
common law freely transferable, but equity overcame this 
obstacle by holding that, “ the transferee of the cove­
nantee’s land is by operation of law vested with the right 
to enforce the covenant. ’ ’ 61

Dean (later Chief Justice) Stone, concluding his survey, 
finds proof in this doctrine that equity is still a live and 
forceful field of jurisprudence:

“ Consideration of the ways in which equity has 
extended the rights and liabilities of third persons 
will lead to the conclusion that, as an effective in­
strumentality for expanding and developing our law, 
equity is in no proper sense decadent, but is rather 
a vital force. ’ ’ 62

69 Ibid., p . 322.
99 Ibid., p 323.
1 Stone, “ Equitable Rights and Liabilities of Strangers to a Con­

tract,” 19 Co l . L. R e v . 177, 182.
62 Ibid., p. 191.



42

Should it be argued that between parties to such a re­
strictive agreement, as presented here, the courts have 
some extraordinary power to make a party keep his promise 
without regard to the Fourteenth Amendment, there is not 
even colorable basis for such an evasion of constitutional 
obligation where the enforcement runs against persons not 
party to the agreement. If, as between the original parties, 
any significance can be attached to the fact that the Court 
is giving effect to the will of the parties, in the case of a 
third person not a party to the contract the court is im­
posing upon those who never have assented an extraordinary 
obligation of its own devising. In the latter case—the 
instant case—the state, through its court of equity, becomes 
in a very special sense the creative and moving force, solely 
responsible for the abridgement of the grantor’s power of 
disposition and the grantee’s power of acquisition.

D. Petitioners’ Right to Relief in This Case Is Not 
Affected by the Decision in Corrigan v. Buckley.

In both the trial court and in the Supreme Court of 
Michigan, petitioners pressed the contention that judicial 
enforcement of the covenant would violate the Fourteenth 
Amendment (R. 6, 17). The latter court disposed of this 
contention in the following manner:

11 It is argued that the restriction in question vio­
lates the 14th Amendment to the Constitution of the 
United States. Appellees say that this argument was 
answered in Corrigan v. Buckley, 271 U. S. 323 (70 
L. ed. 969). We so read the Corrigan case, although 
that decision partly turned on the inapplicability of 
the equal protection clause of the 14th Amendment to 
the District of Columbia, and the appeal was dis­
missed for want of jurisdiction”  (R. 66).

In like manner, judicial enforceability of racial restric­
tive covenants has generally been assumed to follow from



43

Corrigan v. Buckley.™ A reexamination of that case will re­
veal that there has been widespread misconception of its 
holding, and will demonstrate that the issue here presented 
was neither presented nor decided there.

In 1921, 30 white persons, including the plaintiff and 
the defendant Corrigan, who owned 25 parcels of land situ­
ated in the City of Washington, executed and recorded an 
indenture in which they mutually covenanted that no part 
of these properties should he used or occupied by, or sold, 
leased or given to, any person of the Negro race or blood, 
for a period of 21 years. During the ensuing year, defen­
dant Corrigan entered into a contract to sell to defendant 
Curtis, a Negro, a parcel included within the terms of the 
indenture. Plaintiff thereupon brought suit praying that 
defendant Corrigan be enjoined during the term of the in­
denture from conveying to defendant Curtis, and that de­
fendant Curtis be enjoined from taking title to the lot dur­
ing such period, and from using or occupying it. Defen­
dant Corrigan moved to dismiss the bill on the grounds that 
the “ indenture or covenant made the basis of said bill”  
is (1) “ void in that the same is contrary to and in viola­
tion of the Constitution of the United States,”  and (2) “ is 
void in that the same is contrary to public policy.”  Defen­
dant Curtis moved to dismiss the bill on the ground that it 
appeared therein that the indenture or covenant “ is void, 
in that it attempts to deprive the defendant, the said Helen 
Curtis, and others of property, without due process of law; 
abridges the privilege and immunities of citizens of the 
United States, including the defendant Helen Curtis, and 
other persons within this jurisdiction (and denies them) 
the equal protection of the law, and therefore, is forbidden 
by the Constitution of the United States, and especially by 
the Fifth, Thirteenth, and Fourteenth Amendments thereof,

271 U. S. 323.



44

and the Laws enacted in aid and under the sanction of the 
said Thirteenth and Fourteenth Amendments.”  This mo­
tion was overruled. Defendants elected to stand on their 
motions, and a final decree was entered enjoining them as 
prayed in the bill. An appeal was taken to the Court of Ap­
peals for the District of Columbia64 where the issue was 
stated as follows:

“  *■* * The sole issue is the power of a number 
of landowners to execute and record a covenant run­
ning with the land, by which they bind themselves, 
their heirs and assigns, during a period of 21 years, 
to prevent any of the land described in the covenant 
from being sold, leased to, or occupied by Negroes” 
(299 F. 899, 901). (Italics ours.)

After affirmance by the Court of Appeals, an appeal was 
taken to this Court;65 based entirely upon defendants’ con­
tention that the coven,ant was void because it violated 
the Fifth, Thirteenth and Fourteenth Amendments of the 
Constitution and Section 1977, 1978, and 1979 of the Be- 
visecl Statutes (IJ. S. Code, Title 8, Sections 41, 42 and 43). 
This Court affirmed and in so doing established the follow­
ing propositions (numbers ours):

(1) “ Under the pleadings in the present case the only 
constitutional question involved was that arising 
under the assertions in the motions to dismiss that 
the indenture or covenant which is the basis of the 
bill, is ‘ void’ in that it is contrary to and forbid­
den by the Fifth, Thirteenth and Fourteenth 
Amendments. This contention is entirely lacking

64 55 App. D. C. 30, 299 F. 899 (1924).
65 Section 250 of the Judicial Code (36 Stat. 1159), as it read on 

the critical date, authorized appeals in six sorts of cases, including 
(Third) “ cases involving the construction or application of the Con­
stitution of the United States * * * ” and (Sixth) “ cases in which 
the construction of any law of the United States is drawn in question 
by the defendant.”



45

in substance or color of merit. * # # (The Court 
pointed out that the Fifth and Fourteenth Amend­
ments dealt only with governmental action and not 
with the action of private persons, and that the 
Thirteenth Amendment dealt only with involun­
tary servitude) * * * It is obvious that none of 
these amendments prohibited private individuals 
from entering into contracts respecting the control 
and disposition of their own property; and there is 
no color whatever for the contention that they ren­
dered the indenture void * # # (271 U. S. 323, 330).

(2) “ And, plainly, the claim urged in this Court that 
they were to be looked to, in connection with the pro­
visions of the Revised Statutes and the decisions of 
the courts, in determining the contention, earnestly 
pressed, that the indenture is void as being ‘ against 
public policy’, does not involve a constitutional 
question within the meaning of the Code provi­
sion * * * (271 IT. S. 323, 330).

(3) “ The claim that the defendants drew in question 
the ‘ construction’ of sections 1977, 1978 and 1979 of 
the Revised Statutes, is equally unsubstantial. The 
only question raised as to these statutes under the 
pleadings was the assertion in the motion inter­
posed by the defendant Curtis, that the indenture is 
void in that it is forbidden by the laws enacted in 
aid and under the sanction of the Thirteenth and 
Fourteenth Amendments. * * * they, like the Consti­
tutional Amendment under whose sanction they were 
enacted, do not in any manner prohibit or invali­
date contracts entered into by private individuals 
in respect to the control and disposition of their 
own property. There is no color for the contention 
that they rendered the indenture void; nor was it 
claimed in this Court that they had, in and of them­
selves, any such effect * * * (271 IT. 8. 323, 330-331).

(4) “ And while it was further urged in this Court 
that the decrees of the courts below in themselves 
deprived the defendants of their liberty and prop-



46

erty without due process of law, in violation of the 
Fifth and Fourteenth Amendments, this conten­
tion likewise cannot serve as a jurisdictional basis 
for the appeal. Assuming that such a contention, 
if of a substantial character, might have constituted 
ground for an appeal under paragraph 3 of the Code 
provision, it was not raised, by the petition for the 
appeal, or by any assignment of error, either in the 
Court of Appeals or in this Court; * * * (271 U. S. 
323,331).

(5) * * * * *  we cannot determine upon the merits the 
contentions earnestly pressed by the defendants in 
this court that the indenture is not only void be­
cause contrary to public policy, but is also of such 
a discriminatory character that a court of equity will 
not lend its aid by enforcing the specific enforce­
ment of the covenant. These are questions involv­
ing a consideration of rules not expressed in any 
constitutional or statutory provision, but claimed 
to be a part of the common or general law in force 
in the District of Columbia; and, plainly, they may 
not be reviewed under this appeal unless jurisdic­
tion of the case is otherwise acquired.
“ Hence, without a consideration of these questions, 
the appeal must be, and is dismissed for ivant of 
jurisdiction”  (271 IT. S. 323, 332). (Italics ours.)

So it is crystal clear that this Court did not and could 
not pass upon the constitutional propriety of judicial en­
forcement of a racial restrictive covenant. Such ques­
tion could only be considered if the Court had acquired 
jurisdiction and had examined the case on its merits. While 
the Corrigan v. Buchley decision contains an intimation by 
way of dictum that no substantial constitutional question 
was presented by the facts of that case, it is to be remem­
bered that this Court was not then committed to the doc­
trine that common law determinations of courts could con­
stitute reviewable violations of the Federal Constitution.



47

V
While No State-Sanctioned Discrimination Can Be 

Consistent With the Fourteenth Amendment, the 
Nation-Wide Destruction of Human and Economic 
Values Which Results From Racial Residential 
Segregation Makes This Form of Discrimination 
Peculiarly Repugnant.

A. Judicial E nforcem ent o f R estrictive Covenants 
Has Created a Uniform  Pattern o f  U nprece­
dented O vercrow ding and Congestion in the  
Housing o f N egroes and an Appalling D eteri­
oration o f Their D w elling Conditions. The  
Extension and A ggravation  o f Slum Conditions 
Have in Turn R esulted in a Serious R ise in 
Disease, Crim e, V ice , Racial Tension and M ob  
Violence.

1. The Immediate Effects of the Enforcement 
of Covenants Against Negroes.

The race restrictive covenant is a relatively new device 
which has become the vogue in conveyancing in many urban 
centers of the North. Its use is increasing in epidemic pro­
portions.1 Primarily it is employed to bar the Negro and 
certain other minority groups from most residential areas, 
and thus effectively limits the space and housing facilities 
in which these Americans may live.

Ironically, the restrictive covenants thrive—indeed they 
become possible—only where they do the most harm and 
work the greatest injustice. The effects of these covenants 
can be properly evaluated only if they are viewed against

'  Abrams, Discriminatory Restrictive Covenants— A  Challenge to 
V American Bar, address before Bar Association of the City of New 
York< February 19, 1947, pp. 1-2.



the background of rapid urbanization of the Negro popula­
tion—a process which began to gather momentum with the 
“ Great Migration”  of World War I. In Detroit, forex- 
ample, the decade between 1910 and 1920 saw 35,000 Negroes 
pour into a city which previously had less than 6,000—an 
increase of 600 per cent, in ten years. This accelerated trend 
has continued ever since as the following table indicates:

Number and Per Cent of Negroes in the Total Population of 
D etro it , 1910-40.

48

1910 1920 1930 (3> 1940(b)
No. of Negroes 5,741 40,838 120,066 149,119
Per Cent of

Total Population 1.2% 4.1% 7.7% n°fo
3 Source: Bureau of Census, Negroes in the United States, 1920-32, 

1935, table 10, p. 55.
b Source: Bureau of the Census, 16th Census, 1940.

This pattern is by no means peculiar to Detroit but is typical 
of all of the large urban areas in the North.2

World War II occasioned another major movement of 
Negroes to Detroit, the volume of which can best be com­
prehended by considering the whole Detroit metropolitan 
area rather than the city proper. This development, as 
reflected by the data for non-whites (of whom over 95 per 
cent were Negroes), is shown in the following table:

Number and Per Cent of Non-white Resident in Detroit 
Metropolitan Area, 1940 and 1947*

1940 1947
No. of non-whites 171,877 348̂ 245
IPer Cent of non-whites 7% 13%
3 Source: Bureau of the Census, Current Population Reports, Popu­

lation Characteristics, Series P. 21, 1947.
2 Bureau of Census— Negroes in the United States, 1920-32, 1935, 

table 10, page 55.



49

The recent war also occasioned the movement of an un­
precedented number of Negroes to the West Coast. In Los 
Angeles, the Negro population increased 108.7 per cent 
from 1940 to 19463 and in San Francisco, 560.4 per cent 
from 1940 to 1945.4 *

With each new wave of Negro migration into the cities 
of the North, restrictive covenants hemming them into 
limited areas of living, became more and more extensive.® 
As the colored population grew, the supply of shelter dimin­
ished. In the metropolitan district of Detroit, for example, 
the non-white population, which constituted seven per cent 
of the total in 1940, occupied seven per cent of the dwelling 
units in the area.6 By 1947, non-whites were 13 per cent, 
of the residents in the metropolitan district but they occu­
pied only 11 per cent of the dwelling units. In other cities, 
including Chicago, Los Angeles, Washington, Baltimore, 
Toledo and Columbus, where racial covenants are prevalent, 
non-whites similarly failed to get a numerical share of exist­
ing housing proportionate to their percentage in the total 
population.7

While some individuals in most migrant groups found 
escape from the slum and blighted areas as they improved

3 Special Census, Race, Sex by Census Tract, U. S. Census as of 
Jan. 28, 1946.

4 Special Census, Race, Sex by Census Tract, U. S. Census as of 
Aug. 1, 1945.

“ Weaver, Race Restrictive Housing Covenants, Journal of Land 
and Public Utility Economics, Aug., 1944, p. 185.

6 It should be noted that the term “ dwelling unit”  has a different 
meaning when applied to housing occupied by white and by colored 
people. Because of the high incidence of improvised conversions, and 
great overcrowding in the Black Belt a dwelling unit there is often 
no more than a single room.

7 See chart entitled “ Total Population, Non-White Population, Per­
centage of Non-White * * * in Selected Northern and Border Metro­
politan Districts, 1940 and 1947” in Appendix A, p. 92.



50

their economic and cultural status,8 the degree of concen­
tration of Negroes has increased with the passing of time.9 
Spatial separation of ethnic groups, which was temporary 
for European immigrants and native white migrants, became 
permanent for colored Americans. For the latter group 
this separation was no longer occasioned by economic forces 
alone. Residential segregation was not a voluntary matter 
for Negroes; it was enforced. A new and distinctly Ameri­
can ghetto was developing, and race restrictive covenants, 
enforced by the courts, were the principal instrument in 
institutionalizing this pattern in American cities.

In this situation, only two things could possibly happen. 
Either the Black Belt could attempt to absorb more inhabi­
tants or the areas available to Negroes could expand. The 
prevalence and enforcement of restrictive covenants sharply 
reduced the possibilities of expansion and free movement 
of Negro families regardless of their income or cultural 
level, thereby intensifying the overcrowding of already 
densely populated Negro ghettos. This resulted in an alarm­
ing decline in the living standards of a large segment of 
our population.

(a) Overcrowding

The accepted standard by which the housing experts 
measure overcrowding in dwellings is the relationship be­
tween the number of persons and the number of rooms. A

8 The President’s Conference on Home Building and House Owner­
ship, Report of Committee on Negro Housing, Negro Housing, 1932, 
p. 5; Park, Burgess and McKenzie, The City, University of Chicago 
Press, 1925, pp. 47-79; Burgess, Residential Segregation in American 
Cities, Annals of the American Academy of Social and Political Sci­
ence, November, 1928, pp. 108-12; Cressey, The Succession of Cul­
tural Groups in the City of Chicago, University of Chicago, 1930 
(A  Ph.D. thesis in the Development of Sociology, pp. 58-9; 84-94, 
tables VI, V III and X.

9 Cressey, op. cit., p. 94, table X I.



51

dwelling is regarded as overcrowded when there are fewer 
rooms than there are persons to live in them.10 Measured 
by this definition, 27 per cent of all housing occupied by- 
Negroes in the City of Detroit was overcrowded in 1944.11 
Similarly, it is reported that in 1940, 24.8 per cent of all 
dwelling units occupied by non-whites contained six or more 
persons.12 It has been reliably estimated that if all Negro 
families in Detroit in 1946 had been safely housed (and 
here the very conservative average of four persons per 
occupied dwelling unit was used as a standard), an addi­
tional 19,000 dwellings for Negro occupancy would have 
been required over and above the 35,000 in existence in 
1940.13

The same situation of extreme density of population is 
found in most of the other Northern urban centers.14 In 
1943 density in the heart of the Chicago Black Belt had 
reached 80,000 persons per square mile, so that into an area

10 Edith Elmer W ood, I ntroduction to H ousing, U. S. H. A. 
Washington, 1939, p. 36.

11 T he People of Detroit, Master Plan Reports, Detroit City 
Planning Commission 1946, p. 19. Of the overcrowded dwelling units 
occupied by Negroes in Detroit, 9.2 per cent (as compared to 3.4 
per cent of the total number of dwelling units) showed a ratio of 
more than 1.5 persons per room.

18 Table 9, H ousing— General Characteristics, Michigan, 16th 
Census of the United States, 1940.

13 People of Detroit, ibid, footnote 11.
14Per Cent of Total Dwelling Units With From 0.5 to 2 or More 

Persons Per Room, in the North and West, 1940a:

.. Urban North Urban West
JNo. of persons per room White Non-White White Non-White

°-5r or le ss ......................  32.8 25.4 35.3 27.7
0.51 to 1XX)...................  53.7 49.3 53.0 49.7
J-01 t0 1-50 ...................  9.7 14.4 7.2 11.9
*•51 to 2.00 ...................  3.1 8.0 3.2 7.3

or m ore.................. 0.7 2.9 1.4 3.3

’ Source: Housing, Vol. II, Part I, table 4, 16th Census of the United States.



52

of only 7% square miles there were compressed 300,000 
colored Americans.15 In a sample study conducted in Chi­
cago in 1944, it was found that 4.4% of the city’s dwelling 
units were occupied by more than 1.5 persons per room, 
whereas in an area (exclusively inhabitated by Negroes) 
more than one-third of the dwelling units were so occupied, 
The 75 structures in this sample area were designed—or 
more accurately, converted—to house 135 families, but at 
the date of inspection were occupied by more than two and 
one-half times that number.16

The following chart showing the relative incidence of 
overcrowding in white and Negro neighborhoods in a few 
other cities in 1945 follows the same pattern:

Per Cent of Tenant Occupied Dwelling Units With More 
Than 1.5 Persons Per Room, by Race, 1945a

White Negro
Cincinnati 6,9 15.3
Cleveland 1.9 8.7
St. Louis 5.1 20.2
Indianapolis 3.0 7.0

a Source: Special surveys of Census Bureau and Bureau of Labor 
Statistics.

With respect to our Nation’s Capital, the information 
contained in the brief submitted to this Court by the Peti­
tioners in the cases of Urciola v. Hodge and Hurd v. Hodge, 
shows most graphically the same appalling condition of 
overcrowding in the Negro areas of Washington.17

15 Cayton, H ousing for Negroes, Chicago Sun, Dec. 13, 1941
16 T he Slum  . . .  Is R ehabilitation Possible ? The Chicago 

Housing Authority, 1946, p. 15. (The area chosen was picked as 
representative of Negro slum conditions, neither the best nor the 
worst block in the Black Belt.)

11 Hurd v. Hodge et al., No. 290, October Term, 1947; U r c m  
et al. v. Hodge et al., No. 291, October Term, 1947.



53

The immediate effect of the enforcement of restrictive 
covenants is abundantly clear from the statistical evidence. 
Because Negroes have been unable to exercise their civil 
right to move freely to new living quarters, the Black 
Ghettos have become increasingly and dangerously over­
crowded.

(b) Conditions of Dwellings

It is a corollary of overcrowded housing that the condi­
tions of living inevitably fall far below the standards of 
safety and health which every citizen has reason to expect. 
The continuous process by which thousands of new Negro 
migrants arrive annually in the Black Belts of our Northern 
cities results in a perpetual deterioration in the living con­
ditions of these people. The impact upon the Negro has 
been disproportionately severe. He pays higher rentals for 
inferior dwellings 18—inferior to the point of endangering 
the lives and well-being of himself and his children. Be­
cause of the discrimination practiced through restrictive 
covenants, only a small portion of the total housing supply 
is opened to the Negro and the opportunity of improving 
his status, with respect to the barest necessities of living, 
is cut off in deference to the “ private agreement”  of his 
white neighbors.

Viewing the condition of dwellings upon a nation-wide 
basis, it will be seen from the 1940 Census that 83 per cent 
of the dwellings occupied by Negroes were in need of major 
repairs or contained plumbing deficiencies. The compar­
able figure for white dwellings was 45 per cent. Twenty-six 
per cent of the dwellings occupied by non-whites which 
needed major repairs were without running water (9.2 was

18 Robinson, R elation Between Condition of D wellings and 
Rentals, by Race, Journal of Land and Public Utility Economics, 
August, 1946, pp. 299-302.



54

the ratio in white dwellings). In those non-white dwellings 
which did not require major repairs, 35.5 per cent were 
without running* water as compared to 17.4 per cent of the 
white dwellings. While 59 per cent of all dwelling units 
occupied by whites had private baths and toilets, these 
necessities were found in only 20.5 per cent of non-white 
dwellings.19

In the North and West, where there was less differential 
in Negro and white incomes than in the South, the racial 
differential in the quality of housing was outstanding, as is 
shown in the following table.

State of Repair and Plumbing Equipment for Occupied 
Dwelling Units in the North and West, by Race, 1940a

Per Cent o f Total Units for Each Group

The North Total Whites Non-Whites

Needing major repairs or with 
plumbing deficiencies.......... 24.9 23.5 52.1

With plumbing deficiencies but 
not needing major repairs . . 14.8 14.2 25.8

Needing major repairs .......... 10.1 9.3 26.3
The West

Needing major repairs or with 
plumbing deficiencies.......... 20.1 19.6 36.9

With plumbing deficiencies, but 
not needing major repairs . . . 11.2 11.0 18.6

Needing major repairs .......... 8.9 8.6 18.3

3 Source: Housing, Volume II, General Characteristics, Part I
United States Summary, 16th Census of the United States,
tables 6b and 6c.

The condition of dwelling units among whites and non- 
whites in the City of Detroit is graphically portrayed in a

19 Housing, Volume II, G e n e r a l  C h a r a c t e r is t ic s , Part I, 
U n it e d  S t a t e s  S u m m a r y , 16th Census of the United States, 1940.



55

recent report of the Bureau of The Census of the United 
States Department of Commerce. The higher incidence 
of substandard20 dwellings among non-whites is apparent 
from the following chart drawn from this Census report:

A Comparison of the Condition o f Dwelling Units in 
The City of Detroit, 1947 a

White 
Per cent

Non-White 
Number Percent

Substandard............................. 9% 26,269 31%
Needing major renairs.......... 3% 21,208 25%
Lacking private bath ............ 1% 6,266 8%
Lacking private toilet .......... 5% 5,784 7%
No running water in unit . . . 1% 1,687 2%

“ Source: Current Population Reports, Housing, Characteristics of 
Detroit, Michigan, April, 1947, Bureau of the Census, 
Series P/71, No. 19.

Of all of the substandard units in Detroit, those occu­
pied by non-whites accounted for 33 per cent. This is to be 
contrasted with the fact that the non-whites occupy only 11 
per cent of all currently occupied units in the city.

In the heart of the Negro areas of Detroit, the condi­
tions are even more deplorable. In census Area K, which 
includes the so-called “ Black Bottom”  and “ Paradise Val­
ley”  slums in which it is estimated 203,000 Negroes are 
forced to live, sanitary engineers who recently checked the 
area found that between 90 and 95 per cent of all houses 
were substandard.21

"“ Substandard is used herein to designate a dwelling needing major 
repairs or lacking private bath, toilet or running water.

_1 Velie, Housing: Detroit’s Time Bomb, Collier’s, November 23, 
1946, p. 77.



56

A recent study of sixteen Northern and Western cities, 
including Detroit, revealed that while only 16.5 per cent of 
the white units were substandard (i. e. needing major re­
pairs or with plumbing deficiencies), 44.9 per cent of the 
non-white units were deemed to be substandard.22

This analyst finds: “ analysis of the relationship 
between the condition of dwellings and rental value 
for units occupied by white families and those occu­
pied by non-white families reveals that the non-white 
group receives proportionately more substandard 
housing than does the white group for the same rent 
or rental value.23

“ The differentials revealed in this analysis may 
be imputed to the effect of residential racial restric­
tions. This is supported by the fact that the pro­
portionate differentials between the two racial groups 
are greatest in the higher rental value brackets where 
racial restrictive practices operate to maintain a 
highly discriminatory market, and in the Northern 
and Western cities where the in migration of non­
whites from the South has accentuated racial re­
strictive practices and greatly accelerated the market 
in the constricted areas to which the non-white group 
is arbitrarily confined.” 24

The following comparison between two sample blocks in 
the City of Detroit is also revealing. The first block is 
occupied exclusively by Negroes; the second exclusively by 
whites. Although the rent of both of these blocks was al­
most identical, the disparity of condition, density of popu­
lation, and age of dwellings is great.

22 Robinson, Relation Between Condition o f Dwelling and Rentals 
by Race, The Journal of Land and Public Utility Economics, Volume 
X X II, No. 3, October, 1946, p. 297.

23 Ibid., p. 298.
24 Ibid., p. 302.



57

Characteristics of a Sample Negro-Occupied and a Sample 
White-Occupied Block in Detroit, 1940a

Block No. 14, 
Census Tract 537 

(Negro occupied)

Block No. 15, 
Census Tract 566 

(White occupied)

Average Monthly Rental ............... $23.41 $23.61
No. Dwelling units per structure 

(approximate) ............................... 3 1
Per cent Dwelling units built before 

1900 ................................................. 2.3 0
Per cent Dwelling units built before 

1900 and 1919 ............................... 86.3 23.8
Per cent Dwelling units built be­

tween 1920 and 1929 ................... 11.4 76.2
Per cent Dwelling units needing 

major repairs or lacking private 
bath facilities ................................. 97.0 10.7

Per cent Dwelling units with more 
than 1.5 persons per room ........ 8.9 5.4

a Source: United States Census, Housing Supplement, Block Sta­
tistics, Detroit, March, 1940.

It is apparent from these official statistics that the com­
pression of one racial group within strict geographical 
boundaries has overcrowded the inhabitants beyond en­
durance. It is equally clear that in those cities which 
represent the highest technological development of our 
civilization, a large and important segment of onr popula­
tion lives in unparalleled squalor. These are the immedi­
ate effects of restrictive covenants and the sanction given 
to them.

2. The Results of Slum Conditions in Negro 
Housing.

The restrictive covenant is the instrument by which the 
normal expansion of living facilities available to Negroes 
has been made impossible. The needs of Negroes have not



58

been met by new housing since a large proportion of this 
housing is covered by racial covenants,23 and the areas occu­
pied by colored Americans have been surrounded by racial 
covenants, public facilities, or economic and industrial prop­
erty. Thus, the supply of available shelter has never caught 
up with the demand. The poorly housed have become more 
poorly housed. The Black Belt in every city has become a 
slum—the ultimate in the degeneration of the Am erican 
dwelling place.

The results of these conditions in terms of public wel­
fare and community life are amply documented by public 
record. This Court may take notice of the higher incidence 
of disease, crime, vice, and violence in unhealthy and de­
plorable living areas. It is here proposed to set out in 
summary form some of the observations and conclusions of 
experts in these special social fields with particular ref­
erence to the conditions existing in the Negro ghetto.

The chain of causation is apparent; these are the effects, 
once removed, of the judicial sanction which the courts have 
given to race restrictive covenants. There are the products 
of enforced residential segregation.

a. The Effect of Residential Segregation on Health.

It has been demonstrated above that residential segre­
gation inevitably forces the segregated group into blighted 
and overcrowded areas. These conditions in themselves 
create a serious health hazard regardless of the economic 
status of the segregated group. Authorities in the field of 25

25 A  recent summary demonstrated that in 315 subdivisions opened 
in the last 10 years in Queens, Nassau and Southern Westchester 

(New York) over half the dwelling units were covered by racial cove­
nants. See Architectural Forum, October, 1947, p. 16.



59

public health and public housing are agreed that bad housing 
has a direct and disastrous result upon health.28

Frequent contact of large numbers of individuals in a 
restricted area cause significant increases in respiratory 
diseases.26 27 28 This is demonstrated by the high mortality 
rates resulting from tuberculosis, pneumonia, influenza and 
the common communicable diseases of childhood in over­
crowded areas.28

The unsanitary condition and general dilapidation of 
houses in blighted areas present another serious health 
hazard. More graphically these hazards consist of inade­
quate and filthy toilet facilities, rat and vermin infestation, 
dampness, lack of heat and sunlight. These result in a high 
incidence of diarrheal and digestive ailments. For example, 
typhoid fever was 100% more frequent in slums; indigestion

26 W. J. Smillie, Preventive Medicine and Public Health (The 
MacMillan Company, New York, 1946) ; “ Basic Principles of Health­
ful Housing,” Committee on Hygiene of Housing of the American 
Public Health Association; C. E. A. Winslow, Housing for Health 
(The Milbank Foundation, 1941).

27 Britton, New Light on the Relation of Housing to Health, 32 
American Journal of Public Health 193 (1942).

28 Thus:

The secondary attack rate for tuberculosis is 200% greater for 
relief families living in overcrowded housing than for all income 
groups living with less than one person per room.

(Britton, op. cit.)

The argument that Negroes have a higher susceptibility to 
tuberculosis is offset by an analysis of the tuberculosis rate in 
both Negro and white slum areas, showing that both have a 
highly excessive incidence of the disease.

( “Report on Housing,”  Chicago, Cook County Health 
Survey; “ Health Data Book for the City of Chicago” ; 
U. S. Census, 1940) ; Britton & Altman, “ Illness and 
Accidents among Persons Living under Different Hous­
ing Conditions,”  56 Public Health Reports 609 (1941).



60

and stomach ailments 75% more frequent; diarrhea, enter­
itis and colitis 40% higher. These relationships hold even 
if the economic factors were taken into account.29 These con­
ditions also resulted in a high incidence of rheumatic fever, 
the most common cause of heart disease among individuals 
under 45.30 *

The infant mortality rate is the most sensitive single 
index of health and progress. If such an index of social 
conscience and progress is applied to the Negro people, it 
is seen that they are excluded from the benefits of the Amer­
ican way of life.

“ City-born babies, and those born in the toms, 
have a slight edge on babies born in the country, in 
their chance for survival. That comparison holds 
true only for white children however; in the non- 
white group, which is mostly Negro, those born in 
the rural areas have a better chance than those in 
the urban areas, though still not anywhere near as 
good a chance as the white child in either city or 
country. The reason may be that the conditions 
under which Negroes must live in the cities and towns 
represent a hazard for babies that outweigh other 
factors, such as more and better medical care and 
access to hospitals, that tend to give the city born 
child the advantage. ’ ’ 32

29 Britton and Altman, Illness and Accidents Among Persons Living 
Under Different Housing Conditions, 56 Public Health R e p o r ts  609 

(1941).
30 Paul, The Epidemeology o f Rheumatic Fever and Some of IL 

Public Health Aspects, Metropolitan Life Insurance Co., 1943;
Wedum and Wedum, Rheumatic Fever in Cincinnati in Relation to 
Rentals, Crowding, Density of Population and Negroes, 3 4  American 
Journal of Public Health 1065 (1945).

32 “ Our Nation’s Children,”  No. 8 , August, 1947, Federal Security 
Agency, U. S. Children’s Bureau.



61

This statement is given grim reality by the tragic pat­
tern of Negro infant mortality rates which are 65% higher 
than for white babies in all areas of the United States.33

Despite the increased use of hospitals for child birth 
throughout the cities of the United States, two or three 
times as many Negro mothers die in child birth as white 
mothers.34

The City of Detroit presents no variation in the nation­
wide picture of the relation between residential segregation 
and the high incidence of disease. Thus, the mortality rate 
per 100,000 from tuberculosis in that city was 36.5 for whites 
and 189.0 for Negroes during the period from 1939-1941.35 * 
For pneumonia, the death rate for Negroes is 71.5 per
100,000, for whites 23.3 per 100,000. The infant mor­
tality rate for Negroes is 49.8 per thousand, compared with
28.0 per thousand for whites.

In terms of citizenship, the psychological evils flowing 
from segregated housing are equally as important to society 
as the physical health hazards discussed above. Draft re­
jection rates in the Second World War for personality dis­
orders increased significantly in slum and overcrowded 
areas.86 Furthermore, Negro draftees had the highest rates

33Gover, Negro Mortality; I I  The Birth Rate and Infant and Ma­
ternal Mortalities, 61 Public Health Reports 43 (1946). In New 
York City with the most progressive health department in the country, 
the Negro mortality rate is 50% higher than the white rate. Vital 
Statistics, New York City Health Department, 1946.

34 Ibid.
83Mortality from Tuberculosis, White and Non-white for  Selected 

Cities of 100,000 and Over— 1939-41, Tuberculosis in the United 
States by National Tuberculosis Association and the U. S. Public 
Health Service, 1945.

A study of Washington, D. C. draft rejection rates is found in 
Hadley, et al. Medical Psychiatry; an Ecological Note, V II Psychia- 
try 379 (1944), and a study of Boston and surrounding areas is found 
“ Hyde & Kingley, Studies in Medical Sociology: The Relation of 
Mental Disorders to Population Density, 77 N. E. Journal of Medi­
cine 571 (1944).



62

for both psychoneurosis and psychopathy among national 
and ethnic groups, a factor explained in the studies as re- 
lated to “ the intensity and severity of stress to which many 
of the Negroes are subjected.” 87

“ The most all-pervading sense of frustration that 
literally engulfs the Negro people in their caste re­
lationship to the majority group and the mechanisms 
of segregation and discrimination that are its attend­
ant counterparts. * * * Caste is meant to refer to sys­
tems of privilege and the limiting of spontaneous 
participation in the culture of which the Negro people 
are a part.

“ The typical American town has its black ghetto— 
almost always situated on the other side of the track. 
It is difficult to stay there and more difficult to leave. 
Overcrowding and congestion become commonplace. 
Individual privacy and respect for it disappears.”S!

In a study of mental disorders in urban areas it was 
demonstrated that social communication between population 
groups was essential to healthy mental development, and 
that social isolation of a given group led to increased mental 
breakdown among its members.89

“ Bad housing, with its resultant overcrowding, filth, 
lack of personal and family privacy, its noises, its 
odors and its dark and dirty corners, breaks down 
family morale and has a profound and evil influence 
upon the happiness, welfare and health of the 
people.” 37 38 39 40

37 Hyde & Chisholm, Relation of Mental Disorders to Race anil 
Nationality, 77 N. E. Journal of Medicine 612 (1944).

38 Cooper, The Frustration of Being a Member of a Minority Grouf, 
29 Mental Hygiene 189 (1945).

39 Farris & Dunham, Mental Disorders in Urban Areas: An Eco­
logical Study of Schizophrenia and Other Psychoses, U. of Chicago 
Press, 1939.

40 Smillie, op cit.



63

In human terms, substandard housing means serious 
interference with the emotional, mental and family life of 
the individual:

“ The Committee on the Hygiene of Housing has cor­
rectly pointed out that more damage is done to the 
health of the children of the United States by a sense 
of chronic inferiority due to the consciousness of 
living in substandard dwellings than by all the defec­
tive plumbing which those dwellings may contain.” 41

b. Cost o f Residential Segregation to the Community 
as a Whole.

Municipal services rendered in slum areas cost far more 
than the revenue collected.42 The Federal Works Agency 
has summarized the situation in metropolitan centers. It 
found that although slums and blighted areas comprised but 
20 per cent of the residential area of the larger cities of 
the nation in 1940, they boused a third of the people in these 
cities. While these districts provided only six per cent of 
the municipal revenue from real estate taxes, they absorbed 
45 per cent of the service costs which municipalities had to 
render.43 Translated into dollars and cents, this means that

41 C. E. A. Winslow: Housing for Health (The Milbank Founda­
tion, 1941); see also Basic Principles o f Healthful Housing, supra.

42 There are many studies that reflect this fact. One of the pioneer­
ing surveys is contained in Edith Elmer W ood, Slums and Blighted 
Areas in the United States, U. S. Government Printing Office, 1935. 
Other more recent summaries are available: See, Urban Housing, 
Federal Emergency Administration of Public Works, 1937, pp. 8-10; 
Mabel L. Walker, Urban Blight and Slums, Harvard University 
Press, 1938, pp. 36-63, 68-72; and statement of John B. Blandford, 
Jr., at Hearings before the Subcommittee on Housing and Urban 
Redevelopment of the Senate, 79th Congress, 1st Session, Part 6 , 
January 9, 1945, pp. 1233-7.

43 Postwar Urban Development, Federal Works Agency, 1944.



a medium-sized city, such, as Newark, New Jersey, spends 
fourteen million dollars a year maintaining its slums.44

The total real estate taxes collected from a restricted 
group are less than they would he if the group were free to 
acquire and live in properties which carry higher assess­
ments and yield greater tax revenues. These latter situa­
tions increase the tax burden of the rest of the community.

As long as there was only a small proportion and num­
ber of colored people with medium and high incomes, the 
loss in city revenue was small.45 46 Changes in the occupational 
color system occasioned by the war and continuing somewhat 
in the peace, have altered the picture.48 Today in the larger 
industrial centers there is an appreciable number of colored 
families which can pay their way in housing and taxes. So 
long as they are relegated to slums or contiguous blighted 
areas, only a small proportion of them pay as high taxes as 
they would were they able to secure attractive housing in 
desirable neighborhoods. The result is a loss in city revenue 
at the same time that the total population in the subsidized 
areas of the city is increased.

44 Rumney and Shuman, The Cost of Slums In Newark, Housing 
Authority of the City of Newark, second printing 1946, p. IS. “We 
believe that part of this cost would remain even if these areas were 
rehabilitated, for most residential areas require more in expenditures 
than they yield in revenues. * * * But certain reductions could be 
made in the cost of servicing low-income families despite their poverty 
by eliminating slums” (Ibid., p. 16).

45 There were, of course, other economic costs most of which penal­
ized the minority groups subjected to ghetto living. “ S eg reg a tio n  has 
little effect on the great bulk of poor Negroes except to overcrowd 
them and increase housing costs, since their poverty and common 
needs would separate them voluntarily from whites, just as any Euro­
pean immigrant group is separated. * * * The socially m o re  serious 

. effect of having segregation, however, is not to force this tiny group 
of middle and upper class Negroes to live among their own group, 
but to lay the Negro masses open to exploitation and to drive down 
their housing standard even below what otherwise would be econom­
ically possible”  (Myrdal, op. cit., p. 625). .

46 Weaver, Negro Labor: A  National Problem, 1946, Parts 1 anad,

64



65

“ Unsolved, the Negro housing dilemma costs 
Detroit heavily in other ways than jittery nerves. 
Badly in need of a medical center, express highways, 
parks and other deferred civic improvements, Detroit 
must wait indefinitely for them. The land they will 
occupy now houses hundreds of Negro families who 
can’t be evicted because there’s no place for them to 
go.7 7 47

Privately financed and publicly financed housing pres­
ents problems in every American city. Political pressures 
and litigation will increasingly challenge federal, state and 
local aid to housing if it fails to offer equitable participation 
to minorities. Since private enterprise has repeatedly 
claimed, in its opposition to public housing, that it can offer 
decent shelter for all groups as well as public housing in 
the population, it will have to face the problem of opening 
more space to colored people.* 48

So pressing is this matter that housing agencies are 
beginning to study and analyze it, since they recognize that 
the costs of residential segregation are as great if not 
greater for city planning and urban redevelopment than for 
the minorities already restricted to inadequate areas.

“ One thing seems clear. In most big cities any 
housing, city planning or race relations program 
that does not open up more land on which Negroes 
may live is ineffectual. Any policy which results in 
a net reduction either in land or houses available to 
Negroes is a social menace. Every program to date, 
low-rent housing, war housing, and now housing for 
veterans has run up against this problem in one form 
or another and been partly or wholly stymied by it.

■m? ^ ê e’ Housing: Detroit’s Time Bomb, Colliers, November 23, 
1946, p. 5.

48 Weaver, Planning for More Flexible Land Use, Journal of Land 
and Public Utility Economics, February, 1947, p. 32.



And there is hardly any current urban redevelopment 
proposal that should not be carefully scrutinized 
from this point of view.” 49

6 6

c. Racial Residential Segregation Causes Segrega­
tion in All Aspects of Life and Increases Group 
Tensions and Mob Violence.

Even a superficial study of crime, juvenile delinquency 
and health statistics shows that these are indications of 
social instability greatly aggravated by poor housing and 
overcrowding. Thus in Detroit, the total slum areas 
yielded five times as many crimes, and fifteen times as many 
criminals as a “ normal residential area.” 50 Since in M  
Negroes occupied one-third of the total number of substand­
ard units in Detroit, and those units housed a tremendous 
percentage of the total Negro population, it would be fal­
lacious to conclude that Negroes are undesirable. The De­
troit City Planning Commission concludes from these facts 
that where dependency, crime and juvenile delinquency 
“ are concentrated in special areas, they are evidence that 
the environment contributes to social pathology. ’ ’ 51

Faced with the responsibility of raising a family, the 
Negro like any other human being, seeks to escape the con­
sequence of ghetto life and establish a home away from the 
environment which results in these personal and social 
tragedies. “ He has no other alternative if he would im­
prove his housing situation, than to seek it in less densely

49 Race Relations in Housing Policy, National Public Housing Con­
ference, 1946, p. 4.

50 Housing Facts, National Housing Agency, Washington, D. C, 
Jan., 1946, p. 21. The same study showed that slum areas in Cleve­
land were responsible for 4 per cent of larcenies, 5.7 per cent of 
robberies, 7.8 per cent of juvenile delinquency, 10.4 per cent of ille­
gitimate births and 21.3 per cent of murders, while housing only 2.4/ 
per cent of the City’s population.

51 The People of Detroit, Detroit Planning Commission, 1946, p. ™



67

settled areas which are inhabited by whites.”  52 It is at 
this point that the Negro’s normal desire for self improve­
ments meets organized and judicially sanctioned opposition.

Of all the devices to effect residential segregation, re­
strictive covenants are the most “ respectable,”  and yet the 
consequences are the most lasting and harmful. Covenants 
are promoted by skillful propagandists of race hatred; they 
reach and involve in anti-Negro activity large groups of 
citizens who normally opposed violent racism but who par­
ticipate in this activity because it is something “ lawful,”  
and hence worthy of their support.53 Since upper-income 
groups champion and sign race restrictive housing cove­
nants, other groups, less able financially to develop similar 
instruments, resort to less formal but equally effective 
means of excluding minorities. As long as the “ better 
people”  in a community sign restrictions against certain 
groups and the courts enforce such agreements, other ele­
ments will “ protect”  their neighborhoods against minori­
ties too.

“ Racial segregation in residential areas provides 
the basic structure for other forms of institutional 
segregation. ’ ’ 55

It is recognized by authorities in city planning that the 
basis for public services and institutions is the neighbor-

The Police and Minority Groups, Chicago Park District, 1947, 
p. 67.

. ^or a documentary account of the atrocities of the promoters of 
racial covenants see President’s Annual Report (for 1944) ; Oakland 
Kenwood Property Owners Association (Chicago) 1945; Restrictive 
ig ^ mntS’ ^ ederati°n °t Neighborhood Associations, Chicago,

Charles Johnson, Patterns of Negro Segregation (1943), p. 8 .



68

hood, rather than the city.56 From the segregated neigh- 
borhood grow segregated schools, health and welfare ser­
vices and innumerable “ Negro”  institutions in areas of our 
country where segregation as a way of life is legally re­
jected.57

In the course of expansion of the ghetto, many second­
hand public and semi-private institutions are turned oyer 
to Negro use. Thus, regardless of laws banning racial seg­
regation in public facilities, the enforced residential seg­
regation of Negroes makes the large majority of these 
facilities as completely segregated in Northern cities as 
in the South, where segregation is fixed by statute.

Consequently, although many states in the North have 
specific constitutional or statutory prohibitions against seg­
regation in public schools, where there are definable Negro 
neighborhoods, effective educational segregation is main­
tained.

56 The Detroit City Planning Commission has stated:
“ The distribution of people within the city and region affects 

directly the need for public and private facilities. Schools, parks, 
utilities, shopping facilities, highways and transit must be located 
where people can use them, whether they happen to be inside or 
outside a given political boundary.

“ The optimum population has been estimated for each neigh­
borhood on an assumption that land will be made available for 
schools, neighborhood recreation and other community facilities 
in accordance with accepted standards.” Source: The People ej 
Detroit, Detroit City Planning Commission (1946), p. 23.

57 Loren Miller, Covenants for Exclusion, Survey Graphic, Oct., 
1947, p. 558.



69

Myrdal observes that in many northern states:
“  * * * there is partial segregation on a voluntary 
basis, caused by residential segregation aided by the 
gerrymandering of school districts. * * #” 58 * * *

Other public facilities are similarly segregated because of 
the residential location of the population they serve.62

Because of residential segregation, there are created 
Negro political districts and the political exploitation of 
racist issues comes easily in such communities. General 
interest in the over-all problems of democratic govern­
ment are stifled and divisive racial “ blocs”  are fostered.

The Detroit City Planning Commission has been seri­
ously concerned with the need for better integration of 
Negroes into the life of the City. Thus it states:

‘ ‘ The people are barred from full participation in 
the general life of the community both by restrictions 
from living in many desirable residential neighbor­
hoods and by exclusion from social, religious and 
other groups. To the extent that they are compelled 
to form their own clubs, churches and business asso­
ciations, they will undoubtedly remain a group with 
strong feelings of racial identity and minority 
status.” 63

“8 Myrdal, An American Dilemma, 1944, p. 632. A  recent study of 
Negro life in Evanston, Illinois, established that most of the Negro 
population lived in the Northern section of town, and that a zoning 
arrangement for school attendance, applicable only to that section, 
effectively confined Negro children to a segregated school. Economic 
and Cultural Problems in Evanston, Illinois, as They Relate to the
Colored Population, National Urban League, Feb., 1945, pp. 56-58. 
High School students in Los Angeles, Gary and Chicago have staged
strikes in the past two years when Negro children were admitted to 
w™  Ae white students had come to regard as “ white”  schools.

H°r description of the process of handing down health facilities 
and the evils attendant upon segregated medical care, see W . Mon-
194~6 ^'o^20 l̂ e<̂ ĉa  ̂ Care and the Plight of the Negro,” Crisis, July,

63 The People of Detroit, Detroit Planning Commission, 1946, p. 34.



70

Enforced residential separation and resultant patterns 
of segregation in other phases of American life reflects 
staggering human toll:

“ The # * * pathological features of the Negro 
community is of a more general character and grows 
out of the fact that the Negro is kept behind the walls 
of segregation and is in an artificial situation ii 
which inferior standards of excellance or efficiency 
are set up. Since the Negro is not required to com­
pete in the larger world and to assume its responsi­
bilities, he does not have an opportunity to ma­
ture.” 64

The inevitable result of housing segregation is to per­
petuate prejudice and heighten group tension.

“ As long as Negroes are relegated # * * to physi­
cally undesirable areas * * * they are associated with 
blight. The occupants of the black belt are all be­
lieved to be undesirable * * * and their perpetual 
and universal banishment to the ghetto is defended 
on the basis of imputed racial characteristics.” 65

Racial covenants, once having been imposed upon a 
neighborhood, give concrete substance and perpetuation to 
latent opposition to Negroes. The Chicago police say that 
the restrictive covenant wall binding the ghetto creates 
areas of tension and conflict requiring special policing® 
Many analyses of racial conflicts have indicated that the 
ghetto provides a fertile ground for seeds of racial tension, 
which erupt into open conflict and riot. 6 ‘ Since the very 
existence of segregation results in diminished intergroup 60

64 E. Franklin Frazier, “ Negro Youth at the Crossways,” 1940, 
p. 290.

60 Weaver, Chicago, A  City of Covenants, Crisis, March, 1946.
86 The Police and Minority Groups, Chicago Park District, 1947, 

pp. 64-69— section dealing with residential segregation as a source of 
group tension.



71

contact, prejudiced attitudes grow stronger and segrega­
tion gains increasing popular acceptance.” 67

Living reality was given to the assertion that inter-group 
contact diminishes race tension and conflict by the Detroit 
race riot of 1944. In the areas of mixed racial residence no 
conflict was reported, and in the factories and shops where 
Negroes worked side by side, there was reported not a single 
instance of conflict.68

B. There Are No Economic Justifications for Re­
strictive Covenants Against Negroes. Real 
Property Is Not Destroyed or Depreciated 
Solely by Reason of Negro Occupancy and 
Large Segments of the Negro Population Can 
Afford to Live in Areas From Which They Are  
Barred Solely by Such Covenants. The Sole 
Reason for the Enforcement of Covenants Are 
Racial Prejudice and the Desire on the Part of 
Certain Operators to Exploit Financially the 
Artificial Barriers Created by Covenants.

It has frequently been asserted that the racial restrictive 
covenant is no different in its social, economic and legal 
effect from the other restrictive provisions commonly found 
in deeds and conveyances. Thus, it is said that a grantor 
may reasonably and properly provide that under no circum­
stances shall his grantee utilize the property for industrial 
purposes, for purposes which create obnoxious noises or 
odors constituting a public nuisance, for purposes which 
may endanger life and limb, for purposes which contravene

io ^ eaveri Chicago, A  City o f Covenants, Crisis, March, 1946, p.
• ee also B. T. McGraw, “ Wartime Employment, Migration and 

Housing of Negroes in the United States, 1 9 4 1 -4 4 National Housing 
1946^’ kaClal Relations Service Documents, Series A, No. 1, July,

68 What Caused the Detroit Riot, National Association for the A d­
vancement of Colored People, July, 1943.



72

the prevailing moral code or for other specific purposes 
calculated to lower the value of surrounding property in 
which the grantor may retain an interest. The proponents 
of this view imply that there are in each case economic or 
social justifications for the covenant imposed upon the per­
son who receives the property.

Are there any such justifications for the racial restrictive 
covenants f Is it true, as has been loosely alleged, that tie 
invasion of the Negro destroys the property! The evidence 
compiled by housing and real estate experts is conclusive to 
the contrary.

1. The Effect of Negro Occupancy Upon Real 
Property.

This is the conclusion of one analyst:

“ Already there is a body of evidence which indi­
cates that Negroes with steady incomes who are given 
the opportunity to live in new and decent homes *1 * 
instead of displaying any ‘ natural’ characteristics to 
destroy better property have, if anything, reacted 
better towards these new environments than any 
other groups of similar income. Colored tenants have 
also displayed desirable rent-paying habits when 
housed in structures designed to meet their rent-pay­
ing ability. For 155 projects in 59 cities having two 
or more FPHA-aided projects, at least one of which 
is occupied by Negro tenants, the following results 
are reported: Collection losses do not exceed one 
per cent o f the total operating incomes for a total of 
142 of these projects, 72 of which are occupied hy 
Negroes and 70 by white or other tenants. Five of 
the 13 projects showing rental losses in excess of one 
per cent are tenanted by Negroes and 8 are tenanted 
by whites or others. The collection loss records be­
tween the two racial groups do not differ more than



73

one per cent in 51 of the 59 cities, and the records are 
identical in 34. ’ ’ 69

The National Association of Real Estate Boards re­
cently undertook a survey of Negro housing and found that 
“ provision for good housing for Negroes can be carried 
out as a sound business operation and that the Negro family 
that rents good housing is usually a good economic risk.” 70 
Three-fourths of the local Boards which participated in the 
latter survey found no reason why large insurance com­
panies would not freely purchase mortgages upon housing 
occupied by Negroes.71

This same survey asked realtors if they thought that 
Negroes were good economic risks and if Negroes did de­
preciate property. Their answers can be summarized as 
follows:

(1) Does the Negro make a good home buyer and carry 
through his purchase to completion? * * * 17 of 18 
cities reported yes.

(2) Does he take as good care of property as other ten­
ants of comparable status? * # * 11 of the 18 cities 
reported yes.

(3) Do you know of any reason why insurance com­
panies should not purchase mortgages on property 
occupied by Negroes? * * * 14 of the 18 cities re­
ported no.

(4) Do you think there is a good opportunity for realtors 
in the Negro housing field in your city? * * * 12 of 
the 18 cities reported yes?2

69 Weaver, R a c e  R e s t r i c t i v e  H o u s i n g  C o v e n a n t s , T h e  Journal 
p T89 and Publlc Utility Economics, Vol. X X , No. 3, August, 1944,

u ? re\ST Please No. 78, National Association of Real Estate
n Idb\ November 15> 1944-
72 Ibid



There is no inevitable causal connection between race 
and dwelling conditions. In Washington, D. C., a small 
number of colored families moved about 50 years ago into 
Brookland, a desirable suburban section of the City. Most 
of them were Government employees and had stable and 
respectable incomes. Just prior to the recent war, many 
new homes were built in the area by Negroes at a cost of 
from $7,500 to $25,000. These houses are better designed 
and constructed than most of the existing dwellings in tie 
neighborhood and their occupants are of a higher edu­
cational and cultural level than the majority of their white 
neighbors. The property values in Brookland have increased 
not only in the Negro community, but also in the contiguous 
white areas.78

Another such model community can be found in middle- 
class Westchester County of New York State.74 New York 
City also contains persuasive evidence that the color of tie 
skin of the tenants is not the determining factor in the rise 
of standard of dwelling conditions:

“ Closest approach to satisfactory housing for 
Negroes in New York’s five boroughs, according to 
William L. Carson, a realtor with long experience 
in the area, is the Williamsbridge section in the 
Bronx. Most wage earners, here, have incomes of 
$3,000-4,000 per annum, most are Civil Service em­
ployees, many own their own homes, although some 
are rental tenants. Although seriously affected by 
the housing shortage, the Williamsbridge community 
has uniformly higher standards of dwelling condi­
tions than are to be found in overall surveys of the 
other colored centers. The result is a total absence 
of hoodlumism, buildings kept in good condition, no 

______evidence of slums (present or future) and a general
78 Weaver, Race Restrictive Housing Covenants, The Journal of 

Land and Public Utility Economics, Vol. X X , No. 3, Aug., 1944, p. 191.
74 Mummy and Phillips, Negroes as Neighbors, Common Sense, 

April, 1944, p. 134.

74



75

standard of living not much below that of average 
white families of comparable income.” 75

A similar comparison was made recently in Philadel­
phia, where a section recently entered by colored people was 
selected for study and the selling prices before and after 
Negro occupancy were computed in a single block. The 
conclusion, as reported in an article entitled “ Colored Oc­
cupancy Raises Values,”  was as follows:

“ The average sales price for the standard property 
in average condition, before colored occupancy was 
between $2,800 and $3,200. Today (September 1945) 
about six months after the first colored occupancy 
purchases, the average value for the same property 
is $4,500 to $5,000, with exceptional houses selling up 
to $5,500 and $6,000.76

“ If we trace the development of the newer colored 
neighborhoods, we will find that as a new section 
opens up closer to the suburban section, the better- 
educated and higher-income group colored move there 
from a less desirable section. * * * Thus, there is a 
gradual stepping up and development of the newer 
colored sections. This has all led to the increase in 
value in these sections and has stabilized all of these 
neighborhoods. As the process of colored expansion 
proceeds, the stepping-up process will continue to 
increase values in these newly developed colored 
sections. ’ ’ 77

The origin of the fallacy that the presence of Negroes 
creates a decline in property values has its historical roots 
in the fact that Negroes are traditionally relegated to al­
ready deteriorated neighborhoods or live under such con-

i, 5Hh. ? ^ r b a n  N e g r o : F o c u s  o f  t h e  H o u s in g  C r i s i s , Novem­ber, 1945, p. 11.
^  Beebler, C o lo r  O c c u p a n c y  R a i s e s  V a l u e s , T h e  Review of th e

77 IFd^ ^ eg ^ ent’a* Appraisers, Sept., 1945, p. 4.



76

ditions of overcrowding (due to restrictions) as to occasion 
physical decay of property. In Detroit, for example, most 
of the principal Negro area was built before 1919 and an 
appreciable part of it before 1900.79

The Philadelphia Chapter of the Society of Residential 
Appraisers and the Wharton School of Finance conducted 
a joint survey in 1939 and found that no houses occupied 
by Negroes in Philadelphia could be classified as being in 
good residential neighborhood:

“ By the time colored occupancy spreads to any 
neighborhood it is at least 30 years old and lias the 
characteristics of physical and functional obsolescence 
that remove it from the category of a good neighbor­
hood.”  80

Although it is often assumed because a particular neighbor­
hood once housed the rich, that it was a first-class residen­
tial community when it was taken over by colored people, 
the evidence reveals, however, that in most instances the 
area had already been deserted by its original inhabitants 
and had started on the road to deterioration long before 
Negroes entered.81

79 H o u s in g — A n a l y t i c a l  M a p , Detroit, Michigan, 16th Census 
of the United States, 1940.

80 Stern, “ Long Range Effect Colored Occupancy,”  The Review of 
the Society of Residential Appraisers, January, 1945, p. 5.

81 With respect to Chicago, see Cressey, supra, pp. 267-268 ; with 
respect to Harlem in New York City, see Kiser, S e a  I s l a n d  to City, 
Columbia University Press, 1932, pp. 19-20. This comment on the 
Harlem situation is also significant:

“ Some have been foreclosed by the lending institutions as many 
as twelve times, resold for the full amount of the mortgage (for 
which a new mortgage is issued) and three to four thousand in 
cash. The new owner could readily perceive his inability to pay 
off a mortgage far greater than the value of his building; set 
about getting his original $3-4,000 back, plus whatever he coda 
take before the bank again foreclosed on the property. To this 
end, he jacks rents to the limit, cuts operating and maintenance 
to the very bone.”— T h e  U r b a n  N e g r o : F o c u s  o f  t h e  Hous­
i n g  C r is is , Oct., 1945, p. 13.



77

One other objective factor in value depreciation has been 
noted by economists. Our building industry has generally 
deemed it expedient to concentrate on the upper-income 
group. Since there are not as many families in this group 
as in the middle and lower-income groups, “ the oversupply 
of houses (in terms of capacity to pay, not in terms of need), 
must be absorbed by families whose income is lower than 
the income of families for whom houses were designed. This 
means a sizeable depreciation in value must take place.”  82

Available and valid data are cumulative confirmation 
of the proposition that when economic factors are kept con­
stant, there are no noticeable differences in the quality of 
property maintenance, conditions of occupancy, and neigh­
borhood standards on property values which can be directly 
traced to race.83

2. The Ability of Negroes to Pay for Better 
Housing.

It is also frequently asserted in support of racial re­
strictive covenants that few, if any, Negroes can afford to 
pay for decent housing. The restrictive covenant is there­
fore said to be nothing more than a formal crystallization 
of existing economic facts. It is argued that the Negro who 
can afford to move out of the Black Belt is so exceptional 
that a change in existing methods and procedures is not 
indicated. 8

8“ Newcomb and Kyle, T h e  H o u s i n g  C r i s i s  i n  a  F r e e  E c o n o m y , 
Law and Contemporary Problems, Winter, 1947, p. 191.

This is supported by the experience of the public housing pro- 
gram. the few desirable areas occupied by Negroes in cities such as 
Washington, Philadelphia, and New York and in the small number 
oi well designed medium-rental housing projects available to Negroes 
~~8uch as (he Paul Lawrence Dunbar Apartments in New York City 
and the Michigan Boulevard Garden Apartments in Chicago.



78

This contention also fails to meet the test of analysis 
In the first place, it should be noted that Negroes pay mueli 
higher rentals for the quarters which they currently occupy 
than do white persons in comparable units.84

Not only do Negroes pay more for desirable housing, 
as illustrated by the studies of Eohinson and Beebler cited 
above, but they usually pay higher rents than whites for 
even the least desirable types of shelter. This has recently 
been substantiated for the City of Detroit:

“ In his crowded flat or room in blighted Black Bot­
tom or Paradise Valley, the Negro pays 30 to 50 per 
cent more than whites pay for better quarters. A 
family jammed into a single room, sharing toilet 
facilities with six other families (the legal limit in 
Detroit is two, but is unenforced) will pay (in 1946) 
from $11 to $16 weekly or $47 to $69 per month 
Before rent ceilings came, landlords tripled and 
quadrupled monthly incomes by evicting white fami­
lies and renting to Negroes.” 85

Moreover, Negroes spend a larger proportion of their 
income for rent than white persons in the same income 
group. These facts are brought into sharp relief by the 
result of a study of housing in Chicago:

“ Negro residents of the Chicago ‘ black belt’ pay 
as much per cubic foot per room as that p a id  by 
wealthy residents for equivalent space on Lakeside 
Drive.” 86

84 For a summary of earlier data supporting this statement, see, 
Thomas J. W oofter, N e g r o  P r o b l e m s  I n  C i t i e s , 1928, pp. 82-87, 
121-30. More recent data are presented in Moron, Where Shall Tiny 
Live?, The American City, April, 1942, and Beebler, Color Occu­
pancy Raises Values, The Review of the Society of Residential Ap­
praisers, September, 1945.

85 Velie, op. cit. p. 75.
86 Cayton, N e g r o  H o u s i n g  i n  C h ic a g o , Social Action, April 15, 

1940, p. 18.



79

Whatever may have been the differential in earnings 
between Negroes and whites in the lower and middle income 
groups prior to World War II, the industrial effort in con­
nection with the war tended to eradicate such differential. 
New and better paying jobs were open to Negroes, both 
men and women, and earnings in all job classifications were 
increased.87 Consequently, great numbers of Negro workers 
and many Negro professional and business men and women 
who are dependent upon the Negro community, as well as 
those Negroes who recently have secured white collar and 
professional jobs in the larger economy are now able to 
pay for decent housing. Consequently the number of poten­
tial Negro purchasers and tenants of decent housing is 
greater than formerly.

The failure of housing to meet the needs of the Negro 
workers has been due not to the insufficient economic means 
of the applicant, but rather to the lack of building sites and 
the consequent inability of government agencies, to erect, 
or to effectively encourage private industry to build new 
housing for Negroes. The National Housing Authority, in 
order to meet the problem, threatened to withdraw priori­
ties unless Negro housing was constructed, and as a result, 
realtors, builders and financial institutions suddenly “ dis­
covered”  a new Negro market for housing. A typical state­
ment of this new condition is contained in a monograph 
published by the National Housing Authority itself:

“ Current employment facts make evident an in­
creasing number of Negroes in those income brackets 
which provide a profitable market for private enter­
prise housing. There is evidence that, in addition to 
their patriotic war bond purchases through volun-

112-UoaVer’ N egro  L a b o r :  A N a t i o n a l  P r o b l e m , pp. 78-93,



tary payroll deductions, their experience in the last 
depression have motivated increased savings among 
Negroes. The National Association of Eeal Estate 
Boards, the National Association of Home Builders, 
and others, now recognize that they have overlooked 
this growing market for decent housing among 
Negroes.”  88

The first administrator of the NHA, John B .  Blandford, 
Jr., in the fall of 1944, spoke of ‘ ‘ the barriers which exist 
even for the Negro citizen who can pay for a h om e , and, 
if permitted, could raise a family in decent surroundings," 
and specified “ site selection, of obtaining more ‘ living 
space,’ ”  and net income as the principal one.89

In 1945 a national survey of the housing market, which 
covered 41 cities and involved 9,200 interviews with Negroes 
living in congested and blighted areas, found that almost 
40% of these persons were paying between $50 and $60 a 
month for rent. Of the entire group of persons inter­
viewed, 43% were willing to buy new homes and 65% of 
them had savings of more than $1,000.9°

A similar study was made in a sample slum area in Chi­
cago and the results were as follows: 91

No. of 
Tenants %

Average
Rent

Rent Paid as 
% of Income

Pay More Than Can
Afford ..................... 24 8.4 $30.00 25.7

Pay As Much As Can
Afford ..................... 159 55.5 32.00 21.3

Willing To Pay More 104 36.1 27.00 15.4

88 B. T. McGraw, W a r t i m e  E m p l o y m e n t , M ig r a t io n  and H ous­
i n g  o f  N e g r o e s  i n  t h e  U n it e d  S t a t e s , 1941-1944, Racial Relations 
Service Documents, Series A, # 1 , N H A, July 22, 1946. _

89 John B. Blandford, Jr., The Need for Low Cost Housing, A 
speech before the Annual Conference of the National Urban League, 
Columbus, Ohio, Oct. 1, 1944, p. 1.

90 Detroit Free Press, March 20, 1945. .
91 T h e  S l u m  . . .  I s R e h a b i l i t a t i o n  P o s s i b l e ? Chicago Houm 

Authority, 1946, p. 17.



81

The Bureau of Labor Statistics of the U. S. Department 
of Labor has very recently made a survey of Negro 
Veterans of World War II, their incomes and their needs 
and desires with respect to the occupancy of dwelling units. 
The results of this survey in Detroit, for example, indicate 
very graphically the extent to which many Negroes could 
enter the housing market if they were not excluded there­
from artifically. If housing is available during the next 
twelve months, only at present price and quality, 21 out of 
every 100 Negro veterans would buy or build, and 15 would 
plan to move and rent. If they could find what they wanted, 
49 out of every 100 would buy or build (as contrasted to 22 
out of every 100 in the total population), and 14 would move 
and rent. Those who would buy or build, if they could find 
what they want, reported that the average or medium price 
which they could afford was $5,500 and of them could 
pay $6,000 or more.92 Certainly, these statistics do not sup­
port the proposition that the inhabitants of the Black Belt 
of Detroit are, of necessity, required to remain in sub­
standard housing for lack of economic means.

The following chart is drawn from the Bureau of Labor 
Statistics survey mentioned above. A similar survey with 
respect to the St. Louis area issued on May 19, 1947, and 
two surveys issued by the Bureau of the Census of the De­
partment of Commerce relating to all World War II vet­
erans have been made.

Survey of  N egro  W o r ld  W a r  I I  V e t e r a n s  a n d  V a c a n c y  
and O c c u p a n c y  o f  D w e l l i n g  U n i t s  A v a il a b l e  to  N e g ro es  i n  
the D etroit A r e a , M i c h i g a n , Ja n u a r y , 1947, U. S. Department 
of Labor, May 20, 1947, p. 1.



D etroit St. Lodis

All a Negro b All c Negro*
Living in Rented Rooms,

Trailers, or T  o u r i s t
Cabins ........................... 17% 16% 8% n

Living in Ordinary Dwell-
mg U n its ....................... 83% 84% 92% 93 ?,
Doubled Up ................. 19% 2 2 % 22% 31%
Not Doubled U p .......... 64% 62% 70% 62%
Substandard *  ............. 6 % 26% 19% 63%

Median Gross Rent.......... $43.00 $39.00 $32.00 $24.00
Plan to Move ** ............ 31% 63% 25% 35%

To Rent ....................... 9% 14% 13% 25%
To Build or B u y ........ 2 2 % 49% 12% 10%

Median Gross Rental They
Could Pay ................... $46.00 $40.00 $39.00 $ 2 5 1

Median Price They Could
Pay ................................ $6,300 $5,500 $6,500 $3,800

♦Substandard: Needing major repairs or unfit for use, or lacking private bath 
or toilet, or running water in the dwelling unit.

** Plan to move if housing is available at the price and quality veterans desire.
a Ibid.
b S urvey of W orld W ar II V eterans and  D welling U nit V acancy,tM 

O ccupancy in  the  D etroit A rea, M ich igan , V. S. Department of Com­
merce, October 31, 1946, p. 1.

c S urvey of W orld W ar II V eterans and D welling U nit Vacancy *b 
O ccupancy in  th e  S t . L ouis A rea, M issouri, U. S. Department of 
Commerce, November 26, 1946, p. 1.

a S urvey of N egro W orld W ar II V eterans and  V acancy and Occupancy 
of D welling  U nits A vailable to N egroes in  S t . Louis Area, Missouh 
and  Illinois N ovember-D ecember, 1946, U. S. Department of Labor, May 
19, 1947, p. 1.

At the end of the war, income distribution among colored 
American citizens in the northern urban centers more 
nearly approximated that obtaining for the entire popula­
tion than ever before. The number and proportion of Ne­
groes well above the subsistence level had increased greatly. 
The sampling of Negro veterans referred to above is ample 
demonstration of this tendency. Bacial restrictive cove­
nants, at least insofar as Negroes are concerned, cannot be 
justified on the grounds of inability to pay:

“ The peculiar intensity of the housing problems 
of Negroes is not due to their disporportionately loff



83

incomes alone. The really distinctive factor under­
lying these problems stems from the fact that, among 
the basic consumer goods, only for housing are Ne­
groes traditionally excluded from freely competing 
in the open market. Consequently, not only do the 
majority of Negroes live in low-rent substandard 
housing, but even when colored families can afford 
rents which normally assure decent shelter, they are 
often denied it. ’ ’ 98

There is no validity to the assumption that racial re­
strictive covenants can be justified in terms of the eco­
nomics of residential real estate. Negro occupancy does 
not in itself destroy or depreciate the property. Large 
numbers of Negroes can afford to enter the free housing 
market. The only significant economic fact which the avail­
able data confirm is that traditionally Negroes have been 
forced to pay a larger portion of their income and a larger 
absolute price for smaller value and for substandard dwell­
ing. Racial prejudice and the desire to profit by it are at 
the root of all restrictive covenants aimed at Negroes.

Thus Negroes are able to pay for better housing in large 
numbers, but the wall of racial covenants that surrounds 
their areas of concentration and excludes them from most 
newly constructed surburban housing prevent their secur­
ing it. This is no temporary phenomenon of a general hous­
ing shortage. It is an historic fact and will persist as long 
as racial covenants are enforced by the courts and given 
“ respectability”  by implied legality. Such a situation not 
only extracts gross social and economic costs from Negroes 
and the whole community, but it accentuates the frustrations 
of colored Americans that inevitably follow from the color- 
caste system.

93 Weaver, 
1946, p. 76.

C h ic a g o  : A  C i t y  o f  C o v e n a n t s , Crisis, March,



84

VI

Judicial Enforcement of This Restrictive C ovenan t 

Violates the Treaty Entered Into Between the 
United States and Members of the United Nations 
Under Which the Agreement Here Sought to Be 
Enforced Is Void.

By Articles 55 and 56 of the United Nations Charter, 
each member nation of that body is pledged to take joint 
and separate action to promote:

“ Universal respect for, and observance of human 
rights and fundamental freedoms for all without dis­
tinction as to race, sex, language or religion.”

While the Charter recognizes the sovereignty of the mem­
bers, it states at the outset:

“ All members, in order to insure to all of them 
the rights and benefits resulting from membership, 
shall fulfill in good faith the obligations in accordance 
with the present Charter. ’ ’ 1

This solemn international compact was described by the 
Michigan Supreme Court as merely, “ indicative of a desir­
able social trend and an objective devoutly to be desired by 
all well-thinking people”  (B. 67).

In addition to the decisions of this Court defining human 
rights to include the right of colored persons to own and 
use property,2 the provisions of the United Nations Charter 
have been similarly construed by authorities.3 For example.

1 United Nations Charter, Article 2, Paragraph 2.
2 See Point II of this brief.
8 See January, 1946 issue of 243 Annals of the American Acadeni 

of Political and Social Science, on “ Essential Human Rights,” par' 
ticularly articles by Edward R. Stettinius, Jr., p. 1, Charles E. Met- 
riam, p. 11.



85

the American Law Institute interprets the provisions of 
Article 55 to include the right of every person to adequate 
housing.4

The United Nations Charter is a treaty, duly executed 
by the President and ratified by the Senate (51 Stat. 1031). 
Under the Constitution such a treaty is the ‘ ‘ supreme Law 
of the Land”  and specifically, “ the Judges in every State 
shall be hound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding.” 5

In the face of this provision, the Michigan Supreme 
Court stated that it is not a principle of law that a treaty 
between sovereign nations, “ is applicable to the contractual 
rights between citizens when a determination of these rights 
is sought in State courts”  (E. 67).

Historically, however, no doubt has been entertained as 
to the supremacy of treaties under the Constitution. Thus 
Madison, in the Virginia Convention, said that if a treaty 
does not supersede existing state laws, as far as they con­
travene its operation, the treaty would he ineffective.

“ To counteract it by the supremacy of the state 
laws would bring on the Union the just charge of 
national perfidy, and involve us in war. ’ ’ 6

More recently, in holding that the public policy of New York 
against confiscation of private property could not prevent 
the United States from collecting a debt assigned to it by 
the Soviet Government in an exchange of diplomatic corre­
spondence, this Court stated:

“ Plainly the external powers of the United States 
are to be exercised without regard to state laws or

4 American Law Institute, 243 Annals of the American Academy
of Political and Social Science. See also in the Annals, C. Wilfred 
Jenks, “The Five Economic and Social Rights,”  pp. 43-45.

6 Article VI, Section 2 .
3 Elliots Debates 515.



86

policies. * * * In respect of all international negoti­
ations and compacts, and in respect of our foreign 
relations generally, state lines disappear. As to s 4  
purposes the state of New York does not exist. Within 
the field of its powers, whatever the United States 
rightfully undertakes, it necessarily has warrant to 
consummate. And when judicial authority is invoked 
in aid of such consummation, State Constitutions, 
state laws, and state policies are irrelevant to the 
inquiry and decision. ’ ’ 7

Early in the history of our foreign relations, treaty 
obligations of the federal government operated to affect the 
common law and statutory rights of American citizens to 
inherit property,8 to rely upon a rule of admiralty law,9 and 
to void the defense that a debt revived by treaty had been 
paid to the state which had expropriated it during the Revo­
lution.10

The treatment of minority citizens within the border of 
a sovereign state is the proper subject of international 
negotiations and is a subject directly affecting international 
relations. The question arose, in view of the Nazi extermi­
nation policy, whether, “ sovereignty goes so far that a 
government can destroy with impunity its own citizens and 
whether such acts of destruction are domestic affairs or 
matters of international concern. ’ ’ 11 That question was 
resolved by the human rights provisions of the United 
Nations Charter, and by the subsequent adoption by the 
United Nations General Assembly of a resolution affirming

7 U, S. v. Belmont, 301 U. S. 324, 331.
8 Hauenstein v. Lynham, 100 U. S. 483; Geoffroy v. Riggs, 133 

U. S. 258. This doctrine has been strongly reiterated in C/arH 
Allen, 67 Sup. Ct. 1431 (Advance Sheets).

9 The Schooner Peggy, 5 U. S. 103.
10 Ware v. Hylton, 3 Dali. 199.
11 Raphael Lemkin, “ Genocide as a Crime under International 

Law,” Am. J. of Int. Law, Vol. 41, No. 1 (Jan., 1947), p. 145.



87

the principles that genocide is a crime under International 
Law whether committed by private individuals, public of­
ficials or statesmen.12 This resolution changes fundamen­
tally the responsibility of a sovereign nation toward its 
citizens.13 While the Nuremberg trials were confined in 
scope to acts committed after the commencement of war or 
in preparation for it, the inclusion of persecution of German 
nationals in crimes against humanity indicates that the field 
of international affairs has been broadened to include do­
mestic activity of a nation.

Official spokesmen for the American State Department 
have expressed concern over the effect racial discrimination 
in this country has upon our foreign relations and the then 
Secretary of State Stettinius pledged our government be­
fore the United Nations to fight for human rights at home 
and abroad.14

The interest of the United States in the domestic affairs 
of the nations with whom we have signed treaties of peace 
following World War II can be seen from the provisions in 
the peace treaties with Italy, Bulgaria, Hungary and Ru­
mania, and particularly with settlement of the free territory 
of Trieste, in all of which we specifically provided for gov­
ernmental responsibility for a non-discriminatory practice 
as to race, sex, language, religion, and ethnic origin.15

Resolution of General Assembly of United Nations, Dec. 11,1946. 
Lemkin, op. cit., p. 150.

/ ‘ McDiarmid, “The Charter and the Promotion of Human Rights,”
14 State Department Bulletin 210 (Feb. 10, 1946) ; and Stettinius’
statement, 13 State Department Bulletin, 928 (May, 1945). See also 
letter of Acting Secretary of State Dean Acheson to the F. E. P. C. 
published at length in the Final Report of F. E. P. C., reading in part, 
the existence of discrimination against minority groups in this coun- 
F w a*l adWr?e effect upon our relations with other countries.”  

^description  of these provisions in, “ Making the Peace Trea- 
les, 941-1947 (Department of State Publications 2774, European 
series 24); 16 State Department Bulletin 1077, 1080-82.



The Potsdam Declaration provided for the abolition of 
all Nazi laws establishing racial or religions discrimination, 
“ whether legal, administrative or otherwise.”

This growth in international law has established that 
it is now proper for the executive arm of the United States 
Government to enter into treaties affecting the treatment of 
citizens of the United States within its own boundaries, 
There was never any question, however, that at all times tie 
United States could by treaty protect and extend the rights 
of nationals of other states residing in this country, and as 
to covenants running against the foreign horn of many na­
tions, such power has always existed.

The Supreme Court of Michigan stated (E. 67) that 
treaties do not affect the contractual rights between citi­
zens “ when a determination of these rights is sought in 
state courts.”  Such a contention was reviewed and re­
jected by this Court in Kennett v. Chambers,16 where this 
Court declared void a contract under which an American 
citizen sought to collect sums due him under an agreement 
by which he furnished funds to equip a Texan to fighfl 
Mexico during the life of treaties of friendship and comity 
between Mexico and this country. This Court held the con­
tract void, saying:

“ These treaties, while they remained in effect, 
were the Supreme law and binding not only on the 
government but upon every citizen. No contract 
could lawfully be made in violation of their provi­
sions. For, as the sovereignty resides in the peoples 
every citizen is a portion of it, and is himself person­
ally bound by the laws which the representatives ot 
the sovereignty may pass or the treaties they may 
enter within the scope of their delegated authority 
* # * It is his own personal compact as a portion0
the sovereignty in whose behalf it is made” (p-jjU

16 55 U. S. 38. See also: Mayer v. White, 65 U. S. 317.



In an early case, this Court held that an American citi­
zen who had acted as master of a foreign vessel privateer­
ing against Spanish ships could not be, “ recognized in our 
courts as a legal claimant of the fruits of his own wrong”  in 
libel proceedings, because of treaty provisions between this 
country and Spain.17

This principle was applied to an attempted enforce­
ment of a deed restriction against leasing to Chinese and a 
federal judge there said that the restriction was void be­
cause it contravened the terms of a treaty by which Chinese 
subjects were accorded all the rights, privileges and im­
munities accorded citizens of the most favored nation.18

Within the framework of our federal form of govern­
ment, there may be fields in which enabling legislation is re­
quired to implement the solemn obligations of the human 
rights sections of the United Nations Charter. But the 
decisions of this Court leave no doubt that a contract by its 
own terms violative of the treaty obligations of the United 
States is void.

Even were it not established that the individual’s right 
to enter into contracts in violation of treaties is restricted, 
certainly such contracts cannot be enforced by resort to 
the power of the state’s judiciary since the states have di­
vested themselves of all authority in connection with in­
ternational relations and have agreed that for their mutual 
protection, this authority must be vested solely in the fed­
eral government.

Such a decision was reached by the Court of another 
member of the United Nations, the Ontario Supreme Court, 
when it held unenforceable a restriction against ownership

17 The Bello Corrunes, 19 U. S. 152.
Gandolfo v. Hartman, 49 Fed. 181.



of land by, “ Jews or persons of objectionable nation­
ality. ’ ’ 19

The attempt by the courts of the various states to aid 
private individuals in the prosecution of a course of action 
utterly destructive of the solemn treaty obligations of tie 
United States must be struck down by this Court or America 
will stand before the world r e p u d i a t i n g  the h u m a n  rights 
provisions of the United Nations Charter and saying of 
them that they are meaningless platitudes for which we re­
ject responsibility.

Conclusion
This Court in 1917 declared unconstitutional efforts of 

the states to establish residential segregation by legislative 
enactments. Residential segregation by state court enforce­
ment of racial restrictive covenants has spread over large 
areas and has excluded numerous groups. Continued en­
forcement of these covenants will firmly establish ghettos 
in this country.

Respondents’ only basis for relief is the racial restrictive 
covenant which is ineffective without state action through its 
courts. The only basis for the decree of the courts o f  Michi­
gan is the race of petitioners. If all other facts in the pres­
ent record had been the same except that petitioners 
happened to be members “ of the Caucasian race,” the same 
courts of Michigan would have used all of the resou rces of 
the State of Michigan to protect them fully in their right to 
use and occupy their property.

The enforcement of racial restrictive covenants clearly 
violates the Fourteenth Amendment. The denial to peti­
tioners of their rights guaranteed by the Fourteenth Ameid

19 In Re Drummond Wren, 4  D .  L .  R .  6 7 4  ( 1 9 4 5 ) .



91

ment is a part of a general pattern of enforcement of 
similar covenants blanketing large sections of our country. 
This case is not a matter of enforcing an isolated private 
agreement. It is a test as to whether we will have a united 
nation or a country divided into areas and ghettos solely 
on racial or religious lines. To strike down the walls of 
these state court imposed ghettos will simply allow a flexible 
way of life to develop in which each individual will be able 
to live, work and raise his family as a free American.

It is the protection by the Constitution of this basic 
human freedom which makes possible the functioning of a 
democratic economic and political system based on private 
property.

W herefore, it is respectfully submitted that the judg­
ment of the Supreme Court of Michigan should be reversed.

Submitted by,

T h u r g o o d  M a r s h a l l , 
L o r e n  M il l e r ,
W i l l i s  M. G r a v e s ,
F r a n c is  D e n t ,

Counsel for Petitioner,

William H. H astie,
Charles H. H ouston,
George M. J o h n s o n ,

W illiam R. M ing , Jr.,
James Nabrit, J r .,
Marian W ynn  P erry,
Spottswood W . R obinson, I I I  
Andrew W einberger,
Ruth W eyand,

Of Counsel.



Petitioners’ Appendix A

Total Population, Non-White Population, Percentage of Non-White Population and Percentage of Total Dwelling Units 
Occupied by Non-Whites in Selected Northern and Border Metropolitan Districts, 1940 and 1947.

Metropolitan District Total Population a
Non-White 
Population a

Per Cent, of 
Non-White in Total 

Population a

Per Cent, of Total 
Dwelling Units 

Occupied by 
Non-Whites b

1940 1947 1940 1947 1940 1947 1940 1947
New York-Northern New Jersey 11,014,511 11,669,409 675,969 1,015,002 6 8 6 8
Chicago ...................................... 4,499,126 4,644,640 329.157 447,370 7 10 7 8
Los Angeles .............................. 2,904,596 3,916,875 127,477 240,375 4 6 4 4
Philadelphia .............................. 2,898,644 3,372,690 317,285 439,410 7 13 7 11
Detroit ........................................ 2,295,867 2,702,398 171,877 348,245 7 13 7 11
Pittsburgh .................................. 1,994,060 2,100,092 115.423 131,052 6 6 6 6St. Louis .................................... 1,367,977 1,584,044 150,088 239,470 11 15 11 15
Baltimore .................................... 1,046,692 1,306,040 188,106 284,383 18 22 16 18
Washington ................................ 907,816 1,205,220 215,398 285,988 24 24 19 20Seattle......................................... 452,639 602,910 15,417 24,090 3 4 3 3Portland, Ore............................... 406,406 534,422 6,696 11,268 2 2 1 2Youngstown .............................. 372,428 380,897 23,008 29,915 6 8 6 8Columbus .................................... 365,796 432,304 38,246 40.795 9 11 9 8Akron ......................................... 349,705 423,539 14,317 27,343 4 6 4 5Toledo ....................................... 341,663 383,418 15,245 20,196 4 5 4 4

a  S o u r c e : Current Population Reports, Population Characteristics, TJ. S . B u r e a u  o f  th e  C e n s u s , S e r ie s  P .  2 1 , 1 9 4 7 . 
h S o u r c e :  Current Population Reports, Housing, TJ. S .  B u r e a u  o f  th e  C e n s u s , S e r ie s  B . 7 1 , 1 9 4 7 .

The 1040 figures are based on 1<5 Census enumerations for April, 1940 ; the 1947 figures are TUT. S. Census estimates for Api





L awyers Press, I nc., 165 William St., N. Y . C. 7; ’Phone: BEekmati 3-2300







IN TH E

Supreme Court of tje Untteb States

O c t o b e r  T e r m , 1947.

No. 87.

Oesel M cGhee and  M in n ie  S. M cG h ee , Ms wife, 
Petitioners,

V.
Benjamin J. S ipes and  A n n a  C. S ipes, J am es A . Coon and 

A ddie A . C oon, E t  A l ., Respondents.

BRIEF FOR RESPONDENTS.

H en ry  G ilrigan ,
J am es  A . Crooks,

Attorneys for Respondents.

December 1,1947.

o f  B y r o n  S .  A d a m s , W a s h in g t o n , D .  C .





IN  THE

Supreme Court of tjje United H>tute
O c t o b e r  T e e m , 1947.

No. 87.

Oksel M cG h e e  a n d  M i n n i e  S .  M c G h e e , M s w i fe ,
Petitioners,

v.
B e n j a m in  J. S ip e s  a n d  A n n a  C . S ip e s , J a m e s  A .  C o o n  a n d  

A ddie  A .  C o o n , E t  A l ., Respondents.

BRIEF FOR RESPONDENTS.

H e n r y  G i l l i g a n ,
J a m e s  A. C r o o k s ,

Attorneys for Respondents.

December 1,1947.

P r e ss  o f  B y r o n  S .  A d a m s , W a s h in g t o n , D .  C .





INDEX.
Page

Statement o e  the Ca s e ............................................................... 1

S u m m a r y  o e  t h e  A r g u m e n t ......................................................................  2

Argument1 .......................................................................................... 3

1. The restrictive agreement is valid and enforceable
in equity by injunction....................................•........  3
(a) The restrictive agreement created an equita­

ble right arising under contract and its valid­
ity is uniformly recognized..............................  3

(b) Restrictive agreements are compatible with
the declared public policy of the State of Mich­
igan; there is no applicable Federal policy . . .  8

(c) The Fourteenth Amendment of the Constitu­
tion of the United States and implementing 
statutes do not prohibit judicial enforcement
of the restriction...............................................  9

2. Social and p o litica l prob lem s o f  a S tate m ust be
addressed to the legislature—not the courts.........  16

Co n c l u s i o n .................................... 1 7

CASES CITED.
Anderson National Bank v. Luekett, 321 U. S. 233 . 14
Buchanan v. Warley, 245 U. S. 6 0 ........................ 3 , 4,11,15
Burkhardt v. Lofton, 63 Cal. App. (2d) 230,146 P. (2d) ’

720 ........................................................... 5  2 2  13
Chandler v. Zeigler, 8 8  Colo. 1 , 291 P. 822 ...........  ’ ’ 5

City of Richmond v. Deans, 281 U. S. 704 ..................... 4

Cohens v. Virginia, 6  Wheat. 264 .............  1 1

Corrigan v. Buckley, 271 U. S. 323 ........................ 14, id 16
Corrigan v. Buckley, 55 App. D. C. 30, 299 F. 899 ’ 16
Cavidson v. New Orleans, 96 U. S. 97 . . . .  1 4

Cooley v. Savannah Bank & Trust Co., — Ga. —, 34
. S. E. (2d) 522 ................................................ ’ 5

hncksen v. Tapert, (1912) 172 Mich. 457,138 N. W. 330 6 , 7  

n e Railroad Co. v. Tompkins, 304 U. S'. 64 8
Georgia v. Stanton, 6  Wall. 5 0 . .......................  1 0

Harmon v. Tyler, 273 U. S. 6 6 8  ........   4

Hemsley v. Hough, — Okla. —, 156 P. (2d) 182 ............. 5



11 Index Continued.

Hemsley v. Sage, 194 Okla.669,154 P. (2d) 577.........  ;
Home Building Loan Assoc, v. Blaisdell, 290 U. S. 398 1!
In re Virginia, 100 U. S. 313 ............................. s
Lane v. Watts, 234 U. S. 525 ................................. jj
Lion’s Head Lake v. Brezezinski, 23 N. J. Mis. E 290

43 A. (2d) 729 .................................................... ’ s
Los Angeles Investment Co. v. Cary, 181 Cal. 680,186

P. 596 ..................................................................... 5

Mays v. _Burgess, 79 App. D. C. 343, 147 F. (2d) 869,
certiorari denied 325 U. S. 8 6 8  ...........................  j

Marbury v. Madison, 1 Cr. 137 ........... ....................  u
Meade v. Dennistone, 173 Md. 295, 196 A. 330 .........51
Nebbia v. New York, 291 U. S. 502 ...........................  11

Parmalee v. Morris, (1922) 218 Mich. 625, 188 N. V.
330 ..............................................................    j

Plessy v. Ferguson, 163 U. S. 537 .............................  5

Porter v. Barrett, (1925) 233 Mich. 373, 206 N. W. 532 i 
Porter v. Johnson, 232 Mo. App. 1150, 115 S. W. (2d)

529 ........................................................   5,9
Queensborough Land Co. v. Cazeaux, 136 La. 724,67

So. 6 4 1 ......................................................
Railroad Mail Ass’n v. Corsi, 326 IT. S. 8 8  ..............
Ridgeway v. Cockburn, 296 N. Y. Supp. 936 ............. 5
Shileler v. Roberts, 69 Cal. App. (2d) —, 160 P. (2d) 67 S
Slaughter House Cases, 16 Wall. 36 ........................... S
Steward v. Cronan, 105 Colo. 393, 98 P. (2d) 999 ..... 5
Stone v. Jones, 6 6  Cal. App. (2d) 264, 152 P. (2d) 19.. 5
U. S. v. Cruikshank, 92 U. S. 542 .......................... 5
H. S. v. Dunnington, 146 U. S. 338 ...........................
IT. S. v. Harris, 106 U. S. 629 ....................................!. 5
Virginia v. Rives, 100 IT. S. 313 .................................  5

CONSTITUTION AND STATUTES.
Constitution of the United States ,

Amendment F iv e .......................................... Lj
Amendment Fourteen .................................. 5,9,11, b

Charter of the United Nations and Statutes of Inter­
national Court of Justice, U. S. Treaty Series 993,
Art. 2, Chap. 1, Par. 7 ......................................... T

Revised Statutes, U. S., Sections 1977, 1978,1979 . •••H '

1 -



IN  THE

Supreme Court of tf)t ®mteb States;
October Term, 1947.

No. 87.

Orsel M c G h e e  a n d  M i n n i e  S. M c G h e e , his wife, 
Petitioners,

v.
Be n j a m in  J . S ip e s  a n d  A n n a  C . S ip e s , J a m e s  A .  C o o n  a n d  

A ddie  A .  C o o n , Et A l ., Respondents.

BRIEF FOR RESPONDENTS.

Petitioners’ Statement of the Case is substantially cor­
rect.

STATEMENT OF THE FACTS.

Respondents deem a more detailed Statement of the Pacts 
than that of petitioners desirable.

Respondents Benjamin J. Sipes, Anna C. Sipes, and 
others own and occupy property located in Seebaldt’s sub­
division and Brooks & Kingdon’s subdivision on Seebaldt 

venue, between Pirwood and Beechwood Avenues, in the 
City of Detroit.



Petitioners Orsel McGhee and Minnie S. McGhee, his wife 
Negroes, own and occupy property located on the same 
street in Seebaldt’s subdivision. All of the properties oc­
cupied by the parties hereto are encumbered by the follow­
ing* recorded covenant:

“ This property shall not be used or occupied to ar 
person or persons except those of the Caucasian race,"

Mutual agreements imposing the above restriction, cov­
ering* many more than the required 80 per cent of the prop, 
erty fronting on both sides of Seebaldt Avenue, were re­
corded in the office of the register of deeds of W a y n e  County 
on September 7, 1935. The deed running to petitioners, 
dated November 30, 1944 and recorded December 1,1944, 
is “ subject to existing restrictions as of record.”  Recourse 
to the courts followed their refusal to move from the prop­
erty.

SUMMARY OF THE ARGUMENT.
1. The restrictive agreement is valid and enforceable in 

equity by injunction.
(a) The restrictive agreement creates an equitable right 

arising under contract and its validity is uniformly 
recognized.

(b) Restrictive agreements are compatible with the de­
clared public policy of the State of Michigan; there 
is no applicable Federal policy.

(c) T h e  Fourteenth Amendment of the C o n stitu tio n  of 
the United States and implementing s t a t u t e s  do not 
prohibit judicial enforcement of the r e s tr ic t io n ,

2. Social and political problems of a State must he ad­
dressed to the legislature—not the courts.



ARGUMENT.

1. The Restrictive Agreement is Valid and Enforceable in 
Equity by Injunction.

(a) The restrictive agreement creates an equitable right 
arising under contract and its validity is uniformly recog­
nized.

Primarily, petitioners attack the validity of the restric­
tive agreement here involved on the ground that it denies 
them their property in contravention of the Fourteenth 
Amendment of the Federal Constitution and implementing 
legislation. It would appear they call upon the full con­
text of the Amendment, but the cases cited by them largely 
relate to the “ due process clause”  of that Amendment. 
Clearly they misconceive the true meaning of the Amend­
ment as demonstrated by the consistent adjudications of 
this Court relating thereto; they confuse state action with 

action.
There is a fundamental and important distinction be­

tween Constitutional limitations on a State and the freedom 
of contract among private individuals relating to private 
property.

The properties owned by respondents and petitioners 
were impressed with a restriction in the form of a contract, 
duly recorded among the land records, restricting for a 
limited period of time the use and occupancy of all the 
properties included therein to persons of the Caucasian 
Race. It is conceded by petitioners they took title with 
notice of the restriction, and that they had no pre-existing 
rights therein.

What then can they claim to be their right to use and oc­
cupy the property in the face of a pre-existing enforceable 
right in others whose properties are burdened with a like 
restriction, reciprocal as to all!

They rely on the case of Buchanan v. Warley, 245 U. S. 
60, which involved the constitutionality of an ordinance of 
t ie City of Louisville, Kentucky, which undertook to legis-



4

late the separation of the races by limiting- the sale ajJ 
use of property in residential districts. The sole issue was 
whether this was a legitimate exercise of the police pow 
of the State. This Court decided the case squarely on that 
point", at pag-e 82:

“ We think this attempt to prevent the alienation of 
the property in question to a person of color was not a 
legitimate exercise of the police power of the State, and 
is in direct violation of the fundamental law enacted 
in the Fourteenth Amendment of the Constitution pie­
venting state interference with property rights except 
by due process of law. That being the case the ordi­
nance cannot stand.”

This case involved an attempt by the legislature to limit 
the ownership, and necessarily the use, of property. Simi­
larly, in Harmon v. Tyler, 273 IT. S. 668 and City of Bid 
mond v. Deans, 281 IT. S. 704, the States attempted by some­
what different forms to accomplish the same result by leg­
islation. The legislation in each case was invalidated by 
a per curiam decision of this Court on the authority of 
Buchanan v. Warley, supra.

It can only be deliberate error on petitioners’ part to 
urge that these decisions give credence to their contentions, 
This Court did no more than recognize that legislative ac- 
tion of a State, based solely on color, was repugnant to the 
Fourteenth Amendment forbidding any State to deprive any 
person of life, liberty or property without due process of 
law. But this is not to say that private contracts, whether 
in the form here involved, or of other types, are repugnant 
to that Amendment.

And in 1944, consistent with the decision in Buchmm 
Warley,1 this Court, in construing the New York CM 
Bights Act, providing for non-discrimination in labor union 
membership because of collective bargaining, stated:

“ A judicial determination that such le g is la t io n  vio­
lated the Fourteenth Amendment would be a. distortion

1 245 U. S. 60.



5

of the policy manifested in that Amendment which was 
adopted to prevent State legislation designed to per­
petuate discrimination on the basis of race or color.”  
(Italics supplied) Railroad Mail Ass’n. v. Corsi, 326 
U. S. 88.

The Fourteenth Amendment is a direct prohibition on 
State action and has no reference to the actions of individ­
uals in their relations one with another. This distinction 
has been consistently recognized.

Slaughter House Cases, 16 Wall. 36 
U. S. v. Cruikshank, 92 U. S. 542 
In Re. Virginia, 100 XL S. 313 
Virginia v. Rives, 100 U. S. 313 
U. S. v. Harris, 106 U. S. 620 
Plessy v. Ferguson, 163 U. S. 537

The Supreme Court of Michigan in this case recognized 
this fundamental difference between the acts of a State 
under the Federal Constitution and the acts of individuals 
relating to their private rights. This suit is not based on 
a statute of the State, nor is petitioners’ defense based on 
a statute of the State. The rights being asserted by re­
spondents are those fundamental rights which guarantee to 
all citizens the freedom to contract with respect of their 
property and, with the assurance that if such con tracts  are 
not repugnant to the Constitution and statutes, both Fed­
eral and State, they will be enforced.

Neither the Congress nor the Michigan Legislature has 
adopted any statutes which are addressed to the right of 
individuals to contract with respect of their property in 
the manner here involved. Under similar circumstances 
the State courts have uniformly sustained the validity of
lestrictive agreements entered into by individuals with 
lespect of their property,2 and it is now a recognized rule

Lofton (1944) 63 Cal. App. (2d) 230, 146 P. 
w v- Roberts (1945) 69 Cal. App. (2d) — , 160 P.

it) t a t0 n e  V’ J o n e s  ( 1 9 4 4 ) 66 Cal. App. (2d) 264, 152 P. (2d) 
nil A f Allgeles Investment Co. v. Gary, 181 Cal. 680, 186 P. 596: 
chandler v. Zeigler (1930) 88 Colo. 1, 291 P. 822; Steward w



6

of property;. The Supreme Court of Michigan has recog­
nized that such restrictions on the use and occupancy of 
private property are valid.8 In Parmalee v. Morris, supra, 
the Michigan Court, in disposing of the contention that a 
similar restriction was repugnant to the Constitution and 
discriminatory, sustained the injunction issued by the trial 
court:

“ We think the counsel has entirely misapprehended 
the issue involved. Suppose the situation was re­
versed, and some negro 'who had a tract of land platted 
it and stated in the recorded plat that no lot should be 
occupied by a Caucasian, and that the deeds that were 
afterwards executed contained a like restriction; would 
any one think that dire results to the white race would 
follow an enforcement of the restrictions? In the in­
stant case the plat of land containing the restriction 
was of record. It was also a part of defendant’s deed. 
He knew or should have known all about it. He did not 
have to buy the land, and he should have not bought 
it unless willing to observe the restrictions it contained.

“ The issue involved in the instant case is a simple , 
one, i.e., shall the law applicable to restrictions as to / 
occupancy contained in deeds to real estate be enforced, 
or shall one be absolved from the provisions of the law 
simply because he is a negro? The question involved 
is purely a legal one, and we think it was rightly solved 
by the chancellor under the decisions found in his opin­
ion. ”  (Italics supplied). * v.

Cronan (1940) 105 Colo. 393, 98 P. (2d) 999; Dooley v. Savannah 
Bank and Trust Co. (1945) —  Ga. — , 34 S. B. (2d) 522; Queens- 
borough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641; Meade v. 
Dennistone (1938) 173 Md. 295, 196 A 330 (Distinguishing private 
agreements from State legislation and city ordinances); Porter v, 
Johnson (1938) 232 Mo. App. 1150, 115 S. W. (2d) 529; Lion’s 
Head Lake v. Brezezinski (1945) 23 N. J. Mis. R. 290, 43 A (2d) 
729; Ridgeway v. Cockburn (1937) 296 N. Y. Supp. 936; Hemsley
v. Hough (1945) —  Okla. — , 156 P. (2d) 182 (Distinguishing re- 
trictions created by private contract and . race segregation ordi­
nances) ; Hemsley v. Sage (1944) 194 Okla. 669, 154 P. (2d) 577.

3 Porter v. Barrett (1925) 233 Mich. 373, 206 N. W. 532; Par­
malee v. Morris (1922) 218 Mich. 625, 188 N. W. 330; Ericksenv. 
Tapert (1912) 172 Mich. 457, 138 N. W. 330.



7

Nor can petitioners’ contention, that restrictive agree­
ments are unenforceable where the parties to the action 
were not parties to the agreement, be sustained. The iden­
tical proposition was unsuccessfully urged in Ericksen v. 
Tapert, (1912) 172 Mich. 457, 138 N. W. 330; Mays v. Bur­
gess, 79 App. D. C. 343, 147 F. (2d) 869, (certiorari denied, 
325 U. S. 868); and in Meade v. Dennistone, 173 Md. 295, 
196 A. 330.

“ The expressed purpose of the contract, and the fact 
that it was"so executed as to entitle it to record clearly 
demonstrates that it was intended to be binding not 
alone upon the signers but upon all their successors in 
title as" well. That the remedy may be had by and 
against grantees of the respective parties is authori­
tatively settled. ’ ’

Ericksen v. Tapert, supra.

And the United States Court of Appeals for the District of 
Columbia observed :4

“ The form of the covenant is immaterial and it is 
not necessary it should run with the land. ‘A personal 
covenant or agreement will be held valid and binding 
in equity on a purchaser taking the estate with notice. 
It is not binding upon him merely because he stands as 
an assignee of the party who makes the agreement, but 
because he has taken the estate with notice of a valid 
agreement concerning it which he cannot equitably re­
fuse to perform.’ Bryan v. Grosse, 155 Cal. 132, 99 P. 
499, 501.”

The representation that petitioners want the property as 
a home cannot have any legitimate effect. If equity were to 
refuse to enforce the rights of respondents solely because 
petitioners represent they wish to make the property their 
home, it would be an effective subterfuge and device on the 
part of the excluded race to make such claim in each in­
stance, and thereafter exercise their right under the fee to

4 Mays v. Burgess, 79 App. D. C. 343, 147 F. (2d) 869, certiorari 
denied 325 U. S. 868.



8

do whatever they desire with the property. Certainly the 
right to enforcement should not be conditioned on anything 
as uncertain as this, for death, adversity or mere caprice 
can terminate use as a home.

The Supreme Court of Michigan in the present case, after 
full consideration of the contentions of petitioners, sus­
tained the enforceable contract rights of respondents.

(b) Restrictive agreements are compatible with the de­
clared public policy of the State of Michigan; there is no 
applicable Federal policy.

Petitioners go so far as to propose that the United Na­
tions Charter prohibits restrictive agreements. While the 
Charter expresses “ a desirable social trend and an objec­
tive devoutly to be desired by all well-thinking peoples”5 it 
does not affect the subjects of one of the member nations 
in their private contractual relations; it specifically ex­
cludes from its operation matters which are within the do­
mestic, as distinguished from international, jurisdiction of 
the member nations;6 and Congress has not enacted any 
legislation on the subject affecting such private rights.7

The Supreme Court of Michigan in its opinion in this 
case8 considers carefully the question of whether the inden­
ture is invalid as being against the public policy of the 
State; the Court concludes it is not. This conclusion is not 
reviewable9 and is conclusive as to contracts affecting land 
in the State of Michigan.

5 Opinion of Supreme Court of Michigan, Record p. 67.
6 Charter of the United Nations and Statutes of International 

Court of Justice, Art. 2, Ch. 1, Par. 7.
7 Infra, p. 16.
8 Record, pp. 63, 64, 65 and 67.
9 Erie Railroad Co, v. Tompkins, 304 U. S. 64.



9

(c) The Fourteenth Amendment of the Constitution of the 
United States and implementing statutes do not prohibit 
judicial enforcement of the restriction.

The most serious and utterly fallacious proposition of 
petitioners is their contention that a State Court is pro­
hibited from enforcing, by appropriate remedy, the solemn 
recorded contracts of private individuals in relation to their 
private property rights. They charge that such judicial 
action is prohibited by the Fourteenth Amendment of the 
Federal Constitution and implementing statutes.

They say the Constitution prohibits any State from de­
priving any person of property without due process of law; 
they reason that because this Court bas held invalid legis­
lative acts relating to zoning based on race or color, all con-j 
tracts between private individuals relating to their private! 
property rights must, inter alia, be declared void. While 
they urge they are denied their property without due pro­
cess of law, they fail, and possibly refuse, to recognize that 
the respondents are likewise entitled to the Constitutional 
guarantees, as individuals, that no State shall deprive them 
of their property without due process of law. Heretofore10 
it has been shown that the right to the enforcement of such 
restrictive agreements is a valuable property right. Only 
by completely casting aside fundamental and underlying 
Constitutional principles protecting all citizens of a State, 
can petitioners’ position be sustained. The rights secured 
to all citizens must apply to all citizens.11

Under our judicial system courts are established to give 
to all citizens the opportunity to have their private rights, in 
their dealings one with another, adjudicated by impartial 
tribunals. While the power of a court is derived from the 
people through their Constitutions and statutes, State and 
Federal, and in that sense are representative of govern­
mental authority, it must be clear that never has it been

10 Supra, p. 5.
11 Porter v. Johnson, 232 Mo. App. 1150, 115 S. W. (2d) 529, 533.

I
mm*#***'



10

seriously questioned that the judiciary is a separate and 
unique form of governmental function.12 If this were not 
so, private citizens could not fearlessly attack legislative 
and executive action before the courts. The Courts are the 
guardians of the private rights of all citizens—in their rela­
tions with other citizens respecting their personal and prop­
erty rights and in their relations with government, be it 
Federal or State. The Courts do not hesitate to hold legis­
lative enactments and administrative activities of the Ex­
ecutive branch to infringe the rights of private citizens; nor 
do courts hesitate to adjudicate the innocence of persons 
charged with crime. Yet, it is the Executive branch of 
government which claims a crime has been committed. If 
the Courts were government, as urged by petitioners, there 
could he no trial, for when the Executive says a criminal act 
has been committed its alter ego—the courts—would func­
tion only to commit to jail, performing a mere ministerial 
function dictated by the Executive. This is obviously not 
our system; indeed it is a practice which we have strenu­
ously criticized and condemned foreign powers for follow­
ing. The power of the judiciary as an independent agency, 
to examine and nullify Acts of Congress, has been recog­
nized since Marburg v. Madison, 1 Cr. 137, and this is no 
less true as to State courts with respect to State laws. The 
courts are not concerned with political issues, as empha­
sized in Georgia v. Stanton, 6 Wall. 50, where it was sought 
to restrain the putting into effect of an Act of Congress pro­
viding for military government in Georgia:

“ For the rights, for the protection of which our au­
thority is invoked, are the rights of sovereignty, of po­
litical jurisdiction, of government, of corporate exis­
tence of a State, with all its constitutional powers and 
privileges. No case of private rights or private prop­
erty infringed, or in danger of actual or threatened 
infringement, is presented by the bill, in a judicial form, 
for the judgment of the Court.”

12 United States v. Dunnington, 146 U. S. 338.



11

But where a State or the Federal Government improperly 
exercises its governmental functions so as to constitute in­
vasion of private rights, the Courts will take jurisdiction.

Cohens v. Virginia, 6 Wheat. 264
Lane v. Waits, 234 U. S. 525

Petitioners’ thesis is that the State court, exercising its 
general jurisdiction in equity, has denied petitioners their 
property rights without due process of law contrary to the 
Fourteenth Amendment of the Constitution. They, say this 
is true because the court is government, and government is 
prohibited from taking property without due process of 
law. Their charge is based on this Court’s opinion in 
Buchanan v. Warley, 245 U. S. 60. They read into the 
language that which is not and cannot he there. This Court 
clearly stated the question to be decided:

“ The concrete question here is : May the occupancy, 
and, necessarily, the purchase and sale of property of 
which occupancy is an incident, he inhibited by the 
states, or by one of its municipalities, solely because of 
the color of the proposed occupant of the premises?”

and the Court’s decision held specifically that the attempt 
of the State by municipal ordinance to prevent alienation 
and use of property to a person solely because of color was 
not “ a legitimate exercise of the police power of the state” . 
Certainly no one seriously will argue that the functions of a 
court are the “ exercise of the police power of the state” . 
The Courts of the land are the only place where citizens 
may go to be relieved from the improper or oppressive exer­
cise of the police power of the States; if that were not so 
the Constitutional guarantees would be mere guides to con­
science rather than effective to assure protection to all 
citizens. This Court has said that “ the function of courts 
in the application of the Fifth and Fourteenth Amendments 
is to determine in each case whether circumstances vindi­
cate the challenged regulation as a reasonable exertion of



12

governmental authority or condemn it as arbitrary or dis­
criminatory.”  (Neblia v. New York (1934), 291 U. S. 502, 
536.) It is too fundamental to require more than the mere 
observation that many acts of the Federal Government and 
the States, claimed to be discriminatory, do not involve 
negroes. Petitioners appear to take the position that only 
negroes are discriminated against; they do not concede that 
the courts are the only place where law-abiding citizens of 
any color may obtain equal protection of the laws and save 
themselves from being deprived of their property without 
due process of law.

Here, respondents have defined property rights; the peti­
tioners took title to their property subject to the pre-exist­
ing rights of respondents. If respondents could not enforce 
these property rights through the courts of their State cer­
tainly they would be denied due process of law; they would 
be denied the privileges and immunities guaranteed to them 
under the same Amendment; and they would be denied the 
application of the fundamental rules of equity.13

The California Court in Burkhardt v. Lofton (1944) 63 
Cal. App. (2d) 230, 146 P. (2d) 720, stated:

‘ ‘ The decree of the trial court in the instant case was 
not, within constitutional principles, action by the State 
through its judicial department. Plaintiffs ’ rights are 
derived from their contract, the subject matter of which 
belonged exclusively to the contracting parties * * * if 
the contract is valid it cannot be nullified under any 
theory that courts are without power to enforce it.”

In discussing the Constitutional guarantees relating* to 
the right of private contract, this Court in Home Building 
and Loan Association v. Blaisdell, 290 U. 8. 398, speaking 
through Mr. Chief Justice Hughes, stated, beginning* at 
page 429:

‘ ‘ The obligation of a contract is ‘ the law which binds 
the parties to perform their agreement.’ Sturges v. 
Crowninshield, 4 Wheat. 122, 197, Story, op. cit., Sec.

13 Porter v. Johnson, supra.



13

1378. This Court has said that ‘ the laws which subsist 
at the time and place of the making of a contract, and 
where it is to be performed, enter into and form a part 
of it, as if they were expressly referred to or incor­
porated in its terms. This principle embraces alike 
those which affect its validity, construction, discharge 
and enforcement . . . Nothing can he more material to 
the obligation than the means of enforcement. . . . The 
ideas of validity and remedy are inseparable, and both 
are parts of the obligation, which is guaranteed by the 
Constitution against invasion’. * * * # ‘ It is competent 
for the States to change the form of the remedy, or to 
modify it otherwise, as they may see fit, provided no 
substantial right secured by the contract is thereby im­
paired, No attempt has been made to fix definitely the 
line between alterations of the remedy, which are to be 
deemed legitimate, and those which, under the form of 
of modifying the remedy, impair substantial rights. 
Every case must be determined upon its own circum­
stances.’ And Chief Justice Waite, quoting this lan­
guage in Antoni v. G-reenhow, 107 IT. S. 769, added: ‘ In 
all eases the question becomes therefore, one of reason­
ableness, and of that the legislature is primarily the 
judge.’ ”  (Italics supplied)

Where has there been
Processdo^ They were
not required to buy the property when they knew of the 
pre-existing rights therein of adjacent property owners. 
But having acquired it with full knowledge of this enforce­
able right, they were required to conform to that right. 
Failing in this, respondents did what all law-abiding citizens 
must do—looked to their Courts for enforcement.

All necessary parties14 were before the Court and the 
course of the proceedings as disclosed by the record herein 
is ample proof that petitioners were not denied due process 
of law.

“ The fundamental requirement of due process is an 
opportunity to be heard upon such notice and proceed­
ings as are adequate to safeguard the right for which

14 Burkhardt v. Lofton, 63 Cal. App. 230, 146 P. (2d) 720.



the constitutional protection is invoked. If these are 
preserved, the demands of due process are fulfilled.” 
(Italics supplied)

Anderson National Bank v. Luckett, 321 U S 233 
246.

See also: Davidson v. New Orleans, 96 U. S. 97.

If respondents were barred from securing these rights 
there is no doubt that they would be deprived of their prop­
erty without due process of law.

Petitioners’ contentions are not new. They were stren­
uously urged in Corrigan v. Buckley, 271 U. S. 323 (1926) 
and in the Court of Appeals for the District of Columbia 
(now the United States Court of Appeals for the District of 
Columbia) notwithstanding the statement of petitioners 
that the “ issue here presented was neither presented or 
decided there.” 15 An examination of the briefs, as well as 
recollection of the argument, in both Courts indicates 
clearly that the precise propositions were thoroughly 
treated. At page 329’ of the opinion16 this Court states that 
“ this appeal was allowed in June, 1924”  because defen­
dants claimed the case was one involving the construction 
and application of the Constitution and certain laws of the 
United States (Sections 1977, 1978 and 1979 of the Revised 
Statutes). The opinion states:

“ And under well-settled rules jurisdiction is want­
ing if such questions are so unsubstantial as to be 
plainly without color of merit and frivolous.”

f This is not to say the Court did not consider the questions; 
it does mean that this Court after considering the very 
same contentions now being advanced, found them to he “ so 
unsubstantial as to be plainly without color of merit and 
frivolous.”  Respondents submit that this is precisely what 
petitioners’ contentions are—unsubstantial and without 
merit.

15 Petitioners’ Brief, p. 43.
16 271 U. S. 323.



15

This Court specifically field at page 330 of the opinion:
“ The Fifth Amendment ‘ is a limitation only upon the 

powers of the general government,’ (citing cases) and 
is not directed against tire action of individuals. * * * 
And the prohibitions of the Fourteenth Amendment 
‘have reference to state action exclusively, and not to 
any action of private individuals’. Virginia v. Rives, 
100 U. S. 313, 318; United States v. Harris, 106 U. S. 
629. ‘ It is state action of a particular character that 
is prohibited. Individual invasion of individual rights 
is not the subject-matter of the Amendment.’ . Civil 
Rights Cases, 109 U. S. 3, 11. It is obvious that none 
of these Amendments prohibited private individuals 
from entering into contracts respecting the control and 
disposition of their own property; and there is no color 
whatever for the contention that they rendered the in­
denture void.”  (Italics supplied)

On the contention of the appellants in the Corrigan case 
that the action of the Court was the action of government 
and prohibited by the Fifth and Fourteenth Amendments 
(the precise contention now insisted upon by petitioners), 
this Court said, by way of recapitulation, at page 331:

“ The defendants were given a full hearing in both 
courts; they were not denied any constitutional or 
statutory right; and there is no semblance of ground 
for any contention that the decrees were so plainly ar­
bitrary and contrary to law as to be acts of mere spoli­
ation. (Citing case) Mere error of a court, if any 
there be, in a judgment entered after a full hearing, 
does not constitute a denial of due process of law (cit­
ing case).”  (Italics supplied)

The injunctive relief granted in Corrigan v. Buckley was 
substantially the same as that granted by the Michigan 
Court.
'Thus this Court, nine years after Buchanan v. Warley, 

supra, clearly and decisively distinguished between the con­
stitutional validity and enforceability by the courts of in­
dividual property rights, and state action relating to con-



16

trol of property because of race or color. The former is 
sustained, the latter is prohibited.

As previously urged in Corrigan v. Buckley, supra, peti­
tioners urge that the judicial enforcement of the covenant 
violates Section 1978 of the Revised Statutes of the United 
States (8 IT. S. C. Sec. 42). Here again petitioners distort 
the clear meaning of the language of this Court in Corrigan 
v. Buckley, supra, at page 331:

“ Assuming that this contention drew in question tie 
‘ construction’ of these statutes, as distinguished from 
their ‘ application’, it is obvious, upon their face, that 
while they provide, inter alia, that all persons and citi­
zens shall have equal right with white citizens to make 
contracts and acquire property, they, like the consti­
tutional Amendment under whose sanction they were 
enacted, do not in any manner prohibit or invalidate 
contracts entered into by private individuals in respect 
to the control and disposition of their own property.”

Here again is the clear distinction between enforceable 
private rights and the restraints on governmental power.

With equal clarity the Court of Appeals in Corrigan v. 
Buckley, 55 App. I). C. 30, 299 F. 899, with reference to the 
applicability of Sections 1977, 1978 and 1979, Revised Stat­
utes, stated at page 32:

“ Defendant claims protection under certain legisla­
tion of Congress. As suggested in the opinion of the 
learned trial justice, this legislation was enacted to 
carry into effect the provisions of the Constitution. The 
statutes, therefore, can afford no more protection than 
the Constitution itself. If, therefore, there is no in­
fringement of defendants’ rights under the Constitu­
tion, there can be none under the statutes.”

2. Social and Political Problems of a State Must Be Ad­
dressed to the Legislature Not the Courts.

It must be emphasized that such matters as health, hous­
ing, crime and the other problems that undoubtedly are 
acute among Negro citizens, must be addressed to the legis-



17

lature of the State in the exercise of the police power. 
Neither this Court nor the courts of the State of Michigan 
can correct or remedy the conditions complained of. The 
thirty-six pages of petitioners ’ brief devoted to these socio­
logical problems would indicate many and varied individ­
uals, organizations and even governmental agencies have 
devoted much time and effort to the problem. The Supreme 
Court of Michigan, not unmindful of these problems, al­
though not part of the record in the case, nevertheless de­
clared the indentures to be not against the public policy of 
that State, and that declaration is conclusive.

CONCLUSION.

The able opinion of the Supreme Court of Michigan indi­
cates serious consideration was given to every point now 
urged.

It is respectfully submitted that the judgment herein 
should be sustained.

H enry  Gtlligan ,
J ames A. Crooks,

Attorneys for Respondents.
Date: December 1, 1947.

Mr. Lloyd T. Chocldey, of Detroit, Michigan, counsel for 
respondents, died during the pendency of the case in this 
Court.



V

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ON WRIT OF CERTIORARI TO THE UNITED'STATES COURT 
OF APPEALS FOR THE DISTRICT OF COLUMBIA

B R I E F  F O R  T H E  U N I T E D  S T A T E S  A S  A M I C U S  C U R I A E





I N D E X
P age

The Interest of the United States------------------------------------------ 1
Housing----------------------------------------------------------------------- 5
Public health-------------------------------------------------------------------  13
Protection of dependent racial minorities----------------------------  14
Conduct of foreign affairs----------------------------------------------- 19
Protection of civil rights------------------------------------------------  20

Racial Restrictive Covenants in the United States------------------. 25
A. Nature and form____________________________________ 25
B. Racial covenants and Negro housing:

1 . Segregation and inadequacy of Negro housing, _ 27
2. Function of racial covenants in enforcing segre­

gation_____________________________________ 31
C. Current trends in use of racial covenants_______________  37
D. The present legal status of racial restrictive covenants:

1. State law____________________________________  40
2. Federal law__________________________________ 45
3. Law in other jurisdictions____________________  47

Argument:
I. Judicial enforcement of racial restrictive covenants 

constitutes governmental action in violation of rights 
protected by the Constitution and laws of the 
United States from discrimination on the basis of
race or color______________________________  48

Introduction__________________________________  48
A. Judicial enforcement of private covenants

constitutes governmental action_______ 50
B. The decrees below invade rights secured

by the Constitution and law's of the 
United States_______________________  52

(1) In general: The scope of constitu­
tional protection against gov­
ernmental discriminations 
based on race or color________ 52

(2) The right to acquire, use, and dis­
pose of property, without dis­
crimination because of race or 
color________________________ 62

(3) The right to compete on terms of
equality, without hindrance be­
cause of race or color, in secur­
ing decent and adequate living
accommodations_____________ 73

7 7 5 8 9 4 - 4 8 ---1  ,T.



Argument—Continued 
I.—Continued

Introduction—Continued
B —Continued Ps!(

(4) The right to equal treatment be­
fore the law________________  74

(5) Judicially enforced racial restric­
tions have no greater constitu­
tional justification than legisla­
tively imposed residential seg­
regations_____________________ 78

(6 ) The decrees below cannot be
justified on any theory of 
“ waiver”  of constitutional
rights----------------------------- . . .  85

C. The case of Corrigan v. Buckley________  87
II. Enforcement of racial restrictive covenants is con­

trary to the public policy of the United States___ 92
A. Statutes__________________________________ 94
B. Executive pronouncements_________________  95
C. International agreements__________________  97
D. Conclusion________________________________  100

III. Enforcement of racial restrictive covenants contra­
venes settled principles governing validity of re­
straints on alienation and is inequitable___________  103

A. Racial covenants constitute invalid restraints
on alienation.___________________________  103

1. The local decisions_____________________ 103
2 . Common law rules against restraint on

alienation___________________________  104
B. Enforcement of covenants is inequitable_____  117
C. This Court should determine these issues___ 120

Conclusion_________________________________________________ 121

CITATIONS
Cases:

A. F. of L. v. Swing, 312 U. S. 321_____________________  50
Allen v. Oklahoma City, 175 Okla. 421__________________  46
American Banana Co. v. United Fruit Co., 213 U. S. 347... 51
Attwater v. Attwater, 18 Beav. 330______________________  106
Bakery Drivers Local v. Wohl, 315 U. S. 769____________ 50
Bartels v. Iowa, 262 U. S. 404________________________  60
Beasley v. Texas & Pacific Railway Co., 191 U. S. 492____ 101
Berea College v. Kentucky, 211 U. S. 45_________________  59
Billings v. Welch, 6  Ir. R. C. L. 8 8 _____________________  106
Block v. Hirsh, 256 U. S. 135____________ I . . I I . I l l _____74,79
Bowen v. Atlanta, 159 Ga. 145__________________________ 46
Bowles v. Willingham, 321 U. S. 503____________________  74
Bridges v. California, 314 U. S. 252_____________________ 50,84

II



Oases—Continued Page
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673_ 51
Brown v. Mississippi, 297 U. S. 278-------------------------------  50
Buchanan v. Warley, 245 U. S. 60---------------------------------  40, 45,

52, 62, 65, 67, 71, 78, 82, 83, 89, 108, 123
Burke v. Kidman, 277 111. App. 519--------------------------------41, 47
Burkhardt v. Lofton, 63 Cal. App. 2d 230------------------------  44
Bush v. Kentucky, 107 U. S. 110------------------------------------- 56
Cafeteria Union v. Angelos, 320 U. S. 293------------------------  50
Carey v. Atlanta, 143 Ga. 192---------------------------------------- 46
Cantwell v. Connecticut, 310 U. S. 296___________________  50
Carter v. Texas, 177 U. S. 442----------------------------------------  50, 56
Chambers v. Florida, 309 XJ. S. 227---------------------------------  50
Chandler v. Ziegler, 8 8  Colo. 1----------------------------  41, 43, 44, 108
Civil Rights Cases, 109 TJ. S. 3_________________ 48, 49, 52, 71, 8 8
Clark v. Vaughan, 131 Kan. 438________________________  41
Clayton v. Ramsden [1943] A. C. 320____________________  47
ClinardY. Winston-Salem, 217 N. C. 119________________  46
Cornish v. O’ Donoghue, 20 F. 2d 983, certiorari denied,

279 XJ. S. 871__-______________________________________  42
Corrigan v. Bucldey, 299 Fed. 899, appeal dismissed, 271

V. S. 323____________________________________________ 42, 47
Corrigan v. Buckley, 271 XJ. S. 323_____________ 43, 46, 87, 90, 92
Cowell v. Springs Co., 100 XJ. S. 55______________________  116
Craig v. Harney, 331 XJ. S. 367__________________________  50
Cummings v. Board of Education, 175 XJ. S. 528____   59
Doe d. Gill v. Pearson, 6  East 173 (K. B. 1805)__________  106
Doherty v. Rice, 240 Wise. 389______________________ 42, 43, 113
Dooley v. Savannah Bank & Trust Co., 199 Ga. 353______ 41, 43
Drummond Wren, Re [1945] 4 D. L. R. 674____  47, 102, 108, 116
Dury v. Neely, 69 N. Y. Supp. 2d 677___________________  41
Bast New York Bank v. Hahn, 326 XJ. S. 230____________  80
Edwards v. California, 314 XJ. S. 160____________________  53
Edwards v. West Woodridge Theatre Co., 55 F. 2d 524___  42
Euclid v. Ambler Realty Co., 272 U. S. 365_______________  64
Fairchild v. Raines, 24 Cal. 2d 818__________________ 44, 45, 119
Fay v. New York, 332 XJ. S. 261_______________________  69
Fisher v. United States, 328 XT. S. 463____________________ 120
Follett v. McCormick, 321 U. S. 573_____________________  54
Gandolfo v. Hartman, 49 Fed. 181_______________________  42, 47
Geofroy v. Riggs, 133 U. S. 258__________________________ 69
Glover v. Atlanta, 148 Ga. 285___________________________ 46
Gong Lum v. Rice, 275 XJ. S. 78_________________________ 59
Gospel Spreading Ass’ra v. Bennetts, 147 F. 2d 878_______44, 119
Grady v. Garland, 89 F. 2d 817, certiorari denied, 302

XJ. S. 694____________________________________________ 42, 45
Griffin v. Griffin, 327 XJ. S. 220__________________________  51
Grovey v. Townsend, 295 U. S. 4 5 ________________________ 58
Hale v. Kentucky, 303 XJ. S. 613______________________56

I l l



IV

Cases—Continued Page
Hansberry v. Lee, 311 U. S. 32_________________________ 47 jj
Harden v. Atlanta, 147 Ga. 248________________________  45
Harmon v. Tyler, 273 U. S. 6 6 8 ________________________ 45^6
Harris v. Louisville, 165 Ky. 559_______________________  45
Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U. S. 334__ 118
Hecht Co. v. Bowles, 321 U. S. 321______________________ 117
Hemsley v. Hough, 195 Okla. 298_______________________ 42
Hemsley v. Sage, 194 Okla. 669________________________  42
Hill v. Texas, 316 U. S. 400____________________________53,75
Hirabayashi v. United. States, 320 U. S. 81______________  53
Ho Ah Kow v. Nunan, 12 Fed. Cas. 252_______________  54
Hodges v. United States, 203 U. S. 1____________________  88
Hollins v. Oklahoma, 295 U. S. 394_____________________ 56
Hopkins v. Richmond, 117 Va. 692_____________________  46
Hundley v. Gorewitz, 132 F. 2d 23______________  42, 44, 103,119
Irvine v. Clifton Forge, 124 Va. 781_____________________ 46
Jackson v. State, 132 Md. 311__________________________  46
Janss Investment Co. v. Walden, 196 Cal. 753___________  41
Kemp v. Rubin, 188 Misc. 310, 69 N. Y. Supp. 2d 680_____41,108
Koehler v. Rowland, 275 Mo. 573____________  41, 43, 44,108, 111
Korematsu v. United States, 323 U. S. 214______________53,115
Liberty Annex Corp. v. Dallas, 289 S. W. 1067, affirmed,

295 S. W. 591____________________________________  42,43,46
License Tax Cases, 5 Wall. 462_________________________  93
Lion’s Head Lake v. Brzezinski, 23 N. J. Misc. 290„_ 41,108,111 
Los Angeles Investment Co. v. Gary, 181 Cal. 680 - 41,43,108,112
Lyons v. Wallen, 191 Okla. 567_____________________ 42,43,108
MacLeay, Re, L. R. 20 Eq. 186 (1875)______________ 106
Mahony v. Tynte, 1 Ire Ch. R. 577_____________________  106
Mandlebaum v. McDonell, 29 Mich. 78_____________  106
Manierre v. Welling, 32 R. I. 104__________________  106
Marsh v. Alabama, 326 U. S. 501___________________ 64,80
Martin v. Struthers, 319 IT. S. 141__________________  81
Martin v. Texas, 200 U. S. 316_____________________ 60
Mays v. Burgess, 147 F. 2d 869, 152 F. 2d 123, certiorari 

denied, 325 U. S. 8 6 8 , rehearing denied, 325 IT. S. 896.„ 30,
’ 33, 42, 44, 45,104, 116,119,121

McCabe v. Atch., T. & Santa Fe, Ry. Co. 235 IT. S. 151---- 60
McDougall and Waddell, Re [1945] 2 D. L. R. 244________ 47
Meade v. Dennistone, 173 Md. 295_________  41, 43, 108, 111, U2
Meredith v. Winter Haven, 320 U. S. 228________________ ^
Meyer y. Nebraska, 262 U. S. 390____________ j-------------
Miller v. Jersey Coast Resorts Corp., 98 N. J. Eq. 289------  41,42
Missouri ex rel. Gaines v. Canada, 305 IT. S. 337-------------  69
Mitchell v. United States, 313 U. S. 80__________________
Mooney v. Holohan, 294 IT. S. 103______________________  50
Moore v. Dempsey, 261 IT. S. 8 6 ________________________
Morton Salt Co. v. Suppiger Co., 314 IT. S. 488---------------  ^



V

Gases—Continued Page
Murdock V. Pennsylvania, 319 U. S. 105--------------------------  54
Muschany v. United States, 324 U. S. 49--------------------------  93
Neal v. Delaware, 103 U. S. 370--------------------------------------  50, 56
Nixon v. Condon, 286 U. S. 73---------------------------------------- 56, 82
Nixon v. Herndon, 273 U. S. 536------------------------------------- 56
Norris v. Alabama, 294 U. S. 587------------------------------------  56
Pannekamp v. Florida, 328 IT. S. 331------------------------------  50
Parmalee v. Morris, 218 Mich. 625_________  41, 43, 108, 111, 112
Pennoyer v. Neff, 95 U. S. 714---------------------------------------- 51
Perkins v. Trustees of Monroe Ave. Church, 79 Ohio App.

457, 70 N. E. 2d 487, appeal dismissed, 72 N. E. 2d 97,
pending on petition for writ of certiorari, No. 153, this
Term______________________________  42, 43, 108, 111, 112, 113

Pierce v. Society of Sisters, 268 U. S. 510________________  60
Pierre v. Louisiana, 306 U. S. 354_______________________  56
Plessy v. Ferguson, 163 IT. S. 537--- _------------------------------  52, 60
Porter v. Barrett, 233 Mich. 373________________________ 41, 112
Porter v. Johnson, 232 Mo. App. 1150___________  41, 44, 45, 111
Porter v. Pryor, 164 S. W. 2d 353_______________________  41
Postal Telegraph Cable Co. v. Newport, 247 U. S. 464_____  51
Potter v. Couch, 141 IT. S. 296___________________________  117
Powell v. Alabama, 287 IT. S. 45_________________________ 50
Queensborough Land Co. v. Cazeaux, 136 La. 724__ 41, 43, 107, 108
Railway Mail Association v. Corsi, 326 U. S. 8 8 __________  54
Richmond, City of v. Deans, 281 U. S. 704, affirming 37 F.

2d 712___________________________________________  45, 6 6 , 67
Ridgway v. Cockburn, 163 Misc. 511_____________________ 41
Rogers v. Alabama, 192 U. S. 226_______________________  231
Rosher, Re, 26 Ch. D. 801_______________________________ 106
Russell v. Wallace, 30 F. 2d 981, certiorari denied, 279 IT. S.

871_________________________________________________  42
Schenectady Union Publishing Co. v. Sweeney, 316 U. S. 642 _ 51
Scholtes v. McColgan, 184 Md. 480_________________41, 108,112
Schulte v. Starks, 238 Mich. 102_________________________ 41
Scott v. McNeal, 154 U. S. 34___________________________  51
Smith v. Allwright, 321 U. S. 649________________________  56
Snowden v. Hughes, 321 IT. S. 1_________________________  76
Sola Electric Co. v. Jefferson Co., 317 IT. S. 173___________ 93
State v. Canada, 344 Mo. 1238__________________________  59
State v. Darnell, 166 N. C. 300__________________________  46
State v. Gurry, 1 2 1  Md. 534_____________________________ 46
Steele v. Louisville & Nashville R. Co., 323 U. S. 192_____53, 115
Steward v. Cronan, 105 Colo. 3 9 3 ________________________  41
St. Louis Mining Co. v. Montana Mining Co., 171 U. S. 650_ 93
Stone v. Jones, 6 6  Cal. App. 2d 264_____________________  44
Strauder v. West Virginia, 1 0 0  U. S. 303_______  52, 55, 71, 72, 75
Talbott v. Silver Bow County, 139 U. S. 438______________  69
Talton y. Mayes, 163 U. S. 376__________________________ 8 8



VI

Gases—Continued p
Thornhill v. Herdt, 130 S. W. 2d 175____ _______________ 41
Torrey v. Wolfes, 6  F. 2d 702__________________________  ^
Truax v. Corrigan, 257 U. S. 312_____________ _________  75
Truax v. Raich, 239 U. S. 33____________________ 5 3 , 55) g] 73
Tyler v. Harmon, 158 La. 439__________________________  gj
Twining v. New Jersey, 211 U. S. 78_______ ___________  50
United Cooperative Realty Co. v. Hawkins, 269 Ky. 563___ 41 43
United States ex rel. Greathouse v. Hern, 289 U. S. 352___
United States v. Bethlehem Steel Corp., 315 U. S. 289____  118
United States v. Carotene Products Co., 304 U. S. 144____  54
United States v. Harris, 106 U. S. 629__________________  88
United States v. Morris, 125 Fed. 322__________   95
Vernon v. R. J. Reynolds Realty Co., 226 N. C. 58_______ 41
Virginia, Ex parte, 100 U. S. 339____________________ 50, 56, 71
Virginia v. Rives, 100 U. S. 313_____________________50, 71, 88
Wayt v. Patee, 205 Cal. 46____________________________41, 112
West Coast Hotel Co. v. Parrish, 300 U. S. 379__________  123
White v. White, 108 W. Va. 128______________  42, 108, 112, 113
Williams v. Commercial Land Co., 34 Ohio Law Rep. 559 . 112
Williams v. North Carolina, 325 U. S. 226_______________ 51
Wyatt v. Adair, 215 Ala. 363__________________________41, 111
Yick Wo v. Hopkins, 118 U. S. 356__________________ 53, 54, 61
Yu Cong Eng. v. Trinidad, 271 U, S. 500________________ 62

Constitution of the United States:
Fifth Amendment_____________________________________  3, 77
Fourteenth Amendment__________________________ 3, 58, 71, 77

Treaty:
Act of Chapultepee (March 1945)______________________  98
Charter of the United Nations (59 Stat. 1033, 1213)____  97

Art. 55_______________   97
Art. 56______________   97

Statutes:
Rev. Stat. 1078 (28 U. S. C. 292)______________________  94
Act of March 1, 1875, 18 Stat. 336, sec. 4 (8  U. S. C. 44).. 94
Act of June 28, 1941, 55 Stat. 361 (42 U. S. C., Supp. V,

1533)_______________________________________________ 95
Civil Rights Act of 1866, 14 Stat. 27___________________  70
40 Stat. 1189, 1201____________________________________  95
48 Stat. 22, 23__________________________ _•_____________  95
50 Stat. 319, 320 (16 U. S. C. 584g)_____________________  95
50 Stat. 352, 357______________________________________  95
53 Stat. 855, 856 (49 U. S. C. 752)_________________ 95
53 Stat. 927, 937______________________________________ 95
53 Stat. 1147, 1148 (18 U. S. C. 61c)___________________  95
54 Stat. 574, 593______________________________________  95
54 Stat. 611, 623______________________________________ 95
54 Stat. 1211, 1214 (5 U. S. C. 681e)___________________  95
55 Stat. 396, 405, 406.____ ___________________J________ 95



VII

Statutes—Continued Page
55 Stat. 466, 491----------------------------------------------------------  95
56 Stat. 562, 575----------------------------------------------------------  95
56 Stat. 634, 643________________________    95
57 Stat. 153 (50 U. S. C. App. 1451)____________________  95
60 Stat. 999, 1030 (22 U. S. C. A. 807)___________________  95
Rev. Stat. 1977, c. 114, sec. 16, 16 Stat. 144 (8  IT. S. C.

41)__________________________________________  64, 71, 76, 94
Eev. Stat. 1978, c. 31, sec. 1, 14 Stat. 27 (8  U. S. C. 4 2 )... 64,

69, 70, 94
Eev. Stat. 1979, 17 Stat. 13 (8  U. S. C. 43)______________ 70
Rev. Stat. 2004 (8  U. S. C. 31).________________________ 94
Rev. Stat. 2302 (43 U. S. C. 184)_______________________  94
Criminal Code, sec. 19 (18 U. S. C. 51)_________________  95

Miscellaneous:
Exec. Order No. 2000, July 28, 1914_____________________ 96
Exec. Order No. 7915, June 24, 1938 (3 F. R. 1519)______  96
Exec. Order No. 8587, November 7, 1940 (5 F. R. 4445).. 96
Exec. Order. 8802, June 25, 1941 (6  F. R. 3109)_________  96
Exec. Order No. 9346, May 27, 1943 (8  F. R. 7183)______ 96
Exec. Order 9808, December 5, 1946____________________  21
Address of John B. Blandford, first Administrator of the 

National Housing Agency before the Annual Conference 
of the National Urban League, at Columbus, Ohio,
October 2 , 1944_____________________________________  34

Address of President Truman, June 29, 1947, 38th Annual 
Conference of the National Association for the Advance­
ment of Colored People, 93 Cong. Rec. A-3505________ 97

Dept, of State Bulletin, March 1 1 , 1945, p. 399__________  100
Dept, of State Bulletins, March 4, March 18, 1945, pp.

347, 451_____________________________________________ 99
Documents of American Foreign Relations, Vol. I, 1938-

1939, World Peace Foundation publisher, p. 49_______ 100
House Document No. 377, 78th Cong., 2d sess., p. 7_____  96
Letter of Raymond M. Foley, Administrator, Housing 

and Home Finance Agency, to the Department of Justice
dated November 4, 1947___________________________5, 34, 38

Letter of Ernest A. Gross, Legal Adviser to the Secretary of 
State, to the Attorney General, dated November 4, 1947. 19

Letter of Surgeon General Thomas Parran to the Depart­
ment of Justice, dated October 13, 1947______________ 13, 31

Letter of the Under Secretary of the Interior, Oscar 
Chapman, to the Department of Justice, dated Novem­
ber 10, 1947_____________________________________   15

Letter of Wilson Wyatt to the Conference for the Elimina­
tion of Restrictive Covenants, Chicago, 111., May 10-11,
1946________________________________________________  3 5

National Housing Agency’s Conference for Racial Rela­
tions Advisers (October 28-November 2, 1946)_ 35



VIII

Miscellaneous—Continued
Report of the Chicago Housing Authority for the fiscal ^

year ending June 30, 1947________________________ 32

Report of the Delegation of U. S. A. to Inter-American 
Conference, Mexico City, Feb. 21— March 8 , 1945____ 99

Report of Pennsylvania State Temporary Commission on 
the Condition of the Urban Colored Population (1943)
131 et seq_____________________________________  _ ^

Report of the President’s Committee on Civil Rights
(1947)----------------------------------------------- 2,21,30,31,33,39,118

Report on Housing and Juvenile Delinquency, National 
Conference on Prevention and Control of Juvenile
Delinquency________________________________  _ jq

Report on Negro Housing of the President’s Conference on
Home Building and Home Ownership (1932)______  29 , 39,31

Restatement of Property, vol. 4 . ........ 104, 105, 110,114,116,117
United Nations General Assembly Journal, 1st Sess., No.

75, Supp. A-64, p. 957_______________________________  93
Treatises and Articles:

Abrams, Discriminatory Restrictive Covenants—A Chal­
lenge to the American Bar____________________________ 39

Abrams, Homes for Aryans Only, 3 Commentary (No. 5,
May 1947) 421______________________________________ 39

Bruce, Racial Zoning by Private Contract in the Light of 
the Constitutions and the Rule Against Restraints on
Alienation (1927) 21 111. L. Rev. 704_________________  114

Chafee, Equitable Servitudes in Chattels (1928), 41 Harv.
L. Rev. 945, 984_____________________________________ 107

Cheshire, The Modern Law of Real Property (4th ed. 1937). 47
Clark, Real Covenants and Other Interests which “ Run

With Land”  (2d ed. 1947), chap. VI__________________  117
Dean, None Other Than Caucasian, Architectural Forum,

Oct. 1947----------------------------------------------------------------- 33 ,39
Drake and Cayton, Black Metropolis_________________  29,30,32
Flack, Adoption of the Fourteenth Amendment (1908)___ 71
Gray, Restraints Upon Alienation of Property (2d ed.

1895):
Secs. 41-44____________________________________  106,107

52-54_______ ______________________________  106
279____________________ „ __________________  107

Jahn, Schmid and Schrag, The Measurement of Ecological
Segregation (1947), 1 2  Am. Soc. Review 293__________  31

Johnson, Patterns of Negro Segregation (1943)____________ 26
Jones, The Housing of Negroes in Washington (1929)____ 34
Kahen, Validity of Anti-Negro Restrictive Covenants: A 

Reconsideration of the Problems (1945), 12 U. of Chi.
L. Rev. 198_________________________________________ 28,119

Lohman and Embree, The Nation’s Capital, 36 Survey
Graphic, No. 1 (Jan. 1947)____________________________ 30

Mangum, The Legal Status of the Negro (1940)_________  26



XX

Treatises and Articles—Continued Page
Manning, The Development of Restraints on Alienation

Since Gray (1935), 48 Harv. L. Rev. 373____________  112,114
Martin, Segregation of Residences of Negroes (1934), 32

Mich. L. Rev. 721__________________ 1_____________  109,119
McGovney, Racial Residential Segregation by State Court 

Enforcement of Restrictive Agreements, Covenants or 
Conditions in Deeds is Unconstitutional (1945), 33 Calif.
L. Rev. 5__________________________ ________________40,109

Meyer, Negro Housing— Capital Sets Record for U. S. in 
Unalleviated Wretchedness of Slums—Washington Post,
Sec. II, Sunday, Feb. 6 , 1944--------------------------------------  30

Miller, Race Restrictions on Ownership or Occupancy of
Land (1947), 7 Law. Guild Rev. 99___________________  114

Miller, The Power of Restrictive Covenants, 36 Survey
Graphic, No. 1 (Jan. 1947)___________________________  38

Monehow, The Use of Deed Restrictions in Subdivision
Development (1928)__________________________________ 39

Myrdal, An American Dilemma (1944) 25, 26, 28, 29, 30, 31, 32, 36
Note (1926), 26 Col. L. Rev__________________________  88,114
Ribble, Legal Restraints on the Choice of A Dwelling (1930),

78 U. of Pa. L. Rev. 842___________________________  111, 114
Robinson, Relationship Between Condition of Dwellings 

and Rentals, by Race (1946), 22 J. of Land and Pub.
Util. Economics 296_________________________________ 30, 36

Schnebly, Restraints Upon the Alienation of Legal Interests
(1935), 44 Yale C. J. 961______________  107, 109, 113,116, 117

Shuman, Differential Rents for White and Negro Families,
3 Journal of Housing (No. 8 , Aug. 1946)______________  30

Simes, Vol. II, The Law of Future Interests:
450___________________________________________  107
456-460______________________ _________  106,107, 114

Spaulding, Housing Problems of Minority Groups in Los 
Angeles, 248 Annals of the Am. Acad, of Soc. & Pol. Sci.,
Nov. 1946___________________________________________ 32, 39

Sterner, The Negro’s Share (1943)________________  28, 32, 36, 39
Sweet, Restraints On Alienation (1917), 33 L. Q. Rev.

236-----------------------------------------------------------------------  106,107
Velie, Housing: Detroit’s Time Bomb, Collier’s, Nov. 23,

1946-------------------------------------------------------------------------  3 3

Warren, The Progress of the Law, 1919-1920: Estates and
Future Interests (1921), 34 Harv. L. Rev. 639________ 107,114

Weaver, “Hemmed In” ________________________________  32
Weaver, Housing in a Democracy, 244 Annals of the Amer.

Acad, of PoL & Sci., 95 (Mar. 1946)__________________  36
Weaver, Northern Ways, 36 Survey Graphic (Jan. 1947)__ 39
Weaver, Race Restrictive Housing Covenants (1944), 20

J. of Land & Pub. Util. Economics 183_______________  32, 36
Woofter, Negro Problems in Cities (1928)_______________  30





xif the United Ĵ tates
O c t o b e r  T e r m , 1947

No. 72 1

J. D. S h e l l e y , E t h e l  L e e  S h e l l e y , H is  W if e ,  
an d  J o s e p h in e  F it z g e r a l d , p e t it io n e r s  

v.
L ouis K r a e m e R a n d  F e r n  W .  K r a e m e r , H is  

W if e

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
THE STATE OF MISSOURI

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

THE IN T E R E ST  OF T H E  U N IT E D  STATES

The Federal Gtovernnient has a special respon­
sibility for the protection o f the fundamental

1 Together with No. 87, Orsel McGhee and Minnie S. Mc­
Ghee, his wife, Petitioners v. Benjamin J. Sipes and Anna O. 
Sipes, James A. Goon and Addie A. Coon, et dl., on writ of 
certiorari to the Supreme Court of the State of Michigan; 
No. 290, James M. Hurd, et dl., Petitioners, v. Frederic E. 
Hodge, et dl., on writ of certiorari to the United States Court 
of Appeals for the District of Columbia; No. 291, Raphael 
G. Urciolo, et dl., Petitioners v. Frederic E. Hodge, et ad., 
on writ of certiorari to the United States Court of Appeals 
for the District of Columbia.

(l)



2

civil rights guaranteed to the people by the Con­
stitution and laws of the United States. The 
President of the United States recently stated.:2

W e must make the Federal Government 
a friendly vigilant defender of the rights 
and equalities o f all Americans. * * * 
Our National Government must show the 
way.

The Government is of the view that judicial 
enforcement o f racial restrictive covenants on 
real property is incompatible with the spirit and 
letter o f the Constitution and laws o f the United 
States. It is fundamental that no agency of gov­
ernment should participate in any action which 
will result in depriving any person of essential 
rights because o f race or color or creed. This 
Court has held that such discriminations are pro­
hibited by the organic law of the land, and that 
no legislative body has power to create them. It 
must follow, therefore, that the Constitutional 
rights guaranteed to every person cannot be 
denied by private contracts enforced by the 
judicial branch o f government— especially where 
the discriminations created by private contracts 
have grown to such proportions as to become 
detrimental to the public welfare and against 
public policy.

2 Address by President Truman at the Lincoln Memorial, 
Washington, D. C., June 1947, quoted in the Keport of the 
President’s Committee on Civil Rights (1947), page 99.



3

Residential restrictions based on race, color, 
ancestry, or religion have become a familiar 
phenomenon in almost every large community of 
this country, affecting the lives, the health, and 
the well-being of millions o f Americans. Such 
restrictions are not confined to any single 
minority group. While Negroes (o f whom there 
are approximately 13 million- in the United 
States) have suffered most because of such dis­
criminations, restrictive covenants have also been 
directed against Indians, Jews, Chinese, Japa­
nese, Mexicans, Hawaiians, Puerto Ricans, F ili­
pinos, and “ non-Caucasians” .

This Nation was founded upon the declaration 
that all men are endowed by their Creator with 
certain inalienable rights, and that among these 
rights are Life, Liberty and the pursuit o f Happi­
ness. To that declaration was added the Fifth 
Amendment of the Bill o f Rights, providing that 
no person shall be deprived of life, liberty or prop­
erty without due process of law; and the Four­
teenth Amendment, providing that no State shall 
deprive any person of life, liberty or property, 
without due process o f lave, nor deny to any person 
within its jurisdiction the equal protection of the 
laws. And Congress, exercising its power to 
enforce the provisions o f the Fourteenth Amend­
ment, has provided that all citizens of the United 
States shall have the same right, in every State 
and Territory, as is enjoyed by white citizens to



4

inherit, purchase, lease, sell, hold, and convey real 
and personal property.

Racial restrictive covenants on real property 
are o f comparatively recent origin. I f  limited in 
number, and confined to insignificant areas, they 
would not have been of such public importance. 
But they have already expanded in large cities 
from coast to coast. They are responsible for 
the creation o f isolated areas in which over­
crowded racial minorities are confined, and in 
which living conditions are steadily worsened. 
The avenues o f escape are being narrowed and 
reduced. As to the people so trapped, there is no 
life in the accepted sense o f the w ord; liberty is 
a mockery, and the right to pursue happiness a 
phrase without meaning, empty of hope and 
reality. This situation cannot be reconciled with 
the spirit of mutual tolerance and respect for the 
dignity and rights o f the individual which give 
vitality to our democratic way of life. The time 
has come to destroy these evils which threaten 
the safety o f our free institutions.

The fact that racial restrictive covenants are 
being enforced by instrumentalities of govern­
ment has become a source o f serious embarrass­
ment to agencies o f the Federal Government in 
the performance o f many essential functions, in­
cluding the programs relating to housing and 
home finance, to public health, to the protection 
of dependent native racial minorities in the



5

United States and its territories, to the conduct 
of foreign affairs, and to the protection o f civil 
rights.

Housing.— The Administrator of the Housing 
and Home Finance Agency has prepared the fol­
lowing statement describing the effects which the 
widespread use of racial restrictive covenants has 
had upon the operations of that agency3:

Racial restrictive covenants, as the core 
of a system of traditional real estate prac­
tices controlling the access of Negroes and 
other racial minority groups to sites and 
dwelling units, have affected practically 
every phase of public housing administra­
tion during the past thirteen years. By 
generally restricting these groups to 
sharply defined neighborhoods which pro­
vide too few houses and too little living 
space, these covenants have served to dis­
tort the objectives of the public housing 
program. The ultimate effect of cove­
nanted land restrictions is to place the 
Federal agency, required as it is to clear 
and replace slum areas, in the position of 
appearing to place the stamp of govern­
mental approval upon separate residential 
patterns and to render it most difficult for 
the agency to administer public funds in 
such manner as to assure equitable partici­
pation by minority racial groups.

3 Letter of Raymond M. Foley, Administrator, Housing 
and Home Finance Agency, to the Department of Justice, 
dated November 4,1947. Copies of this letter, as well as the 
other letters quoted herein, have been filed with the Clerk.



6

As a result, administrative problems arise 
to confront the agency at every stage of 
the program—the programming of projects 
and dwelling units, determination of sites, 
acquisition and assembly of land, provi­
sion o f project services and facilities, gen­
eral project management and disposition, 
The processes involved not only impede 
the progress of the program, in many in­
stances, but are often excessive in cost and 
thereby reduce the total amount of hous­
ing and facilities which might otherwise 
he provided with the funds available.

Inasmuch as the local approach to hous­
ing is generally conditioned by the patterns 
maintained by racial restrictive covenants, 
the earliest stages of planning with local 
housing authorities to meet the housing 
needs of racial segments in the low-rent 
market on an equitable basis must include 
racial breakdowns and anticipate location 
and occupancy conditions accordingly.

The most serious distortion of planning 
occurs at the site selection stages at which 
sites offered by the local authority must 
be evaluated in terms of the racial compo­
sition o f the prospective project occupants. 
In many communities, racial minority 
groups are land-bound within areas re­
stricted by the existence o f racial covenants 
on undeveloped as well as developed areas. 
The result is excessive overcrowding in the 
slum and blighted areas with which the 
basic purposes of the low-rent public hous­
ing program are concerned. Repercussions



7

upon the program are extensive. Obstacles 
to the location of racial minorities outside 
of the areas to which they are restricted 
necessitate site selection for developments 
to house such groups within these inordi­
nately overcrowded areas. At the same 
time, the excessive overcrowding tends to 
increase the cost of the land. Moreover, 
there is the danger o f increasing the den­
sity of other restricted and overcrowded 
areas which must absorb the racial minori­
ty group families temporarily or perman­
ently displaced from similar areas by 
public housing developments. In many 
cases, alternative housing cannot be pro­
vided at all without demolition o f units 
already occupied and desperately needed as 
the only shelter available to the racial 
minority groups.

While these conditions would naturally 
constitute a part of the inevitable problems 
to be dealt with by a program limited to 
unit for unit replacement, the degree of 
hardship and the limitation o f sound solu­
tions are far greater when racial minority 
groups are involved.

When open sites are sought or used 
under such circumstances as the need for 
lower cost land, relieving the congestion of 
the slum area, avoiding displacement of 
more units than the program can replace 
under acceptable density standards, or the 
requirements of the war housing program, 
objections to use of such sites for housing 
to which racial minorities will be admitted

775891—48----- 2



8

are frequently obstructive and sometimes 
prohibitive. An outstanding example of 
the local, national and even international 
implications involved is the development of 
the Sojourner Truth project in Detroit, 
Michigan, which the Department of Justice 
investigated incident to the violence which 
accompanied the moving of Negroes into 
this project developed on open land. The 
cost of this experience to national unity 
and international prestige is incalculable.

Actual increased financial costs are in­
curred not only in the additional adminis­
trative processes required to effect suitable 
participation by racial groups in the pro­
gram under the conditions aggravated by 
racial restrictive covenants, but also in the 
uneconomic development and administra­
tion of dual facilities and services. In the 
instance o f Buffalo, an additional half mil­
lion dollars was required to rehouse dis­
placed Negro families from a slum site to 
allow the development of a project for es­
sential Negro war workers on the only site 
locally available to minority group occu­
pancy.

Regulations * * * require local hous­
ing authorities to give eviction notices to 
families which have become ineligible for 
continued occupancy o f low-rent housing 
projects because o f increases in their in­
come since their original admission. Negro 
families whose incomes now exceed the 
maximum limit for continued occupancy 
have a great deal of difficulty in finding 
other housing because large areas are closed



9

to them by restrictive covenants. Further­
more, local housing authorities encounter 
almost unanimous resistance from the 
Negro community and its press, seriously 
impairing the type of public relations es­
sential to the successful administration of 
the eviction policy. The protests place 
the PH  A  and the local authority in an al­
most indefensible position because of the 
difficulties of refuting the claims that the 
Negro evictees are virtually barred from 
competing in the open housing market for 
shelter on the same basis as other evicted 
tenants in similar economic position.

After March 1, 1948, it will become 
necessary to evict such over-income fami­
lies whether or not other housing accom­
modations have been specifically located for 
particular families. In addition, over
46,000 minority group families are now liv­
ing in temporary war housing which must 
be removed by July 25, 1949, in order to 
comply with the legislation under funds 
which were provided for their construction. 
This is anticipated as a major problem on 
the West Coast where thousands of Negro 
war migrant families are housed in tem­
porary projects.

Under both of these conditions where 
evictions will be effected, the existence of 
racial restrictive covenants will probably 
cause a disproportionate number o f Negro 
tenants to move from low-rent housing 
projects into slum areas. When such re­
movals occur, racial minorities tend to



charge the Federal Government with forc­
ing them into situations where they suffer 
inequitable and discriminatory treatment.

The disposition o f permanent war hous­
ing will, of course, conform generally with 
the local real estate practices which are 
conditioned by the racial restrictive cove­
nants. Under these local conditions, the 
agencies of the Federal Government re­
sponsible for the disposition program are 
subject to embarrassing involvement in 
cases where racial minority group veter­
ans may be denied acquisition of houses to 
which, otherwise, they would have prefer­
ence.

These are but a few illustrations of the 
impact o f the restrictive processes upon 
the operations o f the P H A  program. To 
meet these and associated problems, it has 
been necessary to evolve specific adminis­
trative machinery and a body o f policy and 
procedure in order to effect a measure of 
equitable participation by minority racial 
groups.

* * * * *  

PREVALENCE OF RACIAL RESTRICTIVE 
COVENANTS

While this subject is under study in the 
Agency, comprehensive and conclusive in­
formation on the extent o f such covenants 
is not now available: Field reports, how­
ever, from such localities as Los Angeles, 
Chicago, Detroit, St. Louis, Baltimore, New 
York City and Washington, D. C., reveal

1 0



11

the increasing application of these deed 
restrictions during recent years. This 
acknowledged fact is reflected in:

a. The multiplicity o f court actions re­
garding racial covenants in those cities.

b. Repeated reports of the inability of 
private developers to locate adequate build­
ing sites uncovenanted and open to 
occupancy by Negroes, Latin-Americans, 
Asiatics and other similar groups.

c. Planning commission reports on the 
restriction of 20 per cent of the population 
(Negro) of Baltimore to 2 per cent o f the 
land areas; a density o f 80,000 persons per 
square mile in portions o f the Negro South 
Side in Chicago as compared to an average 
population density in blighted areas of 
40,000; concentration o f 3,871 Negroes in 
the famous “ lung block”  in New York 
City’s Harlem—at such density rate, all 
the people in the United States could be 
accommodated in one-half o f the New York 
City land area.

* * * * *  

ADMINISTRATIVE BURDENS ATTRIBUTABLE TO 
RACIAL RESTRICTIVE COVENANTS

Covenants o f this type have complicated 
the administration of governmental housing 
programs throughout the past decade and 
have made difficult the equitable use of 
public funds and powers. The enforce­
ment of such covenants provides official 
state support for the traditional real estate 
and financial practice of restricting Ne-



groes and other racial minorities to sharply 
defined neighborhoods which provide too 
little space for expanding population 
groups.

Hemmed in by these covenants, these 
areas have become highly congested, over­
used, under-serviced and largely sub­
standard. As a result, the program of 
F H A  mortgage insurance can have but 
limited application in such areas for purely 
economic reasons. The existence of such 
covenants outside these constricted areas, 
makes it inordinately difficult and often 
impossible for prospective Negro buyers 
to qualify for F H A  mortgage insurance. 
As a result, the middle income market 
among Negroes and similar racial minori­
ties is largely excluded from the benefits 
o f the mortgage insurance program.

Land restrictions are a primary factor 
in the minority housing market, which re­
sults in higher costs o f credit and dispro­
portionately limits the purchasing power 
of the housing dollar of minority groups. 
This indirectly affects the extent to which 
minority groups benefit from state or fed­
erally aided financing operations.

Court enforced racial covenants dispro­
portionately limit the occupied neighbor­
hoods and open areas available for the 
development of public housing projects 
open to minority group occupancy. Thus 
the federal public housing program experi­
ences serious administrative difficulties in



13

efforts to meet the disproportionately large 
mass housing market among minority 
group low-income families.

Local, state or federal programs offering 
aid to land assembly, urban redevelopment 
and community facilities are hampered by 
such covenants.

The resultant inequity in the expenditure 
of public funds and the compulsion upon 
federal agencies to conform to “ commu­
nity patterns”  render federal housing 
agencies subject to the double charge of 
placing the stamp of governmental ap­
proval upon residential segregation and 
administering the funds or powers of all 
the people in a discriminatory manner.

Public Health.— The Surgeon General o f the 
United States Public Health Service has made 
the following statement as to the health problems 
which arise from the artificial quarantine of 
minority groups in overcrowded residential 
areas: 4

While national housing policy does not 
come within the official cognizance of the 
U. S. Public Health Service, we do regard 
the provision and maintenance o f a sani­
tary environment for all the people of the 
country as a major and basic element of 
national health policy. The sanitation 
and hygiene of housing, accordingly, are of 
great importance in relation to the objec-

4 Letter of Surgeon General Thomas Parran to the Depart­
ment of Justice, dated October 13,1947.



14

lives and programs of the Public Health 
Service.

The relationship between bousing and 
health is extremely difficult technically to 
assess, because there are almost inevitably 
associated with housing concomitant fac­
tors, such as income, food, and ability to 
obtain medical care and education, that 
have a decided bearing upon health.

While an exact assessment cannot be 
made on technical grounds, there is general 
agreement among health authorities that 
housing deficient in basic sanitary facilities, 
structurally defective from the point of 
view o f home accidents and protection 
against the elements, and improperly 
planned in relation to the cultural resources 
o f the community, is a serious deterrent 
to improved national health.

To the extent that racial restrictive 
housing covenants would deny a citizen the 
opportunity to provide for himself a sani­
tary and healthful environment, such cove­
nants would, in my view, be prejudicial to 
the public health.

Protection of dependent racial minorities.— 
Racial restrictive covenants have become a matter 
o f concern to the Department o f the Interior 
because o f their impact upon the administration 
o f Indian affairs and of the territories and insular 
possessions of the United States. Many types of 
covenants are directed against broad groups which 
include not only American Indians but also the



15

majority of the peoples of the territories. This 
has given rise to problems which are thus de­
scribed by the Under Secretary o f the Interior: 5

INDIAN AFFAIRS

There are now about 400,000 Indians in 
the United States. Of these, a substantial 
number live in urban areas. The implica­
tions of these restrictive covenant cas.es 
affect all of them.

One of the main goals of the Indian 
Service is to aid the Indians to participate 
equally and fully in the life of the Nation. 
This purpose is frustrated when Indians 
attempting to settle in cities are segregated 
by restrictive covenants into undesirable 
slum areas solely because they are Indians. 
During W orld W ar I I  about 75,000 Indians 
left their tribal reservations. Of these, 
some 30,000 served in the armed forces, and 
about 45,000 took jobs in war industry. 
Many of these Indians, particularly war 
veterans, are eager to exchange their reser­
vation life for city life. The present 
critical housing shortage has been an 
important factor inhibiting their ability to 
do so. This housing shortage is greatly 
emphasized for Indians by racial restric­
tive covenants, which are extensively 
imposed in most of the major cities of the 
Nation on many of the newly constructed 
dwellings, almost all new residential sub-

better of the Under Secretary of the Interior, Oscar L. 
Chapman, to the Department of Justice, dated November 
10,1947.



i

d i v i s i o n s  a n d  o n  m a n y  e x i s t i n g  residential 
p r o p e r t i e s .  T h e  c o v e n a n t s ,  b y  d iscrim in at­
i n g  a g a i n s t  t h e m  s o l e l y  b e c a u s e  th e y  are 
I n d i a n s  a n d  b y  p r e v e n t i n g  t h e m  from 
s e c u r i n g  a d e q u a t e  u r b a n  h o u s i n g ,  a re  thus 
a n  i m p o r t a n t  f a c t o r  i n  d e t e r r i n g  Indians 
f r o m  g o i n g  t o  c i t i e s  t o  l o o k  f o r  employ­
m e n t .  T h i s  n o t  o n l y  r e t a r d s  t h e ir  eco­
n o m i c  p r o g r e s s  b u t  a l s o  s u b s t a n t i a l l y  tends 
t o  b u r d e n  t h e  U n i t e d  S t a t e s  w i t h  increased 
e x p e n s e s  i n  t h e  a d m i n i s t r a t i o n  o f  Indian 
a f f a i r s .  S i n c e  r e s o u r c e s  o n  m a n y  o f  the 
r e s e r v a t i o n s  a r e  i n a d e q u a t e ,  r e l i e f  pay­
m e n t s  b y  t h e  G o v e r n m e n t  w o u ld  be 
g r e a t e r ,  a n d  m a y  c o n t i n u e  in d e f i n i t e ly .  

* * * * *
It has long been the declared policy of 

Congress to give Indians preference in Fed­
eral employment. Some of these statutes 
are: Act o f June 30, 1834 (4 Stat. 735,
737) ; act o f March 3, 1875 (18 Stat. 402,
449) • act o f March 1, 1883 (22 Stat. 432,
451) j General Allotment Act of February
8, 1887 (24 Stat. 388, 389-90); act of 
August 15, 1894 (28 Stat. 286, 313); 
Wheeler-Howard Act o f June 18, 1934 (48 
Stat. 984, 986, 25 U. S. C. 472). Many 
other statutes are listed in F. S. Cohen, 
‘ ‘Handbook o f Federal Indian Law,”  159- 
162 (1945). To help the Indians achieve 
self-government is one o f the principal 
aims of the Indian Service. For this rea­
son, as well as because of their natural sym­
pathy and understanding o f Indian prob­
lems and customs, Indians are particularly

16



17

s u i t a b le  f o r  e m p l o y m e n t  i n  t h e  I n d i a n  
S e r v i c e .  O v e r  5 0  p e r c e n t  o f  t h e  e m p l o y e e s  
o f  t h e  I n d i a n  S e r v i c e  a r e  o f  I n d i a n  a n ­
c e s t r y .

T h e r e  h a v e  b e e n  a  n u m b e r  o f  i n s t a n c e s  
i n  w h i c h  s u c h  I n d i a n  e m p l o y e e s  h a v e  b e e n  
i m p e d e d  b y  r e s t r i c t i v e  c o v e n a n t s  i n  s e c u r ­
i n g ,  a d e q u a t e  h o u s i n g  a c c o m m o d a t i o n s .  I n  
a t  le a s t  o n e  i n s t a n c e ,  a n  I n d i a n  e m p l o y e e  
w h o  h a d  p u r c h a s e d  a  h o m e  i n  t h e  W a s h ­
i n g t o n ,  D .  C .  a r e a  s u b j e c t  t o  s u c h  a  c o v e ­
n a n t ,  e x p e r i e n c e d  g r e a t  d i f f i c u l t y  i n  s e c u r ­
i n g  t h e  r e f u n d  o f  h i s  d o w n - p a y m e n t  f o r  
h is  h o m e .  I n a b i l i t y  t o  s e c u r e  a d e q u a t e  
h o u s i n g  b e c a u s e  o f  r e s t r i c t i v e  c o v e n a n t s  
w o u ld  b e  a  s e r i o u s  d e t e r r e n t  t o  t h e  e m p l o y ­
m e n t  o f  I n d i a n s  i n  t h e  I n d i a n  S e r v i c e ,  a n d  
w o u l d  d e f e a t  t h e  c o n g r e s s i o n a l  p o l i c y  o f  
p r e f e r e n t i a l  e m p l o y m e n t  o f  I n d i a n s .

F u r t h e r m o r e ,  t h e  r e s t r i c t i o n s  u p o n  t h e i r  
s e c u r i n g  a d e q u a t e  h o u s i n g ,  b y  d e t e r r i n g  
t h e m  f r o m  r e m a i n i n g  e m p l o y e d  i n  t h e  c i t i e s  
w h e r e  I n d i a n  S e r v i c e  o f f ic e s  a r e  l o c a t e d ,  
m a y  s e r i o u s l y  j e o p a r d i z e  t h e  f u n c t i o n i n g  
o f  t h e  e n t i r e  I n d i a n  S e r v i c e .  T h e  i m p a c t  
o f  r e s t r i c t i v e  c o v e n a n t s  o n  I n d i a n s  h a s  
b e e n  a  f a c t o r  i n  t h e  q u e s t  f o r  h o m e s  i n  t h e  
W a s h i n g t o n ,  D .  C .  a r e a  b y  t h e  l a r g e  n u m ­
b e r  o f  I n d i a n  e m p l o y e e s  w h o  h a v e  r e c e n t l y  
b e e n  t r a n s f e r r e d ,  w i t h  t h e  t r a n s f e r  o f  t h e  
B u r e a u ’ s  h e a d q u a r t e r s ,  f r o m  C h i c a g o  t o  
W a s h i n g t o n .

T h e  e f f e c t  o f  r e s t r i c t i v e  c o v e n a n t s  o n  t h e  
m o r a le  o f  a l l  t h e  I n d i a n s  i s  a l s o  s i g n i f i ­
c a n t .  M u c h  o f  t h e  e f f o r t  t o  e r a d i c a t e  o l d



i n j u r i e s  t o  I n d i a n s  a n d  t o  a i d  in  their 
p a r t i c i p a t i o n  i n  t h e  n a t i o n a l  l i f e  is  stulti­
f i e d  b y  t h e i r  b e i n g  c a t e g o r i z e d  a s  inferior 
b y  t h e  e x c l u s i o n s  ' c a u s e d  b y  restrictive 
c o v e n a n t s .

* * * * *

PEOPLE OF THE TERRITORIES AND ISLAM 
POSSESSIONS

A b o u t  2 5  p e r c e n t  o f  t h e  p e o p l e  o f  Puerto 
R i c o ,  o n e - h a l f  o f  t h e  p e o p l e  o f  A l a s k a ,  most 
o f  t h e  p e o p l e  i n  H a w a i i ,  a n d  a b o u t  95  per­
c e n t  o f  t h e  p e o p l e  i n  t h e  V i r g i n  Islands 
w o u l d  b e  s u b j e c t  t o  c l a s s i f i c a t i o n  a s  “ non- 
C a u c a s i a n s  ’ ’ a n d  t h u s  w o u l d  b e  w it h in  the 
s c o p e  o f  m o s t  r e s t r i c t i v e  c o v e n a n t s .  There 
i s  a p p a r e n t l y  n o  e v i d e n c e  t h a t  restrictive  
c o v e n a n t s  a r e  b e i n g  a p p l i e d  a g a i n s t  them 
i n  t h e  t e r r i t o r i e s  a t  p r e s e n t ; b u t  restrictive  
c o v e n a n t s  a r e  b e i n g  a p p l i e d  a g a i n s t  them 
i n  t h e  U n i t e d  S t a t e s  a n d  m a y  w e l l  spread 
t o  t h e  t e r r i t o r i e s .

M a n y  t h o u s a n d s  o f  P u e r t o  R i c a n s ,  H a- 
w a i i a n s ,  a n d  V i r g i n  I s l a n d e r s  a r e  n o w  in 
t h e  U n i t e d  S t a t e s .  I t  h a s  b e e n  estim ated  
t h a t  o v e r  3 5 0 , 0 0 0  P u e r t o  R i c a n s  a re  in 
N e w  Y o r k  C i t y  a l o n e .  M a n y  o f  t h e m  live 
i n  E a s t  H a r l e m  u n d e r  a p p a l l i n g  co n d itio n s  
u n q u e s t i o n a b l y  r e s u l t i n g  p a r t i a l l y  from  
r e s t r i c t i v e  c o v e n a n t s .

R e s t r i c t i v e  c o v e n a n t s  a g a i n s t  t h e s e  terri­
t o r i a l  p e o p l e s  c o n t r i b u t e  t o  r e s e n t m e n t  and 
b i t t e r n e s s  a g a i n s t  t h e  U n i t e d  S t a t e s  with  
c o n s e q u e n t  i m p a i r m e n t  o f  t h e  F e d e r a l  G ov­
e r n m e n t ’ s  p r e s t i g e  a n d  p r o g r a m s  in  the

18



19

t e r r i t o r i e s .  L o y a l t i e s  a r e  i m p a i r e d  i n  s t r a ­
t e g ic  p o s s e s s i o n s  w h e n  t h e  i n h a b i t a n t s  o f  
th e s e  a r e a s  f i n d  t h e m s e l v e s  c a t e g o r i z e d  a s  
s e c o n d -c la s s  c i t i z e n s .  T o  t h e  I s l a n d e r s ,  r a ­
c ia l  d i s c r i m i n a t i o n  i s  a  n e w  e x p e r i e n c e .  
Y i c e n z o  P e t r u l l o ,  “ P u e r t o  R i c a n  P a r a d o x ” , 
p p .  2 0 - 2 4  ( 1 9 4 7 ) .  E v e n  t h e  G o v e r n o r  o f  
th e  V i r g i n  I s l a n d s  i s  s u b j e c t e d  t o  r e s t r i c t e d  
h o u s i n g  w h e n  h e  c o m e s  t o  t h e  U n i t e d  S t a t e s  
o n  o f f ic ia l  b u s i n e s s .

T h e  b r o a d  i m p l i c a t i o n s  o f  r e s t r i c t i v e  
c o v e n a n t s  a r e  e n t i r e l y  i n c o n s i s t e n t  w i t h  t h e  
f u t u r e  n a t i o n a l  a n d  i n t e r n a t i o n a l  w e l f a r e  o f  
th e  U n i t e d  S t a t e s  i n  i t s  r e l a t i o n s  w i t h  t h e  
“ n o n - w h i t e ”  p e o p l e s .  T h i s  D e p a r t m e n t  
f i r m l y  b e l i e v e s  t h a t  t h e  c a n c e r  o f  r e s t r i c t i v e  
c o v e n a n t s  s h o u l d  b e  e x c i s e d  f r o m  t h i s  
R a t i o n .

Conduct o f  F oreig n  A ffa irs .— T h e  L e g a l  A d ­
v ise r  to  t h e  S e c r e t a r y  o f  S t a t e  h a s  a d v i s e d  t h a t  
“ th e U n i t e d  S t a t e s  h a s  b e e n  e m b a r r a s s e d  i n  t h e  
co n d u ct o f  f o r e i g n  r e l a t i o n s  b y  a c t s  o f  d i s c r i m i n a ­
tio n  t a k i n g  p l a c e  i n  t h i s  c o u n t r y .  ’ ’ 6 T h e  p o s i t i o n  
o f  th e  D e p a r t m e n t  o f  S t a t e  o n  s u c h  m a t t e r s  w a s  
set f o r t h  i n  a  l e t t e r  o f  M a y  8 ,  1 9 4 6 ,  f r o m  t h e  t h e n  
A c t in g  S e c r e t a r y  o f  S t a t e  t o  t h e  P a i r  E m p l o y ­
m e n t P r a c t i c e s  C o m m i t t e e :

The existence o f discrimination against 
minority groups in this country has an ad­
verse effect upon our relations with other

6 Letter of Ernest A . Gross, Legal Adviser to the Secretary 
of State, to the Attorney General, dated November 4, 1947.



c o u n t r i e s .  W e  a r e  r e m i n d e d  o v e r  a n d  over 
b y  s o m e  f o r e i g n  n e w s p a p e r s  a n d  spokes­
m e n ,  t h a t  o u r  t r e a t m e n t  o f  v a r i o u s  minor­
i t i e s  l e a v e s  m u c h  t o  b e  d e s i r e d .  While 
s o m e t i m e s  t h e s e  p r o n o u n c e m e n t s  a r e  exag­
g e r a t e d  a n d  u n j u s t i f i e d ,  t h e y  a l l  to o  fre­
q u e n t l y  p o i n t  w i t h  a c c u r a c y  t o  s o m e  form 
o f  d i s c r i m i n a t i o n  b e c a u s e  o f  r a c e ,  creed, 
c o l o r ,  o r  n a t i o n a l  o r i g i n .  F r e q u e n t l y  we 
f i n d  i t  n e x t  t o  i m p o s s i b l e  t o  fo r m u la te  a 
s a t i s f a c t o r y  a n s w e r  t o  o u r  c r i t i c s  i n  other 
c o u n t r i e s ;  t h e  g a p  b e t w e e n  t h e  th in g s  we 
s t a n d  f o r  i n  p r i n c i p l e  a n d  t h e  f a c t s  of a 
p a r t i c u l a r  s i t u a t i o n  m a y  b e  t o o  w i d e  to be 
b r i d g e d .  A n  a t m o s p h e r e  o f  s u s p i c i o n  and 
r e s e n t m e n t  i n  a  c o u n t r y  o v e r  t h e  w a y  a 
m i n o r i t y  i s  b e i n g  t r e a t e d  i n  t h e  U nited  
S t a t e s  i s  a  f o r m i d a b l e  o b s t a c l e  t o  th e  de­
v e l o p m e n t  o f  m u t u a l  u n d e r s t a n d i n g  and 
t r u s t  b e t w e e n  t h e  t w o  c o u n t r i e s .  W e  will 
h a v e  b e t t e r  i n t e r n a t i o n a l  r e l a t i o n s  when 
t h e s e  r e a s o n s  f o r  s u s p i c i o n  a n d  rese n tm e n t  
h a v e  b e e n  r e m o v e d .

I  t h i n k  t h a t  i t  i s  q u i t e  o b v i o u s  *  * * 
t h a t  t h e  e x i s t e n c e  o f  d i s c r i m i n a t i o n  against 
m i n o r i t y  g r o u p s  i n  t h e  U n i t e d  S t a t e s  is 
a  h a n d i c a p  i n  o u r  r e l a t i o n s  w i t h  o t h e r  coun­
t r i e s .  T h e  D e p a r t m e n t  o f  S t a t e ,  th e r e fo re , 
h a s  g o o d  r e a s o n  t o  h o p e  f o r  t h e  co n tin u ed  
a n d  i n c r e a s e d  e f f e c t i v e n e s s  o f  p u b l i c  and 
p r i v a t e  e f f o r t s  t o  d o  a w a y  w i t h  th e s e  dis­
c r i m i n a t i o n s .

P ro tec tion  o f  C ivil R igh ts .— T h e  f i n a l  a n d  m ost 
i m p o r t a n t  c o n c e r n  o f  t h e  G o v e r n m e n t  r e la t e s  to



21

its r e s p o n s i b i l i t y  f o r  t h e  p r o t e c t i o n  o f  f u n d a m e n ­
tal c iv il  r i g h t s .  W i t h o u t  a n  a t m o s p h e r e  o f  m u t u a l  
to leran ce , c i v i l  r i g h t s  c a n n o t  s u r v i v e .  T h a t  t h e y  
shall s u r v iv e  i s  a  p r i m e  o b j e c t i v e  o f  o u r  s y s t e m  
o f g o v e r n m e n t .

T h e  e x p e r i e n c e  o f  t h e  D e p a r t m e n t  o f  J u s t i c e  
in th is  f ie ld  i s ,  w e  b e l i e v e ,  o f  s o m e  s i g n i f i c a n c e .  
I n  th e e n f o r c e m e n t  o f  f e d e r a l  l a w s  d e a l i n g  w i t h  
in v a sio n s  o f  r i g h t s  s e c u r e d  b y  t h e  C o n s t i t u t i o n  
and la w s  o f  t h e  U n i t e d  S t a t e s ,  t h e  D e p a r t m e n t  
has f o u n d  i n  e i g h t  y e a r s  o f  s p e c i a l  e f f o r t  t h a t  i t  
is e x c e e d in g ly  d i f f i c u l t  t o  r e d r e s s  i n v a s i o n s  o f  
civ il r ig h t s  i n  t h e  f a c e  o f  h o s t i l e  c o m m u n i t y  
p r o ju d ie e . W e  h a v e  f o u n d  t h a t  t h e  m o s t  s e r i o u s  
in v a sio n s  o f  h u m a n  l i b e r t i e s  g o  h a n d  i n  h a n d  w i t h  
rac ia l i n t o l e r a n c e .

T h e  d i f f ic u lt ie s  e n c o u n t e r e d  i n  t h e  e n f o r c e m e n t  
o f e x is t in g  c i v i l  r i g h t s  l a w s  p r o v i d e d  t h e  i m p e t u s  
fo r  th e  e s t a b l i s h m e n t  o n  D e c e m b e r  5 ,  1 9 4 6 ,  o f  
the P r e s i d e n t ’ s  C o m m i t t e e  o n  C i v i l  R i g h t s .  
(E x e c u t iv e  O r d e r  9 8 0 8 . )  R o  m o r e  c o g e n t  o r  
tim e ly  s t a t e m e n t  o f  A m e r i c a n  i d e a l s ,  a n d  t h e  
th re a t to  t h o s e  i d e a l s  i m p l i e d  b y  t h e  e n f o r c e m e n t  
o f  r a c ia l  r e s t r i c t i v e  c o v e n a n t s ,  c o u l d  b e  m a d e  
th an  t h a t  c o n t a i n e d  i n  t h e  R e p o r t  o f  t h i s  C o m ­
m itte e , e n t i t l e d  “ T o  S e c u r e  T h e s e  R i g h t s , ”  i s s u e d  
on O c t o b e r  2 9 ,  1 9 4 7 ,  p p .  4 ,  6 7 - 6 8 :

T h e  c e n t r a l  t h e m e  i n  o u r  A m e r i c a n  h e r ­
i t a g e  i s  t h e  i m p o r t a n c e  o f  t h e  i n d i v i d u a l  
p e r s o n .  P r o m  t h e  e a r l i e s t  m o m e n t  o f  o u r  
h i s t o r y  w e  h a v e  b e l i e v e d  t h a t  e v e r y  h u m a n  
b e i n g  h a s  a n  e s s e n t i a l  d i g n i t y  a n d  i n t e g r i t y



22

w h i c h  m u s t  b e  r e s p e c t e d  a n d  safeguarded, 
M o r e o v e r ,  w e  b e l i e v e  t h a t  t h e  w e lfa r e  of 
t h e  i n d i v i d u a l  i s  t h e  f i n a l  g o a l  o f  group 
l i f e .  O u r  A m e r i c a n  h e r i t a g e  further 
t e a c h e s  t h a t  t o  b e  s e c u r e  i n  t h e  r ig h ts  he 
w i s h e s  f o r  h i m s e l f ,  e a c h  m a n  m u s t  be will­
i n g  t o  r e s p e c t  t h e  r i g h t s  o f  o t h e r  men. 
T h i s  i s  t h e  c o n s c i o u s  r e c o g n i t i o n  o f  a basic 
m o r a l  p r i n c i p l e : a l l  m e n  a r e  c r e a t e d  equal 
a s  w e l l  a s  f r e e .  S t e m m i n g  f r o m  th is  prin­
c i p l e  i s  t h e  o b l i g a t i o n  t o  b u i l d  s o c ia l  insti­
t u t i o n s  t h a t  w i l l  g u a r a n t e e  e q u a l i t y  o f  op­
p o r t u n i t y  t o  a l l  m e n .  W i t h o u t  this 
e q u a l i t y  f r e e d o m  b e c o m e s  a n  illusion. 
T h u s  t h e  o n l y  a r i s t o c r a c y  t h a t  i s  consistent 
w i t h  t h e  f r e e  w a y  o f  l i f e  i s  a n  aristocracy  
o f  t a l e n t  a n d  a c h i e v e m e n t .  T h e  grounds 
o n  w h i c h  o u r  s o c i e t y  a c c o r d s  r e s p e c t ,  in­
f l u e n c e  o r  r e w a r d  t o  e a c h  o f  i t s  c i t i z e n s  must 
b e  l i m i t e d  t o  t h e  q u a l i t y  o f  h i s  personal 
c h a r a c t e r  a n d  o f  h i s  s o c i a l  co n trib u tio n .

T h i s  c o n c e p t  o f  e q u a l i t y  w h i c h  i s  so  vital 
a  p a r t  o f  t h e  A m e r i c a n  h e r i t a g e  k n o w s  no 
k i n s h i p  w i t h  n o t i o n s  o f  h u m a n  u n ifo r m ity  
o r  r e g i m e n t a t i o n .  W e  a b h o r  t h e  totali­
t a r i a n  a r r o g a n c e  w h i c h  m a k e s  o n e  m a n  say 
t h a t  h e  w i l l  r e s p e c t  a n o t h e r  m a n  a s  his 
e q u a l  o n l y  i f  h e  h a s  “ m y  r a c e ,  m y  religion , 
m y  p o l i t i c a l  v i e w s ,  m y  s o c i a l  p o s i t i o n . ”  In 
o u r  l a n d  m e n  a r e  e q u a l ,  b u t  t h e y  a r e  free 
t o  b e  d i f f e r e n t .  P r o m  t h e s e  v e r y  differ­
e n c e s  a m o n g  o u r  p e o p l e  h a s  c o m e  t h e  great 
h u m a n  a n d  n a t i o n a l  s t r e n g t h  o f  A m e r ic a .

T h u s ,  t h e  a s p i r a t i o n s  a n d  a c h ie v e m e n ts  
o f  e a c h  m e m b e r  o f  o u r  s o c i e t y  a r e  to  be



23

l i m i t e d  o n l y  b y  t h e  s k i l l s  a n d  e n e r g i e s  h e  
b r in g s  t o  t h e  o p p o r t u n i t i e s  e q u a l l y  o f f e r e d  
to  a l l  A m e r i c a n s .  W e  c a n  t o l e r a t e  n o  r e ­
s t r i c t i o n s  u p o n  t h e  i n d i v i d u a l  w h i c h  d e ­
p e n d  u p o n  i r r e l e v a n t  f a c t o r s  s u c h  a s  h i s  
r a c e , h i s  c o l o r ,  h i s  r e l i g i o n  o r  t h e  s o c i a l  
p o s i t i o n  t o  w h i c h  h e  i s  b o r n .

*  *  *  *  *

THE RIGHT TO HOUSING

E q u a l i t y  o f  o p p o r t u n i t y  t o  r e n t  o r  b u y  
a  h o m e  s h o u l d  e x i s t  f o r  e v e r y  A m e r i c a n .  
T o d a y ,  m a n y  o f  o u r  c i t i z e n s  f a c e  a  d o u b l e  
b a r r i e r  w h e n  t h e y  t r y  t o  s a t i s f y  t h e i r  h o u s ­
i n g  n e e d s .  T h e y  f i r s t  e n c o u n t e r  a  g e n e r a l  
h o u s i n g  s h o r t a g e  w h i c h  m a k e s  i t  d i f f ic u l t  
f o r  a n y  f a m i l y  w i t h o u t  a  h o m e  t o  f i n d  o n e .  
T h e y  t h e n  e n c o u n t e r  p r e j u d i c e  a n d  d i s ­
c r i m i n a t i o n  b a s e d  u p o n  r a c e ,  c o l o r ,  r e l i g i o n  
o r  n a t i o n a l  o r i g i n ,  w h i c h  p l a c e s  t h e m  a t  a  
d i s a d v a n t a g e  i n  c o m p e t i n g  f o r  t h e  l i m i t e d  
h o u s i n g  t h a t  i s  a v a i l a b l e .  T h e  f a c t  t h a t  
m a n y  o f  t h o s e  w h o  f a c e  t h i s  d o u b l e  b a r r i e r  
a r e  w a r  v e t e r a n s  o n l y  u n d e r l i n e s  t h e  i n ­
a d e q u a c y  o f  o u r  h o u s i n g  r e c o r d .

D i s c r i m i n a t i o n  i n  h o u s i n g  r e s u l t s  p r i ­
m a r i l y  f r o m  b u s i n e s s  p r a c t i c e s .  T h e s e  
p r a c t i c e s  m a y  a r i s e  f r o m  s p e c i a l  i n t e r e s t s  
o f  b u s i n e s s  g r o u p s ,  s u c h  a s  t h e  p r o f i t s  t o  b e  
d e r i v e d  f r o m  c o n f i n i n g  m i n o r i t i e s  t o  s l u m  
a r e a s ,  o r  t h e y  m a y  r e f l e c t  c o m m u n i t y  p r e j u ­
d ic e . O n e  o f  t h e  m o s t  c o m m o n  p r a c t i c e s  i s  
th e  p o l i c y  o f  l a n d l o r d s  a n d  r e a l  e s t a t e  a g e n t s  
to  p r e v e n t  N e g r o e s  f r o m  r e n t i n g  o u t s i d e  o f  
d e s i g n a t e d  a r e a s .  A g a i n ,  i t  i s  “ g o o d  b u s i ­
n e s s ”  t o  d e v e l o p  e x c l u s i v e  “ r e s t r i c t e d ”

775894— 48------- 3



s u b u r b a n  d e v e l o p m e n t s  w h i c h  a r e  barred to 
a l l  b u t  w h i t e  g e n t i l e s .  W h e n  N e g r o  vet­
e r a n s  s e e k  “ G T ”  l o a n s  i n  o r d e r  to build 
h o m e s ,  t h e y  a r e  l i k e l y  t o  f i n d  th a t  credit 
f r o m  p r i v a t e  b a n k s ,  w i t h o u t  w h o s e  serv­
i c e s  t h e r e  i s  n o  p o s s i b i l i t y  o f  t a k i n g  advan­
t a g e  o f  t h e  ( i  t  B i l l  o f  B i g h t s ,  is  le s s  freely 
a v a i l a b l e  t o  m e m b e r s  o f  t h e i r  r a c e . Pri­
v a t e  b u i l d e r s  s h o w  a  t e n d e n c y  n o t  to con­
s t r u c t  n e w  h o m e s  e x c e p t  f o r  w h ite  occu­
p a n c y .  T h e s e  i n t e r l o c k i n g  b u s in e s s  cus­
t o m s  a n d  d e v i c e s  f o r m  t h e  c o r e  o f  ou r dis­
c r i m i n a t o r y  p o l i c y .  B u t  c o m m u n i t y  preju­
d i c e  a l s o  f i n d s  e x p r e s s i o n  i n  o p e n  public 
a g i t a t i o n  a g a i n s t  c o n s t r u c t i o n  o f  public 
h o u s i n g  p r o j e c t s  f o r  N e g r o e s ,  a n d  b y  vio­
l e n c e  a g a i n s t  N e g r o e s  w h o  s e e k  to  occupy 
p u b l i c  h o u s i n g  p r o j e c t s  o r  t o  b u ild  in 
“ w h i t e ”  s e c t i o n s .

The Report also stated (p. 141) :
I t  i s  i m p o s s i b l e  t o  d e c i d e  w h o  s u ffe r s  the 

g r e a t e s t  m o r a l  d a m a g e  f r o m  o u r  c iv i l  rights 
t r a n s g r e s s i o n s ,  b e c a u s e  a l l  o f  u s  a r e  hurt. 
T h a t  i s  c e r t a i n l y  t r u e  o f  t h o s e  w h o  are 
v i c t i m i z e d .  T h e i r  b e l i e f  i n  t h e  b a s ic  truth 
o f  t h e  A m e r i c a n  p r o m i s e  i s  u n d e rm in ed . 
B u t  t h e y  d o  h a v e  t h e  r e a l i z a t i o n ,  g a l lin g  as 
i t  s o m e t i m e s  i s ,  o f  b e i n g  m o r a l l y  in  the 
r i g h t .  T h e  d a m a g e  t o  t h o s e  w h o  a re  re­
s p o n s i b l e  for t h e s e  violations of our m oral 
standards may w e l l  be greater. They, too, 
h a v e  b e e n  r e a r e d  t o  h o n o r  t h e  co m m a n d  
o f  “ f r e e  a n d  e q u a l . ”  *  *  *  A l l  o f  us
m u s t  e n d u r e  t h e  c y n i c i s m  about d e m o cra tic  
values which our failures breed.



25

The U nited States can no longer coun­
tenance these bur dens on its com m on con­
science, these inroads on its m oral fiber.

I t  is  f o r  t h e s e  c o m p e l l i n g  r e a s o n s  t h a t  t h e  
G o v e r n m e n t o f  t h e  U n i t e d  S t a t e s  a p p e a r s  i n  t h e s e  
cases a s  amicus curiae.

RACIAL RESTRICTIVE COVENANTS IN  THE UNITED 
STATES

A .  Nature and fo rm .— R a c i a l  c o v e n a n t s ,  p r o ­
h ib itin g  s a le  t o  o r  o c c u p a n c y  o f  d e s i g n a t e d  r e a l  
p r o p e r ty  b y  c e r t a i n  m i n o r i t y  g r o u p s ,  h a d  o n l y  
sp o ra d ic  e x i s t e n c e  b e f o r e  t h e  g r e a t  t w i n  m i g r a t i o n  
o f N e g r o e s , i n  t h e  s e c o n d  d e c a d e  o f  t h i s  c e n t u r y ,  
fr o m  th e  c o u n t r y  t o  t h e  c i t i e s  i n  b o t h  N o r t h  a n d  
S o u th , a n d  f r o m  t h e  S o u t h  t o  t h e  N o r t h e r n  a n d  
M id d le  W e s t e r n  S t a t e s . 7 T h i s  e x t e n s i v e  m i g r a t i o n  
first le d  t o  e f f o r t s  t o  i n s u r e  u r b a n  r e s i d e n t i a l  
s e g r e g a tio n  b y  m e a n s  o f  s t a t e  o r  m u n i c i p a l  l e g i s ­
la tio n — b e g i n n i n g  w i t h  a  B a l t i m o r e  o r d i n a n c e  o f  
1910 , w h ic h  w a s  q u i c k l y  f o l l o w e d  b y  A t l a n t a ,  
R ic h m o n d , L o u i s v i l l e ,  a n d  o t h e r  c i t i e s — u n t i l  t h i s  
m e th o d  w a s  c o m p l e t e l y  i n v a l i d a t e d ,  i n  1 9 1 7 ,  i n  
Buchanan v .  W o rley ,  2 4 5  U .  S .  6 0 .  I t  w a s  t h e n  
th at th e  r a c i a l  c o v e n a n t ,  w h i c h  h a d  b e e n  d e v e l o p ­
in g  a s  a  s u b s i d i a r y  w e a p o n ,  b e c a m e  t h e  p r i m a r y  
leg a l m e a n s  o f  e n f o r c i n g  s e g r e g a t i o n .  S e e  in fra , 
p p . 4 0 - 4 2 ;  M y r d a l ,  A n  A m erican  Dilem m a  
(1 9 4 4 )  6 2 2 - 6 2 7 ;  J o h n s o n ,  P a ttern s o f N egro S eg­
regation ( 1 9 4 3 )  1 7 2 - 1 7 6 ;  S t e r n e r ,  The N eg ro ’ s

' Ihe only case decided prior to 1915 was Gandolfo v. 
Hartman, 49 Fed. 181 (C. C, S. D. Cal.), decided in 1892, 
involving a restriction against Chinese.



26

Share  ( 1 9 4 3 )  2 0 5 - 2 0 9 ;  M a n g u m ,  The Legal Sta­
tus o f  the N egro  ( 1 9 4 0 ) ,  1 4 0 - 1 5 2 .  T h e  course of 
c o v e n a n t  l i t i g a t i o n  s i n c e  1 9 1 7  s u f f i c e s  b y  itse lf to 
s h o w  t h a t  r a c i a l  r e s t r i c t i v e  a g r e e m e n t s  h a v e  come 
i n t o  c o m m o n  a n d  i n c r e a s i n g  u s e  s i n c e  t h a t  time. 
S e e  in fra , p p .  4 0 - 4 2 .

I n  f o r m ,  t h e s e  c o v e n a n t s  r e s t r i c t  e ith e r  (a) 
s a l e ,  l e a s e ,  c o n v e y a n c e  t o ,  o r  o w n e r s h i p  b y , any 
m e m b e r  o f  a n  e x c l u d e d  g r o u p  o r  ( b )  use or 
o c c u p a n c y  b y  a n y  m e m b e r  o f  t h a t  g r o u p ,  or (c) 
b o t h  o w n e r s h i p  a n d  u s e  o r  o c c u p a n c y .  I n  those 
s t a t e s  i n v a l i d a t i n g  g r o u p  r e s t r i c t i o n s  o n  sale or 
o w n e r s h i p  u n d e r  t h e  c o m m o n - l a w  r u le  o n  re­
s t r a i n t s  a g a i n s t  a l i e n a t i o n ,  t h e  a g r e e m e n t  usually  
r e f e r s  o n l y  t o  “ u s e ”  o r  “ o c c u p a n c y ”  ( s e e  infra, 
p .  4 2  a n d  p p .  1 1 2 - 1 1 4 )  ; i n  t h e  o t h e r  ju r is d ic t io n s ,  
o u t r i g h t  r e s t r a i n t s  o n  s a l e  o r  c o n v e y a n c e  appear  
t o  b e  m o r e  c o m m o n .  S o m e  o f  t h e  c o v e n a n t s  are 
l i m i t e d  i n  d u r a t i o n ,  w h i l e  o t h e r s  a r e  p e rp e tu a l.

T h e s e  v a r i a t i o n s  a r e  w e l l  i l l u s t r a t e d  b y  the 
r e s t r i c t i o n s  i n  t h e  f o u r  c a s e s  a t  b a r .  I n  the 
D i s t r i c t  o f  C o l u m b i a  c a s e s ,  t h e  c o v e n a n t  is  not 
l i m i t e d  i n  t i m e  a n d  r u n s  a g a i n s t  s a l e  o r  ow ner­
s h i p ;  i t  p r o v i d e s  “ t h a t  s a i d  l o t  s h a l l  n e v e r  he 
r e n t e d ,  l e a s e d ,  s o l d ,  t r a n s f e r r e d  o r  c o n v e y e d  unto 
a n y  N e g r o  o r  c o l o r e d  p e r s o n ”  ( N o s .  2 9 0 -2 9 1 ,  
R- 3 8 0 ) .  I n  t h e  M i c h i g a n  c a s e ,  t h e  c o v e n a n t  runs 
u n t i l  J a n u a r y  1 ,  1 9 6 0 ,  a n d  r e l a t e s  o n l y  t o  u s e  or 
o c c u p a n c y :  “ T h i s  p r o p e r t y  s h a l l  n o t  b e  u s e d  or 
o c c u p i e d  b y  a n y  p e r s o n  o r  p e r s o n s  e x c e p t  those  
o f  t h e  C a u c a s i a n  r a c e ”  ( N o .  8 7 ,  R .  1 3 ,  1 6 ,  3 7 , 39,



27

42, 6 0 ) .  T h e  r e s t r i c t i o n  i n  t h e  M i s s o u r i  c a s e  r u n s  
fo r  f i f t y  y e a r s  f r o m  F e b r u a r y  1 9 1 1 ,  a n d  i s  l i k e ­
wise p h r a s e d  t o  e x c l u d e  “ u s e ”  a n d  “ o c c u p a n c y ”  
by p e r s o n s  “ n o t  o f  t h e  C a u c a s i a n  r a c e ”  ( N o .  
72, R . 1 5 4 - 1 5 5 ) .  R a c i a l  r e s t r i c t i o n s  a r e  s o m e ­
tim es in s e r t e d  i n  d e e d s ,  a s  i n  N o s .  2 9 0 - 2 9 1  ( R .  
3 8 0 - 3 8 2 ) ,  b u t  o f t e n ,  a s  i n  N o s .  7 2  a n d  8 7 ,  a r e  
e m b o d ied  i n  w r i t t e n  a g r e e m e n t s  b e t w e e n  a  g r o u p  
o f n e ig h b o r h o o d  l a n d - o w n e r s ,  w h i c h  a r e  t h e n  
officia lly  r e c o r d e d  s o  a s  t o  g i v e  d u e  n o t i c e  t o  a l l  
su b se q u e n t p u r c h a s e r s  o r  o c c u p a n t s .  E n f o r c e ­
m ent o f  th e  r e s t r i c t i o n  i s  u s u a l l y  b y  a  n e i g h b o r i n g  
ow ner w h o  i s  a  p a r t y  t o  s u c h  a  r e c o r d e d  a g r e e ­
m ent, o r  w h o  m a y  a s s e r t  a n  i n t e r e s t  i n  t h e  r e ­
str ictio n  u n d e r  t h e  r u l e s  n o r m a l l y  g o v e r n i n g  c o v ­
enants r u n n i n g  w i t h  t h e  l a n d .  A l m o s t  i n v a r i a b l y  
the r e l ie f  r e q u e s t e d  i s  t h e  r e m o v a l  o f  t h e  e x c l u d e d  
occu p a n t, o r  i n j u n c t i o n  a g a i n s t  h i s  e n t r y ,  a n d ,  
w here s a le  r e s t r i c t i o n s  h a v e  b e e n  v i o l a t e d ,  c a n ­
ce lla tion  o f  t h e  o f f e n d i n g  d e e d s .

B . Racial covenants and N egro  housing: 1 .  
Segregation and inadequacy o f  N egro  housing .—  
T w o o f  th e  n o t o r i o u s  s o c i a l  f a c t s  o f  A m e r i c a n  
life  a r e  t h a t  N e g r o e s  s u f f e r  f r o m  d e p l o r a b l y  i n ­
ad eq u ate  h o u s i n g ,  a n d  t h a t  i n  u r b a n  a r e a s  t h e y  
live, in  g e n e r a l ,  i n  s e g r e g a t e d  z o n e s .  “ N o t h i n g  
is so o b v io u s  a b o u t  t h e  N e g r o e s ’ l e v e l  o f  l i v i n g  
as th e  f a c t  th a t- m o s t  o f  t h e m  s u f f e r  f r o m  p o o r  
h o u sin g  c o n d i t i o n s .  I t  i s  a  m a t t e r  o f  s u c h  c o m ­
m on k n o w l e d g e  t h a t  i t  d o e s  n o t  n e e d  m u c h  e m ­
p h asis. M y r d a l ,  The A m erican  Dilem m a, p .  3 7 6 ;



28

e f .  p p .  1 2 9 0 - 1 2 9 2 ;  c f .  S t e r n e r ,  The Negro’s Share, 
p .  1 9 0 .  P o v e r t y  i s ,  o f  c o u r s e ,  a  m a j o r  cause for 
t h e  d i l a p i d a t e d ,  o v e r c r o w d e d ,  u n s a n i t a r y ,  and in­
a d e q u a t e  h o m e s  i n  w h i c h  t h e  m a s s  o f  colored 
p e o p l e  n o w  l i v e ,  b u t  i t  i s  r e s i d e n t i a l  segregation  
i n  s e v e r e l y  l i m i t e d  a r e a s  w h i c h  a c c e n t u a t e s  these 
c o n d i t i o n s  a n d  b a r s  t h e i r  a l l e v i a t i o n .  S in c e  the 
t u r n  o f  t h e  c e n t u r y ,  N e g r o e s  h a v e  b e e n  stream ­
i n g  t o  t h e  c i t i e s  ( e s p e c i a l l y  i n  t h e  N o r t h  and 
M i d d l e  W e s t 8— a n d ,  s i n c e  W o r l d  W a r  I I ,  to the

8 The follow ing tables (taken from  Kahen, Validity of 
Anti-Negro Restrictive Covenants: A  Reconsideration of the 
Problem , 12 Univ. o f  Chicago L. Kev. 198, 202), based upon 
U. S. Census data for  1910, 1920, 1930, and 1940, illustrate 
the extent to which Negroes have flocked to the cities in the 
last three decades:

Increase in Negro urban population in the United States

1910 1920 1930 1940

N u m b e r  o f  N egroes u rb a n ized____ 2, 684, 797 
27.3

3, 559,473 
34.0

5,193,913 
43.7

6,253,588
48.6P ercen tage  o t  N egroes u rb a n ize d . .  . .

P ercen tage  ot tota l U n ite d  States p op u la tion
u rb a n ized___ 45.8 56.5

Increase in Negrp population in ten leading industrial cities

C ity

1910 1920 1930 1940

N u m ­
b er o f 

N egroes

% o f
total
pop .

N u m ­
b er of 

N egroes

% o f
tota l
p o p .

N u m ­
ber of 

N egroes

% o f
total
pop .

Num ­
ber of 

Negroes

%0f
total
pop.

N e w  Y o r k _____ 91,709 1.9 152,467 2.7 327,706 4.7 458,444 6.1
C h ica g o______ 44,103 2.0 109,458 4.1 233,903 6.9 277,731 8.2
P h ila d e lp h ia ______ 84,459 5.5 134,229 7.4 219, 599 11.3 250,880 13.0
D e tro it__________ 5,741 1.2 40,838 4.1 120,066 7.7 149,119 9.2
C le v e la n d ............. 8,448 1.5 34,451 4.3 71,899 8.0 84,504 9.6
St. L o u is____________ 43, 960 6.4 69,854 9.0 93.580 11.4 108,765 13.3
P it tsb u rg h ______ 25,623 4.7 37, 725 6.4 54,983 8.2 62,216 9.3
C in c in n a t i____ 19,639 5.1 30,079 7.5 47,818 10.6 55,593 12.2
I n d ia n a p o lis .. . 21,816 9.3 34,678 11.0 43, 967 12.1 51,142 13.2
K ansas C ity , M o ___ 23,556 9.5 30, 719 9.5 38, 574 9.8 41,574 10.4



29

P a r  W e s t ) , t o  b e  f a c e d  b y  r e s i d e n t i a l  s e g r e g a t i o n ,  
en forced  b y  i n f o r m a l  a n d  f o r m a l  p r e s s u r e s  a n d  b y  
legal a n d  i l l e g a l  m e t h o d s ,  w h i c h  k e e p s  t h e m  f r o m  
n o rm a l e x p a n s i o n  i n t o  “ n o n - c o l o r e d ”  u r b a n  a r e a s  
to s a t i s fy  t h e i r  h o u s i n g  n e e d s .9 T h e  r e s u l t  o f  
this b o t t l i n g -u p  o f  a n  e v e r - i n c r e a s i n g  N e g r o  p o p u ­
lation  w i t h i n  n a r r o w  c o n f i n e s  o f  c o l o r e d  z o n e s  o r  
ghettos h a s  b e e n  t h e  a b n o r m a l  o v e r - c r o w d i n g ,  
co n g e stio n , a n d  s u b s t a n d a r d  f a c i l i t i e s  s t i g m a t i z e d  
by th e  P r e s i d e n t ’s  C o m m i t t e e  o n  C i v i l  R i g h t s  
and b y  a l l  s t u d e n t s  o f  N e g r o  h o u s i n g ,  a n d  s o  
g r a p h ic a lly  p o r t r a y e d  i n  t h e  m a t e r i a l s  p r e s e n t e d  
by p e t i t io n e r s , a s  w e l l  a s  b y  J u s t i c e  E d g e r t o n ,  
d isse n tin g  b e l o w  i n  N o s .  2 9 0 - 2 9 1 ,  1 6 2  E .  2 d ,  a t  
2 4 3 -2 4 5 , a n d  i n  M ays  v .  B urgess, 1 4 7  E .  2 d  8 6 9 ,  
at 8 7 6 - 8 7 8 .  A s  f a r  b a c k  a s  1 9 3 2 ,  t h e  R e p o r t  o n  
N egro  H o u s i n g  o f  t h e  P r e s i d e n t ’ s  C o n f e r e n c e  o n  
H o m e  B u i l d i n g  a n d  H o m e  O w n e r s h i p  f o u n d  t h a t  
s e g r e g a tio n  “ h a s  k e p t  t h e  N e g r o - o c c u p i e d  s e c ­
tions o f  c i t i e s  t h r o u g h o u t  t h e  c o u n t r y  f a t a l l y  u n ­
w h o le so m e  p l a c e s ,  a  m e n a c e  t o  t h e  h e a l t h ,  m o r a l s ,  
and g e n e r a l  d e c e n c y  o f  c i t i e s  a n d  ‘ p l a g u e  s p o t s  
fo r  r a c e  e x p l o i t a t i o n s ,  f r i c t i o n  a n d  r i o t s . ’ ” 10 
T h e p a s s i n g  o f  f i f t e e n  y e a r s — w h i c h  h a v e  i n c l u d e d  
the d e p r e s s io n  p e r i o d ,  t h e  w a r  y e a r s ,  a n d  t h e  c u r -

9 See Myrdal, A n American Dilemma, pp. 618-627, and 
pp. 1125-1128 (Appendix 7: “ Distribution o f  Negro Resi­
dences in Selected Cities” ) ; Drake and Cayton, Black M etrop­
olis, ch. 8 (“ The Black Ghetto” ) , esp. pp. 175-178.

10 Report on Negro Housing (1932), pp. 45, 46.



30

r e n t  a c u t e  h o u s i n g  s h o r t a g e — h a s  n o t  served to 
w e a k e n  t h e  s o u n d n e s s  o f  t h i s  j u d g m e n t .11

I t  i s  p e r h a p s  a l m o s t  s u p e r f l u o u s  t o  a d d  that, as 
t h e  1 9 3 2  R e p o r t  i n d i c a t e s ,  t h e  c o m b in a tio n  of 
i n a d e q u a t e  h o u s i n g  w i t h  r a c i a l  s e g r e g a t io n  has 
m o s t  u n f o r t u n a t e  e c o n o m i c ,  s o c i a l ,  a n d  psycho­
l o g i c a l  e f f e c t s .  C o l o r e d  p e o p l e  a r e  fo r c e d  to pay 
h i g h e r  r e n t s  a n d  h o u s i n g  c o s t s  b y  th e  semi­
m o n o p o l y  w h i c h  s e g r e g a t i o n  f o s t e r s . 12 T h e  inci­
d e n c e  o f  c r i m e  a n d  j u v e n i l e  d e l i n q u e n c y  is  much 
g r e a t e r 13 a n d  t h e  o c c u r r e n c e  o f  d e a t h  a n d  disease

11 Negro housing conditions and segregation in the District 
o f  Columbia are described in Justice Edgerton’s opinion 
below in Nos. 290 and 291, and in Mays v. Burgess, I f f  F. 2d 
869, 152 F. 2d 123; in the Report o f the President’s Com­
mittee on Civil Rights, pp. 91-92; in Agnes E. Meyer’s article, 
“ Negro Housing— Capital Sets Record for U. S. in Un­
alleviated Wretchedness o f  Slums,”  the Washington Post, 
Sec. I I , Sunday, Feb. 6, 1944; and in Lohman and Embree, 
The Nation's Capital, 36 Survey Graphic, No. 1 (Jan. 1947) 
33, 35, 37. These sources prove that the drastic scarcity of 
housing in the District is universally recognized, and that 
the housing position o f Negroes is particularly acute.

12W oofter, Negro Problems in Cities (1928), 121-135; 
Myrdal, A n  Am erican Dilemma, pp. 379,623, 625; Drake and 
Cayton, Black Metropolis, pp. 185-186, 206-207; Robinson, 
Relationship Between Condition o f Dwellings and Rentals, 
by Race, 22 J. o f  Land Pub. Util. Economics (1946), 296; 
Sherman, Differential Rents for  W hite and Negro Families, 
3 Journal o f Housing (No. 8, Aug. 1946) 169.

13 Report on Negro Housing o f the President’s Conference 
on Home Building and Home Ownership (1932), pp. 52, 
71-72, 145; Report on Housing and Juvenile Delinquency, 
National Conference on Prevention and Control of Juvenile 
Delinquency (called by the Attorney General) (1946), pp. 
1-8, 12-13.



31

am on g N e g r o e s  i s  s u b s t a n t i a l l y  i n c r e a s e d .14 A n d  
to th e c o r r o s i o n  w h i c h  s u c h  c o n g e s t e d  a n d  i n a d e ­
quate l i v i n g  c o n d i t i o n s  w o r k  u p o n  a n y  p o o r l y  
housed i n d i v i d u a l ’ s  m e n t a l  h e a l t h ,  a s  a  c i t i z e n  
and h u m a n  b e i n g ,  t h e r e  m u s t  b e  a d d e d  t h e  
p e c u lia r ly  d i s i n t e g r a t i n g  a c i d  w h i c h  e n f o r c e d  
s e g r e g a tio n  d i s t i l l s  t o  h a r m  n o t  o n l y  t h e  v i c t i m  
alone, b u t  t h e  w h o l e  f a b r i c  o f  A m e r i c a n  l i f e .  R e ­
p o rt o f  t h e  P r e s i d e n t ’ s  C o m m i t t e e  o n  C i v i l  R i g h t s  
( 1 9 4 7 ) ,  passim, e s p .  1 3 9 - 1 4 8 .

2 . Function o f racial covenants in enforcing  
segregation.— R a c i a l  c o v e n a n t s  h a v e  a  d o m i n a n t  
role in  m a i n t a i n i n g  a n d  e n f o r c i n g  t h i s  p a t t e r n  
o f N e g r o  r e s i d e n t i a l  s e g r e g a t i o n .  I n  t h e  f i r s t  
place, th e  w h o l e s a l e  u s e ,  i n  r e c e n t  y e a r s ,  o f  r a c i a l  
r e s tr ic t io n s  i n  n e w l y  d e v e l o p e d  u r b a n  a r e a s  ( s e e  
infra, p p .  3 8 - 3 9 )  c u t s  o f f  t h o s e  N e g r o e s  w h o  c a n  
a ffo rd  to  m o v e  i n t o  a  c i t y ’ s  s u b u r b s  o r  o u t l y i n g  
sectio n s, a n d  a r t i f i c i a l l y  r e m o v e s  f r o m  a v a i l a b i l i t y  
fo r  N e g r o e s  l a r g e  a r e a s  o p e n  t o  s a t i s f y  t h e  h o u s ­
in g  n e e d s  o f  t h e  r e s t  o f  t h e  c i t y ’ s  e x p a n d i n g  p o p u ­
la tio n . M o r e  i m p o r t a n t l y ,  c o v e n a n t s  h a v e  f r e ­
q u e n tly  b e e n  u s e d  t o  f r i n g e  t h e  e s t a b l i s h e d  c o l o r e d  
area , o r  “ B l a c k  B e l t , ”  a n d  t h u s  p r e v e n t  n o r m a l  
e x p a n s io n  w i t h i n  t h e  a l r e a d y  b u i l t - u p  p o r t i o n s  
o f th e  c i t y .  R e p o r t  o f  t h e  P r e s i d e n t ’ s  C o m m i t t e e  11 12

11 Myrdal, A n American Dilemma, p. 376; Report on 
Negro Housing (1932), pp. 143-198; Jahn, Schmid, and 
Schrag, The Measurement o f  Ecological Segregation  (1947),
12 Am. Soc. Review 293, 302-303; letter o f Surgeon General 
Parran, quoted above, pp. 13-14.



32

-

o n  C i v i l  R i g h t s  ( 1 9 4 7 )  , p .  6 8 ;  W e a v e r ,  Race Be- 
strictive H ousing  Covenants  ( 1 9 4 4 ) ,  2 0  J. 0f 
L a n d  & P u b .  U t i l .  E c o n o m i c s  1 8 3 ,  1 8 5 .

a .  C h i c a g o ,  t h e  h o m e  o f  t h e  m o s t  in te n s e  cove­
n a n t  a c t i v i t y ,  i s  p e r h a p s  t h e  c l e a r e s t  example, 
w i t h  t h e  e x i s t i n g  N e g r o  a r e a s  h e m m e d  in  by a 
b a n d  o f  r e s t r i c t i v e  a g r e e m e n t s ,  o r  b y  commercial 
a n d  i n d u s t r i a l  p r o p e r t i e s . 16 I n  L o s  A n g e le s ,  with 
t h e  c o m i n g  o f  l a r g e  n u m b e r s  o f  N e g r o e s  during 
t h e  w a r ,  t h e r e  w a s  a  “ v e r i t a b l e  w a v e  o f  eove- 
n a n t r y ’ i n  n e w  s u b d i v i s i o n s ,  a n d  i n  s e c t io n s  sur­
r o u n d i n g  e x i s t i n g  c o l o r e d  s e t t l e m e n t s .  S p auld ing, 
H ousing P rob lem s o f  M in ority  Groups in Los 
A n geles,  2 4 8  A n n a l s  o f  t h e  A m .  A c a d ,  o f  Soc. & 
P o l .  S c i . ,  N o v e m b e r  1 9 4 6 ,  p p .  2 2 0 ,  2 2 1 ,  2 2 2 . Ac­
c o r d i n g  t o  t h e  N a t i o n a l  A s s o c i a t i o n  f o r  th e  A d­
v a n c e m e n t  o f  t h e  C o l o r e d  P e o p l e , 16 c o v e n a n ts  in

15 Drake and Cayton, Black M etropolis, pp. 113, 176-179, 
182-190; Myrdal, A n American Dilemma, p. 624; Weaver, 
“ Hemmed In ,’ ’ p. 1; Sterner, The Negro's Share, pp. 207- 
208; Report o f the Chicago Housing Authority for the fiscal 
year ending June 30,1947, pp. 14, 38. It  has been estimated 
that 80% o f the residential area o f the city is already covered 
by covenants; and the strategic location o f the restricted 
region around the established Negro zone is clear. Ac­
cording to the American Council on Race Relations, evi­
dence introduced in a recent racial covenant case in Chicago 
( Tovey  v. L ev y ) ,  based upon a study o f  the recorded restric­
tions, in approximately two-thirds o f the city ’s area, bears out 
this conclusion.

16 The Association gathered its information at a meeting 
on Race Restrictive Covenants, held at Chicago, July 9-10, 
1945.



33

St. Louis and Philadelphia are likewise strategi­
cally located so as to prevent Negroes’ entry into 
vacant land, new subdivisions, or to most estab­
lished residential areas contiguous to existing 
colored communities; in Detroit, the use of cove­
nants is more recent, but even now a large part 
of the houses which would appeal to Negroes 
because of location or cost are excluded from 
their occupancy. Cf. Yelie, Housing: Detroit’s 
Time Bomb, Collier’s, Nov. 23, 1946. The Amer­
ican Council on Race Relations makes a similar 
report as to Columbus, Ohio, a city with a high 
incidence of exclusionary covenants. In New 
York City it is likely that new areas in such 
expanding portions of the city as the Bor­
ough of Queens, and in the suburbs, are effec­
tively closed to Negro occupancy. Dean, None 
Other Than Caucasian, Architectural Forum, Oct. 
1947. In the District of Columbia, as in other 
cities, the present aggregate of restricted areas 
is not accurately known, but it seems certain that 
most of the “ new building sites and many older 
areas are now covenanted”  against Negroes (R e­
port of the President’s Committee, p. 91; cf. 
Edgerton, J., dissenting below 162 F. 2d, at 244, 
and in Mays v. Burgess, 147 F. 2d 869, at 876- 
877); and reports in the daily press o f recent 
months indicate that vigorous efforts to increase 
the restricted portions of the city are continuing. 
In 1929, it was reported that the racial covenant



34

“ seems to be the most widely employed method 
for keeping Negroes out of ‘ exclusively white’ 
residential districts.”  Jones, The Housing of 
Negroes in Washington (1929), p. 70.

b. Governmental agencies concerned with hous­
ing, drawing upon their recent experience, but­
tress the conclusion that racial restrictive agree­
ments have had widespread use in preventing 
proper expansion and development of Negro 
housing. The letter of the present Administrator 
of the Housing and Home Finance Agency, quoted 
above {supra, p. 11), states that his agency’s 
field reports ‘ ‘ reveal, the increasing application of 
these deed restrictions during recent years,” and 
cites “ repeated reports of the inability of private 
developers to locate adequate building sites un­
covenanted and open to occupancy by Negroes, 
Latin-Americans, Asiatics, and other similar 
groups.”  During the war, John B. Blandford, 
first Administrator of the National Housing 
Agency, stated publicly that “ the problems of site 
selection and racial restrictive covenants”  are 
“ barriers which exist even for the Negro citizen 
who can pay for a home, and, if  permitted, 
could raise a family in decent surroundings.” 1' 
Wilson W . Wyatt, former National Housing Ex­
pediter and successor to Mr. Blandford as Ad­
ministrator of the National Housing Agency, like-

17 Address before the Annual Conference o f  the National 
Urban League, at Columbus, Ohio, October 2,1944.



wise stated that “ All of us know that because of 
neighborhood resistance and restrictions upon the 
use of land, new home sites— one of the keys to 
the problem—often are difficult to acquire for 
minority groups. During the war these restric­
tions too many times delayed or completely blocked 
private and public efforts to produce essential 
housing for minority group war workers. ’ ’ 18 The 
National Housing Agency’s Conference for Racial 
Relations Advisers (October 28-November 2, 
1946) stated: “ Because of racial restrictive cove­
nants and other discriminatory practices, heavy 
concentrations of Negroes in limited areas are 
typical in communities where there are large pro­
portions of Negro population. In usual patterns 
of urban growth, congestion is relieved somewhat 
by decentralization in which people move to out­
lying areas. Not so with Negroes. Their mo­
bility is sharply limited. * * * Large scale
builders indicate that even where contractors ap­
preciate the market for privately financed hous­
ing among Negroes and have adequate financing 
resources readily available, they are often stymied 
by lack of unrestricted or unopposed building- 
sites.”

c. The significance of racial covenants in con­
fining Negroes’ bousing within tightly limited 
areas has likewise been stressed by unofficial stu-

s Letter to the Conference for the Elimination o f Restric­
tive Covenants, Chicago, 111., May 10-11,1946.



36

dents o f the general problem of racial residential 
segregation. The comprehensive survey of Gnn- 
nar Myrdal, and his associates, recognizes that if 
private restrictive agreements were not enforce­
able, “ segregation in the North would be nearly 
doomed, and segregation in the South would be 
set back slightly.”  Myrdal, A n  American Di­
lem m a , p. 624, cf. p. 527; Sterner, The Negro’s 
Share, pp. 200-207. O f similar view as to the 
decisive effect o f covenants in maintaining con­
fined zones o f segregation are Weaver, Race Re­
strictive H ousing Covenants  (1944), 20 J. of Land 
& Pub. Util. Economics 183; Weaver, Housing 
in a D em ocracy , 244 Annals of the Amer. Acad, of 
Pol. & Soc. Sci. 95 (March 1946) ; Robinson, 
R elationship  betw een C ondition o f Dwellings and 
R enta ls, by R ace  (1946), 22 J. of Land & Pub, 
Util. Econ. 296, 301-302.19

d. At times of severe general housing shortages 
throughout the country, like the present, restric­
tive covenants directed against Negroes have a 
specially disastrous impact. Even in more normal 
times, segregation tends to raise rents in the 
colored zones and forces overcrowding and ac­
ceptance of ramshackle housing (supra, pp. 29- 
31), but a period o f general housing scarcity si­
multaneously increases both the resistance of

19 See also the specific studies o f Chicago, New York, and 
Los Angeles cited above, pp. 32-33.



37

whites against Negro expansion outward and the 
pressure within the colored areas to burst out of 
confinement. As Justice Edgerton put the matter 
in his dissent in Nos. 290 and 291 below (162 F. 
2d, at 244): “ Covenants prevent free competition 
for a short supply o f housing and curtail the sup­
ply available to Negroes. They add an artificial 
and special scarcity to a general scarcity, particu­
larly where the number and purchasing power of 
Negroes as well as whites have increased as they 
have recently in the District of Columbia. The 
effect is qualitative as well as quantitative. Ex­
clusion from decent housing confines Negroes to 
slums to an even greater extent than their poverty 
makes necessary. Covenants exclude Negroes 
from a large fraction—no one knows just how 
large—of the decent housing in the District of 
Columbia. Some of it is within the economic 
reach of some of them. Because it is beyond their 
legal reach, relatively well-to-do Negroes are com­
pelled to compete for inferior housing in un­
restricted areas, and so on down the economic 
scale. That enforced housing segregation, in such 
circumstances, increases crowding, squalor, and 
prices in the areas where Negroes are compelled 
to live is obvious.”

C . Current trends in ■use o f  racial covenants .—  
We have outlined the present incidence and effect 
of covenants excluding occupation by Negroes, 
the minority group suffering most from, resi-



38

dential restrictions. Supra, pp. 31-37. Records 
also exist o f substantial use of racial covenants 
against Mexicans, Armenians, Chinese, Japanese, 
Jews, Persians, Syrians, Filipinos, American 
Indians, other “ non-Caucasians,”  or “ colored 
persons.”  See Miller, The Power of Restrictive 
Covenants, 36 Survey Graphic, No. 1 (Jan. 1947), 
46; Consolidated Brief for Petitioners in Nos. 
290-291, pp. 90-92. And the unmistakable trend 
is toward increasing use of the racial covenant, 
primarily against Negroes but also, with accel­
erating expansion, against other minorities. The 
best available information is that the great bulk 
of new urban subdivisions and real estate de­
velopments which have been commenced since 
residential building was resumed after World 
W ar I I  are restricted, at least in those regions 
in which minorities reside. The same is probably 
true, though to a lesser degree, of residential 
developments planned and built in the decade be­
fore the war brought an abrupt halt to housing 
construction; and since 1920 the trend toward use 
o f racial exclusions in new developments appears 
to have been steadily upward, both within those 
urban and suburban areas in which this method 
o f residential segregation was originally used, 
and also in extension to previously untouched 
cities.20 I f  this trend continues unchecked, almost

20 See letter o f the Administrator o f the Housing and Home
Finance Agency, supra, pp. 5-13: Report o f the President’s



39

all new residential sections of our cities will be 
barred, within ten or twenty years, from 
occupancy by Negroes, and to an increasing degree 
by other groups. In those communities, like 
Washington, in which Negroes are seeking escape 
from desperate overcrowding in the traditional 
colored areas by purchasing houses in existing 
“ white neighborhoods,”  there has been a notice­
able tendency to prevent the “ invasion”  by the 
intense promotion, signing, and recording o f new 
restrictions in those old areas, as well as by more 
informal methods. The result is that “ where 
old ghettos are surrounded by restrictions, and 
new subdivisions are also encumbered by them, 
there is practically no place for the people against 
whom the restrictions are directed to go.”  Report 
of the President’s Committee on Civil Rights 
(1947), p. 69.

Committee on Civil Rights (1947), p. 68; Sterner, The 
Negro's Share, 208-209; Abrams, Homes for  Aryans Only, 
3 Commentary (No. 5, May 1947), 421; Abrams, Discrimina­
tory Restrictive Covenants■—A  Challenge to the American  
Bar, address before the Bar Association o f  the City o f  New 
York, Feb. 19,1947; Spaulding, Housing Problems o f Minor­
ity Groups in Los Angeles, 248 Annals o f the American 
Academy of Social and Pol. Sciences, Nov. 1946,.p. 220; Dean, 
None Other Than Caucasian, Architectural Forum, October 
1947; Monchow, The Use o f Deed Restrictions in Subdivision 
Development (1928); Weaver, Northern Ways, 36 Survey 
Graphic (Jan. 1947) 43, 45; Report o f Pennsylvania State 
Temporary Commission on the Condition o f  the Urban 
Colored Population (1943) 131 et. seq.

775894— 48- 4



40

D. The present legal status o f racial restrictive 
covenants

1. State law
Courts in some nineteen states, and the District 

o f Columbia, have indicated that racial restric­
tive covenants o f one type or another are enforce­
able, and in no jurisdiction have they been 
entirely invalidated, though there are at least two 
reported lower court expressions of unconstitu­
tionality.21 The earliest case involving Negroes 
was decided in Louisiana in 1915, but all the 
other decisions have issued since this Court’s 
holding, in November 1917, that state or munic­
ipal residential segregation violated the Four­
teenth Amendment. Buchanan v. Warley, 245 
U. S. 60. Since 1918, the highest courts of 
Alabama, California, Colorado, Georgia, Kansas, 
Kentucky, Louisiana, Maryland, Michigan, Mis­
souri, North Carolina, Oklahoma, Texas, West 
Virginia, and Wisconsin, as well as the Court of 
Appeals for the District o f Columbia, have held, 
or clearly stated in dictum, that racial restraints, 
properly phrased, would be enforced; a recent 
Ohio Court o f Appeals case, three lower New 
York courts, a New Jersey nisi prius decision, 
and apparently a decision of the Illinois Ap-

21 Most o f the cases are collected in McGovney, Racial 
Residential Segregation by State Court Enforcement of 
Restrictive Agreem ents, Covenants or Conditions in Deeds 
is Unconstitutional (1945), 33 Calif. L. Bev. 5, 6-12.



41

pellate Court, are in accord.22 The other twenty- 
nine states are silent. The two dissenting voices 
are those of District Judge Erskine M. Ross, 
who held, in 1892 in the first reported American * 290

22Alabama: Wyatt v. Adair, 215 Ala. 363 (1926). 
California: Los Angeles Inv. Co. v. Gary, 181 Cal. 680 

(1919); Janss Investment Co. v. Walden , 196 Cal. 753 (1925); 
Wayt v. Patee, 205 Cal. 46 (1928).

Colorado: Chandler v. Ziegler , 88 Colo. 1 (1980); Steward 
v. Oronan, 105 Colo. 393 (1940).

Georgia: Dooley v. Savannah Bank & Trust Co., 199 Ga. 
353 (1945).

Illinois: Burke v. Kleiman, 277 111. A pp. 519,534.
Kansas: Clarky. Vaughan, 131Kan.438 (1930).
Kentucky: United Cooperative Realty Co. v. Hawkins, 

269 Ky. 563 (1937).
Louisiana: Queensborough Land Co. v. Cazeaux, 136 La. 

724 (1915).
Maryland: Meade v. Dennistone, 173 Md. 295 (1938); 

Scholtes v. McColgan, 184 Md. 480,487-488 (1945).
Michigan: Parmalee v. Morris, 218 Mich. 625 (1922); 

Schulte v. Starks, 238 Mich. 102 (1927); Cf. Porter  v. Bar­
rett, 233 Mich. 373 (1925) (invalidating restraint on sale or 
lease on common-law grounds).

Missouri: Koehler v. Rowland, 275 Mo. 573 (1918).; Porter 
v. Pryor, 164 S. W . 2d 353 (Mo. 1942) ; Porter v. Johnson, 
232 Mo. App. 1150 (1938) ; Thornhill v. Herdt, 130 S. W . 
2d 175 (Mo. App. 1939).

New Jersey: Lion’s Head Lake v. Brzezinski, 23 N. J. Misc.
290 (1945) (2nd Dist. Ct. o f  Paterson ); But cf. Miller v. 
Jersey Coast Resorts Corp., 98 N. J. Eq. 289, 297 (Ct. Ch. 
1925) (dictum that a restrictive covenant prohibiting Jews 
from purchasing land would be unconstitutional).

New York: Ridgway v. Cockbwrn, 163 Misc. 511 (Sup. Ct. 
Westchester Co., 1937; Dury  v. Neely, 69 N. Y . Supp. 2d 
67( (Sup. Ct. Queens Co., 1942); Kem p  v. Rubin, 188 Misc. 
310, 69 N. Y. Supp. 2d 680 (Sup. Ct., Queens Co., 1947).

North Carolina: Vernon v. R. J . Reynolds Realty Go., 226 
N. C. 58 (1946).

Lhio: Perkins v. Trustees o f  Monroe Ave. Church, 79



42

case in this field, that enforcement of a covenant 
against renting to “ a Chinaman”  would be un­
constitutional ( Gandolfo v. Hartman, 49 Fed, 
181 (C. C. S. D. Calif. 1892)), and of a New 
Jersey vice-chancellor who stated obiter the un­
constitutionality of covenants excluding Jews, 
Miller v. Jersey Coast Resorts Corp., 98 N. J, 
Eq. 289, 297 (Ct. Ch. 1925).

Ohio A pp. 457, 70 N. E. 2d 487 (1946), appeal dismissed, 
72 N. E. 2d 97 (Ohio, 1947), pending on petition for writ 
o f  certiorari, No. 153, this Term.

Oklahoma: Lyons v. Wallen, 191 Okla. 567 (1942); Hems- 
'ey  v. Sage, 194 Okla. 669 (1944) ; Hemsley v. Hough, 195 
Okla. 298 (1945).

Texas: Liberty A nnex Corp. v. Dallas, 289 S. W. 1067, 
1069 (Tex. Civ. App., 1927). affirmed 295 S. W. 591, 592 
(Com. o f App., 1927).

West V irg in ia : W hite v. W hite, 108 W . Va. 128,147 (1929). 
W isconsin: Doherty  v. R ice , 240 Wise. 389 (1942). 
District o f  Colum bia: Corrigan v. Buckley , 299 Fed. 899 

(1924), appeal dismissed, 271 U. S. 323; Torrey v. Wolfes, 
6 F. 2d 702 (1925); Cornish v. O'Donoghue, 20 F. 2d 983 
(1929), certiorari denied, 279 U. S. 871; Russell v. Wallace, 
30 F . 2d 981 (1929), certiorari denied, 279 U. S. 871; Edwards 
v. W est Woodridge Theater Co., 55 F. 2d 524 526 (1931); 
Grady v. Garland, 89 F. 2d 817 (1937), certiorari denied, 302 
17. S. 694; Hundley v. Gorewitz, 132 F. 2d 23 , 24 (1942); 
Mays v. Burgess, 147 F. 2d 869 (1945), certiorari denied, 
325 U. S. 868, rehearing denied, 325 U. S. 896.

California, Maryland, Michigan, Ohio, and West Virginia 
invalidate racial restrictions on sales or lease, on common- 
law grounds, but uphold similar restrictions on use or oc­
cupancy, and in those states racial covenants appear to take 
the form  o f restrictions on “ use or occupancy”  by excluded 
groups; see infra , pp. 104-117 for discussion o f this distinc­
tion and o f the common-law rule on restraints against 
alienation.



43

Most of the cases sustaining the enforcement 
of racial agreements or conditions have dismissed 
constitutional objections with no more than a 
reference to Corrigan  v. B u ckley ,  271 U. S. 323, 
which is widely but erroneously regarded as 
settling the issue. See, e. g., L yon s  v. W allen , 
191 Okla. 567, 569; U nited C ooperative R ea lty  
Co. v. Hawkins, 269 Ky. 563; M eade  v. D en- 
nistone, 173 Md. 295, 302; D oh erty  v. R ice,  240 
Wise. 389, 396-397; Chandler  v. Z ieg ler ,  88 Colo. 
1, 5; Dooley  v. Savannah B ank & Trust Co., 199 
Ga. 353, 364; L iberty  A n n ex  C orp. v. Dallas, 289
S. W. 1067, 1069 (Tex. Civ. App.) ; P erk in s  v. 
Trustees o f M onroe A ve. Church, 79 Ohio App. 
457, 70 N. E. 2d 487, appeal dismissed, 72 N. E. 
2d 97 (Ohio), pending on petition for writ of 
certiorari, No. 153, this Term; ef. in fra , pp. 87-92. 
In the others, consideration of constitutional 
questions has been left with the bald conclusion 
that the Fourteenth Amendment protects only 
against “ state action”  (P arm alee  v. M orris, 218 
Mich. 625; Los A ngeles Inv . Co. v. G ary, 181 Cal. 
680, 683-684; Queensborough Land Co. v. Cazeaux, 
136 La. 724, 728) or with the intimation that 
the discrimination is of the type permissible 
under the Constitution. K oeh ler  v. Rowland, 
275 Mo. 573, 585-586.

In some jurisdictions, the cases discuss the 
validity of racial exclusions under the common- 
law rule forbidding restraints on alienation, but



44

in those states in which restraints on sales or 
leases are held void at common law, similar racial 
restrictions on use or occupancy are upheld. See 
supra, p. 42, in fra , pp. 112-114. The equity of af­
firmatively enforcing restrictions against Negroes 
or other minority groups gravely in need of hous­
ing space has hardly been touched; 23 but public 
policy barriers to validity o f the covenants have. 
been mooted in many cases, only to meet with 
short judicial rejection. See, e. g., Koehler y. 
R ow land, 275 Mo. 573, 585-586; Chandler v. 
Z ieg ler ,  88 Colo. 1, 5-6.

Some mitigation o f the harsh effects of racial 
covenants is found in the rule, in several jurisdic­
tions, that the agreements will not be enforced 
where infiltration of the excluded group has 
caused such a change in the neighborhood that it 
would be to the pecuniary advantage of the prop­
erty owners to remove the restriction and permit 
them to sell outside the restriction. Clark v. 
V aughn, 131 Kan. 438; H un d ley  v. Goreivitz, 132 F. 
2d 23 (App. D. C.) ; G ospel Spreading Ass’n, 
In c .,  v. B en n etts ,  147 F. 2d 878 (App. D. C.).

23 The notable exceptions are the opinion o f Traynor, J. 
concurring in Fairchild  v. Raines, 24 Cal. 2d 818, 832 and of 
Edgerton, J. dissenting below in Nos. 290 and 291, and in 
Mays v. Burgess, 147 F. 2d 865, 876,152 F. 2d 123,125. In 
Porter  v. Johnson, 232 Mo. App. 1150, the court specifically 
refused to consider such factors as bearing upon the right 
to equitable relief. To the same effect see BurJchardt v. Lof­
ton, 63 Cal. App. 2d 230, 239-240; Stone v. Jones, 66 Cal. 
App. 2d 264, 269-270.



45

However, even this rule is narrowly construed by 
some courts, including those o f the District of 
Columbia, in order to protect owners who desire 
to remain. Grady v. Garland, 89 F. 2d 817 (App.
D. C. ) ;Mays v. Burgess, 152 F. 2d 123 (App. D. C . ) ; 
Porter v. Johnson, 232 Mo. App. 1150, 1158; Fair- 
child v. Baines, 24 Cal. 2d 818, 827-828.
2. Federal law

This Court has thrice voided legislative at­
tempts at racial residential segregation as viola­
tive of the Fourteenth Amendment. In Buchanan 
v. Warley, 245 U. S. 60 (1917), the Court an­
nulled an ordinance o f Louisville, Kentucky, which 
prohibited either white or colored persons from 
occupying houses in blocks in which the majority 
of houses were occupied by persons of the other 
race. A per curiam memorandum in Harmon v. 
Tyler, 273 U. S. 668 (1927) invalidated, on the 
authority of the Buchanan case, a New Orleans 
ordinance forbidding white or colored persons 
from establishing residence in a Negro or white 
community, respectively, “ except on the written 
consent of a majority of the persons of the op­
posite race inhabiting such community or portion 
of the city.”  The third ease, City of Richmond 
v. Deans, 281 U. S. 704 (1930), affirming 37 F. 
2d 712 (C. C. A. 4), rested on the two earlier 
decisions in holding invalid a Richmond ordinance 
prohibiting “ any person from using as a residence 
any building on any street between intersecting



streets where the majority of residences on such 
street are occupied by those with whom said per­
son is forbidden to intermarry”  by Virginia law, 
State courts have likewise refused enforcement 
to legislative ordinances or statutes restricting or 
regulating sale or occupancy o f residences on a 
racial basis.24

The one case in this Court directly involving 
racial restrictive agreements is Corrigan v. Buck- 
ley, 2 7 1  U. S. 3 2 3  (1926) in which an appeal from 
the Court of Appeals ’ decision in 299 Fed. 899 was 
dismissed for want o f jurisdiction on the ground 
that a contention that the covenants were “ void” 
ab initio under the Fifth, Thirteenth, and Four­
teenth Amendments, and the Civil Rights statutes, 
raised no substantial constitutional or statutory 
issue. ISTo question of the constitutional validity 
o f judicial enforcement of the covenants was 
properly before the Court, and issues of the com­
mon-law legality of the restraint or of equitable

24 Carey v. Atlanta, 143 Ga. 192; Glover v. Atlanta, 118 
Ga. 285; Bowen v. Atlanta, 159 Ga. 145; Jackson v. State, 
132 Md. 311 (cf. State v. Gurry, 121 Md. 534); State v. Dar­
nell, 166 N. C. 300; dinard v. Winston-Salem, 217 N. C. 119 i 
Allen v. Oklahoma Oity, 175 Okla. 421; Liberty Annex 
Gory. v. Dallas, 289 S. W . 1067 (Tex. Civ. App.). affirmed 
295 S. W . 591 (Com. o f  App. Tex.) (cf. 19 S. W. 2d 845 
(Tex. Civ. A p p .) ) ; Irvine v. Clifton Forge, 124 Ya. 781. 
Previous to the Buchanan case, some state courts, but not all 
upheld segregation ordinances. Hopkins v. Richmond, 117 
Va. 692; Harden v. Atlanta, 147 Ga. 248; Harris v. Louis­
ville, 165 K y. 559.

46



47

discretion in enforcement were not considered.25 
In the lower federal courts, the cases are those 
already cited: Gandolfo v. Hartman, 49 Fed. 181 
(C. C. S. D. Calif., 1892), on the one side, and 
the series in the District of Columbia beginning 
with Corrigan v. Buckley, 299 Fed. 899 (1924), 
on the other. Supra, pp. 41-42.

3. Law in other jurisdictions
In Canada, the Ontario High Court has held 

racial and religious restrictive agreements invalid 
under provincial and Dominion public policy, as 
well as void restraints at common law. B e Drum­
mond Wren [1945] 4 D. L. R. 674.26 W e have 
found no English or Australian cases on the 
point.27

25 Ilam herry  v. Zee, 311 U . S. 32, the other case in this 
Court stemming from a racial covenant, was decided on the 
ground that the prior state court decision upholding the 
covenant (Burke v. K leim an , 277 111. App. 519) could not 
bind persons who were not parties thereto.

26 But cf. R e M e D ou g  all and W addell [1945] 2 D. L. K. 
244 (Ont. High Ct.) holding, apparently on technical 
grounds, that such a restriction does not violate the terms 
of the Ontario Bacial Discrimination Act, 1944.

27 Perhaps the viewpoint of the English courts may be 
gathered from the House of Lord’s judgments in C layton  v. 
Ramsden [1943] A . C. 320, holding void for indefiniteness 
a testator’s condition on a bequest to his daughter that she 
not marry one “not of Jewish parentage and of the Jewish 
faith." The rather unclear state of the English common- 
law rule on restraints on alienation, in general, is revealed in 
Cheshire, The M odern Law  o f  R eal P ro p er ty  (4th ed. 1937), 
pp. 518-519; cf. pp. 297-311 (covenants running with the 
land).



48
A R G U M E N T

I. JUDICIAL ENFORCEMENT OF RACIAL RESTRICTIVE 
COVENANTS CONSTITUTES GOVERNMENTAL ACTION 
IN  VIOLATION OF RIGHTS PROTECTED BY THE CON­
STITUTION AND LAWS OF THE UNITED STATES FROM 
DISCRIMINATION ON THE BASIS OF RACE OR COLOR

INTRODUCTION

The Government’s position in these cases is 
based upon the premise that the Fifth and Four­
teenth Amendments are involved only if a discrimi­
nation based on race or color (a) is with respect 
to rights which under the Constitution and laws 
o f the United States are protected from such dis­
crimination and (b) constitutes “ federal” or 
“ state”  action within the applicable principles 
laid down by this Court. W e can put to one side, 
therefore, acts which although involving racial 
discrimination, do not run afoul of the Constitu­
tion, either because they do not constitute gov­
ernmental action or because they do not interfere 
with a right which the Constitution protects from 
racial discrimination.

A  hypothetical case may thus be distinguished: 
Suppose a man refuses to sell or lease his prop­
erty merely because of the prospective purchas­
er ’s race or color. So long as his refusal is 
neither sanctioned nor supported in any way 
by governmental action, no constitutional ques­
tion is raised. This was decided in the Civil 
Rights Cases, 109 U. S. 3, 17, which held that the 
Fourteenth Amendment does not prohibit racial 
discriminations which are merely the “ wrongful



49

acts of individuals, unsupported by state author­
ity in the shape of laws, customs, or judicial or 
executive proceedings.”  28

This phase of the argument may therefore be 
framed in the following terms: (1) Does judicial 
enforcement of racial restrictive convenants con­
stitute governmental action within the applicable 
principles established by this Court? (2) I f  so, 
does such governmental enforcement through the 
judicial process constitute a denial o f rights 
protected by the Constitution and laws of the 
United States?

Both these questions are clearly to be answered 
in the affirmative. More particularly, we contend 
that judicial enforcement o f racial restrictive 
covenants constitutes governmental action in vio­
lation of each of the following rights guaranteed by 
the Constitution and laws o f the United States: (1) 
The right to acquire, use, and dispose of property, 
without being restricted in the exercise of such 
right because of race or color. (2) The right to 
compete on terms of equality, without being dis­
criminated against because of race or color, in se­
curing decent and adequate living accommoda­
tions. (3) The right to equal treatment before 
the law.

28 In proceeding upon the premise that only governmental, 
and not individual, action is prohibited by the Fifth and 
Fourteenth Amendments, we do not mean to imply that this 
assumption, based upon the decision in the C ivil R ights  
Cases, 109 U. S. 3, is not subject to re-examination by this 
tourt. Competent scholars have long questioned the cor­
rectness of that ruling.



50

A . Judicial E n forcem en t o f  P riva te  Covenants 

C onstitutes G overnm ental Action

It cannot successfully be argued that the de­
crees involved in these cases do not constitute 
governmental action because the courts have acted 
solely to enforce private contractual or property 
rights. It is well settled that action is no less 
governmental because it is taken by the judicial 
rather than legislative or executive branches: 
V irgin ia  v .  R iv es , 100 U. S. 313, 318; Ex park 
V irgin ia , 100 U. S. 339, 346-347; Neal v. Dela­
w are, 103 U. S. 370, 397 ; C arter  v. Texas, 117 
U. S. 442, 447; R ogers  v. Alabam a , 192 U. 8. 226, 
231; M artin  v. T exas , 200 U. S. 316, 319; Tm% 
ing  v. N ew  J ersey , 211 U. S. 78, 90-91; Moore \ 
D em p sey , 261 U. S. 86; P ow ell  v. Alabama, 287 
IT. S. 45; M oon ey  v. H olohan, 294 U. S. 103; 
B row n  v. M ississippi, 297 IT. S. 278; Chambers 
v. F lorida , 309 U. S. 227; Cantwell v. Connecticut, 
310 IT. S. 296, 307-311; A . F . o f  L . v. Swing, 312 
IT. S. 321, 324-326; B rid ges  v. California, 314 
IT. S. 252; B a k ery  D rivers  Local  v. Wold, 315 
IT. S. 769; C afeteria  Union  v. A ngelos, 320 IT. S. 
293, 294; P en nekam p  v. F lorida , 328 IT. S. 331; 
Craig  v. H a rn ey ,  331 IT. S. 367. This is true even 
where the judicial action is based upon common 
law enforcement of private rights. Thus, in 
A . F . o f  L .  v. Sw ing, supra, an injunction to pro­
tect an employer from an interference with his 
business, which under state law was tortious, was 
held unconstitutional as a violation of rights se-



51

cured by the Fourteenth Amendment. Accord: 
Bakery Drivers Local v. W oh l, su p ra ; C afeteria  
Union v. Angelos, supra. Compare Schenectady  
Union Publishing Co. v. S w eeney, 316 U. S. 642, 
in which this Court, equally divided, affirmed a 
judgment for damages in a libel suit, where it 
was contended that such judgment infringed the 
freedom of speech secured by the Fourteenth 
Amendment. Judgments in civil cases have fre­
quently been held unconstitutional on due pro­
cess or other grounds. P en n o y er  v. N eff,  95 U. S. 
714; Scott v. M cN eal, 154 U. S. 34; B rin kerh off- 
Faris Trust & Savings Co. v. H ill, 281 IT. S. 673; 
Griffin V. Griffin, 327 IT. S. 220; H ansherry  v. 
Lee, 311 IT. S. 32, 41; P osta l T elegraph Cable Co. 
v. Newport, 247 IT. S. 464, 476; cf. W illiam s  v. 
North Carolina, 325 U. S. 226.

A court which enforces a contract is not merely 
a mechanical instrumentality for effectuating the 
will of the contracting parties. The law enforces 
contracts because there is a public interest in 
placing the force o f the state behind the effectua­
tion of private agreements not contrary to any 
recognized social policy. “ Law is a statement of 
the circumstances in which the public force will 
be brought to bear upon men through the courts.”1 
American Banana Co. v. U nited  F ru it Co., 213 
I . S. 347, 356. The enforcement o f contracts is 
a public act involving more than the attempt o f 
individuals to carry out their own private
arrangements.



52

Whatever difficulties may he involved in draw­
ing the line between governmental and individual 
action for other purposes, the line of demarcation 
is clear and precise with respect to actions in­
volving racial discrimination. Only those actions 
o f individuals which are in no respect sanctioned, 
supported, or participated in by any agency of 
government are beyond the scope of the Fifth 
and Fourteenth Amendments. Racial discrimi­
nations which are merely “ the wrongful acts of 
individuals”  can remain outside the ban of the 
Constitution only so long as they are “ unsup­
ported by State authority in the shape of laws, 
customs, or judicial or executive proceedings.” 
Civil R igh ts Cases, 109 IT. S. 3, 17.

B . The 'Decrees Beloiv Invade R ights Secured by 
the C onstitution  and Laws o f the United States

(1 ) In  G enera l: The Scope o f  Constitutional Protection 
against G overnm ental D iscrim inations Based on Race or 
C olor

The decisions of this Court stand in vigorous 
affirmation of the principle that ‘ ‘ our Constitution 
is color blind.” 29 The Court has been consistent 
and unequivocal in its denunciation of discrimi­
nations based upon race or color. E. g., Strauder 
v. W e st V irginia , 100 IT. S. 303; Civil Rights 
Cases, 109 IT. S. 3; Buchanan  v. W arley ,  245 U. S.

29 Mr. Justice Harlan, dissenting in Plessy  v. F erguson, 
163 U . S. 537, 559.



53

60 • Yick Wo v. Hopkins, 118 U. S. 356; Truax v. 
Raich, 239 U. S. 33; Edwards v. California, 314 
U. S. 160,185; Hill v. Texas, 316 XL S. 400; Steele 
v. Louisville & Nashville Railroad Co., 323 U. S. 
192. In Hirahayashi v. United States, 320 U. S. 
81, 100, it was stated:

Distinctions between citizens solely be­
cause of their ancestry are by their very 
nature odious to a free people whose in­
stitutions are founded upon the doctrine o f 
equality. For that reason, legislative 
classification or discrimination based on 
race alone has often been held to be a 
denial of equal protection. Yick W o  v. 
Hopkins, 118 U. S. 356; Yu Cong Eng v. 
Trinidad, 271 U. S. 500; Hill v. Texas, 316 
IT. S. 400.

The Hirahayashi case recognized, of course, that 
this principle, like all other principles o f law, is 
not an absolute. But the attitude which the 
Court will take in dealing with assertedly justi­
fiable racial restrictions was clearly defined in 
Korematsu v. United States, 323 U. S. 214, 216:

all legal restrictions which curtail the civil 
rights of a single racial group are im­
mediately suspect. That is not to say that 
all such restrictions are unconstitutional. 
It is to say that courts must subject them 
to the most rigid scrutiny. Pressing pub­
lic necessity may sometimes justify the 
existence of such restrictions; racial an­
tagonism never can.



54

The Court’s approach to these questions may thus 
he summarized, in general terms, as follows: Dis­
tinctions based on race or color alone are in most 
instances irrelevant and, therefore, invidious under 
the Constitution. They can be justified, if at all, 
only by the weightiest countervailing interests. 
Because o f its unique role in our constitutional 
system as the guardian o f the civil rights of minor­
ities, this Court will make the most searching 
inquiry into the sufficiency of any grounds as­
serted as justification for racial discrimination,30 
In  making such inquiry, the Court will be mind­
ful of the fact that the Fourteenth Amendment 
was primarily intended “ to prevent state legisla­
tion designed to perpetuate discrimination on the 
basis o f race or color.”  Railway Mail Associa­
tion v. Corgi, 326 U. S. 88, 94. While this con­
stitutional safeguard extends to all persons alike 
in the rights which it secures ( Yick Wo v. Hop-

30 The scope o f judicial inquiry concerning constitutional 
invasions has undoubtedly been most intense where civil 
liberties are involved. “Freedom of press, freedom of 
speech, freedom o f religion are in a preferred position.” 
Murdock v. Pennsylvania, 319 U. S. 105, 115; Follett v. Mc­
Cormick, 321 IT. S. 573, 577; Marsh v. Alabama, 326 U. S. 
501, 509; United States v. Carotene Products Co., 304 U. S. 
144, 152-153, note 4. In  the present cases, where enforce­
ment o f  racial restrictive covenants against individuals be­
longing to distinctive minority groups has the effect of deny­
ing them the right to adequate housing, equal justification 
exists for the closest kind o f judicial scrutiny into the asserted 
justification for invasion o f that right. Cf. Tick 1Vo v. 
Hopkins, 118 U. S. 356; Ho A h K ow  v. Nunan, 12 Fed. Cas. 
252 (C. C. D. Cal.).



55

kins, 118 U. S. 356; Truax v. Raich, 239 U. S. 
33), it will not be overlooked that constitutional 
protection for the rights and liberties o f the Negro
was the primary object to be attained by adoption 
of the Amendment. In  Strauder v. W est V ir­
ginia, 100 IT. S. 303, 306, 307, 310, Mr. Justice 
Strong’s opinion for the Court stated:

It [the Fourteenth Amendment] was de­
signed to assure to the colored race the 
enjoyment of all the civil rights that under 
the law are enjoyed by white persons, and 
to give to that race the protection o f the 
general government, in that enjoyment,
whenever it should be denied by the States.
*  *  *

* * * What is this but declaring that 
the law in the States shall be the same for 
the black as for the white; that all persons, 
'whether colored or white, shall stand equal 
before the laws of the States, and, in re­
gard to the colored race, for whose pro­
tection the amendment was primarily 
designed, that no discrimination shall be 
made against them by law because of their 
color? * * *

*  *  *  *  *

The Fourteenth Amendment makes no 
attempt to enumerate the rights it designed 
to protect. It speaks in general terms, and 
those are as comprehensive as possible. 
Its language is prohibitory; but every pro­
hibition implies the existence of rights and 
immunities, prominent among which is an

775894— 48------- 5



56

immunity from inequality of legal protec­
tion, either for life, liberty, or property. 
Any State action that denies this immunity 
to a colored man is in conflict with the 
Constitution.

The Court has had occasion to apply these 
general principles to a variety o f specific situa­
tions. The earliest class of cases involving gov­
ernmental action of a discriminatory character 
relates to the exclusion o f Negroes from juries. 
It was soon settled that where Negroes have been 
intentionally and systematically excluded from 
serving on a grand or petit jury, equal protection 
o f the laws is denied to the Negro defendant 
against whom an indictment or conviction has 
been obtained. This is true whether the exclu­
sion occurred by reason of the direct command 
of a state statute (Strauder v. West Virginia, 
100 U. S. 303; Bush v. Kentucky, 107 U. S. 110), 
or because of the discriminatory practices of 
selection employed by state officials (Pierre v. 
Louisiana, 306 IT. S. 354; Hale v. Kentucky, 303 
IT. S. 613; Hollins v. Oklahoma, 295 U. S. 394; 
Norris v. Alabama, 294 IT. S. 587; Carter v. 
Texas, 177 U. S. 442; Neal v. Delaware, 103 1J. S. 
370). Similarly, the constitutional authority 
given to Congress to implement the Fourteenth 
Amendment by appropriate legislation empowers 
it to provide that state officials, including judges, 
shall be guilty of a federal penal offense for 
causing such a discriminatory selection of jurors. 
Ex parte Virginia, 100 IT. S. 339.



57

Another class of cases involving governmental 
racial discriminations relates to suffrage. The 
right to qualify as a voter, even in primary elec­
tions, may not be denied by a State on the ground 
of color, without offending the equal protection 
clause. Nixon v. Herndon, 273 U. S. 536. ‘ ‘ States 
may do a good deal o f classifying that it is difficult 
to believe rational, but there are limits, and it is 
too clear for extended argument that color cannot 
be made the basis of a statutory classification 
affecting the right set up in this case.”  Id., at 
541. This Court has held such discrimination 
unconstitutional even where it is imposed by a 
committee of a political party, if  its authority to 
do so originates in the laws of the State. Nixon 
v. Condon, 286 U. S. 73. In that case, Mr. Justice 
Cardozo’s opinion for the Court stated (p. 89) :

Delegates of the State’s power have dis­
charged their official functions in such a 
way as to discriminate invidiously between 
white citizens and black. [Citations omit­
ted.] The Fourteenth Amendment, adopted 
as it was with special solicitude for the 
equal protection o f members o f the Negro 
race, lays a duty upon the court to level by 
its judgment these barriers o f color.

More recently, the Court has held, upon an exami­
nation of a state’s statutes dealing with primaries, 
that the exclusion of Negroes from  voting in a 
primary election by a political party constituted 
a denial by the State of the right to vote which is



58

constitutionally secured against discrimination, 
Smith v. Allwright, 321 U. S. 649, overruling 
Grovey v. Townsend, 295 U. S. 45. Even though 
the discrimination in that case was effected by a 
private organization, the Court held that where a 
State “ endorses, adopts and enforces”  the dis­
crimination, the State itself has denied constitu­
tional rights. The portion of the Court’s opinion 
dealing with this question is pertinent here:

The United States is a constitutional de­
mocracy. Its organic law grants to all citi­
zens a right to participate in the choice of 
elected officials without restriction by any 
State because o f race. This grant to the 
people o f the opportunity for choice is not 
to be nullified by a State through casting 
its electoral process in a form which per­
mits a private organization to practice 
racial discrimination in the election. Con­
stitutional rights would be of little value if 

. they could be thus indirectly denied, Lme 
v. Wilson, 307 U. S. 268, 275.

Racial discriminations prohibited by the Four­
teenth Amendment are not confined solely to 
rights as fundamental as those relating to suffrage 
or to a fair criminal trial. They relate as well to 
the privileges which a State may offer to its 
citizens; what is offered to its white citizens must 
equally be offered to its colored citizens. To deny 
substantial equality in the enjoyment of such 
privileges is to deny the equal protection of the 
laws. An example is the privilege of attending



59

the law school at a state university. A  state is 
not required to furnish legal education to its citi­
zens; but if it offers such education to its white 
citizens, an equal privilege cannot be denied to its 
colored citizens. Missouri ex rel. Gaines v. (Jan- 
ada, 305 IT. S. 337.31

31 In Missouri ex  rel. Gaines v. Canada, supra, it was as­
sumed (p. 344) that the State fulfills its obligation by furnish­
ing “equal facilities in separate schools.”  It  may be observed, 
however, that this Court has never had occasion to rule 
directly on the question whether compulsory segregation in 
education, even where substantially equal facilities are 
afforded, is a denial o f rights under the Fourteenth Amend­
ment. The Canada case does not so rule, for it was held that 
the petitioner was entitled to be admitted to the law school 
of the state university, no other proper provision for his legal 
training having been made. (The Missouri court, however, 
interpreted the mandate as being fulfilled by furnishing sepa­
rate and equal, facilities. State  v. Canada:, 344 Mo. 1238.) 
In other instances, also, this Court was not required to con­
sider the precise point. In  G ong Lum  v. R ice, 275 U. S. 78, it 
was held that equal protection was not deprived in classifying 
a Chinese child as “ colored”  and in compelling the child to 
attend a school for other colored persons. The issue whether 
any segregation would be valid does not seem to have been 
directly raised, although its validity was assumed by the 
Court. Cummings v. B oard  o f  Education , 175 U. S. 528, held 
that where separate high school facilities for colored children 
had been abandoned, an injunction to restrain collection o f 
local taxes was not proper. B erea  C ollege v. K en tu ck y , 211 
U. S. 45, involved a state statute which prohibited any per­
son, corporation or association from  receiving both Negro 
and white persons as pupils for instruction. The decision 
was limited to holding the statute valid as applied to a do­
mestic corporation whose corporate power could be defined 
by the state. Whether a person or association could be so 
prohibited from teaching or whether a pupil could claim an



60

A  State, it lias been held, may require that pas­
sengers in intrastate transportation be segre­
gated according to color (Plessy v. Ferguson, 163 
U. S. 537) ; but denial of equal transportation 
facilities because o f race or color would be a dis­
crimination prohibited by the Constitution. Mo- 
Cabe v. Atch., T. & Santa Fe By. Co., 235 U. S. 
151, 160-162. “ The denial to appellant of equal­
ity o f accommodations because of his race would 
be an invasion of a fundamental individual right 
which is guaranteed against state action by the 
Fourteenth Amendment.”  Mitchell v. United 
States, 313 TJ. S. 80, 94.

unlawful discrimination was not decided. See, however, 
M eyer v. NebrasJca, 262 U. S. 390, where the defendant was 
convicted for having taught the German language in a paro­
chial school under a state statute which forbade the instruc­
tion o f any language except English to children in primary 
schools. The right o f the teacher to instruct was held to be 
a liberty protected by the due process clause which the Court 
concluded was violated by the statute. A ccord : Bartels v. 
Iowa,, 262 U. S. 404. See also, Pierce v. Society of Sisters, 
268 U. S. 510, holding invalid a statute imposing compulsory 
attendance at a public primary school. The legislation was 
viewed as an infringement o f the liberties o f parents to direct 
the education o f their children and was held to be an unwar­
ranted interference with the right o f a private school to 
secure pupils for instruction.

Plessy v. Ferguson , 163 IT. S. 537, does not, it is believed, 
decide the issue, for, assuming that equal though segregated 
travel facilities may meet the requirements o f the Constitu­
tion, it does not follow  that the same is true of education 
where the very fact o f segregation may, itself, result in 
inequalities o f the opportunity to learn, which depends not 
only on instruction but on the association with fellow pupils.



61

It is also settled that the Constitution pro­
hibits discriminations against persons of a par­
ticular race or color, which operate to prevent 
them from carrying on a business or calling. 
Yid-t Wo v. Hopkins, 118 TJ. S. 356; Tnmx v. 
Raich, 239 U. S. 33. Discrimination is no less in­
valid because it is evident only through the man­
ner in which a state law is administered. Thus, 
in Yick Wo v. Hopkins, supra, it was held that 
equal protection of the laws was denied where 
city officials so administered a municipal licensing 
ordinance as to grant laundry permits to white 
persons but consistently to deny them to Chinese. 
The Court said (118 IT. S. at 374) :

The fact of this discrimination is admit­
ted. No reason for it is shown, and the 
conclusion cannot be resisted, that no rea­
son for it exists except hostility to the race 
and nationality to which the petitioners 
belong, and which in the eye of the law is 
not justified. The discrimination is, there­
fore, illegal * * *.

In Truax v. Raich, supra, the right of an indi­
vidual to have an employer be free in his selec­
tion of employees, unrestrained by racial limita­
tions imposed by the State, was held to be pro­
tected by the Fourteenth Amendment. Mr. Jus­
tice Hughes’ opinion for the Court in that case 
declared (239 U. S. at 41) that a State’s unques­
tionably broad police power

does not go so far as to make it possible 
for the State to deny to lawful inhabitants,



62

because o f their race or nationality, Is 
ordinary means o f earning a livelihood, It 
requires no argument to show that the 
right to work for a living in the common 
occupations o f the community is of the 
very essence o f the personal freedom an! 
opportunity that it was the purpose of tie 
Amendment to secure. [Citations omit­
ted.] I f  this could be refused solely upon 
the ground of race or nationality, the pro­
hibition of the denial to any person of the 
equal protection o f the laws would be a 
barren form of words.

Similarly, in Yu Cong Eng. v. Trinidad, 271U. S, 
500, a statutory provision which forbade boob 
o f account from being kept in the Chinese lan­
guage, and thus had the effect o f preventing many 
Chinese merchants from remaining in business, 
was regarded as a denial of the equal protection 
and due process safeguards incorporated hi the 
Philippine Autonomy Act (Act of August 29, 
1916, c. 416, sec. 3, 39 Stat. 546).

(^) The R ight to Acquire, Use, and Dispose of Property, 
W ithout Discrimination because o f Race or Color

There is a line o f cases which constitute direct 
precedent for the proposition that the right to 
acquire, use, and dispose of property is a right 
which neither the States nor the Federal Gov­
ernment can abridge or limit on the basis of race 
or color. The first o f these cases is Buchanan v. 
W arley, 245 U. S. 60, decided thirty years ago by



63

a unanimous Court after extensive deliberation.32 
In that case, a municipal ordinance o f the City of 
Louisville, Kentucky, enacted for the avowed 
purpose of preventing ill-feeling and conflict be­
tween the white and colored races, prohibited any 
colored person from moving into and occupying 
as a residence any house in a city block where 
the majority of dwellings were occupied by white- 
persons. The converse was also prohibited, name­
ly, the establishment of a residence by a white 
person in a city block where the majority of 
houses were occupied as residents by Negroes.

Suit was brought by a white property owner 
against a Negro purchaser to compel specific per­
formance of a contract for the sale of property 
located in a block where a majority of the resi­
dences were occupied by white people. The ven­
dee, by way of answer, asserted that he could not 
take occupancy of the property under the local 
ordinance.33 Reversing the judgment of the Court 
of Appeals of Kentucky, this Court held the ordi­
nance invalid as a deprivation o f the owner’s 
property rights without due process o f law.

32 The case was argued A pril 10 and 11,1916; was restored 
to the docket for reargument on A pril 17,1916; was reargued 
April 27, 1917; and was decided November 5, 1917.

33 The contract specifically provided that the purchaser 
was not to be bound unless the property could lawfully be 
occupied by him as a residence. The majority o f residences 
m the particular block were occupied by white persons, and 
the purchaser would have not been bound under the contract 
unless the ordinance was held invalid (245 U. S. 69-70).



64

“ Property” , the Court stated, “ is more than the 
mere thing which a person owns. It is elemen­
tary that it includes the right to acquire, use, and 
dispose o f it. The Constitution protects these 
essential attributes o f property, * * * True 
it is that dominion over property springing from 
ownership is not absolute and unqualified. The 
disposition and use of property may be controlled 
in the exercise o f the police power in the inter­
est o f the public health, convenience, or wel­
fare.”  (245 U. S. at 74.) However, to impose 
such a restraint on alienation and acquisition, 
based solely on the color o f the occupant, was 
held “ not a legitimate exercise of the police 
power of the State, and is in direct violation of 
the fundamental law enacted in the Fourteenth 
Amendment o f the Constitution preventing state 
interference with property rights except by due 
process o f law.”  (Id., at 82.)

In  thus holding that the police power of a 
State—broad as it is in justifying restrictions 
upon property rights (see Euclid v. Ambler 
Realty Co., 272 IT. S. 365, 395)— cannot sustain 
restrictions based solely on color, the Court re­
lied in no small measure on the rights of colored 
purchasers to acquire property, and to use and 
enjoy it, without being discriminated against 
because o f their color. Referring to the provi­
sions of Rev. Stat. § 1978, c. 31, sec. 1, 14 Stat. 
27 (8 IT. S. C. 42), and Rev. Stat. § 1977, c.



65

114, see. 16, 16 Stat. 144 (8 U. S. C. 41), the 
Court stated (pp. 78-79):

Colored persons are citizens o f the United 
States and ha;ve the right to purchase 
property and enjoy and use the same with­
out laws discriminating against them solely 
on account of color. Hall v. DeCuir, 95 U. S. 
485, 508. These enactments did not deal 
with the social rights of men, but with 
those fundamental rights in property 
which it was intended to secure upon the 
same terms to citizens of every race and 
color. Civil Bights Cases, 109 U. S. 3, 
22. The Fourteenth Amendment and these 
statutes enacted in furtherance of its 
purpose operate to qualify and entitle a 
colored man to acquire property without 
state legislation discriminating against him 
solely because o f color.

Some of the arguments which are still made, 
expressly or tacitly, to support the validity of 
racial residential segregations were rejected in 
Buchanan v. Warley. The answers given by the 
Court then are no less valid today. It was argued 
that the ordinance should be upheld because it 
represented an attempt to deal with the serious- 
and difficult problem of race hostility. But, 
answered the Court, the solution of this problem 
“ cannot be promoted by depriving citizens o f 
their constitutional rights and privileges”  (245 
U. S. 80-81). Similarly, in reply to the con­
tention that segregation would prevent race con-



6 6

flicts and promote the public peace, the Court 
said: “ Desirable as this is, and important as is 
the preservation of the public peace, this aim 
cannot be accomplished by laws or ordinances 
which deny rights created or protected by the 
Federal Constitution”  (p. 81). Finally, to the 
oft-repeated assertion that the property of ad­
jacent owners becomes depreciated when colored 
persons move into the area, the Court replied: 
“ But property may be acquired by undesirable 
white neighbors or put to disagreeable though 
lawful uses with like results”  (p. 82).

Although Harmon v. Tyler, 273 U. S. 668,84 and 
City o f Richmond v. Deans, 281 U. S. 704,® were 
per curiam decisions, the factual situations pre­
sented in those cases demonstrate the broad basis 
on which this class o f cases rests. Harmon v. 
Tyler involved a municipal ordinance and a paral­
leling state statute which, broadly summarized, 
forbade a Negro person from establishing a 
residence in a “ white community”  and a white 
person from establishing a residence in a “ Negro 
community”  except by obtaining the written con- 
*sent o f a majority o f the persons of the opposite 
race living in the community. The suit involved 
injunctive relief sought by one inhabitant of a 
“ white community”  against another owner to

34 Reversing 160 La. 943, in which the Supreme Court of 
Louisiana adhered to its previous ruling in Tyler v. Harmon, 
158 La. 439.

35 Affirming 37 F. 2d 712 (C. C. A . 4 ).



67

restrain him from renting a dwelling to Negro 
tenants without obtaining the necessary consents. 
In ruling that the laws did not contravene the 
provisions of the Fourteenth Amendment and that 
the relief could not be denied on that ground, the 
Supreme Court of Louisiana held that the legis­
lation was not discriminatory since it applied 
equal restraints to both races, that the purpose of 
the legislation was to discourage social inter­
course between the races, and that, unlike 
Buchanan v. Warley, there were no restraints on 
the right to sell or buy property, but only on the 
right to occupy it as a dwelling. 'Since the ruling 
in Buchanan v. Warley was clearly opposed to 
each of the grounds relied on by the Louisiana 
court, it is not surprising that this Court reversed 
per curiam on the authority of that case.

City of Richmond v. Deans, supra, involved a 
municipal ordinance which attempted to achieve 
segregation by prohibiting any person from re­
siding in a city block where the majority of 
residences were occupied by those with whom 
such person was forbidden to enter into marriage 
under state law. The ordinance was thus similar 
to the one involved in Buchanan v. Warley. The 
case, however, involved the rights o f a Negro 
purchaser who had entered into a contract to 
purchase a dwelling in a block where he would 
have been prohibited from residing under the 
terms of the ordinance. Upon threats o f the 
ordinance being enforced against him, he filed



6 8

suit to enjoin the city from doing so. The Dis­
trict Court issued the injunction and the Circuit 
Court of Appeals, in affirming, ruled that the 
ordinance, while framed in terms of marriage, 
was actually based on color alone and, as such, 
was unconstitutional under Buchanan v. Warty, 
and Harmon v. Tyler. This Court affirmed per 
curiam on the authority of these latter cases. - 

In  summary, therefore, Buchanan v. Warty 
and the cases following it have established the 
broad principle that an individual is protected by 
the Fifth and Fourteenth Amendments from legis­
lative enactments which limit, solely because of 
race or color, his right to acquire, use, or dispose 
o f property. As to this right, neither the States 
nor the Federal Government can impose or en­
force general legislative restrictions based ex­
clusively on race or color. Segregation of 
residential areas on the basis of the race or color 
o f the occupants involves (1) an arbitrary and 
unreasonable classification which cannot be justi­
fied even under the broad police power, and
(2) a deprivation without due process of law of 
the property right of an owner freely to sell, and 
the correlative right o f a buyer freely to purchase 
and occupy. Persons who are otherwise eligible 
and willing to acquire property cannot be denied 
such right simply because they are of a particular 
race or color. Nor is any such racial or color 
classification any less unconstitutional because it



69

is made to depend upon the consent o f the owners 
of neighboring property.

In Fay v. New York, 332 U. S. 261, this Court, 
in referring to statutes enacted by Congress to 
implement the Fourteenth Amendment, stated 
pp. 282-283: “ For us the majestic generalities 
of the Fourteenth Amendment are thus reduced 
to a concrete statutory command when cases in­
volve race or color which is wanting in every 
other case of alleged discrimination.”  As we 
have shown, the respective rights o f vendor and 
purchaser of property to deal with each other 
freely and without restraint because of each 
other’s race or color are sufficiently clear under 
the Fourteenth Amendment. Buchanan v. W ar- 
ley, supra. Congress, however, has so plainly 
stated the rights which are secured by that 
Amendment as to leave no room for doubt in this 
regard. Section 1978 o f the Revised Statutes 
(8 U. S. C. 42) provides:

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 prop-

M The District o f Columbia, which is subject to the legis­
lative power o f Congress, is undoubtedly embraced in the 
term “every State or Territory.”  Talbott v. Silver Bow  
■County, 139 U. S. 438, 444; G eofroy  v. Riggs, 133 IT. S. 258.



70

Section 1979 of the Revised Statutes (8 U. S. C, 
43) provides:

.Every person who, under color of any 
statute, ordinance, regulation, custom, or 
usage, o f any State or Territory, subjects, 
or causes to be subjected, any citizen of 
the United States or other person within 
the jurisdiction thereof to the deprivation 
o f any rights, privileges, or immunities 
secured by the Constitution and laws, shall 
be liable to the person injured in an action 
at law, suit in equity, or other proper 
proceeding for redress.

Section 1978 o f the Revised Statutes was de­
rived from  Section 1 o f the Civil Rights Act 
o f 1866, 14 Stat. 27.37 That statute, which be­
came law while the Fourteenth Amendment was 
under consideration by Congress, is undoubtedly

37 Section 1 provided :
“  * * * That all persons born in the United States and

not subject to any foreign power, excluding Indians not 
taxed, are hereby declared to be citizens o f the United States; 
and such citizens, o f every race and color, without regard to 
any previous condition o f  slavery or involuntary servitude, 
except as a punishment for crime whereof the party shall 
have been duly convicted, shall have the same right, in every 
State and Territory in the United States, to make and enforce 
contracts, to sue, be parties, and give evidence, to inherit, 
purchase, lease, sell, hold, and convey real and personal 
property, and to full and equal benefit o f all laws and pro­
ceedings for the security o f  person and property, as is enjoyed 
by white citizens, and shall be subject to like punishment, 
pains, and penalties, and to none other, any law, statute, 
ordinance, regulation, or custom, to the contrary notwith­
standing.”



71

a clear expression of rights which, if  not else­
where guaranteed by the Constitution, were in­
tended to be secured by the Fourteenth Amend­
ment itself. See Flack, Adoption of the Four­
teenth Amendment (1908) 19-40. The validity 
of the section, constituting as it does an exercise 
of the authority given to Congress by Section 6 
of the Fourteenth Amendment to enforce its 
provisions by appropriate legislation, has never 
been doubted. Strauder v. W est Virginia, 100 
U. S. 303, 311-312; Virginia v. Fives, 100 U. S. 
313, 317-318; Ex parte Virginia, 100 TJ. S. 339, 
364-365; Civil Rights Cases, 109 U. S. 3, 16-17, 
22; Buchanan v. Warley, 245 TJ. S. 60, 78.

In Virginia v. Rives, supra, speaking of Sec­
tions 1977 38 and 1978 of the Revised Statutes, 
the Court said (p. 318) :

The plain object o f these statutes, as of 
the Constitution which authorized them, 
was to place the colored race, in respect 
of civil rights, upon a level with whites. 
They made the rights and responsibilities, 
civil and criminal, of the two races exactly 
the same.

38 Section 1977 (8 U. S. C. 41) provides:
“All persons within the jurisdiction o f the United States 

shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evidence, 
and to the full and equal benefit o f all laws and proceedings 
for the security of persons and property as is enjoyed by 
white citizens, and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions o f every kind, and 
to no other.”

775894— 48------- 6



72

Those statutes “ partially enumerating what civil 
rights colored men shall enjoy equally with white 
persons, founded as they are upon the amend­
ment, are intended for protection against State 
infringement o f those rights.”  (Ibid.)

Again, in Strauder v. W est Virginia, supra, 
the Court stated that those sections (p. 311)-

partially enumerate the rights and im­
munities intended to be guaranteed by the 
Constitution * * *.

It was further stated (p. 312) :
This act puts in the form of a statute 
what had been substantially ordained by 
the constitutional amendment. It was a 
step towards enforcing the constitutional 
provisions.

When a State, through its judiciary, enforces 
a restrictive covenant against a colored citizen of 
the United States, it thereby denies him the right 
to purchase or lease property solely on racial 
grounds. As regards the particular property in­
volved, it enforces a disability against Negro citi­
zens which does not exist for white citizens. It 
creates differences in rights between citizens on 
the basis o f color where Congress has ordained 
that they shall be “ exactly the same.”

It is clear, therefore, that the right to ac­
quire, use, and dispose o f property is a right 
which the Constitution protects against govern­
mental restrictions based solely on race or color.



73

There can be no doubt that racial restrictive cov­
enants do impinge upon that right. W e submit 
that judicial enforcement o f such covenants inter­
feres also with other constitutional rights, namely,
(1) the right to equality of opportunity, without 
hindrance because o f race or color, in securing 
decent and adequate housing facilities, and (2) the 
right to equal treatment before the law. Bib- 
chanan v. Warley and the cases following it 
have settled that no constitutional justification 
exists for legislative residential segregations based 
solely on race or color. There remains the ques­
tion whether judicial decrees enforcing private 
racial restrictions have any greater constitutional 
justification. This question is discussed infra, 
pp. 77-85.

(3) The Right to Compete on Terms o f Equality, without
Hindrance because o f Race or Color, in Securing Decent
and Adequate Living Accommodations

Truax v. Raich, 239 IT. S. 33, 41, holds that 
the Constitution forbids racial discriminations 
with respect to ‘ ‘ the right to work for a living 
in the common occupations o f the community,”  
because that right “ is of the very essence of the 
personal freedom and opportunity that it was 
the purpose of the [Fourteenth] Amendment to 
secure” . What is involved in the cases now be­
fore the Court is essentially the right to compete 
on terms of equality, without hindrance because 
of race or color, in securing decent and adequate



74

living accommodations. The State can no more 
participate in a denial to its citizens of that right 
than it can, as Truax v. Raich holds it cannot, 
in a denial o f the right of equality of oppor­
tunity in pursuing “ the ordinary means of earn­
ing a livelihood” . Both rights are essential 
attributes o f the “ freedom and opportunity” se­
cured by the Constitution. Neither can be denied 
on grounds o f race or color without doing violence 
to our fundamental law.

W e need not labor the point. “ Housing is a 
necessary o f life. ”  Block v. Hirsh, 256 U. S. 135, 
156. And see Bowles v. Willingham, 321 TJ. S. 
503. The right to work for a living is meaning­
less without the right to live in a habitable place. 
It is not suggested that the Constitution guaran­
tees every man a house of his own choosing, any 
more than it guarantees him a job of his own 
choosing. What it does guarantee is that the 
States and the Federal Government will not exert 
their authority so as to deny him equality of op­
portunity, simply because of his race or color, in 
obtaining a job or a house from an employer or 
property-owner who would otherwise be able and 
willing to give him a job or to sell or rent a house 
to him.

(1) The Right to Equal Treatment before the Law

Hie fundamental principle that all men, regard­
less o f their race or color, stand equal before 
the law is imbedded in the Constitution and laws



75

of the United States. In Truax v. Corrigan, 257 
U. S. 312, 332, this Court said:

“ All men are. equal before the law,”  
“ This is a government o f laws and not of 
men,”  “ No man is above the law,”  are 
all maxims showing the spirit in which 
legislatures, executives and courts are ex­
pected to make, execute, and apply laws.

The doctrine upholding the equality o f all men 
was given expression in the Declaration o f Inde­
pendence: “ We hold these truths to be self- 
evident, that all men are created equal, that they 
are endowed by their Creator with certain un­
alienable. Rights, that among these are Life, 
Liberty, and the pursuit of Happiness.”

This is more than an abstract pledge. It is 
given meaning and effect by the provision of the 
Fourteenth Amendment that no person shall be 
denied the equal protection o f the laws. In Rill 
v. Texas, 316 U. S. 400, 406, Mr. Chief Justice 
Stone’s opinion for the Court stated: “ Equal 
protection of the laws is something more than an 
abstract right. It is a command which the State 
must respect, the benefits of which every person 
may demand.”

In Strauder v. W est Virginia, 100 U. S. 303, 
°07, this Court paraphrased the Fourteenth 
Amendment in these terms:

What is this but declaring that the law in 
the States shall be the same for the black 
as for the white; that all persons, whether 
colored or white, shall stand equal before



76

the laws o f the States, and, in regard to 
the colored race, for whose protection the 
amendment was primarily designed, that 
no discrimination shall be made against 
them by law because o f their color! 
[Italics added.]

Pursuant to its authority under the Fourteenth 
Amendment, Congress in 1870 enacted the fol­
lowing statute (R . S. § 1977, c. 114, sec. 16,16 
Stat. 144) :

All persons within the jurisdiction of the 
United States shall have the same right in 
every State and Territory in the United 
States to make and enforce contracts, to 
sue, be parties, give evidence, and to the 
full and equal benefit of all laws and pro­
ceedings fo r  the security of person and 
property as is enjoyed by white citizens, 
and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exac­
tions o f every kind, and none other 
* * *. [Italics added.]

However vague its boundaries, the right to 
equal treatment before the law certainly re­
quires, as a minimum, that courts shall not estab­
lish a rule of law which, in its very terms, makes 
race or color a controlling factor in its applica­
tion. Snowden v. Hughes, 321 U. S. 1, makes 
it clear that where a statute or rule of law, fair 
on its face, is applied differently to those who 
are entitled to be treated alike, there “ is 110t



77

a denial of equal protection unless there is shown 
to be present in it an element o f intentional 
or purposeful discrimination.”  321 U. S. at 8.

Judicial enforcement o f racial restrictive cove­
nants is quite different. In  the first place, the 
rule of law under which such covenants are en­
forced is on its face unfair and discriminatory. 
If the courts which enforce such covenants were 
merely applying a general rule that all restraints 
on alienation are enforceable, that might be one 
thing. It is quite another when the courts do not 
enforce all restraints on alienation, but do ap­
prove those which are based on race and color. 
See infra, pp. 107, 114. W e urge that, by force 
of the Fifth and Fourteenth Amendments and 
the statutes enacted thereunder, the States and 
the Federal Government cannot establish rules of 
law which in their very terms make race or color 
relevant in their application.

Secondly, even if the rule o f law here involved 
is not discriminatory on its face, there can be no 
doubt, as has already been shown, that it is ap­
plied so as to discriminate against particular 
minority groups. It has been said that these 
covenants are enforced against all persons, re­
gardless of their race or color. But the short 
answer is that, as a practical matter, such cove­
nants are never directed against any but members 
of particular minority groups.



78

(5) Judicially-Enforced Racial Restrictions Have ft
Greater Constitutional Justification Than Legislatkelf
Im-posed Residential Segregations

As has been shown, supra, pp. 25, 40-42, ra­
cial restrictive covenants came to be widely used 
only after this Court had ruled that racial resi­
dential segregation could not be imposed by state 
or municipal legislatures. They seem to have 
been adopted as a substitute for such legislation, 
and have, indeed, well fulfilled that role. Eaeial 
restrictive covenants have become so pervasive in 
this country that the consequences of their en­
forcement are hardly distinguishable from, and 
certainly no less serious than, the legislatively- 
imposed segregations invalidated in Buchanans, 
W arley and the cases following it.

The sociological data already set forth (supra, 
pp. 27-39) show that boundaries beyond which 
Negroes cannot make their homes are no less real 
when imposed by restrictive covenants than when 
imposed by legislation. The result of the con­
stantly increasing use of restrictive covenants has 
been large-scale compulsory segregation of racial 
groups with respect to housing. That segregation 
is not confined to Louisville, Kentucky, as it was 
in Buchanan v. W arley; it has become a national 
problem; the effects o f such covenants are ap­
parent in most o f the major urban communities of 
our country.

Practically and realistically, judicially-enforced 
racial restrictive covenants have a scope and effect 
at least as broad as racially restrictive housing leg'



79

islation. Legally, we submit, they are equally 
invalid. The Court is not here concerned with 
the effect or validity o f isolated racial restrictive 
covenants. It is confronted by the existence of 
such a mass of covenants in different sections of 
the country as to warrant the assertion that pri­
vate owners have, by contract, put into effect 
what amounts to legislation affecting large areas 
of land—legislation which, if  enacted by Con­
gress, by a state legislature, or by a municipal 
council, would be invalid. Judicial enforcement 
of racial restrictive covenants has made this a 
Nation of racial patch quilts, thus presenting 
constitutional issues which must be resolved by 
weighing the interests of more than a single 
vendor or a single vendee. It is the presence 
of a public interest—the interest of millions of 
Negroes, Jews, Mexicans, Indians and others who 
desire to acquire property without restriction 
because of race or creed, as well as the interest of 
the non-minority public in removing and avoiding 
the deleterious social results o f segregation— 
which must invalidate judicial decrees enforcing 
racial restrictive covenants.

As this Court, speaking through Mr. Justice 
Holmes, stated (Bloch v. Hirsh, 256 U. S. 135, 
155):

Plainly circumstances may so change in 
time or so differ in space as to clothe with 
such an interest [i. e., a public interest] 
what at other times or in other places 
would be a matter o f purely private con-



80

cern. * * * [Citations omitted.] They
dispel the notion that what in its im­
mediate aspect may be only a private trans­
action may not he raised by its class or 
character to a public affair.

The same point can perhaps be made by para­
phrasing the “ governing constitutional principle” 
which this Court has distilled from its decisions 
under the Contract Clause: When a widely dif­
fused public interest has become enmeshed in a 
network o f multitudinous private arrangements 
and governmental machinery has been invoked for 
the effectuation o f such arrangements, that public 
interest cannot be submerged by abstracting one 
such arrangement from its context and treating 
it as though it were an isolated private covenant 
immune from the prohibitions of the Fourteenth 
and Fifth  Amendments. C f. East New York Bank 
v. Hahn, 326 U. S. 230, 232.

Marsh v. Alabama, 326 IT. S. 501, illustrates the 
controlling effect o f such a public interest in the 
resolution o f issues as to the validity of govern­
mental action under the Due Process Clauses. In 
that case, the appellant, a Jehovah’s Witness, 
undertook to distribute religious literature on the 
sidewalk o f a town all o f the property in which 
was owned by a single corporation. Although 
warned that the sidewalk was private property 
and that distribution o f her literature was for­
bidden, the appellant refused to desist. She was 
arrested and convicted o f violating a state statute 
making it criminal to enter or remain on the



81

premises of another after having been warned not 
to do so. In this Court, the appellant contended 
that her conviction violated her constitutional 
rights.

In agreeing with the appellant, this Court gave 
short shrift to the State’s contention that the cor­
poration’s right to control activities in the com­
pany town was “ coextensive with the right of a 
homeowner to regulate the conduct of his guests.”  
326 IJ. S. at 506. Cf. Martin v. Struthers, 319 
U. S. 141, 148. It refused, in balancing the prop­
erty rights of a landowner as against the civil 
rights of a religious propagandist, to attach the 
same weight to the right o f a corporation to use 
the state machinery to deny a distributor o f relig­
ious literature access to an area which, in every 
respect but ownership, was indistinguishable from 
any other town or village, as would attach to the 
right of an individual to invoke governmental 
organs in order to keep religious solicitors off his 
parcel of land. I  bid. It did so because there was 
another interest which weighed in the balance— 
the interest of the public, in that ease, those in­
habitants of the company town who, just as resi­
dents of municipalities, had “ an identical interest 
m the functioning of the community in such man­
ner that the channels of communication remain 
free” . 326 U. S. at 507.

It is of crucial importance, therefore, that those
ho enter into racial restrictive covenants and 

who seek to employ the machinery o f government 
hi their enforcement “ are not acting in matters



L

of merely private concern like the directors or 
agents o f business corporations. They are acting 
in matters of high public interest” / 9 in that they 
are attempting to use the power of the State to 
deny to millions o f other persons, solely on racial 
grounds, the right to decent and adequate housing, 
To such an attempt at discrimination, the States 
and the Federal Government cannot proffer the 
aid and support o f their courts.

In Buchanan v. W ar ley, 245 XT. S. 60, the “au­
thority o f the State to pass laws in the exercise 
o f the police power, having for their object the 
promotion o f the public health, safety and wel­
fare”  was invoked. 245 U. S. at 74. It was urged 
that the ordinance should be sustained because it 
would ‘ ‘promote the public peace by preventing 
race conflicts”  {id. at 81), and because “ acquisi­
tions by colored persons depreciate property 
owned in the neighborhood by white persons”, 
Id. at 82. W hile recognizing that the police 
power o f a state is “ very broad”  and that its 
exercise “ is not to be interfered with by the courts 
where it is within the scope of legislative author­
ity and the means adopted reasonably tend to 
accomplish a lawful purpose” , the Court held that 
“ it is equally well established that the police 
power, broad as it is, cannot justify the passage 
o f a law or ordinance which runs counter to the 
limitations o f the Federal Constitution”  on the

82

N ixon  v. Condon, 286 U. S. 73, 88.



83

power of government to deny “  those fundamental 
rights in property which it was intended to secure 
upon the same terms to citizens of every race and 
color” . 245 U. S. at 74, 79.

Much less may these “ fundamental rights”  be 
denied by judicial action at the instance o f those 
who, rather than invoking the broad police power 
of a State, must rely solely on their interest as 
neighbors to justify a discrimination which a 
sovereign State, through its legislature, is without 
power to impose. As has been noted, the legisla­
tive power denied in Buchanan v. W arley encom­
passed the interest of white persons in avoiding 
the depreciation of their property allegedly flow­
ing from the acquisition by colored persons of 
neighboring property. There can be no doubt of 
the insufficiency of that interest alone when it, 
together with the general police powers of the 
state, was held to be inadequate constitutional 
justification for racial segregation.

It has been pointed out that racial restrictive 
covenants came into general use as a substitute 
for invalidated racial segregation legislation. But, 
in some respects, the covenant device has been 
more than a substitute for legislation; it has met 
the requirements of those desiring to exclude 
Negroes and other minorities and it has made it 
possible to do so more certainly and expeditiously, 
thus the evils attendant upon racial segregation 
have been aggravated.



84

B y using the restrictive covenant device, those 
desirous o f imposing racial restrictions can bypass 
the democratic processes o f legislation through 
which the desirability o f such restrictions is 
passed upon by the elected representatives of 
the people. Numerous, though relatively small, 
groups o f property owners can, through the cove­
nant device, deny to large groups of people 
thought to be racially undesirable the right to 
buy, lease, or use property for long periods of 
time, indeed often forever. In so doing, they 
are not required to, nor do they generally, give 
any consideration to the broader social and eco­
nomic consequences of their action. Legislative 
racial segregation can at least be planned so 
that accommodations can be made for changes in 
populations, needs, etc. But racial segregation 
through the covenant device is wholly haphazard, 
It is subjected to none o f the restraining in­
fluences on stark racial prejudice which might 
make for deliberate, considered judgment.

The absence o f such a judgment as a possible 
reasoned basis for the governmental action here 
involved underlines the views this Court has al­
ready announced with respect to the lower degree 
o f deference due to state judicial action as con­
trasted with legislative action. Here, as in 
Bridges v. California, 314 U. S. 252, 261, the 
judgments below “ do not come to us encased m 
the armor wrought by prior legislative delibera­
tion.”  A  legislative “ declaration of the States



85

policy would weigh heavily in any challenge of 
the law as infringing constitutional limitations.”  
Cantwell v. Connecticut, 310 IT. S. 296, 307-308. 
But not so when “ the judgment is based on a 
common law concept of the most general and un­
defined nature.”  310 IT. S. at 308.

(6) The Decrees Below Cannot B e Justified on any Theory 
of “ Waiver” o f Constitutional Bights

It may possibly be contended that, even if  
judicial enforcement of private racial discrimina­
tions violates rights secured by the Constitution 
and laws of the United States, the decrees below 
are nevertheless valid because they merely en­
force agreements of a voluntary nature, and the 
persons against whom the decrees are directed 
cannot be heard to complain because they have 
“ consented”  to such agreements, either actually 
or constructively.

We submit that such a contention would be 
"wholly without merit. Whatever its validity as 
against the white sellers, the argument could 
have no application whatsoever against the col­
ored purchasers. Such persons have obviously 
relinquished none of their constitutional rights 
merely by entering into agreements for the pur­
chase and occupancy of property. These pur­
chasers can hardly be regarded as “ parties”  to 
the restrictive agreements expressly directed 
against them.

That the property which they agreed to pur­
chase was already subject to a restrictive cove-



8 6

n a n t  i s  r e l e v a n t  o n l y  i n  s o  f a r  a s  s u c h  covenant 
l i m i t e d ,  u n d e r  s t a t e  l a w ,  t h e  s c o p e  o f  th e  seller’s 
r i g h t s  o f  a l i e n a t i o n .  B u t  i t  b e g s  th e  question 
t o  c o n c l u d e  t h a t ,  b e c a u s e  t h e  s e l l e r  u n d e r  state 
l a w  c a n n o t  l e g a l l y  s e l l  t o  h i m ,  t h e  c o lo re d  pur­
c h a s e r  i s  t h e r e f o r e  p r e c l u d e d  f r o m  a s s e r t in g  that 
s u c h  s t a t e  l a w  v i o l a t e s  Ms c o n s t i t u t i o n a l  rights.

M o r e o v e r ,  t h e  q u e s t i o n  o f  ‘ ‘ w a i v e r ”  involves 
e s s e n t i a l l y  t h e  s a m e  b a l a n c i n g  o f  p u b l i c  and pri­
v a t e  i n t e r e s t s  a s  t h a t  w h i c h  i s  i n v o lv e d  in the 
b r o a d e r  q u e s t i o n  o f  c o n s t i t u t i o n a l  v a l id it y . See 
supra, p p .  7 9 - 8 3 .  O n  t h e  o n e  h a n d ,  th e  State 
u n d o u b t e d l y  h a s  a n  i n t e r e s t  i n  e n f o r c i n g  private 
c o n t r a c t u a l  a r r a n g e m e n t s .  P e r s o n s  w h o  enter 
i n t o  s u c h  a r r a n g e m e n t s  o r d i n a r i l y  h a v e  a  right 
t o  r e l y  u p o n  t h e  a i d  o f  t h e  l a w  i n  t h e i r  effectua­
t i o n .  B u t ,  o n  t h e  o t h e r  h a n d ,  t h e r e  i s  a  counter­
v a i l i n g  i n t e r e s t  a g a i n s t  t h e  u s e  o f  s u c h  a id  where 
i t  i s  i n v o k e d  t o  e n f o r c e  a  d e n i a l  o f  constitu­
t i o n a l  r i g h t s .  A  w h i t e  o w n e r  o f  c o v e n a n te d  land 
m a y ,  i n  a  s e n s e ,  p e r h a p s  b e  r e g a r d e d  a s  having 
“ w a i v e d ”  h i s  p r o p e r t y  r i g h t  o f  f r e e  alienation 
t o  t h e  e x t e n t  o f  t h e  r e s t r i c t i o n  i m p o s e d  by the 
c o v e n a n t .  B u t  t h e  i n t e r e s t  o f  t h e  S t a t e  in  hold­
i n g  h i m  t o  s u c h  a  “ w a i v e r ”  i s ,  w e  s u b m it ,  clearly 
o u t w e i g h e d  b y  t h e  i n t e r e s t — p r o t e c t e d  b y  th e Con­
s t i t u t i o n  a n d  l a w s  o f  t h e  U n i t e d  S t a t e s — in  en­
a b l i n g  p r o s p e c t i v e  p u r c h a s e r s  t o  c o m p e t e  o n  terms 
o f  e q u a l i t y ,  w i t h o u t  b e i n g  d i s c r i m i n a t e d  against 
b y  g o v e r n m e n t a l  a c t i o n  b a s e d  s o l e l y  o n  race or 
c o l o r .



87

C. The case o f C om gan  vs. Buckley

Corrigan v .  B uckley, 2 7 1  TJ. S .  3 2 3 ,  d o e s  n o t  
fo reclo se  th e  a r g u m e n t  h e r e  p r e s e n t e d .  T o  b e  
sure, th e  f a c t s  i n  t h e  C orrigan  c a s e  a r e  e s s e n t i a l l y  
sim ila r  to  t h o s e  i n  t h e  p r e s e n t  c a s e s .  B u t  a  c a r e ­
fu l e x a m in a t io n  o f  t h e  C o u r t ’ s  r u l i n g  d i s c l o s e s  
that th e  p o i n t s  n o w  b e i n g  r a i s e d  w e r e  n o t  s e t t l e d  
by th a t ca se .

T h e  f a c t s  i n  t h e  Corrigan  c a s e  a r e  s i m p l e .  I n  
1921, t h ir t y  w h i t e  o w n e r s  o f  p r o p e r t y  s i t u a t e d  i n  
the sa m e  b lo c k  i n  W a s h i n g t o n ,  D .  C . ,  i n c l u d i n g  
the p la in t i f f  B u c k l e y  a n d  t h e  d e f e n d a n t  C o r r i g a n ,  
entered  in t o  a n  a g r e e m e n t  t h a t  n o  p a r t  o f  t h e i r  
p r o p e r tie s  w o u l d  e v e r  b e  u s e d  o r  o c c u p i e d  b y ,  o r  
sold o r  le a s e d  o r  g i v e n  t o ,  a n y  N e g r o .  I n  1 9 2 2  
C o r rig a n , n o t w i t h s t a n d i n g  t h i s  r e s t r i c t i v e  c o v e ­
nant, a g r e e d  t o  s e l l  h e r  l o t  t o  t h e  d e f e n d a n t  C u r t i s ,  
a N e g r o . B u c k l e y  t h e r e u p o n  b r o u g h t  s u i t  t o  e n ­
force  th e  r e s t r i c t i v e  c o v e n a n t  b y  e n j o i n i n g  t h e  
d e fe n d a n ts  f r o m  e x e c u t i n g  t h e  c o n t r a c t  o f  s a l e ,  
and b y  e n j o i n i n g  C u r t i s  f r o m  t a k i n g  t i t l e  t o  t h e  
p r o p e r ty , a n d  f r o m  u s i n g  o r  o c c u p y i n g  i t .  T h e  
d e fe n d a n ts  m o v e d  t o  d i s m i s s  t h e  b i l l  o n  t h e  g r o u n d  
that th e  c o v e n a n t  w a s  “ v o i d ”  i n  t h a t  i t  w a s  c o n ­
tra ry  to  th e  C o n s t i t u t i o n  a n d  l a w s  o f  t h e  U n i t e d  
S ta tes, a n d  w a s  a g a i n s t  p u b l i c  p o l i c y .  N o  o t h e r  
issue w a s  p r e s e n t e d  b y  t h e  p l e a d i n g s  o r  t h e  a r g u ­
m ents i n  th e  lo w e r  c o u r t s .

T h e  d e f e n d a n t s ’ m o t i o n s  w e r e  o v e r r u l e d ,  a  f i n a l  
decree o f  i n j u n c t i o n  w a s  g r a n t e d ,  a n d  w a s  a f f i r m e d

775894— 48____7



88

o n  a p p e a l  b y  t h e  C o u r t  o f  A p p e a l s  f o r  th e  District 
o f  C o l u m b i a .  2 9 9  F e d .  8 9 9 .  T h e  d e fe n d a n ts  f a  
p r a y e d  a n  a p p e a l  t o  t h i s  C o u r t  o n  th e  ground 
t h a t  s u c h  a n  a p p e a l  w a s  a u t h o r i z e d  u n d e r  the pro­
v i s i o n s  o f  S e c t i o n  2 5 0  o f  t h e  J u d i c i a l  Code, as it 
t h e n  s t o o d ,  i n  t h a t  t h e  c a s e  w a s  o n e  “ involving 
t h e  c o n s t r u c t i o n  o r  a p p l i c a t i o n  o f  th e  Constitu­
t i o n  o f  t h e  U n i t e d  S t a t e s ”  ( p a r a g r a p h  3 ) ,  and 
“ i n  w h i c h  t h e  c o n s t r u c t i o n  o f ”  c e r t a in  laws of 
t h e  U n i t e d  S t a t e s ,  n a m e l y  S e c t i o n s  19 77 , 1978, 
1 9 7 9  o f  t h e  R e v i s e d  S t a t u t e s ,  w e r e  “ drawn in 
q u e s t i o n ”  b y  t h e  d e f e n d a n t s  ( p a r a g r a p h  6 ) .

T h i s  C o u r t  h e l d  t h a t  t h e  a p p e a l  s h o u ld  be dis­
m i s s e d  f o r  w a n t  o f  j u r i s d i c t i o n .  T h e  C o u rt found 
t h a t ,  u n d e r  t h e  p l e a d i n g s ,  t h e  o n l y  constitutional 
q u e s t i o n  i n v o l v e d  w a s  t h a t  a r i s i n g  f r o m  the al­
l e g a t i o n s  i n  t h e  d e f e n d a n t s ’ m o t i o n s  to  dismiss, 
n a m e l y ,  t h a t  t h e  c o v e n a n t  w h i c h  w a s  th e  basis of 
t h e  s u i t  w a s  “ v o i d ”  i n  t h a t  i t  w a s  c o n t r a r y  to and 
f o r b i d d e n  b y  t h e  F i f t h ,  T h i r t e e n t h ,  a n d  Four­
t e e n t h  A m e n d m e n t s .  T h i s  q u e s t i o n  w a s  found to 
b e  s o  i n s u b s t a n t i a l  a s  n o t  t o  a u t h o r i z e  a n  appeal. 
T h e  C o u r t  r e a f f i r m e d  i t s  e a r l i e r  h o l d i n g s  th a t these 
A m e n d m e n t s  h a v e  r e f e r e n c e  o n l y  t o  governmental 
a c t i o n  a n d  n o t  t o  a n y  a c t i o n  o f  p r i v a t e  individuals, 
Civil R igh ts Cases, 1 0 9  U .  S .  3 ,  1 1 ;  Virginia v, 
R ives,  1 0 0  U .  S .  3 1 3 ,  3 1 8 ;  U nited States v . Earns, 
1 0 6  U .  S .  6 2 9 ,  6 3 9 ;  T alton  v .  M ayes, 1 6 3  U .  S . 376, 
3 8 3 ;  H od ges  v .  U nited  S tates, 2 0 3  U .  S .  1 ,1 6 ,  

S i m i l a r l y ,  t h e  C o u r t  h e l d  t h a t  t h e r e  w a s  no sub­
s t a n t i a l  q u e s t i o n  a s  t o  t h e  “ c o n s t r u c t i o n ”  o f Sec-



8 9

tions 1 9 7 7 ,1 9 7 8  a n d  1 9 7 9  o f  t h e  R e v i s e d  S t a t u t e s .  
These p r o v i s i o n s ,  l i k e  t h e  c o n s t i t u t i o n a l  a m e n d ­
m ents u n d e r  w h o s e  s a n c t i o n  t h e y  w e r e  e n a c t e d ,  
“ do n o t in  a n y  m a n n e r  p r o h i b i t  o r  i n v a l i d a t e  c o n ­
tracts e n te r e d  i n t o  b y  p r i v a t e  i n d i v i d u a l s  i n  r e ­
spect to  th e  c o n t r o l  a n d  d i s p o s i t i o n  o f  t h e i r  o w n  
p r o p e r ty .”  ( 2 7 1  IT . S .  a t  3 3 1 . )  T h e  C o u r t  a l s o  
held th a t  t h e  c o n t e n t i o n s  “ e a r n e s t l y  p r e s s e d  b y  
the d e fe n d a n t s  i n  t h i s  c o u r t  t h a t  t h e  i n d e n t u r e  
is n ot o n ly  v o i d  b e c a u s e  c o n t r a r y  t o  p u b l i c  p o l i c y ,  
but is  a ls o  o f  s u c h  a  d i s c r i m i n a t o r y  c h a r a c t e r  t h a t  
a co u rt o f  e q u i t y  w i l l  n o t  l e n d  i t s  a i d  b y  e n f o r c ­
ing th e  s p e c if ic  p e r f o r m a n c e  o f  t h e  c o v e n a n t ”  
were q u e s t io n s  i n v o l v i n g  c o n s i d e r a t i o n  o f  r u l e s  
not e x p r e s s e d  i n  a n y  c o n s t i t u t i o n a l  o r  s t a t u t o r y  
p ro v is io n , a n d  t h e r e f o r e  c o u l d  n o t  b e  r e v i e w e d  
on a p p e a l u n le s s  j u r i s d i c t i o n  w a s  o t h e r w i s e  a c ­
quired.

T h e  a p p e l la n t s  h a d  a r g u e d  b e f o r e  t h i s  C o u r t  
th at th e  d e c r e e s  o f  t h e  c o u r t s  b e l o w  c o n s t i t u t e d  
a v io la t io n  o f  t h e  F i f t h  a n d  F o u r t e e n t h  A m e n d ­
m ents o f  th e  C o n s t i t u t i o n ,  i n  t h a t  t h e y  i n v o l v e d  
a d e p r iv a t io n  o f  l i b e r t y  a n d  p r o p e r t y  w i t h o u t  d u e  
p rocess o f  la w .  C i t i n g  Buchanan  v .  W a rley ,  2 4 5  

8 .  6 0 , a n d  o t h e r  c a s e s ,  a p p e l l a n t s  h a d  u r g e d  
that, th e  “ d e c r e e s  h a v e  a l l  t h e  f o r c e  o f  a  s t a t u t e , ”  
and th a t s in c e  i t  w o u l d  h a v e  b e e n  b e y o n d  t h e  l e g i s ­
la tive  p o w e r  t o  a u t h o r i z e  e n f o r c e m e n t  o f  s u c h  
co v en a n ts , t h e y  c o u l d  n o t  c o n s t i t u t i o n a l l y  b e  e n -  

o ic e d  t h r o u g h  j u d i c i a l  a c t i o n .  T h i s  c o n t e n t i o n ,  
it m a y  b e  c o n c e d e d ,  i s  s u b s t a n t i a l l y  s i m i l a r  t o



90

t h a t  w h i c h  p e t i t i o n e r s  a r e  h e r e  p r e s s i n g .  But it 
i s  f a r  f r o m  c l e a r  t h a t  t h i s  c o n t e n t i o n  w a s  in any 
w a y  p a s s e d  u p o n  b y  t h i s  C o u r t  i n  th e  Corrigan 
c a s e .  T h e  o n l y  p a r a g r a p h  i n  t h e  C o u r t ’s opinion 
d e a l i n g  w i t h  t h i s  c o n t e n t i o n  ( 2 7 1  U .  S .  a t  331-32) 
r e a d s  a s  f o l l o w s :

A n d ,  w h i l e  i t  w a s  f u r t h e r  u r g e d  in this 
C o u r t  t h a t  t h e  d e c r e e s  o f  t h e  co u r ts  below 
i n  t h e m s e l v e s  d e p r i v e d  t h e  defen d an ts, of 
t h e i r  l i b e r t y  a n d  p r o p e r t y  w ith o u t due 
p r o c e s s  o f  l a w ,  i n  v i o l a t i o n  o f  th e Fifth 
a n d  F o u r t e e n t h  A m e n d m e n t s ,  th is con­
t e n t i o n  l i k e w i s e  c a n n o t  s e r v e  a s  a juris­
d i c t i o n a l  b a s i s  f o r  t h e  a p p e a l .  Assuming 
t h a t  s u c h  a  c o n t e n t i o n ,  i f  o f  a  substantial 
c h a r a c t e r ,  m i g h t  h a v e  c o n s t i t u t e d  ground 
f o r  a n  a p p e a l  u n d e r  p a r a g r a p h  3  o f the 
C o d e  p r o v i s i o n ,  i t  w a s  n o t  r a is e d  by the 
p e t i t i o n  f o r  t h e  a p p e a l  o r  b y  a n y  assign­
m e n t  o f  e r r o r ,  e i t h e r  i n  t h e  C ou rt of 
A p p e a l s  o r  i n  t h i s  C o u r t ;  a n d  i t  likewise 
i s  l a c k i n g  i n  s u b s t a n c e .  T h e  defendants 
w e r e  g i v e n  a  f u l l  h e a r i n g  i n  b o th  courts; 
t h e y  w e r e  n o t  d e n i e d  a n y  c o n s t itu tio n a l or 
s t a t u t o r y  r i g h t ;  a n d  t h e r e  i s  n o  semblance 
o f  g r o u n d  f o r  a n y  c o n t e n t i o n  th at the 
d e c r e e s  w e r e  s o  p l a i n l y  a r b i t r a r y  an d  con­
t r a r y  t o  l a w  a s  t o  b e  a c t s  o f  m e r e  spoliation. 
S e e  Del/mar J ock ey  Club  v .  Missouri, supra, 
3 3 5 .  M e r e  e r r o r  o f  a  c o u r t ,  i f  a n y  there be, 
i n  a  j u d g m e n t  e n t e r e d  a f t e r  a  f u l l  hearing, 
d o e s  n o t  c o n s t i t u t e  a  d e n i a l  o f  d u e  process 
o f  l a w .  Central Land Co. v .  Laidley, 159 
U .  S .  1 0 3 ,  1 1 2 ;  Jones  v .  Buffalo Creek Coal 
Co., 2 4 5  U .  S .  3 2 8 ,  3 2 9 .



91

S e v e r a l o b s e r v a t i o n s  m a y  b e  m a d e  c o n c e r n i n g  
this p a r a g r a p h . F i r s t ,  t h e  a s s e r t i o n  t h a t  t h e  c o n ­
ten tio n  “ l i k e w is e  i s  l a c k i n g  i n  s u b s t a n c e ”  i s  
either d ic t u m  o r ,  a t  m o s t ,  a n  a l t e r n a t i v e  h o l d i n g .  
S e co n d ly , th e  r e a s o n s  w h i c h  t h e  C o u r t  g i v e s  l o r  
fin d in g  th e  c o n t e n t i o n  i n s u b s t a n t i a l  m a k e  i t  
h ig h ly  d o u b t f u l  w h e t h e r  t h e  C o u r t  u n d e r s t o o d  t h e  
a p p e lla n ts ’ c o n t e n t i o n  a n d  w a s  a d d r e s s i n g  i t s e l f  
to th a t  c o n t e n t i o n . T h e  a p p e l l a n t s  h a d  a r g u e d  
th at ju d i c i a l  e n f o r c e m e n t  w a s  c o n s t i t u t i o n a l l y  
eq u iv a le n t t o  a  l e g i s l a t i v e  e n a c t m e n t .  I f  t h e  
C ou rt w is h e d  t o  d i s p o s e  o f  t h a t  c o n t e n t i o n ,  i t  c o u l d  
h a rd ly  h a v e  c h o s e n  w o r d s  l e s s  a p t .  T h e  C o u r t  
r e fe r r e d  m e r e l y  t o  t h e  f a c t  t h a t  t h e  d e f e n d a n t s  
had b e e n  g iv e n  a  f u l l  h e a r i n g ,  t h a t  t h e y  w e r e  n o t  
denied  a n y  c o n s t i t u t i o n a l  o r  s t a t u t o r y  r i g h t ,  a n d  
th at i t  c o u ld  n o t  b e  s a i d  t h a t  t h e  d e c r e e s  w e r e  
“ so p la in ly  a r b i t r a r y  a n d  c o n t r a r y  t o  l a w  a s  t o  
be a cts  o f  m e r e  s p o l i a t i o n . ”  T h e  C o u r t  a l s o  r e ­
fe rre d  to  t h e  p r i n c i p l e ,  n o t  q u e s t i o n e d  b y  t h e  
a p p e lla n ts , t h a t  d u e  p r o c e s s  o f  l a w  i s  n o t  d e n i e d  
m erely  b e c a u s e  a  c o u r t  m a k e s  a n  e r r o r  o f  l a w .  
I f  the C o u r t  h a d  b e e n  o f  t h e  v i e w  t h a t  j u d i c i a l  
e n fo r c e m e n t o f  a  p r i v a t e  c o n t r a c t  w a s  n o t  g o v e r n ­
m en tal a c t io n  w i t h i n  t h e  s c o p e  o f  t h e  C o n s t i t u t i o n ,  
that ju d ic ia l  e n f o r c e m e n t  d i d  n o t  c o n v e r t  t h e  i n ­
d iv id u al a c t io n  o f  t h e  p r i v a t e  c o n t r a c t i n g  p a r t i e s  
into g o v e r n m e n t a l  a c t i o n ,  t h e r e  s u r e l y  w o u l d  h a v e  
been so m e  i n d i c a t i o n  t o  t h a t  e f f e c t  i n  t h e  C o u r t ’ s  
op inion . T h e  c o n c l u s i o n  i s  a l m o s t  i n e s c a p a b l e ,



92

t h e r e f o r e ,  t h a t  t h e  C o u r t  d i d  n o t  d e a l  w ith  or in 
a n y  w a y  p a s s  u p o n  t h e  c o n t e n t i o n  which the 
a p p e l l a n t s  h a d  m a d e  a s  t o  t h e  constitutional 
v a l i d i t y  o f  j u d i c i a l  e n f o r c e m e n t .  W e  submit, 
t h e r e f o r e ,  t h a t  t h e  q u e s t i o n  h a s  n o t  been fore­
c l o s e d  b y  C orrigan  v .  B u ckley .  S u r e l y  th is Court 
w i l l  n o t  r e g a r d  i t s e l f  a s  b o u n d ,  i n  d e c id in g  issues 
o f  s u c h  c o n s t i t u t i o n a l  i m p o r t a n c e  a s  these, by a 
“ p r e c e d e n t ”  s o  c l o u d y  a n d  d u b i o u s .

II. ENFORCEMENT OF RACIAL RESTRICTIVE COVENANTS
IS CONTRARY TO THE PUBLIC POLICY OF THE UNITED
STATES

W h a t e v e r  d o u b t s  m a y  e x i s t  a s  t o  th e  scope of 
t h e  r u l i n g  i n  C orrigan  v .  B uckley , 2 7 1  U .  S. 323, 
t h e r e  i s  n o  d o u b t  t h a t  i t  l e a v e s  w h o l ly  open the 
q u e s t i o n  w h e t h e r  c o n s i d e r a t i o n s  o f  p u b lic  policy 
b a r  t h e  j u d i c i a l  e n f o r c e m e n t  o f  r a c i a l  restrictive 
c o v e n a n t s .40 W e  u r g e  u p o n  t h i s  C o u r t  that the 
e n f o r c e m e n t  o f  s u c h  c o v e n a n t s  i s  inconsistent 
w i t h  t h e  p u b l i c  p o l i c y  o f  t h e  U n i t e d  S tates and 
t h a t  u p o n  t h i s  i n d e p e n d e n t  g r o u n d ,  th e  judgments 
i n  t h e s e  c a s e s  c a n n o t  b e  p e r m i t t e d  t o  s ta n d . Since 
t h e  p u b l i c  p o l i c y  u p o n  w h i c h  w e  r e l y  is  derived 
f r o m  t h e  F e d e r a l  “ C o n s t i t u t i o n  a n d  th e  law s, and 
t h e  c o u r s e  o f  a d m i n i s t r a t i o n  a n d  d e c is io n ”  (k-

40 “ W e cannot determine upon the merits the contentions 
earnestly pressed by the defendants in this court that the 
indenture is not only void because contrary to public policy, 
but is also o f  such a discriminatory character that a court of 
equity will not lend its aid by enforcing the specific perform­
ance o'f the covenant.” 271 U. S. at 332.



93

cense Tax Cases, 5  W a l l .  4 6 2 ,  4 6 9 ) ,  t h a t  p u b l i c  
policy  s h o u ld  1)6 c o n t r o l l i n g  o n  s t a t e  c o u i t s  a s  
well as th o s e  o f  t h e  D i s t r i c t  o f  C o l u m b i a . 41

“ P u b lic  p o l i c y  i s  t o  b e  a s c e r t a i n e d  b y  r e f e r e n c e  
to th e la w s  a n d  l e g a l  p r e c e d e n t s ” . M u sch m y  v .  
United States, 3 2 4  IT. S .  4 9 ,  6 6 .  A m o n g  t h e s e  a r e  
the F i f t h  a n d  F o u r t e e n t h  A m e n d m e n t s ,  t h e  l e g i s ­
lation e n a c te d  b y  C o n g r e s s  t h e r e u n d e r ,  a n d  t h e  
decisions o f  t h is  C o u r t  c o n s t r u i n g  a n d  a p p l y i n g  
such p r o v is io n s .  T h e y  m a y  b e  s u m m a r i z e d  a s  
e sta b lish in g  m o s t  c l e a r l y  t h a t  i t  i s  t h e  p o l i c y  o f  
the U n it e d  S t a t e s  t o  d e n y  t h e  s a n c t i o n  o f  l a w  t o  
racial d i s c r i m i n a t i o n s ,  t o  e n s u r e  e q u a l i t y  u n d e r  
the la w  to  a l l  p e r s o n s ,  i r r e s p e c t i v e  o f  r a c e ,  c r e e d  
or co lor a n d , m o r e  p a r t i c u l a r l y ,  t o  g u a r a n t e e  t o  
N egro es r ig h t s ,  i n c l u d i n g  t h e  r i g h t  t o  u s e ,  a c q u i r e ,  * 176

"See St. Louis Mining Co. v. Montana Mining Co., 171 
U. S. 650,654-655, in which this Court treated as raising a fed­
eral question a contention based upon “ The public policy o f 
the Government.” This Court has recognized the existence 
of “those areas of judicial decision within which the policy o f 
the law is so dominated by the sweep o f federal statutes that 
legal relations which they affect must be deemed governed by 
federal law having its source in those statutes, rather than by 
local law.” Sola Electric Co. v. Jefferson Co., 317 U. S. 173,
176, and cases there cited.

To the extent that an argument based on “ public policy”  
is another way of saying that Congress has done implicitly 
what it might have done explicitly, we recognize the neces­
sity of establishing the power o f Congress in this field. W e 
believe, however, that the Congressional power expressly to 
implement the guaranties contained in the Fourteenth and 
Fifth Amendments by proscribing the enforcement o f  racial 
lestrictive covenants is too clear to require discussion.



a n d  d i s p o s e  o f  p r o p e r t y ,  w h i c h  a r e  i n  every way 
e q u i v a l e n t  t o  s u c h  r i g h t s  w h i c h  a r e  accorded to 
w h i t e  p e r s o n s .

A ,  S ta tu tes.•— I n  a d d i t i o n  t o  t h o s e  provisions of 
t h e  C i v i l  E i g h t  A c t s  h a v i n g  p a r t i c u l a r ly  to do 
w i t h  e q u a l  p r o p e r t y  r i g h t s  ( s e e  supra, p p . 69-71), 
t h e  C i v i l  W a r  m a r k e d  t h e  b e g i n n i n g s  o f  a series 
o f  A c t s  o f  C o n g r e s s  t h r o u g h  w h i c h  r u n s , to this 
d a y ,  a  p e r s i s t e n t  t h r e a d  o f  h o s t i l i t y  to  racial dis­
c r i m i n a t i o n s .  E q u a l i t y  o f  o p p o r t u n i t y  w ith  white 
c i t i z e n s  “ t o  m a k e  a n d  e n f o r c e  c o n t r a c t s ,  to  sue, be 
p a r t i e s ,  g i v e  e v i d e n c e ,  a n d  t o  t h e  f u l l  and equal 
b e n e f i t  o f  a l l  l a w s  a n d  p r o c e e d i n g s  f o r  the secur­
i t y  o f  p e r s o n s  a n d  p r o p e r t y ”  w a s  r e q u ir e d  at an 
e a r l y  d a t e  a f t e r  e m a n c i p a t i o n . 42 T h e  sa m e enact­
m e n t  p r o v i d e d  t h a t  p e r s o n s  o t h e r  t h a n  w hite citi­
z e n s  “ s h a l l  b e  s u b j e c t  t o  l i k e  p u n is h m e n t ,  pains, 
p e n a l t i e s ,  t a x e s ,  l i c e n s e s ,  a n d  e x a c t i o n s  o f  every 
k i n d ,  a n d  t o  n o  o t h e r .  ’ ’ I n  t h e  a d m in is tr a tio n  of 
t h e  h o m e s t e a d  l a w s ,  d i s c r i m i n a t i o n  o n  account of 
r a c e  o r  c o l o r  w a s  f o r b i d d e n , 43 a n d  i n  1870, the 
r i g h t  t o  v o t e  “ w i t h o u t  d i s t i n c t i o n  o f  ra c e , color, 
o r  p r e v i o u s  c o n d i t i o n  o f  s e r v i t u d e ”  w a s  generally 
g u a r a n t e e d . 44 R a c i a l  f a c t o r s  w e r e  m a d e  irrele­
v a n t  i n  d e t e r m i n i n g  u p o n  q u a l i f i c a t i o n s  fo r  jury 
s e r v i c e  b y  t h e  A c t  o f  M a r c h  1 ,  1 8 7 5 .4S A n d  it is

42 R. S. 1977 and 1978, 8 U. S. C. 41 and 42 and E. S. 1078, 
28 U. S. C. 292, prohibiting the exclusion o f any witness in 
the courts o f the United States “ on account of color.1,

43 R. S. 2302,43 U. S. C. 184.
44 R, S. 2004,8 U. S. C. 31.
4518 Stat. 336, Section 4 ,8  U. S. C. 44.



95

o f  p a r t ic u la r  s i g n i f i c a n c e  t h a t  C o n g r e s s  h a s  b e e n  
held to  h a v e  s u b j e c t e d  t o  c r i m i n a l  p e n a l t i e s  p e r ­
sons w h o  c o n s p ir e  t o  d e n y  t o  N e g r o e s  t h e  r i g h t  t o  
lease a n d  c u l t i v a t e  l a n d s .  S e c t i o n  1 9  o f  t h e  C r i m ­
inal C o d e , 1 8  U .  S .  C .  5 1 ,  a s  c o n s t r u e d  i n  United  
States v . M orris, 1 2 5  F e d .  3 2 2  ( B .  D .  A r k . ) .

T h o s e  c h a r g e d  w i t h  t h e  a d m i n i s t r a t i o n  o f  F e d ­
era l p u b lic  w o r k s ,  r e l i e f ,  a n d  e m p l o y m e n t  h a v e  
c o n s is te n tly  b e e n  e n j o i n e d  a g a i n s t  r a c i a l  d i s c r i m ­
in a tio n s ,46 a n d  l e g i s l a t i o n  e n a c t e d  d u r i n g  W o r l d  
W a r  I I  h a s  i n c l u d e d  c o m p a r a b l e  r e s t r a i n t s . 47

B . Executive P ronouncem ents .— T h e  p a r a l l e l  
b etw een  th e  r i g h t  t o  e m p l o y m e n t  a n d  t h e  r i g h t  
to d e ce n t a n d  a d e q u a t e  h o u s i n g  h a s  a l r e a d y  b e e n  
p o in te d  o u t . S e e  supra, p .  7 3 .  I n  t h e  l i g h t  o f  
th is c lo se  r e l a t i o n s h i p ,  t h e  E x e c u t i v e  O r d e r  o f  
P r e s id e n t  F r a n k l i n  D .  R o o s e v e l t ,  e s t a b l i s h i n g  a  
C o m m itte e  o n  F a i r  E m p l o y m e n t  P r a c t i c e ,  h a s  * 56

46 Act of June 28,1941, 55 Stat. 361, 362, 42 U. S. C., Supp. 
V, 1833 (no discrimination in determining need for  public 
works). See also 40 Stat. 1189, 1201. Relief generally: 48 
Stat. 22,23; 50 Stat. 352, 357; 53 Stat. 1147,1148,18 U . S. C. 
61c; 53 Stat. 927,937; 54Stat. 611, 623; 55 Stat. 396,405,406;
56 Stat. 634, 643. Civilian Conservation C orps: 50 Stat. 319, 
320,16 U. S. C. 584g. National Youth Adm inistration: 54 
Stat. 574, 593; 55 Stat. 466, 491; 56 Stat. 562, 575.

Employment: 54 Stat. 1211, 1214, 5 U. S. C. 681 (e) (no 
discrimination in classified civil service); 60 Stat. 999,1030, 
22 U. A  C. A. 807 (Foreign S erv ice ); 40 Stat. 1189, 1201 
(expenditure of funds for  public roads).

Congress: banned discrimination because o f “ race, creed, 
or color ’ in the administration o f  the civilian pilot training 
and the nurses training programs. 53 Stat. 855, 856, 49 
U- b' C‘ 752 5 57 Stat. 153, 50 U . S. C. App. 1451. '



p a r t i c u l a r  s i g n i f i c a n c e  h e r e .  I n  t h a t  order,48 the 
P r e s i d e n t  s a i d :

I  d o  h e r e b y  r e a f f i r m  t h e  p o li c y  of the 
U n i t e d  S t a t e s  t h a t  t h e r e  s h a l l  be no dis­
c r i m i n a t i o n  i n  t h e  e m p l o y m e n t  o f  workers 
i n  d e f e n s e  i n d u s t r i e s  o r  g o v e rn m e n t be­
c a u s e  o f  r a c e ,  c r e e d ,  c o l o r ,  o r  national 
o r i g i n ,  a n d  I  d o  h e r e b y  d e c la r e  that it is 
t h e  d u t y  o f  e m p l o y e r s  a n d  o f  la b o r  organi­
z a t i o n s ,  i n  f u r t h e r a n c e  o f  s a i d  policy  and 
o f  t h i s  o r d e r ,  t o  p r o v i d e  f o r  th e  fu ll and 
e q u i t a b l e  p a r t i c i p a t i o n  o f  a l l  w orkers in 
d e f e n s e  i n d u s t r i e s ,  w i t h o u t  discrimination 
b e c a u s e  o f  r a c e ,  c r e e d ,  c o lo r ,  o r  national 
o r i g i n .

T h i s  G o v e r n m e n t a l  p o l i c y  a g a i n s t  r a c ia l  discrim­
i n a t i o n  i n  e m p l o y m e n t  h a s  b e e n  particularized  
w i t h  r e s p e c t  t o  c i v i l  s e r v i c e 49 a n d  e m p lo y m e n t by 
G o v e r n m e n t  c o n t r a c t o r s  a n d  s u b c o n t r a c to r s .50

I t  i s  n o t  n e c e s s a r y  t o  r e l y  o n  t h e  a n a lo gy  be­
t w e e n  e m p l o y m e n t  a n d  h o u s i n g ,  h o w e v e r ,  in  order 
t o  e s t a b l i s h  a  p u b l i c  p o l i c y  d i r e c t l y  r e le v a n t  here. 
F o r  b o t h  P r e s i d e n t s  R o o s e v e l t  a n d  T r u m a n  have 
s p o k e n  o f  “ t h e  r i g h t  t o  a  d e c e n t  h o m e ”  as part of 
“ a  s e c o n d  B i l l  o f  R i g h t s ” ,51 a n d  “ o f  th e basic

48 Executive Order No. 8802, June 25, 1941, 6 F. R. 3109.
49 Executive Order No. 2000, July 28, 1914; Executive 

Order No. 7915, June 24, 1938 (3 F. E. 1519); Executive 
Order No. 8587, November 7, 1940 (5 F. B. 4445).

50 Executive Order No. 9346, M ay 27, 1943 (8 F. R. 7183).
51 House Doc. No. 377, 78th Cong., 2d sess., p. 7.

96



97

righ ts w h ic h  e v e r y  c i t i z e n  i n  a  t r u l y  d e m o c r a t i c  
so ciety  m u s t  p o s s e s s .

0 .  International A greem en ts .— T h e  C h a r t e r  o f  
the U n i t e d  N a t i o n s  ( 5 9  S t a t .  1 0 3 3 ) ,  a p p r o v e d  a s  
a tr e a ty  b y  th e  S e n a t e  o n  J u l y  2 8 ,  1 9 4 5  ( 5 9  S t a t .  
1 2 1 3 ) ,  p r o v i d e s  i n  i t s  p r e a m b l e ,  a m o n g  o t h e r  
th in gs, t h a t :

W e  t h e  p e o p l e s  o f  t h e  U n i t e d  N a t i o n s ,  
d e t e r m i n e d  *  *  *  t o  r e a f f i r m  f a i t h  i n
f u n d a m e n t a l  h u m a n  r i g h t s ,  i n  t h e  d i g n i t y  
a n d  w o r t h  o f  t h e  h u m a n  p e r s o n ,  i n  t h e  
e q u a l r i g h t s  o f  m e n  a n d  w o m e n  *  *  *
a n d  t o  p r o m o t e  s o c i a l  p r o g r e s s  a n d  b e t t e r  
s t a n d a r d s  o f  l i f e  i n  l a r g e r  f r e e d o m ,  a n d  
f o r  t h e s e  e n d s  t o  p r a c t i c e  t o l e r a n c e  
* *  *  h a v e  r e s o l v e d  t o  c o m b i n e  o u r  e f ­
f o r t s  to  a c c o m p l i s h  t h e s e  a i m s .  ( 5 9  S t a t .  
1 0 3 5 .)

I n  A r t i c l e  5 5  o f  t h e  C h a r t e r ,  t h e  U n i t e d  N a ­
tions a g r e e  t o  p r o m o t e :

u n i v e r s a l  r e s p e c t  f o r ,  a n d  o b s e r v a n c e  o f ,  
h u m a n  r i g h t s  a n d  f u n d a m e n t a l  f r e e d o m s  
f o r  a l l  w i t h o u t  d i s t i n c t i o n  a s  t o  r a c e ,  s e x ,  
la n g u a g e , o r  r e l i g i o n .  ( 5 9  S t a t .  1 0 4 5 - 6 . )  

B y  A r t i c le  5 6 ,
A l l  M e m b e r s  p l e d g e  t h e m s e l v e s  t o  t a k e  
j o i n t  a n d  s e p a r a t e  a c t i o n  i n  c o o p e r a t i o n  
w it h  t h e  O r g a n i z a t i o n  f o r  t h e  a c h i e v e m e n t  
o f  t h e  p u r p o s e s  s e t  f o r t h  i n  A r t i c l e  5 5 .  
( 5 9  S t a t .  1 0 4 6 . )

“ Address of President Truman, June 29, 1947, 38th A n ­
nual Conference o f the National Association for the Advance­
ment of Colored People, 93 Cong. Eec. A-3505.



T h e  U n i t e d  N a t i o n s  G e n e r a l  A s s e m b ly , on 
N o v e m b e r  1 9 ,  1 9 4 6 ,  a d o p t e d  t h e  f o l l o w i n g  resolu­
t i o n :

T h e  G e n e r a l  A s s e m b l y  d e c l a r e s  th a t  it is in 
t h e  h i g h e r  i n t e r e s t s  o f  H u m a n i t y  to put 
a n  i m m e d i a t e  e n d  t o  r e l i g i o u s  a n d  so-called 
r a c i a l  p e r s e c u t i o n s  a n d  d is c r im in a t io n , and 
c a l l s  o n  t h e  G o v e r n m e n t s  a n d  responsible 
a u t h o r i t i e s  t o  c o n f o r m  b o t h  to  the letter 
a n d  t o  t h e  s p i r i t  o f  t h e  C h a r t e r  of the 
U n i t e d '  N a t i o n s ,  a n d  t o  t a k e  th e most 
p r o m p t  a n d  e n e r g e t i c  s t e p s  to  th at end, 
( U n i t e d  N a t i o n s  G e n e r a l  A s s e m b ly  Jour­
n a l ,  1 s t  S e s s . ,  N o .  7 5 ,  S u p p .  A - 6 4 ,  p . 957.)

A t  t h e  I n t e r - A m e r i c a n  C o n f e r e n c e  o n  Problems 
o f  W a r  a n d  P e a c e  h e l d  a t  M e x i c o  C i t y  in  1945, 
a t  w h i c h  t h e  A c t  o f  C h a p u l t e p e c  ( M a r c h  1945) 
w a s  a g r e e d  u p o n ,  t h e  U n i t e d  S t a t e s  Delegation 
s u b m i t t e d  a  d r a f t  r e s o l u t i o n ,  w h i c h  w a s later 
a d o p t e d  b y  t h e  C o n f e r e n c e ,  e n t i t l e d  “ Economic 
C h a r t e r  o f  t h e  A m e r i c a s . ”  T h e  f o l lo w i n g  state­
m e n t  a p p e a r s  i n  t h i s  r e s o l u t i o n  ( N o .  5 1 ) :

T h e  f u n d a m e n t a l  e c o n o m i c  a s p ira tio n  of 
t h e  p e o p l e s  o f  t h e  A m e r i c a s ,  i n  common 
w i t h  p e o p l e s  e v e r y w h e r e ,  i s  t o  b e  able to 
e x e r c i s e  e f f e c t i v e l y  t h e i r  n a t u r a l  right to 
l i v e  d e c e n t l y  *  *  *  ( D e p t ,  o f  State
B u l l e t i n s ,  M a r c h  4 ,  M a r c h  1 8 ,  1945 , pp. 
3 4 7 ,  4 5 1 ;  R e p o r t  o f  t h e  D e l e g a t i o n  o f the 
U .  S .  A .  t o  t h e  I n t e r - A m e r i c a n  Conference 
o n  P r o b l e m s  o f  W a r  a n d  P e a c e ,  Mexico 
C i t y ,  F e b r u a r y  2 1 - M a r c h  8 ,  1 9 4 5 ,  at pp- 
2 4 ,  1 2 0 . )

98



99

A n o th e r  r e s o l u t i o n  a d o p t e d  b y  t h e  C o n f e r ­
ence ( N o .  4 1 )  p r o v i d e s :

W h e r e a s :  W o r l d  p e a c e  c a n n o t  b e  c o n s o l i ­
d a te d  u n t i l  m e n  a r e  a b l e  t o  e x e r c i s e  t h e i r  
b a s ic  r i g h t s  w i t h o u t  d i s t i n c t i o n  a s  t o  r a c e  
o r  r e l i g i o n ,  T h e  I n t e r - A m e r i c a n  C o n f e r ­
e n c e  o n  P r o b l e m s  o f  W a r  a n d  P e a c e  
r e s o l v e s :

1 . T o  r e a f f i r m  t h e  p r i n c i p l e ,  r e c o g n i z e d  
b y  a l l  t h e  A m e r i c a n  S t a t e s ,  o f  e q u a l i t y  o f  
r ig h t s  a n d  o p p o r t u n i t i e s  f o r  a l l  m e n ,  r e ­
g a r d le s s  o f  r a c e  o r  r e l i g i o n .

2 . T o  r e c o m m e n d  t h a t  t h e  G o v e r n m e n t s  
o f  th e  A m e r i c a n  R e p u b l i c s ,  w i t h o u t  j e o p ­
a r d i z i n g  f r e e d o m  o f  e x p r e s s i o n ,  e i t h e r  o r a l  
o r  w r i t t e n ,  m a k e  e v e r y  e f f o r t  t o  p r e v e n t  i n  
th e ir  r e s p e c t i v e  c o u n t r i e s  a l l  a c t s  w h i c h  
m a y  p r o v o k e  d i s c r i m i n a t i o n  a m o n g  i n d i v i d ­
u a ls  b e c a u s e  o f  r a c e  o r  r e l i g i o n .  ( R e p o r t  
o f  th e  D e l e g a t i o n  o f  t h e  TJ. S .  A . ,  supra, a t  
p . 1 0 9 . )

A t  th e  c o n c lu s i o n  o f  t h i s  C o n f e r e n c e ,  t h e  S e c ­
reta ry  o f  S t a t e  i s s u e d  a  s t a t e m e n t  i n  w h i c h  h e  
sa id :

i n  t h e  D e c l a r a t i o n  o f  M e x i c o  a n d  
h i o t h e r  r e s o l u t i o n s ,  w e  h a v e  r e d e d i c a t e d  
o u r s e lv e s  a t  t h i s  C o n f e r e n c e  t o  A m e r i c a n  
p r in c i p le s  o f  h u m a n i t y  a n d  t o  r a i s i n g  t h e  
s t a n d a r d s  o f  l i v i n g  o f  o u r  p e o p l e s ,  s o  t h a t  
a ll m e n  a n d  w o m e n  i n  t h e s e  r e p u b l i c s  m a y  
1Ve d e c e n t ly  i n  p e a c e ,  i n  l i b e r t y ,  a n d  i n  

s e c u r i t y . T h a t  i s  t h e  u l t i m a t e  o b j e c t i v e  o f  
e p r o g r a m  f o r  s o c i a l  a n d  e c o n o m i c  c o -



10 0

o p e r a t i o n  w h i c h  h a s  b e e n  a g r e e d  upon at 
M e x i c o  C i t y .
( D e p t ,  o f  S t a t e  B u l l e t i n ,  M a r c h  11, 1945 
p .  3 9 9 . )

A  p a r t i c u l a r l y  p e r t i n e n t  s t a t e m e n t ,  also in 
t h e  f o r m  o f  a  R e s o l u t i o n ,  w a s  m a d e  at and 
a d o p t e d  b y  T h e  E i g h t h  I n t e r n a t i o n a l  Conference 
o f  A m e r i c a n  S t a t e s  a t  L i m a ,  P e r u ,  i n  1 9 3 8 . This 
R e s o l u t i o n ,  a p p r o v e d  b y  t h e  C o n f e r e n c e  on De­
c e m b e r  2 3 ,  1 9 3 8 ,  r e a d s :

T h e  R e p u b l i c s  r e p r e s e n t e d  a t  th e  Eighth 
I n t e r n a t i o n a l  C o n f e r e n c e  o f  American 
S t a t e s  d e c l a r e :

1 .  T h a t ,  i n  a c c o r d a n c e  w i t h  th e  funda­
m e n t a l  p r i n c i p l e  o f  e q u a l i t y  b e f o r e  the Law, 
a n y  p e r s e c u t i o n  o n  a c c o u n t  o f  racial or 
r e l i g i o u s  m o t i v e s  w h i c h  m a k e s  i t  impossible 
f o r  a  g r o u p  o f  h u m a n  b e i n g s  to  liv e  decent­
l y ,  i s  c o n t r a r y  t o  t h e  p o l i t i c a l  a n d  jurid­
i c a l  s y s t e m s  o f  A m e r i c a .

2 .  T h a t  t h e  d e m o c r a t i c  c o n c e p t io n  of the 
S t a t e  g u a r a n t e e s  t o  a l l  i n d i v i d u a l s  the con­
d i t i o n s  e s s e n t i a l  f o r  c a r r y i n g  o n  th e ir  legit­
i m a t e  a c t i v i t i e s  w i t h  s e l f - r e s p e c t .

3 .  T h a t  t h e y  w i l l  a l w a y s  a p p ly  these 
p r i n c i p l e s  o f  h u m a n  s o l i d a r i t y .  (Docu­
m e n t s  o n  A m e r i c a n  F o r e i g n  R e la t io n s , Vol. 
I ,  1 9 3 8 - 1 9 3 9 ,  W o r l d  P e a c e  Foundation, 
p u b l i s h e r ,  a t  p .  4 9 . )

D .  Conclusion .— I n  r e f u s i n g  t o  e n fo r c e  a con­
t r a c t  o n  g r o u n d s  o f  p u b l i c  p o l i c y ,  t h is  C ourt, ni 
a n  o p i n i o n  b y  M r .  J u s t i c e  H o l m e s ,  s a i d :  “ T o  com-



101

pel th e s p e c ific  p e r f o r m a n c e  o f  c o n t r a c t s  s t i l l  i s  
the e x c e p tio n , n o t  t h e  r u l e ,  a n d  c o u r t s  w o u l d  b e  
slow t o ,c o m p e l  i t  i n  c a s e s  w h e r e  i t  a p p e a r s  t h a t  
p a ra m o u n t i n t e r e s t s  w i l l  o r  e v e n  m a y  b e  i n t e r ­
fered  w ith  b y  t h e i r  a c t i o n .  *  *  *  i f  i t  a p p e a r s
that a n  i n j u n c t i o n  w o u l d  b e  a g a i n s t  p u b l i c  p o l i c y ,  
the c o u r t  p r o p e r l y  m a y  r e f u s e  t o  b e  m a d e  a n  i n ­
stru m en t f o r  s u c h  a  r e s u l t ” . B ea sley  v .  T exas & 
Pacific Railway Go., 1 9 1  IT . S .  4 9 2 ,  4 9 7 ,  4 9 8 .  T h e  
le g isla tiv e , e x e c u t i v e ,  a n d  i n t e r n a t i o n a l  p r o ­
n o u n ce m e n ts  s e t  o u t  a b o v e  r e f l e c t  a  p u b l i c  p o l i c y  
w h olly  i n c o n s i s t e n t  w i t h  t h e  e n f o r c e m e n t  o f  r a c i a l  
restrictiv e  c o v e n a n t s .  T h e  p u b l i c  i n t e r e s t  i n  
racial s e g r e g a t i o n  i s  a t  l e a s t  a s  g r e a t  a s  t h e  p u b l i c  
interest i n  w h e t h e r  a  r a i l r o a d  s t a t i o n  s h o u l d  b e  
built in  a  c e r t a in  p l a c e ,  t h e  q u e s t i o n  i n v o l v e d  i n  
the Beasley c a s e . T h e r e ,  a s  h e r e ,  a n  a t t e m p t  t o  
lim it th e  u s e  t o  w h i c h  l a n d  c o u l d  b e  p u t  b y  m e a n s  
o f a r e s t r ic t iv e  c o v e n a n t  w a s  i n v o l v e d .  A n d  t h e  
C ourt th e r e , a s  w e  t h i n k  i t  s h o u l d  h e r e ,  r e f u s e d  
the i n ju n c t io n  s o u g h t ,  n o t i n g  s o m e  r e l u c t a n c e  i n  
any e v e n t s p e c i f i c a l ly  t o  e n f o r c e  s u c h  r e s t r a i n t s ,  
but r e s t in g  o n  t h e  p a r a m o u n t  i n t e r e s t s  o f  t h e  
public a s  a  c o n t r o l l i n g  r e a s o n  f o r  d e n y i n g  e q u i t a ­
ble r e lie f .

A  p u b lic  p o l i c y  a g a i n s t  e n f o r c e m e n t  o f  r a c i a l  
restrictiv e  c o v e n a n t s  i s  t h e  g r o u n d  u p o n  w h i c h  
the H i g h  C o u r t  o f  O n t a r i o  h a s  d e n i e d  e q u i t a b l e  
relief in  a  r e c e n t  d e c i s i o n .  R e  D rum m ond W ren ,



1 0 2

[ 1 9 4 5 ]  4  D .  L .  R .  6 7 4 .  A f t e r  r e f e r r i n g  to  similar 
p r i n c i p l e s  o f  p o l i t i c a l  c o n d u c t ,  t h e  cou rt said 
( p .  6 7 8 ) :

t h e  c o n s e q u e n c e s  o f  j u d i c i a l  approbation 
o f  s u c h  a  c o v e n a n t  a r e  p o r t e n t o u s .  I f  sale 
o f  a  p i e c e  o f  l a n d  c a n  b e  p r o h ib ite d  to 
J e w s ,  i t  c a n  e q u a l l y  b e  p r o h i b i t e d  to Prot­
e s t a n t s ,  C a t h o l i c s  o r  o t h e r  g r o u p s  or de­
n o m i n a t i o n s .  I f  t h e  s a l e  o f  o n e  piece of 
l a n d  c a n  b e  s o  p r o h i b i t e d ,  t h e  s a le  o f  other 
p i e c e s  o f  l a n d  c a n  l i k e w i s e  b e  prohibited, 
I n  m y  o p i n i o n ,  n o t h i n g  c o u l d  b e  m o r e  calcu­
l a t e d  t o  c r e a t e  o r  d e e p e n  d i v is i o n s  between 
e x i s t i n g  r e l i g i o u s  a n d  e t h n i c  g r o u p s  in this 
P r o v i n c e ,  o r  i n  t h i s  c o u n t r y ,  t h a n  the sanc­
t i o n  o f  a  m e t h o d  o f  l a n d  t r a n s f e r  which 
w o u l d  p e r m i t  t h e  s e g r e g a t i o n  a n d  confine­
m e n t  o f  p a r t i c u l a r  g r o u p s  t o  particular 
b u s i n e s s  o r  r e s i d e n t i a l  a r e a s ,  o r  conversely, 
w o u l d  e x c l u d e  p a r t i c u l a r  g r o u p s  fr o m  par­
t i c u l a r  b u s i n e s s  o r  r e s i d e n t i a l  a re a s .

T h e  c o u r t  t h e n  w e n t  o n  t o  n o t e  “ t h e  unlikelihood  
o f  s u c h  a  p o l i c y  a s  a  l e g i s l a t i v e  m e a s u r e ” . I n  this 
c o u n t r y ,  w e  n e e d  n o t  s p e c u l a t e  a b o u t  likelihoods; 
s u c h  a  l e g i s l a t i v e  m e a s u r e  w o u l d  b e  unconstitu­
t i o n a l .  F o r  t h a t  r e a s o n ,  w e  s u b m i t  t h a t  even if 
t h e  d e c r e e s  b e l o w  a r e  n o t  s t r i c k e n  o n  sp e cific  con­
s t i t u t i o n a l  g r o u n d s ,  t h e y  m a y  p r o p e r l y  be set 
a s i d e  a s  b e i n g  i n c o n s i s t e n t  w i t h  t h e  p u b lic  policy 
o f  t h e  U n i t e d  S t a t e s .



103

III. e n f o r c e m e n t  o p  r a c i a l  r e s t r ic t iv e  c o v e n a n t s
CONTRAVENES SETTLED PRINCIPLES GOVERNING
VALIDITY OF RESTRAINTS ON ALIENATION AND IS
INEQUITABLE

A . Racial covenants constitu te invalid restraints  
on alienation

I n  N o s .  2 9 0  a n d  2 9 1 ,  t h e  C o u r t  o f  A p p e a l s  
fo r  th e  D i s t r i c t  o f  C o l u m b i a  h e l d  t h a t  r a c i a l l y  
re s tr ic tiv e  c o v e n a n t s  d o  n o t  c o n s t i t u t e  i l l e g a l  
r e s tra in ts  o n  a l i e n a t i o n  i n  t h e  D i s t r i c t  o f  C o ­
lu m b ia . W e  c o n t e n d ,  o n  t h e  c o n t r a r y ,  t h a t  t h e  
co m m o n  la w  i n v a l i d a t e s  t h e  e f f o r t  t o  e x c l u d e ,  
th ro u g h  r e s t r a i n t s  o n  a l i e n a t i o n  o f  r e a l  p r o p e r t y ,  
the m e m b e r s  o f  g r o u p s  b a s e d  o n  r a c e  o r  c o l o r .

1. The local decisions .— I t  w a s  n o t  u n t i l  
Hundley v . Gorewitz, 1 3 2  P .  2 d  2 3 ,  2 4 ,  d e c i d e d  
in  D e c e m b e r  1 9 4 2 ,  t h a t  t h e  C o u r t  o f  A p p e a l s  o f  
the D i s t r ic t  o f  C o l u m b i a  f o r  t h e  f i r s t  t i m e  n o t e d  
the a r g u m e n t  t h a t  “ t h e  c o v e n a n t  c o n s t i t u t e s  a n  
u n d u e a n d  u n l a w f u l  r e s t r a i n t  o n  a l i e n a t i o n . ”  
T h e  is s u e  w a s  n o t  d i s c u s s e d  a t  t h a t  t i m e ,  t h e  
court c o n t e n t i n g  i t s e l f  w i t h  t h e  s t a t e m e n t  t h a t  
“ in  v ie w  o f  t h e  c o n s i s t e n t  a d j u d i c a t i o n s  i n  s i m i l a r  
cases, i t  m u s t  n o w  b e  c o n c e d e d  t h a t  t h e  s e t t l e d  
la w  in  t h is  j u r i s d i c t i o n  i s  t h a t  s u c h  c o v e n a n t s  a s  
th is a re  v a l i d  a n d  e n f o r c e a b l e  i n  e q u i t y  b y  w a y  
o f  i n j u n c t i o n ”  ( 1 3 2  P .  2 d ,  a t  2 4 ) .  T h e  e a r l i e r  
D is tr ic t  c o v e n a n t  c a s e s ,  w h i c h  t h e  c o u r t  c i t e s  a s

775894—48----- 8



c o n c l u s i v e ,  h a d  n o t ,  h o w e v e r ,  p a s s e d  upon the 
a l i e n a t i o n  i s s u e .  T h e  m a t t e r  w a s  f i r s t  canvassed 

o n  i t s  m e r i t s  i n  M ays  v .  B urgess,  1 4 7  P .  2d 869, 
8 7 1 - 8 7 2 ,  d e c i d e d  i n  J a n u a r y ,  1 9 4 5 ,  i n  which the 
m a j o r i t y  o f  t h e  c o u r t  h e l d  a  r a c i a l l y  restrictive 
c o v e n a n t ,  l i m i t e d  i n  t i m e ,  n o t  t o  b e  invalid , be­
c a u s e  i t  w a s  n o t  a  t o t a l  r e s t r a i n t . 53 I n  th e  instant 
c a s e s ,  t h e  c o u r t  b e l o w  r e s t s  o n  t h e  opinion in 
t h e  M ays  c a s e ,  a n d  e x t e n d s  i t s  h o l d i n g  to a per­
p e t u a l  r e s t r i c t i o n .  I t  i s  c l e a r  f r o m  th is  history 
t h a t  t h e  D i s t r i c t ’ s  v i e w  o f  t h e  e f f e c t  o f  the com­
m o n  l a w  r u l e s  a g a i n s t  r e s t r a i n t s  u p o n  racial 
a g r e e m e n t s ,  f a r  f r o m  b e i n g  l o n g  esta b lish ed  or 
d e e p l y  r o o t e d ,  i s  h a r d l y  s o w n .

2 .  Com m on law rules against restraint on alien­
ation.— a .  P o s t - m e d i e v a l  c o m m o n  l a w  developed 
a  g e n e r a l  r u l e  a g a i n s t  r e s t r a i n t s  o n  th e  alienation 
o f  p r o p e r t y  o w n e d  i n  f e e  w h i c h  h a s  b ecom e part 
o f  t h e  u n w r i t t e n  l a w  o f  e v e r y  A n g lo -A m e r ic a n  
j u r i s d i c t i o n .  A s  t h e  R e s t a t e m e n t  o f  Property 
p u t s  i t  ( v o l .  4 ,  p p .  2 3 7 9 - 2 3 8 0 )  : “ T h e  underlying 
p r i n c i p l e  w h i c h  o p e r a t e s  t h r o u g h o u t  th e  field of 
p r o p e r t y  l a w  i s  t h a t  f r e e d o m  t o  a l i e n a t e  property 
i n t e r e s t s  w h i c h  o n e  m a y  o w n  i s  e s s e n t ia l  to tire

53 Justice Miller, concurring, felt that this Court and the 
Court o f  Appeals had previously “ established the law for 
the District o f Columbia as it is set out in the majority 
opinion and we are bound to follow  it,” but he pointedly re­
ferred to this Court as “ the highest Court of the District of 
Columbia,”  with power to reinterpret the applicable law. 
147 F. 2d, at 873.



105

w e lfa re  o f  s o c i e t y .  T h e  b a s i s  f o r  t h e  a s s u m p t i o n  
that s o c ia l w e l f a r e  r e q u i r e s  f r e e d o m  o f  a l i e n a t i o n  
* * *' i s  *  *  *  f o u n d  t o  r e s t  i n  p a r t  u p o n  
the n e c e s s ity  o f  m a i n t a i n i n g  a  s o c i e t y  c o n t r o l l e d  
p r im a r ily  b y  i t s  l i v i n g  m e m b e r s ,  i n  p a r t  u p o n  
the s o c ia l d e s i r a b i l i t y  o f  f a c i l i t a t i n g  t h e  u t i l i z a ­
tion o f  w e a lt h ,  a n d  i n  p a r t  u p o n  t h e  s o c i a l  d e ­
s ir a b ility  o f  k e e p i n g  p r o p e r t y  r e s p o n s i v e  t o  t h e  
cu rren t e x i g e n c ie s  o f  i t s  c u r r e n t  b e n e f i c i a l  o w n e r s .  
R e s tr a in ts  o n  a l i e n a t i o n  a r e  f r o m  t h e i r  v e r y  
natu re i n c o n s i s t e n t  w i t h  t h e  p o l i c y  o f  f r e e d o m  o f  
a lie n a tio n . T h u s ,  t o  u p h o l d  t h e m ,  j u s t i f i c a t i o n  
m u st b e  f o u n d  i n  t h e  o b j e c t i v e  t h a t  i s  t h e r e b y  
sou gh t to  b e  a c c o m p l i s h e d  o r  o n  t h e  g r o u n d  t h a t  
the in t e r fe r e n c e  w i t h  a l i e n a t i o n  i n  t h e  p a r t i c u l a r  
case is  so  n e g l i g i b l e  t h a t  t h e  m a j o r  p o l i c i e s  f u r ­
thered  b y  f r e e d o m  o f  a l i e n a t i o n  a r e  n o t  m a ­
te r ia lly  h a m p e r e d .  ’ ’ 3i

I t  is  f a i r  t o  s a y  t h a t  i n  t h e  l a t t e r  p a r t  o f  t h e  
last c e n tu r y , a n d  t h e  f i r s t  t w o  d e c a d e s  o f  t h i s ,  t h e  
u n fo ld in g  o f  t h i s  p o l i c y  o f  f r e e  a l i e n a b i l i t y  t e n d e d  
to w a rd  th e  i n v a l i d a t i o n  o f  s u b s t a n t i a l  r e s t r a i n t s  
on c o n v e y a n c e s  o f  r e a l  p r o p e r t y .  A  f e w  e a r l y

* Comment (a) to Section 406 states (p. 2394) :
This policy is particularly applicable when the restraint 

is imposed on what otherwise would be an indefeasible legal 
possessory estate in fee simple because the curtailment o f the 
power of alienation o f such estates, totally or partially, is 
1 le N a tion  where the dangers o f restraints on alienation 
were first encountered.”



B r i t i s h  c a s e s ,55 a n d  s o m e  i s o l a t e d  s t a t e  decisions 
i n  t h i s  c o u n t r y 56 l o o k e d  t h e  o t h e r  w a y ,  but they 
f e l t  t h e  g r e a t  w e i g h t  o f  j u d i c i a l  a n d  professional 
d i s a p p r o v a l .  T h e  m o d e r n  c a s e s  a n d  th e  views of 
t h e  r e c o g n i z e d  a u t h o r i t i e s  f o r m u l a t e d  th e  doctrine 
o f  f r e e d o m  s o  b r o a d l y  t h a t  o n e  w o u l d  have been 
j u s t i f i e d  i n  f o r e c a s t i n g ,  i n  1 9 1 5 ,  t h a t  conveyors’ 
a t t e m p t s  t o  f o r b i d  s u b s e q u e n t  t r a n s f e r  to any 
n u m e r i c a l l y  s i g n i f i c a n t  g r o u p  w o u l d  he invali­
d a t e d — i f  t h e  a n n o u n c e d  p o l i c i e s  s u p p o r t in g  the 
r u l e  a g a i n s t  r e s t r a i n t s  w e r e  t o  c o n t r o l  without 
d i l u t i o n  f r o m  d i f f e r e n t  s t r e a m s  o f  s o c i a l  or politi­
c a l  p o l i c y .  I f ,  f o r  i n s t a n c e ,  a  c o n v e y o r  had at­
t e m p t e d  t o  p r o h i b i t  f u t u r e  s a l e  o f  h i s  la n d  to any 
N e w  E n g l a n d e r ,  o r  c o l l e g e  g r a d u a t e ,  he would 
p r o p e r l y  h a v e  b e e n  w a r n e d  t h a t  th e  restraint 
w o u l d  p r o b a b l y  b e  i n v a l i d a t e d  b e c a u s e  the ex­
c l u d e d  c l a s s  w a s  t o o  l a r g e .  C f . 2  S i m e s ,  The Law

55 D oe d. Gill v. Pearson, 6 East 173 (K. B. 1805), 
criticized in A ttw ater  v. A ttw ater , 18 Beav. 330 (Bolls Ct. 
1853); Billings v. Welch, 6 Ir. E. C. L. 88 (1871); Mardle- 
baum v. M cDonell, 29 Mich. 78, 96-97 (a leading American 
case) ; Gray, Restraints Upon the Alienation of Property 
(2d ed. 1895), secs. 41-43; Sweet, Restraints On AUenatm 
(1917) 33 L. Q. Eev. 236, 342-348; R e MacLeay, L. B. 20 
Eq. 186 (1875), criticized in R eR osh er ,2 6 Ch. D. 801 (1884); 
Mcmierre v. W elling , 32 E. I . 104, 117, 123, 125-129, 142 
(another leading ca se ); Gray, Secs. 41-43, and Sweet 
Mahony v. Tynte , 1 Ir. Ch. E. 577 (1851) (exclusion, in 
Ireland, o f “ Papists,” the court refusing to inquire what 
religion predominated in the community).

66 See Gray, supra, secs. 52-54; 2 Simes, The L m  of Future 
Interests, sec. 458.



107

of Future Interests, s e c s .  4 5 0 ,  4 5 6 - 4 6 0 ;  S w e e t ,  
Restraints on A lienation  ( 1 9 1 7 ) ,  3 3  L a w .  Q u a r .  
R ev. 2 3 6 , 2 4 3 ,  3 4 2 - 3 4 8 ;  W a r r e n ,  The P rogress  o f  
the Law, 1 9 1 9 -19 20 : E states and F u tu re  In terests  
(1 9 2 1 ) ,  3 4  H a r v .  L .  R e v .  6 3 9 ,  6 5 1 - 6 5 3 ;  G r a y ,  R e­
straints on the A lienation  o f  P r o p e r ty  ( 2 d  e d .  
1 8 9 5 ) , se c s . 3 1 - 4 4 ,  2 7 9 ;  S c h n e b l y ,  R estra in ts U pon  
the Alienation o f Legal In terests  ( 1 9 3 5 ) ,  4 4  Y a l e  
L . J . 9 6 1 , 9 7 2 , 9 8 9 , 1 1 8 6 - 1 1 9 3 . 5r

b. I t  i s  d o u b ly  s i g n i f i c a n t  t h a t  t h e  o n l y  c a s e s  i n  
the U n i t e d  S t a t e s  u p h o l d i n g  t h e  e x c l u s i o n  o f  a  
social g r o u p  o f  c o n s i d e r a b l e  s i z e  a r e  t h e  r a c i a l  
coven an t c a s e s , a n d ,  t h a t ,  e x c e p t  f o r  a  s i n g l e  c a s e  
fro m  a  n o n - c o m m o n  l a w  j u r i s d i c t i o n  ( Queens- 
lorough Land Co. v .  Cazeaux, 1 3 6  L a .  7 2 4  ( 1 9 1 5 ) ) ,  
all th ese  c a s e s  w e r e  d e c i d e d  a f t e r  t h i s  C o u r t  h a d  
struck  d o w n  l e g i s l a t i v e  h o u s i n g  s e g r e g a t i o n  i n

Simes states: “ In the United States the courts have been 
slow to approve o f conditions restraining alienation as to a 
class.” 2 op. tit., p. 300. W arren’s comment in 1921 on ex­
clusion of large classes or groups w as: “ H appy is the jurisdic­
tion whose court, uncontrolled by prior decisions, or under 
the protection of a code provision, may declare all such 
restraints on alienation invalid.” 34 Harv. L. Rev. at 653; 
Chafee, Equitable Servitudes in Chattels (1928), 41 Harv. 
L. Rev. 945, 984, calls such racial restrictions “ a clear case 
of restraint of a lie n a tio n G ra y , in 1895, cautiously wrote 
that a condition or conditional limitation on alienation to 
certain specified persons can probably be attached to a fee 
simple or to an absolute interest in personalty; but how far 
a condition or conditional limitation on alienation except to 
certain specified persons can be so attached is doubtful.” 
bray, supra, sec. 279.



108

B uchanan  v .  W a rley ,  2 4 5  TJ. S .  6 0 ,  i n  1917“  
c o n s i d e r a t i o n s  w h i c h  a p p e a r  t o  h a v e  m oved  these 
c o u r t s  m a y  b e  g a t h e r e d  f r o m  t h e  A m e r ic a n  Law 
I n s t i t u t e ’ s  t r e a t m e n t  o f  r a c i a l l y  restrictive  re­
s t r a i n t s .  A s  J u s t i c e  E d g e r t o n  p o i n t e d  out below 
( 1 6 2  E .  2 d  2 3 3 ,  a t  2 4 1 - 2 4 2 ) ,  c o v e n a n t s  against 

N e g r o e s  w o u l d  s e e m  t o  h e  m a r k e d  a s  unreason- 
a b l e ,  a n d  t h e r e f o r e  i n v a l i d ,  b y  t h e  Restatem ent’s

08 Tlie state cases which explicitly hold at least some types 
o f racial restraints not to contravene the common-law rule 
against restraints on alienation are Chandler v. Ziegler,88 
Colo. 1, 4 ; K oehler  v. Rowland , 275 Mo. 573, 584-585; Lyons 
v. W alien , 191 Okla. 567; K em p  v. Rubin, 188 Misc. 310 
(N. V . Sup. Ct., Queens C ou n ty ); Lion's Head Lake i 
Brzezinski, 23 N. J. Misc. 290 (2nd Dist. Ct. of Paterson); 
Meade v. Dennistone, 173 Md. 295 (restraint against “use 
and occupancy”  o n ly ) ; Scholtes v. McColgan, 184 Md. 480, 
481^88 (sam e); Los Angeles Inv. Co. v. Gary, 181 Cal. 680 
(sam e); Parmalee v. M orris, 218 Mich. 625 (same); White 
v. W hite , 108 W . Va. 128, 130, 147 (sam e); Perkins v. Trus­
tees o f Monroe A ve. Chiorch, 79 Ohio App. 457, 70 N. E. 
2d 487, app. dism. 72 1ST. E. 2d 97 (O hio), pending on peti­
tion for writ o f certiorari, No. 153, this Term (same); cf. 
Queensborough Land Co. v. Cazeaux, 136 La. 724 (broad 
restraint on sale or use permissible in Louisiana).

California, Maryland, Michigan, Ohio, and West Virginia 
hold the rule to be violated by restraints on sale or lease but 
not by similar restrictions on use or occupancy; Wisconsin 
apparently agrees as to restrictions on use or occupancy, but 
its Supreme Court has not decided the issue where a restraint 
on sale is involved. See, infra , pp. 112-114. The case in 
other jurisdictions sustaining racial restraints do not dis­
cuss this common-law point. In  Canada, an Ontario court 
has held a racial covenant to violate the rule on restraints. 
R e Drummond W ren  [1945] 4 D L . 1  674, 681 (Out. High 
C t.).

For a com pilation  o f  most o f  the authorities see McGovney, 
Racial Residential Segregation by State Court Enforcement



109

stated  c r i t e r i a .69 N e v e r t h e l e s s ,  t h e  I n s t i t u t e  h a s  a  
specific p r o v i s i o n  u p h o l d i n g  s u c h  r e s t r a i n t s ,  “ in 
states where the social conditions ren der desirable 
the exclusion o f the racial or social grou p  involved  
from the area in question”  ( i t a l i c s  s u p p l i e d ) , a n d  
the R e s t a t e m e n t ’ s  f u l l  c o m m e n t  m a k e s  e v e n  
p la in e r  t h a t  t h e  d o m i n a n t  i n f l u e n c e  i s  t h e  a c h i e v e ­
m e n t o f  r a c i a l  o r  s o c i a l  s e g r e g a t i o n ,  w h e r e  t h a t  i s  
th o u g h t to  b e  d e s i r a b l e ,  r a t h e r  t h a n  t h e  a c h i e v e ­
m en t o f  th e  p o l i c i e s  h i s t o r i c a l l y  u n d e r l y i n g  t h e  
rule  a g a in s t  r e s t r a i n t s .  4  R e s t a t e m e n t ,  P r o p e r t y ,  
sec. 4 0 6 , c o m m e n t  1, p p .  2 4 1 1 - 2 4 1 2 . 60 * 59
of Restrictive Agreements, Covenants or Conditions in Deeds 
is Unconstitutional (1945), 33 Calif. L. Rev. 5, 8 -11; 
Schnebly, Restraints Upon Alienation (1935), 44 Yale L . J. 
961,1186, 1189-1193; Martin, Segregation o f Residences o f  
Negroes (1934), 32 Mich. L. Rev. 721, 736-741.

59 The six criteria o f reasonableness are quoted and applied 
in the dissenting opinion below, 162 F. 2d at 241-242; the 
Restatement also lists the follow ing five factors which “ tend 
to support the conclusion that the restraint is unreasonable” 
(4 Restatement, Property, p. 2407) :

1. the restraint is capricious;
2. the restraint is imposed for spite or m alice;
3. the one imposing the restraint has no interest in 

land that is benefited by the enforcement o f the restraint;
4. the restraint is unlimited in duration;
5. the number o f persons to whom alienation is pro­

hibited is large * * *.
A  promissory restraint or forfeiture restraint may be 

qua ifiecl so that the power o f alienation can be freely exer­
cise m favor of all persons except those who are members 
ol some racial or social group, as for example, Bundists, Com- 
unuus s oi Mohammedans. In  states where the social con- 
1 lons lender desirable the exclusion o f the racial or social 

group involved from the area in question, the restraint is



1 1 0

T h e r e  a r e  s i m i l a r  i n d i c a t i o n s  i n  v a r io u s  of the 
c a s e s  u p h o l d i n g  r a c i a l  r e s t r a i n t s  t h a t  th e  decisive 
f a c t o r  h a s  b e e n  j u d i c i a l  a p p r o v a l ,  o r  a t  least ac­
c e p t a n c e ,  o f  a  p o l i c y  o f  r e s i d e n t i a l  segregation 
a s  o u t w e i g h i n g  t h e  r e q u i r e m e n t s  o f  fr e e  alien­
a b i l i t y .  I n  t h e  Q ueensborough  c a s e , supra, the 
f i r s t  d e c i s i o n  p a s s i n g  u p o n  r a c i a l  r e str ic tio n s , the 
L o u i s i a n a  c o u r t  t h o u g h t  “ t h a t  i t  w o u ld  be un­
f o r t u n a t e ,  i f  o u r  s y s t e m  o f  l a n d  t e n u r e  were so 
h i d e b o u n d ,  o r  i f  t h e  p u b l i c  p o l i c y  o f  th e  general 
g o v e r n m e n t  o r  o f  t h e  s t a t e  w e r e  so  narrow , as 
t o  r e n d e r  i m p r a c t i c a b l e  a  s c h e m e  su c h  as the 
o n e  i n  q u e s t i o n  i n  t h i s  c a s e ,  w h e r e b y  an owner
reasonable and hence valid i f  the area involved is one rea­
sonably appropriate for such exclusion and the enforcement 
o f  the restraint will tend to bring about such exclusion (see 
Comment n [ “ Application— change in circumstances”]). 
This is true even though the excluded group of alienees is not 
small and include so many probable conveyees that there is 
an appreciable interference with the power of alienation 
(compare Comments j  [ “Application— Excluded group of 
alienees a very small number or not probable conveyees”] 
and k [ “Application— Permitte dgroup o f alienees very small 
number” ]. The avoidance o f unpleasant racial and social 
relations and the stabilization o f  the value of the land which 
results from  the enforcement o f the exclusion policy are 
regarded as outweighing the evils which normally result from 
a curtailment o f the power o f  alienation.

“ The desirability o f the exclusion o f certain racial and 
social groups is a matter governed entirely by the circum­
stances o f the state in which the land is located. The most 
important factor in solving this problem is the public opinion 
o f  the state where the land is located on the question of the 
racial or social group involved living in close proximity to 
the racial or social groups not excluded from the land.



I l l

has s o u g h t to  d i s p o s e  o f  h i s  p r o p e r t y  a d v a n t a ­
geou sly  to  h i m s e l f  a n d  b e n e f i c i a l l y  t o  t h e  c i t y  
w h erein  i t  l i e s . ”  1 3 6  L a .  a t  7 2 7 ;  s e e  a l s o  7 2 9 .  I n  
Parmalee v .  M orris, 2 1 8  M i c h .  6 2 5 ,  6 2 8 ,  t h e  c o u r t  
fe lt th a t  “ T h e  l a w  i s  p o w e r l e s s  t o  e r a d i c a t e  r a c i a l  
in stin cts  o r  t o  a b o l i s h  d i s t i n c t i o n s  w h i c h  s o m e  
citizens d o  d r a w  o n  a c c o u n t  o f  r a c i a l  d i f f e r e n c e s  
in  r e la t io n  t o  t h e i r  m a t t e r  o f  p u r e l y  p r i v a t e  c o n ­
cern. F o r  t h e  l a w  t o  a t t e m p t  t o  a b o l i s h  t h e s e  
d istin c tio n s  i n  t h e  p r i v a t e  d e a l i n g s  b e t w e e n  i n ­
d iv id u a ls  w o u l d  o n l y  s e r v e  t o  a c c e n t u a t e  t h e  d i f ­
ficulties w h ic h  t h e  s i t u a t i o n  p r e s e n t s . ” 61 D e a n  
R ib b le  (Legal R estraints on the C hoice o f  A  
Dwelling ( 1 9 3 0 )  7 8  IT . o f  P a .  L .  R e v .  8 4 2 )  p i t h i l y  
s u m m a riz e s  t h e  a t t i t u d e  o f  t h e  c o u r t s  w h i c h  u p -

61 In Meade v. Dennistone, 173 Md. 295,301, the court sa id : 
“The large, almost sudden, emigration o f  negroes from  the 
country to the cities, with the consequent congestion in col­
ored centers, has created a situation about which all agree 
something ought to be done. In  Baltimore City, with a pop­
ulation of about 850,000, one-seventh is negro, occupying a 
relatively small portion o f the city ’s territory, though the 
colored area has been, in the last several years, rapidly ex­
panding. Since the decisions under the Fourteenth Amend­
ment, supra, no public action can be taken to solve what has 
become a problem, and property owners have undertaken to
regulate it by contract.”

See also Wyatt v. Adair, 215 Ala. 363, 366; K oehler  v. 
Rowland, 275 Mo. 573, 585; Porter  v. Johnson, 232 Mo. A pp. 
1150,1156-1157,1158,1160; Lion's Head Lake v. Brzezinski, 
23 N. J. Misc. 290, 291 (quoting the Restatem ent); Perkins 
'■ Trustees of Monroe Ave. Church, 79 Ohio A pp. 457, 70

• E. 2d 487, app. dism. 72 N. E. 2d 97 (O h io), pending on 
Petition for writ o f certiorari, No. 153, this Term.



1 1 2

h o l d  s u b s t a n t i a l  r e s t r a i n t s :  “ F i n a l l y ,  i t  maybe 
s u g g e s t e d  t h a t  a  c o u r t ’ s  f i n d i n g  t h a t  th e  restraint 
i s  r e a s o n a b l e ,  a n d  c o n s e q u e n t l y  v a l i d ,  i s  simply a 
w a y  o f  s a y i n g  t h a t  t h e  c o u r t  b e l ie v e s  that the 
p o l i c i e s  f a v o r i n g  t h e  r e s t r a i n t  o u t w e i g h  the poli­
c i e s  o p p o s e d  t o  i t ,  s o  t h a t  t h e  s t a t e ’s  welfare is 
b e t t e r  s e r v e d  b y  a l l o w i n g  t h e  v a l i d i t y  o f  the re­
s t r a i n t  t h a n  b y  d e n y i n g  i t ”  ( p .  8 4 7 ,  a n d  see also 
p .  8 5 3 ) .  C f .  M a n n i n g ,  T he Development of Re­
straints on A lien a tion  S ince Gray  (1 9 3 5 ) , 48 
H a r v .  L .  R e v .  3 7 3 ,  3 8 8 - 3 8 9 .

T h e  h i s t o r i c a l  c o n c e p t i o n  o f  i m p r o p e r  restraints 
o n  a l i e n a t i o n  h a s  h a d  s u f f i c i e n t  f o r c e  to  compel 
a  n u m b e r  o f  s t a t e  c o u r t s  t o  in v a lid a t e  racial 
r e s t r a i n t s  o n  sales or leases  ( Los Angeles In­
vestm ent Co. v .  G ary, 1 8 1  C a l .  6 8 0 ;  Scholtes v, 
M cC olgan, 1 8 4  M d .  4 8 0 ,  4 8 7 - 4 8 8 ;  P orter  v. Bar­
re tt , 2 3 3  M i c h .  3 7 3 ;  W h ite  v .  W h ite, 1 0 8  W .  Ya. 
1 2 8 ;  W illiam s  v .  C om m ercial Land Co., 34  Ohio 
L a w  R e p .  5 5 9 ;  c f .  P erk in s  v .  Trustees of Mon­
roe A v e . Church, 7 9  O h i o  A p p .  4 5 7 ,  7 0  N . E. 
2 d  4 8 7 ,  4 9 1 ,  a p p e a l  d i s m i s s e d  7 2 ,  A .  E . 2d 
9 7  ( O h i o ) ,  p e n d i n g  o n  p e t i t i o n  f o r  w r i t  o f cer­
t i o r a r i ,  N o .  1 5 3 ,  t h i s  T e r m ) ,  b u t  th e se  courts 
s i m u l t a n e o u s l y  u p h o l d  r e s t r i c t i o n s  a g a in s t  use 
or  occupancy  b y  t h e  e x c l u d e d  g r o u p  (Los An­
geles In vestm en t Co. v .  G ary, supra; Wayt v. 
P a tee ,  2 0 5  C a l .  4 6 ;  M eade  v .  Dennistone, 173 Md. 
2 9 5 ,  3 0 5 - 3 0 7 ;  Scholtes  v .  M cColgan, 18 4  Md. 
4 8 0 ,  4 8 7 - 4 8 8 ;  P arm alee  v .  M orris, 2 1 8  M ic h . 625;



113

Perkins v .  Trustees o f  M onroe A ve. Church, 7 9  
O hio A p p .  4 5 7 ,  7 0  N .  E .  2 d  4 8 7 ,  4 9 1 ,  su pra ; 
White v . W hite, 1 0 8  W .  V a .  1 2 8 ,  1 3 0 ,  1 4 7 ) . 62 
“ N o w  i t  i s  a p p a r e n t  t h a t ,  h o w e v e r  a  r e s t r a i n t  
u p on  o c c u p a n c y  m a y  b e  c l a s s i f i e d  i n  t h e o r y ,  i n  
p ra c tice  i t  i s  a  r e s t r a i n t  u p o n  a l i e n a t i o n  i n  t h i s  
ty p e  o f  c a s e . N e g r o e s  a n d  A s i a t i c s ,  a g a i n s t  
w h om  th e  r e s t r i c t i o n  i s  d i r e c t e d ,  a r e  n o t  l i k e l y  
to b u y  la n d  w h i c h  t h e y  t h e m s e l v e s  c a n n o t  o c c u p y ,  
and w h ic h  t h e y  c a n n o t  e v e n  l e a s e  t o  m e m b e r s  o f  
th eir o w n  r a c e .  T h e  a c t u a l  e f f e c t  o f  t h e  r e -  
tr ic tio n  i s  t o  e x c lu d e  m e m b e r s  o f  t h e s e  r a c e s  a s  
p o te n tia l p u r c h a s e r s  o f  t h e  l a n d .  R e s t r a i n t s  
u p o n  o c c u p a n c y , n e v e r t h e l e s s ,  h a v e  b e e n  s u s ­
ta in ed  in  a lm o s t  e v e r y  c a s e  i n  w h i c h  t h e  p r o b l e m  
has a r is e n . T h i s  s t a t e  o f  t h e  a u t h o r i t y  s e e m s  
e x p lica b le  o n l y  u p o n  t h e  s u p p o s i t i o n  t h a t  t h e  
courts h a v e  b e l i e v e d  t h e  s o c i a l  i n t e r e s t  t o  r e ­
quire th e  t o l e r a t i o n  o f  t h e s e  r e s t r i c t i o n s ,  t h a t  
th ey  h a v e  f e l t  p r e c l u d e d  b y  s u p p o s e d  a u t h o r i t y  
fr o m  u p h o ld i n g  t h e  r e s t r i c t i o n s  w h e n  p h r a s e d  
d ire c tly  a s  r e s t r a i n t s  u p o n  a l i e n a t i o n ,  b u t  h a v e  
e a g e rly  s e iz e d  u p o n  t h e  t h e o r e t i c a l  d i f f e r e n c e  b e ­
tw een  a  r e s t r a i n t  u p o n  a l i e n a t i o n  a n d  a  r e ­
s tr a in t  u p o n  o c c u p a n c y  t o  j u s t i f y  t h e i r  c o n ­
c lu s io n s .”  S c h n e b l y ,  R estra in ts U pon A liena-

62 Wisconsin apparently upholds a restraint on use but 
the validity of a restriction on sale has not been determined 
hy the Supreme Court, although it has been said to be “ d if­
ficult of decision.” Doherty  v. Rice, 240 Wis. 389, 397-398.



114

tion  ( 1 9 3 5 ) ,  4 4  Y a l e  L .  J .  9 6 1 ,  a t  1192-1193,“ 
T h e  A m e r i c a n  L a w  I n s t i t u t e  e x p l ic i t ly  recog­
n i z e s  t h e  i d e n t i t y  o f  t h e  t w o  re strictio n s by 
p r o v i d i n g  t h e  s a m e  r u l e  f o r  r e s t r a i n t s  on use by 
e x c l u d e d  g r o u p s  a s  o n  s a l e s .  4  Restatement, 
P r o p e r t y ,  s e e .  4 0 6 ,  C o m m e n t  n ,  p. 2 4 1 2 “  

c . I n  s h o r t ,  t h e  c a r v i n g  o u t  o f  r a c i a l  real estate 
l i m i t a t i o n s  f r o m  t h e  a p p l i c a t i o n  o f  th e  common- 
l a w  r u l e  a g a i n s t  r e s t r a i n t s  o n  a lie n a tio n  has 
l a r g e l y  r e s u l t e d  f r o m  i n t e r v e n t i o n  o f  sympathy 
w i t h ,  o r  a f f i r m a t i v e  a c c e p t a n c e  o f ,  the social 
i n t e r e s t  i n  r a c i a l  r e s i d e n t i a l  s e g r e g a t io n , rather 
t h a n  f r o m  a  d e v e l o p m e n t  o f  t h e  o r ig in a l  policy 
p r e m i s e s  o f  t h e  c o m m o n - l a w  d o c t r in e s  o f free 
a l i e n a b i l i t y .  B u t  t h e  F e d e r a l  c o u r t s ,  including 
t h o s e  i n  t h e  D i s t r i c t  o f  C o l u m b i a ,  sh o u ld , at the 
v e r y  l e a s t ,  r e f r a i n  f r o m  a f f i r m a t i v e  u s e  o f  segre-

63 T o substantially the same effect, see McGovney, supra, at 
8 -9 ; Martin, supra, at 137-738; Kibble, supra, at p. 849; 
Miller, Race Restrictions on Ownership or Occupancy of 
Land  (1947), 7 Law. Guild Rev. 99, 104-105; cf. Warren, 
The Progress o f  the Law, 1919-1920: Estates and Future 
Interests (1921), 34 Hare. L. Rev. 639, 653; Bruce, Bmd 
Zoning by Private Contract in the Light o f the Constitution 
and the Rule Against Restraints on Alienation (1927),21 111 
L. Kev. 704, 713; Note (1926), 26 Col. L. Rev. 88, 91-92; 2 
Simes, The Law o f Future Interests, sec. 460, pp. 301,302; 
Manning, The Developm ent o f  Restraints on Alienation 
Since Gray (1935), 48 Harv. L. Rev. 373, 379-380, 388-389.

64 The Court o f  Appeals o f the District of Columbia like- 
wise makes no distinction. Nos. 290-291, R. 419-420; 162 F. 
2d 233, 235. The covenants in the instant cases extend to 
renting, leasing, sale, transfer, or conveyance, and are not lim­
ited to use or occupancy. 162 F. 2d at 233.



115

g atio n  p o lic ie s  i n  a p p l y i n g  a n d  d e v e l o p i n g  t h e  
rules o f  r e a l  p r o p e r t y  o r  c o n t r a c t  l a w .  C f .  S teele  
v. Louisville & Nashville JR. Co., 3 2 3  XJ. S .  1 9 2 ,  
2 0 3 ; Korematsu  v .  United S tates, 3 2 3  U .  S .  2 1 4 ,  
216. T h u s ,  i n  d e t e r m i n i n g  w h e t h e r  t h e '  e x c l u ­
sion o f  s u c h  a  l a r g e  g r o u p  a s  t h e  N e g r o  r a c e  
co n stitu te s  a n  u n l a w f u l  r e s t r a i n t ,  t h e  c o u r t s  o f  
the D i s t r ic t  o f  C o l u m b i a  m i g h t  w e i g h  t h e  f u n d a ­
m e n ta l r a t i o n a le  o f  t h e  c o m m o n - l a w  r u l e ,  i t s  
a p p lic a b ility  t o  t h e  p r e s e n t  d a y ,  a n d  t h e  p r o p e r  
exten t o f  a l l o w a b le  r e s t r i c t i o n s  o n  a l i e n e e s ,  b u t  
should  b e  b o u n d  t o  c o n s i d e r  t h e  e x c l u d e d  g r o u p  
as i f  i t  w e r e  c o m p o s e d  o f  a n  e q u a l  n u m b e r  o f  
w h ite , o r  w h it e  a n d  c o l o r e d ,  p e r s o n s .

T h e  r a c ia l  f a c t o r  a p a r t ,  i t  w o u l d  s e e m  c l e a r  
th at a r e s t r a i n t  w h i c h  p e r p e t u a l l y  e x c l u d e d  a t  
least a  q u a r t e r  o f  t h e  p o p u l a t i o n  o f  t h e  D i s t r i c t  
o f C o lu m b ia , a n d  s o m e  2 0 ,0 0 0 ,0 0 0  A m e r i c a n  c i t i ­
zens,65 s h o u ld  n o t  b e  u p h e l d .  T h e  o w n e r ’ s  f r e e ­
dom  to  c o n v e y  w o u l d  p l a i n l y  b e  s u b s t a n t i a l l y  
im p a ir e d , a n d  n o  a d e q u a t e  c o u n t e r b a l a n c i n g  
c o n s id e r a tio n s  c o u l d  e x i s t .  T h e  d i s c u s s i o n  i n  t h e  
p e rtin e n t p o r t i o n  o f  t h e  R e s t a t e m e n t  o f  P r o p e r t y  
(se c tio n  4 0 6  a n d  c o m m e n t s ) ,  m u c h  o f  w h i c h  w e  
have q u o te d , s t r o n g l y  t e n d s  t o w a r d  t h e  i n v a l i d a ­
tion  o f  r e s t r a i n t s  w h e r e  “ t h e  n u m b e r  o f  p e r s o n s

65 The restriction in Nos. 290 and 291 applies to any “ Negro 
or colored person,” thus apparently including American In ­
dians, Puerto Ricans, Hawaiians, Filipinos, Chinese, and

apanese, and many other persons o f Latin American or 
Asiatic ancestry or nationality.



t o  w h o m  a l i e n a t i o n  i s  p r o h i b i t e d  is  la rge”  (p, 
2 4 0 7 ) ,  a n d  o n l y  e x e m p t s  r a c i a l  o r  so c ia l restric­
t i o n s  b e c a u s e  o f  t h e  p r e s u m e d  sp e c ia l social 
i n t e r e s t  i n  s e g r e g a t i o n  i n  c e r t a i n  S ta te s . When 
t h e  “ s o c i a l  i m p o r t a n c e ”  o f  t h e  o b je c t iv e  sought 
t o  b e  a c c o m p l i s h e d  b y  t h e  i m p o s i t i o n  o f such a 
r e s t r a i n t  i s  w e i g h e d  a g a i n s t  t h e  “ e v i ls  which flow 
f r o m  i n t e r f e r i n g  w i t h  t h e  p o w e r  o f  alienation” 
a n n u l m e n t  o f  t h e  r e s t r i c t i o n  i s  c l e a r ly  required.® 
T h e  m a i n  l i n e s  o f  a u t h o r i t y ,  e x c lu s iv e  of the 
r a c i a l  r e s t r a i n t  c a s e s ,  s u p p o r t  t h i s  v ie w , as the 
R e s t a t e m e n t ’ s  c o d i f i c a t i o n  s u f f ic ie n t ly  proves, 
S e e  a l s o ,  B e  D rum m ond W r en  [ 1 9 4 5 ] ,  4  D . L.R. 
6 7 4 ,  6 8 1  ( O n t .  H i g h  C t . ) ; S e h n e b l y ,  Restraints 
U pon The A lienation  o f  Legal Interests  (1935), 
4 4  Y a l e  L .  J .  9 6 1 ,  1 1 8 6 - 1 1 9 3 ;  supra, p p . 106-71 
T h e  m a n y  c a s e s  u p h o l d i n g  n o n  r a c ia l  building or

66 The Restatement o f Property states, with respect to re­
straints on what “ otherwise would be an indefeasible legal 
possessory estate in fee simple” (Comment a to section 106, 
p. 2394) : “ To uphold restraints on the alienation of such 
estates it must appear that the objective sought to be accom­
plished by the imposition o f  the restraint is of sufficient social 
importance to outweigh the evils which flow from interfering 
with the power o f  alienation or that the curtailment of the 
power o f alienation is %so slight that no social danger is 
involved.”

67 Justice F ield ’s dictum in Cowell v. Springs Go., 1 
U. S. 55, 57, is often cited (e. g., in Mays v. Burgess, 1
F. 2d 869, 872 (A pp. D . C .) ) as supporting large-scale 
exclusion, but the opinion in that case merely notes that (a) 
conditions prohibiting alienation 11 to particular persons are 
valid and (b ) subjection o f the estate to “ particular uses,



117

use r e s t r ic t io n s  a r e  n o t  o p p o s e d ,  s i n c e  i n  m o s t  
in sta n ce s  th e  “ c u r t a i l m e n t  o f  t h e  p o w e r  o f  a l i e n ­
ation  is  so  s l i g h t  t h a t  n o  s o c i a l  d a n g e r  i s  i n v o l v e d ’ 7 
(R e s ta te m e n t , S e c t i o n  4 0 6 ,  C o m m e n t  A ,  p .  2 3 9 4 ) ,  
and a ll  i n v o lv e  a  s o c i a l  v a l u e  w h i c h  m a y  p r o p e r l y  
be e n c o u r a g e d  b y  t h e  c o u r t s  a t  t h e  e x p e n s e  o f  
free  a l i e n a b i l i t y .  C f .  S c h n e b l y ,  supra, a t  1 3 8 8  
et s e q .;  C la r k , Real Covenants and O ther In teres ts  
which “ Run W ith  L and”  ( 2 d  e d .  1 9 4 7 ) ,  c h a p .  
VI.

B. Enforcement o f  the covenants would he 
inequitable

R e s p o n d e n ts  i n  ISTos. 2 9 0  a n d  2 9 1  d o  n o t  s h o w  
th em selv e s  e n t i t l e d  t o  a n  i n j u n c t i o n  m e r e l y  b y  
p r o v in g  t h e i r  c o v e n a n t s  v a l i d  a t  c o m m o n  l a w  
and e n f o r c e a b le  u n d e r  t h e  C o n s t i t u t i o n .  “ A n  
ap p eal to  th e  e q u i t y  j u r i s d i c t i o n  c o n f e r r e d  o n  
fe d e ra l d i s t r ic t  c o u r t s  i s  a n  a p p e a l  t o  t h e  s o u n d  
d iscre tio n  w h i c h  g u i d e s  t h e  d e t e r m i n a t i o n s  o f  
courts o f  e q u i t y . ”  M eredith  v .  W in ter  H aven , 
320 TJ. 8 .  2 2 8 ,  2 3 5 ;  IIed it  Co. v .  B ow les, 3 2 1 I I .  S .  
321, 3 2 5 . A n d  c o u r t s  o f  e q u i t y  h a v e  t r a d i t i o n a l l y  
refu se d  t h e i r  a i d ,  e i t h e r  w h e r e  “ t h e  p l a i n t i f f  i s  
usin g th e  r i g h t  a s s e r t e d  c o n t r a r y  t o  t h e  p u b l i c  
in te r e s t ,”  ( M orton Salt Co. v .  S u p p iger Co., 3 1 4
■dUf6 examples given being admittedly “ for the health and 

tort of whole neighborhoods”— is likewise permissible, 
o er v. Couch, 141 XJ. S. 296, 315, likewise refers, in gen- 

ic um, to restraints on alienation “ to particular per- 
or particular purposes” as valid. [Italics supplied.]



1 1 8

U. S. 488, 492; U n i t e d  S t a t e s  e x  r e l .  Greathonsey. 

B e r n ,  289 IT. S. 352, 359-361) or where, all special 
public interest aside, “ issuance of an injunction 
would subject the defendant to grossly dispropor­
tionate hardship. ’ ’ H a r r i s o n v i l l e  v. W . S. Dickey 

C la y  M f g .  C o . , 289 IT. S. 334, 338. To enjoin 
petitioners and require their removal from their 
homes would breach both of these historic bul­
warks which equity has erected against judicial 
injustice. As Mr. Justice Frankfurter has 
stated, U n i t e d  S t a t e s  v. B e t h l e h e m  S teel Corf., 

315 IT. S. 289, 312 (dissent), “ the function of the 
judiciary is not so limited that it must sanction the 
use of the federal courts as instruments of injus­
tice in disregard of moral and equitable prin­
ciples which have been part of the law for 
centuries.”

There is no doubt about the evil effect upon the 
housing conditions and welfare of Negroes of 
the systematic and wholesale residential segre­
gation in the District of Columbia which racial 
covenants have produced. The sum of the mat­
ter is that “ Negroes are increasingly being forced 
into a few overcrowded slums” and “ the chief 
weapon in the effort to keep Negroes from moving' 
out of overcrowded quarters into white neighbor­
hoods is the restrictive covenant.” Report of the 
President’s Committee on Civil Rights (1947), p- 
91. The prejudice to the general welfare thus 
created by the cumulative impact of this nd



119

work of multitudinous private arrangements” 
plainly warrants a court of equity in staying its 
hand and leaving the covenantors to whatever 
strictly legal remedies they may have. Cf. Ed- 
gerton, J., dissenting below, 162 E. 2d at 237, and 
in M ays v. B u r g e s s , 147 2d 869, at 873-874, and 
152 F. 2d 123, at 125-126; Traynor, J., concurring 
in F airch ild  v. R a in e s , 24 Cal. 2d 818, 831-835; 
Martin, S e g r e g a t io n  o f  R e s i d e n c e  o f  N e g r o e s  

(1934), 32 Mich. L. Rev. 721, 724, 726, 738, 74F; 
Kahen, V a lid ity  o f  A n t i - N e g r o  R e s t r i c t i v e  C o v e ­

nants: A  R e c o n s id e r a t io n  o f  th e  P r o b l e m  (1945), 
12 U. of Chi. L. Rev. 198, 206-209. Application 
of established equitable doctrines in the field of 
racial restrictive covenants is hardly novel; courts 
have long refused injunctions when enforcement 
has been found to be injurious to the general in­
terests of the covenanting property owners, even 
though certain individual owners may still desire 
to retain segregation. H u n d l e y  v. G o r e w i t z ,  132 
F. 2d 23 (App. D. C.) ; G o s p e l  S p r e a d in g  A s s ’n  

v. B en n etts , 147 F. 2d 878 (App. D. C.)
The private harm to these particular colored 

grantees is also sufficient to outweigh any bene­
fits which respondents may feel will accrue to 
them through continued residential segregation. 
These grantees purchased their homes only after 
many hardships and long-continued efforts to 
obtain adequate housing; several of the grantees

775894— 48-------9



had been evicted from rented houses by owners 
seeking personal occupancy. In the District of 
Columbia there is undeniably an acute shortage 
of houses for Negroes, even at prices inflated 
beyond those which white persons would have to 
pay. Nos. 290 and 291, R, 216-219, 227-228,241, 
260-264, 309-310, 334, 339, 340, 364; cf. Edgerton’ 
J., dissenting, 162 F. 2d at 243-245. If petition­
ers and other grantees of the same class are forced 
to move, they will probably face grave difficulties 
in finding adequate housing, one of the true es­
sentials of life. I f  they are allowed to remain, 
respondents will at most suffer an invasion of the 
lesser social interest in privacy or choice of 
neighbors.

C. T h is  C o u r t  s h o u ld  d e t e r m in e  th ese issues

The Court should not hesitate, we believe, to de­
cide these issues of restraints on alienation and 
the equitable right to an injunction. These are 
no longer local law matters, of peculiar concern 
to the District, which should be left to the courts 
of the District. Cf. F i s h e r  v. U n ite d  States, 328 
U. S. 463, 476-477. The determination of these 
issues largely turns upon general social consid­
erations of the greatest importance, and is inti­
mately related to a federal public policy of which 
this Court, and not the District of Columbia 
courts, is the final arbiter. Nor are the questions 
presented for decision unique to the District, or 
governable by common-law developments special



121
to this area; their nation-wide significance is at­
tested by the geographical distribution of the de­
cisions sustaining racial covenants, as well as by 
the related cases now on this Court’s docket.

Moreover, it cannot be said that on either issue 
the courts of the District of Columbia are en­
forcing a well-established rule, or one adopted 
after careful review. Decision on the applica­
tion of the rule against restraints has come very 
late and almost by inadvertence. See s u p r a  

pp. 103-4. The propriety of equitable relief ap­
pears never to have had full consideration, not 
even in the instant eases. As the highest court in 
the judicial system of the District, this Court 
should exercise its power to determine the con­
trolling law for the Nation’s capital.68

CONCLUSION

Statutory residential segregation based on race 
or color does not exist in this country because the 
Supreme Court struck it down as violative of the 
Constitution. Actual segregation, rooted in igno­
rance, bigotry and prejudice, and nurtured by the 
opportunities it affords for monetary gains from 
the supposed beneficiaries and real victims alike, 
does exist because private racial restrictions are 
enforced by courts. These covenants are inju-

See supra,, p. 104, fn. 53, for Mr. Justice Miller’s refer­
ence, in Mays v . Burgess, 147 F. 2d 869. 873 (App. D. C.), to 
1 us Court as the “highest Court of the District of Columbia” 
"ith power of final determination of District law.



122
rious to our order and productive of growing an­
tagonisms destructive of the integrity of our so­
ciety. Inadequate shelter, disease, juvenile de­
linquency are some of the major evils directlj 
traceable to racial restrictive covenants. Ee- 
straints on alienation of real property are gener­
ally regarded as contrary to the policy of tie 
States; yet restrictive racial covenants have been 
upheld by State courts, some on the tenuous 
ground that a restriction against use or occupancy 
is somehow, in the eyes of the law, entitled to 
Constitutional approval although a restriction 
against ownership alone is condemned. There is 
no basis for such a distinction. The covenant 
restricting use and occupation works precisely 
the same evils as the covenant against ownersliip 
by the members of the proscribed race or color.

The areas controlled by restrictive racial cove­
nants are rapidly expanding in urban centers, and 
the resulting danger to our free institutions is im­
minent. Courts judge the validity of statutes not 
merely by what is done under them but by what 
may be done under them. The same rule must 
be applied to these covenants in which the public 
interest has become enmeshed. Restricted areas 
could be expanded through covenants until whole 
groups of citizens, selected by race or color or 
creed or ancestry, could be exiled from this na­
tion forever. Supposed freedom of contract may 
not be used to further such ends. This Court has



123

pointed out that the Constitution does not speak 
of freedom of contract. “ It speaks of liberty and 
prohibits the deprivation of liberty without due. 
process of law” . W e s t  C o a s t  H o t e l  C o . v. P a r ­

rish , 300 IT. S. 379, 391.
Race hostilities will not disappear when and 

if this Court determines that racial restrictive 
covenants are abhorrent to the law of the land. 
Neither will a measure of segregation, existing 
through the voluntary choice of the people con­
cerned. But, as this Court said in B u c h a n a n  v. 
W ar ley , 245 U. S. 60, 80-81, the solution of the 
problem of race hostility “ cannot be promoted 
by depriving citizens of their constitutional rights 
and privileges.”

Respectfully submitted.

T o m  C .  C l a r k ,
A t t o r n e y  G e n e r a l .

P h i l i p  B .  P e r l m a n ,
S o l i c i t o r  G e n e r a l .

Decem ber  1947.

U. S. G O V E R N M E N T  PRINTING OFFICE: 1948







ms , i ? '

:







IN ' T H E

Supreme Court of tlie United States
October Term, 1947

No. 72
J. D. SHELLEY, et al., Petitioners, 

v.
LOUIS KRAEMER and FERN E. KRAEMER, Respondents.

On Writ of Certiorari to the Supreme Court of the State of Missouri.

No. 87
ORSEL McGHEE and MINNIE S. McGHEE, his wife, Petitioners,

v.
BENJAMIN J. SIPES and ANNA C. SIPES, JAMES A COON 

and ADDIE A. COON, et al., Respondents.
On Writ of Certiorari to the Supreme Court of the State of Michigan.

No. 290
JAMES M. HURD and MARY I. HURD, Petitioners, 

v.
FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 

DeRITA, VICTORIA DeRITA, et al., Respondents.
On Writ of Certiorari to the United States Court of Appeals 

for the District of Columbia.

No. 291
RAPHAEL G. URCIOLO, ROBERT H. ROW E, ISABELLE J. 

ROWE, HERBERT B. SAVAGE, et al., Petitioners,
V .

FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 
DeRITA, VICTORIA DeRITA, et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the District of Columbia.

CONSOLIDATED BRIEF IN BEHALF OF 
American Jewish Committee 

B’nai B’rith (Anti-Defamation League)
Jewish War Veterans of the United States of America 

Jewish Labor Committee 
As Am ici Curiae

Newman L evy 
Sol Rabkin 
Jacob Schaum

Of Counsel

J o s e p h  M. P r o s k a u e r  
J a c o b  G r u m e t

Attorneys for
American Jewish Committee 
B’nai B’rith (Anti-Defamation League) 
Jewish War Veterans of the United 

States of America 
Jewish Labor Committee

BAR PRESS, IN C ., 4 7  W E S T  S T ., N E W  YORK., BO. 9 -----0 1 5 7  - 8





TABLE OF CONTENTS

PAGE

Interest of the A m ici ........................................................ 2
Opinions Below .................................................................  5
Jurisdiction ........................................................................  5
Statement of Facts ...........................................................  6
Summary of the Argument................................................ 7
Argument:

I. The Judicial Enforcement of Racial Restrictive
Covenants in the Michigan and Missouri Cases 
Is a Violation of the Due Process Clause of the 
Fourteenth Amendment to the Constitution; 
and of Sections 1977 and 1978 of the Revised 
Statutes (8 U. S. C ., Secs. 41, 4 2 ) ......................  9

A. The Right of a Citizen to Acquire, Own,
Enjoy and Dispose of Property Without 
Discrimination as to Race or Color Is a 
Federal Civil Right Protected by the Con­
stitution ........................................................ 9

B. State Action Depriving a Person of the 
Ownership, Use or Occupancy of Prop­
erty Solely Because of His Race or Color 
Is Forbidden by the Due Process Clause
of the Fourteenth Amendment ................. 16
^ ie Decrees of the State Courts Were 
Forbidden State Action and Therefore 
Violated the Due Process Clause of the 
Fourteenth Amendment ............................  17

(a) Judicial Action Is State Action .... 17
(b) The Decrees Herein Are Forbidden 

State Action and Therefore Violate
the Fourteenth Amendment........... 20



Indexii

I I .  T h e  J u d ic ia l E n fo r c e m e n t  o f  R a c ia l Restric­
t iv e  C oven a n ts  in  the M ich ig a n  an d  Missouri 
C ases Is  a V io la t io n  o f  the E q u a l Protection 
C lau se o f  the F o u rte e n th  A m en d m en t to the 
C on st itu tion  .....................................................................  21

I I I .  T h e  J u d ic ia l E n fo r ce m e n t  o f  the R acial Re­
s tr ic t iv e  C oven an ts  in  the D is tr ic t  o f  Columbia

PAGE

C ases V io la te s  the D u e  P r o c e s s  C lause o f the 
F i f t h  A m en d m en t an d  S e c tio n  1978 of the 
R e v is e d  S ta tu tes  (8  U . S . C ., S ec. 42 ) ..............  33

I V . T h e  C ase o f  Corrigan  v. Buckley  D id  Not De­
c id e  the Q u estion s P re se n te d  H e re in  ..............  34

C on clu s ion  ................................................................. '......................  31
A p p e n d ix  ...........................................................................................  31

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

A dk in s  v . C h ild r e n ’ s P losp ita l, 261 U . S . 525 .............  21
A llg e y e r  v . S ta te  o f  L ou is ia n a , 165 II. S . 578 .............  13

B aum ann  v . P in ck n ey , 118 N . Y . 604 ..............................  31
B o w le s  v . W illin g h a m , 321 U . S. 503 ..............................  33
B r id g e s  v . C a lifo rn ia , 314 U . S. 52 ................................... !>
B r in k e r h o f f-F a r is  T ru s t  C o. v . H ill, 281 U . S. 673 .... T
B u ch a n a n  v . W a r le y , 245 U . S. 60 ........ 10 , 1 2 , 15,16,22,23,

25, 26, 31

C a n tw ell v . C on n ecticu t, 310 U . S. 296 ............................ 13
C a re y  v . C ity  o f  A tla n ta , 143 G-a. 192, 84 S. E . 456 ... Ijj
C a rte r  v . T ex a s , 177 U . S . 442 ............................................. 3-
C h ica g o  B . & Q. R . C o. v . C h ica g o , 166 IT. S. 226 ....... *
C iv il R ig h ts  C ases, 109 U . S . 3 .........................................10,21.?
C lin a rd  v . C ity  o f  W in s to n -S a le m , 217 N . C. 119, 6

S. E . (2 d )  867 .........................................................................
C o r r ig a n  v . B u ck ley , 271 IT. S. 323 ...................................  8,34

E x  P a r te  V ir g in ia , 100 IT. S . 339 ........................................ ^

F a y  v . N ew  Y o rk , 331 U . S . , 91 L a w  E d . Adv.
O p in ion  1517 (N o . 377, d e c id e d  J u n e  23, 1947) 1



Index iii

PAGE

Gandolfo v. H artm an, 49 F e d . 1 8 1 ........................................ 23

Hall v. DeCuir, 95 U . S . 485 .................................................... 12
Harmon v. T yler, 273 U . S. 668 ............................................. 16, 22
Heiner v. Donnan, 285 U . S . 3 1 2 ..........................................  33
Hill v. Texas, 316 U . S. 400 ......................................................  31
Hirabayashi v. U . S., 320 U . S . 8 1 ........................................ 32
Holden v. H ardy, 169 U . S . 366 ............................................  12
Holmes v. G ravenhorst, 263 N . Y . 148 ..............................  12
Home Tel. & Tel. Co. v . L o s  A n g e le s , 227 U . S. 278 .... 32
Hurd v. H odge, N o. 290 .........................................................5, 6 ,7 ,1 1
Hurd v. H odge, 162 F . (2 d ) 233 ............................................  5, 23
Hurtado v. C a liforn ia , 110 F . S . 5 1 6 ................................... 33

Jackson v. State, 132 M d. 3 1 1 ,1 0 3  A . 9 1 0 .........................  16

Korematsu v. U. S., 323 U . S . 2 1 4 ................................... 26

Liberty A nnex C orp . v . C ity  o f  D a lla s , 289 S . W .
1067 ..............................................................................................  16

Long Island W a ter  S u p p ly  C o. v . B ro o k ly n , 166 U . S .
685 .................................................................................................. 29

McCabe v. A tch ison , T . & S . F . R . C o., 235 U . S . 141 28
McGhee v. S ipes, N o. 87 ...........................................................  5, 6, 7
Marsh v. A labam a, 326 U . S . 5 0 1 ..........................................  17
Missouri ex rel. G aines v . C anada , 305 IT. S. 337 ........  28
Mitchell v. U. S., 313 U . S . 8 0 ................................................ 28

Nebbia v. New Y ork , 291 U . S. 502 .....................................  30
Norman v. B a ltim ore  a n d  O h io  R a ilr o a d  C o., 294 

U. S. 240 .......................................................................................  29

Powell v. A labam a, 287 IT. S . 45 ..........................................  19

Raymond v. C hicago "Onion T r a c t io n  C o., 207 IT. S . 20 32
Richmond v. D eans, 281 IT. S . 704 ........................................ 16

Shelley v. K raem er, 198 S . W . (2 d )  679 ............................ 5, 6
Shelley v. K raem er, N o . 72 5
Sipes v. McGhee, 316 M ich . 614, 25 N . W . (2 d )  638.... 5 ,2 7
&mith y. Loughman, 245 N . Y . 486 ..............................  27
Snowden v. H ughes, 321 IT. S . 1 ..........................................  32

ate of Washington ex re l. S ea ttle  T it le  T r u s t  Co. 
v. Roberge, 278 IT. S . 116 .................................................... 12



I V Index

PAGE

S tee le  v . L o u is v il le  a n d  N a sh v ille  R a ilr o a d  Co., 323
U . S . 192 ......................................................................................

S te r lin g  v . C on stan tin , 287 U . S . 378 ........................... ' 12
S tra u d e r  v . W e s t  V a ., 100 U . S . 303 ............................. . 21 24
T e rra ce  v . T h o m p so n , 263 U . S . 197 .......................... 12, 15

T e rra ce  v . T h o m p so n , 274 F e d . 841 .................................  y
T r u a x  v . C o rr ig a n , 257 U . S . 312 ...................................... 15
T w in in g  v . N ew  J e rs e y , 211 U . S . 7 8 .............................. 19,33
T y le r  v . H a rm on , 158 L a . 439 .............................................  22

U r c io lo  v . H o d g e , N o . 2 9 1 ...................................................5,6,7,11
U r c io lo  v . H o d g e , 162 F . (2 d )  233 ...................................  5

V ir g in ia  v . R iv e s , 100 TJ. S . 313 ...k...................................  17

O T H E R  A U T H O R I T I E S  C IT E D

F if t h  A m en d m en t ....................................................................8,33,34

T h irteen th  A m e n d m e n t ..............................................................34,35

F o u rte e n th  A m en d m en t ..................7, 8, 9,10,12,13,14,16-22,
24, 25, 31,32,33,34,35

R e v is e d  S ta tu tes , S e c t io n  1977 ......................................... 8,9,34
S e ctio n  1978 ............................ 8,9,10,33,34
S e ctio n  1979 ......................................... 34

8 U n ite d  S ta tes  C ode , S e c tio n  41 ......................................8,9,34
S e ct io n  42 .........................8,9,10,33,34

J u d ic ia l C ode , S ec. 237 (28  U . S. C ., S ec. 344 (b )).... 5
S ec. 240 (28  U . S . C ., S ec . 347 (a )).... 5

C iv il R ig h ts  A c ts  ........................................................................  M

M cG o v n e y , D . O., Racial Residential Segregation by 
State Court E nforcem ent o f  R estrictive Agree­
ments, Covenants or Conditions in Deeds Is Un­
constitutional, 33 C a lif . L a w  R e v . 5 ............................



IN’ THE

Supreme C o u rt of th e  U n ite d  S ta te s
October Term, 1947

No. 72
J. D. SHELLEY, et al., Petitioners, 

v.
LOUIS KRAEMER and FERN E. KRAEMER, Respondents.

On Writ of Certiorari to the Supreme Court of the State of Missouri.

No. 87
ORSEL McGHEE and MINNIE S. McGHEE, his wife, Petitioners,

v.
BENJAMIN J. SIPES and ANNA C. SIPES, JAMES A COON 

and ADDIE A. COON, et al., Respondents.
On Writ of Certiorari to the Supreme Court of the State of Michigan.

No. 290
JAMES M. HURD and MARY I. HURD, Petitioners, 

v.
FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 

DeRITA, VICTORIA DeRITA, et al., Respondents.
On Writ of Certiorari to the United States Court of Appeals 

for the District of Columbia.

No. 291
RAPHAEL G. URCIOLO, ROBERT H. ROWE, ISABELLE J. 

ROWE, HERBERT B. SAVAGE, et al., Petitioners,
v.

FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 
DeRITA, VICTORIA DeRITA, et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the District of Columbia.

CONSOLIDATED BRIEF IN BEHALF OF
American Jewish Committee 

B’nai B’rith (Anti-Defamation League)
Jewish War Veterans of the United States of America 

Jewish Labor Committee 
As Am ici Curiae



2

Interest o f the Amici
T h is  b r ie f  is  filed  on  b e h a lf  o f  the fo llow in g  organi­

za tion s  i1

A m e r ica n  J e w ish  C om m ittee
B ’n a i B ’r ith  (A n t i-D e fa m a t io n  L eagu e)
J e w ish  L a b o r  C om m ittee  
J e w ish  W a r  V e te ra n s  o f  the U n ited  States of 

A m e r ic a

E a ch  o f  th ese o rg a n iza tio n s  h as a m on g  its fundamental 
tenets the p re s e rv a t io n  o f  the r ig h ts  guaranteed every 
c it izen  b y  o u r  F e d e ra l C on stitu tion . E a ch  has recognized 
that a n y  in v a s ion  o f  the d e m o cra tic  r ig h t o f  any individual 
o r  g ro u p  u n d erm in es  the fo u n d a tio n  o f  ou r democratic 
system .

O rg a n iza tion s  d ed ica ted  to  the d e fen se  o f  American 
d e m o cra cy  ca n n ot stan d  b y  s ile n tly  w h ile  the residential 
a rea s  o f  o u r  c it ie s  a n d  tow n s a re  o v e rru n  b y  a spreading 
flood  o f  re s tr ic t iv e  cov en a n ts  b a n n in g  occu p a n cy  by mem­
b ers  o f  sp ec ific  ra c ia l o r  re lig io u s  g ro u p s . The dangers 
to  o u r  d e m o cra tic  w a y  o f  l i fe  a r is in g  fr o m  racial residen­
tia l se g re g a t io n  a re  ob v iou s . O rg a n iza tion s  such as those 
s p o n s o r in g  th is b r ie f  ca n n ot a cq u iesce  in  the application 
in  A m e r ic a  o f  d is cr im in a to ry  p ra c t ice s  to so vital an 
a sp ect o f  ou r  e co n o m y  as h ou s in g .

In  1890 San  F r a n c is co  sou g h t to  a ch ieve  racial zoning 
b y  a d o p tin g  an  o rd in a n ce  b a r r in g  C hinese from  living in 
ce rta in  a rea s  o f  the c ity . T h is  w as fo l lo w e d  by  the enact­
m en t o f  s im ila r  o rd in a n ces  d ire c te d  aga in st Negroes in 
sev era l sou th ern  and  b o rd e r  c it ies . In  1917, however, a 
h o ld in g  b y  this co u rt  th at such  o rd in a n ces  w ere unconsti-

1 A short description of each of the organizations is attached as an 
appendix to this brief.



3

tutional placed an in su rm ou n ta b le  o b sta c le  in  tbe w a y  of 
efforts to achieve ra c ia l re s id e n tia l s e g re g a t io n  b y  le g is ­
lation. Thereafter, th ose  seek in g  to  ex ten d  the p a tte rn  of 
racial segregation fo u n d  a n ew  a n d  b e tte r  m ean s of 
achieving their goa l. T h e y  se ized  u p o n  the an cien t and  
well established d ev ice  o f  the p r iv a te  r e s tr ic t iv e  cov en a n t 
barring from  a n e ig h b o rh o o d  u ses d e tr im en ta l to  the 
health or com fort o f  th ose  re s id in g  in  it, such  as g lu e  o r  
soap factories, l iv e ry  stables, ch a rn e l h ou ses , an d  b ro th e ls . 
They adapted the p r iv a te  r e s tr ic t iv e  cov en a n t to  th e ir  
needs, revising it to  b a r— in stea d  o f  sp ecified  u ses— o ccu ­
pancy by those racia l, re lig io u s , o r  e th n ic g ro u p s  w hich  
they considered u n d esira b le . T h e  use o f  th is n ew  tech ­
nique spread w ith  om in ou s ra p id ity , p r im a r ily  becau se  
many state courts u p h e ld  an d  e n fo r c e d  the n ew  c o v e n a n ts ; 
nearly always the co u rts  fa ile d  to d is t in g u ish  betw een  a 
covenant barring an o b n o x io u s  use an d  a cov en a n t b a rr in g  
residential occu p a n cy  b y  m em bers  o f  sp ec ific  ra c ia l o r  
religious groups.

The racial re s tr ic t iv e  cov en a n t is  an  in stru m en t o f  
bigotry g iv ing a id  an d  c o m fo r t  to  ra c ia l an d  re lig io u s  
prejudice. Im p lic it  in  such  a cov en a n t is  the a n ti-d em o- 
cratic and fa lse  ra c is t  d o c tr in e  that u n d es ira b le  so c ia l 
traits are an a ttribu te n o t o f  the in d iv id u a l bu t o f  a ra c ia l 
or religious grou p . S u ch  cov en a n ts  c la s s ify  an  in d iv id u a l 
not on the basis o f  h is  b e h a v io r , bu t on  the b a sis  o f  h is  
racial origin. T h ey  w o u ld  d e n y  the fr e e  ch o ice  o f  a hom e 
to a Carver, C a rd ozo , o r  L in  Y u ta n g  m e re ly  beca u se  o f  
color or religion . T h e y  a scr ib e  so c ia l o b je c t io n a b ility  to  
unborn generations.

Slums and o v e rcro w d in g  a re  the in esca p a b le  con com i­
tants of restrictive  coven a n ts  an d  ra c ia l seg reg a tion . 
Death, disease and  crim e  a re  the n o to r io u s  sp aw n  o f  o v e r ­
crowding. In ter-g rou p  stresses  and  ten sion s  w h ich  th rea ten  
onr democratic state  a r ise  in e v ita b ly  w h en  ra c ia l o r  re li-



4

g io u s  g ro u p s  fin d  th em selves  is o la te d  w ith in  the community 
a n d  fo r c e d  to  liv e  in  c ir cu m s cr ib e d  segregated areas, 
C lea rly , the g r o w in g  fu s io n  o f  in te res t o f  A m erica ’s varied 
ra c ia l, re lig io u s , an d  eth n ic  g ro u p s , the fr e e  interchange of 
v a r y in g  cu ltu ra l v ie w p o in ts , the d eve lop m en t of mutual 
to le ra n ce  an d  con fid en ce  a m on g  o u r  c it izen s— requisites for 
the stren g th en in g  an d  fu lfillm en t o f  ou r  democracy—are 
d a n g e ro u s ly  im p e d e d  b y  re s tr ic t iv e  coven ants. It is not 
s u rp r is in g  th a t the P r e s id e n t ’ s C om m ittee  O n Civil Rights 
fo u n d  th at “ se g re g a t io n  is  an ob sta c le  to  establishing 
h a rm on iou s  re la t io n sh ip s  a m on g  g r o u p s ”  and recom­
m en d ed  v ig o r o u s  a ction  to  ou tla w  re s tr ic t iv e  covenants,

A lth o u g h  N e g ro e s  h a v e  su ffe re d  m o st  fro m  the wide­
sp re a d  use o f  re s tr ic t iv e  cov en a n ts , m a n y  other groups in­
c lu d in g  M ex ica n s, S p a n ish  A m e rica n s , Orientals, Arme­
n ian s, H in d u s, S y r ia n s , T u rk s , J ew s , an d  Catholics have 
fo u n d  such  coven a n ts  b a r r in g  th em  fr o m  m any residential 
a reas  in  m a n y  cit ies . In  a recen t ca se  in  C aliforn ia  a full- 
b lo o d e d  A m e r ica n  In d ia n  w a s o r d e r e d  b y  the court to 
v a ca te  h is  h om e becau se  o f  a lim ita tion  u p on  occupancy 
to  C au casian s on ly . In  a  M a ry la n d  su bu rb  o f  Washington, 
H . C ., a  g ro u p  o f  h om e  ow n ers , seek in g  to  en force  a restric­
t iv e  cov en a n t a g a in st J e w s , p e t it io n e d  the M aryland court 
f o r  a d ecree  d ire c t in g  a n o n -J e w ish  w ife  to  oust her Jewish 
h u sb a n d  fr o m  th e ir  jo in t ly  ow n ed  hom e. This is the 
red u ctio  ad  a b su rd u m  to  w h ich  ra c ia l restr ictiv e  covenants 

lead .
T h e  im p a ct of the ra c ia l r e s tr ic t iv e  covenant does not 

en d  a t the w a t e r ’ s edge. I n  m a n y  lan d s the prestige of 
A m e r ica n  d e m o cra cy  su ffe rs  becau se  o u r  practice in the 
fie ld  o f  ra ce  re la t io n s  d oes  n o t a lw a ys  square with our 
id ea ls . E v e n  n ow , d e m o cra cy  is en g a g e d  in  a world-wide 
s tru g g le  to  d em on stra te  its  su p rem a cy  ov er  contending 
p o lit ic a l id e a lo g ie s . T h e  re fu s a l o f  ju d ic ia l support for



5

racial restrictive covenants will remove a powerful propa­
ganda weapon from the hands of democracy’s opponents.

The organizations sponsoring this brief are peculiarly 
alert to the dangers to democracy arising from racial or 
religious residential segregation. Jewish experience under 
European despotism gave rise to the word “ ghetto” . The 
threat of revival of that institution—implicit in the mush­
room growth in almost every major American city of racial 
restrictive covenants—demands intercession in these cases.

All parties to the cases for review herein have given 
their consent to the filing of this brief am icus cu riae .

Opinions Below

The opinion of the Supreme Court of Missouri in S h el­
ley v. K ra em er (R. 153) is reported in 198 S. W. (2d) 
6 7 9 .

The opinion of the Supreme Court of Michigan in 
McGhee v. S ipes (R. 87) is reported in 316 Mich. 614, 25 
N. W. (2d) 638.

The opinion of the United States Court of Appeals in 
Eurd v. H odge and U rcio lo  v. H o d g e  (R. 417-432) is re­
ported in 162 F. (2d) 233.

Jurisdiction

Jurisdiction of this Court of both S h e lley  v. K r a e m e r  
(No. 72) and M cG h ee  v. S ip e s  (No. 87) is invoked under 
Section 237 of the Judicial Code (28 U. S. C., Sec. 344 (b)).

Jurisdiction of H u rd  v. H o d g e  (No. 290) and of U rcio lo  
Vi Hodge (No. 291) is invoked under Section 240 of the 
Judicial Code (28 U. S. C., Sec. 347 (a)).



6

The judgment sought to he reviewed in Shelley v, 
K r a e m e r  was entered by the Supreme Court of the State 
of Missouri on December 9, 1946. Motion for rehearing 
was filed on December 24,1946, and denied on January 13, 
1947. Petition for certiorari was filed in this Court on 
April 21, 1947, and was granted June 23, 1947.

The judgment sought to be reviewed in M cG hee v. Sipes 
was entered in the Supreme Court of the State of Michi­
gan on January 7, 1947. Application for rehearing was 
filed on January 23, 1947, and denied March 3, 1947. Peti­
tion for certiorari was filed in this Court on May 10,1947, 
and granted June 23, 1947.

The judgments sought to he reviewed in H urd  v. Hoige 
and U rcio lo  v. H o d g e  were entered by the United States 
Court of Appeals for the District of Columbia on May 26, 
1947. Motion for rehearing was denied June 23, 1947, 
Consolidated petitions for certiorari, filed on August 22, 
1947, were granted on October 20, 1947.

Statement of Facts

There are four cases herein involving the validity of 
judicial enforcement of racial restrictive covenants: one 
originating in St. Louis, Missouri; one from Detroit, Mich­
igan ; and two consolidated actions from the District of 
Columbia. The purpose of the covenants was to preserve 
the respective neighborhoods for white residents only, and 
to prevent the occupation of the restricted property hy 
Negroes.

In S h e lley  v. K r a e m e r , No. 72, the Missouri case, the 
covenant prohibiting ownership and occupancy was made 
in 1911 and was to run for fifty years. The trial court 
decided in favor of the Negro purchasers, but this judg-



7

ment was reversed on appeal with direction that a decree 
be entered holding the restrictions valid and granting the 
relief sought by the plaintiffs.

In M cGhee v. S ip es , No. 87, the Michigan case, the cove­
nant, made in 1934, was to run for twenty-five yeairs. It 
prohibited use and occupancy by non-Caucasians, and was 
not to become effective until at least eighty percent of 
the frontage on the block was covered by the same or a 
similar restriction. The trial court granted the relief 
sought by the plaintiff, and the judgment was affirmed on 
appeal.

In Hurd v. H o d g e , No. 290, and U rcio lo  v. H o d g e , No. 
291, the consolidated District of Columbia cases, the re­
strictions were against alienation to Negroes, and were 
perpetual. Urciolo, one of the petitioners, is white; the 
others are Negroes. The trial court rendered judgment, 
divesting the Negro purchasers of title, enjoining the white 
owners from renting, leasing, or conveying the property 
to Negroes, and ordering the Negro purchasers to vacate 
the premises. This was affirmed on appeal, with Mr. Jus­
tice Edgerton dissenting.

Summary of the Argument

These cases present to this Court squarely for the first 
time the validity of judicial enforcement of restrictive 
covenants that bar the sale to or the occupancy by Negroes 
°f real property. The following arguments will be urged 
by this brief:

!• The decrees of the Missouri and Michigan Courts 
depiived the petitioners of their property without due 
Process of law in violation of the Fourteenth Amendment



8

to the Constitution; and were in violation of Sections 197? 
and 1978 of the Revised Statutes (8 U. S. C., Secs. 41,42),

II. The decrees of the Missouri and Michigan Courts 
denied to the petitioners equal protection of the law in 
violation of the Fourteenth Amendment to the Consti­
tution.

III. The decrees of the District of Columbia Court 
deprived the petitioners of their property without due 
process of law in violation of the Fifth Amendment to the 
Constitution; and were in violation of Section 1978 of the 
Revised Statutes (8 U. S. C., Sec. 42).

IV. The questions raised by the present cases have 
never been decided by this Court. The case of Corrigan 
v. B u c k le y , 271 U. S. 323, frequently relied on to sustain 
the constitutionality of racial restrictive covenants, did not 
decide the questions presented herein.

Inasmuch as the many more questions involved in these 
cases are fully covered in the main briefs submitted by 
the petitioners herein, we are confining ourselves in this 
am icu s brief to the invalidity of judicial enforcement of 
racial restrictive covenants under the Fifth and F o u rte e n th  
Amendments of the Constitution, and under Sections 1971 
and 1978 of the Revised Statutes (8 U. S. C., Secs. 41, 42).



9

I

The judicial enforcement of racial restrictive cove­
nants in the Michigan and Missouri cases is a violation 
of the Due Process Clause of the Fourteenth Amend­
ment to the Constitution; and of Sections 1977 and 
1978 of the Revised Statutes (8 U. S. C., Secs. 41, 42).

A. The right of a citizen to acquire, own, enjoy and 
dispose of property without discrimination as to race or 
color is a federal civil right protected by the Constitution.

Section 1977, Revised Statutes (8 U. S. C., Sec. 41) 
provides:

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons 
and property as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

Section 1978, Revised Statutes (8 U. S. C., Sec. 42) 
provides:

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.

The statutes are a declaration by Congress of the right 
°f all citizens to acquire and enjoy property without dis­
crimination as to race or color. If a white man can make 
a valid contract to purchase real property, Congress says 
that a Negro can make the same contract. If a white man



10

has a right to acquire and own a particular piece of prop­
erty the language of Section 1978 indicates that a Negro 
has the identical right.

These sections were derived from the Civil Rights Acts 
of 1866-75 which were under consideration in the Civil 
R ig h ts  C a ses , 109 U. S. 3. In his opinion, Mr. Justice 
Bradley asserted that there were certain “ fundamental 
rights which appertain to the essence of citizenship, and 
the enjoyment or deprivation of which constitutes the 
essential difference between freedom and slavery.” Among 
the rights “ which are the essence of civil freedom” is the 
right, the Court said, to “ purchase, lease, sell and convey 
property” (p. 22).

These rights, the C iv il R ig h ts  C a ses  held, cannot be 
protected by the federal government under the Fourteenth 
Amendment from infringement by individual action, “un­
supported by state authority in the shape of law, customs, 
or ju d ic ia l or executive proceedings” (p. 17). (Italics 
added.) They are, nevertheless, among the constitutional 
rights of all citizens of the United States. It will appear 
later that the infringement in the present cases was sup­
ported “ by state authority * * * in the shape of * * * judi 
cial * * * proceedings.”

In R u ch a n a n  v. W a r le y , 245 U. S. 60, the City of Louis­
ville, Kentucky, enacted a municipal ordinance that for­
bade any white person or Negro to reside on any city Wool' 
in which the majority of houses were occupied by persons 
of the other color. This Court held that the ordinance vio­
lated the due process clause of the Fourteenth Amend­
ment. It was declared in that case that the right to dis­
pose of one’s property without discrimination as to ra*.e 
or color is a civil right protected by the Constitution. 
Court said (p. 81):



11

The case presented does not deal with an attempt 
to prohibit the amalgamation of the races. The right 
which the ordinance annulled was the civil right of a 
white man to dispose of his property if he saw fit to 
do so to a person of color, and of a colored person to 
make such disposition to a white person.

It is urged that this proposed segregation will pro­
mote the public peace by preventing race conflicts. 
Desirable as this is, and important as is the preserva­
tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights cre­
ated or protected by the Federal Constitution.

It appears to be settled from the foregoing that the 
right to acquire, own, and dispose of property without 
discrimination as to race or color is a civil right that is 
an incident of national citizenship and is guaranteed by 
the Constitution.

In all cases herein the property involved had been 
deeded to the Negro petitioners.1 In the M isso u r i and 
District o f C olum bia  cases there were restrictions against 
ownership as well as occupancy; the purchasers held the 
property subject to being divested of title if the restric­
tions were upheld. In the M ich iga n  case there was only a 
restriction against occupancy. In the M ich iga n  case, there­
fore, the petitioner acquired valid, legal title, and was 
possessed of all the incidents of ownership. The property 
was residential property in a residential neighborhood, 
and its use as a home was a proper, legal use. He could 
have rented it to white occupants. He was forbidden, be­
cause of his color, to occupy it himself.

1The petitioner Urciolo in Urciolo v. H od ge, No. 291, is white 
(R. 380). Hurd, in H urd  v. H od ge, No. 290, at the trial claimed 
to be a Mohawk Indian (R. 238), but was found by the court to be a 
Negro (R. 380).



12

In B u ch a n a n  v. W a r le y ,  su p ra , the City of Louisville 
sought to accomplish the same result by means of a munici­
pal ordinance. The Court said, at page 74:2

The Fourteenth Amendment protects life, liberty, 
and property from invasion by the states without due 
process of law. Property is more than the mere thing 
which a person owns. It is elementary that it includes 
the right to acquire, use, and dispose of it. The Con­
stitution protects these essential attributes of prop­
erty # * * Property consists of the free use, enjoyment, 
and disposal of a person’s acquisitions without con­
trol or diminution save by the law of the land.

That the right to use one’s property for a lawful, 
proper purpose is an incident of ownership, and as such is 
within the protection of the constitutional guaranty of due 
process, is conclusively settled. Particularly is this true 
of the right to use residential property for residential pur­
poses.8 This was clearly recognized in B uchanan  v. Wat- 
le y , su p ra , which stated that occupancy was an incident of 
the right of purchase or sale of real property (p. 75).

It is significant that all of the restrictions upon real 
property enforcible by the police power such as the “livery 
stables, brickyards, and the like, ’ ’ mentioned in Buchanan 
v. W a r le y  as the legitimate subject of restrictive cove-

2 The due process clause was relied upon because the action was 
brought by a white vendor who was deprived by the ordinance of the 
right to dispose of his property. There can be no doubt that the same 
result would have been reached under the due process and equa 
protection clauses had the action been brought by a Negro purchaser. 3

3 Terrace v. Thom pson, 263 U. S. 197, 215 (citing Buchanan* 
W arley, supra, 245 U. S. 60, and H olden  v. H ardy, 169 U. S. o > 
391) ; State of W ashington e x  rel. Seattle Title Trust Co. v.
278 U. S. 116, 121; Sterling v. Constantin, 287 U. S. 378; na ■ 
D eCuir, 95 U. S. 485, 508; H olm es v. Gravenhorst, 263 N. ” • 
152.



13

nants, were restrictions upon use. They were burdens 
imposed upon the property not upon the occupants. A 
blacksmith, a glue maker, or a livery stable proprietor, 
may be lawfully restricted in the pursuit of his respective 
occupation in a particular neighborhood but no one will 
deny that he may live, without legal interference, where 
anyone else may live.

That this is one of the rights protected by the Four­
teenth Amendment, and that cannot be taken away without 
denial of due process, seems to be settled beyond question. 
In Allgeyer v. S ta te  o f  L ou is ia n a , 165 U. S. 578, the Court 
said (p. 589):

The liberty mentioned in that amendment [the 
Fourteenth] means, not only the right of the citizen 
to be free from the mere physical restraint of his per­
son, as by incarceration, but the term is deemed to 
embrace the right of the citizen * * * to live and work 
where he will.

This distinction between limitations on use and limita­
tions on occupancy is important. The one imposes a servi­
tude upon property which, at times, is legally permissible. 
The other imposes a servitude upon the individual which 
is repugnant to the basic concepts of the Constitution. It 
takes away from him, solely because of the color of his 
skin, a right which the A l lg e y e r  case says is guaranteed to 
him by the Fourteenth Amendment—the right to live where 
he will. The language of this Court in S te e le  v. L o u isv ille  
and Nashville R a ilroa d  C o ., 323 U. S. 192, 203, is equally 
pertinent to the present cases:

Here the discriminations based on race alone are 
obviously irrelevant and invidious.

It may be claimed that the cases sustaining statutes 
prohibiting aliens from owning real property are in point 
here. Let us consider this for a moment.



14

The leading case is T e r r a c e  v. T h o m p so n , 263 TJ. 8.197, 
in which the Court had under consideration a provision of 
the Constitution of the State of Washington that prohibited 
the “ ownership of lands by aliens, other than those who 
in good faith have declared their intention to become citi­
zens of the United States.” There was likewise involved 
a statute, the Anti-Alien Land Law, forbidding the nse of 
property by a non-declarant alien.

Terrace, a citizen of the United States, wished to lease 
certain agricultural land to a Japanese. He, therefore, 
brought suit against the Attorney General to enjoin him 
from enforcing the Anti-Alien Land Law on the ground 
that it conflicted with the due process and equal protection 
clauses of the Fourteenth Amendment.

This Court overruled the contention, and in so doing 
made perfectly clear the rationale of its decision. The 
essential difference between aliens and non-aliens, insofar 
as legislation of this kind is concerned, lies in their respec­
tive obligation of loyalty to the government.

‘ ‘ The rights, privileges and duties of aliens differ widely 
from those of citizens,” the Court said, “ and those of 
alien declarants differ substantially from those of non­
declarants” (p. 218). It then quoted the following with 
approval from the opinion of the court below :4

It is obvious that one who is not a citizen and can­
not become one lacks an interest in, and the power to 
effectually work for the welfare of, the state, and, so 
lacking, the state may rightfully deny him the right to 
own and lease real estate within its boundaries, n 
one incapable of citizenship may lease or own rea 
estate, it is within the realm of possibility that every 
foot of land within the state might pass to the owner 
ship or possession of noncitizens (pp. 220, 221).

4 274 Fed. 841, 849.



15

It is clear that the legislation was sustained as a justi­
fied protective measure. The classification into citizens, 
declarant aliens, and non-declarant aliens was reasonable 
and not arbitrary. A state has a right to impose standards 
of loyalty upon those who would hold land within its 
borders. It is not unreasonable to put into a particular 
category those aliens who have shown so little devotion to 
our institutions as to have refrained from seeking citizen­
ship.

As to those who are barred from naturalization by con­
gressional enactment, the Court said: “ The State prop­
erly may assume that the considerations upon which Con­
gress made such classification are substantial and rea­
sonable.”

There is no doubt that a law that makes reasonable, 
non-arbitrary classifications does not deny equal protec­
tion.6 But discrimination based upon race or color does 
not come within that rule. Unless it can be determined 
that a man’s loyalty can be measured by his ancestry or 
the color of his skin, classification based upon those con­
siderations is unreasonable and arbitrary.

If the State of Washington statute, instead of pro­
hibiting non-declarant aliens from owning or leasing prop­
erty, had barred Negroes, it would have been unconstitu­
tional under B u ch an an  v. W a r le y . This seems to be a 
complete refutation of the pertinency of T e r r a c e  v. 
Thompson. 5

5 Truax v. Corrigan, 257 U. S. 312, 337.



16

B. State action depriving a person of the ownership, 
use or occupancy of property solely because of his race or 
color is forbidden by the due process clause of the Four- 
teenth Amendment.

The issue in Buchanan v. Warley, 245 U. S. 60, was 
stated by the Court in these words (p. 75):

The concrete question here is : May the occupancy 
and, necessarily, the purchase and sale of property of 
which occupancy is an incident, be inhibited by the 
states, or by one of its municipalities, solely because 
of the color of the proposed occupant of the premises!

And again, at page 78:

In the face of these constitutional and statutory 
provisions, can a white man be denied, consistently 
with due process of law, the right to dispose of his 
property to a purchaser by prohibiting the occupation 
of it for the sole reason that the purchaser is a person 
of color, intending to occupy the premises as a place 
of residence?

The answer to these questions is emphatic and final:
We think this attempt to prevent the alienation of 

the property in question to a person of color was not 
a legitimate exercise of the police power of the state, 
and is in direct violation of the fundamental law 
enacted in the Fourteenth Amendment of the Constitu­
tion preventing state interference with property rights 
except by due process of law. That being the case, 
the ordinance cannot stand (p. 82).

The proposition that such discriminatory action by the 
states is forbidden is thus definitely settled by Buchanan 
v. Warley.6 8

8 H arm on v. T yler, 273 U. S. 668; Richm ond v. Deans, 281 U. 5 
704; Carey v. C ity o f Atlanta, 143 Ga. 192, 84 S. E. 456; Jackson v. 
State, 132 Md. 311, 103 A. 910; Clinard v. C ity of Winston-Sdm, 
217 N. C. 119, 6 S. E. (2d) 867; L iberty  A n n ex  Corp. v. City oj 
Dallas, 289 S. W. 1067.



17

C. The decrees of the state courts were forbidden 
state action and therefore violated the due process clause 
of the Fourteenth Amendment.

(a)

Judicial action is state action.

Thus far we have shown that the right to buy, sell, and 
occupy real property without discrimination as to race or 
color is a civil right guaranteed and protected by the Con­
stitution. It is also clear that any legislation that would 
take away that right would be forbidden state action and 
therefore unconstitutional.

To paraphrase the language of Marsh v. Alabama, 326 
U. S. 501, 505, if the parties to these racial covenants 
“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 suffi­
cient power to pass an ordinance”  barring the ownership, 
use, and alienation of real property on the ground of color.

The question, therefore, is, can private parties, by mak­
ing a contract, empower the judiciary to do that which is 
beyond the sovereign power of the state to do?

It has long been settled that the judicial action of a 
state court is the action of the state itself, and that when 
such action contravenes the Constitution it comes within 
the purview of the Fourteenth Amendment.

As far back as 1879 this Court said in Virginia v. Rives, 
100 U. s . 313, 3 1 8 :

It is doubtless true that a State may act through 
different agencies,—either by its legislative, its execu­
tive, or its judicial authorities; and the prohibitions 
of the amendment extend to all action of the State 
denying equal protection of the laws, whether it be 
action by one of these agencies or by another.



18

In E x  P arte Virginia, 100 U. S. 339, the same year, the 
Court said (p. 346) :

They [the prohibitions of the Fourteenth Amend­
ment] 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 judicial 
authorities. It can act in no other way.

These were cases involving the right of Negroes to 
serve as jurors. This Court has not hesitated to set aside 
a determination of the highest Court of a state, either on 
matters of procedure or substantive law, when it mani­
festly violated the provisions of the Fourteenth Amend­
ment, and when a far reaching deprivation of Constitu­
tional rights was implicit in the decision.

In BrinJcerhoff-Paris Trust Co. v. Hill, 281 U. S. 673, 
an application for an injunction to restrain the collection 
of an alleged discriminatory tax was denied because the 
plaintiff had not exhausted his remedies before the tax 
commissioner. An earlier decision of the Missouri court 
had held that the tax commissioner was without power to 
grant the relief sought. This ruling was later reversed, 
but in the meantime plaintiff’s time to file a complaint with 
the tax commissioner had expired, and he was deprived of 
his day in court. Mr. Justice Brandeis, writing the opinion 
of this Court, said, at pages 679, 680:

If the result above stated were attained by an exer­
cise of the state’s legislative power, the tr a n sg re s s io n  
of the due process clause of the Fourteenth Ament- 
ment would be obvious * * * The violation is none the 
less clear when that result is accomplished by the stae 
judiciary in the course of construing an otherwise 
valid * * * state statute. The federal guaranty of due 
process extends to state action through its judicial, a»



19

well as through its legislative, executive, or adminis­
trative branch of government.

In Powell v. Alabama, 287 U. S. 45, the defendants had 
been convicted of rape without the proper assignment by 
the court of counsel. This Court reversed the judgment 
of the Supreme Court of Alabama affirming the conviction 
because by judicial action due process had been denied to 
the defendants by the State of Alabama.

In Bridges v. California, 314 TJ. S. 252, the defendant 
was convicted of contempt under the common law of the 
state. This Court reversed that sentence because the 
action of the California court denied to the defendant the 
right of free speech protected by the Fourteenth Amend­
ment.

In Cantwell v. Connecticut, 310 F. S. 296, this Court 
likewise set aside a conviction because the defendant had 
been denied the right of free speech guaranteed by the 
Fourteenth Amendment. In that case the conviction was 
for the common law offense of inciting a breach of the 
peace, and this Court overruled the judgment of the Con­
necticut court in interpreting its own judge-made law.

The statement of the Court on this point in Twining v. 
New Jersey, 211 U. S. 78, has been widely quoted. In that 
case the question involved was the right of a trial judge in 
a criminal case to comment upon the failure of a defendant 
to testify in his own behalf. Although the Court decided 
that the comments did not constitute a denial of due proc­
ess, it stated (pp. 90, 91):

The judicial act of the highest court of the State, 
in authoritatively construing and enforcing its laws, 
is the act of the state.

Due process of law means something more than mere 
compliance with the forms and rules of legal procedure.



20

A man might have a fair trial; the judge might be careful 
and accurate in his application to the case of the state law; 
yet, if the ultimate decision results in the denial of a con­
stitutionally protected right there has been an infringe­
ment of the Fourteenth Amendment.

This was clearly expressed in Chicago, B. <& Q. R. Co, 
v. Chicago, 166 U. S. 226, in which it was claimed that 
property had been taken from the railroad in condemna­
tion proceedings by the City of Chicago without adequate 
compensation. The Court said (pp. 234, 235):

But a state may not, by any of its agencies, dis­
regard the prohibitions of the Fourteenth Amend­
ment. Its judicial authorities may keep within tie 
letter of the statute prescribing forms of procedure in 
the courts and give the parties interested the fullest 
opportunity to be heard, and yet it might be that its 
final action would he inconsistent with that amend­
ment. In determining what is due process of law re­
gard must he had to substance, not to form * * * the 
final judgment of a state court, under the authority 
of which the property is in fact taken, is to be deemed 
the act of the State within the meaning of that amend­
ment.

(b)
The decrees herein are forbidden state 
action and therefore violate the Fourteenth 

Amendment.
We do not contend that the procedural rights of the 

litigants in these cases were not scrupulously protected, 
nor do we contend that the trial courts were without juris­
diction to adjudicate private contracts between in d iv idua ls , 
It is the result of the adjudication that we challenge. The 
decrees deprived the petitioners of fundamental constitu­
tional rights. They were, therefore, forbidden state action.



21

We do not claim that all state judicial action is review- 
able by this Court, nor do we ask that the Court go beyond 
the issues presently before it. There is no necessity here 
further to extend “ the vague contours”  of the due process 
clause.7 The Court said in Strauder v. West Virginia,8 
“The Fourteenth Amendment makes no attempt to enu­
merate the rights it designed to protect. It speaks in gen­
eral terms, and those are as comprehensive as possible. ’ ’

All that we are asking the Court to decide here is that 
when a decree of a state court accomplishes a result for- 
hidden to the state legislature, and deprives a person be­
cause of his race, color, or religion, of a fundamental right 
guaranteed and protected by the Constitution, it is forbid­
den state action and invalid under the Fourteenth Amend­
ment.

We submit that this is precisely the effect of the decrees 
in the present cases. We have shown that the right of a 
person to buy, sell, occupy, and enjoy property, and “ to 
live and work where he will”  is guaranteed and protected 
by the Constitution. It is apparent that the decrees herein 
take that right away.

It has been urged that the Civil Rights Cases, 109 IJ. S. 
3, is controlling. The decision in those cases held that 
racial discrimination by individuals did not raise a review- 
able federal question. The discriminatory acts, the bar­
ring of Negroes from inns and places of public amusement, 
were complete and self-enforcing; there was no need to 
invoke the aid of the government. The Court indicated 
clearly that if the discrimination, to be effective, needed 
the support of judicial action the situation would be dif­
ferent. Mr. Justice Bradley said, at page 17:

261 l P s m5 2 5 ^  ’  d i s S e n t i n ^  ° P i n i ° n  7 n  A d k in s  v .  Children’s  H ospital,

8100 U. S. 303, 310.



22

In this connection it is proper to state that civil 
rights, such as are guaranteed by the Constitution
against state aggression, cannot be impaired by the 
wrongful acts of individuals, unsupported by state au­
thority in the shape of laws, customs, or judicial or 
executive proceedings. (Italics added.)

If, as the above language indicates, the impairment of 
civil rights by individuals comes within the prohibitions of 
the Fourteenth Amendment when supported by judicial 
proceedings, it follows that the impairment of constitu­
tional rights by the judicial enforcement of private con­
tracts, such as these restrictive covenants, likewise comes 
under the ban.

There is a further consideration that should be men­
tioned. If individuals, by private agreement, can establish 
racially segregated areas, they are virtually performing a 
legislative act. This was the effect of the ordinance held 
unconstitutional in Harmon v. Tyler,9 10

In that case a New Orleans ordinance barred whites or 
Negroes from “ any community or portion of the city * * * 
except on the written consent of a majority of the opposite 
race inhabiting such community or portion of the city.”1" 
In effect, it conferred local option upon the residents of 
New Orleans to establish racial zoning restrictions. It was 
held unconstitutional on the authority of Buchanan v. 
Warley. Surely the absence of such ordinance in the pres­
ent case cannot confer greater power upon the contracting 
parties than they would have had under an ordinance.

The argument that a state cannot do by judicial action 
that which it is forbidden to do by legislation is succinctly

9 2 7 3  U .  S .  6 6 8 .
10 Q u o t e d  in Tyler v .  Harmon, 1 5 8  L a .  4 3 9 ,  4 4 0 .



23

and convincingly stated by Mr. Justice Edgerton in bis
dissenting opinion in the court below in Hurd v. Hodge :u

It is strangely inconsistent to bold as tbis court 
does that although no legislature can authorize a court, 
even for a moment, to prevent Negroes from acquiring 
and using particular property, a mere owner of prop­
erty at a given moment can authorize a court to do so 
for all time. Either the due process clauses of the 
Constitution do not forbid governments to prevent 
Negroes from acquiring and using particular. prop­
erty, in which case they do not forbid courts to en­
force racial restrictions which statutes have imposed; 
or these clauses do forbid governments to prevent 
Negroes from acquiring and using particular property, 
in which case they forbid courts to enforce racial re­
strictions which covenants have imposed. Buchanan 
v. Warley rules out the first alternative. As Judge 
Boss, the donor of the American Bar Association’s 
Boss Essay Prize, said long ago in refusing to enforce 
by injunction a covenant against transfers to Chinese: 
“ It would be a very narrow construction of the consti­
tutional amendment in question and of the decisions 
based upon it * * * to hold that, while state and munici­
pal legislatures are forbidden to discriminate against 
the Chinese in their legislation, a citizen of the state 
may lawfully do so by contract, which the courts may 
enforce * * # The courts should no more enforce the 
one than the other. ” 11 12

11162 F. (2d) 233, 240.
12 Gandolfo v. Hartman, 4 9  F e d .  1 8 1 ,  1 8 2 .



24

II

The judicial enforcement of racial restrictive cove­
nants in the Michigan and Missouri cases is a violation 
of the Equal Protection Clause of the Fourteenth 
Amendment to the Constitution.

The equal protection clause of the Fourteenth Amend­
ment, as was said in the recent case of Fay v. Few York,1

prohibits prejudicial disparities before the law. Under 
it a system which might be constitutionally unobjec­
tionable if applied to all, may he brought within the 
prohibition if some have more favorable treatment,

It would seem to be beyond argument that to permit a 
white man to live in his own house and to forbid a Negro 
to live in his is a prejudicial disparity. To eject a Negro 
from his home solely because of his color, and to allow his 
white neighbor to remain unmolested certainly gives the 
white man “ more favorable treatment.”

We may add that it is a shocking prejudicial disparity 
for the law to interfere in a private arrangement between 
a willing seller and a willing purchaser of real property, 
and prohibit or annul the transaction because the purchaser 
is a Negro.2

The purpose of the Fourteenth Amendment was to 
prohibit precisely the sort of racial distinctions accom­
plished by the covenants in these cases. This was elo­
quently stated in Strauder v. West Virginia, 100II. S. 303,

1331 U. S. , 9 1  L a w  Ed. Adv. Opinions 1517,15®
(No. 377, decided J u n e  2 3 ,  1 9 4 7 ) .

2 All of these restrictive covenant cases involve transactions be­
tween willing vendors and willing purchasers. If that were not so. 
there could be no c a s e s .



25

where, after summarizing the provisions of the Fourteenth 
Amendment the Court said, at pages 307, 308:

What is this but declaring that the law in the 
States shall be the same for the black as for the white; 
that all persons, whether colored or white, shall stand 
equal before the laws of the States and, in regard to 
the colored race, for whose protection the Amendment 
was primarily designed, that no discrimination shall 
be made against them by law because of their color? 
The words of the Amendment, it is true, are prohibi­
tory, but they contain a necessary implication of a 
positive immunity, or right, most valuable to the col­
ored race—the right to exemption from unfriendly 
legislation against them distinctively as colored; ex­
emption from legal discriminations, implying inferi­
ority in civil society, lessening the security of their 
enjoyment of the rights which others enjoy, and dis­
criminations which are steps towards reducing them 
to the condition of a subject race.

It is pertinent to consider for a moment the underlying 
purpose of these racial restrictive covenants. The tragic 
fact of race prejudice is so pervasive and so deeply rooted 
in our national life that this court can, without multipli­
cation of illustrations, take judicial notice of it. A wide­
spread belief in the specious “ inferiority in civil society”  
of the Negro referred to in the Strauder case unquestion­
ably exists.

This lamentable fact of race prejudice is, of course, 
seldom admitted, and various rationalizations have been 
advanced to justify these discriminatory covenants. The 
most frequent are that the restrictive covenants preserve 
real estate values and that they prevent interracial strife. 
Assuming arguendo that these contentions may have some 
validity, they cannot justify a contravention of the Consti­
tution. Both of these arguments were summarily disposed 
°f in Buchanan v. Warley, supra, pages 81, 82:



26

It is urged that this proposed segregation will pro- 
mote the public peace by preventing race conflicts, 
Desirable as this is, and important as is the preserva­
tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights cre­
ated or protected by the Federal Constitution.

It is said that such acquisitions by colored persons 
depreciate property owned in the neighborhood by 
white persons. But property may be acquired by un­
desirable white neighbors, or put to disagreeable 
though lawful uses with like results.

The truth of the matter is that some white people do 
not want Negroes as neighbors. This they cannot accom­
plish by legislation, so the racial restrictive covenant was 
devised to circumvent the ruling of Buchanan v. Warhj. 
The very fact that fears are expressed in these cases that 
the presence of Negroes in a neighborhood will depreciate 
values and promote strife is in itself persuasive evidence 
of the basic reason for the discrimination,—racial antag­
onism.

That racial hostility is an important motive for these re­
strictions is recognized in Buchanan v. Warley, where the 
Court said, at pages 80, 81:

That there exists a serious and difficult problem 
arising from a feeling of race hostility which the law 
is powerless to control, and to which it must give a 
measure of consideration may be freely admitted.

The opinion then adds:
But its solution cannot be promoted by depriving 

citizens of their constitutional rights and privileges.

The language of this Court in Korematsu v. U. S.,  ̂
U. S. 214, 216, is therefore, squarely in point:

It should be noted to begin with, that all legal re­
strictions which curtail the civil rights of a sing



27

racial group are immediately suspect. That is not to 
say that all such restrictions are unconstitutional. It
is to say that courts must subject them to the most 
rigid scrutiny. Pressing public necessity may some­
times justify the existence of such restrictions; racial 
antagonism never can. (Italics added.)

Two arguments have frequently been advanced in sup­
port of the judicial enforcement of racial restrictive cove­
nants. One is that the courts would, if called upon, enforce 
similar covenants by Negroes against whites, and conse­
quently there is no denial of equal protection. The other 
is that to refuse to enforce these covenants would deny 
equal protection to the contracting parties. This was ex­
plicitly stated in the opinion by the court below in Sipes v. 
McGhee,8

The speciousness of these contentions is apparent. That 
Negroes are being herded in restricted slum areas with the 
concomitant result of disease, crime, and racial tension is 
well known. It is unrealistic to say that the whites, who 
have unrestricted access to all the habitable areas of the 
country, may perhaps be barred by Negroes from some of 
them by discriminatory covenants. It would ignore the 
obvious facts of contemporary life to imagine a desirable 
residential neighborhood inhabited by wealthy Negroes 
from which whites would be excluded. As Mr. Justice 
Cardozo said in Smith v. Loughman, 245 N. Y. 486, 496, of 
another constitutional provision:

We are not to whittle it down by refinement of ex­
ception or by the implication of a reciprocal advantage 
that is merely trivial or specious.

However, the constitutional objection is not answered 
supposing the possibility of reciprocal discrimination. 3

3 316 Mich. 614, 25 N. W . (2d ) 638, 644.



28

A  denial of a constitutional right to a Negro today cannot 
be sustained because a similar right may perhaps be denied 
to a white man in the hypothetical future. This is con­
vincingly presented by Professor McGovney4 who says:

But in every case of state court enforcement of a 
restrictive agreement the blow falls upon an individ­
ual, not upon a group as such. The command of tie 
Clause is that no state shall deny to any person the 
equal protection of the laws. The immunity granted 
is an individual one. When because of an agreement 
of one group a state ousts a Negro from residing in 
the home of his choice it does not square itself with 
the command of the clause by enforcing the agreement 
of another group by which a white man is barred 
from the home of his choice. Instead of complying 
with the Clause, the state commits two violations of 
it. Two individuals, one Negro and one white, has 
each been discriminated against because of Ms race. 
Under the Equal Protection Clause, as under Due 
Process Clauses, the Supreme Court, has several 
times pointed out that “ the essence of the constitu­
tional right is that it is a personal one * * * It is 
the individual who is entitled to the equal protection 
of the laws. ’ ’5

The contention that refusal to enforce these covenants 
would deny equal protection to the contracting parties is 
equally unsound. If we balance rights conferred by private 
contracts against fundamental constitutional rights, there 
can be no question that constitutional rights must prevail.

4 McGovney, D . O ., Racial Residential Segregation by State Court 
Enforcement of Restrictive Agreements, Covenants or Conditionŝ  
Deeds Is Unconstitutional, 33 Calif. Law Rev. 5, 28, 29.

5 See, also cases cited, ibid., page 29: McCabe v. Atchison, Tbj‘ 
F. R. Co., 235 U. S. 141, 161, 162; Missouri ex rel. Gaines v. Cam 
305 U. S. 337, 351; Mitchell v. U. S., 313 U. S. 80, 97.



29

In these cases the relative equities may be thus stated: 
On the one hand there are the contracting parties who in 
good faith believed that by joining in a covenant they could 
secure their property from the undesirable proximity of 
colored neighbors. On the other hand there is the Negro 
who, during an acute housing shortage is prevented from 
acquiring a home, or, having acquired it, is driven out of it 
solely because he is a Negro.

It has been made abundantly clear in the cases quoted 
above6 that the right of a person to acquire property and 
remain unmolested in the enjoyment of it is a paramount 
constitutional right. This right is superior to any private 
contractual right, and all contracts are subordinate to it. 
As Mr. Chief Justice Hughes said in Norman v. Baltimore 
and Ohio Railroad Co., 294 U. S. 240, 308:

Parties cannot remove their transactions from the 
reach of dominant constitutional power by making 
contracts about them.

Mr. Justice Brewer said in Long Island Water Supply 
Co. v. Brooklyn, 166 U. S. 685, 692:

But into all contracts, whether made between States 
and individuals, or between individuals only, there 
enter conditions which arise not out of the literal 
terms of the contract itself; they are superinduced 
by the preexisting and higher authority of the laws 
of nature, or nations or of the community to which 
the parties belong; they are always presumed, and 
must be presumed, to be known and recognized by 
all, are binding upon all, and need never, therefore, 
be carried into express stipulation, for this could add 
nothing tô  their force. Every contract is made in 
subordination to them, and must yield to their control, 
as conditions inherent and paramount, wherever a 

__neces8ity for their execution shall occur.
'S e e ,  a ls o ,  c a s e s  c i t e d  i n  n o t e  3 ,  P o i n t  I ,  supra  ( p .  1 2 ) .



30

The language of this Court in Nebbia v. New York, 291 
U. S. 502, 523, is also in point:

Under our form of government the use of prop­
erty and the making of contracts are normally mat­
ters of private and not of public concern. The general 
rule is that both shall he free of governmental inter­
ference. But neither property rights nor contract 
rights are absolute; for government cannot exist if 
the citizen may at will use his property to the detri­
ment of his fellows, or exercise his freedom of con­
tract to work them harm.

It cannot be denied that the restrictive covenants herein 
were to the detriment of the Negro owners and worked 
them harm. If they had been white there would have been 
no such detriment or harm. It follows, therefore, that the 
judicial enforcement of these covenants, based solely upon 
the color of the skin, constitutes a denial of equal protec­
tion of the law.

It is our contention that judicial enforcement of these 
restrictive covenants would be unconstitutional even as to 
the original parties to the agreement. If one of the parties 
attempted to sell to a Negro, an injunction to restrain him 
would be prohibited state action.

But the facts in the cases at bar are stronger, for the 
victims of these restrictions are not parties to the agree­
ments that create them. . Their constitutional right to buy, 
sell, and enjoy property has been invaded without the 
slightest semblance of consent. A person may lawfully 
bargain away some of his constitutional rights. He can 
never bargain away the constitutional right of a n o t h e r .

It has been contended that the cases that uphold the 
constitutionality of ‘ ‘ equal but separate”  accom m odations 

for Negroes in public conveyances are authority for the ra-



31

cial segregation created by restrictive covenants. There 
are two answers:

The first is that housing is unique. An agreement to 
purchase a particular piece of property is not satisfied by 
the offer of some other property.7 During a housing 
shortage such as exists at the present time there may not 
be another house available. But in any event, two houses 
are not identical in the sense that two dining cars or two 
Pullman cars or even two schools are identical. A  white 
man seeking a home has a constitutionally protected right 
to indulge in all the nuances and vagaries of taste. To re­
fuse the same right to a Negro is to deny him equal protec­
tion which, as the Court said in Hill v. Texas, 316 U. S. 400, 
104, “ is something more than an abstract right. It is a 
command which the State must respect, the benefits of 
which every person may demand. ’ ’

But the complete and final answer to the “ equal but 
separate” argument is that this Court has clearly and 
emphatically declared that it does not apply to racial seg­
regation in housing. Buchanan v. Warley, page 81, says:

As we have seen, this court has held laws valid 
which separated the races on the basis of equal ac­
commodations in public conveyances, and courts of 
high authority have held enactments lawful which pro­
vide for separation in the public schools of white and 
colored pupils where equal privileges are given. But, 
in view of the rights secured by the Fourteenth 
Amendment to the Federal Constitution, such legisla­
tion must have its limitations, and cannot be sustained 
where the exercise of authority exceeds the restraints 
of the Constitution. We think these limitations are 
exceeded in laws and ordinances of the character now 
before us.

Baumann v .  Pinckney, 1 1 8  N .  Y .  6 0 4 ,  6 1 2 ,  6 1 3 ,  a n d  a u t h o r i t i e s  therein c i t e d . ’  ’



32

All that we said in the previous point concerning due 
process applies equally to the equal protection clause of 
the Fourteenth Amendment. Judicial action is state action, 
and a judicial decree that denies equal protection of tie 
law is denial by the state.8 It is forbidden state action, 
“ odious to a free people whose institutions are founded 
upon a doctrine of equality.”  Hirabayashi v. Umki 
States, 320 U. S. 81, 1 0 0 .

8 In addition to cases cited under due process, in Point I, supra, 
see also, R aym ond v. Chicago Union Traction Co., 207 U. S. 20, 36; 
H om e Tel. &  T el. Co. v. L o s  A ngeles, 227 U. S. 278, 287, 288; 
Carter v. T exas, 177 U. S. 442, 447; Snow den v. Hughes, 321 U. S. 
1, 16.



33

III

The judicial enforcement of the racial restrictive 
covenants in the District of Columbia cases violates 
the Due Process Clause of the Fifth Amendment and 
Section 1978 of the Revised Statutes (8 U. S. C., Sec.
42).

Section 1978 of the Revised Statutes, which is a con­
gressional enactment, is the municipal law of the District 
of Columbia, Civil Rights Cases (supra).1 The decrees 
which deny to Negroes “ the same right * * * as is en­
joyed by white citizens * * * to * * * purchase, lease, sell, 
hold and convey”  real property is clearly in violation 
thereof.

It is well settled that the words “ due process”  have 
the same meaning in the Fifth and Fourteenth Amend­
ment.2 In Twining v. New Jersey,3 discussing due process, 
it was said:

If any different meaning of the same words as they 
are used in the Fourteenth Amendment [and in the 
Fifth Amendment] can be conceived, none has yet 
appeared in judicial decision.

All that we said above concerning due process under 
the Fourteenth Amendment, therefore, applies here. It 
"ould have been beyond the power of Congress to enact 
a racial residential segregation law for the District of 
Columbia. The judicial enforcement of the restrictive 
covenants is forbidden governmental action and conse­
quently deprived the petitioners of their property without 
due process of law.

1109 U. S. 3, 19.
» ei» e:  v' Donnan, 285 U. S. 312, 326; H urtado v. California, 

u u. b. 516; Bowles v. W illingham, 321 U. S. 503, 518.
S2HU. S. 78, 101.



34

IV

The case of Corrigan v. Buckley did not decide the 
questions presented herein.

The case of Corrigan v. Buckley, 271 U. S. 323, has 
been frequently relied upon by state courts and the courts 
of the District of Columbia to sustain the constitutionality 
of racial restrictive covenants. An examination of the 
opinion will show that the case has been misinterpreted, 
and that the questions presented here are still undecided,

Corrigan, Buckley and others made an agreement that 
no part of the restricted property, which was located in 
the District of Columbia, should he sold to or occupied hy 
Negroes. Corrigan made a contract to sell a lot to a 
Negro, and a bill was filed to enjoin the sale. A motion 
was made to dismiss the bill on the ground that the 
covenant was void because it violated the Constitution 
and the Laws of the United States, and was against public 
policy. This motion was denied.

The case reached this Court on appeal. The defend­
ants based their appeal on the sole grounds that the 
covenant was void because it violated the Fifth, Thir­
teenth, and Fourteenth Amendments, and Sections 19<<, 
1978, 1979, Revised Statutes.

The Court refused to entertain jurisdiction and dis­
missed the appeal because the record did not present a 
constitutional or statutory question substantial in char­
acter and properly raised in the lower court.

The attack in this case was solely upon the constitu­
tionality of the covenant. The Court stated in its opinion 
that contracts between individuals did not come under the 
prohibitions of the Fifth, Thirteenth and Fourteenth 
Amendments, nor were they invalidated by Sections 1L 
1978 of the Revised Statutes. The Fifth Amendment, the



35

Court said, is a limitation upon the powers of the general 
government; the Thirteenth Amendment forbids involun­
tary servitude, but does not otherwise protect individual 
rights; and the 14th Amendment is a limitation upon state 
action, which was not involved in the case since it arose 
in the District of Columbia.

The constitutionality of the decrees of the lower court 
(as distinguished from the constitutionality of the cove­
nants) was raised upon the argument in the Supreme 
Court, but was not in the record. On this point the Court 
said, page 331:

* * this contention likewise cannot serve as a 
jurisdictional basis for the appeal. Assuming that such 
a contention, if of a substantial character, might have 
constituted ground for an appeal under Paragraph 3  

of the Code provision, it was not raised by the peti­
tion for the appeal or by any assignment of error, 
either in the court of appeals or in this court; and it 
likewise is lacking in substance.

It appears, therefore, that this point which is now 
raised in the present cases, that judicial enforcement of 
racial lestrictive covenants is forbidden governmental 
action, “ might have constituted ground for an appeal”  if 
it had been properly raised.

Since the ca se  w a s  d is m is s e d  o n  ju r i s d i c t i o n a l  g r o u n d s
tie statement “ and is likewise lacking in substance”  is
ictum on a point which the Court stated was not before 

it.



36

Conclusion

For the reasons urged herein, we respectfully ask 
that the judgments of the courts below be reversed.

N e w m a n  L e v y  
S o l  R a b k i n

R e s p e c t f u l l y  s u b m it te d ,

Jo s e p h  M. P r o s k a u e r  
Ja c o b  G r u m e t

A ttorn eys for
American Jewish Committee 
B’nai B’rith (Anti-Defamation League) 
Jewish War Veterans of the United 

States of America 
Jewish Labor Committee

Ja c o b  S c h a u m

Of Counsel



37

APPENDIX

American Jewish Committee

The American Jewish Committee is a corporation cre­
ated by an Act of the Legislature of the State of New 
York in 1906. Its charter states:

■The object of this corporation shall be to prevent 
the infraction of the civil and religious rights of Jews, 
in any part of the world; to render all lawful assist­
ance and to take appropriate remedial action in the 
event of threatened or actual invasion or restriction 
of such rights, or of unfavorable discrimination with 
respect thereto * * *.

During the forty years of our existence it has been one 
of the fundamental tenets of our organization that the 
welfare and security of Jews in America depends upon 
the preservation of constitutional guarantees. An invasion 
of the civil rights of any group is a threat to the safety 
of all groups.

For this reason we have, on many occasions fought 
in defense of civil liberties although Jewish interests were 
not specifically involved. The present racial restrictive 
covenant case is one with which we are deeply concerned. 
The pattern of discrimination in housing because of race, 
religion and color has grown ominously in recent years, 
and millions of persons are being deprived of rights that 
are freely enjoyed by others. Covenants against Jews are 
becoming more frequent, but this is not our sole interest. 
An invasion of fundamental constitutional rights on a 
nationwide scale presents to this Court a question of 
transcendent public importance.



38

B’nai B’rith (Anti-Defamation League)

B ’nai B ’rith, founded in 1843, is the oldest civic or­
ganization of American Jews. It represents a member­
ship of 300,000 men and women and their families. The 
Anti-Defamation League was organized in 1913, as a 
section of the parent organization, in order to cope with 
racial and religious prejudice in the "United States. The 
program developed by the League is designed to achieve 
the following objectives: to eliminate and counteract 
defamation and discrimination against the various racial, 
religious, and ethnic groups which comprise our American 
people; to counteract un-American and anti-democratic 
activity; to advance goodwill and mutual understanding 
among American groups; to encourage and translate into 
greater effectiveness the ideals of American democracy,

Jewish War Veterans of the United States 
of America

The Jewish War Veterans of the United States of 
America was organized in 1896 by Civil War veterans of 
the Jewish faith. At the present time it has 100,000 mem­
bers organized in 600 Posts in 275 cities throughout the 
United States. It carries an extensive veteran service 
program representing veterans before the Veterans Ad­
ministration, conducts hospital and rehabilitation pro­
grams for veterans, gives advice, guidance and counseling 
through nineteen offices throughout the United States. I 
carries on Americanism programs and, in general, pro­
grams similar to those of the American Legion, Veterans 

of Foreign Wars and other veteran organizations.



39

Jewish Labor Committee

The Jewish Labor Committee is an organization rep­
resenting 500,000 affiliated Jewish trade unionists belong­
ing to the A.F. of L. and C.I.O. Included among its affili­
ations are the International Ladies Garment Workers’ 
Union, A.F. of L., United Hat and Cap and Millinery 
Workers, A.F. of L. and the Amalgamated Clothing 
Workers of America, C.I.O. as well as many smaller or­
ganizations. It functions in behalf of these organizations 
for the protection of Jewish and Jewish labor interests 
throughout the world. On the American scene it conducts 
extensive educational work in behalf of good human rela­
tions within the A.F. of L., the C.I.O. and independent 
unions, and overseas it provides aid and assistance to 
labor and Jewish labor, cooperative and cultural insti­
tutions.



(199-B)







Nos. 72, 87, 290, 291

§ujjrmp (Emtri of %  lotted States
OCTOBER TERM, 1947

J. D. Shelley, et al., Petitioners, 

v.

Louis K raemer, et al.

Orsel McGhee and M in n ie  S. M cGhee, his wife, Petitioners,

v.

Benjamin J. Sipes, and A n n a  C. Sipes, James A. Coon 
and A ddie A . Coon, et al.

J a m e s  M. H urd and M ary I. H urd, P etitioners,

Frederic E. H odge, et al.

Raphael G. Urciolo, R obert H. R owe, Isabelle J. R owe, 
et al., Petitioners,

v.
Frederic E. H odge, et al.

ON WRITS O F C E R T IO R A R I  T O  T H E  S U P R E M E  C O U R T S  O F  M I S S O U R I  A N D  

M ICHIGAN A N D  T H E  C O U R T  O F  A P P E A L S  F O R  T H E  D I S T R I C T  O F  C O L U M B I A

BRIEF o f  THE AMERICAN JEWISH CONGRESS, 
AMICUS CURIAE

AMERICAN JEWISH CONGRESS,
Harry Kalven, Jr.
Byron S. Miller,

of the Illinois Bar,
John S. Bernheimer, 

of the Pennsylvania Bar, 
'' Illiam Strong,

°f the California Bar,

W illiam  M aslow ,
S had Polier,
Joseph B. R obison,

of the New York Bar,

A ttorn eys.





TABLE OF CONTENTS

PAGE
Interest of the American Jewish Congress________,,_ 2
Statement -----   2
The Issues to Which This Brief Is Addressed..............  4
Summary o f A rgu m en t..........................................................  4

Argument .........    6
I—The action of a court in enforcing a contract is 

government action which is subject to the limita­
tions of the Fifth and Fourteenth Amendments 
to the Constitution__________________________  6

II—The constitutionality of court enforcement of a 
contract requiring racial or religious discrimina­
tion must be determined by resolving the con­
flict between the considerations against such dis­
crimination by governments and the considera­
tions in favor of implementation by government 
of the freedom of action by private individuals 9
A. The constitutional restraint on govern­

mental racial and religious discrimination 9
B. The limited area of freedom of individuals

to discriminate..........................   1 1

C. The implications of governmental enforce­
ment of private contracts............................  14

D. The conflict between the policies of non­
discrimination and contract enforcement..... 19

III—The constitutional right to own and occupy prop­
erty without racial or religious discrimination 
hy State or Federal governments is impaired by 
judicial enforcement of racial and religious re­
strictive covenants....................     21

Conclusion ......... 28



11

TABLE OF AUTHORITIES

A. F. of L. v. Swing, 312 U. S. 321 (1941)  __ ___ .7,15

Block v. Hirsh, 256 U. S. 135 (1921)......................... 25
Bridges v. California, 314 U. S. 252 (1941)............ .... 7

Buchanan v. Warley, 245 U. S. 60 (1917)..... ............  10,
11, 13, 25,26,2?

Cantwell v. Connecticut, 310 U. S. 296 (1940)...7,15,19,20
Chaplinsky v. New Hampshire, 315 U. S. 568 (1942).. 20
Civil Rights Cases, 109 U. S. 3 (1883)............. 6,12,14,26
Corrigan v. Buckley, 271 U. S. 323 (1926).. ...........  7

Cox v. New Hampshire, 312 U. S. 569 (1941)___ ___  19
Gitlow v. N. Y., 268 U. S. 652 (1925)______________  19
Harmon v. Tyler, 273 U. S. 6 6 8  (1927)..................... .. 11
Hirabayashi v. United States, 320 U. S. 81 (1943)..... 9
Hurd v. Hodge,------F. 2d ------ (App. D. C., 1947).....  7
Korematsu v. United States, 323 U. S. 214 (1944)__  10
Marsh v. Alabama, 326 U. S. 501 (1946)..........15,16,18,20
Martin v. Struthers, 319 U. S. 141 (1943)..................  19
Milk Wagon Drivers v. Meadowmoor, 312 U. S. 287 

(1941) ........................... ...... ................. ................ . ?
Mitchell v. U- S., 313 U. S. 80 (1941)......... .. .............  12
Nixon v. Condon, 286 U. S. 73 (1932)......................  10
Pennoyer v. Neff, 95 U. S. 714 (1878)........
Plessy v. Ferguson, 163 U. S. 537 (1896)
Powell v. Alabama, 287 U. S. 45 (1932)...
Prince v. Mass., 321 U. S. 158 (1944) 19



PAGE
Railway Mail Association v. Corsi, 326 U. S. 8 8  (1945) 12
Reynolds v. U. S., 98 U. S. 145 (1878).. .............. .........  19
Richmond v. Deans, 281 U. S. 704 (1930).....................  11
Schenck v. TJ. S., 249 U. S. 47 (1919)_______________  19
Schneider v. State, 308 U. S. 147 (1939)............. .........  20
Smith v. Allwright, 321 U. S. 649 (1944).. ........ 16,17,18, 20
Steele v. Louisville & N . R. Co., 323 U. S. 192 (1944)__ 10,

16,17,18, 20
Thornhill v. Alabama, 310 U. S. 8 8  (1940).__________ 19
Truax v. Corrigan, 257 U. S. 312 (1921)____________  15
Truax v. Raich, 239 IT. S. 33 (1915)..............................  13
Tyler v. Harmon, 158 La. 439_____ _________________ 11
Ex parte Virginia, 100 U. S. 339 (1880).................... . 6

Yiek Wo v. Hopkins, 118 U. S. 356 (1886)___________  9

Statutes and M isce lla n eou s:

14 Stat. 27, R. S. Sec. 1978, 8  U. S. C. Sec. 42...... ........10, 25
16 Stat. 144..................................................... ................ 25
Minn. Stat. Ann., Sec. 507.18_________ _...____________  15
Hale, Rights under the Fourteenth and Fifteenth 

Amendments against Injuries Inflicted by Private 
Individuals, 6  Lawyers Guild Rev. 627 (1946)_____  13

McWilliams, Race Discrimination and the Law, 9 Sci­
ence and Society 1  (Winter, 1945)_______________  24

Nassau, Racial Restrictions on the Alienation and Use 
of Land, 21 Conn. Bar J . ,  123 (1947)........ _________ 27

Report of the President’s Committee on Civil Rights 
(Govt. Print. Off., 1947).............................. .............23, 24, 28

Watson, Action for Unity (Harpers, 1947)................... 24

I l l





Nos. 72, 87, 290, 291

IN THE

§uprm? (Enurt af to  #tat?a
OCTOBER TERM, 1947

J. D .  Shelley, et a l . ,  P etitioners, 

v.

Louis K raemer, et al.

Orsel McGhee and M in n ie  S. M cGhee, his wife, P etitioners,

v .
Benjamin J. Sipes, and A nna  C. Sipes, James A . Coon 

and A ddie A . Coon, et al.

James M .  H urd a n d  M ary I .  H urd, P etitioners, 

v.

F rederic E. H odge, et al.

Raphael G . U rciolo, R obert H. R owe, Isabelle J. R owe, 
et al., P etitioners,

v.

Frederic E .  H odge, et al.

ON WRITS OF C E R T IO R A R I T O  T H E  S U P R E M E  C O U R T S  O F  M I S S O U R I  A N D  

CHIGAN A N D  T H E  C O U R T  O F  A P P E A L S  F O R  T H E  D I S T R I C T  O F  C O L U M B I A

BRIEF o f  THE AMERICAN JEWISH CONGRESS, 
AMICUS CURIAE



2

T h e  A m e r ica n  J e w ish  C o n g re ss , an  organization  consist­
in g  o f  th ou sa n ds o f  A m e r ica n s  o f  J e w ish  faitlr and ancestry, 
re s p e c t fu lly  su bm its  th is  b r ie f  amicus curiae in the above 
en titled  cases. C on sen t to  the filin g  o f  th is brief has been 
o b ta in ed  fr o m  cou n se l f o r  p e tit io n e rs  and respondents in all 
fo u r  cases.

Interest of the American Jewish Congress

T h e  A m e r ica n  J e w ish  C o n g re ss  w as organized in part 
* * to  s a fe g u a rd  the c iv il, p o lit ica l, economic and 

re lig io u s  r ig h ts  o f  J e w s  e v e ry w h e re ”  and “  * * * to help 
p re se rv e , m a in ta in  an d  ex ten d  the d em ocra tic  way of life”.

In  the th ree  d eca d es  o f  its  ex isten ce  the Am erican Jewish 
C o n g re ss , on  fre q u e n t o cca s ion s , h as represented  the demo­
c ra tic  in te rests  o f  the J ew ish  p e o p le  b e fo r e  the courts, legis­
la tu res  an d  a d m in istra tiv e  tr ib u n a ls  o f  the State and 
F e d e ra l g ov ern m en ts . I ts  w ork , h ow ever, has never been 
con fin ed  to  the in te rests  o f  the J ew ish  p eop le  alone. It has 
b e liev ed , in d eed , th at J ew ish  in te rests  are threatened when­
e v e r  p e rsecu tion , d is cr im in a tio n  o r  h um ilia tion  are inflicted 
u p on  a n y  hum an b e in g  b eca u se  o f  h is  race, creed, color, 
n a tion a l o r ig in  o r  a n cestry .

A  ra c ia l r e s tr ic t iv e  cov en a n t im p u tes  in feriority  to the 
m em bers  o f  the ra c ia l o r  eth n ic m in o r ity  grou p  covenanted 
a ga in st. A n  a ttem p t to  ob ta in  w h at is  in  effect recognition 
o f  that im p u ta tion  b y  su it f o r  ju d ic ia l enforcem ent of the 
cov en a n t is  o f  g re a t  m om ent to  all m inorities . For these 
rea son s  the A m e r ica n  J ew ish  C on g ress  is  deeply  concerned 
w ith  the ou tcom e  o f  th ese ca ses  and  is  im pelled to submit 
th is b r ie f  amicus curiae.

Statement

T h ese  a re  fo u r  su its, the com m on  p u rp ose  o f which is to 
e n fo r ce  b y  in ju n ctio n  ce rta in  a rra n gem en ts  entered into by



3

former owners o f  rea l p r o p e r ty  in  the c it ie s  o f  S t. L ou is , 
Detroit and W ash in gton , D . C ., p u rsu a n t to  w h ich  such 
owners agreed to b a r  the sa le  to  o r  o ccu p a n cy  b y  N e g ro e s  
of such property . In  a ll fo u r  ca ses  the p u rp o se  o f  the 
respective agreem ents w a s to  m a in ta in  the resp ectiv e  co m ­
munities which th ey  a ffe c te d  as w h ite  re s id en tia l n e ig h b o r ­
hoods by preventing N e g ro e s  fr o m  liv in g  in  such  com m u n i­
ties.

Shelley v. Kraemer, N o. 72, in v o lv e s  a  com m u n ity  lo ca ted  
in St. Louis. T he cov en a n t w as en tered  in to  in  1911 and 
was to be effective  f o r  f i fty  y ea rs . T h e  a greem en t p r o ­
hibited sale or o ccu p a n cy  b y  a n y  p e rso n  n ot o f  the C aucasian  
race under pen a lty  o f  fo r fe itu r e  o f  the p ro p e r ty .

In McGhee v. Sipes, N o. 87, the re s tr ic t iv e  cov en a n t p r o ­
hibited use or o ccu p a n cy  o f  p r o p e r ty  in  D e tro it  b y  n on- 
Caucasians w ithout s p e c ify in g  a p en a lty . E n te re d  in to  in  
1934 the agreem ent w as to  con tin u e  in  e ffe c t  f o r  tw en ty -five  
years. The p u rp ose  o f  the re s tr ic t io n , as re c ite d  in  the 
instrument im posing it, w a s  “ defin ing , r e co rd in g  an d  c a r r y ­
ing out the general p lan  o f  d e v e lo p in g  the su b d iv is ion  w h ich  
has been u n iform ly  re co g n ize d  an d  fo l lo w e d ” .

Hurd v. Hodge, N o. 290, an d  Urciolo v. H odge, N o. 291, 
involve property  lo ca ted  in  W a sh in g to n , D . C. T h e  co v e ­
nant under attack in  th ese cases  p ro h ib ite d  sale to  an y  
Hegro or colored  p e rso n  u n d er p en a lty  o f  fo r fe itu r e  o f  
$2,500. The agreem ent w a s en tered  in to  in  1906 and  w as 
perpetual.

In all cases, the p r o p e r ty  in  lit ig a t io n  has been  so ld  b y  
white persons to N eg roes  f o r  th e ir  use and  occu p a n cy . In  
each case an action  to  en jo in  the use o r  occu p a n cy  b y  the 
hegro purchaser has been  b ro u g h t b y  a n oth er s ig n er  to  the 
agreement or his su ccessor  in  in terest.

In the M issouri and D is tr ic t  o f  C olu m bia  cases, the p la in ­
tiffs demanded that the tr a n s fe r  be ca n ce lled  and  that the 
. effro Purchasers be restra in ed  fr o m  occu p y in g  the p rem - 
lses’ In the M ich igan  case , w h ere  the coven a n t p roh ib ited  
Use or occupancy on ly , p la in t iffs  d em an d ed  that the N e g ro  
owner be evicted fr o m  the p r o p e r ty  he h a d  pu rch ased .



4

In  the S t. L o u is  case , the d e fe n d a n t N egro  purchasers 
w e re  su cce ss fu l in  the tr ia l co u r t  on  a  non-federal ground 
b u t the ju d g m e n t w a s  re v e rse d  on  a p p e a l and it was directed 
th a t the r e lie f  sou g h t b y  the p la in t iffs  be  granted. In the 
D e tro it  case , th e  d e cre e  o f  the tr ia l co u rt  granting the relief 
sou g h t b y  the p la in t iffs  w a s  affirm ed on  appeal. In the 
W a sh in g to n , D . C ., case , the d ecree  o f  the tria l court grant­
in g  the r e lie f  sou g h t b y  the p la in t if fs  w a s affirmed by the 
C o u rt  o f  A p p e a ls , J u s tice  E d g e r to n  d issenting.

The Issues to Which This Brief Is Addressed

O u r b r ie f  is  lim ited  to  the m o st  fundam ental question 
in v o lv e d  in  these c a s e s : w h eth er en forcem en t o f the cove­
nants b y  co u rts  o f  the D is tr ic t  o f  C o lu m bia  and the States 
v io la te s  the due p ro ce s s  c la u se  o f  the F ifth  and Fourteenth 
A m en d m en ts  an d  the equal p ro te c t io n  clause o f the latter.

Summary of Argument

I . T h e  co n stitu t io n a l re s tra in ts  on  governm ental action 
a p p ly  to  a ll b ra n ch es  o f  the g ov ern m en t including the judi­
cia l. J u d ic ia l a ction  h as been  h e ld  su b je ct  to  constitutional 
re s tra in t  in  b o th  its  p ro ce d u ra l a n d  its  substantive aspects.

E n fo r ce m e n t  o f  re s tr ic t iv e  cov en a n ts  involves the full 
a u th o r ity  o f  the S tate . T h e  com p u ls ion  exercised differs 
in  n o  co n stitu t io n a lly  s ign ifica n t w a y  fr o m  other forms of 
state  a ction .

H A . T h e  C on stitu tion  cre a te s  a r ig h t  against racial or 
re lig io u s  d iscr im in a tion  b y  S ta te  o r  F ed era l governments. 
A lth o u g h  the r ig h t  thus p ro te c te d  m ust be measured 
aga in st o th er  r ig h ts  w h ich  con flict w ith  it, the only superior 
r ig h t  w h ich  th is C o u rt  h as e v e r  recog n ized  is the right 
o f  the n a tion  in  w a rtim e  to  p ro te c t  its  existence.

I I B . T h e  S ta te  an d  F e d e ra l govern m en ts , in their proper 
sp h eres , m a y  p re v e n t d is cr im in a to ry  acts b y  private in­
d iv id u a ls . S o  lo n g  as the d iscr im in a tion  remains in the



area o f voluntary  in d iv id u a l a ction , the F i f t h  a n d  F o u r ­
teenth Am endm ents h a v e  n o  a p p lica tio n . W h e re , h o w ­
ever, the d iscrim in a tory  d e c is io n s  o f  in d iv id u a ls  a re  e ffe c ­
tuated by state a ction , con stitu t ion a l re stra in ts  a p p ly , 
since the A m endm ents p ro h ib it  state  a ction , in  a n y  fo rm , 
which compels d iscr im in a tion  b y  in d iv id u a ls  a g a in st each  
other.

IIC. Not on ly  the p o lic y  a g a in st g ov ern m en t d iscr im in a ­
tion but also the p o lic y  o f  e n fo r c in g  con tra cts  a re  p a r t  o f  
all State and F e d e ra l le g a l system s. T h e  g e n e ra l la w  o f  
contract en forcem ent m a y  be an d  is  lim ited  in  v a ry in g  
respects by each gov ern m en t. H en ce , it  m akes n o  d if fe r ­
ence, from  a con stitu tion a l p o in t  o f  v iew , w h eth er r e s tr ic ­
tive covenants are e n fo r ce d  b eca u se  o f  r e fu s a l b y  a  S tate  
to make an excep tion  fr o m  its  g e n e ra l ru le  o r  becau se  o f  
a specific statute g iv in g  th em  v a lid ity . S im ila r ly , n o  co n ­
stitutional d istin ction  can  be  m ad e  betw een  en fo rcem en t 
pursuant to com m on la w  an d  e n fo rcem en t u n d er a statute. 
Finally, it m akes n o  con stitu tion a l d iffe re n ce  th at the d is ­
crimination w hich is  e ffe c te d  is  in itia ted  b y  an  in d iv id u a l 
and put into e ffect b y  the c o u r t ’s a p p lica tio n  o f  a g en era l 
rule. The decisive fa c t  is  th at th ere  is  n o  e ffe c te d  d iscr im i­
nation until the cou rt bases its  d e c is io n  on  the ra ce  o r  
religion o f the p a rties  b e fo r e  it.

HD. Fam iliar con stitu tion a l p r in c ip le s  o f  a ccom m od a ­
tion supply the basis  f o r  re so lv in g  the con flict w h ich  ex ists  
here between the p o lic y  o f  g ov ern m en ta l n on -d iscr im in a tion  
and the policy o f  e n fo r c in g  con tra cts . T h e  leg itim a te  cla im s 
of the latter m ust be w e ig h ed  a g a in st th ose  o f  the fo rm e r , 
taking into con sid era tion  n ot o n ly  the im p orta n ce  o f  each 
policy but also the ex ten t to  w hich  each  is  th rea ten ed  w ith  
impairment.

HI. The restrictive  coven a n t d ev ice  has p rev en ted  n o r ­
mal expansion o f  m in o r ity  g ro u p s  in to  new  n e ig h b orh ood s  
and has thereby g en era ted  the so c ia l ev ils  o f  crim e, d is- 
ease> prostitution and  u nrest. A cco m p a n y in g  these ev ils  
is a dangerous d esp a ir  and  d isb e lie f in  d em ocra tic  va lu es.



6

T h e  w id e  u se  o f  r e s tr ic t iv e  cov en a n ts  also, has the effect 
o f  fo r c in g  w h ite  C h ristia n  b u y ers  to  a ccep t a  practice whicli 
m a y  b e  rep u g n a n t to  them . T h u s  the ju d ic ia lly  enforced 
coven a n t, b y  e sta b lish in g  d is cr im in a to ry  patterns, breed? 
n ew  p r e ju d ice s  w h ich  w o u ld  n o t  o th erw ise  com e to life.

C o u rt  en fo rce m e n t o f  re s tr ic t iv e  coven a n ts  has a direct 
e ffe c t  on  the ex c lu d ed  p u rch a sers  w h ich  is  offensive to 
co n stitu t io n a l p r in c ip le s . H o u s in g  is  a necessity of life 
w ith ou t w h ich  a ll o th er  con stitu t ion a l righ ts  lose their 
va lu e .

F in a lly , in  g ra n tin g  en fo rce m e n t o f  restrictive cove­
n ants, co u rts  sa n ction  an  even  m o re  e ffe c tiv e  discrimina­
t o r y  d e v ice  th an  th at w h ich  is  p ro h ib ite d  in  legislation.

In  v ie w  o f  the e v ils  w h ich  en fo rce m e n t o f  restrictive cove­
nants thus gen era tes , the co n s id e ra tio n s  in  fa v o r  o f general 
en fo rce m e n t o f  co n tra c ts  a re  c le a r ly  outw eighed  by the 
n eed  f o r  p ro te c t in g  the r ig h t  o f  a ll m en  to  be free  of nnjnst 
ra c ia l and  re lig io u s  d iscr im in a tion  b y  S tate  and Federal 
govern m en ts .

ARGUMENT 

POINT I

The action of a court in enforcing a contract is gov­
ernment action which is subject to the limitations of 
the Fifth and Fourteenth Amendments to the Consti­
tution.

In  on e  o f  its  ea r lie st  d ec is ion s  im p lem en tin g  tbe broad 
p r in c ip le s  o f  the F ou rteen th  A m en dm en t, this Court held, 
in  1880, th at the p ro h ib it io n s  o f  the F ou rteen th  A m endm ent 
“ h ave re fe re n ce  to  a ction s  o f  the p o lit ica l b o d y  denom ina ted  
a S ta te , b y  w h a tev er  in stru m en ts  o r  in whatever modes 
that a ction  m a y  be taken. A  S ta te  acts b y  its le g is la tive , 
its  ex ecu tiv e , o r  its  ju d ic ia l  a u th o r it ie s .”  E x parte Virgin^ 
100 U . S. 339, 346-347 (1 8 8 0 ). T h e re a fte r , in tbe Civil 
Rights Cases, 109 U . S . 3 (1 8 8 3 ), in  w h ich  the scope of the



7

Amendment w as a g a in  c a re fu lly  rev iew ed , th is C ou rt ex ­
cluded from  op e ra tio n  o f  the A m en d m en t o n ly  th ose  
“wrongful acts o f  in d iv id u a ls , [w h ich  a re ] u n su p p o rte d  b y  
State authority in  the sh ape o f  law s, cu stom s, o r  ju d ic ia l 
or executive p ro ce e d in g s ”  (109 U . S . a t 1 7 ). D u r in g  the 
intervening 64 y ea rs  th is C o u rt  h as on  m a n y  occa s ion s  
found it necessary to  determ in e  w h eth er  “ state a ct io n ”  w as 
present in a  p a rticu la r  case  b e fo r e  it  d eterm in ed  w h eth er 
the action invaded  r ig h ts  p ro te c te d  b y  the F ift h  o r  F o u r ­
teenth Am endm ents.

All “ p rocedural”  a ction s  o f  the ju d ic ia r y  h ave been  h e ld  
to be “ state a ction ” . T h is  in clu d es  both  co u rt  ru les o f  
procedure (Pennoyer v. N eff, 95 U . S . 714 [1 8 7 8 ] ) ,  an d  ac­
tual procedural steps taken  in  p a rticu la r  cases  w ith ou t 
benefit o f court ru le  ( Powell v. Alabama, 287 U . S . 45 
[1932]).

On the substantive s ide, th is C ou rt has a lso  h e ld  that 
judicial action in p u n ish in g  f o r  a  con tem p t o f  c o u r t  is 
“state action”  ( Bridges v. California, 314 U. S . 252 [1 9 4 1 ] ) . 
Judicial punishm ent f o r  a re cog n ized  com m on  law  crim e 
has been declared  “ state  a c t io n ”  ( Cantwell v. Connecticut, 
310 U. S. 296 [1 9 4 0 ]) , as has an  in ju n ctio n  d ire cted  aga in st 
a common law to rt  to  p ro te c t  private  in terests  {A . F . o f L. 
v. Swing, 312 U . S . 321 [1 9 4 1 ] ; Milk W agon D rivers  v. 
Meadowmoor, 312 U . S . 287 [1 9 4 1 ] ) .

This Court has n ot, to  co u n se l’ s k n ow led ge , ev er  p a ssed  
upon the question w h eth er co u rt  a ction  in  e n fo r c in g  a co n ­
tract is “ state a ction ” , the q u estion  p resen ted  in  th is ca se .1

1 We do not discuss here the dictum of this Court in Corrigan v. 
Buckley, 271 U. S. 323 (1926), which is often cited in opposition to 
the position which we take. We consider the granting of the petitions 
for certiorari in these cases sufficient indication that this Court does 
not view that decision as being decisive of the present issue. We 
respectfully refer the Court to the dissenting opinion of Justice Edger-
ton in Hurd v. H odge, ...... F. 2d ......  (App. D. C., 1947), for an
analysis of Corrigan v. B uckley. We respectfully urge further that,
' Court should find that any portion of the decision in the 
Corrigan case supports the position taken by respondents here, it 
should hold that, in the light of recent developments in the inter­
pretation of the Constitution, that portion should be overruled.



8

W e  subm it, h ow ev er , that it  d oes  n ot req u ire  elaborate ar­
gu m en t to  su p p o rt  the con clu s ion  th at “ state action” is 
p re se n t in  such  cases.

R e s tr ic t iv e  cov en a n t lit ig a t io n  d oes  n ot arise until pri­
vate  p e rsu a s io n  o f  the ow n er  o f  the su b je ct  property has 
fa ile d . P la in t i f fs ’ e f fo r ts  h ere  to  ob ta in  m andatory injunc­
tion s  a re  in  e v e ry  sense a ttem p ts  to  co e rce  the property 
ow n ers  an d  the N e g ro  p u rch a se rs  b y  the fu llest invocation 
o f  the S ta te ’s c o m p u ls o ry  m a ch in ery — in ju n ction , contempt 
p ro ce e d in g s , ja i l  o r  fine f o r  con tem p t and  probably  forcible 
ev ic t ion  b y  the sh e r iff  as w ell.

C erta in ly  the a ction s  taken  b y  the ju d ic ia r y  in the pres­
ent cases  d if fe r  in  n o  co n stitu t io n a lly  sign ificant way from 
o th er  fo r m s  o f  sta te  a ction . T h e  d ecrees  enforcing the 
re s tr ic t iv e  re g u la tio n  a re  b a ck ed  b y  the con tem pt powers of 
the cou rt. T h e  p a rtie s  to  w h om  th ey  are addressed are 
co m p e lle d  to  c o m p ly  b y  the th rea t o f  fines lim ited  in amount 
o n ly  b y  ju d ic ia l d is cre t io n  a n d  b y  im prison m en t continuing 
in d e fin ite ly  until com p lia n ce . T h is  is  a  fa r  m ore effective 
d ev ice  f o r  in v o k in g  the fu ll  p o w e rs  o f  the government than 
th at in v ok ed  in  m a n y  o f  the cases, in v o lv in g  minor penal 
law s a n d  even  le sser  reg u la tion s , in  w h ich  this Court has 
g ra n ted  p ro te c t io n  u n d er the C on stitu tion .

In  sum , w h ere  a  S ta te  uses its  p o w e r  to compel or re­
stra in  acts  b y  p r iv a te  in d iv id u a ls , i t  m akes no difference 
w h ich  b ra n ch  o f  the gov ern m en t ex erc ises  the compulsion. 
A s  w e  shall n ow  show , the d ec is iv e  q u estion  in these eases 
is  w h eth er  the fr e e d o m  fr o m  g ov ern m en ta l discrimination 
w h ich  the co u rt  a ction  in fr in g e s  is  o f  su ch  a  nature as to 
h ave  a su p e r io r  cla im  to  p ro te c t io n  o v e r  the right of gov­
ern m en ts u n d er th e ir  p le n a ry  p o w e rs , to  enable individuals 
to  d isp o se  o f  th e ir  ow n  a ffa ir s  b y  con tra ct.



9

POINT II

The constitutionality of court enforcement of a con­
tract requiring racial or religious discrimination must 
be determined by resolving the conflict between the 
considerations against such discrimination by govern­
ments and the considerations in favor of implementa­
tion by government of the freedom of action by private 
individuals.

A. The constitutional restraint on governmental racial and 
religious discrimination.

e

This Court held  as e a r ly  as 1886 th at g ov ern m en ta l d is ­
crimination p rom p ted  so le ly  b y  “ ra ce  an d  n a tio n a lity  * * * 
in the eye o f  the law  is  n ot ju stified . T h e  d iscr im in a tion  
is, therefore, illega l, an d  the p u b lic  a d m in istra tion  w h ich  
enforces it is a d en ia l o f  the eq u a l p ro te c t io n  o f  the law s 
and a violation o f  the F o u rte e n th  A m en dm en t o f  the C on ­
stitution” (Yick W o  v. Hopkins, 118 U . S . 356, 374 [1 8 8 6 ] ) . 
This thought w as v ig o r o u s ly  re sta ted  b y  th is C ou rt w ith  
reference to the F ifth  A m en d m en t in  Hirabayashi v. United 
States, 320 U. S . 81, 100 (1 9 4 3 ) :

D istinctions b etw een  citizen s so le ly  becau se  o f  th eir  
ancestry are b y  th e ir  v e r y  n a tu re  o d iou s  to  a fr e e  p e o ­
ple whose in stitu tion s are  fo u n d e d  u p o n  the d octr in e  o f  
equality. F o r  that rea son , leg is la tiv e  cla ss ifica tion  o r  
discrimination ba sed  on  race  a lon e  h as o fte n  been  held  
to be a denial o f  equal p ro te ction .

Like all other con stitu tion a l r ig h ts , h ow ev er , the r ig h t to 
he free from  racia l o r  re lig iou s  d iscr im in a tion  b y  the S tate 
must be m easured aga in st o th er  r ig h ts , w h ere  th ey  con flict. 
Where the govern m en t it s e lf  in itia tes  an d  im p oses  d istin c- 
h°ns, it is our p o s it io n  that th ere  is  n o  s itu a tion  in  w h ich  
anf  legitmate dem and  o f  the p e o p le  on  th e  S ta te  w ou ld  
justify distinctions b a sed  on  race  o r  re lig ion . H ow ev er , 
this Court d id  find such a ju s tifica t io n  in  the Hirabayashi



10

case, supra, and in Korematsu v. United States, 323 U. S. 
214 (1944), where it approved regulations restricting Amer­
ican citizens of Japanese ancestry because of an immediate 
wartime emergency. It found that there was a danger of 
sabotage and espionage which might assist an enemy inva­
sion, a danger created by the existing social and legal 
restrictions placed on persons of Japanese ancestry which 
had prevented their complete integration as part of the 
general population. This Court made clear, however, that 
although “ Pressing public necessity may sometimes justify 
the existence of such restrictions; racial antagonism never 
can” (Korematsu case, 323 U. S. at 216). Short of such 
an unusual situation, regulations»establishing “discrimi­
nations based on race alone are obviously irrelevant and 
invidious” (Steele v. Louisville & N. B. Co., 323 U. S. 192, 
203 [1944]).

In Buchanan v. Warley, 245 U. S. 60 (1917), this Court 
held that the Fourteenth Amendment, as well as 8 U. S. C. 
42 (14 Stat. 27), forbids state action aimed at segregation 
of races in the use and enjoyment of land, and specifically 
rejected the argument that such state-imposed segrega­
tion was justified by the need to preserve the public peace. 
That case involved the validity of a municipal ordinance 
which in substance forbade Negroes to occupy property 
in predominantly white areas and vice versa. This Court 
held the ordinance void, saying (at 78-79):

The statute of 1866, originally passed under sanction 
of the Thirteenth Amendment, 14 Stat. 27, and prac­
tically reenacted after the adoption of the Fourteenth  
Amendment, 16 Stat. 144, expressly provided that all 
citizens of the United States in any State s h a ll have 
the same right to purchase property as is enjoyed by 
white citizens. Colored persons are citizens of the 
United States and have the right to purchase property 
and enjoy and use the same without laws d iscrim in at­
ing against them solely on account of color. Hall v. 
DeCuir, 95 U. S. 485, 508.



11

It quoted with approval the conclusion, reached by a State 
court in a similar case, that (at 80):

The effect of the ordinance under consideration was 
not merely to regulate a business or the like, but was 
to destroy the right of the individual to acquire, enjoy, 
and dispose of his property. Being of this character, 
it was void as being opposed to the due process clause 
of the constitution. (Emphasis added.)

The decision in the Buchanan case gave full weight to the 
argument that “there exists a serious and difficult problem 
arising from a feeling of race hostility which the law is 
powerless to control, and to which it must give a measure 
of consideration” (245 U. S., at p. 80). It was held never­
theless, that this consideration was insufficient to warrant 
“depriving citizens of their constitutional rights and privi­
leges” {id., at pp. 80-81).

Following Buchanan v. Warley, this Court brushed aside 
an attempt to circumvent that decision by combining vol­
untary private action with the state regulation.2 It thereby 
clearly established the principle that States may not im­
pose racial segregation in housing upon property owners.

B. The limited area of freedom of individuals to discriminate.

Both State and Federal governments have wide powers 
to prohibit discrimination by private individuals. Each, 
in its appropriate sphere, may make reasonable regulations 
curbing the freedom of individual choice in order to achieve 
legitimate public ends. Thus, States may prohibit discrim-

2Harmon v. Tyler, 273 U. S. 668 (1927). The case involved a 
Nw Orleans ordinance which barred whites or Negroes from any 
'community or portion of the city * * * except on the written consent 
of a majority of the opposite race inhabiting such community or por­
tion of the city.” (See T yler v. H arm on, 158 La. 439, 441.) This 
ordinance was held unconstitutional by this Court in a per curiam 
opinion relying upon the authority of Buchanan v. W arley. See also 
Richmond v. Deans, 281 U. S. 704 (1930).



1 2

illation, for example, in places of public accommodation® 
and the Federal government may also do so in the exercise 
of its power to regulate interstate commerce.3 4

Regulations such as those described above do not rest 
upon the prohibitions of the Fifth and Fourteenth Amend­
ments. They deal with discriminatory activity in the area 
of voluntary individual action. This is the sole area 
which, under the decisions of this Court, lies outside the 
scope of the Amendments.

The Civil Rights Cases, 109 U. S. 3 (1883), which estab­
lished the inapplicability of the Fourteenth Amendment to 
“private action”, involved a Federal statute requiring non- 
discriminatory treatment on account of race or color in 
specified types of public accommodations, with violations 
criminally punishable.

This Court struck down the statute because “it steps 
into the domain of local jurisprudence, and lays down rules 
for the conduct of individuals in society towards each 
other, and imposes sanctions for the enforcement of those 
rules, without referring in any manner to any supposed 
action of the State or its authorities”  (109 U. S. at 14; 
emphasis supplied).

The area which was thus excluded from the operation 
of the Fourteenth Amendment was carefully delineated 
in the decision. It was held that the rights protected by 
the Amendment are “ secured by way of prohibition against 
State laws and State proceedings affecting those rights" 
(at 11). The scope of the decision was narrowly limited 
to the situation where “the wrongful acts of individuals 
[are] unsupported by State authority in the shape of laws, 
customs, or judicial or executive proceedings” (at 17).

3 Many States have statutes prohibiting racial and religious dis­
crimination by stores, restaurants, theatres and similar enterprises 
which serve the public generally. This Court has upheld a statute 
which prohibits racial and religious discrimination by labor unions m 
the admission of members. Railway M ail Association v. Corsi, 326 
U . S. 88 (1945).

4 M itchell v. U. S., 313 U. S. 80 (1941).



13

The Amendment was held inapplicable only where indi­
vidual action was “not sanctioned in some way by the 
State, or not done under State authority” (ibid.). The 
individual was held free of the constitutional restraint on 
discrimination “unless protected in [his] wrongful acts 
by some shield of State law or State authority” (ibid.). 
See Hale, Rights under the Fourteenth and Fifteenth 
Amendments against Injuries Inflicted by Private Indi­
viduals, 6 Lawyers Guild Rev. 627 (1946).

But while the Fifth and Fourteenth Amendments do not 
restrain individual voluntary discrimination, they do re­
strain state action which requires individual acts of dis­
crimination; under the Amendments, individuals may de­
mand that the government refrain from compelling dis­
crimination by others with whom they may deal. That 
was indeed the nature of the right defined by this Court 
in Truax v. Raich, 239 U. S. 33 (1915), and, somewhat less 
explicitly, in Buchanan v. Warley, 245 U. S. 60 (1917).

The Truax case was a successful suit by an alien to in­
validate a State statute limiting the employment of aliens 
by private employers. This Court said (239 U. S. at p. 38) r 
“The employe has manifest interest in the freedom of the 
employer to exercise his judgment without illegal inter­
ference or compulsion * * *.” When it held that the statute 
violated the equal protection clause, this Court was pro­
tecting the alien’s right to an independent decision by the
employer whether or not to hire him. The parallel with the 
sale of land is clear: the seller (employer) is free to but 
need not sell to (hire) the Negro or Jew (alien).

Buchanan v. Warley involved a city ordinance prohibit­
ing Negroes from moving into blocks where the majority 
°f homes were occupied by whites, and vice versa. This 
Court said (245 U. S. at p. 81): “ The right which the 
ordinance annulled was the civil right of a white man to 
dispose of his property if he saw fit to do so to a person 
°f color and of a colored person to make such disposition 
to a white person.” Here the Court was protecting the



14

seller’s right to make an independent decision, even though 
such a decision might have had the same ultimate effect as 
the ordinance—refusal to sell to a Negro.

In both cases, the constitutional right invaded was the 
right to freedom from a State-compelled discriminatory de­
cision. This is the very right which is invaded by court 
decrees in restrictive covenant litigation.

This Court in first interpreting the Fourteenth Amend­
ment could have held that it created an absolute right to 
non-discrimination and could have established a correspond­
ing constitutional protection against “private action”. Even 
as limited by the Civil Rights Cases, however, the thrust of 
the Amendment toward equal rights for all men was con­
siderable. It struck down State compulsion of discrimina­
tion with its attendant imbedding of prejudice. True, the 
resulting rule leaves individual acts of prejudice untouched, 
but at least educational, economic and social forces have 
a chance to be more effective if individual decisions cannot 
be petrified by laws or courts. By requiring that each act 
of discrimination be a fresh act of prejudice, the Amend­
ment forces individual prejudice to sustain itself.

C. The implications of governmental enforcement of private 
contracts.

The constitutional restraint upon racial and religious dis­
crimination by governments is necessarily a part of the 
legal system of every State as well as the Federal union. 
Governments also have another policy embedded in their 
law, that of permitting individuals to make contracts con­
cerning their property and affairs and of enforcing such 
contracts through the courts. Centuries of experience have 
justified this law. It is necessary to the functioning of oar 
economy that individuals be empowered to plan their affairs 
jointly for the future, and to put such joint plans beyond 
the reach of unilateral amendment. This is indeed not only 
a legitimate but an essential objective of State action.



15

Like all general laws, the policy of enforcing contracts 
has its exceptions. States may and do declare some con­
tracts unenforceable. They may be held contrary to public 
policy or general provisions of State constitutions. They 
may be excluded from the general enforcement rule by spe­
cific legislation.6

When a State so limits its general law it unquestionably 
makes a deliberate, conscious decision. To the same extent 
the State acts consciously when its legislature fails to 
exclude other types of contract from its general enforce­
ment law, or when its courts, refusing to find that enforce­
ment of such contracts is illegal or contrary to public 
policy, grants their enforcement.

Such enforcement is neither automatic nor purely admin­
istrative. If the restrictive covenants in these cases had 
been enforced pursuant to statutes specifically making such 
covenants enforceable, there could be no doubt about the 
existence of “state action”. Enforcement in the absence 
of statute is “state action” to the same extent.

Determination of the consitutionality of a rule of law 
does not depend on whether it rests on statute or judicial 
decision. This Court has previously drawn no distinction, 
for constitutional purposes between legislation and common 
law rules of similar purport. Enjoining picketing as a tort 
lias been treated as “ state” action whether the tort was 
governed by statute or common law. Cf. AFL v. Swing, 
312 U. S. 321 (1941), and Truax v. Corrigan, 257 U. S. 312 
(1921); Cantwell v. Connecticut, 310 U. S. 296 (1940). We 
do not believe any different result would have been reached 
b7 this Court in Marsh v. Alabama, 326 U. S. 501 (1946), 
discussed below, if the trespass had there been punished as 
a common law crime rather than as a statutory offense, or 
wen if it had been dealt with in the State court by injunc­
tive action or in a civil suit for damages,

“ For example, a Minnesota statute (Minn. Stat. Ann., Sec. 507.18) 
provides that no instrument relating to real property may contain a 
restriction prohibiting conveyance to any person because of religion.



16

Finally, it makes no difference that the racial discrim­
ination here was initiated by private individuals and was 
enforced by the courts below in accordance with general 
non-discriminatory law. The discrimination was ineffec­
tive without State aid. Not until the courts below looted 
at the race of the parties before them and based the out­
come o { the litigation on the result of that examination did 
there occur any interference with constitutional liberties. 
That is the essence of the governmental discrimination here 
challenged. “Delegates of the State’s power have dis­
charged their official functions in such a way as to discrim­
inate invidiously between white citizens and black” (Nixon 
v. Condon, 286 U. S. 73, 89 [1932]).

The irrelevance of the private origin of discrimination 
which is imposed by the State is established by the de­
cisions of this Court in Marsh v. Alabama, 326 U. S. 501
(1946); Smith v. Allwright, 321 U. S. 649 (1944), and Steele 
v. Louisville & Nashville R. R. Co., 323 U. S. 192 (1944). 
Each of these cases involved the application of general, 
non-discriminatory and otherwise valid law in a manner 
Avhich unconstitutionally effectuated the decisions of pri­
vate agencies.

In the Marsh case, the proprietors of a company-owned 
town, who owned in fee all of the land in the town includ­
ing the streets, denied Marsh access to such streets when 
she sought to go upon them for the purpose of distributing 
religious literature. Marsh, having refused to leave these 
“private” premises, was convicted of violating a local stat­
ute which, in general terms, made trespass after warning 
a crime. This Court held that the conviction was State 
action in violation of the guarantees of the Fourteenth  
Amendment.

The gist of this decision was that the legal system of 
Alabama must in some way permit religious freedom in 
company-owned towns. This Court was in no way ham­
pered by the fact that the law under which the company s 
discrimination was made effective was a general one which 
made no specific reference to company-owned towns or 
to religious activities and which, in its ordinary applies-



17

tion, was unquestionably valid. By legislation or judicial 
decision, Alabama might have provided the freedom which 
this Court held essential or it might have specifically denied 
that freedom. Its disposition of the matter, instead, under 
general principles, did not prevent this Court from hold­
ing that that aspect of its law which enabled private citi­
zens, with State aid, to limit freedom of speech or religion 
was unconstitutional.

In Smith v. Allwright, supra, the law of Texas provided 
that the ballot in state-conducted elections list the names 
of persons chosen by political parties and specified to some 
extent the manner in which the parties were to select these 
nominees. The State Convention of the Democratic Party 
of Texas excluded Negroes from its membership and hence 
from participation in the Democratic Party. This Court 
held that despite the Texas law and the action of the 
Democratic Party, a Negro could not be refused a ballot 
in the Democratic primary. It made no difference that 
there was nothing discriminatory about the State statute 
itself or that the discrimination originated with a private 
organization. It was decisive that operative effect was 
given to the private discriminatory membership rule by 
Texas law. By giving such effect in its electoral process, 
to the choice made by an otherwise private agency, the State 
made that choice subject to constitutional restraint.

The application of this doctrine to discriminatory con­
tracts was dealt with by this Court in the Steele case, a suit 
hy a Negro railroad employee to enjoin the enforcement of 
a discriminatory agreement between a union and his em­
ployer. The general majority rule principle of the Railway 
Labor Act made the union the exclusive bargaining repre­
sentative for the craft of which the plaintiff was a member 
and, by no more than implicit incorporation of the general 
aw of contract enforcement, made the contract executed 
7 that union enforceable against the minority in court. 

This Court held (323 IT. S. at p. 198):
If the Railway Labor Act purports to impose on 

petitioner and the other Negro members of the craft 
the legal duty to comply with the terms of a contract



18

whereby the representative has discriminatorily re­
stricted their employment for the benefit and advantage 
of the Brotherhood’s own members, we must decide 
the constitutional questions which petitioner raises in 
his pleading.

Here again, the discrimination was private in origin and 
raised questions of constitutional restraint only because 
of the general non-discriminatory law which gave it effect.

Here, the governments whose actions are under review 
have in effect told the owners of land within their jurisdic­
tion that they may adopt regulations, prompted by purely 
private considerations, which contain discriminatory re­
strictions on the future disposition of their land, and that, 
if they do so, the courts will give these regulations the effect 
of law, an effect which they could not have without state 
action. We submit that a law, however expressed, which 
embodies this policy, must necessarily be tested against the 
restraints imposed by the constitution on governmental 
action. Where private individuals engage in discriminatory 
conduct, and the State “ enforces such action” (Marsh case, 
supra, at p. 508), or makes such action “part of the ma­
chinery” of its functioning (Smith case, supra, at p. 664), 
or requires other individuals to conform to the contractual 
discriminatory pattern thus established (Steele case, 
supra), the state action may be challenged.®

0 Of course, proceedings to enforce private contracts rarely raise 
constitutional issues. Just as the vast bulk of State and Federal 
regulatory legislation raises no questions under the Fifth or Four­
teenth Amendments although it is manifestly “state action”, so most 
judicial enforcement of contracts contains no indication of interfer­
ence with constitutional guarantees. Moreover, contracts which 
would be likely to be held to violate a constitutional right rarely react 
a decision on the constitutional question because courts invoke doc­
trines of “public policy” to refuse enforcement. If, however, a State 
court were willing, as a matter of public policy (purely a State ques­
tion), to enforce a contract to commit a crime, it is most likely® 
this Court would hold such enforcement to be an unconstitutional 
denial of substantive due process, thus treating the enforcement o 
contracts as “state action”. State public policy doctrines may ohviajj 
the need for dealing with the constitutional question in most sue 
cases but they cannot affect the existence of residual constitutions, 
protection.



19

D. The conflict between the policies of non-discrimination and 
contract enforcement.

The policy against governmental discrimination and the 
policy of enforcing private contracts may conflict, as they 
do here. Where such a conflict arises, familiar principles 
control the process of “weighing the two conflicting inter­
ests”.7 It is well established, for example, that freedom 
of speech, press, religion and assembly may be limited in 
favor of the right of the people to protect the state,8 public 
order,9 child welfare,10 and morality.11. In such cases, the 
States in the first instance, and ultimately the courts re­
viewing their action, must perform the task of “balancing 
these interests against the interest of the community and 
that of the individual in freedom of discussion on matters 
of public concern”.12

It is not only the relative importance of the objectives of 
the two policies which must be considered but also the 
extent of the threatened impairment of each. “ In every 
case the power to regulate must be so exercised as not, in 
attaining a permissible end, unduly to infringe a protected 
freedom.” (Emphasis supplied.)13 It is only those “ in-

I Cantwell v. Conn., 310 U. S. 296, 307 (1940) (statute requiring
prior approval of solicitation for religious purposes) ; Martin v. 
Struthers, 319 U. S. 141, 143 (1943) (prohibition of door to door 
distribution of circulars).

tSchenck v. U. S., 249 U. S. 47 (1919) (conviction under Es­
pionage Act for distributing literature obstructing draft) ; Gitlow v. 
hi. Y 268 U. S. 652 (1925) (statute prohibiting advocacy of crim­
inal anarchy).

II Cox v. New Hampshire, 312 U. S. 569 (1941) (application to 
religious procession of statute requiring permit for parades).

Prince v. Mass., 321 U. S. 158 (1944) (application to religious 
activity of statute regulating child labor).

11Reynolds v. U. S., 98 U. S. 145 (1878) (polygamy).
12 Thornhill v. Alabama, 310 U. S. 88, 105 (1940) (statute pro­

hibiting picketing).
13 Cantwell case, 310 U. S. at 304. See also Cox v. Nezv Hamp- 

asŝ 'b'A” U. S. 569, 574: “unwarrantedly abridged the right of



20

admissible” obstacles which “unreasonably obstruct” dis­
semination of views which are prohibited.14 Thus, utter­
ances may be barred where they “ are no essential part of 
any exposition of ideas, and are of such slight social value 
as a step to truth that any benefit that may be derived from 
them is clearly outweighed by the social interest in order 
and morality”.15 “And so, as cases arise, the delicate and 
difficult task falls upon the courts to weigh the circumstances 
and to appraise the substantiality of the reasons advanced 
in support of the regulation of the free enjoyment of the 
rights.” 16

Implementation of freedom of private contract is, as 
we have shown {supra, p. 14), a legitimate objective of 
government. But, as this Court has put it, “Ownership 
does not always mean absolute dominion” {Marsh case, 
supra, at p. 506). It is necessary to strike a balance between 
the constitutional policy forbidding racial discrimination 
and the policy protecting the individual’s free use of his 
private property.

In the Marsh, Smith and Steele cases, supra, where public 
sanction for private discrimination was involved, the con­
stitutional issues were resolved by just such a balancing 
of the conflicting considerations. Thus, in the Marsh case, 
this Court said (326 U. S. at p. 509):

When we balance the Constitutional rights of owners 
of property against those of the people to enjoy free­
dom of press and religion, as we must here, we remain 
mindful of the fact that the latter occupy a preferred 
position.

The conclusion reached by this Court in the three cases 
was that governments cannot rely on considerations in 
favor of freedom of private action, private association or

14 Cantwell case, 310 U. S. at 305.
Xo Chaplinsky^ v. N ew  H am pshire, 315 U. S. 568, 572 (1942) 

(statute prohibiting offensive or derisive language).
10 Schneider v. State, 308  U . S. 147, 161 (1 9 3 9 )  (statute prohibit­

ing distribution of literature on streets).



21.

contract as justification for substantial impairment of such 
basic constitutional freedoms as the right to espouse 
religious causes, the right to vote and the right to earn 
a living. In the instant cases, the courts below have sus­
tained State and Federal enforcement of private discrimina­
tion which substantially impairs the right to dispose of, 
own and occupy property and particularly a home. We 
shall now show that in doing so they have sanctioned an 
unjustifiable impairment of a constitutionally protected 
right.

POINT III

The constitutional right to own and occupy property 
without racial or religious discrimination by State or 
Federal governments is impaired by judicial enforce­
ment of racial and religious restrictive covenants.

These proceedings to enforce racial restrictive covenants 
are part of a nation-wide effort to maintain and extend 
ethnic patterns in the ownership and occupancy of homes. 
While ostensibly concerned with the ownership or occupancy 
of a single parcel of land, every restrictive covenant case 
involves directly the racial characteristics of a contiguous 
group of parcels, a city block, or even a major residential 
area. In the cases at bar, as in all restrictive covenant 
cases which counsel has examined, the decree is sought by 
the owners of neighboring property who seek to interfere 
with a sale by a willing seller to a willing buyer.

Plaintiffs are not merely seeking to regulate the occu­
pancy of one piece of property but are seeking rather to 
preserve control over an entire area. Unless they can 
achieve dominion in an appreciable section, control over a 
single plot is worthless. Thus, an essential characteristic 
of the covenant device is its uniform application to multiple 
units of land; only such application can achieve the sole 
Purpose of the covenant—establishment and preservation



2 2

of a racial or religious pattern for a neighborhood. Cove- 
Hants thereby achieve the same objectives as a zoning 
ordinance, with the restrictions based not on the use to 
which the property may be put but upon the ethnic groups 
of the occupant.

If a court may not constitutionally enforce the covenant 
in question, the owner of the property will he free to sell 
or lease to whomever he chooses. He may or may not 
elect to sell to a member of the proscribed class. The Negro 
or Jewish buyer will be free to enter the market and Ms 
chance of obtaining housing will depend solely on his ability 
to influence a given seller. He may or may not succeed in 
persuading the seller but at least he will have a chance of 
success. The seller’s neighbors will lose their power to 
censor the occupancy of the property and will lose whatever 
imagined psychological security they derive from not dwell­
ing near members of the proscribed race. However, they, 
too, will now be free to sell or lease to members of the 
proscribed class.

If, however, a court may constitutionally enforce the 
covenant, owners of land will continue to have power to 
veto candidates for occupancy of property other than their 
own. The owner of the property will lose as potential cus­
tomers the members of the proscribed class; the members 
of the proscribed class will lose all opportunity to acquire 
covenanted property from willing sellers. This impediment 
to their securing housing will increase directly as the 
covenanted area in a given community increases.

Because the restrictive covenant device is concerned with 
continuing and maintaining the racial characteristics of 
whole neighborhoods, the prevalence of such covenants has 
been a major factor in preventing the normal expansion 
of minority groups into new neighborhoods. In the past 
three decades, there has been a major migration of Negroes 
from the South to the cities of the North and West. As 
the Negro population of a community has grown, the 
prevalence of the covenant has kept step. The result has



23

been to force Negroes to enter and remain in segregated, 
overcrowded areas—in Harlems and other Black Belts.

The segregation and overcrowding which have resulted 
from the restrictions imposed by racial covenants have 
serious social consequences. It is today a commonplace that 
the major social evils of crime, disease, prostitution and 
unrest have deep roots in the ghetto system under which 
many of our minority groups are forced to live. The picture 
is graphically presented by the recent report of the Presi­
dent’s Committee on Civil Rights, “To Secure These Rights” 
(Gov. Print. Off., 1947), pp. 68-69:

Through these covenants large areas of land are 
barred against use by various classes of American 
citizens. Some are directed against only one minority 
group, others against a list of minorities. These have 
included Armenians, Jews, Negroes, Mexicans, Syrians, 
Japanese, Chinese and Indians.

While we do not know how much land in the country 
is subject to such restrictions, we do know that many 
areas, particularly large cities in the North and West, 
such as Chicago, Cleveland, Washington, D. C., and 
Los Angeles, are widely affected. The amount of land 
covered by racial restrictions in Chicago has been esti­
mated at 80 percent. Students of the subject state that 
virtually all new subdivisions are blanketed by these 
covenants. Land immediately surrounding ghetto 
areas is frequently restricted in order to prevent any 
expansion in the ghetto. Thus, where old ghettoes are 
surrounded by restrictions, and new subdivisions are 
also encumbered by them, there is practically no place 
for the people against whom the restrictions are di­
rected to go. Since minorities have been forced into 
crowded slum areas, and must ultimately have access 
to larger living areas, the restrictive covenant is pro­
viding our democratic society with one of its most 
challenging problems.17

Accompanying these evils are a dangerous despair and 
disbelief in democratic values. “ It is not at all surprising,”

' The prevalence of restrictive covenants in the District of Colum- 
la ,s discussed separately in the Report at pages 91-92.



2 4

says the President’s Committee (at p. 146), “that a people 
relegated to second-class citizenship should behave like 
second-class citizens.” In striking down restrictive cove­
nants, this Court will be taking a major step toward 
amelioration and, it is hoped, ultimate ending of the evils 
resulting from segregated housing.

Less well recognized is the degree to which the covenant 
restricts the choice of the white buyer. As the use of the 
covenant grows in a given community, the white Christian 
buyer, like the Negro or Jewish buyer, can no longer find 
uncovenanted property. If he wants land, he must accept 
the covenant no matter how repugnant it may be to him. 
He cannot bargain about it.

The white Christian buyer thus finds himself saddled 
with a contract of exceptionally long duration. In one of 
these cases the covenant runs for fifty years; in another, 
twenty-five years; in the third and fourth it is perpetual. 
It is a contract, moreover, which leaves no room for fre­
quent reappraisals of the original decision to exclude mem­
bers of the proscribed race but which tends to freeze for 
many years ahead a decision once made. A small minority, 
sometimes a single landowner, can continue to veto occu­
pancy regardless of the present attitudes of the majority 
of those living in the covenanted area.

The prevalence of restrictive covenants is therefore a 
very dubious index of the active prejudices of those who 
own covenanted property. The ultimate vice of the cove­
nant is that it generates evils which might not otherwise 
arise. Of recent years many sociologists and psychologists 
have concluded that the practice of discrimination often 
creates more prejudice than it reflects. See, for example, 
Watson, Action for Unity (Harpers, 1947); McWilliams 
Race Discrimination and the Law, 9 Science and Society 
1 (Winter, 1945). The process is self-regenerative. The 
undemocratic patterns of living which restrictive covenants 
establish and maintain breed new prejudices which other­
wise would never come to life.



25

Wholly aside from the indirect effect of discrimination 
in housing, we believe that the immediate impact on the 
individual of restrictive covenants, the state action which 
forbids him from occupying a home of his choice, is offensive 
to constitutional principles.

Certainly the right to obtain living space in the com­
munity, free of artificial restrictions based on race, color 
or religion, is as important as the rights of freedom of 
speech, press, religion and political activity which this 
Court has so jealously guarded. This is so both because 
of the inherent hostility of the Constitution to racial dis­
crimination in any field and because of the fundamental 
importance of housing to the enjoyment of life and liberty. 
Indeed, other rights lose all significance where the right 
to the basic necessity of a place to live is denied.

Shortly after the adoption of the Thirteenth Amendment 
Congress recognized that the right to own land free of 
discrimination was a badge of the freedom which the 
Amendment was designed to secure. It provided that:

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 propertv. (14 Stat. 
27, R. S. Sec. 1978, 8 U. S. C. Sec. 42.)

This statute was reenacted (16 Stat. 144) after adoption 
of the Fourteenth Amendment.

This Court has recognized on more than one occasion 
that “Housing is a necessary of life.” Block v. Hirsh, 256 
U. S. 135, 156 (1921). This factor was held to be decisive 
in Buchanan v. Warley, supra, in disposing of the argu­
ment that the doctrine of Plessy v. Ferguson, 163 U. S. 537 
(1896), permitted regulations which left equal room for 
limitation on the use of land by Negroes and whites. Quot- 
mg with approval the decision of a State court in another 
ease, this Court noted in the Buchanan case that where the 
separate but equal” doctrine had been applied (245 U. S. 

at p. 80):



2 6

In each instance the complaining person was afforded 
the opportunity to ride, or to attend institutions of 
learning, or afforded the thing of whatever nature to 
which in the particular case he was entitled. The 
most that was done was to require him as a member 
of a class to conform with reasonable rules in regard 
to the separation of the races. In none of them was 
he denied the right to use, control, or dispose of Ms 
■property, as in this case. (Emphasis added.)

# * # # # #

The effect of the ordinance under consideration was 
not merely to regulate a business or the like, but was 
to destroy the right of the individual to acquire, enjoy, 
and dispose of his property. Being of this character, 
it was void as being opposed to the due-process clause 
of the constitution.

The Civil Rights Cases leave the field clear for private 
owners of property to refuse to sell to any person or class 
of persons they deem objectionable. Buchanan v. Warty, 
on the other hand, prohibits the imposition of such restric­
tions by the State. Discrimination through enforcement 
of restrictive covenants is the worst of these three forms 
of racism.

The simple refusal to sell or lease can be terminated at 
any time by the will of the single property owner. As Ion? 
as the discrimination retains this purely private nature, it 
can never have the restrictive effect which restrictive cove­
nants seek. The law of supply and demand remains free 
at all times to work a change in the situation by persuadin? 
individual owners of greater benefits to be had by changin? 
existing practices.

Even direct State regulation, if it were not prohibited 
could only be invoked in the first place when the elected 
representatives of the people were persuaded that it was 
desirable.

The restrictive covenant, however, once imposed by Prl" 
vate decision, cannot be changed for a long and sometime 
indefinite period as long as a single land holder objects.



27

It remains in effect therefore regardless of the wishes of 
the majority, regardless of the pressure of economic and 
sociological changes,18 and regardless even of the wishes 
of those who originally imposed it.

It is ironical that this Court’s decision in Buchanan v. 
Warley, striking down discriminatory regulations emanat­
ing directly from the State, has led to resort to a far more 
effective device. A writer has recently commented: 18

The prevalence of these restrictions may perhaps be 
deemed a consequence of the ruling by the United States 
Supreme Court that ordinances and statutes providing 
for racial residential segregation are unconstitutional. 
Property owners have sought to accomplish the same 
result by private contract. They have done so, how­
ever, not only in southern States, but also in States 
where legislation of this character was never, and 
probably never coidd have been, enacted,. (Emphasis 
added.)

We submit that no government subject to the restraints 
of our Constitution can hold that enforcement of the private 
whim of some of its citizens is justified in the face of the 
evils which enforcement of restrictive covenants are now 
known to generate.

18 States do, of course, recognize to some extent that covenants 
may become unenforceable because of changing circumstances. 
There is, however, no constitutional rule requiring them to do so 
and State policies in this respect are highly variable. 19

19 N a s s a u , “ R a c i a l  R e s t r i c t i o n s  o n  t h e  A l i e n a t i o n  a n d  U s e  o f  
Land", 21  C o n n .  B a r  J „  1 2 3 ,  1 2 3 - 1 2 4  ( 1 9 4 7 ) .



CONCLUSION

The restrictive covenant is a pledge of future discrimina­
tion, “which is prejudice come to life” (Report of the 
President’s Committee on Civil Rights, p. 135). The courts 
which enforce it compel acts of prejudice at a time when 
active prejudice has begun to weaken. It thereby easts 
over tomorrow the long shadows of the prejudices of 
yesterday and perpetuates indefinitely the system of 
segregation, overcrowding and social evils.

The decision of this Court in these cases will have a far 
greater geographical scope than the parcels of land under 
litigation. Restrictive covenants against all minorities have 
spread steadily and threaten to blanket urban and suburban 
areas throughout the country. This has been accomplished 
through a form of governmental edict at the instance of 
private individuals which is offensive to our democratic 
institutions.

Respectfully submitted,

A m e r ic a n  J e w i s h  C ongress,
W il l i a m  M a s l o w ,
S h a d  P o l ie r ,
J o s e p h  B . R obison , 

of the New York Bar,
H a r r y  K a l v e n , Jr.,
B y r o n  S . M il l e r , 

of the Illinois Bar,
J o h n  S . B e r n h e im e r , 

of the Pennsylvania Bar,
W il l i a m  S tr o n g , 

of the California Bar,

November 20, 1947.
A tto rney







SUPREME CDURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 72

Shelley v s . K raemek

No. 87

McGhee v s . S ipes

No. 290

H urd v s . H odge

No. 291

Urciolo v s . H odge

BRIEF OF
AMERICAN VETERANS COM M ITTEE (AVC), 

Amicus Curiae

P hineas I ndritz,
H arry B. Meric an,
Irving R. M. P anzer,
R ichard A. Solomon,
Attorneys for American Veterans 

Committee,
Amicus Curiae

November 24, 1947. 
Washington, D. C.





INDEX
Page

Matter in v o lv e d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1
The interest of the American Veterans Committee... 1
Summary of argument .............................................  2
Argument ..................................................................  3

I. The statutes of the United States with re­
spect to World War II veterans and their
housing are non-discriminatory................  3

II. Negro veterans are suffering acute housing
hardship ................................................... 3

III. The judicial enforcement of racial restrictive
covenants would prevent the successful re­
habilitation of Negro veterans with respect 
to their housing, and thereby frustrate the 
non-discriminatory Federal veterans leg­
islation ......................................................  9

Conclusion..................................................................  1 1

T able of A uthorities C itex>
Cases:

Amerv. Superior Court of Calif. (No. 429, Oct. Term,
1947) ................................................................................................................ 11

Kimv. Superior Court of Calif. (No. 430, Oct. Term,
1947) ....................................................................  11

Statutes:
Act of Septem ber 1 6 ,1 9 4 0  (54  S tat. 8 8 5 ) .................
Act of June 22 ,1944  (58  Stat. 2 8 4 ) .............................
Act of June 30 ,1945  (59  S tat. 265, 2 7 0 ) ..............
Act of July 6 ,1945  (59 S tat. 4 6 3 ) ...............................
Act of October 6, 1945 (59  S ta t. 538, 5 4 2 ) ..............
Act of Decem ber 28, 1945 (59 S tat. 6 2 3 ) .........
Act of May 22 ,1946  (60  S tat. 2 0 7 ) ..........................
Act of June 22 ,1946  (6 0  S tat. 2 9 9 ) ............................
Act of August 8 ,1 9 4 6  ( 60 S tat. 9 3 2 ) ..........................
Act of Ju ly 25, 1947 (P u b lic  L a w  239, 80th

Cong.) ................................................................
38 U- S. C. 693-697g
38 u. S. C. 6 9 4 a .......................................................
50 U. s. C. App., 3 0 4 ( a ) ..................................................

-3454

3,11 
3

4,10 
3



11 IN D EX

Texts, Census data, and Miscellaneous:
ft®

Army Service Forces Manual M-5, “ Leadership
and the Negro Soldier”  (October, 1944)....... 4

AVC Constitution, Preamble ..........................  j
A VO Platform, adopted at Second National Con­

vention, June, 1947......................................... 2
Bolte, Charles G., “ He Fought for Freedom,” 36

Survey Graphic 69 (January, 1947).............  8

Bolte, Charles G., and Harris, Louis, ‘ ‘ Our Negro 
Veterans,”  (Public Affairs pamphlet No. 128)
(March, 1947) ................................................  5,8

Dean, John P., “ None Other Than Caucasian,” 
Architectural Forum, p. 16 (October, 1947). 8

H. Rept. 799, 80th Cong., 1st sess., p. 34, item
156 (July 7, 1947) ......................................... 11

President Truman, Letter to 14th Annual Con­
vention of the National Association of Hous­
ing Officials (November 17, 1947).................  5

President’s Committee on Civil Rights, Report 
of, “ To Secure These Rights,”  Washington
(October 29, 1947) ..............    1,8

The AVC Bulletin, vol. 2, No. 11, pp. 3,4 (August, 
1947) (National newspaper of American Vet­
erans Committee, New York) ....................... ■

The Capital Veteran, vol. 2, No. 5, p. 2 (October, 
1947) (Newspaper of American Veterans Com­
mittee, Washington, D. C .)............................  8

The Evenmg Star, Washington, D. C., p. A-2
(November 17,1947) .....................................

U. S. Bureau of the Census, “ Summary Report 
of Veterans Housing Surveys made from July, 
1946, through January, 1947”  (Population:
HVet—No. 114, May 10,1947)....................... 5

U. S. Bureau of the Census, “ Survey of World 
War II Veterans and Dwelling Unit Vacancy 
and Occupancy in the Washington, D. C. 
Metropolitan District”  (Population: HVet—
No. 84, February 4, 1947)..............................  3

U. S. Bureau of the Census, Surveys of World 
War II Veterans and Dwelling Unit Vacancy 
and Occupancy [in specified cities] (Popula­
tion: HVet series)......................................... 5



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1947

No. 72

S helley v s . K raemer

No. 87

M cG hee  v s . S ipes

No. 290

H urd vs . H odge

No. 291

U rciolo v s . H odge

BRIEF OF
AMERICAN VETERANS COMMITTEE (AVC), 

Amicus Curiae

Matter Involved
These four cases involve the enforcement by judicial 

action of racial restrictive covenants to prevent American 
citizens, solely on the basis of their race or color, from con- 
toning to occupy the homes which they had purchased 
from willing sellers.

The Interest of the American Veterans Committee
The American Veterans Committee (AVC) is an organi­

zation of veterans of World War II who have associated 
ŝelves, regardless of national origin, creed or color, to



2

promote the basic aims for which they had fought during 
that War.1 The judicial enforcement of racial restrictive 
covenants adversely affects those basic aims.2

This brief deals only with the impact of judicial enforce­
ment of racial restrictive covenants on veterans, partic­
ularly on Negro veterans. AVC fully endorses, however, 
all the contentions which the petitioners in each of these 
cases urge against the judicial enforcement of racial re­
strictive covenants.

Summary of Argument
The public policy of the United States with respect to

1 AVC’S basic aims are set forth in the Preamble to the A V C  Constitu­
tion adopted at its First National Convention at Des Moines, Iowa, June 
A4-16, 1946:
'  “ We as veterans of the Second World War associate ourselves re­

gardless of national origin, creed or color for the following purposes: 
“ To preserve the Constitution of the United States; To insure the 

rights of free speech, free press, free worship, free assembly and free 
elections; To provide thorough social and economic security to all; To 
maintain full production and full employment in our country under 
a system of private enterprise in which business, labor, agriculture and 
government cooperate; To promote peace and good w ill among all 
nations and all peoples; To support active participation of this nation 
in the United Nations and other world organizations w hose purpo* 
are to improve the cultural, commercial and social relations of al 
peoples; To provide such aid to disabled veterans as w il l  enable them 
to maintain the position in society to which they are entitled; ° 
provide such financial, medical, vocational and educational assistance 
to all veterans as is necessary for complete readjustment to civilian 
life ; To resist and defeat all attempts to create strife between veterans 
and non-veterans; and To foster democracy. We dedicate ourseves 
to these aims, and for their attainment we establish this Constitution.

2 The present platform adopted at the Second National A V C  Comen m 
in June, 1947, at Milwaukee, Wisconsin, includes planks against “restnc w 
real estate covenants that deny to veterans and others the right o 1 
where they choose” (Planks 103, 150) and against the denial to any vet­
eran, because of race, color or creed, of any of the benefits ° f ^ e 5 U  
men’s Readjustment Act of June 22,1944 (“ The G. I. Bill of Righ )
in footnote 3 (Plank 171). The AVC Bulletin, AVC Platform bnpp 
ment, Vol. 2 ,  No. 11, p p .  3, 4 (August, 1947) (national n e w s p a p e r  ot & 
New York).



3
the rehabilitation of World War II veterans in their hous­
ing, as expressed in Federal statutes, is non-discriminatory. 
Negro veterans are particularly in need of such rehabilita­
tion, since their present housing is acutely inadequate. 
Racial restrictive covenants prevent theip, solely on the 
basis of their race, from securing rehabilitation in their 
housing. The judicial enforcement of such covenants thus 
frustrates the statutes and policy of the United States. 
Hence, racial restrictive covenants should not be enforced 
by any court.

I. The Statutes of the United States With Respect to World 
War II Veterans and Their Housing Are Non-Discrimi- 
natory.

The Servicemen’s Readjustment Act of June 22, 1944 
(popularly known as the “ G. I. Bill of Rights” ) facilitates 
the rehabilitation of World War II veterans in their hous­
ing by authorizing the Veterans Administration to guar­
antee up to 50 percent of $4,000 which such a veteran may 
borrow for the purchase, construction or improvement of 
a home.3 This guarantee is, under the statute, available to 
“ my person who shall have served in the active military 
or naval service of the United States”  during the period 
from September 16, 1940 to July 25, 1947, and was dis­
charged or released under conditions other than dishon­

3 Act of June 22, 1944 ( 58 Stat. 284), as amended by the acts of June 
30, 1945 (59 Stat. 265, 270); July 6 , 1945 (59 Stat. 463); October 6 ,
1945 ( 59 Stat. 538, 542); December 28, 1945 (59 Stat. 623); June 22,
1946 (60 Stat. 299); August 8 , 1946 (60 Stat. 932); 38 U. S. C., Supp. V, 
693-697g; and as amended by the Act of July 25, 1947 (Public Law 239, 
80th Cong., sec. 3, slip copy p. 6 ). The Selective Training and Service Act 
of September 16, 1940 (54 Stat. 885, 50 U. S. C., App., 304(a)), under 
which most World War II veterans were called from their homes to military 
service, provided that in the selection and training of men, and in the inter­
pretation and execution of the Act, “ there shall be no discrimination against 
an7 person on account of race or color.”



4

orable.4 The Veterans’ Emergency Housing Act of May 
22, 1946, expressly recognizing the “ unprecedented emer­
gency shortage of housing, particularly for veterans of 
World War II and their families,”  set up an allocations 
and priorities program to assure to all “ veterans of World 
War II ”  a preference in purchasing or renting newly con­
structed housing.5 6 The benefits of both of these acts are 
expressly available to “ any”  “ veteran of World War II” 
who was not dishonorably discharged. Congress in these 
acts did not exclude Negro veterans from the benefits of 
these acts, and made no distinctions as to race, creed or 
color with respect to the veterans who could secure these 
benefits. The Congressional policy in this regard is clearly 
a non-discriminatory policy.

II. Negro Veterans Are Suffering Acute Housing Hardship

Negroes and white alike left their homes to fight in World 
War II. Both served with distinction in the armed forces 
of the United States all over the world.® Upon their return 
from the battlefields, many white and Negro veterans, hav­
ing given up their housing to go to war, were immediately 
confronted with the need for housing. As Congress recog­
nized in the Veterans’ Emergency Housing Act of May 22, 
1946, supra, the veteran, as a class, is more gravely in need 
of housing than the non-veteran who, as a class, generally 
was in a better position to retain his dwelling place during

4 Section 500(a) of the Servicemen’s Readjustment Act of June 22, 1944,
supra, footnote 3, as amended, 38 U. S. C., Supp. V, 694(a). (Emphasis 
supplied.)

6 Act of May 22, 1946 (60 Stat. 207).
6 Army Service Forces Manual M-5, “ Leadership and the Negro Soldier 

(October, 1944), pp. 9, 10, 23, 74-95; “ To Secure These Rights,” Report 
of the President’s Committee on Civil Rights, pp. 83-84 (Govt. Printing 
Off., October 29, 1947). Before voluntary enlistments were stopped in 
World War II, Negroes had volunteered for military service in ratios far 
exceeding their ratio in the nation’s population. Army Service Forces 
Manual M-5, supra, at p. 5. Inquiry from the Veterans Administration 
indicates that over 1,275,000 veterans of World War II are non-white.



5

the war years. This housing shortage has its greatest 
impact on Negro veterans.7 Much less housing is available 
to them than to white veterans for rehabilitation to civilian 
life. The acute housing hardships of Negro veterans are 
shown by U. S. Census Bureau surveys of the housing con­
ditions of World War I I  veterans, made from July 1 9 4 6  

through January 1 9 4 7  in many cities throughout the na­
tion,8

In the Washington, D. C. Metropolitan Area, for example, 
42% of the married Negro veterans, compared to 9% of the 
married white veterans, were living in rented rooms, trailers 
or tourist cabins. Table 1 shows for a number of cities the 
differences between the proportion of white and Negro mar­
ried veterans living in such inadequate accommodations:

’ Intis message to the 14th Annual Convention of the National Asso­
ciation of Housing Officials, meeting in New York City on November 17, 
1947, President Truman said: “ Since the end of the war there has been 
an even greater need for adequate measures to clear slums and arrest and 
eliminate blight in our cities, to provide decent housing for . . . minority 
groups. . . The Evening Star, Washington, D. C., p. A-2 (Novem­
ber 17, 1947). See also Charles G. Bolte and Louis Harris, “ Our Negro 
j^ans,” pp. 8 , 16-18, 29 (Public Affairs pamphlet No. 128) (March,

8h. S. Bureau of the Census, Surveys of World War II Veterans 
and Dwelling Unit Vacancy and Occupancy [in specified cities], Popula- 
•i°n. HVet series. See U. S. Census Bureau, “ Summary Report of 
eterans’ Housing Surveys made from July, 1946, through January, 1947” 

1 opulation: HVet—No. 114, May 10, 1947). The Census data for the 
ashington, D. C. Metropolitan Area are from U. S. Bureau of the 
TnS’ “Survey ° f World War II Veterans and Dwelling Unit Vacancy 

an Occupancy in the Washington, D. C. Metropolitan District” (Popula- 
"“AHVet-No. 84, February 4 , 1947).



6

TABLE 1. PERCENTAGE OF MARRIED VETERANS OF WORLD 
W AR II LIVING IN RENTED ROOMS, TRAILERS OR TOURIST

WHITE NEGRO
Washington, D. C. Metropolitan District.........................  9 42
Baltimore, Md......................................................................  7  21
Jackson, Miss.......................................................................  26 37
Austin,, T exas....................................................................  25 34
Shreveport Area, La............................................................ 22 32
East Central Los Angeles, Calif....................................... 22 32
Raleigh, N. Car.................................................................... 21 34
Tampa and Port Tampa, Fla.**.....................................  20 46
Memphis Area, Tenn..........................................................  18 23
Houston Area, Texas..........................................................  1 1  25
New Orleans Area, La.............................................'..........  8 17
Jacksonville Area, Fla........................................................  6 21

* These figures include Spanish-Americans, Japanese, and Chinese as 
well as Negroes.

** Non-seasonal residents only.

In addition, these Census Bureau surveys showed that 
Negro veterans living in all other types of dwellings ( “ ordi­
nary dwelling units ” ) were “  doubled up ”  8 in much greater 
proportion than white veterans. For example, in the Wash­
ington, D. C., Metropolitan Area 50% of the married Negro 
veterans occupying ordinary dwelling units had at km 
one other family living with them, whereas only 16% of 
married white veterans were so housed. Table 2 shows the 
racial differential of ‘ ‘ doubled-up ’ ’ families in a number of 
cities: 9

9 For these surveys, the Census Bureau considered a veteran “as hmf 
doubled up if he lived in a dwelling unit which contained more than o“! 
family, that is, the unit contained in addition to the head of the househol. 
married couples or married women with husbands absent.” Under this 
definition, a single veteran, or a married veteran unaccompanied by 
wife, could intrude himself into a dwelling unit occupied by another fan11 
and not be counted as “doubling up.”  Thus, the “doubling up” r**®-1 
shown in Table 2 are understated.



7

TABLE 2. PERCENTAGE OF MARRIED VETERANS OF WORLD 
WAR II LIVING IN ORDINARY DWELLING UNITS WHO 
WERE LIVING “ DOUBLED-UP”

WHITE NEGRO
Washington, D. C., Metropolitan District.......................  16 50
Greensboro, N. C................................................................  42 47
Birmingham Area, Ala......................................................  35 46
Atlanta Area, Ga................................................................  35 41
Baltimore, Md...................................................................... 30 46
Raleigh, N. C.......................................................................  30 36
Ft. Worth Area, Tex..........................................................  28 33
Louisville Area, Ky. & Ind............................................... 27 47
Tampa and Port Tampa, Fla........................................... 26 37
New Orleans Area, La......................................................  26 34
Chattanooga Area, Tenn...................................................  25 32
Beaumont-Port Arthur Area, Texas .............................  24 35
Roanoke Area, Va..............................................................  23 29
Asheville, N. C....................................................................  21 40
Montgomery, Ala...............................................................  21 26
Houston Area, Tex............................................................  19 37
Waco, Tex........................................................................... 19 29
Baton Rouge Area, La......................................................  16 24
Jacksonville Area, Fla....................................................... 15 49

These Census Bureau surveys further showed that there 
is less unoccupied space available for Negroes than for 
whites. Thus, in the Washington, D. C. Metropolitan Area 
the gross vacancy rate for privately financed dwelling units 
is 1% for dwellings last occupied by whites and 0.4% for 
dwellings last occupied by Negroes. Table 3 shows the 
racial differences in a number of cities: 10

10 Many of these unoccupied dwellings are not habitable. The Census 
Bureau criterion of habitable units in these surveys of veterans housing 
was: “Units in good condition or in need of only minor repairs and those 
in need of major repairs which were in no worse condition than similar 
occupied units in the same neighborhood.” Because of the generally less 
adequate dwellings in Negro areas than in white, the standard of habitabil­
ity for Negro dwellings usually is lower than for white dwellings. Hence 
there is an even greater disparity between Negro and white dwellings than 
appears from Table 3, reflecting the meanness of a dwelling in a Negro 
neighborhood which remains unoccupied for any length of time.



8

TABLE 3. PERCENTAGE OF VACANCIES IN ALL PRIVATELY 
FINANCED DWELLING UNITS 10

W H IT E  NEGRO
Washington, D.C., Metropolitan D istrict.....................  1.0 0.4
Baltimore, Md.....................................................................  2.0 1.3
Baton Rouge Area, La..............................   2.0 1.1
Tampa and Port Tampa, Fla.* .....................................  2.0 0.9
New Orleans Area, L a .* ...................................................  2.3 0.5
Austin, Tex..........................................................................  pg gg
Shreveport Area, La.........................................................  1 .2  0.6
Waco, Tex...........................................................................  p] gg
Jacksonville Area, Fla....................................................... 1 .0  0.6
Jackson, Miss...................................................................... 0.6 0.4
Charlotte, N. C................................................................... 0.6 0.3
Columbia Area, S. C..........................................................  0.6 0.2
Chattanooga Area, Tenn.........................    0.5 0.3

* Non-seasonal dwellings only

The American Veterans Committee has repeatedly called 
attention to the substandard housing of Negro veterans. 
Illustrative is the recent article of the then Chairman of 
AVC in the Survey Graphic in which he said:11

“ A survey recently made by the Bureau of the Census 
in Macon, Ga., underscores the plight of Negro veterans 
in securing decent housing. Whereas 33 percent of the 
white veterans in Macon are ‘ doubled up’ or inade­
quately housed, 44 percent of the Negro veterans are 
living with in-laws or in hovels. There are half again 
as many vacancies in white neighborhoods as in Negro. 
. . . Over 30 percent of all Negro veterans are living 
in substandard, unhealthy rooms, as compared with 11 

percent of the white veterans. Over 50 percent of all 
Negro veterans’ dwellings lack one or more of the 
standard facilities—bath, toilet, running water, electric 
light. ’ ’

11 Charles G. Bolte, “ He Fought for Freedom,” 36 Survey Graphic 69, 71 
(January, 1947); see also Charles G. Bolte and Louis Harris, “Our Negro 
Veterans” (Public Affairs pamphlet No. 128) (March, 1947).



9

III. The Judicial Enforcement of Racial Restrictive Cove­
nants Would Prevent the Successful Rehabilitation 
of Negro Veterans With Respect to Their Housing, 
And Thereby Frustrate the Non-Discriminatory Fed­
eral Veterans Legislation.

In most of the major cities of the Nation, racial restrictive 
covenants now cover a large percentage of all newly con­
structed dwellings, new residential subdivisions, and exist­
ing residential properties contiguous to areas occupied by 
Negroes.12 In Washington, D. C., for example, the Amer­
ican Veterans Committee, after months of unremitting 
search for a satisfactory site open to all of its veteran 
members regardless of race, creed or color, was forced by 
the widespread existence of restrictive covenants to aban­
don its plans to build a housing project in the District.13

This pervasive coverage of residential land by restrictive 
covenants substantially impedes the opportunities of Negro 
veterans to improve their deplorable housing situation.

It renders illusory for them the preference provisions 
of the Veterans’ Emergency Housing Act.

Similarly, it prevents most Negro veterans from obtain­
ing the loan guarantee benefits of the G. I. Bill of Rights. 
Before the Government can guarantee a home loan, the 
veteran must obtain the loan from a private lending insti­
tution or person. But lenders will not risk loans, for the 
purchase of property subject to a restrictive covenant, to 
a member of the group against whom the restriction is 
aimed. This is true even with respect to a covenanted house * 10

^Illustrative is the recent survey of 315 subdivisions opened in the last
10 years in Queens, Nassau and Southern Westchester (New York), reveal­
ing that well over 50% of the dwellings were covered by racial restrictive 
covenants against Negroes. John P. Dean, “None Other than Caucasian,” 
Architectural Forum, p. 16 (October, 1947). The wide extent of racial 
covenanting was discussed in the Report of the President’s Committee on 
Civil Rights, To Secure These Rights,”  at pp. 68-69 (1947).

The Capital Veteran, Vol. 2, No. 5, p. 2 (October, 1947) (newspaper 
of American Veterans Committee, Washington, D. C.).



10

in a neighborhood which long ago changed to Negro owner­
ship and occupancy. A non-veteran Negro can often finance 
the purchase of such a house through a “ straw” white 
person who takes title, signs the mortgage and trust note, 
and then deeds the property and assigns the trust note to' 
the Negro purchaser. But the Negro veteran who seeks a 
loan guarantee under the G. I. Bill of Rights is required to 
sign the mortgage and trust note personally. Since the title 
company will not clear the title according to the records, the 
lending institution will refuse to loan to the Negro veteran. 
Furthermore, even if the Negro veteran should find a house 
unencumbered by a restrictive covenant, the Veterans Ad­
ministration will not guarantee a loan under the G. I. Bill 
of Rights if the price of the property exceeds its “ reason­
able value as determined by proper appraisal.”  Sec. 501 
(38 U. S. C. 694a.) But because of the great excess of 
demand for Negro housing over supply, largely attributable 
to restrictive covenants, Negroes are forced to pay much 
more than whites for such uncovenanted property. These 
inflated prices may, and often do, prevent approval of the 
loan guarantee.

These conditions are not temporary. Although the 
vitality of the American productive system will, in time, 
alleviate the worst of the housing hardships of white 
families, the prospect of such improvement for Negro 
families will remain dim so long as racial restrictive cove­
nants are judicially enforced. The widespread pattern of 
covenants will continue to hem Negro veterans into over­
crowded and substandard housing in slums and blighted 
areas. Long after white veterans have become rehabilitated 
in civilian life, the Negro veterans will be plagued by the 
problems aggravated for them by their service in the armed 
forces. The Negro veteran will, in fact, thus be almost 
entirely deprived of the benefits which the Federal veterans 
legislation made available to him, since the Veterans



11

Emergency Housing Act expires on December 31, 1947 14 

and the home loan benefits under the G. I. Bill of Rights 
will not be obtainable after July 25, 1957.15

Conclusion

We respectfully urge that racial restrictive covenants 
should not be enforced by the courts (1 ) for the reasons 
set forth in the briefs of the petitioners in these four cases 
and (2 ) because such enforcement frustrates the non-dis- 
criminatory Federal veterans legislation with respect to 
Negro, as well as other, veterans.16

AMERICAN VETERANS COMMITTEE,
Amicrn Curiae.

P l I I N E A S  I n D R IT Z ,

H a r r y  B. M e r ic a n ,
I r v in g  R. M. P a n z e r ,
R ic h a r d  A. S o l o m o n ,

Attorneys for American Veterans Committee,
Amicus curiae.

November 24,1947.
Washington, D. C.

14 Section 1(h) of the Veterans’ Emergency Housing Act of May 22, 
U46 (60 Stat. 207, 208).

ljAct of July 25, 1947 (Public Law 239, 80th Cong., sec. 3, slip copy 
194')' 866 ^  ^ePt- ^99) 80th Cong., 1st sess., p. 34, item 156 (July 7,

In at least two of the racial restrictive, covenant cases now pending 
jetore this Court, the persons threatened with eviction from their homes 
,•court injunction, solely because of their ancestry, are veterans decorated 
w overseas service in the armed forces of the United States. Amer v. 

superior Court of Calif. (No. 429, Oct. Term, 1947) and Kim v. Superior 
(No. 430, Oct. Term, 1947). Veterans Amer and Kim are 

m e flutes citizens, of Chinese and Korean ancestry, respectively.

(3454)





I N  T H E

Supreme C o u rt o f  th e  United States
October Term, 1947

No. 72
J. D. SHELLEY, et al., Petitioners, 

v.
LOUIS KRAEMER and FERN E. KRAEMER, Respondents.

On Writ of Certiorari to the Supreme Court of the State of Missouri.

No. 87
ORSEL McGHEE and MINNIE S. McGHEE, his wife, Petitioners,

v.
BENJAMIN J. SIPES and ANNA C. SIPES, JAMES A COON 

and ADDIE A. COON, et al., Respondents.
On Writ of Certiorari to the Supreme Court of the State of Michigan.

No. 290
JAMES M. HURD and MARY I. HURD, Petitioners, 

v.
FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 

DeRITA, VICTORIA DeRITA, et al., Respondents.
On Writ of Certiorari to the United States Court of Appeals 

for the District of Columbia.

No. 291
RAPHAEL G. URCIOLO, ROBERT H. ROWE, ISABELLE J. 

ROWE, HERBERT B. SAVAGE, et al., Petitioners,
V.

FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 
DeRITA, VICTORIA DeRITA, et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the District of Columbia.

CONSOLIDATED BRIEF IN BEHALF OF
American Jewish Committee 

. B’nai B’rith (Anti-Defamation League)
Jewish War Veterans of the United States of America

Jewish Labor Committee 
As Amici Curiae

Newman Levy 
Sol Rabkin 
Jacob Schaum

Of Counsel

Joseph M. Proskauer 
Jacob Grumet

Attorneys for
American Jewish Committee 
B ’nai B ’rith (Anti-Defamation League) 
Jewish War Veterans of the United 

States of America 
Jewish I^abor Committee

4 ^ , 3 0 7 BAR PRESS, IN O ., 4 7  W EST ST., N E W  Y O R K . BO. 9 -----0 1 5 7  - 8





TABLE OF CONTENTS

PAGE

Interest of the Amici ....................................................  2
Opinions Below .............................................................  5
Jurisdiction ....................................................................  5
Statement of Facts ........................................................ 6
Summary of the Argument............................................. 7
Argument:

I  The Judicial Enforcement of Racial Restrictive 
Covenants in the Michigan and Missouri Cases 
Is a Violation of the Due Process Clause of the 
Fourteenth Amendment to the Constitution; 
and of Sections 1977 and 1978 of the Revised 
Statutes ( 8  XL S. C., Secs. 41, 42) .....................  9

A. The Right of a Citizen to Acquire, Own,
Enjoy and Dispose of Property Without 
Discrimination as to Race or Color Is a 
Federal Civil Right Protected by the Con­
stitution ....................................................  9

B. State Action Depriving a Person of the
Ownership, Use or Occupancy of Prop­
erty Solely Because of His Race or Color 
Is Forbidden by the Due Process Clause 
of the Fourteenth Amendment ...............  16

C. The Decrees of the State Courts Were 
Forbidden State Action and Therefore 
Violated the Due Process Clause of the 
Fourteenth Amendment ..........................  17

(a) Judicial Action Is State Action .... 17
(h) The Decrees Herein Are Forbidden 

State Action and Therefore Violate 
the Fourteenth Amendment.......... 20



11 Index

II. The Judicial Enforcement of Racial Restric­
tive Covenants in the Michigan and Missouri 
Cases Is a Violation of the Equal Protection 
Clause of the Fourteenth Amendment to the

PAGE

Constitution ..................................................... 24
III. The Judicial Enforcement of the Racial Re­

strictive Covenants in the District of Columbia 
Cases Violates the Due Process Clause of the 
Fifth Amendment and Section 1978 of the 
Revised Statutes ( 8  U. S. C., Sec. 42) ............  33

IV. The Case of Corrigan v. Buckley Did Not De­
cide the Questions Presented Herein .............  34

Conclusion ...................................................................  36
Appendix .....................................................................  37

TABLE OF CASES

Adkins v. Children’s Hospital, 261 U. S. 525 ..........  J
Allgeyer v. State of Louisiana, 165 U. S. 578 ..........  ^
Baumann v. Pinckney, 118 N. Y. 604 ......................  jjl
Bowles v. Willingham, 321 V. S. 503 .......................
Bridges v. California, 314 H. S. 52 ..........................  J;
Brinkerhoff-Faris Trust Co. v. Hill, 281 H. S. 673 k
Buchanan v. Warley, 245 U. S. 60 ...... 1 0 , 12,15,16,22,23,

25, 26, 31
Cantwell v. Connecticut, 310 U. S. 296 .....................
Carey v .  City of Atlanta, 143 Ha. 192, 84 S. E. 456 ....
Carter v. Texas, 177 U. S. 442 .................................
Chicago B. & Q. R. Co. v. Chicago, 166 U. S. 226 ■ ■
Civil Rights Cases, 109 U. S. 3 .............................. 10,
Clinard v. City of Winston-Salem, 217 N. C. 119, 6

S. E. (2d) 867 .......................................................
Corrigan v. Buckley, 271 U. S. 323 ..........................
Ex Parte Virginia, 100 U. S. 339 ..............................
Fay v. New York, 331H. S. , 91 Law Ed. Adv.

Opinion 1517 (No. 377, decided June 23, 1947) 24



PAGE

Gandolfo v. Hartman, 49 Fed. 181..............................  23
Hall t. DeCuir, 95 U. S. 485 .......................................  12
Harmon v. Tyler, 273 U. S. 6 6 8  .................................. 16, 22
Heiner v. Donnan, 285 U. S. 312 .................. ,............  33
Hill v. Texas, 316 17. S. 400 .........................................  31
Hirabayashi v. IJ. S., 320 U. S. 81 ..............................  32
Holden v. Hardy, 169 U. S. 366 .................................  12
Holmes v. Gravenhorst, 263 N. Y. 148....................... 12
Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278 .... 32
Hurd v. Hodge, No. 290 ...........................................5, 6 , 7,11
Hurd v. Hodge, 162 F. (2d) 233 .................................. 5, 23
Hurtado v. California, 110 U. S. 516..........................  33
Jackson v. State, 132 Md. 311,103 A. 910...................  16
Korematsu v. IT. S., 323 IT. S. 214..............................  26
Liberty Annex Corp. v. City of Dallas, 289 S. W.

1067 ....:..................................................................... 16
Long Island Water Supply Co. v. Brooklyn, 166 IT. S.

685 ..........................................................................  29
McCabe v. Atchison, T. & S. F. R. Co., 235 H. S. 141 28
McGhee v. Sipes, No. 87 ............................................  5, 6 , 7
Marsh v. Alabama, 326 U. S. 501................................ 17
Missouri ex rel. Gaines v. Canada, 305 IT. S. 337 ......  28
Mitchell v. U. S., 313 H. S. 80 .....................................  28
Nebbia v. New York, 291 U. S. 502 ............................  30
Norman v. Baltimore and Ohio Railroad Co., 294 

U. S. 240 ..................................................................  29
Powell v. Alabama, 287 U. S. 4 5  ................................ 19
Raymond v. Chicago Union Traction Co., 207 U. S. 20 32
Richmond v. Deans, 281 U. S. 704 ..............................  16
Shelley v. Kraemer, 198 S. W. (2 d) 679 ..................... 5, 6

Kelley v. Kraemer, No. 72 .......................................  5
wpes v. McGhee, 316 Mich. 614, 25 N. W .  (2d) 638 ... 5,27
™ith v. Loughman, 245 N. Y. 486 ............................  27
Snowden v. Hughes, 321 U. S. 1 ................................ 32
rate of Washington ex rel. Seattle Title Trust Co. 
v. Roberge, 278 U. S. 116 ......................................  12

Index iii



IV Index

Steele v. Louisville and Nashville Railroad Co., 323
PAGE

U. S. 192.................................................................  13
Sterling v. Constantin, 287 U. S. 378 .....................  12

Strauder v. West Va., 100 U. S. 303 ....................... 21,24
Terrace v. Thompson, 263 U. S. 197 .................... 12,14,15
Terrace v. Thompson, 274 Fed. 841 ......................... 14
Truax v. Corrigan, 257 U. S. 312 ............................  15
Twining v. New Jersey, 211 U. S. 78 .......................19,33
Tyler v. Harmon, 158 La. 439 .................................. 22
Urciolo v. Hodge, No. 291...................................... 5,6,7,11
Urciolo v. Hodge, 162 F. (2d) 233 ..........................  5
Virginia v. Rives, 100 U. S. 313 ..............................  17

OTHER AUTHORITIES CITED

Fifth Amendment ...................................................8,33,34
Thirteenth Amendment ............................................... 34,35
Fourteenth Amendment ............. 7 , 8 , 9,10,12,13,14,16-22,

24, 25, 31,32,33,34,35
Revised Statutes, Section 1977 ............................. 8,9,34

Section 1978 ....................8 , 9,10,33,34
Section 1979 .............................  4̂

8  United States Code, Section 41 ..........................
Section 42 ...................8 , 9 , 10, 33,34

Judicial Code, Sec. 237 (28 U. S. C., Sec. 344(b))...
Sec. 240 (28 U. S. C., Sec. 347(a)).... ®

Civil Rights Acts ...................................................... ^
McGovney, D. O., Racial Residential Segregation by 

State Court Enforcement of Restrictive Agree­
ments, Covenants or Conditions in Deeds Is TJn-  ̂
constitutional, 33 Calif. Law Rev. 5 .....................



IN  T H E

Supreme C o u rt o f  th e  U n ite d  S ta te s
October Term, 1947

No. 72
J. D. SHELLEY, et al., Petitioners, 

v.
LOUIS KRAEMER and FERN E. KRAEMER, Respondents.

On Writ of Certiorari to the Supreme Court of the State of Missouri.

No. 87
ORSEL McGHEE and MINNIE S. McGHEE, his wife, Petitioners,

v.
BENJAMIN J. SIPES and ANNA C. SIPES, JAMES A COON 

and ADDIE A. COON, et al., Respondents.
On Writ of Certiorari to the Supreme Court of the State of Michigan.

No. 290
JAMES M. HURD and MARY I. HURD, Petitioners, 

v.
FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 

DeRITA, VICTORIA DeRITA, et al., Respondents.
On Writ of Certiorari to the United States Court of Appeals 

for the District of Columbia.

No. 291
RAPHAEL G. URCIOLO, ROBERT H. ROWE, ISABELLE J. 

ROWE, HERBERT B. SAVAGE, et al., Petitioners,
V.

FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 
DeRITA, VICTORIA DeRITA, et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the District of Columbia.

CONSOLIDATED BRIEF IN BEHALF OF
American Jewish Committee 

_ B’nai B’rith (Anti-Defamation League)
Jewish War Veterans of the United States of America 

Jewish Labor Committee 
As Amici Curiae



2

Interest of the Amici
This brief is filed on behalf of the following organi­

zations i1

American Jewish Committee
B ’nai B ’rith (Anti-Defamation League)
Jewish Labor Committee
Jewish War Veterans of the United States of 

America

Each of these organizations has among its fundamental 
tenets the preservation of the rights guaranteed every 
citizen by our Federal Constitution. Each has recognized 
that any invasion of the democratic right of any individual 
or group undermines the foundation of our democratic 
system.

Organizations dedicated to the defense of American 
democracy cannot stand by silently while the residential 
areas of our cities and towns are overrun by a spreading 
flood of restrictive covenants banning occupancy by mem­
bers of specific racial or religious groups. 'The dangers 
to our democratic way of life arising from racial residen­
tial segregation are obvious. Organizations such as those 
sponsoring this brief cannot acquiesce in the application 
in America of discriminatory practices to so vital an 
aspect of our economy as housing.

In 1890 San Francisco sought to achieve racial zoning 
by adopting an ordinance barring Chinese from living ® 
certain areas of the city. This was followed by the enact­
ment of similar ordinances directed against Negroes ® 
several southern and border cities. In 1917, however, a 
holding by this court that such ordinances were unconsti-

1 A  short description of each of the organizations is attached as an 
appendix to this brief.



3

tutional placed an insurmountable obstacle in the way of 
efforts to achieve racial residential segregation by legis­
lation. Thereafter, those seeking to extend the pattern of 
racial segregation found a new and better means of 
achieving their goal. They seized upon the ancient and 
well established device of the private restrictive covenant 
barring from a neighborhood uses detrimental to the 
health or comfort of those residing in it, such as glue or 
soap factories, livery stables, charnel houses, and brothels. 
They adapted the private restrictive covenant to their 
needs, revising it to bar—instead of specified uses—occu­
pancy by those racial, religious, or ethnic groups which 
they considered undesirable. The use of this new tech­
nique spread with ominous rapidity, primarily because 
many state courts upheld and enforced the new covenants; 
nearly always the courts failed to distinguish between a 
covenant barring an obnoxious use and a covenant barring 
residential occupancy by members of specific racial or 
religious groups.

The racial restrictive covenant is an instrument of 
bigotry giving aid and comfort to racial and religious 
prejudice. Implicit in such a covenant is the anti-demo- 
cratic and false racist doctrine that undesirable social 
traits are an attribute not of the individual but of a racial 
or religious group. Such covenants classify an individual 
not on the basis of his behavior, but on the basis of his 
racial origin. They would deny the free choice of a home 
to a Carver, Cardozo, or Lin Yutang' merely because of 
color or religion. They ascribe social objectionability to 
onborn generations.

Slums and overcrowding are the inescapable concomi­
tants of restrictive covenants and racial segregation. 
Death, disease and crime are the notorious spawn of over­
crowding. Inter-group stresses and tensions which threaten 
°ar democratic state arise inevitably when racial or reli-



4

gious groups find themselves isolated within the community 
and forced to live in circumscribed segregated areas. 
Clearly, the growing fusion of interest of America’s varied 
racial, religious, and ethnic groups, the free interchange of 
varying cultural viewpoints, the development of mutual 
tolerance and confidence among our citizens—requisites for 
the strengthening and fulfillment of our democracy—are 
dangerously impeded by restrictive covenants. It is not 
surprising that the President’s Committee On Civil Rights 
found that “ segregation is an obstacle to establishing 
harmonious relationships among groups”  and recom­
mended vigorous action to outlaw restrictive covenants.

Although Negroes have suffered most from the wide­
spread use of restrictive covenants, many other groups in­
cluding Mexicans, Spanish Americans, Orientals, Arme­
nians, Hindus, Syrians, Turks, Jews, and Catholics have 
found such covenants barring them from many residential 
areas in many cities. In a recent case in California a full- 
blooded American Indian was ordered by the court to 
vacate his home because of a limitation upon occupancy 
to Caucasians only. In a Maryland suburb of Washington,
D. C., a group of home owners, seeking to enforce a restric­
tive covenant against Jews, petitioned the Maryland court 
for a decree directing a non-Jewish wife to oust her Jewish 
husband from their jointly owned home. This is the 
reductio ad absurdum to which racial restrictive covenants 
lead.

The impact of the racial restrictive covenant does not 
end at the water’s edge. In many lands the prestige of 
American democracy suffers because our practice in  the 
field of race relations does not always square with our 
ideals. Even now, democracy is engaged in a world-wide 

struggle to demonstrate its supremacy over c o n t e n d in g  
political idealogies. The refusal of judicial s u p p o r t  for



5

racial restrictive covenants will remove a powerful propa­
ganda weapon from the hands of democracy’s opponents.

The organizations sponsoring this brief are peculiarly 
alert to the dangers to democracy arising from racial or 
religious residential segregation. Jewish experience under 
European despotism gave rise to the word “ ghetto” . The 
threat of revival of that institution—implicit in the mush­
room growth in almost every major American city of racial 
restrictive covenants—demands intercession in these cases.

All parties to the cases for review herein have given 
their consent to the filing of this brief amicus curiae.

Opinions Below

The opinion of the Supreme Court of Missouri in Shel­
ley v. Kraemer (R. 153) is reported in 198 S. W. (2d) 
679.

The opinion of the Supreme Court of Michigan in 
McGhee v. Sipes (R. 87) is reported in 316 Mich. 614, 25 
N. W. (2d) 638.

The opinion of the United States Court of Appeals in 
Eurd v. Hodge and Urciolo v. Hodge (R. 417-432) is re­
ported in 162 F. (2d) 233.

Jurisdiction

Jurisdiction of this Court of both Shelley v. Kraemer 
(No. 72) and McGhee v. Sipes (No. 87) is invoked under 
Section 237 of the Judicial Code (28 U. S. C,, Sec. 344 (b)).

Jurisdiction of Hurd v. Hodge (No. 290) and of TJrciolo 
v' Hodge (No. 291) is invoked under Section 240 of the 
Judicial Code (28 U. S. C., Sec. 347 (a)).



6

The judgment sought to be reviewed in Shelley v, 
Kraemer was entered by the Supreme Court of the State 
of Missouri on December 9, 1946. Motion for rehearing 
was filed on December 24,1946, and denied on January 13, 
1947. Petition for certiorari was filed in this Court on 
April 21, 1947, and was granted June 23, 1947.

The judgment sought to be reviewed in McGhee v. Sipes 
was entered in the Supreme Court of the State of Michi­
gan on January 7, 1947. Application for rehearing was 
filed on January 23, 1947, and denied March 3, 1947. Peti­
tion for certiorari was filed in this Court on May 10,1947, 
and granted June 23, 1947.

The judgments sought to be reviewed in Hurd v. Hodge 
and Urciolo v. Hodge were entered by the United States 
Court of Appeals for the District of Columbia on May 26, 
1947. Motion for rehearing was denied June 23, 1947. 
Consolidated petitions for certiorari, filed on August 22, 
1947, were granted on October 20, 1947.

Statement of Facts

There are four cases herein involving the validity of 
judicial enforcement of racial restrictive covenants: one 
originating in St. Louis, Missouri; one from Detroit, Mich­
igan ; and two consolidated actions from the District of 
Columbia. The purpose of the covenants was to preserve 
the respective neighborhoods for white residents only, and 
to prevent the occupation of the restricted property hy 
Negroes.

In Shelley v. Kraemer, No. 72, the Missouri case, the 
covenant prohibiting ownership and occupancy was made 
in 1911 and was to run for fifty years. The trial court 
decided in favor of the Negro purchasers, but this jud?



7

ment was reversed on appeal with direction that a decree 
be entered holding the restrictions valid and granting the 
relief sought by the plaintiffs.

In McGhee v. Sipes, No. 87, the Michigan case, the cove­
nant, made in 1934, was to run for twenty-five years. It 
prohibited use and occupancy by non-Caucasians, and was 
not to become effective until at least eighty percent of 
the frontage on the block was covered by the same or a 
similar restriction. The trial court granted the relief 
sought by the plaintiff, and the judgment was affirmed on 
appeal.

In Hurd v. Hodge, No. 290, and Urciolo v. Hodge, No. 
291, the consolidated District of Columbia cases, the re­
strictions were against alienation to Negroes, and were 
perpetual. Urciolo, one of the petitioners, is white; the 
others are Negroes. The trial court rendered judgment, 
divesting the Negro purchasers of title, enjoining the white 
owners from renting, leasing, or conveying the property 
to Negroes, and ordering the Negro purchasers to vacate 
the premises. This was affirmed on appeal, with Mr. Jus­
tice Edgerton dissenting.

Summary of the Argument

These cases present to this Court squarely for the first 
time the validity of judicial enforcement of restrictive 
covenants that bar the sale to or the occupancy by Negroes 
of real property. The following arguments will be urged 
by this brief:

I The decrees of the Missouri and Michigan Courts 
deprived the petitioners of their property without due 
Process of law in violation of the Fourteenth Amendment



8

to the Constitution; and were in violation of Sections 1977 
and 1978 of the Revised Statutes ( 8  U. S. C., Secs. 41,42),

II. The decrees of the Missouri and Michigan Courts 
denied to the petitioners equal protection of the law in 
violation of the Fourteenth Amendment to the Consti­
tution.

III. The decrees of the District of Columbia Court 
deprived the petitioners of their property without due 
process of law in violation of the Fifth Am endment, to the 
Constitution; and were in violation of Section 1978 of the 
Revised Statutes ( 8  U. S. C., Sec. 42).

IV. The questions raised by the present cases have 
never been decided by this Court. The case of Corrigan 
v. Buckley, 271 U. S. 323, frequently relied on to sustain 
the constitutionality of racial restrictive covenants, did not 
decide the questions presented herein.

Inasmuch as the many more questions involved in these 
cases are fully covered in the main briefs submitted hy 
the petitioners herein, we are confining ourselves in this 
amicus brief to the invalidity of judicial enforcement of 
racial restrictive covenants under the Fifth and Fourteenth 
Amendments of the Constitution, and under Sections 1977 
and 1978 of the Revised Statutes ( 8  U. S. C., Secs. 41,42).



9

I

The judicial enforcement of racial restrictive cove­
nants in the Michigan and Missouri cases is a violation 
of the Due Process Clause of the Fourteenth Amend­
ment to the Constitution; and of Sections 1977 and 
1978 of the Revised Statutes (8 U. S. C., Secs. 41, 42) .

A. The right of a citizen to acquire, own, enjoy and 
dispose of property without discrimination as to race or 
color is a federal civil right protected by the Constitution.

Section 1977, Revised Statutes ( 8  U. S. C., Sec. 41) 
provides:

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons 
and property as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

Section 1978, Revised Statutes ( 8  U. S. C., Sec. 42) 
provides :

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.

The statutes are a declaration by Congress of the right 
of all citizens to acquire and enjoy property without dis­
crimination as to race or color. If a white man can make 
a valid contract to purchase real property, Congress says 
that a Negro can make the same contract. If a white man



10

has a right to acquire and own a particular piece of prop­
erty the language of Section 1978 indicates that a Negro 
has the identical right.

These sections were derived from the Civil Rights Acts 
of 1866-75 which were under consideration in the Civil 
Rights Cases, 109 U. S. 3. In his opinion, Mr. Justice 
Bradley asserted that there were certain “ fundamental 
rights which appertain to the essence of citizenship, and 
the enjoyment or deprivation of which constitutes the 
essential difference between freedom and slavery.” Among 
the rights “ which are the essence of civil freedom” is the 
right, the Court said, to “ purchase, lease, sell and convey 
property”  (p. 22).

These rights, the Civil Rights Cases held, cannot he 
protected by the federal government under the Fourteenth 
Amendment from infringement by individual action, “un­
supported by state authority in the shape of law, customs, 
or judicial or executive proceedings”  (p. 17). (Italio 
added.) They are, nevertheless, among the constitutional 
rights of all citizens of the United States. It will appear 
later that the infringement in the present cases was sup­
ported “ by state authority * * * in the shape of * * * judi­

cial * * * proceedings.”  .
In Buchanan v. Warley, 245 U. S. 60, the City of Louis­

ville, Kentucky, enacted a municipal ordinance that on 
bade any white person or Negro to reside on any city oc' 
in which the majority of houses were occupied by person 
of the other color. This Court held that the ordinance vio­
lated the due process clause of the Fourteenth 
ment. It was declared in that case that the rig 0 
pose of one’s property without discrimination as o 
or color is a civil right protected by the Constitu ion 
Court said (p. 81):



11

The case presented does not deal with an attempt 
to prohibit the amalgamation of the races. The right 
which the ordinance annulled was the civil right of a 
white man to dispose of his property if he saw fit to 
do so to a person of color, and of a colored person to 
make such disposition to a white person.

It is urged that this proposed segregation will pro­
mote the public peace by preventing race conflicts. 
Desirable as this is, and important as is the preserva­
tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights cre­
ated or protected by the Federal Constitution.

It appears to be settled from the foregoing that the 
right to acquire, own, and dispose of property without 
discrimination as to race or color is a civil right that is 
an incident of national citizenship and is guaranteed by 
the Constitution.

In all cases herein the property involved had been 
deeded to the Negro petitioners.1 In the Missouri and 
District of Columbia cases there were restrictions against 
ownership as well as occupancy; the purchasers held the 
property subject to being divested of title if the restric­
tions were upheld. In the Michigan case there was only a 
restriction against occupancy. In the Michigan case, there­
fore, the petitioner acquired valid, legal title, and was 
possessed of all the incidents of ownership. The property 
was residential property in a residential neighborhood, 
and its use as a home was a proper, legal use. He could 
have rented it to white occupants. He was forbidden, be­
cause of his color, to occupy it himself.

'The petitioner Urciolo in Urciolo v. Hodge, No. 291, is white 
(R. 380). Hurd, in Hurd v. Hodge, No. 290, at the trial claimed 
to be a Mohawk Indian (R. 238), but was found by the court to be a 
Negro (R. 380).



12

In  Buchanan v . Warley, supra, the C ity  o f  Louisville 
so u g h t to  a cco m p lish  th e  sam e re su lt  b y  m eans o f a munici­
p a l o rd in a n ce . T h e  C o u rt  sa id , a t p a g e  7 4 :2

T h e  F o u r te e n th  A m en d m en t p ro te cts  life, liberty, 
a n d  p r o p e r ty  f r o m  in v a s io n  b y  the states without due 
p ro ce s s  o f  law . P r o p e r t y  is  m o re  than the mere thing 
w h ich  a p e r s o n  ow n s. I t  is  e lem en ta ry  that it includes 
th e  r ig h t  to  a cq u ire , u se, and  d isp o se  o f  it. The Con­
s titu tion  p r o te c ts  th ese  essen tia l attributes o f prop­
e r ty  * * * P r o p e r t y  co n s is ts  o f  the fr e e  use, enjoyment, 
a n d  d isp o sa l o f  a  p e r s o n ’s a cq u is ition s  without con­
t r o l  o r  d im in u tion  sa ve  b y  the la w  o f  the land.

T h a t  the r ig h t  to  u se  o n e ’ s p r o p e r ty  fo r  a lawful, 
p r o p e r  p u rp o s e  is  an  in c id e n t o f  ow n ersh ip , and as such is 
w ith in  th e  p r o te c t io n  o f  th e  co n stitu t io n a l guaranty of due 
p ro ce ss , is  co n c lu s iv e ly  settled . P a rt icu la r ly  is this true 
o f  the r ig h t  to  u se  re s id e n tia l p r o p e r ty  f o r  residential pur­
p o s e s .3 T h is  w a s c le a r ly  re co g n iz e d  in  Buchanan v. War- 
ley, supra, w h ich  s ta ted  th a t o c cu p a n cy  w as an incident of 
th e  r ig h t  o f  p u rch a se  o r  sa le  o f  r e a l p r o p e r ty  (p. 75).

I t  is  s ig n ifica n t th a t a ll o f  th e  restriction s  upon real 
p r o p e r ty  e n fo r c ib le  b y  the p o lic e  p o w e r  such as the “ liver) 
sta b les , b r ick y a rd s , a n d  the like , ’ ’ m en tioned  in Buchanan 
v. Warley as th e  le g it im a te  s u b je c t  o f  restrictive cove-

2 T h e  d u e  p ro c e s s  c la u se  w a s  re l ie d  u p o n  because  the  action was 
b ro u g h t b y  a  w h ite  v e n d o r  w h o  w a s  d e p r iv e d  b y  th e  ordinance o 
r ig h t  to  d is p o se  o f h is  p ro p e r ty .  T h e r e  c a n  b e  no  d o u b t tha t the s 
r e s u l t  w o u ld  h a v e  b e e n  re a c h e d  u n d e r  th e  d u e  process and eq 
p ro te c t io n  c la u se s  h a d  th e  a c tio n  b e e n  b ro u g h t b y  a  N egro  p u rc ia .

3 Terrace v. Thompson, 263 U. S. 197, 215 (citing
Warley, supra, 245 U. S. 60, a n d  Holden v. Hardy, 169 U. b. w , 
391) ; State of Washington ex rel. Seattle Title Trust Co.,v. ^
278 U. S. 116, 121; Sterling v . Constantin, 287 U. S. 3/», ^
DeCuir 95 U. S. 485, 508; Holmes v. Gravenhorst, ZbS JN. ' 
152.



13

nants, were re s tr ic t io n s  u p o n  use. T h e y  w e re  b u rd en s 
imposed upon the p r o p e r ty  n o t  u p o n  the occu p a n ts . A  
blacksmith, a g lu e  m ak er, o r  a  liv e r y  stab le  p r o p r ie to r , 
may be law fu lly  re s tr ic te d  in  the p u rsu it  o f  h is  re sp e ctiv e  
occupation in a p a r t icu la r  n e ig h b o rh o o d  bu t n o  on e  w ill 
deny that he m a y  liv e , w ith ou t le g a l in te r fe re n ce , w h ere  
anyone else m ay  live .

That this is  one o f  the r ig h ts  p ro te c te d  b y  the F o u r ­
teenth Am endm ent, a n d  th at ca n n ot b e  taken  a w a y  w ith ou t 
denial o f due p rocess , seem s to  be  se tt led  b e y o n d  qu estion . 
In Allgeyer v. State o f Louisiana, 165 U . S . 578, th e  C ou rt 
said (p. 5 8 9 ):

The liberty  m en tion ed  in  th a t am en dm en t [the 
Fourteenth] m ean s, n o t  o n ly  the r ig h t  o f  the c it izen  
to be free  fr o m  the m ere  p h y s ica l re s tra in t  o f  h is  p e r ­
son, as b y  in ca rce ra tio n , bu t the te rm  is  deem ed  to  
embrace the r ig h t  o f  the c it izen  * * * to  liv e  an d  w o rk  
where he w ill.

This d istin ction  betw een  lim ita tion s  o n  u se  a n d  lim ita ­
tions on occu pancy  is  im p orta n t. T h e  on e  im p o se s  a s e rv i­
tude upon p ro p e r ty  w h ich , a t tim es, is  le g a lly  p erm iss ib le . 
The other im poses a  se rv itu d e  u p o n  the in d iv id u a l w h ich  
is repugnant to  the b a s ic  co n ce p ts  o f  the C on stitu tion . I t  
takes away fr o m  h im , so le ly  b eca u se  o f  th e  c o lo r  o f  h is  
skin, a right w h ich  the A llgeyer  case  sa y s  is  g u a ra n teed  to  
him by the F ou rteen th  A m en d m en t— the r ig h t  to  liv e  w h ere  
he will. The la n g u a g e  o f  th is  C ou rt in  Steele  v. Louisville 
and Nashville Railroad Co., 323 U . S . 19.2, 203, is  eq u a lly  
pertinent to the p re se n t c a s e s :

Here the d iscr im in a tion s  b a se d  on  ra ce  a lon e  are  
obviously ir re le v a n t an d  in v id iou s .

It may be c la im ed  th at the ca ses  su sta in in g  sta tu tes 
prohibiting aliens fr o m  o w n in g  re a l p r o p e r ty  a re  in  p o in t  
tare. Let us co n s id e r  th is  f o r  a m om ent.



14

T h e  le a d in g  ca se  is  Terrace  v. Thompson, 263 U. S. 197, 
in  w h ich  th e  C o u rt  h a d  u n d er  co n s id e ra tio n  a provision of 
the C o n st itu tio n  o f  th e  S ta te  o f  W a s h in g to n  that prohibited 
the ‘ ‘ ow n e rsh ip  o f  la n d s  b y  a lien s , o th er  than those who 
in  g o o d  fa ith  h a v e  d e c la re d  th e ir  in ten tion  to become citi­
zens o f  the U n ite d  S ta te s .”  T h e re  w a s likewise involved 
a  sta tu te , the A n t i-A lie n  L a n d  L a w , fo rb id d in g  the use of 
p r o p e r ty  b y  a n o n -d e c la ra n t a lien .

T e rra ce , a c it izen  o f  the U n ite d  S tates , wished to lease 
ce r ta in  a g r icu ltu ra l la n d  to  a J a p a n ese . H e, therefore, 
b ro u g h t  su it a g a in st  the A t to r n e y  G en era l to enjoin him 
fr o m  e n fo r c in g  the A n t i-A lie n  L a n d  L a w  on the ground 
th at it  con flic ted  w ith  th e  du e  p ro c e s s  and  equal protection 
c la u ses  o f  the F o u rte e n th  A m en d m en t.

T h is  C o u rt  o v e r ru le d  the con ten tion , and in so doing 
m a d e  p e r fe c t ly  c le a r  the ra tio n a le  o f  its  decision. The 
essen tia l d if fe re n ce  b etw een  a lien s an d  non-aliens, insofar 
as le g is la t io n  o f  th is  k in d  is  co n cern ed , lies  in  their respec­
t iv e  o b lig a t io n  o f  lo y a lty  to  the govern m en t.

“ T h e  r ig h ts , p r iv ile g e s  a n d  d u ties  o f  aliens differ widely 
fr o m  th ose  o f  c it iz e n s ,”  th e  C o u rt  sa id , “ and those of 
a lien  d ec la ra n ts  d if fe r  su b sta n tia lly  fr o m  those of noil- 
d e c la r a n ts ”  (p . 2 1 8 ). I t  th en  q u o te d  the following with 
a p p r o v a l fr o m  the o p in io n  o f  the co u rt  be low  :4

I t  is  o b v io u s  th a t on e  w h o  is  n ot a  citizen and can 
n o t  b e co m e  on e  la ck s  an  in te res t in , and the power o 
e ffe c tu a lly  w o r k  f o r  the w e lfa r e  o f, the state, and, s 
la ck in g , th e  state  m a y  r ig h t fu l ly  d en y  him  the rig 
ow n  a n d  lea se  rea l esta te  w ith in  its  boundaries, 
on e  in ca p a b le  o f  c it izen sh ip  m a y  lease or °^ n 7
estate , it  is  w ith in  the rea lm  o f  p oss ib ility  tha - 
f o o t  o f  la n d  w ith in  the sta te  m ig h t pass to the own 
sh ip  o r  p o s s e s s io n  o f  n on c itizen s  (p p . 220, 2 /  )■ *

* 274 Fed. 841, 849.



15

It is clear that the le g is la t io n  w a s su sta in ed  as a ju s t i­
fied protective m easu re . T h e  c la ss ifica tion  in to  citizen s, 
declarant aliens, an d  n o n -d e c la ra n t a lien s w as rea son a b le  
and not arbitrary. A  sta te  h as a r ig h t  to  im p o se  stan d ard s 
of loyalty upon  th ose  w h o  w o u ld  h o ld  la n d  w ith in  its  
borders. It  is n ot u n rea son a b le  to  p u t in to  a p a r ticu la r  
category those a liens w h o  h ave  sh ow n  so litt le  d e v o t io n  to  
our institutions as to  h a v e  r e fr a in e d  fr o m  seek in g  c it iz e n ­
ship.

As to those w ho a re  b a r r e d  fr o m  n a tu ra liza t ion  b y  co n ­
gressional enactm ent, the C o u rt  s a id : “ T h e  S ta te  p r o p ­
erly may assum e th at the co n s id e ra tio n s  u p o n  w h ich  C on ­
gress made such c la ss ifica tio n  a re  su b sta n tia l an d  re a ­
sonable. ’ ’

There is no d ou b t th a t a la w  th at m ak es rea son a b le , 
non-arbitrary c la ss ifica tion s  d o e s  n o t  d en y  eq u a l p r o te c ­
tion.5 But d iscr im in a tion  b a se d  u p o n  ra ce  o r  c o lo r  d oes  
not come w ithin  th at ru le . U n less  it  can  be d eterm in ed  
that a m an’s lo y a lty  ca n  b e  m ea su red  b y  h is  a n ce s try  o r  
the color o f  h is skin , c la ss ifica tio n  b a sed  u p on  th ose  co n ­
siderations is u n rea son a b le  an d  a rb itra ry .

If the State o f  W a s h in g to n  sta tu te , in s te a d  o f  p r o ­
hibiting non-declarant a lien s f r o m  o w n in g  o r  lea s in g  p r o p ­
erty, had barred  N eg roes , it  w o u ld  h a v e  b een  u n con stitu ­
tional under Buchanan v. W arley. T h is  seem s to  be  a 
complete re fu ta tion  o f  the p e r tin e n cy  o f  Terrace  v. 
Thompson.

5 Truax v. Corrigan, 257 U .  S . 3 1 2 , 337.



16

B. State action depriving a person of the ownership, 
use or occupancy of property solely because of his race or 
color is forbidden by the due process clause of the Four­
teenth Amendment.

T h e  issu e  in  Buchanan  v. W arley, 245 U. S. 60, was 
s ta ted  b y  the C o u rt  in  th ese  w o r d s  (p . 7 5 ) :

T h e  co n cre te  q u e stio n  h ere  i s : M a y  the occupancy 
and, n e ce ssa r ily , the p u rch a se  an d  sale o f  property of 
w h ich  o c cu p a n cy  is  an  in c id en t, b e  inhibited by the 
sta tes , o r  b y  on e  o f  its  m u n ic ip a lit ies , solely because 
o f  the c o lo r  o f  the p r o p o s e d  o ccu p a n t o f  the premises!

A n d  a g a in , a t p a g e  7 8 :

In  the fa c e  o f  th ese con stitu tion a l and statutory 
p ro v is io n s , can  a  w h ite  m a n  be denied, consistently 
w ith  due p ro ce s s  o f  law , the r ig h t  to  dispose of his 
p r o p e r ty  to  a p u rch a se r  b y  p ro h ib it in g  the occupation 
o f  it  f o r  the so le  re a so n  th at the purchaser is a person 
o f  c o lo r , in te n d in g  to  o c c u p y  the prem ises as a place 
o f  re s id e n ce ?

T h e  a n sw er  to  th ese  q u estion s  is  em phatic and final:

W e  th ink  th is a ttem p t to  p rev en t the a lie n a tio n  of 
the p r o p e r ty  in  q u estion  to  a p e rso n  o f  c o lo r  w as not 
a  le g itim a te  e x erc ise  o f  the p o lic e  p ow er o f the state, 
a n d  is  in  d ire c t  v io la t io n  o f  the fundamental law 
en a cted  in  the F o u rte e n th  A m en d m en t o f  the Constitu­
t io n  p re v e n tin g  sta te  in te r fe re n ce  w ith  property rights 
e x ce p t  b y  due p ro ce ss  o f  law . T h a t being the case, 
the o rd in a n ce  ca n n ot s ta n d  (p . 8 2 ).

T h e  p r o p o s it io n  th at such  d iscr im in a to ry  action by the 
s ta tes  is  fo r b id d e n  is  thus d e fin ite ly  settled  by Buchanan 
v. W arley .6

6 Harmon v . Tyler, 2 7 3  U . S . 6 6 8 ;  Richmond v. Deans, 281 U. ■ 
7 0 4 ;  Carey v . City of Atlanta, 143 G a. 192, 84  S. E . 4 56 ; Jackson v. 
State, 132 M d . 311 , 103 A . 9 1 0 ;  Clinard v . City of Winston-bam 
2 1 7  N . C . 119, 6  S . E .  ( 2 d )  8 6 7 ;  Liberty Annex Corp, v. City oj 
Dallas, 2 8 9  S . W . 1067.



17

C. The decrees of the state courts were forbidden 
state action and therefore violated the due process clause 
of the Fourteenth Amendment.

(a)

Judicial action is state action.

Thus fa r  we h ave sh ow n  th at the r ig h t  to  bu y , sell, and  
occupy real p r o p e r ty  w ith ou t d is cr im in a tio n  as to  ra ce  o r  
color is a civ il r ig h t g u a ra n te e d  an d  p r o te c te d  b y  the C on ­
stitution. It  is  a lso  c le a r  th a t a n y  le g is la t io n  th a t w ou ld  
take away that r ig h t  w o u ld  be  fo r b id d e n  sta te  a ction  and  
therefore u ncon stitu tiona l.

To paraphrase the la n g u a g e  o f  Marsh  v. Alabama, B26 
U. S. 501, 505, i f  the p a r t ie s  to  th ese  ra c ia l coven a n ts  
“ owned all the h om es, a n d  a ll the s tores , an d  a ll the 
streets, and all the s id ew a lk s, a ll th ose  ow n ers  to g e th er  
could not have set u p  a m u n ic ip a l g o v e rn m e n t w ith  suffi­
cient power to p a ss  an  o rd in a n ce  ’ ’ b a r r in g  the ow n ersh ip , 
use, and alienation  o f  re a l p r o p e r ty  on  the g ro u n d  o f  co lo r .

The question, th e re fo re , is , ca n  p r iv a te  p a rtie s , b y  m ak­
ing a contract, e m p ow er the ju d ic ia r y  to  d o  th a t w h ich  is  
beyond the sov ere ig n  p o w e r  o f  the sta te  to  d o ?

It has lon g  been  se tt led  th at the ju d ic ia l  a ct io n  o f  a 
state court is the a ct io n  o f  the sta te  itse lf , a n d  th a t w hen  
such action con tra v en es  the C on st itu tion  it  com es  w ith in  
the purview o f  the F o u rte e n th  A m en dm en t.

As far back as 1879 th is  C o u rt  sa id  in  Virginia  v. Rives, 
100 U. 8. 313, 318 :

It is dou btless tru e  th a t a S ta te  m a y  a ct th rou g h  
different agen cies ,— eith er  b y  its  leg is la tiv e , its  execu ­
tive, or its ju d ic ia l a u th o r it ie s ; an d  the p ro h ib it io n s  
° f the am endm ent ex ten d  to  a ll a c tion  o f  the S tate  
denying equal p r o te c t io n  o f  the law s, w h eth er it be 
action by  one o f  th ese  a g en cies  o r  b y  an oth er.



18

In  E x  P arte Virginia, 100 U . S . 339, the same year, the 
C o u rt  sa id  (p . 3 4 6 ) :

T h e y  [th e  p r o h ib it io n s  o f  the F ourteenth  Amend­
m en t] h a v e  r e fe re n ce  to  a ction s  o f  the political body 
d en om in a ted  a S ta te , b y  w h a tev er  instruments or in 
w h a tev er  m od es  th a t a ction  m a y  be taken. A  State 
acts  b y  its  le g is la tiv e , its  execu tive , or its judicial 
a u th or itie s . I t  can  act in  n o  o th er  w ay.

T h ese  w e re  ca ses  in v o lv in g  the r ig h t  o f  Negroes to 
se rv e  as ju r o r s . T h is  C o u rt  h a s  n o t hesita ted  to set aside 
a d e te rm in a tio n  o f  the h ig h e st  C o u rt  o f  a state, either on 
m a tters  o f  p ro ce d u re  o r  su b sta n tiv e  law , when it mani­
fe s t ly  v io la te d  the p r o v is io n s  o f  the F ourteenth  Amend­
m ent, a n d  w h en  a fa r  re a ch in g  d e p r iv a tio n  o f Constitu­
tio n a l r ig h ts  w a s im p lic it  in  the d ec is ion .

In  Brinkerhoff-Faris Trust Go. v. Hill, 281 U. S. 673, 
an  a p p lica t io n  f o r  an  in ju n c t io n  to  re stra in  the collection 
o f  an  a lle g e d  d is c r im in a to ry  ta x  w a s den ied  because the 
p la in t if f  h a d  n o t  ex h a u sted  h is  rem ed ies  before the tax 
co m m iss io n e r . A n  e a r lie r  d e c is io n  o f  the M issouri court 
h a d  h e ld  th a t the ta x  co m m iss io n e r  w a s w ithout power to 
g ra n t  the r e lie f  sou gh t. T h is  ru lin g  w as later reversed, 
bu t in  the m ean tim e p la in t i f f ’ s tim e to  file a complaint with 
th e  ta x  co m m iss io n e r  h a d  ex p ire d , and  he was deprived of 
h is  d a y  in  co u rt . M r. J u s tice  B ra n d e is , w riting  the opinion 
o f  th is  C ou rt , sa id , a t p a g e s  679, 680 :

I f  the resu lt  a b ov e  s ta ted  w e re  attained by an exer­
cise  o f  the s ta te ’ s le g is la tiv e  p o w e r , the tran sg re ss io n  
o f  th e  due p ro ce ss  c lau se  o f  the F ourteenth  Amen 
m en t w o u ld  b e  o b v io u s  * * * T h e  v io la tion  is none 
less  c le a r  w h en  th a t resu lt  is  a ccom p lish ed  b y  th e  s _ 
ju d ic ia r y  in  th e  cou rse  o f  con stru in g  an otherwise 
v a lid  * * * sta te  statute. T h e  fe d e ra l g u a r a n t y  otm 
p ro ce s s  ex ten d s to  state  a ction  th rou gh  its judicia,



19

well as th rou gh  its  le g is la tiv e , ex ecu tiv e , o r  a d m in is ­
trative branch  o f  g ov ern m en t.

In Powell v. Alabama, 287 U . S. 45, the d e fen d a n ts  h ad  
been convicted o f  ra p e  w ith ou t the p r o p e r  a ss ign m en t b y  
the court o f counsel. T h is  C ou rt r e v e rse d  the ju d g m e n t 
of the Supreme C ou rt o f  A la b a m a  affirm ing  the co n v ic t io n  
because by ju d ic ia l a ct io n  due p ro ce s s  h a d  been  d en ied  to 
the defendants b y  the S ta te  o f  A la b a m a .

In Bridges v. California, 314 U . S . 252, the d e fe n d a n t 
was convicted o f  con tem p t u n d er  the com m on  la w  o f  the 
state. This C ourt r e v e rse d  th a t sen ten ce  b eca u se  the 
action of the C a lifo rn ia  co u rt  d en ied  to  th e  d e fe n d a n t the 
right of free speech  p ro te c te d  b y  the F o u rte e n th  A m e n d ­
ment.

In Cantwell v. Connecticut, 310 TT. S . 296, th is C ou rt 
likewise set aside a co n v ic t io n  b eca u se  the d e fen d a n t h a d  
been denied the r ig h t  o f  f r e e  sp eech  g u a ra n teed  b y  the 
Fourteenth A m en dm ent. In  th at ca se  the co n v ic t io n  w as 
for the com m on la w  o ffe n se  o f  in c it in g  a b re a ch  o f  the 
peace, and this C ou rt o v e r ru le d  the ju d g m e n t  o f  the C on ­
necticut court in  in te rp re t in g  its  ow n  ju d g e -m a d e  law .

The statement o f  the C o u rt  on  th is  p o in t  in  Twining v. 
New Jersey, 211 U . S . 78, h as b een  w id e ly  q u oted . In  th at 
case the question in v o lv e d  w a s the r ig h t  o f  a  tr ia l ju d g e  in  
a criminal case to  com m en t u p o n  th e  fa ilu r e  o f  a  d e fe n d a n t 
to testify in his ow n  b e h a lf. A lth o u g h  the C o u rt  d e c id e d  
that the com m ents d id  n o t con stitu te  a d en ia l o f  due p r o c ­
ess, it stated (p p . 90, 9 1 ) :

The ju d ic ia l a ct o f  the h ig h est co u r t  o f  the S ta te , 
m authoritatively  con s tru in g  a n d  e n fo r c in g  its  law s, 
is the act o f  the state .

Due process o f  la w  m ean s som eth in g  m o re  th an  m ere  
compliance w ith  the fo r m s  a n d  ru les  o f  le g a l p ro ce d u re .



20

A  m a n  m ig h t h a v e  a fa i r  t r i a l ; the ju d g e  m ight be careful 
a n d  a ccu ra te  in  h is  a p p lica t io n  to  the case  o f  the state law; 
y e t , i f  the u ltim a te  d e c is io n  resu lts  in  the denial of a con­
s t itu tio n a lly  p ro te c te d  r ig h t  th ere  h as been  an infringe­
m en t o f  the F o u rte e n th  A m en d m en t.

T h is  w a s  c le a r ly  e x p re s s e d  in  Chicago, B. & Q. R. Co. 
v. Chicago, 166 U . S . 226, in  w h ich  it  w as claimed that 
p r o p e r ty  h a d  b een  ta k en  f r o m  th e  ra ilro a d  in condemna­
t io n  p ro ce e d in g s  b y  the C ity  o f  C h ica g o  without adequate 
com p en sa tion . T h e  C o u rt  sa id  (p p . 234, 2 3 5 ):

B u t  a sta te  m a y  n ot, b y  a n y  o f  its agencies, dis­
r e g a r d  the p ro h ib it io n s  o f  the F ourteenth  Amend­
m ent. I t s  ju d ic ia l a u th oritie s  m a y  keep within the 
le t te r  o f  the sta tu te  p re s c r ib in g  fo rm s  o f  procedure in 
th e  co u rts  a n d  g iv e  the p a r t ie s  in terested  the fullest 
o p p o r tu n ity  to  he h ea rd , a n d  y e t  it  m ight be that its 
fina l a ction  w o u ld  he in con s is ten t w ith  that amend­
m en t. In  d e te rm in in g  w h a t is  du e  process of law re­
g a r d  m u st he h a d  to  su bstan ce , n o t to form  * * * the 
fina l ju d g m e n t  o f  a sta te  cou rt, under the authority 
o f  w h ich  the p r o p e r ty  is  in  fa c t  taken, is to be deemed 
th e  a ct o f  the S ta te  w ith in  the m ean in g  o f that amend­
m ent.

(b)

The decrees herein are forbidden state 
action and therefore violate the Fourteenth 

Amendment.

W e  d o  n o t  co n ten d  th a t th e  p roced u ra l rights of the 
lit ig a n ts  in  th ese  ca ses  w e re  n o t  scrupulously  protected, 
n o r  d o  w e  co n ten d  th at th e  tr ia l co u rts  w ere without juris 
d ic t io n  to  a d ju d ica te  p r iv a te  co n tra c ts  betw een individuals, 
I t  is  the result o f  th e  a d ju d ica t io n  th a t w e challenge. ® e 
d e cre e s  d e p r iv e d  the p e t it io n e rs  o f  fundam ental constitu 
tion a l r ig h ts . T h e y  w ere , th e re fo re , fo rb id d en  state action.



21

We do not cla im  th at a ll sta te  ju d ic ia l  a ct io n  is  rev iew - 
able by this C ourt, n o r  d o  w e  ask  th a t th e  C o u rt  g o  b ey on d  
the issues p resen tly  b e fo r e  it. T h e re  is  n o  n e ce ss ity  h ere  
further to extend “ the v a g u e  c o n to u r s ”  o f  the du e  p ro ce ss  
clause.7 The C ou rt sa id  in  Strauder v . W est Virginia,8 
“ The Fourteenth A m en d m en t m akes n o  a ttem p t to  enu­
merate the rights it  d e s ig n e d  to  p ro te c t . I t  sp eak s in  g e n ­
eral terms, and those a re  as co m p reh en s iv e  as p o s s ib le .”  

All that we are  a sk in g  the C o u rt  to  d ec id e  h ere  is  th at 
when a decree of a state court accomplishes a result fo r ­
bidden to the state legislature, and deprives a person be­
cause of his race, color, or religion, o f a fundamental right 
guaranteed and protected  by the Constitution, it is forbid­
den state action and invalid under the Fourteenth  Am end­
ment.

We submit that th is is  p r e c is e ly  th e  e ffe c t  o f  the d ecrees  
in the present cases. W e  h a v e  sh ow n  th at th e  r ig h t  o f  a 
person to buy, sell, o ccu p y , a n d  e n jo y  p r o p e r ty , a n d  “ to  
lire and w ork w h ere  he w i l l ”  is  g u a ra n te e d  a n d  p ro te c te d  
by the Constitution. I t  is  a p p a re n t th a t th e  d ecrees  h ere in  
take that right aw ay.

o It has been u rg e d  th a t th e  Civil R ights Cases, 109 U . S. 
3, is controlling. T h e  d e c is io n  in  th ose  cases  h e ld  th at 
racial discrim ination b y  in d iv id u a ls  d id  n o t  ra ise  a rev iew - 
able federal question . T h e  d is c r im in a to ry  acts , the b a r- 
*ing of Negroes fr o m  in n s a n d  p la ce s  o f  p u b lic  am usem ent, 
Weie complete and  s e l f -e n fo r c in g ; th ere  w a s  n o  n eed  to  
111 u,ke aid o f  the g ov ern m en t. T h e  C o u rt  in d ica ted  
dearly  that i f  the d iscr im in a tio n , to  be  e ffe c t iv e , n eed ed  

e suP p o r t  o f  ju d ic ia l a ct io n  the s itu a tion  w o u ld  be  d if -  
erent. Mr. J u stice  B r a d le y  sa id , a t p a g e  1 7 :

261 ’ disSentinS °P *n70n in Adkins v. Children’s Hospital,

81° 0 U .  S . 3 0 3 ,3 1 0 .



22

I n  th is  co n n e c tio n  it  is  p r o p e r  to  state that civil 
r ig h ts , su ch  as a re  g u a ra n te e d  b y  the Constitution, 
a g a in st  sta te  a g g re s s io n , ca n n ot be im paired by the 
w r o n g fu l acts  o f  in d iv id u a ls , unsupported by state au­
thority in the shape o f  law s, custom s, or judicial or 
ex e cu tiv e  proceedings. (I ta lic s  ad d ed .)

I f ,  as the a b o v e  la n g u a g e  in d ica tes , the impairment of 
c iv i l  r ig h ts  b y  in d iv id u a ls  com es  w ith in  the prohibitions of 
the F o u r te e n th  A m en d m en t w h en  su p p orted  by judicial 
p ro ce e d in g s , it  fo l lo w s  th a t the im pairm en t of constitu­
t io n a l r ig h ts  b y  the ju d ic ia l  e n fo rcem en t o f  private con­
tra cts , su ch  as th ese re s tr ic t iv e  coven an ts, likewise comes 
u n d er  th e  ban .

T h e re  is  a fu r th e r  c o n s id e ra t io n  that should be men­
tion ed . I f  in d iv id u a ls , b y  p r iv a te  agreem ent, can establish 
r a c ia lly  s e g re g a te d  a rea s , th e y  a re  v irtu a lly  performing a 
le g is la t iv e  act. T h is  w a s th e  e ffe c t  o f  the ordinance held 
u n co n st itu tio n a l in  Harm on v. T yler.9 10

In  th a t ca se  a N ew  O rlean s o rd in a n ce  barred whites or 
N e g ro e s  f r o m  “ a n y  com m u n ity  o r  p o r t io n  o f  the city * * 4 
e x ce p t  on  the w r itte n  con sen t o f  a m a jo r ity  o f  the opposite 
ra ce  in h a b it in g  su ch  co m m u n ity  o r  p o rtio n  o f the city.”1' 
In  e ffe c t , it  c o n fe r r e d  lo c a l o p t io n  u p on  the residents of 
N ew  O rlea n s to  e sta b lish  ra c ia l z o n in g  restrictions. It was 
h e ld  u n co n s t itu tio n a l on  th e  a u th o r ity  o f  Buchanan v. 
W arley. S u re ly  the a b sen ce  o f  su ch  ord inance in the pres­
en t ca se  ca n n o t c o n fe r  g r e a te r  p o w e r  u pon  the contracting 
p a rtie s  th a n  th e y  w o u ld  h a v e  h a d  u n d er an  ordinance.

T h e  a rg u m en t th a t a  sta te  ca n n ot d o  b y  judicial action 
th a t w h ich  it  is  fo r b id d e n  to  d o  b y  leg is la tion  is succinctly

9 2 7 3  U . S . 668 .

10 Q u o te d  in  Tyler v . Harmon, 158  L a . 4 39 , 440.



23

and convincingly s ta ted  b y  M r. J u s t ic e  E d g e r to n  in  b is  
dissenting op in ion  in  the co u r t  b e lo w  in  H urd  v . H odge  :u

It is stran gely  in co n s is te n t  to  h o ld  as th is co u rt  
does that a lthou gh  n o  le g is la tu re  ca n  a u th orize  a cou rt, 
even fo r  a m om ent, to  p re v e n t  N e g ro e s  f r o m  a cq u ir in g  
and using p a rticu la r  p r o p e r ty , a  m ere  o w n e r  o f  p r o p ­
erty at a g iven  m om en t can  a u th orize  a  co u rt  to  d o  so 
for all time. E ith e r  the due p ro ce ss  clau ses o f  the 
Constitution d o  n o t fo r b id  g ov ern m en ts  to  p re v e n t 
Negroes fr o m  a cq u ir in g  a n d  u s in g  p a r t icu la r  p r o p ­
erty, in w hich case  th ey  d o  n o t  fo r b id  co u rts  to  en ­
force racial r e s tr ic t io n s  w h ich  sta tu tes h a v e  im p o s e d ; 
or these clauses d o  fo r b id  g ov ern m en ts  to  p re v e n t 
Negroes fr o m  a cq u ir in g  and  u s in g  p a r ticu la r  p ro p e r ty , 
in which case th e y  fo r b id  cou rts  to  e n fo r ce  ra c ia l r e ­
strictions w h ich  coven a n ts  h a v e  im p osed . Buchanan 
v. Warley ru les ou t the firs t a ltern a tiv e . A s  J u d g e  
Boss, the d on or  o f  the A m e r ica n  B a r  A s s o c ia t io n ’ s 
Boss E ssay  P r iz e , sa id  lo n g  a g o  in  r e fu s in g  to  e n fo rce  
by injunction a  co v e n a n t a g a in st tra n s fe rs  to  C h in ese : 

it  would be a v e r y  n a r r o w  co n s tru ct io n  o f  the co n s ti­
tutional am endm ent in  q u estion  an d  o f  the d ec is ion s  
based upon it * # # to  h o ld  that, w h ile  sta te  a n d  m u n ic i-
t|a A°.islatuFes are  fo r b id d e n  to  d iscr im in a te  a g a in st 
tne Chinese in  th e ir  leg is la tion , a  c it izen  o f  the state
may law fu lly  do so  b y  con tra ct, w h ich  the co u rts  m a y
enforce * * * T h e  cou rts  sh ou ld  n o  m o re  e n fo r ce  the
one than the o th e r .” 12 11

11 lfi2 F. (2 d )  233 , 240 .

Gandolfo v. Hartman, 49 Fed. 181, 182.



24

II

The judicial enforcement of racial restrictive cove­
nants in the Michigan and Missouri cases is a violation 
of the E q u a l  Protection Clause of the Fourteenth 
Amendment to the Constitution.

T h e  equ a l p r o te c t io n  c la u se  o f  the Fourteenth Amend­
m ent, as  w a s sa id  in  the re ce n t ca se  o f  Fay  v. New York,1

p r o h ib its  p r e ju d ic ia l  d is p a r it ie s  b e fo re  the law. Under 
it  a  sy s tem  w h ich  m ig h t be  constitutionally  unobjec­
t io n a b le  i f  a p p lie d  to  a ll, m a y  be brought within the 
p r o h ib it io n  i f  som e  h a v e  m o re  fa v ora b le  treatment.

I t  w o u ld  seem  to  be  b e y o n d  argu m en t that to permit a 
w h ite  m a n  to  liv e  in. h is  ow n  h ou se  an d  to  forbid  a Negro 
to  liv e  in  h is  is  a p r e ju d ic ia l  d isp a r ity . T o  eject a Negro 
f r o m  h is  h om e  so le ly  b eca u se  o f  h is  co lo r , and to allow Ms 
w h ite  n e ig h b o r  to  re m a in  u n m olested  certainly  gives the 
w h ite  m an  “ m o re  fa v o r a b le  tre a tm e n t.”

W e  m a y  a d d  th at it  is  a  sh ock in g  pre ju d icia l disparity 
f o r  the la w  to  in te r fe r e  in  a p r iv a te  arrangem ent between 
a w ill in g  se lle r  a n d  a w ill in g  p u rch a ser  o f  real property, 
a n d  p r o h ib it  o r  an n u l the tra n sa ctio n  because the purchaser 
is  a N e g r o .2

T h e  p u r p o s e  o f  th e  F o u r te e n th  Am endm ent was to 
p r o h ib it  p r e c is e ly  th e  s o r t  o f  ra c ia l distinctions accom­
p lis h e d  b y  th e  cov en a n ts  in  th ese  cases. This was elo­
q u en tly  s ta ted  in  Strauder v . W est Virginia, 100 U. S. 303,

1 331 U. S. , 91 Law Ed. Adv. Opinions 1517,1530
(N o. 377, decided June 23, 1947).

2 All o f these restrictive covenant cases involve transactions he 
tween willing vendors and willing purchasers. I f  th a t were no 
there could be no cases.



25

where, after su m m ariz in g  th e  p r o v is io n s  o f  the F o u rte e n th  
A m endm ent the C ou rt sa id , a t p a g e s  307, 308 :

What is th is bu t d e c la r in g  th a t the la w  in  the 
States shall be the sam e f o r  the b la ck  as f o r  th e  w h it e ; 
that all person s, w h eth er  c o lo r e d  o r  w h ite , sh a ll stand  
equal be fore  the la w s o f  the S ta tes  and , in  r e g a r d  to 
the colored ra ce , f o r  w h o se  p r o te c t io n  the A m en d m en t 
was prim arily  d es ig n ed , th a t n o  d iscr im in a tio n  shall 
be made aga in st th em  b y  la w  beca u se  o f  th e ir  c o lo r ?  
The w ords o f  the A m en d m en t, it  is  tru e , a re  p r o h ib i­
tory, but th ey  con ta in  a  n e ce ssa ry  im p lica t io n  o f  a 
positive im m unity , o r  r ig h t , m o s t  v a lu a b le  to  the c o l­
ored race— the r ig h t  to  e x e m p tio n  f r o m  u n fr ie n d ly  
legislation aga in st th em  d is t in c t iv e ly  as c o lo r e d ; ex ­
emption fr o m  le g a l d is cr im in a tio n s , im p ly in g  in fe r i ­
ority in c iv il so c ie ty , le ss e n in g  the se cu r ity  o f  th e ir  
enjoyment o f  the r ig h ts  w h ich  o th ers  e n jo y , and  d is ­
criminations w h ich  a re  steps to w a rd s  re d u c in g  them  
to the cond ition  o f  a su b je c t  ra ce .

. It is pertinent to  c o n s id e r  f o r  a  m om en t the u n d e r ly in g  
purpose o f these ra c ia l r e s tr ic t iv e  cov en a n ts . T h e  tra g ic  
fact o f race p re ju d ice  is  so  p e rv a s iv e  an d  so  d e e p ly  ro o te d  
in our national l i fe  th a t th is  co u r t  can , w ith ou t m u lt ip li­
cation of illustrations, take  ju d ic ia l  n o tice  o f  it. A  w id e ­
spread belief in  the sp ec iou s  “ in fe r io r ity  in  c iv i l  s o c ie t y ”  
of the Negro re fe r re d  to  in  the Strauder case  u n q u estion ­
ably exists.

This lam entable fa c t  o f  ra ce  p r e ju d ic e  is , o f  cou rse , 
seldom admitted, an d  v a r io u s  ra tio n a liz a tio n s  h a v e  been  
advanced to  j u s t i f y  th ese  d is c r im in a to r y  cov en a n ts . T h e  
most freq u en t are  th a t th e  re s tr ic t iv e  cov en a n ts  p re s e rv e  
real estate values and  th at th e y  p re v e n t  in te r ra c ia l s tr ife . 
Assuming arguendo th a t th ese  con ten tion s  m a y  h a v e  som e 
validity, they can not ju s t i fy  a co n tra v e n tio n  o f  the C on sti­
tution. Both o f  these a rg u m en ts  w e re  su m m a rily  d isp o se d  
°f in Buchanan v . W arley, supra, p a g e s  81, 8 2 :



26

I t  is  u rg e d  th a t th is  p r o p o s e d  segregation  will pro­
m ote  the p u b lic  p ea ce  b y  p re v e n tin g  race conflicts. 
D e s ira b le  as th is  is , an d  im p o rta n t as is the preserva­
t io n  o f  the p u b lic  p ea ce , th is a im  cannot be accom­
p lish e d  b y  law s o r  o rd in a n ces  w h ich  deny rights cre­
a ted  o r  p ro te c te d  b y  the F e d e r a l Constitution.

I t  is  sa id  th a t su ch  a cq u is ition s  b y  colored persons 
d e p re c ia te  p r o p e r ty  o w n ed  in  the neighborhood by 
w h ite  p e rso n s . B u t  p r o p e r ty  m a y  be acquired by un­
d e s ira b le  w h ite  n e ig h b o rs , o r  p u t to disagreeable 
th ou g h  la w fu l u ses  w ith  lik e  resu lts .

T h e  tru th  o f  th e  m a tte r  is  th a t som e white people do 
n o t w a n t N e g ro e s  as n e ig h b o rs . T h is  th ey  cannot accom­
p lish  b y  le g is la tio n , so  the ra c ia l re str ictiv e  covenant was 
d e v is e d  to  c ircu m v e n t th e  ru lin g  o f  Buchanan v. Warleij. 
T h e  v e r y  fa c t  th a t fe a r s  a re  e x p re sse d  in  these cases that 
the p re se n ce  o f  N e g ro e s  in  a n e ig h b o rh o o d  will depreciate 
v a lu es  an d  p ro m o te  s tr i fe  is  in  it s e lf  persuasive evidence 
o f  the b a s ic  re a so n  f o r  the d iscr im in a tion ,— racial antag­
on ism .

T h a t  ra c ia l h o s t il ity  is  an  im p o rta n t m otive for these re­
s tr ic t io n s  is  re co g n iz e d  in  Buchanan v .  Warley, w here the 
C o u rt  sa id , a t p a g e s  80, 8 1 :

T h a t th ere  ex is ts  a  ser iou s  and difficult problem 
a r is in g  f r o m  a fe e l in g  o f  ra ce  h ostility  which the law 
is  p o w e r le ss  to  c o n tro l, an d  to  w hich  it must give a 
m ea su re  o f  co n s id e ra tio n  m a y  be  fre e ly  a d m itte d .

T h e  o p in io n  th en  a d d s :

B u t  its  so lu tio n  ca n n o t be  p rom oted  by ̂ depriving 
c it izen s  o f  th e ir  co n stitu t io n a l r ig h ts  and privileges.

T h e  la n g u a g e  o f  th is  C o u rt  in  Korematsu  v. U- 8., 3- 
U . S . 214, 216, is  th e re fo re , sq u a re ly  in  p o in t :

I t  sh ou ld  be  n o te d  to  b e g in  w itlq  that all ê° a.^ je 
s tr ic t io n s  w h ich  cu r ta il the c iv il rights of a si a



27

racial group  a re  im m ed ia te ly  su sp ect. T h a t is  n o t  to 
say that a ll such  re s tr ic t io n s  a re  u n con stitu tion a l. I t
is to say that co u rts  m u st su b je c t  th em  to  the m ost 
rigid scrutiny. P r e s s in g  p u b lic  n e ce ss ity  m a y  som e­
times ju s tify  the ex is ten ce  o f  su ch  r e s t r ic t io n s ; racial 
antagonism never can. ( I ta lic s  a d d e d .)

Two argum ents h a v e  fr e q u e n t ly  b een  a d v a n ced  in  su p ­
port of the ju d ic ia l e n fo rce m e n t o f  ra c ia l r e s tr ic t iv e  c o v e ­
nants. One is that the co u rts  w ou ld , i f  ca lle d  u p on , e n fo r c e  
similar covenants b y  N e g ro e s  a g a in st w h ites , a n d  co n se ­
quently there is n o  d en ia l o f  eq u a l p ro te c t io n . T h e  o th er  
is that to  refuse to  e n fo r c e  th ese  cov en a n ts  w o u ld  d en y  
equal protection to  the co n tra c t in g  p a r tie s . T h is  w a s e x ­
plicitly s ta te d  in  the o p in io n  b y  the co u r t  b e lo w  in  Sipes v. 
McGhee?

The speciousness o f  th ese  con ten tion s  is  a p p a ren t . T h a t 
Negroes are being h e rd e d  in  re s tr ic te d  s lum  a rea s  w ith  the 
concomitant resu lt o f  d isea se , cr im e , a n d  ra c ia l ten s ion  is  
well known. I t  is  u n re a lis t ic  to  sa y  th a t the w h ites , w h o 
have unrestricted a ccess  to  a ll the h a b ita b le  a rea s  o f  the 
country, may p erh a p s be b a r r e d  b y  N e g ro e s  fr o m  som e o f  
them b y  d iscr im in a tory  cov en a n ts . I t  w o u ld  ig n o re  the 
obvious facts o f  c o n te m p o ra ry  l i fe  to  im a g in e  a  d es ira b le  
residential n e ig h b orh ood  in h a b ited  b y  w ea lth y  N e g ro e s  
from w hich  w hites w o u ld  be  exc lu d ed . A s  M r. J u stice  
Cardozo said in  Smith v . Loughman, 245 N . Y . 486, 496, o f  
another constitutional p r o v is io n :

We are n ot to  w h ittle  it  d ow n  b y  re fin em en t o f  ex ­
ception or b y  the im p lica t io n  o f  a r e c ip r o c a l  a d v a n ta g e  
that is m erely  tr iv ia l o r  sp eciou s .

However, the co n stitu t io n a l o b je c t io n  is  n o t  a n sw ered  
^  supposing the p o s s ib i li ty  o f  r e c ip r o c a l  d is cr im in a tion . 3

3316 Mich. 614, 25  N . W . ( 2 d )  6 3 8 ,6 4 4 .



28

A  d en ia l o f  a  co n s titu t io n a l r ig h t  to  a N eg ro  today cannot 
be  su sta in ed  b eca u se  a s im ila r  r ig h t  m a y  perhaps be denied 
to  a w h ite  m a n  in  th e  h y p o th e t ica l fu tu re . This is con­
v in c in g ly  p re se n te d  b y  P r o fe s s o r  M cG ov n ey 4 who says:

B u t  in  e v e r y  case  o f  sta te  co u rt  enforcement of a 
re s tr ic t iv e  a g reem en t the b lo w  fa lls  upon  an individ­
u al, n o t u p o n  a g ro u p  as such. T h e  command of the 
C lau se  is  th at n o  sta te  shall d en y  to any person the 
eq u a l p r o te c t io n  o f  the law s. T he immunity granted 
is  an  in d iv id u a l one. W h e n  becau se  o f  an agreement 
o f  on e  g r o u p  a sta te  ou sts  a N e g ro  from  residing in 
the h om e o f  h is  ch o ice  it  d oes  n ot square itself with 
the com m a n d  o f  the c la u se  b y  e n fo rc in g  the agreement 
o f  a n o th er  g r o u p  b y  w h ich  a w hite man is barred 
f r o m  the h om e o f  h is ch o ice . In stead  o f complying 
w ith  the C lause, the sta te  com m its  tw o violations of 
it. T w o  in d iv id u a ls , on e  N e g ro  and one white, has 
each  been  d is cr im in a te d  a g a in st because of his race. 
U n d e r  the E q u a l P r o te c t io n  C lause, as under Dne 
P r o c e s s  C lau ses, the S u p rem e  C ourt, has several 
tim es p o in te d  ou t th a t “ the essence o f  the constitu­
tio n a l r ig h t  is  th a t it  is  a p erson a l one * * # It is 
the in d iv id u a l w h o  is  en titled  to  the equal protection 
o f  the la w s .” 5

T h e  co n te n tio n  th a t r e fu s a l to  e n fo rce  these covenants 
w o u ld  d e n y  eq u a l p r o te c t io n  to  th e  con tracting  parties is 
e q u a lly  u n sou n d . I f  w e  b a la n ce  r ig h ts  con ferred  by private 
c o n tra c ts  a g a in st  fu n d a m e n ta l con stitu tion a l rights, there 
can  be n o  q u e stio n  th a t co n stitu t io n a l righ ts must prevail.

4 M c G o v n e y , D . O .,  Racial Residential Segregation by State Court 
Enforcement of Restrictive Agreements, Covenants or Conditionst 
Deeds Is Unconstitutional, 33 C alif. L a w  R ev . 5, 28, 29.

5 S ee , a lso  ca se s  c ited , ibid., p a g e  2 9 :  McCabe v. Atchison, T&J>■ 
F. R. Co., 2 3 5  U . S . 141, 161 , 1 6 2 ; Missouri ex rel. Gaines v. Canm, 
305  U . S . 3 3 7 , 3 5 1 ;  Mitchell v. U. S., 313  U . S . 80, 97.



29

In these cases the re la t iv e  eq u ities  m a y  be  thus s ta te d : 
On the one hand th ere  a re  th e  c o n tra c t in g  p a r t ie s  w h o  in  
good faith believed th at b y  jo in in g  in  a  co v en a n t th ey  cou ld  
secure their p ro p e r ty  f r o m  the u n d e s ira b le  p r o x im ity  o f  
colored neighbors. O n  the o th er  h a n d  th ere  is  the N e g ro  
who, during an acute h o u s in g  sh o r ta g e  is  p re v e n te d  fr o m  
acquiring a home, o r , h a v in g  a cq u ire d  it , is  d r iv e n  o u t o f  it 
solely because he is a N e g ro .

It has been m ade a b u n d a n tly  c le a r  in  th e  ca ses  q u o te d  
above8 that the r igh t o f  a p e r s o n  to  a cq u ire  p r o p e r ty  an d  
remain unm olested in  the e n jo y m e n t o f  it  is  a p a ra m ou n t 
constitutional righ t. T h is  r ig h t  is  s u p e r io r  to  a n y  p r iv a te  
contractual right, an d  a ll c o n tra c ts  a re  su b ord in a te  to  it. 
As Mr. Chief J u stice  H u g h e s  sa id  in  Norman  v . Baltimore 
md Ohio Railroad Co., 294 U . S . 240, 3 0 8 :

Parties cannot re m o v e  th e ir  tra n sa ctio n s  f r o m  the 
reach o f dom inan t co n stitu t io n a l p o w e r  b y  m ak in g  
contracts about them .

Mr. Justice B re w e r  sa id  in  Long Island W ater Supply 
Co. v. Brooklyn, 166 U . S . 685, 6 9 2 :

But into all con tra cts , w h eth er  m ad e  b etw een  S ta tes  
and individuals, o r  b e tw een  in d iv id u a ls  on ly , th ere  
enter conditions w h ich  a r ise  n o t  ou t o f  the lite ra l 
terms o f the co n tra c t  i t s e l f ;  th e y  a re  su p erin d u ced  
by the p reex istin g  an d  h ig h e r  a u th o r ity  o f  the law s 
of nature, o r  n a tion s  o r  o f  the com m u n ity  to  w h ich  
the parties b e lo n g ; th e y  a re  a lw a y s  p resu m ed , an d  
must be presu m ed , to  be k n ow n  a n d  re co g n iz e d  b y  
all, are b ind ing  u p o n  all, a n d  n eed  n ev er , th e re fo re , 
be carried in to  e x p re ss  stip u la tion , f o r  th is cou ld  ad d  
nothing to th e ir  fo r c e . E v e r y  co n tra c t  is  m ad e  in  
subordination to them , a n d  m u st y ie ld  to  th e ir  co n tro l, 
as conditions in h eren t a n d  p a ra m ou n t, w h e re v e r  a 
necessity fo r  th e ir  e x e cu tio n  sh a ll o ccu r .

* See, also, cases c ited  in  n o te  3, P o in t  I ,  supra (p .  1 2 ) .



30

T h e  la n g u a g e  o f  th is  C o u rt  in  Nebbia  v . New York, 291 
U . S . 502, 523, is  a lso  in  p o in t  :

U n d e r  o u r  fo r m  o f  g o v e rn m e n t the use of prop­
e r ty  a n d  the m a k in g  o f  co n tra c ts  are normally mat­
te rs  o f  p r iv a te  an d  n o t o f  p u b lic  concern . The general 
ru le  is  th a t b o th  shall be  fr e e  o f  governmental inter­
fe re n ce . B u t n e ith er  p r o p e r ty  righ ts  nor contract 
r ig h ts  a re  a b s o lu te ; f o r  gov ern m en t cannot exist-if 
th e  c it iz e n  m a y  a t w ill u se  h is  p ro p e r ty  to the detri­
m en t o f  h is  fe llo w s , o r  e x erc ise  h is freedom  of con­
tra c t  to  w o rk  th em  h arm .

I t  ca n n ot be  d en ied  th a t the re s tr ic t iv e  covenants herein 
w e re  to  the d e tr im en t o f  the N e g r o  ow ners and worked 
th em  h arm . I f  th ey  h a d  b een  w h ite  th ere  would have been 
n o  su ch  d e tr im e n t o r  h arm . I t  fo l lo w s , therefore, that the 
ju d ic ia l  e n fo rce m e n t o f  th ese  coven a n ts , based solely upon 
th e  c o lo r  o f  the skin , con stitu tes  a den ia l o f  equal protec­
t io n  o f  th e  law .

I t  is  ou r  co n te n tio n  th a t ju d ic ia l  enforcem ent of these 
r e s tr ic t iv e  cov en a n ts  w o u ld  be  u n con stitu tiona l even as to 
th e  o r ig in a l p a r t ie s  to  the agreem en t. I f  one o f the parties 
a tte m p te d  to  se ll to  a  N e g r o , an  in ju n ction  to restrain hi® 
w o u ld  be p r o h ib ite d  sta te  a ction .

B u t  th e  fa c ts  in  the ca ses  a t b a r  are stronger, for the 
v ic t im s  o f  th ese  re s tr ic t io n s  a re  n o t p arties  to the agree­
m en ts th a t cre a te  them . T h e ir  con stitu tion a l right to buy, 
sell, a n d  e n jo y  p r o p e r ty  h as b een  invaded  without the 
s lig h tes t sem b la n ce  o f  con sen t. A  p erson  may lawfully 
b a rg a in  a w a y  som e o f  h is  con stitu tion a l rights. He can 
n e v e r  b a rg a in  a w a y  th e  co n stitu t io n a l r igh t o f another.

I t  h as b een  co n te n d e d  th a t the cases that uphold the 
co n s t itu t io n a lity  o f  “ eq u a l b u t s e p a r a te ”  accommodation 
f o r  N e g ro e s  in  p u b lic  co n v e y a n ce s  a re  authority  for the ra



31

cial segregation c re a te d  b y  re s tr ic t iv e  coven a n ts . T h ere  
are two an sw ers:

The first is th at h o u s in g  is  u n iqu e. A n  a g reem en t to  
purchase a p a rticu la r  p ie ce  o f  p r o p e r ty  is  n o t  sa tisfied  b y  
the offer o f som e o th er  p r o p e r ty .7 D u r in g  a  h ou s in g  
shortage such as ex is ts  a t the p re se n t  tim e th ere  m a y  n o t 
be another house a va ila b le . B u t in  a n y  even t, tw o  h ou ses 
are not identical in  the sense th a t tw o  d in in g  ca rs  o r  tw o  
Pullman cars o r  even  tw o  sch o o ls  a re  id en tica l. A  w h ite  
man seeking a h om e h a s  a co n stitu t io n a lly  p ro te c te d  r ig h t  
to indulge in all the n uan ces an d  v a g a r ie s  o f  taste . T o  re ­
fuse the same r ig h t to  a N e g ro  is  to  d e n y  h im  equ a l p r o te c ­
tion which, as the C ou rt sa id  in  Hill v . Texas, 316 U . S . 400, 
401, “ is som ething m o re  th an  an  a b stra c t  r igh t. I t  is  a 
command w hich the S ta te  m u st resp ect, the benefits  o f  
which every p erson  m a y  dem an d . ’ ’

But the com plete  a n d  fin a l a n sw er  to  the “ equ a l but 
separate,”  argu m en t is  th a t th is  C o u rt  h as c le a r ly  an d  
emphatically d ec la red  th a t it  d o e s  n o t  a p p ly  to  ra c ia l seg ­
regation in  housing. Buchanan v . W arley, p a g e  81, s a y s :

As we h ave  seen , th is co u rt  h as h e ld  law s v a lid  
which separated  the ra ces  on  the b a sis  o f  equ a l a c ­
commodations in  p u b lic  con v ey a n ces , and  cou rts  o f  
high authority  h a v e  h e ld  en actm en ts la w fu l w h ich  p r o ­
vide fo r  sep a ra tion  in  the p u b lic  sch oo ls  o f  w h ite  and  
colored pu p ils  w h ere  equ a l p r iv ile g e s  a re  g iv en . B u t, 
in view o f  the r ig h ts  secu red  b y  the F ou rteen th  
Amendment to  the F e d e ra l C on stitu tion , such  le g is la ­
tion must have its  lim ita tion s , a n d  ca n n ot be su sta ined  
where the ex erc ise  o f  a u th o r ity  exceed s  the restra in ts  
of the C onstitu tion . W e  th in k  these lim ita tion s  are 
exceeded in  law s an d  o rd in a n ces  o f  the ch a ra cter  n ow  
before us.

Baumann v. Pinckney, 118  N . Y . 604 , 6 1 2 , 6 13 , a n d  a u th o r it ie s



32

A ll  th at w e sa id  in  the p re v io u s  p o in t concerning due 
p ro ce s s  a p p lie s  e q u a lly  to  the eq u a l protection  clause of 
the F o u rte e n th  A m en d m en t. J u d ic ia l action  is state action, 
a n d  a  ju d ic ia l d ecree  th a t d en ies  equal protection of the 
la w  is  d en ia l b y  the s ta te .8 I t  is  fo rb id d e n  state action, 
“ o d io u s  to  a  fr e e  p e o p le  w h ose  institu tions are founded 
u p o n  a d o c tr in e  o f  e q u a lity .”  Hirabayashi v. United 
States, 320 IT. S . 81, 100.

8 I n  a d d it io n  to  c a se s  c ite d  u n d e r  d u e  p ro cess , in  Point I, supra 
see  a lso , Raymond v . Chicago Union Traction Co., 207 U. S. 20, 36 
Home Tel. & Tel. Co. v . Los Angeles, 227  U . S. 278, 287,288 
Carter v . Texas, 177 U .  S . 4 4 2 , 4 4 7 ;  Snowden v . Hughes, 321 U. b.
1, 16.



33

III

The judicial enforcement of the racial restrictive 
covenants in the District of Columbia cases violates 
the Due Process Clause of the Fifth Amendment and 
Section 1978 of the Revised Statutes (8 U. S. C., Sec.
42).

Section 1978 o f  the R e v is e d  S ta tu tes , w h ich  is  a co n ­
gressional enactm ent, is  the m u n ic ip a l la w  o f  the D is tr ic t  
of Columbia, Civil Rights Cases {su pra ).1 T h e  d ecrees  
which deny to N eg roes  “ the sam e r ig h t  * * * as is  en ­
joyed by white citizens * * * to  * * * p u rch a se , lea se , sell, 
hold and con vey ”  rea l p r o p e r ty  is  c le a r ly  in  v io la tio n  
thereof.

It is well settled th at the w o r d s  “ du e p r o c e s s ”  h ave  
the same m eaning in  the F i f t h  a n d  F o u rte e n th  A m e n d ­
ment.2 In Twining v . New Jersey ,3 d is cu ss in g  due p ro ce ss , 
it was said:

If any d iffe ren t m ea n in g  o f  the sam e w o rd s  as they 
are used in the F o u rte e n th  A m en d m en t [a n d  in  the 
Fifth A m endm ent] ca n  be  co n ce iv e d , n on e  has y e t  
appeared in ju d ic ia l d ec is ion .

AH that we sa id  ab ove  co n ce rn in g  due p ro ce s s  u n d er 
the Fourteenth A m en dm en t, th e re fo re , a p p lie s  here . I t  
"ould have been b ey on d  the p o w e r  o f  C on g ress  to  enact 
a racial residential se g re g a tio n  la w  f o r  the D is tr ic t  o f  
Columbia. The ju d ic ia l e n fo rce m e n t o f  the re s tr ic t iv e  
tenants is fo rb id d e n  g o v e rn m e n ta l a ct io n  and  con se- 
pently deprived the p e tit io n e rs  o f  th e ir  p r o p e r ty  w ith ou t 

process o f law.

1 U. S. 3, 19.

l l O i f f e  >̂onnan> 285  U .  S . 3 12 , 3 2 6 ;  Hurtado v . California,
' s>. 516; Bowles v . Willingham, 3 2 1 . U .  S . 503 , 518.

3 211 U. S. 78, 101.



34

IV

The case of Corrigan v. Buckley did not decide the 
questions presented herein.

T h e  case  o f  Corrigan  v . Buckley, 271 U. S. 323, has 
b een  fr e q u e n tly  re lie d  u p o n  b y  state  courts and the courts 
o f  the D is tr ic t  o f  C o lu m b ia  to  su sta in  the constitutionality 
o f  ra c ia l r e s tr ic t iv e  cov en a n ts . A n  examination of the 
o p in io n  w ill sh ow  th at the case  has been  misinterpreted, 
a n d  th at the q u estion s  p re se n te d  h ere  are still undecided,

C o rr ig a n , B u ck le y  a n d  o th e rs  m ade an agreement that 
n o  p a r t  o f  th e  re s tr ic te d  p r o p e r ty , w hich  was located in 
the D is tr ic t  o f  C o lu m b ia , sh ou ld  be so ld  to or occupied by 
N e g ro e s . C o rr ig a n  m a d e  a  co n tra ct  to sell a lot to a 
N e g ro , an d  a b il l  w a s  filed  to  en jo in  the sale. A  motion 
w a s m a d e  to  d ism iss  th e  h ill on  the ground that the 
co v en a n t w a s  v o id  b eca u se  it  v io la te d  the Constitution 
an d  the L a w s  o f  the U n ite d  S ta tes , and  was against public 
p o lic y . T h is  m o tio n  w a s den ied .

T h e  case  re a ch e d  th is  C o u rt  on  appeal. The defend­
ants b a se d  th e ir  a p p e a l on  the sole grounds that the 
cov en a n t w a s  v o id  b eca u se  it  v io la te d  the Fifth, Thir­
teen th , an d  F o u rte e n th  A m en d m en ts , and Sections 1977, 

1978, 1979, R e v is e d  S ta tu tes .
T h e  C o u rt  r e fu s e d  to  en terta in  jurisdiction  and dis­

m issed  the a p p e a l beca u se  the re co rd  did not present a 
co n stitu t io n a l o r  s ta tu to ry  q u estion  substantial in char 
a cte r  a n d  p r o p e r ly  ra is e d  in  the low er  court.

T h e  a ttack  in  th is ca se  w a s so le ly  upon the constitu­
t io n a lity  o f  the covenant. T h e  C o u r t  stated in its opinio 
th at co n tra c ts  be tw een  in d iv id u a ls  d id  not come undei tie 
p r o h ib it io n s  o f  the F ifth , T h irteen th  and Fourteen  ̂
A m en d m en ts , n o r  w e re  th ey  in v a lid a ted  by  Sections j 1 
1978 o f  the R e v is e d  S ta tu tes . T h e  F ifth  Amendment,



35

Court said, is a lim ita tion  u p o n  the p o w e rs  o f  the g en era l 
government; the T h irteen th  A m en d m en t fo r b id s  in v o lu n ­
tary servitude, hut d oes  n o t  o th erw ise  p r o te c t  in d iv id u a l 
rights; and the 14th A m en d m en t is  a  lim ita tion  u p on  state 
action, which w as n o t in v o lv e d  in  the ca se  s in ce  it  a rose  
in the District o f  C olum bia .

The constitutionality o f  the decrees  o f  the lo w e r  co u rt  
(as distinguished fr o m  the co n s titu t io n a lity  o f  the c o v e ­
nants) was ra ised  u p on  the a rg u m en t in  the S u p rem e 
Court, but was not in  the re co rd . O n th is  p o in t  the C ou rt 
said, page 331:

* this con ten tion  lik ew ise  ca n n ot se rv e  as a 
jurisdictional basis  f o r  the a p p ea l. A ssu m in g  th at such 
a contention, i f  o f  a su b sta n tia l ch a ra cte r , m ig h t h ave  
constituted g rou n d  f o r  an  a p p e a l u n d er  P a r a g r a p h  3 
of the Code p ro v is io n , it  w a s  n o t  ra ise d  b y  the p e t i­
tion for the ap p ea l o r  b y  a n y  a ss ign m en t o f  e rro r , 
either in the cou rt o f  a p p ea ls  o r  in  th is c o u r t ;  an d  it 
likewise is la ck in g  in  su bstan ce .

It appears, th e re fo re , th at th is p o in t  w h ich  is  n ow  
raised in the presen t cases, th a t ju d ic ia l  e n fo rcem en t o f  
racial restrictive cov en a n ts  is  fo r b id d e n  g ov ern m en ta l 
action, “ might have co n stitu te d  g ro u n d  f o r  an a p p e a l”  i f  
it had been p ro p e r ly  ra ised .

Since the case w as d ism issed  on  ju r is d ic t io n a l g rou n d s  
tie statement “ and is  lik ew ise  la ck in g  in  su b s ta n ce ”  is
ictum on a poin t w h ich  th e  C ou rt s ta ted  w a s n o t  b e fo r e

it.



36

Conclusion

For the reasons urged herein, we respectfully ask 
that the judgments of the courts below be reversed.

N e w m a n  L evy 
Sol R abkin

B e s p e c t fu lly  su bm itted ,

Joseph M . P roskauer 
Jacob Grumet

Attorneys for
A m e r ic a n  J e w is h  Com m ittee 
B ’n a i B ’r i th  (A nti-D efam ation  League) 
J e w is h  W a r  V e te ra n s  of the United 

S ta te s  o f A m e ric a  
J e w is h  L a b o r  C om m ittee

Jacob Schaum
Of Counsel



37

APPENDIX

American Jewish Committee

The Am erican J ew ish  C om m ittee  is  a  c o r p o r a t io n  c r e ­
ated by an A ct o f  the L e g is la tu r e  o f  the S ta te  o f  N ew  
York in 1906. Its  ch a rter  s ta t e s :

The ob ject o f  th is  c o r p o r a t io n  sh a ll be  to  p re v e n t 
the infraction o f  the c iv i l  an d  re lig io u s  r ig h ts  o f  J ew s , 
in any part o f  the w o r l d ; to  re n d e r  a ll la w fu l a ss is t­
ance and to take a p p r o p r ia te  rem ed ia l a ct io n  in  the 
event o f threatened  o r  a ctu a l in v a s io n  o r  r e s tr ic t io n  
of such rights, o r  o f  u n fa v o ra b le  d is cr im in a tio n  w ith  
respect thereto * * *.

During the fo r ty  y e a rs  o f  o u r  ex is ten ce  it  h as been  one 
of the fundamental ten ets  o f  o u r  o rg a n iz a tio n  th at the 
welfare and security  o f  J ew s  in  A m e r ic a  d ep en d s  u p on  
the p reserv ation  o f  co n stitu t io n a l g u a ra n tees . A n  in v a s ion  
of the civ il rights o f  a n y  g r o u p  is  a  th rea t to  the sa fe ty  
of all grou ps.

For this reason  w e h a v e , on  m a n y  o cca s io n s  fo u g h t 
in defense o f civ il lib e rtie s  a lth ou g h  J e w ish  in terests  w ere  
not specifica lly  in v o lv ed . T h e  p re se n t ra c ia l r e s tr ic t iv e  
covenant case is  one w ith  w h ich  w e  are  d e e p ly  con cern ed . 
The pattern o f  d iscr im in a tion  in  h o u s in g  b eca u se  o f  ra ce , 
religion and co lor  has g ro w n  o m in o u s ly  in  re cen t y e a rs , 
and millions o f  p erson s  a re  b e in g  d e p r iv e d  o f  r ig h ts  th at 
are freely e n jo y e d  b y  o th ers . C oven a n ts  a g a in st J e w s  are 
becoming more frequ en t, b u t th is is  n o t  o u r  so le  in terest. 
An invasion o f  fu n d a m en ta l co n stitu t io n a l r ig h ts  on  a 
nationwide scale p resen ts  to  th is  C o u rt  a  q u estion  o f  
transcendent pu blic  im p orta n ce .



38

B’nai B’rith (Anti-Defamation League)

B ’n a i B ’ rith , fo u n d e d  in  1843, is  the oldest civic or­
g a n iza tio n  o f  A m e r ica n  J ew s . I t  represents a member­
sh ip  o f  300,000 m en  a n d  w om en  an d  their families. The 
A n t i-D e fa m a tio n  L e a g u e  w a s  o rg a n ized  in 1913, as a 
se ction  o f  the p a re n t  o rg a n iza tio n , in  order to cope with 
ra c ia l an d  re lig io u s  p r e ju d ic e  in  the U nited  States. The 
p r o g r a m  d e v e lo p e d  b y  the L e a g u e  is  designed to achieve 
the fo l lo w in g  o b je c t iv e s : to  elim in ate and counteract 
d e fa m a t io n  a n d  d iscr im in a tio n  a ga in st the various racial, 
re lig io u s , a n d  eth n ic  g ro u p s  w h ich  com prise  our American 
p e o p le ; to  co u n te ra ct  u n -A m e r ica n  and anti-democratic 
a c t iv ity ; to  a d va n ce  g o o d w ill  an d  m utual understanding 
a m on g  A m e r ica n  g r o u p s ; to  en cou ra g e  and translate into 
g re a te r  e ffe c t iv e n e ss  the id ea ls  o f  A m erican  democracy,

Jewish W ar Veterans of the United States 
of America

T h e  J e w ish  W a r  V e te ra n s  o f  the United States of 
A m e r ic a  w a s o rg a n iz e d  in  1896 b y  C iv il W a r veterans of 
the J e w ish  fa ith . A t  the p re se n t tim e it  has 100,000 mem­
b e rs  o rg a n iz e d  in  600 P o s ts  in  275 cities throughout the 
U n ite d  S ta tes . I t  ca r r ie s  an  exten sive  veteran service 
p ro g ra m  re p re s e n tin g  v e te ra n s  b e fo re  the Veterans Ad­
m in is tra tion , con d u cts  h o s p ita l and  rehabilitation pro­
g ra m s  f o r  v e te ra n s , g iv e s  a d v ice , gu idance and counseling 
th rou g h  n in eteen  offices th rou g h ou t the United States. It 
ca r r ie s  on  A m e r ica n ism  p ro g ra m s  and, in general, pro­
g ra m s s im ila r  to  th ose  o f  the A m e rica n  Legion, Veterans 
o f  F o r e ig n  W a r s  an d  o th er  v e te ra n  organizations.



39

Jewish Labor Committee

The Jewish L a b o r  C om m ittee  is  an  o rg a n iza tio n  re p ­
resenting 500,000 affiliated  J e w ish  tra d e  u n ion ists  b e lo n g ­
ing to the A .F . o f  L . an d  C .I.O . In c lu d e d  a m on g  its  affili­
ations are the In te rn a tio n a l L a d ie s  G a rm en t W o r k e r s ’ 
Union, A.F. o f  L ., U n ite d  H a t  a n d  C a p  a n d  M illin e ry  
Workers, A .F . o f  L . a n d  the A m a lg a m a te d  C lo th in g  
Workers o f A m erica , C .I.O . as  w e ll as m a n y  sm aller  o r ­
ganizations. It  fu n ction s  in  b e h a lf  o f  th ese org a n iza tion s  
for the protection  o f  J e w ish  a n d  J e w ish  la b o r  in terests  
throughout the w orld . O n the A m e r ica n  scene it  con d u cts  
extensive educational w o rk  in  b e h a lf o f  g o o d  hum an  re la ­
tions w ith in  the A .F . o f  L ., th e  C .I.O . a n d  in d ep en d en t 
anions, and  overseas it  p ro v id e s  a id  a n d  a ss ista n ce  to 
labor and Jew ish  la b o r , c o o p e ra t iv e  an d  cu ltu ra l in s ti­
tutions.



(1 9 9 -B )







IN  THE

^itprotw Olmtrt o f tiw I n it^  States
October Term, 1947

No. 87

OESEL M cG H E E  and M IN N IE  S . M c G H E E , h is w ife ,
Petitioners,

v.

BENJAMIN J. S IP E S , a n d  A N N A  C. S I P E S , J A M E S  
A. COON and A D D I E  A . C O O N , E T  AL.,

Respondents.

BRIEF FOR PETITIONERS

T hukgood M a r sh a ll , 
L oren  M il le r ,
W illis  M . G raves,
F rancis  D e n t ,

William H. H astie, Counsel fo r  Petitioner.
Charles H. H ouston,
Geokge M. J ohnson ,
William R. M ing , J r .,
J am es N a b r i t , J r . ,
Marian W ynn  P erry,
Spottswood W . R obinson , I I I  
Andrew W einberger,
Ruth W eyand,

Of Counsel.





TABLE OF CONTENTS

P A G E

Opinion B e lo w ----------------------------------------------------------------------- 1

Jurisdiction --------------------------------------------------------------------------  1

Summary Statem ent o f  M a tter  In v o lv e d  ________________  2

1 . Statement o f  the C a s e _______________________________  2

2. Statement o f  F a c t s __________________________________ 2

Question Presented |A|____ _____     4

Errors Belied U pon  _______________________________________  4

Outline of A rgum ent _______________________________________  5

Summary o f A rgu m en t ______________________________   7

Argument:

Preliminary Statem ent ____________________________________  10

I— Baeial C ovenants R e s tr ic t iv e  o f  O ccu p a n cy  H a v e
Developed T h rou gh  an  U n cr it ica l D is to r t io n  o f  
Doctrines C on cern in g  R e s tr ic t io n s  on  U se  o f  
Property _______________________________________________ 1 1

A. H istorical D ev e lop m en t o f  D e v ice s  R e s tr ic ­
tive o f the U se o f  R e a l P r o p e r t y ________________  1 1

B. The D istinction  B etw een  R e s tr ic t io n s  U p o n
the Use o f  P r o p e r ty  an d  R e s tr ic t io n s  U p o n  
the O ccupancy o f  P r o p e r ty  b y  M em b ers  o f  
Unpopular M in o r ity  G ro u p s  ___________________  15

II— The Right to U se an d  O ccu p y  R e a l E s ta te  as a 
Home is a C iv il R ig h t G u a ra n teed  an d  P ro te c te d
y the C onstitution  and  L a w s  o f  the U n ited  S ta tes  19

HI Under the F ou rteen th  A m en d m en t, N o  S ta te  M a y  
Heny This C iv il R ig h t  to  A n y  P e r s o n  S o le ly  B e ­
cause o f H is R a ce , C o lo r , R e lig io n , o r  N a tion a l



11

A . I t  is  W e ll  S e ttled  T h a t  L e g is la t io n  Condition­
in g  the R ig h t  to  U se  an d  O ccu p y  Property 
S o le ly  U p o n  the B a s is  o f  R a ce , C olor, Religion, 
o r  N a t io n a l O r ig in  V io la te s  the Fourteenth 
A m e n d m e n t _____________________________________  22

B . C iv il R ig h ts  A r e  G u a ra n teed  b y  the Fourteenth 
A m en d m en t A g a in s t  In v a s io n  b y  the Judiciary 27

I V — J u d ic ia l E n fo r ce m e n t  o f  the R a c ia l Restrictive 
C oven a n t H e re  In v o lv e d  is a D en ia l by  the State 
o f  M ich ig a n  o f  the P e t it io n e rs  ’ R igh ts  Under the 
F o u rte e n th  A m e n d m e n t_____ I________ ...__________  32

A . T h e  D e cre e  o f  the S ta te  C ou rt W as Based
S o le ly  on  the R a ce  o f  P e t i t io n e r s ___________  32

B . I t  is  the D e cre e  o f  the S ta te  C ourt W hich De­
n ies  P e t it io n e rs  the U se  an d  Occupancy of 
th e ir  H om e  ______________________________________ 33

C. N e ith er  the E x is te n ce  o f  the Restrictive
A g re e m e n t N o r  the F a c t  T h a t the State ’s Ac­
t io n  W a s  T a k en  in  R e fe re n ce  Thereto Alters 
in  A n y  W a y  the S ta te ’ s R espon sib ility  Under 
th e  F o u rte e n th  A m en d m en t fo r  Infringing a 
C iv il R ig h t  ______________________________________ ^

T h e  F a c t  T h a t N e ith er  Petitioners Nor 
T h e ir  G ra n to rs  W e r e  P a rtie s  to the Cove­
n an t F u r th e r  E m p h a sizes  the State’s Re­
sp on s ib le  an d  P re d o m in a n t R ole  in the Ac­
t io n  T a k en  A g a in s t  T h e m __________________ *

D . P e t it io n e r s ’ R ig h t  to  R e l ie f  in  This Case Is
N o t  A ffe c te d  b y  the D e c is io n  in  Corrigan v. 
B u ck le y  __________________________________________

V — W h ile  N o  S ta te -S a n ctio n e d  D iscrim ination  Can 
B e  C on sisten t W ith  the F ou rteen th  Amendment, 
th e  N a t io n -W id e  D e s tru ctio n  o f  Human and 
E c o n o m ic  V a lu es  W h ich  R esu lts  F rom  Racia 
R e s id e n tia l S e g re g a t io n  M akes This Form o 
D is cr im in a tio n  P e c u lia r ly  R e p u g n a n t ---------------



Ill

A. Judicial E n fo rce m e n t o f  R e s tr ic t iv e  C o v e ­
nants H as C rea ted  a U n ifo r m  P a tte rn  o f  U n ­
precedented O v e rcro w d in g  a n d  C on g e st io n  in  
the H ousing o f  N e g ro e s  a n d  an A p p a llin g  
D eterioration o f  T h e ir  D w e llin g  C on d ition s .
The E xtension  a n d  A g g r a v a t io n  o f  S lu m  C on ­

PAGE

ditions H ave in  T u rn  R e su lte d  in  a S eriou s  
Rise in D isease, C rim e, V ice , R a c ia l T en s ion  
and M ob V io le n ce  ________________________________  47

1. The Im m ed iate  E ffe c ts  o f  the E n fo rce m e n t
o f C ovenants A g a in s t  N e g ro e s  _____________ 47

2. The R esu lts o f  S lu m  C on d ition s  in  N e g ro
H o u s in g ________________________________________  57

a. The E ffe c t  o f  R e s id e n tia l S e g re g a t io n
on H ea lth  __________________________________  58

b. Cost o f  R e s id e n tia l S e g re g a t io n  to  the
C om m unity  as a W h o l e __________________  63

c. R acia l R e s id e n tia l S e g re g a t io n  C auses
S eg reg a tion  in  A l l  A s p e c ts  o f  L ife  and 
In creases G ro u p  T en s ion s  an d  M ob  
V io le n c e ____________________________________  66

B. There A re  N o E co n o m ic  J u stifica tion s  f o r  R e ­
strictive C oven an ts A g a in s t  N e g ro e s . R e a l 
Property Is  N ot D e s tr o y e d  o r  D e p re c ia te d  
Solely by  R e a so n  o f  N e g ro  O ccu p a n cy  and  
Large S egm ents o f  the N e g ro  P o p u la t io n  C an 
A fford  to L iv e  in  A r e a s  F r o m  W h ich  T h e y  
Are B arred  S o le ly  b y  S u ch  C oven an ts. T h e  
Sole R eason  f o r  the E n fo r ce m e n t  o f  C o v e ­
nants A re  R a c ia l P r e ju d ic e  an d  th e  D e s ire  on  
the P art o f  C erta in  O p e ra to rs  to  E x p lo it  
Financially the A r t if ic ia l B a r r ie r s  C rea ted  b y  
Covenants __________________________________________ 71

L The E ffe ct  o f  N e g ro  O ccu p a n cy  U p o n  R e a l 
P rop erty  _______________________________________  72

“ • The A b ility  o f  N e g ro e s  to  P a y  f o r  B e tte r  
H o u s in g ____________________________    77



IV

V I — J u d ic ia l E n fo r ce m e n t  o f  T h is  R estrictive  Cove­
n an t V io la te s  the T r e a ty  E n te re d  In to  Between 
the U n ite d  S ta tes  an d  M em b ers  o f  the United 
N a tio n s  U n d e r  W h ich  the A greem en t Here 
S o u g h t to  B e  E n fo r c e d  I s  V o i d __________________ 84

C on clu s ion  

A p p e n d ix  _

Table of Cases

A m e r ica n  F e d e r a t io n  o f  L a b o r  v . S w ing , 312 U. S.
321 _____________________________________________________30,38

A u s te r b e r r y  v . O ldham , 29 Ch. D . 750 _______________  14

B a c o n  v. W a lk e r , 204 U . S . 311 _______________________  17
B a k e r y  D r iv e r s  L o c a l v . W o h l, 315 U . S. 769 ________ 31
B r id g e s  v . S ta te  o f  C a lifo rn ia , 314 U . S. 252...________  31
B r in k e r h o ff  F a r is  C o. v . H ill, 281 U . S . 673_________  28
B ro w n , E llin g to n  & S h ie ld s  v . M iss iss ip p i, 297 U. S. 

278 ±____________________________________________________  28
B u ch a n a n  v . W a r le y , 245 U . S . 60_______ 10, 17,18,20,21,22,

23, 24,25,26,27,35

C a fe te i’ ia  E m p lo y e e s  U n ion , L o c a l 302 v. Angelos, 320
U . S . 293________________________________________________  31

C a n tw ell v . C on n ecticu t, 310 U . S . 296________________29,38
C a rte r  v . T e x a s , 177 U . S . 442_________________________  28
C ris t  v . H en sh a w , 196 O kla. 168________________________
C ity  o f  D a lla s  v . L ib e r ty  A n n e x  C orp ., 295 S. W . 591... 35 
C ity  o f  R ich m o n d  v . D ea n s, 281 U . S . 704_________17,22,25
C ity  o f  R ich m o n d  v . D ea n s (C . C . A .— 4th), 37 F. (2d)

____  2o
C iv il R ig h ts  C ases, 109 U . S . 3-------------- -----------------------  ?!
C la rk  v . A lle n , 67 S u p . C t. 1431 (A d v a n ce  Sheets)—  8
C o rr ig a n  v . B u ck ley , 271 U . S . 323____ —----------- 43,45,
C o r r ig a n  v . B u ck ley , 55 A p p . D . C. 30, 299 F. 899 

(1 9 2 4 ) ____________________________________________ _____ 44

D ru m m on d  W re n , In  R e , 4 D . L . R . (1945) 674----------  ^



V

PAGE

Erie v. Tompkins, 304 U . S . 64____________________________  32
Euclid v. Am bler R e a lty  C o., 272 U . S . 365_______________  17
Ex Parte V irgin ia , 100 U . S . 339---------------------------------- _---  27

Fisher v. St. Louis, 194 U . S . 361__________________________ 17

Gandolfo v. H artm an, 49 F e d . 181_______________________  89
Geoffrey v. R iggs, 133 U . S. 258___________________________  86
Gorieb v. Fox, 274 U . S . 603_______________________________  17

Hadacheck v. Sabastian , 239 U . S . 394_____________________ 17
Harmon v. Tyler, 273 U . S . 668___________________ 17, 22, 26, 27
Hauenstein v. Lynham , 100 U . S . 483____________________  86
Holden v. H ardy, 169 IT. S . 3 6 6 ____________________________  24
Home Telegraph v . L o s  A n g e le s , 227 IT. S . 278__________ 7 36
Hurd v. Hodge, N o. 290 N ov . T e rm  1947_______________  52
Hvsler v. F lorida, 315 IT. S. 411____________________________  28

Kennett v. Cham bers, 55 U . S . 38__________________________ 88

Laurel Hill C em etery v . S an  F r a n c is co , 216 IT. S . 358____
Lord Grey v. Saxon, 6 V es . 106___________________________
Los Angeles Investm ent C o. v . G a ry , 181 C al. 680, 186 

P. 596 (1919)_____________________________________________

Marsh v. A labam a, 326 U . S . 501..______
Martin v. Nutkin, 2 P . W m s. 266 
Mayer v. W hite, 65 U . S. 317
Mays v. Burgess, 147 F . ( 2 d ) 869 (D ie t, o f  C olu m bia  

1944) _____________________
Milk Wagon D rivers  U n ion  o f  C h ica go , L o c a l 753  v. 

Meadowmoor D a ir ies , In c ., 312 U . S . 287
Moore v. Dem psey, 261 U . S . 86____________________________

Norris v. Alabam a, 294 U . S . 587__________________________

486WeSteni L a u n d ry  C o - v ' D es  M oin es , 239 U . S .

Phillips v. W earn , 226 N . C. 290 (1946 )
Pierce Oil Co. v. H op e , 248 U . S. 4 9 8 _ .________

Powell v. A labam a, 287 U . S . 4 5_________________
wvis v. Shuman, 273 111. 286, 1 1 2  N . E . 679 (1 9 1 6 ) ’
emman v. L ittle R ock , 237 U . S . 171____________________
epubhc A viation  C orp . v . N . L . R . B ., 324 U . 8 . 7 9 3 _

17
14

16

39
14
88

10

30
28

28

17
10
17

28
13
17
39



V I

S p e n c e r s ’ s C ase, 5 C oke  16_______________________________  13
S t. L o u is  P o s te r  A d v e r t is in g  C o. v . S t. L ou is , 249 U. S.

269 ___________________________________ ___ ______________  yj
S ta n d a rd  O il C o. v . M a ry sv ille , 279 U . S . 582__________  n
S tra u d e r  v . W e s t  V ir g in ia , 100 U . S . 303______ _______ 20

T h e  B e llo  C orru n es , 19 TJ. S . 152_______________________  89
T h e  S ch o o n e r  P e g g y , 5 U . S . 103_______________________  86
T h om a s C usack  C o. v . C h ica g o , 242 U . S. 526__________  17
T u lk  v . M ox h a y , 2 P h il. 774, 41 E n g . R ep . 1143________  14
T ru s te e s  o f  the M o n ro e  A v e . C hu rch  o f  Christ, et al. v.

P e rk in s , N o . 153, O ct. T e rm , 1947__________________  10
T w in in g  v . N ew  J e rs e y , 211 U . S . 78__________________  28

U . S. v . B e lm on t, 301 U . S . 3 2 4 _________ ___ ____________  86
TJrciola v . H o d g e , N o . 291, N o v . T erm , 1947__________  52

W a r e  v . H y lto n , 3 D a li. 199________________________ ...____  86
W e lch  v . S w a sey , 214 U . S . 91_____________________________ 17

Y ick  W o  v . H op k in s , 118 U . S . 356_______________________  36

Z a h n  v . B o a r d  o f  P u b lic  W o r k s , 274 U . S . 325__________  17

Statutes Cited

C iv il R ig h ts  A c t s ______________________________________ 19,20,27

32 H en . V I I I ,  c. 34 (1 5 4 0 )_______________________________  13

51 S ta t. 1031________________________________________ —-------  85

8 TJ. S . C. 42_____________________________________________19,20,41

28 TJ. S . C. 344 ( b ) _________________________________________ 1

U n ite d  S ta tes  C o n s t itu t io n :

A r t ic le  I V , S e c tio n  2
44V  A m en d m en t —-______________________________________

X I I I  A m en d m en t ____________________________________19)44

X I V  A m en d m en t _____ ___ _______2 ,4 ,1 9 , 20,21,23,27,28,
29 ,31,33,34,35,36,37,39,44

PAGE



Treaties

V ll

PAGE
Potsdam D eclaration  ______________________ 88

United Nations C h a r te r :

Article 2, p a ra g ra p h  2_______________ 84
Article 6, S ection  2____ -___________ 8?i
Article 55 ________________________ 84
Article 56 ________________ ________________  84

Authorities Cited

Abrams, Charles, Discriminatory Restrictive Cove­
nants—A Challenge to the American Bar, address 
before A ssocia tion  o f  the B a r  o f  the C ity  o f  N ew  
York, Feb. 1947__________________________________

Ache son , D e a n ,  L e t t e r  o f  F . E .  P .  C . ,  F inal  R eport op 
F E P C  ( 1 9 4 5 )  _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _  8 7

Aunals of the A merican A cademy op P olitical and 
Social Science, V o l. 243 (1 9 4 6 )______________________84, 85

Architectural F orum, O ctob er , 1947____________________  58

Beebler, Color Occupancy Raises Values, R eview  op 
the Society op R esidential A ppraisers (S ep t.
1945) . . .- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 5 ,  7 8

Blackstone’s Commentaries ______________________ _ 19

B la n d ford , J .  B . ,  J r . ,
The Need for Low Cost Housing, S p eech  b e fo r e  A n ­

nual C on ference, N a tion a l U rb a n  L ea gu e , C olu m ­
bus, Ohio (O ct. 1 , 1 9 4 4 )____________________________  80

Testimony before Subcommittee on Housing and 
Urban Redevelopment, S en ate , 79th  C on gress , 
Hearings, P a r t  6 ____________________________________  63

Britton, New Light on the Relation of Housing to
eoi/i, 3 2  A merican J ournal of P ublic H ealth 

193 (1 9 4 2 )  _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 59



V ll l

B r it to n  & A ltm a n , Illness and Accidents among Per­
sons Living under D ifferent Housing Conditions, 56 
P ublic H ealth  R eports 609 (1941)_______________ 59 go

B uilding  R eporter & R ealty N ew s, The Urban Negro, 
Focus o f the Housing Crisis (N ov . 1945)________ 75,76

B u re a u  o f  C ensus

PAGE

H ousing S upplem ent—

Block Statistics, D etroit, M arch , 1940________ 57,76

General Characteristics, Michigan, 16th Census, 
1940 ____________________________________________51,54

N egroes in  th e  H nited S tates, 1920-1932 (1935)__1 48

P opulation R eports

Sixteenth Census, 1940 __________________________ 48

Current Population R eports, Detroit, April, 
1947 ____________________________________________48,55

S pecial Census, R ace, S ex , by Census T racts

August, 1945 _______________________________________  49

January, 1946 ______________________________________  49

B u rg e ss , Residential Segregation in American Cities, 
A nnals oe A merican A cademy op S ocial and Po­
litical S cience (N ov. 1928)----------------------------------- 50

C a rd o zo , The Judge as A  Legislator, T he Nature or 
the  J udicial P rocess________________________________

C a yton , Housing fo r  N egroes, Chicago Sun, Dec. 13, 
1943 ____________________ ________________________________

N egro Housing in Chicago, S ocial A ction (April 
15, 1 9 4 0 )________________________________________ 78

C h ica g o , C ook  C ou n ty , H ealth  S urvey : R eport on 
H ousing _____________________________________________

C h ica g o  P a r k  D is tr ic t , T he  P olice and Minority 
G roups (1 9 4 7 )_________________________________________‘



PAGE

Corbin, 29 Y a l e  L .  J o u r n a l , 771— N o te __________________

Clark, C o v e n a n t s  a n d  I n t e r e s t  R u n n i n g  w i t h  L a n d
1 2 ,13 ,

Cobb, Medical Care and the Plight o f the N egro, C r i s i s , 
July, 1947_________________________________________________

Committee on H yg ien e  o f  H o u s in g  o f  A m e r ica n  P u b lic  
Health A ssocia tion , Basic Principles o f Healthful
Housing _________________________________________________59,

Cooper, The Frustration o f Being a M em ber o f a M inor­
ity Group, 29 M e n t a l  H y g i e n e  189 (1 9 4 5 )__________

Congressional G l o b e , 39th C on g ress , 1st S ession , 
Part 1 ___________________________________________________ 19,

Cressey, The S uccession oe Cultural Groups in  the 
City op Chicago (1930 )________________________________

Detroit Free P ress, M a rch  20, 1945_______________ :______

3 Elliots Debates, 515____________________________________

Parris & Dunham, M ental D isorders in  U rban Areas :
An Ecological Study o f Schizophrenia and Other 
Psychoses (1939)_______________________________________

Federal Works A gency , P ostwar U rban D evelopment 
(1944) __________________________________________________

Plack, Adoption op th e  F ourteenth  A mendment (1908)

Frazier, Negro Y outh at th e  Crossway (1940 )_________

Go\ er, Negro M ortality II , The Birth Rate and Infant 
and Maternal M ortality, 61 P ublic H ealth  R eports 
43 (1946)_______________________________________________

Hadley, Medical P sych iatry; an Ecological N ote, 7 
Psychiatry 379 (1944 )________________________________

H e a l t h  Data B ook por the  City  op Chicago____________

H}de & Chisholm, Relation o f Mental D isorders to 
ace and Nationality, 77 N. E . J ournal op M edicine 

612 (1944)______________

32

14

69

63

62

20

76

80

85

62

63

19

70

61

61

59

62



X

H y d e  & K in g le y , Studies in Medical Sociology; The Re­
lation o f Mental D isorders to Population Density,
77 N . E . J ournal of M edicine 571 (1 9 4 4 )___________ 61

J o h n s o n , P atterns of N egro S egregation (1 9 4 3 )_____ 67

K is e r , S ea I sland t o  C ity  (1932 ) _____________________  76

L e m k in, Genocide as a Crime Under International Law,
41 A merican J ournal of I nternational Law 145
(1947 ) __________________________ ________ i____________ 86,87

PAGE

M cD ia rm id , The Charter and the Promotion of Human 
W elfare, 14 S tate D epartment B ulletin 210 (1946) 87

Making the Peace Treaties 1941-1947, Departm ent of 
S ta te  P u b lica tio n s  2774, E u ro p e a n  S eries  2 4 ______  87

M ille r , Covenants fo r  Exclusion, S urvey Graphic (Oct. 
1947) _____ -_____________________________________________  68

M ora n , W here Shall They L ive, T he A merican City 
(A p r i l  1942) __________________________________________  78

M um m y and P h illip s , N egroes as Neighbors, Common 
S ense, A p r i l  1944 ____________ -________________________

M y rd a l, A n  A merican D ilem m a  (1944 ) ------------------------

N ational A ssociation of R eal E state B oards, Press 
R elease No. 78, N o v . 15, 1944_______________________

N ational H ousing A gency

Housing Facts, 1940 __________________________________

M cG raw , W artim e Em ploym ent, Migration and 
Housing o f N egroes in U. S. 1941-1944, Race Re­
la tion s  S e rv ice  D ocu m en ts  S eries  A , No. 1, 
1946 ________________________________________________T

N ational P ublic H ousing Conference, Race R e la t io n s  

in Housing Policy  (1946 ) ___________________________

N ational U rban L eague, Economic and Cultural Prob­
lems in Evanston, Illinois, as They Relate to the 
Colored Population, F e b . 1945______________________



XI

Newcomb & K yle, The Housing Crisis in a F ree  Econ­
omy, Law and C ontemporary P roblems (W inter,
1947) _ _ -------------------------------------------------------------------------

Oakland Kenwood P ro p e rty  Owners A ssocia tion  o f
Chicago, President’s Annual R eport fo r  1944_______

Park, Burgess &  M cK enzie, T he C ity  (1 9 2 5 )-----------------

Paul, The Epidemeology o f Rheumatic F ever  and some 
of Its Public Health A spects , M etropolitan  L ife  In ­
surance Co. (1 9 4 3 )-----------------------------------------------------------

People of Detroit, M aster P lan  R eports , D etroit C ity 
Planning Com m ission (1 9 4 6 )__________________51, 66, 68, 69

President's Conference on H ome B uilding and H ome 
Ownership, R eport o f Committee on N egro Housing 
(1932) ____________________________________________________ 50

Robinson, Relation between Conditions o f Dwellings 
and Rentals by Race, J ournal of L and and P ublic 
Utility E conomics (O ct. 1 9 4 6 )_________ ____________ 53, 56

Rumney & Shuman, The Cost o f Slums in Newark, 
Newark H ousing A u th ority , 1946____________________  64

1 Smith’s L eading Cases (8th E d .)  150__________________  13

Smillie, Preventive M edicine and P ublic H ealth  
(1946) _______ T__________________________________________ 5 9 ,6 2

Stern, Long Range E ffect o f Colored Occupancy, R e­
view of Society of R esidential A ppraisers Jan .
1945 ______________________________________________________  76

Stettinius, 13 State D epartment B ulletin , 928 (1945 ) 87

Stone, Equitable Rights and Liabilities o f  Strangers to 
a Contract, 18 Col. L . R ev. 291 (1 9 1 8 )__________ 1 2 ,4 0 ,4 1

Ibid , Part II, 19 Col. L . R ev. 177 (1 9 1 9 )______________  41

The Federation of N eighborhood A ssociations (C h i­
cago), Restrictive Covenants (1 9 4 4 )__________________ 67

The Slum—Is Rehabilitation Possible f  (C h ica g o  H o u s ­
ing Authority 19 4 6 )____________________________________ 52, 80

PAGE

77

67

50

60



X ll

T iffa n y , L andlord and T en an t , I ______________________ 13; 14

R eal P roperty (3 rd  e d .)____________   14

U nited N ations, Resolution o f General Assembly, Dec.
11, 1946 ________________________________________________  87

Urban H ousing, F e d e r a l E m e rg e n cy  A dm . o f Public 
W o r k s  ---------------------------------------------------------------------------- 63

U nited S tates C hildrens B ureau, Our Nations Chil­
dren, N o . 8 (A u g u s t  1 9 4 7 )___________________ 1______  60

U nited S tates D epartment of C ommerce

S urvey o f W orld  W ar I I  Veterans and Dwelling 
Unit Vacancy and Occupancy in the Detroit 
A rea, O ct. 31, 1946 __________________________-_____ 82

Survey o f  W orld  W ar I I  Veterans and Dwelling 
Unit Vacancy and Occupancy in the St. Louis 
A rea , Missouri, N o v . 26, 1946__________________  82

U nited S tates D epartment of L abor

S u r v e y  o f  N e g r o  W o r ld  W a r  I I  V eterans and Va­
ca n cy  a n d  O ccu p a n cy  o f  D w e llin g  Units Avail­
ab le  to  N e g ro e s  in  th e  D e tro it  A rea , Michigan, 
J a n . 1947 __________________________________________ 81,82

S u r v e y  o f  N e g r o  W o r ld  W a r  I I  V eterans and Va­
ca n cy  a n d  O ccu p a n cy  o f  D w ellin g  Units Avail­
ab le  to  N e g ro e s  in  St. L o u is  A rea , M issouri and 
I llin o is , N o v em b er-D ecem b er , 1946-------------------- “

V e lie , H ousing: D etro it ’s Tim e Bomb, Collier’s Maga-^ 
z in e , N ov. 23, 1946______________________________ 55,65,7

PAGE



X lll

Walker, Urban B light and S lu m s , 1938________________  63

Weaver, Chicago, A  City o f Covenants, Crisis M a g a ­
zine, March, 1946-----------------------------------------------------70, 71, 83

Negro Labor, A  National P roblem (1 9 4 6 )__________ 64, 79

Planning for M ore F lexible Land TJse, J ournal of 
Land and P ublic U tility  E conomics, F eb ., 1947 65

Race Restrictive Housing Covenants, J ournal of 
Land and P ublic U tility  E conomics, A ug.,
1944 -----------------------------------------------------------------4 9 ,7 3 ,74

Wedum & W edum , Rheumatic F ever  in Cincinnati in 
Relation to Rentals, Crowding, D ensity o f Popula­
tion, and Negroes, 34 A merican  J ournal of P ublic 
Health 1065 (1945) __________________________________  60

What Caused the D etroit R iot, N A A C P  P u b lica tio n  
(July, 1943) --------------------------------------------------------------------- 7 1

IW m. Saunders (1 st A m . ed .) 240a______________________  13

Winslow, H ousing for H ealth  (T h e  M ilban k  F o u n d a ­
tion, 1941) -------------------------------------------------------------------59, 63

Wood, Introduction to H ousing (1 9 3 9 )__________________  51

Slums and B lighted A reas in  U nited S tates (1935 ) 63

M oofter, Negro P roblems in  C ities (1 9 2 8 )_______________  78

PAGE

\





IN' THE

Court of thr Initrti States
October Term, 1947

No. 87

Oksel McGhee and M in n ie  8. M cG hee, his w ife ,
Petitioners,

v.

Benjamin J. Sipes, and A nn a  0 . S ipes, J ames A . Coon and 
A ddie A . Coon, et al.,

Respondents.

BRIEF FOR PETITIONERS 

Opinion Below
The opinion o f  the S u p rem e C o u rt  o f  the S ta te  o f  M ich i­

gan appears in the R e c o r d  (R . 60-69) a n d  is  r e p o r te d  a t 316 
Mich. 614.

Jurisdiction
The jurisdiction o f  th is C ou rt is  in v ok ed  u n d er section  

237b of the Judicial C ode (28  IT. S . C. 3 4 4 b ).

The date o f ju d gm en t o f  the S u p rem e C ou rt o f  the S tate 
of Michigan is J an u ary  7 ,1 9 4 7  (R . 7 0 ), a n d  p e t it io n e r s ’ m o ­
tion for a rehearing w as d en ied  on  M a rch  3, 1947 (R . 8 0 ). 
J  Petition fo r  C ertiora r i w a s d u ly  p re se n te d  to  th is C ou rt 
on May 10,1947 and w as g ra n te d  b y  th is  C ou rt on  J u n e  23, 
1947 (E. 81).



2

Summary Statement of Matter Involved

1. Statement of the Case
In  the C ircu it  C o u rt  o f  W a y n e  C ounty , Michigan, in 

C h a n cery , the resp on d en ts  h ere in  sou g h t and obtained a de­
c re e  r e q u ir in g  the p e tit io n e rs  to  m ov e  fr o m  property which 
th e y  ow n ed  a n d  w h ich  th ey  w ere  o ccu p y in g  as their home, 
an d  th e re a fte r  re s tra in in g  th em  fr o m  u sin g  or occupying 
the p rem ises , a n d  fu r th e r  re s tra in in g  petitioners from vio­
la t in g  a  ra ce  r e s tr ic t iv e  cov en a n t u p on  such land, set fort! 
m o re  fu lly  b e lo w  (R . 52 -53 ).

In  th e ir  a m en d ed  a n sw er to  the b ill o f  complaint peti­
tio n e rs  d u ly  ra ise d  the d e fe n se  th at the enforcement by the 
co u r t  o f  such  re s tr ic t iv e  cov en a n t w ou ld  contravene the 
F o u rte e n th  A m en d m en t o f  the U n ited  States Constitution 
a n d  th at the re s tr ic t iv e  cov en a n t r e lie d  u pon  by the respon­
den ts  w a s v o id  as a g a in st p u b lic  p o lic y  (R . 16-17). On ap­
p e a l to  th e  S u p rem e C o u rt  o f  the S tate o f  Michigan the 
p e t it io n e rs  ’ R e a so n s  an d  G rou n d s  o f  A p p e a l specifically as­
s ig n ed  as e r ro rs  o f  the lo w e r  co u rt  the holding that the 
e n fo rce m e n t o f  such re s tr ic t iv e  coven a n t by a court of 
e q u ity  w a s n o t v io la t iv e  o f  the F ou rteen th  Amendment of 
the C on stitu tion  o f  the U n ite d  S tates  and that the race re­
s tr ic t iv e  cov en a n t w a s n o t v o id  as against public policy 
(R . 5 -6 ).

T h e  S u p rem e C ou rt o f  M ich ig a n  affirmed the decree 
e n tered  b y  the tr ia l c o u r t  an d  in  its  op in ion  considered 
an d  a d ju d ica te d , in  fa v o r  o f  the respondents, the issues 
ra ise d  (R . 60 -69 ).

2. Statement of Facts
P e tit io n e rs  a re  c it izen s  o f  the U n ited  States and a'1 

N e g ro e s  (R . 48, 5 3 ). T h e y  ow n  and occu p y  as a residence



3

Lot 52 in S eeba ld t’ s S u b d iv is io n  o f  the C ity  o f  D e tro it , 
Michigan, com m only kn ow n  as 4626 S eeb a ld t A ven u e  (R . 7 ) . 
Respondents are the ow n ers o f  lo ts  in  the sam e su b d iv is ion  
and an adjoining su b d iv is ion  (R . 7 ) . A t  v a r io u s  tim es d u r­
ing the year 1934 the p re d e ce sso rs  in  title  o f  the p etit ion ers  
and respondents had execu ted  an d  re co rd e d  an in stru m en t 
relating to their re sp ectiv e  lo ts  in  such su b d iv is ion s , p r o ­
viding in its essential p a rts  as f o l l o w s :

“ W e, the u n d ers ig n ed , ow n ers  o f  the fo l lo w in g  
described p r o p e r t y :

Lot No. 52 S e e b a ld t ’ s S ub . o f  P a r t  o f  J o se p h  T ire - 
man’s E st. %  Sec. 51 & 52 10 000 A  T  and F r ’l Sec. 
3, T. 2S, R  11 E .

for the p u rp ose  o f  d efin ing , r e co rd in g , an d  ca r ry in g  
out the gen era l p la n  o f  d e v e lo p in g  the su b d iv is ion  
which has been  u n ifo rm ly  re co g n ize d  a n d  fo llo w e d , 
do hereby agree  that the follow ing* re s tr ic t io n  be im ­
posed on our p r o p e r ty  a b ov e  d escr ib ed , to  rem ain  in  
force until J a n u a ry  1 , 1960— to  ru n  w ith  the land, 
and to be b in d in g  o n  o u r  h e irs , ex ecu tors , and  a s ­
signs :

“ This p r o p e r ty  shall n o t be u sed  o r  o ccu p ie d  b y  
any person  o r  p erson s  ex cep t th ose  o f  the C aucasian  
race.

“ It is fu rth e r  a g reed  th at th is re s tr ic t io n  shall 
not be e ffective  un less at lea st e ig h ty  p e rce n t o f  the 
property fr o n t in g  on  b o th  sid es o f  the street in  the 
block w here o u r  la n d  is  lo ca te d  is  su b je cted  to  th is 
or a sim ilar r e s tr ic t io n ”  (R . 4 2 ).

Such restriction  w as sou gh t to  be  im p osed  u p on  53 lo ts  
p ŵo subdivisions in  w h ich  resp on d en ts  res id e  (R . 3 4 ). 

etitioners purchased  th e ir  p r o p e r ty  fr o m  p erson s  w h o d id  
not sign the restrictive  a g reem en t (R . 1 3 ).



4

Question Presented

D oes the enforcem ent by state courts of an agreement 
restricting the disposition o f land by prohibiting its use and 
occupancy by members o f unpopular minority groups, where 
neither the willing seller nor the willing purchaser was a 
party to the agreem ent imposing the restriction, violate the 
Fourteenth  Amendment and treaty obligations under the 
United Nations Charter?

Errors Relied Upon

T h e  S u p rem e C o u rt  o f  M ich iga n  erred  in holding:

1. T h a t the due p ro ce s s  c la u se  o f  the 14th Amendment 
a ffo r d e d  p e tit io n e rs  n o  r ig h ts  other than notice, a 
d a y  in  co u rt  a n d  rea son a b le  opportu n ity  to appear 
a n d  d e fe n d , an d  w a s n ot v io la te d  b y  the issuance of 
the in ju n ctio n  e n fo r c in g  the race  restrictive agree­
m en t (R . 6 5 -66 ).

2. T h a t co u r t  en fo rce m e n t o f  the restriction  in question 
d oes  n o t v io la te  the eq u a l p ro te ction  clause of the 
14th A m en d m en t, b eca u se  “ w e have never applied 
the co n stitu t io n a l p ro h ib it io n  to  private  relations and 
p r iv a te  co n tra c ts  ’ ’ a n d  th at on  the contrary to refuse 
to  e n fo r ce  the a greem en t w o u ld  den y  equal protection 
to  the p la in t iffs  b e lo w  (R . 66).

3. T h a t the hum an  r ig h ts  p r o v is io n s  o f United Nation.' 
C h a rter  a re  ‘ ‘ m e re ly  in d ica tiv e  o f  a desirable socia 
tre n d  a n d  an  o b je c t iv e  d ev ou tly  to be desired by a 
w e ll-th in k in g  p e o p le s .”  I t  is  not “ a principle of 
th at a tre a ty  betw een  so v e re ig n  nations is applies e 
to  the con tra ctu a l r ig h ts  betw een citizens ot J- 
U n ite d  S ta tes  w h en  a determ in ation  o f these rig s 
is  sou g h t in  S ta te  c o u r t s ”  (R . 67 ).



5

OUTLINE OF ARGUMENT

I. Racial covenants restrictive of occupancy have 
developed through an uncritical distortion of 
doctrines concerning restrictions on use of prop­
erty.

A. Historical development of devices restrictive of use 
of real property.

B. The distinction between restrictions upon the use 
of property and restrictions upon the occupancy of 
property by members of unpopular minority groups.

II. The right to use and occupy real estate as a home 
is a civil right guaranteed and protected by the 
Constitution and laws of the United States.
A. Originating in ancient common law, this civil right 

is expressly protected by the Fourteenth Amend­
ment and the Civil Rights Act.

B. This civil right includes the right to own, use and 
occupy real estate as a home.

III. Under the Fourteenth Amendment no state may 
deny this civil right to any person solely because 
of his race, color, religion or national origin.
A. It is well settled that legislation conditioning the 

right to use and occupy property solely upon the 
basis of race, color, religion or national origin vio­
lates the Fourteenth Amendment.

A civil right guaranteed by the Fourteenth Amend­
ment against invasion by a legislature is also pro­
tected against invasion by the judiciary.



6

IV. Judicial enforcement of the racial restrictive cove­
nant here involved is a denial by the State of 
Michigan of the petitioners’ civil rights.

A. The decree below was based solely upon race.

B. It is the decree of the state court which denies 
petitioners the use and occupancy of their home.

C. Neither the existence of the restrictive agreement 
nor the fact that the state’s action was taken in 
reference thereto alters in any way the state’s re­
sponsibility under the Fourteenth Amendment for 
infringing a civil right.

The fact that neither petitioners nor their 
grantors were parties to the covenant further 
emphasizes the state’s responsible and predom­
inant role in the action taken against them.

D. Petitioners’ right to relief in this case is not affected 
by the decision in Corrigan  v. Buckley.

V. While no state-sanctioned discrimination can be 
consistent with the Fourteenth Amendment, the 
nation-wide destruction of human and economic 

values which results from racial residential segre­
gation makes this form of discrimination pecu­
liarly repugnant.

A. Judicial enforcement of restrictive covenants has 
created a uniform pattern of u n p r e ce d e n te d  over 
crowding and congestion in the housing of Negroes 
and an appalling deterioration of their dwelling 
conditions. This extension and aggravation of slum 
conditions have in turn resulted in a serious rise in 
disease, crime, vice, racial tension and mob violence,



7

B. There are no economic justifications for restrictive 
covenants against Negroes. Real property is not 
destroyed or depreciated solely by reason of Negro 
occupancy and large segments of the Negro popu­
lation can afford to live in areas from which they are 
barred solely by such covenants. The sole reason 
for the enforcement of covenants are racial prej­
udice and the desire on the part of certain operators 
to exploit financially the artificial barriers created 
by covenants.

VI. Judicial enforcement of this restrictive covenant 
violates the treaty entered into between the United 
States and other members of the United Nations 
under which the agreement here sought to be
enforced is void.

Summary of Argument
Eaeial restrictive  coven a n ts  o f  the ty p e  in v o lv e d  in  th is 

case have developed  th rou g h  the u n cr it ica l d is to r t io n  o f  
doctrines concerning res tr ic t io n s  on  the use o f  p ro p e r ty . 
Equitable en forcem ent o f  co v e n a n ts  re s tr ic t in g  the use o f  
land was an in n ovation  in tro d u ce d  in to  the la w  o f  E n g la n d  
to accomplish socia lly  d esira b le  d e lim ita tion s  o f  the fu n c ­
tions which m ight be ca r r ie d  on  in  p a r ticu la r  areas. Such  
restrictions affected  a ll p e rso n s  eq u a lly  an d  in  the sam e w ay . 
During this century, h ow ever, eq u ita b ly  e n fo rce d  re s tr ic t iv e  
covenants have been  u sed  in  A m e r ic a  f o r  the n ew  an d  en­
tirely unrelated p u rp ose  o f  p re v e n tin g  the ow n ersh ip  an d  
occupancy o f hom es b y  u n p o p u la r  m in o r ity  g ro u p s . T h e  
disciiminatory effect o f  th ese la tter  d a y  cov en a n ts  an d  the 
absence o f any resu ltin g  a d v a n ta g e  to  so c ie ty  p re v e n t the 
earlier use covenants fr o m  a ffo rd in g ’ a n y  a n a lo g y  ju s t i fy -
lng the enforcem ent o f  ra c ia l cov en a n ts  re s tr ic t in g  occu ­
pancy.



8

B e y o n d  th e ir  la ck  o f  h is to r ica l o r  analog ica l justification 
in  the com m on  law , the ju d ic ia l en forcem en t o f  racial restric­
t iv e  cov en a n ts  in fr in g e s  the c iv il  r ig h t to use and occupy 
re a l p r o p e r ty  as a h om e w ith ou t le g a lly  sanctioned racial 
im p ed im en ts . T h e  r ig h t fr e e ly  to  a cq u ire  and occupy land, 
e a r ly  d e c la re d  b y  B la ck ston e  an d  oth er com m on law writers, 
su rv iv es  to d a y  u n d er p ro te c t io n  o f  the Constitution and laws 
o f  the U n ited  S tates. A f t e r  d iscu ss ion  in  Congress, this 
r ig h t  w as e x p re s s ly  p ro te c te d  in  the C iv il R ights Act against 
a ll r e s tr ic t io n s  b a sed  on  ra ce . F r o m  the Civil Eights Cases 
to  Buchanan v. W arley, th is C o u rt  has protected  the right 
o f  a w illin g  b u y e r  to  a cq u ire  p r o p e r ty  fr o m  a willing seller 
a n d  to  use it  f r e e ly  as h is ow n , w ith ou t state imposed im­
p ed im en t b a se d  u p on  ra ce , as a fu n dam en ta l civil right pro­
te cted  b y  the F o u rte e n th  A m en dm en t.

W h ile  Buchanan v. W arley  p ro te c te d  the right in ques­
t io n  a g a in st in fr in g e m e n t b y  statute and Harmon v. Tyler 
p ro te c te d  it  a g a in st in fr in g e m e n t b y  a com bination of pri­
v a te  a ction  a n d  s ta tu to ry  san ction , the rationale of these 
cases  lea v es  n o  r o o m  f o r  a d iffe re n t conclusion  where ju­
d ic ia l a ct io n  in  the absen ce  o f  statute has accomplished the 
sam e resu lt. In  a g r o w in g  b o d y  o f  an a logou s situations this 
C o u rt  h as p ro te c te d  fu n d a m en ta l c iv i l  r igh ts against judicial 
in fr in gem en t.

T h e  so le  a rgu m en t a g a in st a p p ly in g  a doctrine which 
stru ck  d ow n  ra c ia l z o n in g  sta tu tes to  the case at bar is based 
u p on  the fa c t  th a t the c o u r t ’ s a ction  here is founded upon 
a p r iv a te  agreem en t. B u t the p r iv a te  agreem ent is not self­
execu tin g . T h e  d e te rm in a tion  o f  the state to enforce the 
a greem en t in v o lv e s  the su b ord in a tion  o f  a fundamental civil 
r ig h t to  c o n s id e ra tio n s  o f  p u b lic  in terest prom oted by giving 
cov en a n tors  the ben efit o f  th e ir  barga in . The obligations 
o f  the F o u rte e n th  A m en d m en t m a y  n ot thus be diminished



9

or evaded. This C ou rt has co n s is te n t ly  so ru led  in  a v a r ie ty  

of cases in volv ing con flicts  betw een  fu n d am en ta l c iv il righ ts  

on the one hand an d  v a r io u s  in terests  o f  p r o p e r ty  and  p u b ­

lic security on  the other.

The significance o f  the p r iv a te  a greem en t is  fu rth er  

minimized, and the ro le  o f  the state as the e ffe ctiv e  en g in eer 

of discrimination is fu r th e r  em p h asized  b y  the fa c t  that 

neither the p etition er g ra n tees  in  th is case n o r  th e ir  g ra n t­

ors were signers o f  the re s tr ic t iv e  agreem en t. A  sp ecia l 

legal doctrine and  an  e x tra o rd in a ry  a p p lica tion  o f  state 

force were n ecessary  to  m ake e ffe c t iv e  the ra c ia l d iscr im in a ­

tion of which p etit ion ers  com p la in .

A vast am ount o f  a u th orita tiv e  so c io lo g ica l data  dem on ­

strates that health, m ora ls  a n d  s a fe ty  a re  im p a ired  on  a 

national scale as a con sequ en ce  o f  the w id esp rea d  ra c ia l 

restrictive covenants. P r o p e r ty  va lu es a re  a lso  im p a ired . 

Evils affecting the seg reg a ted  m in o r it ie s  in ev ita b ly  in ju re  

the community as a w h ole . T hu s, a lth ou gh  n o  state sanc­

tioned discrim ination  ca n  be co n s is te n t w ith  the F ou rteen th  

Amendment, the n a tion w id e  d estru ction  o f  hum an an d  e co ­

nomic values w h ich  resu lts  fr o m  ra c ia l res id en tia l seg re ­

gation makes this fo r m  o f  d iscr im in a tion  p e cu lia r ly  re p u g ­
nant.

The human r igh ts  p ro v is io n s  o f  the U n ited  N ation s  

Charter, as trea ty  p ro v is io n s , a re  the su prem e la w  o f  the 

land and no citizen  m a y  la w fu lly  en ter in to  a  con tra ct in  

subversion o f  th e ir  p u rp oses . T h e  re s tr ic t iv e  agreem en t

here presented f o r  en fo rcem en t fa lls  w ith in  this p r o s c r ip ­
tion.



1 0

A R G U M E N T

Preliminary Statement
In  1917, a ft e r  th e  d e c is io n  o f  th is C ourt in Buchanan v. 

W arley, it  cou ld  re a so n a b ly  h a v e  been  pred icted  that life in 
these U n ite d  S ta tes  w o u ld  n o t be  d is figu red  b y  the zoning of 
hum an  b e in g s . B u t seek ers a ft e r  le g a l m eans to accomplish 
w h a t the C o u rt  h ad  p r o s c r ib e d  w ere  persistent in their ef­
fo r t s  to  b r in g  the gh e tto  to  A m e r ica , and  courts, misled by 
the p resu m ed  licen se  o f  Corrigan  v. Buckley, have too often 
a ss is ted  th em  in  d o in g  so.

T h e  a rea s  a ffe c te d  h a v e  becom e  so la rge  and so numer­
ou s, the g ro u p s  re s tr ic te d  so  d iv erse , that the restrictive 
co v e n a n t to d a y  m u st be r e co g n iz e d  as a m atter of gravest 
n a tion a l con cern . A s p e c ts  o f  the p rob lem  have been liti­
g a te d  in  at le a s t  tw en ty -on e  sta tes  du rin g  the last twenty 
y e a rs . T h ese  cases  re v e a l coven a n ts  affecting areas as 
la rg e  as on e  th ou san d  lo ts  a an d  tw enty-six  city blocks.b 
T h ese  re s tr ic t io n s  d o  n o t ru n  o n ly  aga in st Negroes. Courts 
h a v e  b een  a sk ed  to  exclu d e  fr o m  the ownership or occu­
p a n cy  o f  la n d  p e rso n s  o f  A ra b ia n , A rm enian, Chinese, 
E th io p ia n , G reek , H in d u , K o r e a n , P ersian , Spanish and 
S y r ia n  a n ce s try  as w e ll as A m e r ica n  Indians, Hawaiians, 
J e w s , L a t in  A m e r ica n s  a n d  P u e r to  E ican s, irrespective of 
c it izen sh ip . A  p e t it io n  f o r  c e r t io r a r i n ow  pending before 
th is C ou rt sh ow s a c le rg y m a n  ex clu d ed  from  occupancy of 
the p a rso n a g e  o f  h is ch u rch .0 S uch  are the consequences 
o f  the re s tr ic t iv e  coven a n t.

S u re ly , a  d e v ice  o f  u n rea son  an d  b ig o try  cannot be per­
m itte d  to  d e s tr o y  the essen tia l ch aracter  and oneness of 
A m e r ic a  as a  com m u n ity ,— “ n ot w h ile  this Court sits.”

a Mays v. Burgess, 147 F. (2 d ) 869 (District of Columbia 1944).
b Phillips v. Wearn, 226 N. C. 290 (1946). ..
0 Trustees o f the Monroe Avenue Church of Christ et al. v. Perkins 

et al., No. 153, October Tenn, 1947.



1 1

I

Racial Covenants Restrictive of Occupancy Have 
Developed Through an Uncritical Distortion 

of Doctrines Concerning Restrictions 
on Use of Property.

Doctrines o r ig in a t in g  in  a n d  h a v in g  p r o p e r  a p p lica tio n  
to limitations o f  how p r o p e r ty  sh a ll be  u sed  h ave  in  recen t 
years been d istorted  an d  u n ju stifia b ly  a p p lie d  to  lim ita tion s  
of who shall occu p y  p ro p e r ty .

A. Historical Development of Devices Restrictive 
of the Use of Real Property.

While the law  re la t iv e  to  re s tr ic t io n s  on  the use o f  rea l 
property developed  a lo n g  lin es h is to r ica lly  d iffe re n t fr o m  
those which led  to  the d ev e lop m en t o f  the d o ctr in e s  re la tiv e  
to illegal restraints on  a lien ation , the b a s ic  con s id era tion s  
of policy u nderly in g  each  a re  e ssen tia lly  the sam e. A  w ise  
and ancient p o licy , w h ich  p ro m o te s  th ose  p r in c ip le s  o f  law  
which permit the m ost b en efic ia l u se  o f  the la n d  resou rces  
of the country, is b est s e rv e d  b y  a llo w in g  p r o p e r ty  to  be 
freely alienable so th at it  m a y  com e  in to  the h ands o f  him  
who can best use it, a n d  the sam e p o l ic y  a llow s a p e rso n  to 
put the p rop erty  to  the la w fu l use w h ich  he con s id ers  m ost 
advantageous.

The law has ex ten d ed  n o  g re a te r  fa v o r  to  re str iction s  
on the free use and e n joy m en t o f  la n d  than  to  re str ic tion s  
upon the free a lien ation  o f  land. T h is  is  ev id en ced  b y  the 
reluctance and, in som e ca ses , the re fu sa l, o f  co u rts  to  ex ­
tend traditional d ev ices  o r  to  crea te  n ew  d ev ices  w h ereb y  
8 more com plete an d  s im p ler  ex p ed ien t f o r  c o n tro llin g  use 
°f another’ s land  w ou ld  be a ffo rd e d .



12

T h e  d e v e lo p m e n t o f  the law  re la tiv e  to restrictions on 
u se  is  m o re  ob scu re  th an  th at re la t iv e  to restrictions on 
a lien a tion . T w o  d ev ices , p erh a p s , antedated  the restric­
t iv e  coven a n t. A n  ow n er  o f  la n d  m igh t convey a part 
th e r e o f  su b je c t  to  a co n d it io n  su bsequ ent that the land con­
v e y e d  sh ou ld  n ot be  u se d  in  a p a r ticu la r  m anner so as to af­
fe c t  the p a r t  re ta in ed , u p on  b rea ch  o f  w hich  condition the 
c o n v e y o r  m ig h t e x e rc ise  h is p o w e r  to terminate the 
g r a n te e ’ s esta te . O r  the ow n er  o f  one parcel might ac­
q u ire  b y  g ra n t o r  re s e rv a t io n  an  easem ent restricting nses 
to  b e  m a d e  u p o n  a n oth er  p a rce l. N e ith er could  accomplish 
a r e s tr ic t io n  o f  la n d  u se  save  w ith in  n a rrow  limits.1

C oven a n ts  re s p e c t in g  the u se  o f  lan d  developed slowly, 
a n d  w ith in  s im ila r ly  c ir cu m s cr ib e d  areas. Enforcement 
in  the la w  co u rts  o f  cov en a n ts , e x ce p t  as between the par­
ties  th ere to , w a s  a d e v ia tio n  fr o m  the com m on law rules 
th at a ch ose  in  a ction  w a s  n on a ssign a b le , and that only a 
p a r ty  to  a co n tra c t  ca n  be  h e ld  lia b le  th ereon .2

I t  a p p e a rs  th at p r io r  to  the m id d le  o f  the sixteenth cen­
tu ry , b o th  the ben efit an d  b u rd en  o f  a covenant contained 
in  a lease  ran  to  an  a ss ign ee  o f  the leasehold , so that the as-

1 Both devices necessitated an instrument under seal. The power
of termination for breach of condition could neither be assigned inter 
vivos nor devised, and easements the benefit of which was in gross 
did not run either as to benefit or burden. Common law easements 
could be created only in a limited class of cases, the law not favoring 
the creation of new forms of easements not known to the early law. 
Neither device was afforded a remedy by which actual or literal per­
formance of the restriction could be judicially compelled. Stone, 
Equitable Rights and Liabilities of Strangers to a Contract, 18 C o l . 
L. R ev. 291-293. . ,

2 “ The terms ‘real covenants’ or ‘covenants running with the lan 
are of course metaphorical. The covenants are always personal m 
the sense that they are enforced in personal actions for damages, e c, 
and they cannot actually run with the land as Coke seemed to thin , 
the question is merely how far the transfer of an interest in land'U 
also transfer either the benefit or the burden of covenants concerning 
it.” C l a r k , C o v e n a n t s  a n d  I n t e r e s t s  R u n n i n g  w it h  L and,



13

signee o f the lessee m ig h t be  h e ld  lia b le  on  the coven an t, 
and became entitled  to  e n fo r c e  it. B u t, n e ith er  the benefit 
of the covenant p a ssed  to , n o r  th e  b u rd en  o f  the coven a n t 
was imposed upon, the a ss ign ee  o f  the r e v e rs io n .3 In  1540, 
the Statute o f  C o v e n a n ts 4 d e c la re d  th at le sso rs  and  th e ir  
assigns should have the r ig h t  to  e n fo r ce  coven a n ts  and  con ­
ditions against lessees a n d  th e ir  a ss ign s , a n d  c o n fe r r e d  
reciprocal rights u p on  lessees  an d  th e ir  a ss ign s  to  e n fo r ce  
covenants against le ssors  an d  th e ir  a ss ig n s .5 L im ita tion s  
upon the running o f  such  coven a n ts  w ere  im p osed  in  
Spencer’s case ,6 w h ich  d e c la re d  th at the cov en a n t m ust 
“ touch or con cern ”  the la n d  d em ised , o th erw ise  it  w ou ld  
not run, and that even  th ou gh  the cov en a n t tou ch ed  o r  co n ­
cerned the land, i f  it  co n ce rn e d  lik ew ise  a th in g  w h ich  w as 
not in being at the tim e o f  the dem ise , bu t w h ich  w as to  he 
built or created th e re a fte r , a ss ign ees  w o u ld  n o t be hound 
unless they w ere e x p re ss ly  m en tion ed .7 W h e r e  the coven a n t 
was made betw een ow n ers  in  fe e  sim p le , n ot in  con n ection  
with a lease, the a d d ition a l req u irem en t o f  “ p r iv ity  o f  * *

31 Wms. Saunders, (1st Am. ed.) 240a, n. 3 ; 1 S m i t h ’s L e a d in g  
Cases (8th ed.) 150; 1 T i f f a n y , L a n d l o r d  &  T e n a n t , 968-969.

*32 Hen. VIII, c. 34 (1540).
“This statute was not enacted entirely out of a desire to broaden 

the covenant device. “ The reason for the enactment of the statute 
was that the monasteries and other religious and ecclesiastical houses 
had been dissolved and their lands had come into the possession of the 
ung, who distributed them to the lords. Much of the lands was sub­
ject to leases when they fell into the hands of the king, and the monks 
had inherited in leases various covenants and provisions for their 
enent and advantage. A t the common law no person could take the 
enent of any covenant or condition except such as were parties or 

privies thereto, so that the grantees of the king could not enforce the 
covenants in the leases. These things were recited in the preamble, 
n the statute was enacted to give to the grantees of the king the 
ame remedies that the original lessors might have had.”  Purvis v. 
Shuman 273 111. 286, 112 N. E. 679 (1916).

Coke 16.
These limitations caused no little confusion in  th e  law. C l a r k , 

°P- of. supra note 8, 74 et seq.



14

esta te  ’  ’ m u st b e  s a t is f ie d 8 and , even  w h en  all requirements 
w e re  sa tisfied , th e  E n g lis h  co u rts  re fu se d  to permit the 
ru n n in g  o f  the b u rd e n  o f  such  a coven an ts so as to be en­
fo r c e a b le  a g a in st a tra n s fe re e  o f  the la n d .9 Until equity 
co m m e n ce d  the e x e rc is e  o f  its  p e cu lia r  pow ers in the cov­
en ant fie ld , the so le  re m e d y  in  even t o f  breach was, of 
co u rse , a n  a ctio n  f o r  d am ages.

P r io r  to  the m id d le  o f  the n in eteen th  century, covenants 
n ot to  use la n d  in  a p a r ticu la r  m a n n er w ere specifically en­
fo r c e a b le  in  e q u ity  b y  in ju n ct io n  aga in st the promisor where 
the re q u is ite  in a d eq u a cy  o f  a  le g a l rem ed y  existed.10 New 
d ev e lop m en ts  fo l lo w e d  the d e c is io n  in  1848 in Tulh v. Mox- 
hay,11 w h ich  esta b lish ed  th at a co v e n a n t as to the use of land 
m ig h t a ffe c t  a su bsequ ent p u rch a se r  w ho takes with notice 
th e re o f, e q u ity  in  such  cases e n jo in in g  a use o f the land in 
v io la t io n  o f  the co v e n a n t .12 T h e  requ irem ents of touching 
and  con ce rn in g  p r iv ity  o f  esta te  w ere  sw ept aside13 and a 
m o re  w ork a b le  r e s tr ic t iv e  d e v ice  created .

W ith  the u rb a n iza tion  o f  the p op u la tion , and the more 
c ro w d e d  co n d it io n s  o f  m o d e rn  li fe , the desire to secure suit-

8 Here again the requirement was not exact, and divergent views 
followed. C l a r k , op. cit. supra note 8, 91 et seq.

9 Austerberry v. Oldham, 29 Ch. D. 750 ; C l a r k , op. cit. sufn 
note 8, 113; 3 T i f f a n y , R e a l  P r o p e r t y  (3rd ed.) 445.

10 Martin v. Nutkin, 2 P. W ms. 266; Lord Grey v. Saxon, 6 
Ves. 106.

112 Phil. 774, 41 Eng. Rep. 1143.
12 Whether these restrictions are enforced as contracts concerning 

the land, or as servitudes or easements on the land, is still a subject 
of speculation. The opposing theories are analyzed in C l a r k , op. cit. 
supra note 8, 149 et seq.

13 C l a r k , op. cit. supra note 8, 150.



15

able home surroundings le d  to  a d em a n d  f o r  re a l estate 
limited solely to d evelopm en t f o r  re s id e n tia l p u rp o se s . T h is  
natural desire o f  h ou seh old ers  has b een  e x p lo ite d  b y  la n d  
developers and rea ltors  so that the re s tr ic t io n  o f  p a r ticu la r  
areas of property  in  o r  n ea r  A m e r ica n  c it ie s  to  res id en tia l 
use is now becom ing the ru le  ra th er  th an  the e x cep tion . T h e  
legal machinery to a ch ieve  th is en d  has been  fo u n d  in  the 
main not in the ancient ru les o f  easem en ts o r  coven a n ts  
enforceable only at law , but in  the a ct iv it ie s  o f  co u rts  o f  
equity in en forcing re s tr ic t io n s  as to  use o f  la n d  w hen  
reasonable. W ith in  its h is to r ica l fra m e w o rk , the coven a n t 
enforceable in equity  has thus a ch iev ed  w id e sp re a d  su ccess 
and popularity as a d ev ice  ca p a b le  o f  a cco m p lish in g  a 
measurable control o v e r  uses to  w h ich  a  n e ig h b o r ’ s la n d  
might be put. Its  accom p lish m en ts  in  th is w ise  a d v a n ced  
the public weal b y  p ro m o tin g  h ea lth ier , s a fe r  an d  m o ra lly  
superior residential areas th ro u g h  sp e c ia liza tio n  o f  use 
activities upon prop in qu ou s lan ds. S u ch  lim ited  use re s tr ic ­
tions were accom plished  w ith ou t en tren ch m en t u p on  the 
tenet of individual fre e d o m  o f  u se  an d  e n jo y m e n t o f  p r o p ­
erty.

B. The Distinction Between Restrictions Upon the 
Use of Property and Restrictions Upon the 
Occupancy of Property by Members of Un­
popular Minority Groups.

From its in ception  u n til the w an e  o f  the la st cen tu ry , 
the restrictive coven ant e n fo rce a b le  in  e q u ity  w a s a lw a ys  
and only an agent se lective  o f  the ty p e  o f  u se  w h ich  m ig h t 
be made o f a n oth er ’ s land. N e ith er  the h is to r y  o f  its  d e ­
velopment nor the econ om ic o r  s o c ia l ju s tifica t io n s  f o r  its  
judicial enforcem ent d isc lo se  a b a sis  f o r  its  em p loym en t as 

racially d iscrim in atory  p re v e n tiv e  o f  o ccu p a n cy . T h is  
no\el twist in the law  w a s in tro d u ce d  b y  h is to r ica l a cc i-



16

d e n t ,14 a n d  h as su rv iv e d  o n ly  beca u se  o f  ju d ic ia l indifference 
to w a rd  the con seq u en t d is to r t io n  o f  fundam ental concepts 
a n d  p r in c ip le s  a n d  the e con om ic  an d  socia l havoc thereby 
w r o u g h t :

1. T h e  d is t in c tio n  b etw een  res tr ic tion s  on use and those 
on  o ccu p a n cy  is  fu n d a m en ta l, hut is  com pletely ignored. 
T h e  co n ce p t  o f  u se  r e s tr ic t io n s  b e fo r e  the birth of racial 
re s tr ic t iv e  cov en a n ts  h a d  been , a n d  w ith  their sole excep­
tion , still is  in  term s o f  ty p e  o f  stru ctu re  o r  type o f activity 
u p o n  the lan d . P r o p e r ty  w a s le f t  op en  to occupancy by 
a n y  p e rso n , in c lu d in g  h im  w h o  en ga ged  in  the inhibited 
a c t iv ity  in  an oth er  p la ce . T h e  d istin ction  is between who 
o ccu p ies  the lan d , an d  w h a t he d oes  w ith  it. Restrictions 
a g a in st m a n u fa c tu r in g  u ses p re v e n te d  the operation of 
fa c to r ie s  on  the re s tr ic te d  lan d , but industrialists and em­
p lo y e e s  m ig h t n ev erth e less  e sta b lish  th e ir  residences there; 
th ose  a g a in st ta v ern s , g a m b lin g  den s and houses of prosti­
tu tion  d id  n o t  p ro h ib it  o ccu p a n y  b y  tavernkeepers, gamblers 
a n d  p ro s t itu te s  w h o  p lie d  th e ir  tra d e  elsew here.

2. T h e  ca ses  e n fo r c in g  n o n ra c ia l covenants dealt with 
re s tr ic t io n s  p o sse ss in g  the e q u a lity  o f  personal applica­
tio n  im p lic it  in  rea son a b len ess . R a ce  o r  other personal

14 The law relative to the enforceability in equity of racial restric­
tions against occupancy stems from Los Angeles Investment Co. v. 
Gary, 181 Cal. 680, 186 P. 596 (1918), which followed two years 
behind Buchanan v. Warley. The decision was 3-2 and, as the court 
expressed in its opinion, it was not “ favored by either brief or argu­
ment on behalf of the respondents,”  (186 Cal. 681) the Negro occu­
pants. The restriction was sought to be imposed by condition subse­
quent, rather than by covenant, and the court pointed out that what 
we have said applies only to restraints on use imposed by way o 
condition and not to those sought to be imposed by covenant merely. 
The distinction between conditions and covenants is a decided one an 
the principles applicable quite different.”  (Id., 683). _ Nevertheess, 
and notwithstanding the fallacy in analogizing a restriction on occu 
pancy to one on use, courts subsequently faced with the racial occ 
pancy covenant followed the lead supplied by this case.



17

considerations cou ld  n ot be  fa c to r s  in  such  an  e q u a tio n ; 
only type o f use cou ld  be im p orta n t. A l l  p e rso n s , ir r e s p e c ­
tive of race, w ere alike b ou n d  b y  the re s tr ic t io n  an d  alike 
free to make any u n res tr ic ted  u se  o f  the land. Ir re s p e c t iv e  
of race, every ow n er o f  the re s tr ic te d  lan d  p o sse sse d  a 
perfect privilege to p u t the la n d  to  a n y  use u n in h ib ited  b y  
the covenant; nor w as ra ce  e v e r  an  e x em p tion  fr o m  the 
operation o f the re s tr ic t io n  fo r ,  ir r e s p e c t iv e  o f  ra ce , e v e ry
owner o f the restr icted  la n d  w a s  b ou n d  to  o b se rv e  the

$

restriction. R acia l coven a n ts , h o w e v e r , ig n o re  a ll re a so n ­
able considerations and g ro u n d  th e ir  d is cr im in a tion s  p o in t ­
edly on race alone.

3. Nonracial coven an ts e ffe c te d  o n ly  p ro h ib it io n s  w h ich  
accorded with the p u b lic  g o o d . T h e  p ro s c r ib e d  uses w ere  
usually illegal, im m ora l, o r  u n s a fe  to  the com m u n ity . 
Many constituted in d ictab le  o ffe n se s  o r  a bateab le  n u isan ces. 
A ll were o f such ch a ra cte r  th a t th ey  cou ld  b e tte r  be co n ­
ducted elsewhere. T h e  sam e p ro h ib it io n s  cou ld  be, an d  
frequently were, e ffe cted  b y  le g is la t io n .10 B u t o ccu p a n cy  
of land by m em bers o f  u n p o p u la r  m in o r ity  g ro u p s  d oes  
not fall within the a b ove  c a te g o r ie s .16 T h e  absen ce  o f  a ll 
relation to the p u b lic  health , m ora ls , s a fe ty  o r  g e n e ra l w e l­
fare precludes its p ro h ib it io n  b y  sta tu te .17

^Stu.ndard Oil Co. v. Marysville, 279 U. S. 582; Gorieb v. Fox,
VAT' 603: Zakn v ‘ Board °f Public Works, 274 U. S. 325; Euclid 

v. Ambler Realty Co., 272 U. S. 365; St. Louis Poster Advertising
4QflVV r  Louis’ 249 U - S- 269 ! Pierce Oil Co. v. Hope, 248 U. S.

, Ihomas Cusack Co. v. Chicago, 242 U. S. 526; Northwestern 
C r i  V' Res Moines, 239 U. S. 486; Hadacheck v. Sabastian, 
r U;  3 9 4 ; Reinm<™ V .  Little Rock, 237 U. S. 171; Laurel Hill 
^metery v. San Francisco, 216 U. S. 358; Welch v. Swasey, 214 
U S 35j BaC°n V‘ Walker> 204 u - S. 311; Fischer v. St. Louis, 194

fifiS Br-llan?n v ' Warley, 245 U. S. 60; Harmon v. Tyler, 273 U. S. 
,°LRKhmond v - Deans, 281 U. S. 704; Crist v. Henshaw, 

17 9 k ' 168 (1945).
See Point V  of this brief.



18

4. Nonracial covenants did not subvert individual rights 
of property. They affected only a single constituent of 
property—use; all other attributes of property, including 
occupancy, retained their traditional freedom. The curtail­
ment in freedom of user thus effected was a compromise 
justified by the benefit flowing from the reconciliation of 
the innumerable and conflicting freedoms of use possessed 
by others. Racial covenants destroy the essence of prop­
erty ; they represent an obliteration, not a compromise.

5. Nonracial covenants drew the substance of their 
validity from their purpose and effect as engineers of su­
perior residential areas. Racial occupancy restrictions 
cannot reasonably be considered as improving the health, 
morals, safety or general welfare of the occupants of the 
restricted area.18 On the contrary, and at the same time, 
their cumulative economic and social effects have impaired 
the health, morals, safety and general welfare of all.19

Such use of land as is characteristically proscribed by 
nonracial restrictive covenants is likely to constitute a 
serious injury to the neighboring landowner and a matter 
of concern to the state. But in our democratic society the 
skin color, national origin or religion of the occupant of 
property cannot be a legal injury to a neighbor or a matter 
of concern to the state.

The constitutional consequence of the foregoing distinc­
tions is that this Court has upheld state statutes imposing 
various reasonable restrictions on use20 but, beginning with 
Buchanan v. Warley, has uncompromisingly struck down 
every effort of the states to impose racial residential restric­
tions by legislation.21 That conclusion was inevitable.

18 See cases cited in footnote 16 supra.
19 See Point V  of this brief.
20 See cases cited in footnote 15 supra.
21 See cases cited in footnote 16 supra.



19

II

The Right to Use and Occupy Real Estate as a Home 
is a Civil Right Guaranteed and Protected by the 

Constitution and Laws of the United States.

Blackstone pointed out that the third absolute right “ is 
that of property, which consists in the free use, enjoyment, 
and disposal of all his acquisitions, without any control or 
diminution, save only by the laws of the land.” 22 This 
right is expressly protected by the Fourteenth Amendment 
and the Civil Rights Acts23 against invasion by the states 
on racial grounds.

The Congressional debates after the adoption of the 
Thirteenth Amendment and preceding the enactment of the 
Civil Rights Act of 1866 show that Congress intended to 
protect the fundamental civil rights of the freedmen. High 
on the list of rights to be protected was the right to own 
property. Some doubts were expressed by the opponents 
of the measure as to its constitutionality, and particularly 
the right of Congress to confer citizenship upon the former 
slaves without an amendment.24 But neither the proponents 
of the Civil Rights Act nor its opponents doubted that citi­
zens of the United States had an inherent right to acquire, 
own and occupy property.25 After the enactment of the 
Fourteenth Amendment, Congress reenacted the Civil

2 Blackstone’s Commentaries, p. 138.
"See: 8 U. S. C. 42.

Flack, Adoption of the Fourteenth Amendment (John Hopkins
P r e s s , 1 9 0 8 ) ,  p .  2 1 .
■ ' F*ê ate between Senators Cowan and Trumbull, Congres-

nal Globe, 39th Cong., 1st Session, Part 1, pp. 499-500.



2 0

Eights Act with a few modifications, expressly stipulating 
therein:

“ All citizens of the United States shall have the 
same right in every State and Territory as is en­
joyed by white citizens thereof to inherit, purchase, 
lease, sell, hold and convey real and personal prop­
erty.” 26

Throughout the debates on the Amendment and the 
Civil Eights Bill there is a clear perception that freedom 
for the former slave without protection of his fundamental 
right to own real or personal property was meaningless. 
One of the Senators cited as an example of the oppression 
from which the freedmen must be protected the fact that in 
1866 in Georgia “ if a black man sleeps in a house over­
night, it is only by leave of a white man,” 27 and another 
asked: “ Is a freeman to be deprived of the right of ac­
quiring property, having a family, a wife, children, 
home V ’ 28

In 1879 this Court construed the Fourteenth Amendment 
as containing a positive immunity for the newly freed slaves 
against “ legal discriminations * * # lessening the security 
of their enjoyment of the rights which others enjoy” 29 and 
in 1917 this Court construed the Civil Eights Act as deal­
ing “ with those fundamental rights in property which it 
was intended to secure upon the same terms to citizens of 
every race and color.” 30

In  the Civil Rights Cases this Court, while holding 
that sections of the Civil Eights A ct were unconstitutional

27 Congressional Globe, 39th Cong., 1st Session, Part 1, p- 589.
28 Senator Howard, Ibid., p. 504.
29 Strander v. W est Virginia, 100 U. S. 303, 308.
30 Buchanan v. Warley, 245 U. S. 60, 79.



2 1

because they applied to individual action, at the same time 
emphasized the application of the Fourteenth Amendment 
to state action of all types, whether legislative, judicial or 
executive.

“ In this connection it is proper to state that civil 
rights, such as are guaranteed by the Constitution 
against state aggression, cannot be impaired by the 
wrongful acts of individuals, unsupported by state 
authority in the shape of laws, customs or judicial or 
executive proceedings. ’ ’ 31

It was thus made clear that the Fourteenth Amendment does 
prohibit the wrongful acts of individuals where supported 
“by state authority in the shape of laws, customs, or ju­
dicial or executive proceedings.”  (Italics ours.)

Among the rights listed as protected against legislative, 
judicial and executive action of the states was the right “ to 
hold property, to buy and to sell. ’ ’

The right that petitioners assert is their civil right to 
occupy their property as a home-—the same right recognized 
by this Court in Buchanan v. Warley:

“ The Fourteenth Amendment protects life, lib­
erty, and property from invasion by the States with­
out due process of law. Property is more than the 
mere thing which a person owns. It is elementary 
that it includes the right to acquire, use, and dispose 
of it. The Constitution protects these essential at­
tributes of property * * * ’ ’ 32

In the instant case the respondents seek by means of 
state court action to evict petitioners from the property 
they own and are occupying as a home. On the face of the 109 *

81
32

109 U. S. 3, 17.
245 U. S. 60, 74.



2 2

pleadings they do not seek to divest petitioners of title. 
But the effect of denying to petitioners the right to occupy 
their property as a home in a residential neighborhood, 
under any circumstances, is a denial of the civil right set 
out above.

Ill

Under the Fourteenth Amendment, No State May Deny
This Civil Right to Any Person Solely Because of 

His Race, Color, Religion, or National Origin.

A. It is Well Settled That Legislation Condition­
ing the Right to Use and Occupy Property 
Solely Upon the Basis of Race, Color, Religion, 
or National Origin Violates the Fourteenth 
Amendment.

Racial restrictions by states of the right to acquire, use, 
and dispose of property are in direct conflict with the Con­
stitution of the United States. The first efforts to establish 
racial residential segregation were by means of municipal 
ordinances attempting to establish racial zones. This 
Court, in three different cases, has clearly established the 
principle that the purchase, occupancy, and sale of prop­
erty may not be inhibited by the states solely because of 
the race or color of the proposed occupant of the prem­
ises. 33

In Buchanan v. Warley, supra, an ordinance of the City 
of Louisville, Kentucky, prohibited the occupancy of lots by 
colored persons in blocks where a majority of the residences 
were occupied by white persons and contained the same * 273

33 City of Richmond v. Deans, 281 U. S. 704; H arm o n  v. Tyler,
273 U. S. 668; Buchanan v. Warley, 245 U. S. 60.



2 3

prohibition as to white persons in blocks where the majority 
of houses were occupied by colored persons. Buchanan 
brought an action for specific enforcement of a contract of 
sale against War ley, a Negro, who set up as a defense a 
provision in the contract excusing him from performance 
unless he should have the right under the laws of Kentucky 
and of Louisville to occupy the property as a residence and 
contended that the ordinance prevented him from occupy­
ing the property. Buchanan replied that the ordinance 
was in violation of the Fourteenth Amendment.

In a unanimous opinion by Mr. Justice D a y , this Court 
decided the following question:

“ The concrete question here is: May the occu­
pancy, and, necessarily, the purchase and sale of 
property of which occupancy is an incident, be in­
hibited by the states, or by one of its municipalities, 
solely because of the color of the proposed occupant 
of the premises? That one may dispose of his prop­
erty, subject only to the control of lawful enactments 
curtailing that right in the public interest, must be 
conceded. The question now presented makes it 
pertinent to inquire into the constitutional right of 
the white man to sell his property to a colored man, 
having in view the legal status of the purchaser and 
occupant”  (245 U. S. 60, at p. 75).

The decision in the Buchanan case disposed of all of the 
arguments seeking to establish the right of a state to restrict 
the sale of property by excluding prospective occupants be­
cause of race or color:

fse and occupancy is an integral element of ownership 
of property: *

* Property is more than the mere thing 
which a person owns. It is elementary that it in­
cludes the right to acquire, use, and dispose of it.



2 4

The Constitution protects these essential attributes 
of property. Holden v. Hardy, 169 U. 8. 366 391, 
42 L. ed. 780, 790, 18 Sup. Ct. Eep. 383. Property 
consists of the free use, enjoyment, and disposal of 
a person’s acquisitions without control or diminu­
tion save by the law of the land. 1 Cooley’s B1 Com 
127.”  (245 U. S. 60, at p. 74.)

Racial residential legislation can not be justified as a 
proper exercise of police power:

“ We pass, then, to a consideration of the case 
upon its merits. This ordinance prevents the occu­
pancy of a lot in the city of Louisville by a person of 
color in a block where the greater number of resi­
dences are occupied by white persons; where such 
a majority exists, colored persons are excluded. This 
interdiction is based wholly upon color; simply that, 
and nothing more # * *

“ This drastic measure is sought to be justified 
under the authority of the state in the exercise of the 
police power. It is said such legislation tends to pro­
mote the public peace by preventing racial conflicts; 
that it tends to maintain racial purity; that it pre­
vents the deterioration of property owned and oc­
cupied by white people, which deterioration, it is 
contended, is sure to follow the occupancy of ad­
jacent premises by persons of color.

“ It is urged that this proposed segregation will 
promote the public peace by preventing race conflicts. 
Desirable as this is, and important as is the preserva­
tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights cre­
ated or protected by the Federal Constitution.” (245 
U. S. 60, at p. 81.)

Race is not a measure of depreciation of property:
“ It is said that such acquisitions by colored per­

sons depreciate property owned in the neighborhood



2 5

by white persons. But property may be acquired by 
undesirable white neighbors, or put to disagreeable 
though lawful uses with like results.”  (245 U. 8. 60, 
at p. 82.)

The issue of residential segregation on the basis of race 
was squarely met and disposed of in the Buchanan case. 
Each of the arguments in favor of racial segregation was 
carefully considered and this Court, in determining the con­
flict of these purposes with our Constitution, concluded:

_ ‘ ‘That there exists a serious and difficult problem 
arising from a feeling of race hostility which the law 
is powerless to control, and which it must give a 
measure of consideration, may be freely admitted. 
But its solution cannot be promoted by depriving 
citizens of their constitutional rights and privileges.”  
(245 U. 8. 60, at pp. 80-81.)

The determination of this Court to invalidate racial resi­
dential segregation by state action regardless of the alleged 
justification for such action is clear from two later cases.

In the case of City of Richmond v. Deans, a Negro who 
held a contract to purchase property brought an action in 
the United States District Court seeking to enjoin the en­
ticement of an ordinance prohibiting persons from using 
as a residence any building on a street where the majority 
of the residences were occupied by those whom they were 
forbidden to marry under Virginia’s Miscegenation Statute, 
he Circuit Court of Appeals, in affirming the judgment of 

Ce trial court, pointed out: “ Attempt is made to.distin­
guish the case at bar from these cases on the ground that 
tie zoning ordinance here under consideration bases its 
m erdiction on the legal prohibition of intermarriage and 
110 on lace or color; but, as the legal prohibition of inter- 
muiriage is itself based on race, the question here, in final 

jsis, is identical with that which the Supreme Court



2 6

has twice decided in the cases cited. [Buchanan v. Warley 
and Harmon v. Tyler.']” 34 This Court affirmed this judg­
ment by a Per Curiam decision.35

The principles of the Buchanan case have also been ap­
plied in cases involving the action of the legislature coupled 
with the failure of individuals to act. In Harmon v. Tyler, 
a Louisiana statute purported to confer upon all municipali­
ties the authority to enact segregation laws, and another 
statute of that state made it unlawful in municipalities 
having a population of more than 25,000 for any white per­
son to establish his residence on any property located in a 
Negro community without the written consent of a majority 
of the Negro inhabitants thereof, or for any Negro to estab­
lish his residence on any property located in a white com­
munity without the written consent of a majority of the 
white persons inhabiting the community.

An ordinance of the City of New Orleans made it unlaw­
ful for a Negro to establish his residence in a white com­
munity, or for a white person to establish his residence in 
a Negro community, without the written consent of a ma­
jority of the persons of the opposite race inhabiting the 
community in question. Plaintiff, alleging that defendant 
was about to rent a portion of his property in a community 
inhabited principally by white persons to Negro tenants 
without the consent required by the statute and the ordi­
nance, prayed for a rule to show7 cause why the same should 
not be restrained.

Defendant contended that the statutes and the ord inance 
were violative of the due process clause of the F o u r te e n th  
Amendment. The trial court sustained defendant’s por­
tion. On appeal, the Supreme Court of Louisiana reversed,

34 City of Richmond v. Deans, C. C. A.—-4th, 37 F. (2d) 712, 713.
35 281 U. S. 704.



2 7

and upheld the legislation. On appeal to this Court, the de­
cision of the Supreme Court of Louisiana was reversed on 
authority of Buchanan v. Warley. A like disposition of the 
same legislation was had in the Circuit Court of Appeals 
for the Fifth Circuit in an independent case.

In the instant case, all of the alleged evils claimed to flow 
from mixed residential areas which are relied upon for 
judicial enforcement of racial restrictive covenants were 
advanced in the Buchanan and the other two cases as justifi­
cation for legislative action to enforce residential segrega­
tion. In the Buchanan case, this Court dealt with each of 
the assumed evils and held that they could not be solved by 
segregated residential areas and did not warrant the type 
of remedy sought to be justified. Efforts to circumvent this 
decision have been summarily disposed of by this Court.38

The right petitioners here assert is the civil right to 
occupy their property as a home—the same right which was 
recognized and enforced in Buchanan v. Warley.

B. Civil Rights Are Guaranteed by the Fourteenth 
Amendment Against Invasion by the Judiciary.

It is equally well settled that the limitations of the Four­
teenth Amendment apply to the exercise of state authority 
by the judiciary. As long ago as 1879, in Ex Parte Vir­
ginia,37 this Court specifically recognized that the judiciary 
enjoyed no immunity from compliance with the require­
ments of the Fourteenth Amendment. In that case the state 
judge was held to be subject to the federal Civil Eights Act, 
(espite the plea that in selecting a jury in a manner which 
,, C.U eĉ °therwise qualified persons solely on account of 

eir color, the judge was exercising a function of his judicial

37ltXTQ0̂  339^ anĉ ^ ty ^chmond v. Deans, supra.



2 8

office. In an unbroken line of precedents since that time, 
this Court has again and again reaffirmed this proposition. 
For example, in Twining v. New Jersey,™ this Court said:

“ The law of the state, as declared in the case at 
bar, which accords with other decisions * * * per­
mitted such an inference to be drawn. The judicial 
act of the highest court of the state, in authoritatively 
construing and enforcing its laws, is the act of the 
state. * # # The general question, therefore, is, 
whether such a law violates the Fourteenth Amend­
ment, either by abridging the privileges or immuni­
ties of citizens of the United States, or by depriving 
persons of their life, liberty or property without due 
process of law.”  (211 U. S. 78, at pp. 90-91.)

It is readily conceded that the “ law”  to which the Court 
there referred was actually one of a series of rules, common 
law as well as statutory, which had been developed by the 
state authority, legislative and judicial, for the conduct of 
criminal trials. So classified, the opinion demonstrates the 
complete acceptance by this Court of the proposition orig­
inally announced in Ex Parte Virginia, that the procedure 
of state courts, whether provided by legislation or rule of 
decision by state courts, must meet the requirements and 
limitations of the Fourteenth Amendment.38 39

The obligation of the state judiciary to comply with the 
limitations of the Fourteenth Amendment, however, is not 
confined to procedure. On the contrary this Court has fre­
quently tested decisions of state courts on matters of sub­
stantive law against the requirements of the federal Consti-

38 211 U. S. 78.
39 See also: Hysler v. Florida, 315 U. S. 411; Brown, Ellington o' 

Shields v. Mississippi, 297 U. S. 278; Moore v. Dempsey, 261 U. 5. 
86; Norris v. Alabama, 294 U. S. 587; Powell v. Alabama, 287 U. 5. 
45; Brinkerhoff Faris Co. v. Hill, 281 U. S. 673; Carter v. Texas, 
177 U. S. 442.



2 9

tution and has equally frequently recognized that it was 
obliged so to do by the Fourteenth Amendment. This is 
aptly demonstrated by the opinion of this Court in Cant­
well v. Connecticut,40 In that case, it will be remembered, 
the petitioner had been convicted on an indictment which 
contained four counts charging violation of express statu­
tory prohibitions, and a fifth count which charged a common 
law breach of the peace. The petitioner contended in apply­
ing for certiorari that his conviction on each of these counts 
violated the Fourteenth Amendment. This Court recognized 
that both the express statutory provisions and the -substan­
tive determination of the common law obligation by the 
state court raised similar constitutional questions under 
the Fourteenth Amendment. In fact, this Court stated

“ Since the conviction on the fifth count was not based 
upon a statute, but presents a substantial question 
under the federal Constitution, we granted the writ 
of certiorari in respect of it.”  (310 U. S. 266 at p. 
301.)

Again, at pp. 307-308:
“ Decision as to the lawfulness of the conviction (on 
the fifth count) demands the weighing of two con­
flicting interests. The fundamental law declares the 
interest of the United States that the free exercise 
of religion be not prohibited and that freedom to 
communicate information and opinion be not 
abridged. The state of Connecticut has an obvious 
interest in the preservation and protection of peace 
and good order within her borders. We must de­
termine whether the alleged protection of the State’s 
interest, means to which end would, in the absence 
of limitation by the federal Constitution, lie wholly 
within the State’s discretion, has been pressed, in 
this instance, to a point where it has come into fatal

40 310 U. S. 296.



3 0

collision with the overriding interest protected by the 
federal compact.”

At the next term this Court, even more forcibly enunci­
ated the requirement that decisions by state courts on sub­
stantive matters satisfy the requirements of due process. 
In Milk Wagon Drivers Union of Chicago, Local 753 v. 
Meadowmoor Dairies, Inc.,41 this Court granted certiorari 
to review an injunction of an Illinois court issued on the 
authority of that state’s common law which prohibited 
picketing, peaceful and otherwise, by a labor union. Despite 
a disagreement among the members of the Court as to the 
end result, it was agreed by all of the justices that the in­
junction had to he tested against the limitations of the Four­
teenth Amendment with respect to the protection of free­
dom of speech. The majority, speaking through Mr. Justice 
F e a n 'k i ’t j s t e e ,  was of the opinion that the violence which 
had occurred outside of the picket line during the particu­
lar labor dispute was sufficient ground to justify the Illinois 
court in enjoining picketing, although admittedly the in­
junction deprived the trade union of its right to dissem­
inate information with respect to the labor dispute.

The dissent voiced by Mr. Justice B l a c k  addressed itself 
to the propriety of limiting the right of free speech because 
of violence not directly shown to have occurred in connec­
tion with the picketing. Both majority and minority, how­
ever, applied to the injunction the test of the F o u rte e n th  
Amendment. The unanimity in this Court on that p ropos i­
tion was plainly manifested when on the same day a unani­
mous Court again in American Federation of Laboi v. 
Swing,42 tested another Illinois injunction, also issued on the 
authority of the common law of that state, which restraine 
peaceful picketing on the ground that the labor d is p u te ^ w u

41 312 U. S. 287.
' 42 312 U. S. 321.



31

not one between the complaining employers and his em­
ployees. Measured in terms of the Fourteenth Amendment, 
the Court concluded that this was an unlawful interference 
by the state with the right of free speech of the members 
of the trade union involved.43

So strong is this Court’s determination to protect 
fundamental rights against invasion by the state judiciary 
that even in criminal contempt cases it has tested the 
validity of such convictions against the requirements of the 
Fourteenth Amendment. Thus, in Bridges v. State of Cali­
fornia  ̂the majority of the Court was of the opinion that 
punishment of a trade union official and newspaper for con­
tempt because of out of court statements, which had been 
made with respect to litigation pending in the state court, 
was a violation of the Fourteenth Amendment because it 
was an unwarranted interference with the right of free 
speech. The minority, disagreeing with respect to the un­
reasonableness of the state’s action, readily agreed that the 
conviction had to be tested against the limitations of the 
Fourteenth Amendment.

Thus, both on analysis and on authority, it is plain that 
the acts of state courts are those of the state itself within 
the meaning of the limitations of the Fourteenth Amend-

r e e n J m f J ' the Meadowmoor case, even the majority 
controllino- u!f ^  e? ect. of the violence which they deemed to be 
dissimtp/ o f  u6 constltutlonal issue should be shown to have been 
court di«rl lefiF° — eentf  Amendment would require that the State 
BakerTntll H  mJ“ nctl°n there approved. To the same effect see 
E7 Z i U S 0Crd  V; f ° U> 3 1 5  U ‘ S - 7 6 9 ' S e e  a Is°  Cafeteria 
it was said ‘W  \ Loca[  302 v- Angelos, 320 U. S. 293, 294, where 
injunctions’ sai^rtbr° f giht tkese two cases here to determine whether 
the bounds w t f u m  f y f he New York Court of APPeals exceeded 
It should he fnW the ^1th Amendment confines State power.” 
State court reHeS^ that nelther of the cases referred to have the 
issuance of the • on more tor the common law authority for the

« 3 1 4 U  s  S ’1



3 2

ment. Any other conclusion in a common law system would 
be untenable. For, to the extent that the decisions of 
courts serve as authoritative precepts regulatory of con­
duct beyond the case in litigation, no logical distinction can 
be drawn between between the acts of the legislature and 
the decisions of the court. The creative role of the judi­
ciary as a source of law to meet the demands of society by 
filling the interstices between precedents, and between pre­
cedent and legislation has long been recognized.48 Where 
this Court is required to review the constitutionality of 
State law, it is plain that:

“ Whether the law of the State shall be declared by 
its legislature in a statute or by its highest court in 
a decision, is not a matter of Federal concern.” 45 46

IV
Judicial Enforcement of the Racial Restrictive Cove­

nant Here Involved is a Denial by the State 
of Michigan of the Petitioners’ Rights 

Under the Fourteenth Amendment.

A. T he D ecree o f the State Court Was Based 
Solely on the Race o f Petitioners.

Even a cursory examination of the record discloses that 
the controlling operative fact relied upon by the state court 
to justify ouster of petitioners from their home was their 
race.47

45 Cardozo, The Judge as a Legislator, The Nature of Judicial 
Process; Arthur L. Corbin, 2 9  Y a l e  L. J o u r n a l  771; See Swiss 
Code, quoted by Cardozo, op. cit. 140.

46 Erie v. Tompkins, 304 U. S. 64.
47 Interesting enough the finding of race was based solely on evi 

dence with respect to color (R . 22).



33

Pleadings, proceedings, and the opinion of the State 
Supreme Court all demonstrate that under the law of the 
state precedent required petitioners ’ eviction if, and only 
if, they were found to be of other than “ the Caucasian 
race” .48 If the trial court had made the determination that 
petitioners were Caucasians, they would be occupying their 
home peacefully without threat of eviction.

At this period in the history of the United States, it is 
no longer necessary to demonstrate that state action which 
discriminates because of the race, color, religion or national 
origin of persons subject to the state jurisdiction violates 
the Fourteenth Amendment.

B. It is the D ecree o f the State Court W hich  
Denies Petitioners the U se and Occupancy of 
their Home.

The foregoing authorities and analysis were urged upon 
the highest court of Michigan in this case. Nevertheless, 
that court refused to recognize its obligation to make a deci­
sion which conformed to the requirements of the Fourteenth 
Amendment in other than procedural matters. The court 
stated:

“ While we recognize that the concept of ‘ due process’ 
is incapable of exact definition, yet, ever since Buck 
v. Sherman, 2 Doug. 176, we have held that this con­
stitutional right means that every person having 
property rights affected by litigation is entitled to 
notice, and a day in court, or a reasonable opportunity 
to appear and defend his interest. * * * Such rights 8

8,wd cornP̂ a4nt alleged that the petitioners were of “ the Negro 
race (R. 8) ; the answer denied knowledge of their ancestry but de­
manded strict proof (R. 10) ; evidence on both sides of this issue was 
eard and the trial court made a specific finding with respect to the 

?R*61) ' ^  found to be adequate by the State Supreme Court



3 4

were accorded the defendants in the instant case” 
(R. 65-66).

Not only on the basis of sound legal analysis is this Court 
obliged to test the decree of the state court in this case 
against the limitations of the Fourteenth Amendment, but 
the facts and surrounding circumstances dictate the neces­
sity of such an inquiry, because it is the action of the court 
which will deprive the petitioners of their right to occupy 
their property as a home.

It has already been shown that during the year 1934 
certain residents and holders of title to property located 
in Seebaldt’s Subdivision of the City of Detroit agreed that:

“ This property shall not be used or occupied by any 
person or persons except those of the Caucasian 
race.”

Subsequently, as is the usual case in connection with urban 
property, title to some of the fifty-three lots sought to be 
covered by this restrictive agreement passed into the hands 
of persons other than the original signers of the restrictive 
agreement. One such person, for reasons neither appearing 
in the record nor material to the issue here, conveyed title 
to Lot 52 to petitioners, fully complying with all of the re­
quirements of the law of Michigan with respect to the trans­
fer of title in fee to that piece of property.49

Thereafter petitioners and their family moved into the 
dwelling and occupied the premises as their home. Sub­
sequently, other signers of the restrictive agreement, or

49 It is admitted that the federal constitution did not preclude the 
owner of any piece of property sought to be covered by such an agiee 
ment from freely picking and choosing among the persons whom e 
would permit to use or occupy his property as guests, lessees oi Pur 
chasers on the basis of race, religion, color, personality, educa ion, 
occupation or on the basis of absolute whim and utter caprice.



3 5

persons privy thereto, instituted the present action to evict 
petitioners from their home. Thus, the mere existence of 
the agreement was not sufficient to prevent petitioners and 
their family from making their home in these premises. 
Instead, respondents sought the aid of state authority to 
accomplish the purpose which they had been unable to effect 
by the execution of the restrictive agreement.

Theoretically, there were four other alternative courses 
which respondents or some of them could have taken. They 
might have sought to persuade petitioners to move out, and 
the record shows that an attempt in this direction was made 
(E. 22). It was unsuccessful. There was, of course, nothing 
unlawful about such conduct, nor did it raise any constitu­
tional question, since truly this was the conduct of indi­
viduals with respect to other individuals.

As a second alternative they might have used force or 
threats of force to cause petitioners to move out. There 
can be no doubt but that this course would have brought 
down upon respondents the full force of the state authority 
to prevent injury to the persons or property of petitioners.50

Taking a more peaceful tack, respondents might con­
ceivably have applied to the state legislature to exercise its 
authority to oust petitioners from the premises in question 
by enacting statutes which would have compelled all persons 
to respect “ racial characteristics”  of established neighbor­
hoods. This Court long ago decided that any such legisla­
tive action would violate the Fourteenth Amendment.51

This Court can take judicial notice that in similar situations re­
course has been had to violence and threats of violence to accomplish 

end here brought about by the decree of the State court. (Fill in 
ins ances of violence and police protection.) Here, however, the 

w R ';CUlt ^ourt Wayne County serves the same purpose.
Warley and others. Even such an ingenious device 

I ii e»0nj revlewed by the Texas Supreme Court in City o f Dallas v. 
>n y Annex Corp., 295 S. W. 591, failed under this prohibition.



36

Recourse to the active police authority of the state might 
have been undertaken to eject petitioners, hut there can be 
no doubt that the executive arm of the state government 
would have been obliged to conform to the limitations of 
the Fourteenth Amendment.52

This record is barren of any indications that it is any­
thing other than the decree of the state court which operates 
to deny to petitioners the right to occupy as their home the 
premises to which they hold title. The decree of the Circuit 
Court affirmed by the Supreme Court of Michigan ordered 
petitioners to move from their property within ninety days 
and declared that they “ are hereby restrained and enjoined 
from using or occupying said premises”  (R. 53). The 
covenant did not prevent petitioners from purchasing, using 
and occupying their property.

It is not the private respondents, but the State of Michi­
gan, acting through its courts, that prevents petitioners 
from using and occupying their property. Failure of the 
petitioners to comply with the order of the Court would set 
in motion governmental machinery leading to contempt 
citations and imprisonment in the jails maintained by the 
State of Michigan.

C. N either the Existence o f the Restrictive Agree­
m ent N or the Fact That the State’s Action Was 
Taken in R eferen ce Thereto Alters in Any Way 
the State’s Responsibility Under the Fourteenth 
A m endm ent for Infringing a Civil Right.

The existence of a legal right to acquire a home from 
any willing seller and to own and occupy that home has 
already been demonstrated under Point II of this brief.

62 Home Telegraph v. Los Angeles, 227 U. S. 278; Yick Wo v.
Hopkins, 118 U. S. 356.



3 7

That right is recognized by the Constitution and laws of the 
United States and the decisions of this Court. Its exercise 
is protected by the Fourteenth Amendment against any 
racial impediment imposed by any form of state action.

In this case, it appears to be the position of respondents 
that only the private covenantors do the discriminating 
while the state, as an impartial, if essential, third party 
merely enforces the private agreement without concern for 
its content, as it allegedly would do in any other business 
agreement. However, the role and responsibility of the 
state in sanctioning or refusing to sanction such an agree­
ment or any agreement cannot be divorced from the subject 
matter of the agreement. Under our system of law, judicial 
action in such a case as this can only be the result of the 
judge’s conclusion that he is vindicating some interest or 
interests of public concern and worthy of the state’s pro­
tection.

The history of restrictive covenants as outlined in Point 
I of this brief clearly shows the judicial balancing of in­
terests as new doctrine emerged. In the present case, the 
action of the courts below must have been predicated upon 
a conclusion that it was a matter of serious public concern 
to compel the carrying out of bargains in general and to 
protect the private interest of the respondents in getting 
the benefit of their bargain in this case. The state courts 
failed, however, to recognize their duty to weigh these claims 
tending to induce state action against essential interests 
adversely affected by enforcement of the agreement as well 
as against the obligation of the state to protect the civil right 
involved in this case.

The predominance of social interests adverse to enforce­
ment has given rise to the entire body of the illegal and 
^enforceable confrac ŝ- The recognition of such interests 
ere, as they are developed in Point V of this brief, would



have resulted in a conclusion that the agreement was against 
public policy. But more significant, at the present stage of 
the litigation, is the fact that this Court, in a group of 
recent cases, has held that the desire of the state to promote 
well-recognized and accepted private and public interests 
must be subordinated to the obligation of the state to respect 
fundamental constitutionally protected civil rights.

In Cantwell v. Connecticut,53 the desire to protect what 
the state understandably considered important public and 
private interests led the state court to invoke common law 
doctrine definitive of breach of the peace and to impose 
criminal sanctions against the defendant. However, in so 
doing, the state court caused the interests which appealed 
to its judgment to prevail over a fundamental civil right. 
This Court concluded that the abridgement of that civil 
right though made in favor of substantial competing inter­
ests could not stand—the constitutionally protected civil 
right had to be respected even if some sacrifice of other 
interests of legitimate concern was a necessary result.

The means employed by the court can be reasonably 
considered as being adapted to the accomplishment of this 
legitimate end. Similar basic considerations underlay the 
injunction in American Federation of Labor v. Swing F In 
addition, there was legitimate public concern with protect­
ing the interests of the employer in maintaining and operat­
ing his business. But in this case again, as in the Cantwell 
case, the state’s concern to protect property and to pre­
serve peace and good order when translated into judicial 
action came “ into fatal collision with the overriding inter­
ests protected by the federal compact” .* * 56

3 8

63 3 1 0 U. S. 296.
54 312 U. S. 321.
56 310 U. S. 296, 308.



39

In Marsh v. Alabama,58 the concern of the state in assist­
ing the owner of land to exclude others from his property 
and the general interests of the state in peace and good 
order could not override the right of the individual to exer­
cise his fundamental and constitutionally protected liberty 
of speech and worship. A significant analogy under the 
National Labor Relations Act is presented by Republic Avi­
ation Corp. v. National Labor Relations Board.57 There 
this Court struck down the application of a general rule of 
the employer against solicitation on his property, ap­
parently imposed in good faith and for reasonable purposes, 
to a situation where solicitation of union membership had 
occurred on the employer’s parking lot at lunch time. The 
employer was not permitted to exercise normal and reason­
able control over the use of his property when the conse­
quence was the abridgement of a federally protected right.

In each of these cases, the state court concluded that 
public interests of substance were being prejudiced and in­
jury was being suffered by private persons. With an eye 
solely to such considerations it regarded any effect which 
its judgment might have upon a civil right as an unavoid­
able and unintended incident of action which had ample 
justification. Yet, in none of these cases could the state 
escape the obligation of squaring its action with the over­
riding mandate of the Fourteenth Amendment or other 
source of fundamental rights regardless of the consequence 
of such squaring to other interests. No more can the pro­
tection of the plaintiffs here from the loss of the value of 
their bargain, or the vindication of any other public interest 
which the state court may deem important, justify the state’s 
interference with the petitioners’ right of access to a home 
free from all impediment based on race.

326 U. S. SOI 
324 U. S.



4 0

T he Fact That N either Petitioners Nor Their 
Grantors W e r e  Parties to the Covenant Further 
Em phasizes the State’s Responsible and Pre­
dominant R ole in the Action Taken Against 
Them .

Petitioners ’ grantors have not at any time agreed to 
refrain from selling their property to Negroes. The restric­
tive agreement upon which the court predicated its order 
directing petitioners to move from their home was signed 
in 1934 by predecessors in title of petitioners’ grantors, 
Neither petitioners nor their grantors are parties to the 
agreement.

If any doubt exists as to the extent or significance of 
state action involved in court enforcement of a racial re­
strictive agreement as to occupancy of land between original 
parties to the agreement, an examination of the history of 
“ covenants running with the land”  reveals that insofar as 
they impose obligations on third persons, such covenants 
are wholly the creature of equity.

The development of the various devices to give sub­
stance to restrictions on use of land has been fully discussed 
in Point I of this brief. Here it is important to note that, 
in the words of Dean (later Chief Justice) Stone, they have 
their origin in contract “ and their nature and extent de­
pend upon the extent to which equity will compel compli­
ance with the covenant, not only by and for parties to it, 
but by and for third persons. * * * ”  58

Further, it is asserted that in creating the d o c tr in e  of 
equitable servitudes as transferable choses in action, equit)

58 Stone, “ Equitable Rights and Liabilities of Strangers to a Con 
tract,”  18 C o l . L. R e v . 295.



41

exercised broader power than the common law had con­
templated, for:

“ It is obvious that equity in enforcing the burden 
of the contracts on third persons had departed from 
the rules of property, because of their inadequacy 
and inapplicability to certain situations. ’ ’ 59

Since the rights thus enforced against third persons find 
their basis in the powers of courts of equity alone,

“ A legitimate limitation on the doctrine of the 
equitable burden is the rule that such contracts will 
be strictly interpreted and the rule that equity may, 
in its discretion, refuse relief where owing to the 
change of conditions, enforcement of the restrictive 
covenant would be very burdensome to the defendant 
and of little benefit to the plaintiff.”  60

The chose in action created by the contract was not at 
common law freely transferable, but equity overcame this 
obstacle by holding that, “ the transferee of the cove­
nantee’s land is by operation of law vested with the right 
to enforce the covenant. ” 61

Dean (later Chief Justice) Stone, concluding his survey, 
finds proof in this doctrine that equity is still a live and 
forceful field of jurisprudence:

‘Consideration of the ways in which equity has 
extended the rights and liabilities of third persons 
will lead to the conclusion that, as an effective in­
strumentality for expanding and developing our law, 
equity is in no proper sense decadent, but is rather 
a vital force.”  62

“ Ibid., p. 322.
:icbi(L’P;(323-.

tract,’M^’co^L* Re v L iabiHties of Strangers to a Con-
2 !bid., p. 191.'



4 2

Should it be argued that between parties to such a re­
strictive agreement, as presented here, the courts have 
some extraordinary power to make a party keep his promise 
without regard to the Fourteenth Amendment, there is not 
even colorable basis for such an evasion of constitutional 
obligation where the enforcement runs against persons not 
party to the agreement. If, as between the original parties, 
any significance can be attached to the fact that the Court 
is giving effect to the will of the parties, in the case of a 
third person not a party to the contract the court is im­
posing upon those who never have assented an extraordinary 
obligation of its own devising. In the latter case—the 
instant case—the state, through its court of equity, becomes 
in a very special sense the creative and moving force, solely 
responsible for the abridgement of the grantor’s power of 
disposition and the grantee’s power of acquisition.

D. Petitioners’ Right to Relief in This Case Is Not 
Affected by the Decision in Corrigan v. Buckley.

In both the trial court and in the Supreme Court of 
Michigan, petitioners pressed the contention that judicial 
enforcement of the covenant would violate the Fourteenth 
Amendment (R. 6, 17). The latter court disposed of this 
contention in the following manner:

‘ ‘ It is argued that the restriction in question vio­
lates the 14th Amendment to the Constitution of the 
United States. Appellees say that this argument was 
answered in Corrigan v. Buckley, 271 U. S. 323 (7 
L. ed. 969). We so read the Corrigan case, althoug 
that decision partly turned on the inapplicability o 
the equal protection clause of the 14th Amendment o 
the District of Columbia, and the appeal was dis­
missed for want of jurisdiction”  (E. 66).

In like manner, judicial enforceability of racial restnc 
tive covenants has generally been assumed to follow fro®



43

Corrigan y. Buckley.63 A reexamination of that case will re­
veal that there has been widespread misconception of its 
holding, and will demonstrate that the issue here presented 
was neither presented nor decided there.

In 1921, 30 white persons, including the plaintiff and 
the defendant Corrigan, who owned 25 parcels of land situ­
ated in the City of Washington, executed and recorded an 
indenture in which they mutually covenanted that no part 
of these properties should be used or occupied by, or sold, 
leased or given to, any person of the Negro race or blood, 
for a period of 21 years. During the ensuing year, defen­
dant Corrigan entered into a contract to sell to defendant 
Curtis, a Negro, a parcel included within the terms of the 
indenture. Plaintiff thereupon brought suit praying that 
defendant Corrigan be enjoined during the term of the in­
denture from conveying to defendant Curtis, and that de­
fendant Curtis be enjoined from taking title to the lot dur­
ing such period, and from using or occupying it. Defen­
dant Corrigan moved to dismiss the bill on the grounds that 
the “ indenture or covenant made the basis of said bill”  
is (1) “ void in that the same is contrary to and in viola­
tion of the Constitution of the United States,”  and (2) “ is 
void in that the same is contrary to public policy.”  Defen­
dant Curtis moved to dismiss the bill on the ground that it 
appeared therein that the indenture or covenant “ is void, 
in that it attempts to deprive the defendant, the said Helen 
Curtis, and others of property, without due process of law; 
abridges the privilege and immunities of citizens of the 
United States, including the defendant Helen Curtis, and 
othei persons within this jurisdiction (and denies them) 
the equal protection of the law, and therefore, is forbidden 
y the Constitution of the United States, and especially by
6 ̂ ^h, Thirteenth, and Fourteenth Amendments thereof,

271 U. S. 323.



4 4

and the Laws enacted in aid and under the sanction of the 
said Thirteenth and Fourteenth Amendments.”  This mo­
tion was overruled. Defendants elected to stand on their 
motions, and a final decree was entered enjoining them as 
prayed in the bill. An appeal was taken to the Court of Ap­
peals for the District of Columbia64 where the issue was 
stated as follows:

“  # * The gope [sslie jg phg power of a number
of landowners to execute and record a covenant run­
ning with the land, by which they bind themselves, 
their heirs and assigns, during a period of 21 years, 
to prevent any of the land described in the covenant 
from being sold, leased to, or occupied by Negroes” 
(299 F. 899, 901). (Italics ours.)

After affirmance by the Court of Appeals, an appeal was 
taken to this Court;05 based entirely upon defendants’ con­
tention that the covenant was void because it violated 
the Fifth, Thirteenth and Fourteenth Amendments of the 
Constitution and Section 1977, 1978, and 1979 of the Re­
vised Statutes (U. S. Code, Title 8, Sections 41, 42 and 43). 
This Court affirmed and in so doing established the follow­
ing propositions (numbers ours):

(1) “ Under the pleadings in the present case the only 
constitutional question involved was that arising 
under the assertions in the motions to dismiss that 
the indenture or covenant which is the basis of the 
bill, is ‘ void’ in that it is contrary to and forbid­
den by the Fifth, Thirteenth and Fourteenth 
Amendments. This contention is entirely lacking 84 85

84 55 App. D. C. 30, 299 F. 899 (1924). . ,
85 Section 250 of the Judicial Code (36 Stat. 1159), as it

the critical date, authorized appeals in six sorts of cases, indu ing 
(Third) “ cases involving the construction or application of the 
stitution of the United States * * * ” and (Sixth) “cases m w 1 
the construction of any law of the United States is drawn in ques i 
by the defendant.”



4 5

in substance or color of merit. * # * (The Court 
pointed out that the Fifth and Fourteenth Amend­
ments dealt only with governmental action and not 
with the action of private persons, and that the 
Thirteenth Amendment dealt only with involun­
tary servitude) # * * It is obvious that none of 
these amendments prohibited private individuals 
from entering into contracts respecting the control 
and disposition of their own property; and there is 
no color whatever for the contention that they ren­
dered the indenture void * * * (271 U. S. 323, 330).

(2) “ And, plainly, the claim urged in this Court that 
they were to be looked to, in connection with the pro­
visions of the Revised Statutes and the decisions of 
the courts, in determining the contention, earnestly 
pressed, that the indenture is void as being ‘ against 
public policy’, does not involve a constitutional 
question within the meaning of the Code provi­
sion * * * (271U. S. 323, 330)"

(3) “ The claim that the defendants drew in question 
the ‘ construction’ of sections 1977, 1978 and 1979 of 
the Revised Statutes, is equally unsubstantial. The 
only question raised as to these statutes under the 
pleadings was the assertion in the motion inter­
posed by the defendant Curtis, that the indenture is 
void in that it is forbidden by the laws enacted in 
aid and under the sanction of the Thirteenth and 
Fourteenth Amendments. * * * they, like the Consti­
tutional Amendment under whose sanction they were 
enacted, do not in any manner prohibit or invali­
date contracts entered into by private individuals 
in respect to the control and disposition of their 
own property. There is no color for the contention 
that they rendered the indenture void; nor was it 
claimed in this Court that they had, in and of them­
selves, any such effect * * * (271 U. S. 323, 330-331).

(4) “ And while it was further urged in this Court 
that the decrees of the courts below in themselves 
deprived the defendants of their liberty and prop-



46

erty without due process of law, in violation of the 
Fifth and Fourteenth Amendments, this conten­
tion likewise cannot serve as a jurisdictional basis 
for the appeal. Assuming that such a contention, 
if of a substantial character, might have constituted 
ground for an appeal under paragraph 3 of the Code 
provision, it was not raised by the petition for tk 
appeal, or by any assignment of error, either in tk 
Court of Appeals or in this Court; * * * (271 U S. 
323,331).

(5) “  * # * we cannot determine upon the merits the 
contentions earnestly pressed by the defendants in 
this court that the indenture is not only void be­
cause contrary to public policy, but is also of such 
a discriminatory character that a court of equity will 
not lend its aid by enforcing the specific enforce­
ment of the covenant. These are questions involv­
ing a consideration of rules not expressed in any 
constitutional or statutory provision, but claimed 
to be a part of the common or general law in force 
in the District of Columbia; and, plainly, they may 
not be reviewed under this appeal unless jurisdic­
tion of the case is otherwise acquired.
“ Hence, without a consideration of these questions, 
the appeal must be, and is dismissed for want of 
jurisdiction”  (271 IT. 8. 323, 332). (Italics ours.) So

So it is crystal clear that this Court did not and could 
not pass upon the constitutional propriety of judicial en­
forcement of a racial restrictive covenant. Such ques­
tion could only be considered if the Court had acquired 
jurisdiction and had examined the case on its merits. While 
the Corrigan v. Buckley decision contains an intimation by 
way of dictum that no substantial constitutional question 
was presented by the facts of that case, it is to be remem­
bered that this Court was not then committed to the doc­
trine that common law determinations of courts could con­
stitute reviewable violations of the Federal Constitution.



47

V

While No State-Sanctioned Discrimination Can Be 
Consistent With the Fourteenth Amendment, the 
Nation-Wide Destruction of Human and Economic 
Values Which Results From Racial Residential 
Segregation Makes This Form of Discrimination 
Peculiarly Repugnant.

A. Judicial Enforcement of Restrictive Covenants 
Has Created a Uniform Pattern of Unprece­
dented Overcrowding and Congestion in the 
Housing of Negroes and an Appalling Deteri­
oration of Their Dwelling Conditions. The 
Extension and Aggravation of Slum Conditions 
Have in Turn Resulted in a Serious Rise in 
Disease, Crime, Vice, Racial Tension and Mob 
Violence.

1. The Immediate Effects of the Enforcement 
of Covenants Against Negroes.

The race restrictive covenant is a relatively new device 
which has become the vogue in conveyancing in many urban 
centers of the North. Its use is increasing in epidemic pro­
portions.1 Primarily it is employed to bar the Negro and 
certain other minority groups from most residential areas, 
and thus effectively limits the space and housing facilities 
m which these Americans may live.

Ironically, the restrictive covenants thrive—indeed they 
eeome possible only where they do the most harm and 
'oi the greatest injustice. The effects of these covenants 
an e pioperly evaluated only if they are viewed against

the^m^rLDn Cnmi T t0r,i  Restrictive Covenants— A Challenge to 
York - Bar ASSOdati°n °f 'PP- 1-2.

i of the City of New



4 8

the background of rapid urbanization of the Negro popula­
tion—a process which began to gather momentum with the 
‘ ‘ Great Migration”  of World War I. In Detroit, forex- 
ample, the decade between 1910 and 1920 saw 35,000 Negroes 
pour into a city which previously had less than 6,000—ail 
increase of 600 per cent, in ten years. This accelerated trend 
has continued ever since as the following table indicates:

Number and Per Cent of Negroes in the Total Population of 
D etro it, 1910-40.

1910 1920 1930 (a> 1940<b)
No. of Negroes 5,741 40,838 120,066 149,119
Per Cent of

Total Population 1.2% 4.1% 7.7% 9.2%
a Source: Bureau of Census, Negroes in the United States, 1920-32, 

1935, table 10, p. 55.
b Source: Bureau of the Census, 16th Census, 1940.
This pattern is by no means peculiar to Detroit but is typical 
of all of the large urban areas in the North.2

World War II occasioned another major movement of 
Negroes to Detroit, the volume of which can best be com­
prehended by considering the whole Detroit metropolitan 
area rather than the city proper. This development, as 
reflected by the data for non-whites (of whom over 95 per 
cent were Negroes), is shown in the following table:

N um ber and P e r  C en t o f  N on-w hite Resident in Detroit 
M etrop olita n  A rea , 1940 and 1947?

1940 1947
No. of non-whites 171,877 348,245
PerCent of non-whites 7% 13%
a Source: Bureau of the Census, Current Population Reports, P°PU

lation Characteristics, Series P. 21, 1947._________ _
2 Bureau of Census— Negroes in the United States, 1920-32, 1931 

table 10, page 55.



49

The recent war also occasioned the movement of an un­
precedented number of Negroes to the West Coast. In Los 
Angeles, the Negro population increased 108.7 per cent 
from 1940 to 1946 3 and in San Francisco, 560.4 per cent 
from 1940 to 1945.4

With each new wave of Negro migration into the cities 
of the North, restrictive covenants hemming them into 
limited areas of living, became more and more extensive.5 
As the colored population grew, the supply of shelter dimin­
ished. In the metropolitan district of Detroit, for example, 
the non-white population, which constituted seven per cent 
of the total in 1940, occupied seven per cent of the dwelling- 
units in the area.6 By 1947, non-whites were 13 per cent, 
of the residents in the metropolitan district but they occu­
pied only 11 per cent of the dwelling units. In other cities, 
including Chicago, Los Angeles, Washington, Baltimore, 
Toledo and Columbus, where racial covenants are prevalent, 
non-whites similarly failed to get a numerical share of exist­
ing housing proportionate to their percentage in the total 
population.7

While some individuals in most migrant groups found 
escape from the slum and blighted areas as they improved

3 Special Census, Race, Sex by Census Tract, U. S. Census as of 
Jan. 28, 1946.

4 Special Census, Race, Sex by Census Tract, U. S. Census as of 
Aug. 1, 1945.

’ Weaver, Race Restrictive Housing Covenants, Journal of Land 
and Public Utility Economics, Aug., 1944, p. 185.

It should be noted that the term “ dwelling unit” has a different 
meaning when applied to housing occupied by white and by colored 
people. Because of the high incidence of improvised conversions, and 
great overcrowding in the Black Belt a dwelling unit there is often 
no more than a single room.

See chart entitled “ Total Population, Non-White Population, Per- 
cenageof Non-White * * * in Selected Northern and Border Metro­
politan Districts, 1940 and 1947” in Appendix A, p. 92.



5 0

their economic and cultural status,8 the degree of concen­
tration of Negroes has increased with the passing of time.9 
Spatial separation of ethnic groups, which was temporary 
for European immigrants and native white migrants, became 
permanent for colored Americans. For the latter group 
this separation was no longer occasioned by economic forces 
alone. Residential segregation was not a voluntary matter 
for Negroes; it was enforced. A new and distinctly Ameri­
can ghetto was developing, and race restrictive covenants, 
enforced by the courts, were the principal instrument in 
institutionalizing this pattern in American cities.

In this situation, only two things could possibly happen. 
Either the Black Belt could attempt to absorb more inhabi­
tants or the areas available to Negroes could expand. The 
prevalence and enforcement of restrictive covenants sharply 
reduced the possibilities of expansion and free movement 
of Negro families regardless of their income or cultural 
level, thereby intensifying the overcrowding of already 
densely populated Negro ghettos. This resulted in an alarm­
ing decline in the living standards of a large segment of 
our population.

(a) Overcrowding

The accepted standard by which the housing experts 
measure overcrowding in dwellings is the relationship be­
tween the number of persons and the number of rooms. A

8 The President’s Conference on Home Building and House Owner­
ship, Report of Committee on Negro Housing, Negro Housing, 1932, 
p. 5; Park, Burgess and McKenzie, The City, University of Chicago 
Press, 1925, pp. 47-79; Burgess, Residential Segregation in Amman 
Cities, Annals of the American Academy of Social and Political Sci­
ence, November, 1928, pp. 108-12 ; Cressey, The Succession of Cm 
tural Groups in the City of Chicago, University of Chicago, IW 
(A  Ph.D. thesis in the Development of Sociology, pp. 58-9; 84-y . 
tables VI, V III and X.

9 Cressey, op. cit., p. 94, table XI.



51

dwelling is regarded as overcrowded when there are fewer 
rooms than there are persons to live in them.10 Measured 
by this definition, 27 per cent of all housing occupied by 
Negroes in the City of Detroit was overcrowded in 1944.11 
Similarly, it is reported that in 1940, 24.8 per cent of all 
dwelling units occupied hy non-whites contained six or more 
persons.12 It has been reliably estimated that if all Negro 
families in Detroit in 1946 had been safely housed (and 
here the very conservative average of four persons per 
occupied dwelling unit was used as a standard), an addi­
tional 19,000 dwellings for Negro occupancy wmuld have 
been required over and above the 35,000 in existence in 
1940.13

The same situation of extreme density of population is 
found in most of the other Northern urban centers.14 In 
1943 density in the heart of the Chicago Black Belt had 
reached 80,000 persons per square mile, so that into an area

10 Edith Elmer Wood, I n t r o d u c t i o n  t o  H o u s i n g , U .  S .  H .  A .  
Washington, 1939, p. 36.

11 T h e  P e o p l e  o f  D e t r o i t , Master Plan Reports, Detroit City 
Planning Commission 1946, p. 19. Of the overcrowded dwelling units 
occupied by Negroes in Detroit, 9.2 per cent (as compared to 3.4 
per cent of the total number of dwelling units) showed a ratio of

™an h5 persons per room.
"Table 9, H o u s i n g — G e n e r a l  C h a r a c t e r i s t i c s , Michigan, 16th 

Census of the United States, 1940. 
ux>e0̂ e Detroit, ibid, footnote 11.

Per Cent of Total Dwelling Units With From 0.5 to 2 or More 
Persons Per Room, in the North and West, 1940a:

Nn nf Urban North Urban West
«o. oi persons per room White Non-White White Non-White

o i l 1? ® '.................  32.8 25.4 35.3 27.7
10 °   53.7 49.3 53.0 49.7

................................ 9.7 14.4 7.2 11.9

..............................  0.7 2.9 1.4 3.3
C6' housing, Vol. II, Part I, table 4, 16th Census of the United States.



52

of only 7Y2 square miles there were compressed 300,000 
colored Americans.* 15 In a sample study conducted in Chi­
cago in 1944, it was found that 4.4% of the city’s dwelling 
units were occupied by more than 1.5 persons per room, 
whereas in an area (exclusively inhabitated by Negroes) 
more than one-third of the dwelling units were so occupied. 
The 75 structures in this sample area were designed—or 
more accurately, converted—to house 135 families, but at 
the date of inspection were occupied by more than two and 
one-half times that number.16

The following chart showing the relative incidence of 
overcrowding in white and Negro neighborhoods in a few 
other cities in 1945 follows the same pattern:

Per Cent of Tenant Occupied Dwelling Units With More 
Than 1.5 Persons Per Room, by Race, 1945a

White Negro
Cincinnati 6,9 15.3
Cleveland 1.9 8.7
St. Louis 5.1 20.2
Indianapolis 3.0 7.0

a Source: Special surveys of Census Bureau and Bureau of Labor 
Statistics.

With respect to our Nation’s Capital, the information 
contained in the brief submitted to this Court by the Peti­
tioners in the cases of Urciola v. Hodge and Hurd v. Eodge, 
shows most graphically the same appalling condition of 
overcrowding in the Negro areas of Washington.17

15 Cayton, H o u s i n g  f o e  N e g r o e s , Chicago Sun, Dec. 13, 1943.
16T h e  Slum . . .  Is R e h a b i l i t a t i o n  P o s s i b l e ? T h e  Chicago 

Housing Authority, 1946, p. 15. (The area chosen was picked% 
representative of Negro slum conditions, neither the best nor 
worst block in the Black Belt.) n - i.

17 Hurd v. Hodge et al., No. 290, October Term, 1947; unm 
et al. v. Hodge et al., No. 291, October Term, 1947.



5 3

The immediate effect of the enforcement of restrictive 
covenants is abundantly clear from the statistical evidence. 
Because Negroes have been unable to exercise their civil 
right to move freely to new living quarters, the Black 
Ghettos have become increasingly and dangerously over­
crowded.

(b) Conditions of Dwellings

It is a corollary of overcrowded housing that the condi­
tions of living inevitably fall far below the standards of 
safety and health which every citizen has reason to expect. 
The continuous process by which thousands of new Negro 
migrants arrive annually in the Black Belts of our Northern 
cities results in a perpetual deterioration in the living con­
ditions of these people. The impact upon the Negro has 
been disproportionately severe. He pays higher rentals for 
inferior dwellings 18—inferior to the point of endangering 
the lives and well-being of himself and his children. Be­
cause of the discrimination practiced through restrictive 
covenants, only a small portion of the total housing supply 
is opened to the Negro and the opportunity of improving 
his status, with respect to the barest necessities of living, 
is cut off in deference to the “ private agreement”  of his 
white neighbors.

Viewing the condition of dwellings upon a nation-wide 
basis, it will be seen from the 1940 Census that 83 per cent 
of the dwellings occupied by Negroes were in need of major 
lepairs or contained plumbing deficiencies. The compar­
able figure for white dwellings was 45 per cent. Twenty-six 
pei cent of the dwellings occupied by non-whites which 
needed major repairs were without running water (9.2 was

RFw?j°T^nSCin’n ^ ELATI0N B etw e e n  C o n d itio n  of D w ellin g s  a n d
Aucti, ^ ace’ Journal of Land and Public Utility Economics, August, 1946, pp. 299-302.



54

the ratio in white dwellings). In those non-white dwellings 
which did not require major repairs, 35.5 per cent were 
without running water as compared to 17.4 per cent of the 
white dwellings. While 59 per cent of all dwelling units 
occupied by whites had private baths and toilets, these 
necessities were found in only 20.5 per cent of non-white 
dwellings.1:1

In the North and West, where there was less differential 
in Negro and white incomes than in the South, the racial 
differential in the quality of housing was outstanding, as is 
shown in the following table.

State of Repair and Plumbing Equipment for Occupied 
Dwelling Units in the North and West, by Race, 19403

Per Cent of Total Units for Each Group

The North Total Whites Non-Whites

Needing major repairs or with
plumbing deficiencies ..........

With plumbing deficiencies but 
not needing major repairs . . 

Needing major repairs ..........

24.9

14.8
10.1

23.5

14.2
9.3

52.1

25.8
26.3

The West
Needing major repairs or with

plumbing deficiencies..........
With plumbing deficiencies, but 

not needing major repairs . 
Needing major repairs ..........

20.1

11.2
8.9

19.6

11.0
8.6

36.9

18.6
18.3

a Source: Housing, Volume II, 
United States Summary, 
tables 6b and 6c.

General C h a ra c te r is t ic s ,  Part 1 
16th Census of the United States,

The condition of dwelling units among whites and in™ 
whites in the City of Detroit is graphically portrayed^

19 Housing, Volume II, G e n e r a l  C h aracteristics , PaeW  
U n i t e d  S t a t e s  S u m m a r y , 16th Census of the United btates,



55

recent report of the Bureau of The Census of the United 
States Department of Commerce. The higher incidence 
of substandard20 dwellings among non-whites is apparent 
from the following chart drawn from this Census report:

A Comparison of the Condition of Dwelling Units in 
The City of Detroit, 1947 a

White Non-White
Per cent Number Per cent

Substandard............................. 9 % 26,269 31%
Needing major repairs........... 3% 21,208 25%
Lacking private bath ............. 1% 6,266 8%
Lacking private toilet ........... 5% 5,784 7%
No running water in unit . . . 1% 1,687 2%

“ Source: Current Population Reports, Housing, Characteristics of 
Detroit, Michigan, April, 1947, Bureau of the Census, 
Series P/71, No. 19.

Of all of the substandard units in Detroit, those occu­
pied by non-whites accounted for 33 per cent. This is to be 
contrasted with the fact that the non-whites occupy only 11 
per cent of all currently occupied units in the city.

In the heart of the Negro areas of Detroit, the condi­
tions are even more deplorable. In census Area K, which 
includes the so-called “ Black Bottom”  and “ Paradise Val­
ley” slums in which it is estimated 203,000 Negroes are 
forced to live, sanitary engineers who recently checked the 
aiea found that between 90 and 95 per cent of all houses 
were substandard.21

ubstandard is used herein to designate a dwelling needing major 
repairs or lacking private bath, toilet or running water.
1n, e'le’ Housing: Detroit’s Time Bomb, C o l l ie r ’s , November 23,
1946, p. 77.



5 6

A recent study of sixteen Northern and Western cities 
including Detroit, revealed that while only 16.5 per cent of 
the white units were substandard (i. e. needing major re­
pairs or with plumbing deficiencies), 44.9 per cent o f  the 
non-white units were deemed to be substandard.22

This analyst finds: “ analysis of the relationship 
between the condition of dwellings and rental value 
for units occupied by white families and those occu­
pied by non-white families reveals that the non-white 
group receives proportionately more substandard 
housing than does the white group for the same rent 
or rental value.23

‘ ‘ The differentials revealed in this analysis may 
be imputed to the effect of residential racial restric­
tions. This is supported by the fact that the pro­
portionate differentials between the two racial groups 
are greatest in the higher rental value brackets where 
racial restrictive practices operate to maintain a 
highly discriminatory market, and in the Northern 
and Western cities where the in migration of non­
whites from the South has accentuated racial re­
strictive practices and greatly accelerated the market 
in the constricted areas to which the non-white group 
is arbitrarily confined.” 24

The following comparison between two sample blocks in 
the City of Detroit is also revealing. The first block is 
occupied exclusively by Negroes; the second exclusively by 
whites. Although the rent of both of these blocks was al­
most identical, the disparity of condition, density of popu­
lation, and age of dwellings is great.

22 Robinson, Relation Between Condition of Dwelling and Rental 
by Race, The Journal of Land and Public Utility E co n o m ics , Volume 

X X II, No. 3, October, 1946, p. 297.
23 Ibid., p. 298.
24 Ibid., p. 302.



57

Characteristics of a Sample Negro-Occupied and a Sample 
White-Occupied Block in Detroit, 1940 a * 2

Block No. 14, 
Census Tract 537 

(Negro occupied)

Block No. 15, 
Census Tract 566 

(White occupied)

Average Monthly Rental .............. $23.41 $23.61
No. Dwelling units per structure 

(approximate) .............................. 3 1
Per cent Dwelling units built before 

1900 ............................................... 2.3 0
Per cent Dwelling units built before 

1900 and 1919 .............................. 86.3 23.8
Per cent Dwelling units built be­

tween 1920 and 1929 .................. 11.4 76.2
Per cent Dwelling units needing 

major repairs or lacking private 
bath facilities ................................ 97.0 10.7

Per cent Dwelling units with more 
than 1.5 persons per room ........ 8.9 5.4

aSource: United States Census, Housing Supplement, Block Sta­
tistics, Detroit, March, 1940.

It is apparent from these official statistics that the com­
pression of one racial group within strict geographical 
boundaries has overcrowded the inhabitants beyond en­
durance. It is equally clear that in those cities which 
represent the highest technological development of our 
civilization, a large and important segment of our popula­
tion lives in unparalleled squalor. These are the immedi­
ate effects of restrictive covenants and the sanction given 
to them.

2. The Results of Slum Conditions in Negro 
Housing.

The restrictive covenant is the instrument by which the 
normal expansion of living facilities available to Negroes 
as êen made impossible. The needs of Negroes have not



58

been met by new housing since a large proportion of this 
housing is covered by racial covenants,25 * and the areas occu­
pied by colored Americans have been surrounded by racial 
covenants, public facilities, or economic and industrial prop­
erty. Thus, the supply of available shelter has never caught 
up with the demand. The poorly housed have become more 
poorly housed. The Black Belt in every city has become a 
slum—the ultimate in the degeneration of the American 
dwelling place.

The results of these conditions in terms of public wel­
fare and community life are amply documented by public 
record. This Court may take notice of the higher incidence 
of disease, crime, vice, and violence in unhealthy and de­
plorable living areas. It is here proposed to set out in 
summary form some of the observations and conclusions of 
experts in these special social fields with particular ref­
erence to the conditions existing in the Negro ghetto.

The chain of causation is apparent; these are the effects, 
once removed, of the judicial sanction which the courts have 
given to race restrictive covenants. There are the products 
of enforced residential segregation.

a. The Effect of Residential Segregation on Health.

It has been demonstrated above that residential segre­
gation inevitably forces the segregated group into blighted 
and overcrowded areas. These conditions in themselves 
create a serious health hazard regardless of the economic 
status of the segregated group. Authorities in the field of

25 A  recent summary demonstrated that in 315 subdivisions opened 
in the last 10 years in Queens, Nassau and Southern Westchester
(New York) over half the dwelling units were covered by racial cove 
nants. See Architectural Forum, October, 1947, p. 16.



59

public health and public housing are agreed that bad housing 
has a direct and disastrous result upon health.26

Frequent contact of large numbers of individuals in a 
restricted area cause significant increases in respiratory 
diseases.27 This is demonstrated by the high mortality 
rates resulting from tuberculosis, pneumonia, influenza and 
the common communicable diseases of childhood in over­
crowded areas.28

The unsanitary condition and general dilapidation of 
houses in blighted areas present another serious health 
hazard. More graphically these hazards consist of inade­
quate and filthy toilet facilities, rat and vermin infestation, 
dampness, lack of heat and sunlight. These result in a high 
incidence of diarrheal and digestive ailments. For example, 
typhoid fever was 100% more frequent in slums; indigestion

"W . J. Smillie, Preventive Medicine and Public Health (The 
MacMillan Company, New York, 1946) ; “ Basic Principles of Health- 
ful Housing,” Committee on Hygiene of Housing of the American 
yH, c Health Association; C. E. A. Winslow, Housing for Health 
(The Milbank Foundation, 1941).

“7 Britton, New Light on the Relation of Housing to Health, 32 
American Journal of Public Health 193 (1942).

28 Thus:

The secondary attack rate for tuberculosis is 200% greater for 
relief families living in overcrowded housing than for all income 
groups living with less than one person per room.

(Britton, op. cit.)

The argument that Negroes have a higher susceptibility to 
uberculosis is offset by an analysis of the tuberculosis rate in 
o i JNegro and white slum areas, showing that both have a 

nignly excessive incidence of the disease.

( Report on Housing,” Chicago, Cook County Health 
Purvey; “ Health Data Book for the City of Chicago” ; 
U. S. Census, 1940); Britton & Altman, “ Illness and 
Accidents among Persons Living under Different Hous­
ing Conditions,” 56 Public Health Reports 609 (1941).



60

and stomach ailments 75% more frequent; diarrhea, enter­
itis and colitis 40% higher. These relationships hold even 
if the economic factors were taken into account.29 These con­
ditions also resulted in a high incidence of rheumatic fever, 
the most common cause of heart disease among individuals 
under 45.30 *

The infant mortality rate is the most sensitive single 
index of health and progress. If such an index of social 
conscience and progress is applied to the Negro people, it 
is seen that they are excluded from the benefits of the Amer­
ican way of life.

“ City-born babies, and those born in the towns, 
have a slight edge on babies born in the country, in 
their chance for survival. That comparison holds 
true only for white children however; in the non­
white group, which is mostly Negro, those born in 
the rural areas have a better chance than those in 
the urban areas, though still not anywhere near as 
good a chance as the white child in either city or 
country. The reason may be that the conditions 
under which Negroes must live in the cities and towns 
represent a hazard for babies that outweigh other 
factors, such as more and better medical care and 
access to hospitals, that tend to give the city born 
child the advantage. ’ ’ 32

29 Britton and Altman, Illness and Accidents Among Persons Living 
Under Different Housing Conditions, 56 Public H e a lth  Reports (w 
(1941).

30 Paul, The Epidemeology of Rheumatic Fever and Some ofD
Public Health Aspects, Metropolitan Life Insurance Co., 1" > 
Wedum and Wedum, Rheumatic Fever in Cincinnati in Relation 
Rentals, Crowding, Density oj Population and Negroes, 34 America 
Journal of Public Health 1065 (1945).

32 “ Our Nation’s Children,” No. 8, August, 1947, F edera l Security 
Agency, U. S. Children’s Bureau.



61

This statement is given grim reality by the tragic pat­
tern of Negro infant mortality rates which are 65% higher 
than for white babies in all areas of the United States.33

Despite the increased use of hospitals for child birth 
throughout the cities of the United States, two or three 
times as many Negro mothers die in child birth as white 
mothers.84

The City of Detroit presents no variation in the nation­
wide picture of the relation between residential segregation 
and the high incidence of disease. Thus, the mortality rate 
per 100,000 from tuberculosis in that city was 36.5 for whites 
and 189.0 for Negroes during the period from 1939-1941.35 
For pneumonia, the death rate for Negroes is 71.5 per
100,000, for whites 23.3 per 100,000. The infant mor­
tality rate for Negroes is 49.8 per thousand, compared with
28.0 per thousand for whites.

In terms of citizenship, the psychological evils flowing 
from segregated housing are equally as important to society 
as the physical health hazards discussed above. Draft re­
jection rates in the Second World War for personality dis­
orders increased significantly in slum and overcrowded 
areas.06 Furthermore, Negro draftees had the highest rates
, Cover, Negro Mortality; II  The Birth Rate and Infant and Ma­
ternal Mortalities, 61 Public Health Reports 43 (1946). In New 
a m ty Wltil thfr most Progressive health department in the country, 

e Negro mortality rate is 50% higher than the white rate. Vital
^sUbid’ NeW Y ° rk G ty Health DePartment, 1946.

Mortality from Tuberculosis, White and Non-white for Selected 
J : s WO>000 and Over—1939-41, Tuberculosis in the United
% “  % National Tuberculosis Association and the U. S. Public

iT^'Shington, D. C. draft rejection rates is found in 
trv 37qV'i Q i i v edical Psychiatry; an Ecological Note, V II Psychia- 
in ITvHp v- ’ a stu<̂ 7 Boston and surrounding areas is found 
M e n ta l  re lnS4ey> Studies in Medical Sociology: The Relation of 
cine 571 (1 9 ^ 7  *° PoPulati° "  Density, 77 N. E. Journal of Medi-



62

for both psychoneurosis and psychopathy among national 
and ethnic groups, a factor explained in the studies as re­
lated to “ the intensity and severity of stress to which many 
of the Negroes are subjected.” 37

“ The most all-pervading sense of frustration that 
literally engulfs the Negro people in their caste re­
lationship to the majority group and the mechanisms 
of segregation and discrimination that are its attend­
ant counterparts. * # * Caste is meant to refer to sys­
tems of privilege and the limiting of spontaneous 
participation in the culture of which the Negro people 
are a part.
“ The typical American town has its black ghetto— 
almost always situated on the other side of the track. 
It is difficult to stay there and more difficult to leave. 
Overcrowding and congestion become commonplace. 
Individual privacy and respect for it disappears.” 38 39

In a study of mental disorders in urban areas it was 
demonstrated that social communication between population 
groups was essential to healthy mental development, and 
that social isolation of a given group led to increased mental 
breakdown among its members.89

“ Bad housing, with its resultant overcrowding, filth, 
lack of personal and family privacy, its noises, its 
odors and its dark and dirty corners, breaks down 
family morale and has a profound and evil influence 
upon the happiness, welfare and health of the 
people.”  40

37 Hyde & Chisholm, Relation of Mental Disorders to Race cni 
Nationality, 77 N. E. Journal of Medicine 612 (1944). t

38 Cooper, The Frustration of Being a Member of a Minority brotif,
29 Mental Hygiene 189 (1945). . P

39 Farris & Dunham, Mental Disorders in Urban Areas. An 
logical Study of Schizophrenia and Other Psychoses, U. oi 1 ° 
Press, 1939.

40 Smillie. op cit.



6 3

In human terms, substandard bousing means serious 
interference with the emotional, mental and family life of 
the individual:

“ The Committee on the Hygiene of Housing has cor­
rectly pointed out that more damage is done to the 
health of the children of the United States by a sense 
of chronic inferiority due to the consciousness of 
living in substandard dwellings than by all the defec­
tive plumbing which those dwellings may contain. ’ ’ 41

b. Cost of Residential Segregation to the Community 
as a Whole.

Municipal services rendered in slum areas cost far more 
than the revenue collected.42 The Federal Works Agency 
has summarized the situation in metropolitan centers. It 
found that although slums and blighted areas comprised but 
20 per cent of the residential area of the larger cities of 
the nation in 1940, they housed a third of the people in these 
cities. While these districts provided only six per cent of 
the municipal revenue from real estate taxes, they absorbed 
45 per cent of the service costs which municipalities had to 
render.43 Translated into dollars and cents, this means that

41C. E. A. Winslow: Housing for Health (The Milbank Founda- 
tl04n2’J,941); see also Basic Principles o f Healthful Housing, supra.

here are many studies that reflect this fact. One of the pioneer- 
>ng surveys is contained in Edith Elmer Wood, Slums and Blighted 

m the United States, U. S. Government Printing Office, 1935. 
ther more recent summaries are available: See, Urban Housing, 
ederal Emergency Administration of Public Works, 1937, pp. 8-10; 

pS 6 ' JWlker, Urban Blight and Slums, Harvard University
T.reSS’ ’ W' 36-63, 68-72; and statement of John B. Blandford, 
n' j at Hearmgs before the Subcommittee on Housing and Urban
Tan,6' 6 °]fnent Senate, 79th Congress, 1st Session, Part 6,January 9, 1945, pp. 1233-7.

Postwar Urban Development, Federal Works Agency, 1944.



6 4

a medium-sized city, such as Newark, New Jersey, spends 
fourteen million dollars a year maintaining its slums.44 45

The total real estate taxes collected from a restricted 
group are less than they would be if the group were free to 
acquire and live in properties which carry higher assess­
ments and yield greater tax revenues. These latter situa­
tions increase the tax burden of the rest of the community.

As long as there was only a small proportion and num­
ber of colored people with medium and high incomes, the 
loss in city revenue was small.43 Changes in the occupational 
color system occasioned by the war and continuing somewhat 
in the peace, have altered the picture.46 * 48 Today in the larger 
industrial centers there is an appreciable number of colored 
families which can pay their way in housing and taxes. So 
long as they are relegated to slums or contiguous blighted 
areas, only a small proportion of them pay as high taxes as 
they would were they able to secure attractive housing in 
desirable neighborhoods. The result is a loss in city revenue 
at the same time that the total population in the subsidized 
areas of the city is increased.

44 Rumney and Shuman, The Cost of Slums In Newark, Housing
Authority of the City of Newark, second printing 1946, p. 15- “«e 
believe that part of this cost would remain even if these areas were 
rehabilitated, for most residential areas require more in expenditures 
than they yield in revenues. * * * But certain reductions could be 
made in the cost of servicing low-income families despite their poverty 
by eliminating slums” (Ibid., p. 16). .

45 There were, of course, other economic costs most of which penal­
ized the minority groups subjected to ghetto living. ‘‘Segregation as
little effect on the great bulk of poor Negroes except to overcrow 
them and increase housing costs, since their poverty and common 
needs would separate them voluntarily from whites, just as any ur 
pean immigrant group is separated. * * * The socially more sen 
effect of having segregation, however, is not to force this tiny gr r 
of middle and upper class Negroes to live among their own gw h 
but to lay the Negro masses open to exploitation and to drive 
their housing standard even below what otherwise would be econ 
ically possible” (Myrdal, op. cit., p. 625). . <?

48 Weaver, N eg ro  L a bor: A  National Problem, 1946, Parts



65

“ Unsolved, the Negro housing dilemma costs 
Detroit heavily in other ways than jittery nerves. 
Badly in need of a medical center, express highways, 
parks and other deferred civic improvements, Detroit 
must wait indefinitely for them. The land they will 
occupy now houses hundreds of Negro families who 
can’t be evicted because there’s no place for them to 
go.” 47

Privately financed and publicly financed housing pres­
ents problems in every American city. Political pressures 
and litigation will increasingly challenge federal, state and 
local aid to housing if it fails to offer equitable participation 
to minorities. Since private enterprise has repeatedly 
claimed, in its opposition to public housing, that it can offer 
decent shelter for all groups as well as public housing in 
the population, it will have to face the problem of opening 
more space to colored people.48

So pressing is this matter that housing agencies are 
beginning to study and analyze it, since they recognize that 
the costs of residential segregation are as great if not 
greater for city planning and urban redevelopment than for 
the minorities already restricted to inadequate areas.

“ One thing seems clear. In most big cities any 
housing, city planning or race relations program 
that does not open up more land on which Negroes 
may live is ineffectual. Any policy which results in 
a net reduction either in land or houses available to 
Negroes is a social menace. Every program to date, 
low-rent housing, war housing, and now housing for 
veterans has run up against this problem in one form 
or another and been partly or wholly stymied by it.

1946 5̂’ ^ ous*ny~ D etroit’ s Tim e B om b, Colliers, November 23,

and Dlannmg for  M ore  F lexib le Land U se, Journal of Land
M Publlc Utility Economics, February, 1947, p. 32.



66

And there is hardly any current urban redevelopment 
proposal that should not be carefully scrutinized 
from this point of view.” 49

c. Racial Residential Segregation Causes Segrega­
tion in All Aspects of Life and Increases Group 
Tensions and Mob Violence.

Even a superficial study of crime, juvenile delinquency 
and health statistics shows that these are indications of 
social instability greatly aggravated by poor housing and 
overcrowding. Thus in Detroit, the total slum areas 
yielded five times as many crimes, and fifteen times as many 
criminals as a “  normal residential area. ’ ’ 50 Since in 1947 
Negroes occupied one-third of the total number of substand­
ard units in Detroit, and those units housed a tremendous 
percentage of the total Negro population, it would be fal­
lacious to conclude that Negroes are undesirable. The De­
troit City Planning Commission concludes from these facts 
that where dependency, crime and juvenile delinquency 
“ are concentrated in special areas, they are evidence that 
the environment contributes to social pathology.” 51

Paced with the responsibility of raising a family, the 
Negro like any other human being, seeks to escape the con­
sequence of ghetto life and establish a home away from the 
environment which results in these personal and social 
tragedies. “ He has no other alternative if he would im­
prove his housing situation, than to seek it in less densely

49 R ace R elations in H ousing P olicy , National Public Housing Con 
fcrcncc 1946 p 4

50 H ou sin g  Facts, National Housing Agency, Washington, D. C,
Jan., 1946, p. 21. The same study showed that slum areas m « 
land were responsible for 4 per cent of larcenies, 5.7 per cen 
robberies, 7.8 per cent of juvenile delinquency, 10.4 per cent o 
gitimate births and 2 1 .3  per cent of murders, while housing ony • 
per cent of the City’s population. , . 33

51 T he P eop le  o f D etroit, Detroit Planning Commission, lv  > P-



67

settled areas which are inhabited by whites.”  52 It is at 
this point that the Negro’s normal desire for self improve­
ments meets organized and judicially sanctioned opposition.

Of all the devices to effect residential segregation, re­
strictive covenants are the most ‘ ‘ respectable, ’ ’ and yet the 
consequences are the most lasting and harmful. Covenants 
are promoted by skillful propagandists of race hatred; they 
reach and involve in anti-Negro activity large groups of 
citizens who normally opposed violent racism but who par­
ticipate in this activity because it is something “ lawful,”  
and hence worthy of their support.53 Since upper-income 
groups champion and sign race restrictive housing cove­
nants, other groups, less able financially to develop similar 
instruments, resort to less formal but equally effective 
means of excluding minorities. As long as the “ better 
people” in a community sign restrictions against certain 
groups and the courts enforce such agreements, other ele­
ments will “ protect”  their neighborhoods against minori­
ties too.

“ Racial segregation in residential areas provides 
the basic structure for other forms of institutional 
segregation.” 55

It is recognized by authorities in city planning that the 
basis for public services and institutions is the neighbor-

"2J he Pollce and M inority Groups, Chicago Park District, 1947,

• f °r a documentary account of the atrocities of the promoters of 
cia covenants see President’s Annual Report (for 1944) ; Oakland 

wood Property Owners Association (Chicago) 1945; R estrictive  
l9 ^ MntS’ "rhe Federati°n °f Neighborhood Associations, Chicago,

Charles Johnson, Patterns o f N eg ro  S egregation  (1943), p. 8.



68

hood, rather than the city.56 From the segregated neigh- 
borhood grow segregated schools, health and welfare ser­
vices and innumerable “ Negro”  institutions in areas of our 
country where segregation as a way of life is legally re­
jected.57

In the course of expansion of the ghetto, many second­
hand public and semi-private institutions are turned over 
to Negro use. Thus, regardless of laws banning racial seg­
regation in public facilities, the enforced residential seg­
regation of Negroes makes the larg’e majority of these 
facilities as completely segregated in Northern cities as 
in the South, where segregation is fixed by statute.

Consequently, although many states in the North have 
specific constitutional or statutory prohibitions against seg­
regation in public schools, where there are definable Negro 
neighborhoods, effective educational segregation is main­
tained. 66

66 The Detroit City Planning Commission has stated:
“ The distribution of people within the city and region affects 

directly the need for public and private facilities. Schools, parks 
utilities, shopping facilities, highways and transit must be locate 
where people can use them, whether they happen to be inside or 
outside a given political boundary.

“ The optimum population has been estimated for each neigh 
borhood on an assumption that land will be made available tor 
schools, neighborhood recreation and other co m m u n ity  faci lties 
in accordance with accepted standards.” Source: The Peop e 
Detroit, Detroit City Planning Commission ( 1 9 4 6 ) ,  p. 23.

57Loren Miller, Covenants for Exclusion, Survey Graphic, Oct. 
1947, p. 558.



69

Myrdal observes that in many northern states:
“ * * * there is partial segregation on a volnntary 
basis, caused by residential segregation aided by the 
gerrymandering of school districts. * * # ” 58

Other public facilities are similarly segregated because of 
the residential location of the population they serve.62

Because of residential segregation, there are created 
Negro political districts and the political exploitation of 
racist issues comes easily in such communities. General 
interest in the over-all problems of democratic govern­
ment are stifled and divisive racial “ blocs”  are fostered.

The Detroit City Planning Commission has been seri­
ously concerned with the need for better integration of 
Negroes into the life of the City. Thus it states:

“ The people are barred from full participation in 
the general life of the community both by restrictions 
from living in many7 desirable residential neighbor­
hoods and by exclusion from social, religious and 
other groups. To the extent that they are compelled 
to form their own clubs, churches and business asso­
ciations, they will undoubtedly remain a group with 
strong feelings of racial identity and minority 
status.” 68

. Myrdal, An American Dilemma, 1944, p. 632. A  recent study of 
Aegro life in Evanston, Illinois, established that most of the Negro 
population lived in the Northern section of town, and that a zoning 
arrangement for school attendance, applicable only to that section, 
effectively confined Negro children to a segregated school. Economic 
and Cultural Problems in Evanston, Illinois, as They Relate to the 
tj-0 e5* Population, National Urban League, Feb., 1945, pp. 56-58.

'gn school students in Los Angeles, Gary and Chicago have staged 
S ,n es ln past two years when Negro children were admitted to 
' 02 -p16 J^ite students had come to regard as “ white” schools, 
and ti°r .,scrtPt*on of the process of handing down health facilities 
. p 6vils attendant upon segregated medical care, see W . Mon- 
1947̂  pp 20l^\ef*Câ  ^are an<̂  P%ht ° f  the Negro,” Crisis, July,

The People of Detroit, Detroit Planning Commission, 1946, p. 34.



70

Enforced residential separation and resultant patterns 
of segregation in other phases of American life reflect a 
staggering human toll:

“ The * # * pathological features of the Negro 
community is of a more general character and grows 
out of the fact that the Negro is kept behind the walls 
of segregation and is in an artificial situation in 
which inferior standards of excellance or efficiency 
are set up. Since the Negro is not required to com­
pete in the larger world and to assume its responsi­
bilities, he does not have an opportunity to ma­
ture. ’ ’ 64

The inevitable result of housing segregation is to per­
petuate prejudice and heighten group tension.

“ As long as Negroes are relegated * * * to physi­
cally undesirable areas * * * they are associated with 
blight. The occupants of the black belt are all be­
lieved to be undesirable * * * and their perpetual 
and universal banishment to the ghetto is defended 
on the basis of imputed racial characteristics.”6’

Racial covenants, once having been imposed upon a 
neighborhood, give concrete substance and perpetuation to 
latent opposition to Negroes. The Chicago police say that 
the restrictive covenant wall binding the ghetto creates 
areas of tension and conflict requiring special policing. 
Many analyses of racial conflicts have indicated that the 
ghetto provides a fertile ground for seeds of racial tension, 
which erupt into open conflict and riot. “ Since the veiy 
existence of segregation results in diminished intergroup

64 E. Franklin Frazier, “ Negro Youth at the Crossways," 191b, 
p. 290.

65 Weaver, Chicago, A City of Covenants, Crisis, March, ly •
68 The Police and Minority Groups, Chicago Park District, j

pp. 64-69— section dealing with residential segregation as a sour 
group tension.



71

contact, prejudiced attitudes grow stronger and segrega­
tion gains increasing popular acceptance.” 67

Living reality was given to the assertion that inter-group 
contact diminishes race tension and conflict by the Detroit 
race riot of 1944. In the areas of mixed racial residence no 
conflict was reported, and in the factories and shops where 
Negroes worked side by side, there was reported not a single 
instance of conflict.68

B. There Are No Economic Justifications for Re­
strictive Covenants Against Negroes. Real 
Property Is Not Destroyed or Depreciated 
Solely by Reason of Negro Occupancy and 
Large Segments of the Negro Population Can 
Afford to Live in Areas From Which They Are 
Barred Solely by Such Covenants. The Sole 
Reason for the Enforcement of Covenants Are 
Racial Prejudice and the Desire on the Part of 
Certain Operators to Exploit Financially the 
Artificial Barriers Created by Covenants.

It has frequently been asserted that the racial restrictive 
covenant is no different in its social, economic and legal 
effect from the other restrictive provisions commonly found 
m deeds and conveyances. Thus, it is said that a grantor 
may reasonably and properly provide that under no circum- 
S ances ŝ ad îs grantee utilize the property for industrial 
Purposes, for purposes which create obnoxious noises or 

ois constituting a public nuisance, for purposes which 
may endanger life and limb, for purposes which contravene

:,W  Covenants, Crisis, March, 1946, p. 
w,  ̂Wartime Employment, Migration and 
United States, 1941-44,”  National Housing 
service Documents, Series A, No. 1, July,

n̂cement of° Colored People! My, 1943^  AsS°dati° n f° r the Ad'

67 Weaver, Chicago, a 
see also B. T McC

a vj agrees in t 
Agency, Racial Relation



72

the prevailing moral code or for other specific purposes 
calculated to lower the value of surrounding property in 
which the grantor may retain an interest. The proponents 
of this view imply that there are in each case economic or 
social justifications for the covenant imposed upon the per­
son who receives the property.

Are there any such justifications for the racial restrictive 
covenants 1 Is it true, as has been loosely alleged, that the 
invasion of the Negro destroys the property? The evidence 
compiled by housing and real estate experts is conclusive to 
the contrary.

1. The Effect of Negro Occupancy Upon Real 
Property.

This is the conclusion of one analyst:

“ Already there is a body of evidence which indi­
cates that Negroes with steady incomes who are given 
the opportunity to live in new and decent homes * *# 
instead of displaying any ‘natural’ characteristics to 
destroy better property have, if anything, reacted 
better towards these new environments than any 
other groups of similar income. Colored tenants have 
also displayed desirable rent-paying habits when 
housed in structures designed to meet their rent-pay­
ing ability. For 155 projects in 59 cities having two 
or more FPTIA-aided projects, at least one of which 
is occupied by Negro tenants, the following results 
are reported: Collection losses do not exceed one 
per cent of the total operating incomes for a total o 
142 of these projects, 72 of which are occupied by 
Negroes and 70 by white or other tenants. Five o 
the 13 projects showing rental losses in excess of one 
per cent are tenanted by Negroes and 8 are tenan e 
by whites or others. The collection loss recoids 
tween the two racial groups do not differ moietnan



73

one per cent in 51 of the 59 cities, and the records are 
identical in 34.”  60

The National Association of Eeal Estate Boards re­
cently undertook a survey of Negro housing and found that 
“provision for good housing for Negroes can be carried 
out as a sound business operation and that the Negro family 
that rents good housing is usually a good economic risk. ’ ’ 70 
Three-fourths of the local Boards which participated in the 
latter survey found no reason why large insurance com­
panies would not freely purchase mortgages upon housing 
occupied by Negroes.71

This same survey asked realtors if they thought that 
Negroes were good economic risks and if Negroes did de­
preciate property. Their answers can be summarized as 
follows:

(1) Does the Negro make a good home buyer and carry 
through his purchase to completion? * * * 17 of 18 
cities reported yes.

(2) Does he take as good care of property as other ten­
ants of comparable status? * * * 11 of the 18 cities 
reported yes.

(3) Do you know of any reason why insurance com­
panies should not purchase mortgages on property 
occupied by Negroes? * * * 14 of the 18 cities re­
ported no.

(4) Do you think there is a good opportunity for realtors 
in the Negro housing field in your city? * * # 12 of
the 18 cities reported yes.72

Weaver, R a c e  R e s t r i c t i v e  H o u s i n g  C o v e n a n t s , The Journal 
u Land and Public Utility Economics, Vol. X X , No. 3, August, 1944,

Bn, ^res® No. 78, National Association of Real Estate
boards, November 15, 1944.

Ibid.
72 Ibid.



74

There is no inevitable causal connection between race 
and dwelling conditions. In Washington, D. C., a small 
number of colored families moved about 50 years ago into 
Brookland, a desirable suburban section of the City. Most 
of them were Government employees and had stable and 
respectable incomes. Just prior to the recent war, many 
new homes were built in the area by Negroes at a cost of 
from $7,500 to $25,000. These houses are better designed 
and constructed than most of the existing dwellings in the 
neighborhood and their occupants are of a higher edu­
cational and cultural level than the majority of their white 
neighbors. The property values in Brookland have increased 
not only in the Negro community, but also in the contiguous 
white areas.73

Another such model community can be found in middle- 
class Westchester County of New York State.74 New York 
City also contains persuasive evidence that the color of the 
skin of the tenants is not the determining factor in the rise 
of standard of dwelling conditions:

“ Closest approach to satisfactory housing for 
Negroes in New York’s five boroughs, according to 
William L. Carson, a realtor with long experience 
in the area, is the Williamshridge section in the 
Bronx. Most wage earners, here, have incomes of 
$3,000-4,000 per annum, most are Civil Service em­
ployees, many own their own homes, although some 
are rental tenants. Although seriously affected In 
the housing shortage, the Williamshridge community 
has uniformly higher standards of dwelling cona­
tions than are to be found in overall surveys of c 
other colored centers. The result is a total absence 
of hoodlumism, buildings kept in good condition, no

______evidence of slums (present or future) and a genca
78 Weaver, Race Restrictive Housing Covenants, The Journal0 

Land and Public Utility Economics, Vol. XX, No. 3, Aug., U >P- 
74 Mummy and Phillips, Negroes as Neighbors, Com m on 

April, 1944, p. 134.



75

standard of living not much below that of average 
white families of comparable income.” 75

A similar comparison was made recently in Philadel­
phia, where a section recently entered by colored people was 
selected for study and the selling prices before and after 
Negro occupancy were computed in a single block. The 
conclusion, as reported in an article entitled “ Colored Oc­
cupancy Eaises Values,”  was as follows:

“ The average sales price for the standard property 
in average condition, before colored occupancy was 
between $2,800 and $3,200. Today (September 1945) 
about six months after the first colored occupancy 
purchases, the average value for the same property 
is $4,500 to $5,000, with exceptional houses selling up 
to $5,500 and $6,000.76
* # * # * * # #

“ If we trace the development of the newer colored 
neighborhoods, we will find that as a new section 
opens up closer to the suburban section, the better- 
educated and higher-income group colored move there 
from a less desirable section. * * * Thus, there is a 
gradual stepping up and development of the newer 
colored sections. This has all led to the increase in 
value in these sections and has stabilized all of these 
neighborhoods. As the process of colored expansion 
proceeds, the stepping-up process will continue to 
increase values in these newly developed colored 
sections. ’ ’ 77

The origin of the fallacy that the presence of Negroes 
aeates a decline in property values has its historical roots 
111 l̂e that Negroes are traditionally relegated to al- 
ready deteriorated neighborhoods or live under such con­

ker 1945 ^ EGR0: Focus o f  t h e  H o u s i n g  C r i s i s , Novem-

S o r w !ebK r; C.°,L0R 0 c c u p a n c y  R a i s e s  V a l u e s , The Review o f  the 
society rfResdentia! Appraisers, Sept., 1945, p. 4.



7 6

ditions of overcrowding (due to restrictions) as to occasion 
physical decay of property. In Detroit, for example, most 
of the principal Negro area was built before 1919 and an 
appreciable part of it before 1900.79

The Philadelphia Chapter of the Society of Residential 
Appraisers and the Wharton School of Finance condncted 
a joint survey in 1939 and found that no houses occupied 
by Negroes in Philadelphia could be classified as being in 
good residential neighborhood:

“ By the time colored occupancy spreads to any 
neighborhood it is at least 30 years old and has the 
characteristics of physical and functional obsolescence 
that remove it from the category of a good neighbor­
hood.”  80

Although it is often assumed because a particular neighbor­
hood once housed the rich, that it was a first-class residen­
tial community when it was taken over by colored people, 
the evidence reveals, however, that in most instances the 
area had already been deserted by its original inhabitants 
and had started on the road to deterioration long before 
Negroes entered.81

79 H o u s i n g — A n a l y t i c a l  M a p , Detroit, Michigan, 16th Census
of the United States, 1940. . ,

80 Stern, “ Long Range Effect Colored Occupancy,” The Review o 
the Society of Residential Appraisers, January, 1945, p. 5.

81 With respect to Chicago, see Cressey, supra, pp. 267-268; wit 
respect to Harlem in New York City, see Kiser, Sea Island to city, 
Columbia University Press, 1932, pp. 19-20. This com m ent on tie 
Harlem situation is also significant:

“ Some have been foreclosed by the lending institutions as man) 
as twelve times, resold for the full amount of the mortgage t 
which a new mortgage is issued) and three t°_four thousan 
cash. The new owner could readily perceive his mabili y 
off a mortgage far greater than the value of his bull 
about getting his original $3-4,000 back, plus whatever e ^  
take before the bank again foreclosed on the propeity.̂  
end, he jacks rents to the limit, cuts operating and main 
to the very bone.”— T h e  U r b a n  N e g r o : Focus of  t h ,. 
i n g  C r i s i s , Oct., 1945, p . 13.



77

One other objective factor in value depreciation has been 
noted by economists. Our building industry has generally 
deemed it expedient to concentrate on the upper-income 
group. Since there are not as many families in this group 
as in the middle and lower-income groups, “ the oversupply 
of houses (in terms of capacity to pay, not in terms of need), 
must be absorbed by families whose income is lower than 
the income of families for whom houses were designed. This 
means a sizeable depreciation in value must take place. ’ ’ 82

Available and valid data are cumulative confirmation 
of the proposition that when economic factors are kept con­
stant, there are no noticeable differences in the quality of 
property maintenance, conditions of occupancy, and neigh­
borhood standards on property values which can be directly 
traced to race.83

2. The Ability of Negroes to Pay for Better 
Housing.

It is also frequently asserted in support of racial re­
strictive covenants that few, if any, Negroes can afford to 
pay for decent housing. The restrictive covenant is there­
fore said to be nothing more than a formal crystallization 
of existing economic facts. It is argued that the Negro who 
can afford to move out of the Black Belt is so exceptional 
that a change in existing methods and procedures is not 
indicated.

Newcomb and Kyle, T h e  H o u s i n g  C r i s i s  i n  a  F r e e  E c o n o m y , 
naw and Contemporary Problems, Winter, 1947, p. 191.
c m J 'r t f  suP P ° f t e d  by the experience of the public housing pro- 

 ̂ ew desirable areas occupied by Negroes in cities such as 
ofwpIS°n’ Philadelphia, and New York and in the small number
_.ciiCj, .(eS,? no‘ medium-rental housing projects available to Negroes
and , . aul Lawrence Dunbar Apartments in New York City 

ichigan Boulevard Garden Apartments in Chicago.



78

This contention also fails to meet the test of analysis. 
In the first place, it should he noted that Negroes pay much 
higher rentals for the quarters which they currently occupy 
than do white persons in comparable units.84 85 * *

Not only do Negroes pay more for desirable housing, 
as illustrated by the studies of Eobinson and Beebler cited 
above, hut they usually pay higher rents than whites for 
even the least desirable types of shelter. This has recently 
been substantiated for the City of Detroit:

“ In his crowded flat or room in blighted Black Bot­
tom or Paradise Valley, the Negro pays 30 to 50 per 
cent more than whites pay for better quarters. A 
family jammed into a single room, sharing toilet 
facilities with six other families (the legal limit in 
Detroit is two, but is unenforced) will pay (in 1946) 
from $11 to $16 weekly or $47 to $69 per month. 
Before rent ceilings came, landlords tripled and 
quadrupled monthly incomes by evicting white fami­
lies and renting to Negroes.” 88

Moreover, Negroes spend a larger proportion of their 
income for rent than white persons in the same income 
group. These facts are brought into sharp relief by the 
result of a study of housing in Chicago:

“ Negro residents of the Chicago ‘b la c k  belt’ pay 
as much per cubic foot per room as that paid  by 
wealthy residents for equivalent space on Lakeside 
Drive. ’ ’ 88

84 For a summary of earlier data supporting this statement, see, 
Thomas J . Woofter, N e g r o  P r o b l e m s  I n  C i t i e s , 1928,
121-30. More recent data are presented in Moron, Where Shall1 
Live?, The American City, April, 1942, and Beebler, Color Ocw 
pancy Raises Values, The Review of the Society of Residential Ap 
praisers, September, 1945.

85 Velie, op. cit. p. 75. . ,s
88 Cayton, N e g r o  H o u s i n g  i n  C h i c a g o , Social Action, Ann.

1940, p. 18.



79

Whatever may have been the differential in earnings 
between Negroes and whites in the lower and middle income 
groups prior to World War II, the industrial effort in con­
nection with the war tended to eradicate such differential. 
New and better paying jobs were open to Negroes, both 
men and women, and earnings in all job classifications were 
increased.87 Consequently, great numbers of Negro workers 
and many Negro professional and business men and women 
who are dependent upon the Negro community, as well as 
those Negroes who recently have secured white collar and 
professional jobs in the larger economy are now able to 
pay for decent housing. Consequently the number of poten­
tial Negro purchasers and tenants of decent housing is 
greater than formerly.

The failure of housing to meet the needs of the Negro 
workers has been due not to the insufficient economic means 
of the applicant, but rather to the lack of building sites and 
the consequent inability of government agencies, to erect, 
or to effectively encourage private industry to build new 
housing for Negroes. The National Housing Authority, in 
order to meet the problem, threatened to withdraw priori­
ties unless Negro housing was constructed, and as a result, 
realtors, builders and financial institutions suddenly “ dis­
covered” a new Negro market for housing. A typical state­
ment of this new condition is contained in a monograph 
published by the National Housing Authority itself:

“ Current employment facts make evident an in­
creasing number of Negroes in those income brackets 
which provide a profitable market for private enter­
prise housing. There is evidence that, in addition to 
their patriotic war bond purchases through volun-

U2S aver> N e g r o  L a b o r : A N a t i o n a l  P r o b l e m , p p .  78-93,



80

tary payroll deductions, their experience in the last 
depression have motivated increased savings among 
Negroes. The National Association of Real Estate 
Boards, the National Association of Home Builders, 
and others, now recognize that they have overlooked 
this growing market for decent housing among 
Negroes.”  88

The first administrator of the NHA, John B. Blandford, 
Jr., in the fall of 1944, spoke of “ the barriers which exist 
even for the Negro citizen who can pay for a home, and, 
if permitted, coukf raise a family in decent surroundings,” 
and specified “ site selection, of obtaining more ‘living 
space,’ ”  and net income as the principal one.89

In 1945 a national survey of the housing market, which 
covered 41 cities and involved 9,200 interviews with Negroes 
living in congested and blighted areas, found that almost 
40% of these persons were paying between $50 and $60 a 
month for rent. Of the entire group of persons inter­
viewed, 43% were willing to buy new homes and 65% of 
them had savings of more than $1,000.90

A similar study was made in a sample slum area in Chi­
cago and the results were as follows: 91

No. of 
Tenants

A v e r a g e  R en t Paid as 
% _____________ R e n t  %  of Income

Pay More Than Can
Afford ..................... 24

Pay As Much As Can
Afford ..................... 159

Willing To Pay More 104

8.4 $30.00 25.7

55.5 32.00 21.3
36.1 27.00 15.4

88 B. T. McGraw, W a r t i m e  E m p l o y m e n t , M igration and H ous­
i n g  o f  N e g r o e s  i n  t h e  U n i t e d  S t a t e s , 1941-1944, Racial ^e 
Service Documents, Series A, # 1 , NHA, July 22, 1946. , ,

89 John B. Blandford, Jr., The Need for Low Cost Housing, 
speech before the Annual Conference of the National Urban &
Columbus, Ohio, Oct. 1, 1944, p. 1.

90 Detroit Free Press, March 20, 1945
91 T h e  S l u m  . . .  I s  R e h a b i l i t a t i o n

P ossible? Chicago Housing
Authority, 1946, p. 17.



81

The Bureau of Labor Statistics of the U. S. Department 
of Labor has very recently made a survey of Negro 
Veterans of World War II, their incomes and their needs 
and desires with respect to the occupancy of dwelling units. 
The results of this survey in Detroit, for example, indicate 
very graphically the extent to which many Negroes could 
enter the housing market if they were not excluded there­
from artifically. If housing is available during the next 
twelve months, only at present price and quality, 21 out of 
every 100 Negro veterans would buy or build, and 15 would 
plan to move and rent. If they could find what they wanted, 
49 out of every 100 would buy or build (as contrasted to 22 
out of every 100 in the total population), and 14 would move 
and rent. Those who would buy or build, if they could find 
what they want, reported that the average or medium price 
which they could afford was $5,500 and % of them could 
pay $6,000 or more.92 Certainly, these statistics do not sup­
port the proposition that the inhabitants of the Black Belt 
of Detroit are, of necessity, required to remain in sub­
standard housing for lack of economic means.

The following chart is drawn from the Bureau of Labor 
Statistics survey mentioned above. A similar survey with 
respect to the St. Louis area issued on May 19, 1947, and 
two surveys issued by the Bureau of the Census of the De­
partment of Commerce relating to all World War II vet- 
erans have been made.

S u r vey  o f  N e g r o  W o r l d  W a r  I I  V e t e r a n s  a n d  V a c a n c y  

and O c c u p a n c y  o f  D w e l l i n g  U n i t s  A v a i l a b l e  t o  N e g r o e s  i n  

the D etr o it  A r e a , M i c h i g a n , J a n u a r y , 1947, V . S. Department 
of Labor, May 20, 1947, p. 1.



82

D etrm t  St. Louis

All a Negro b AID Negro 4
Living in Rented Rooms,

Trailers, or Tourist
Cabins ...................... 17% 16% 8% 7%Living m Ordinary Dwell-
ing Units.................. 83% 84% 92% 93%Doubled Up ............. 19% 22% 22% 31%
Not Doubled Up........ 64% 62% 70% 62%
Substandard * .......... 6% 26% 19% 63%

Median Gross Rent........ $43.00 $39.00 $32.00 $24.00
Plan to Move ** .......... 31% 63% 25% 35%

T o Rent .................. 9% 14% 13% 25%
To Build or Buy...... 22% 49% 12% 10%

Median Gross Rental They
Could Pay ............... $46.00 $40.00 $39.00 $25.00

Median Price They Could
Pay ......................... $6,300 $5,500 $6,500 $3,800

* Substandard: Needing major repairs or unfit for use, or lacking private bath 
or toilet, or running water in the dwelling unit.

**  P la n  to  m ove  if  h ou sin g  is ava ilab le  at the price and quality veterans desire.
a Ib id .
b Survey of W orld W ar II V eterans and D welling Unit Vacancy and 

Occupancy in  the D etroit A rea, M ichigan, U. S. Department of Com­
m erce , O cto b e r  31, 1946, p. 1.

c S urvey of W orld W ar II V eterans and D welling Unit Vacancy and 
O ccupancy in  the St. L ouis A rea, M issouri, U. S. Department of 
C o m m erce , N o v e m b e r  26, 1946, p. 1.

d Survey of N egro W orld W ar II V eterans and V acancy and Occupancy 
of D welling U nits A vailable to N egroes in  St. Louis Area, Missouri 
and Illinois N ovember-D ecember, 1946, U. S . Department of Labor, May 
19, 1947, p. 1.

At the end of the war, income distribution among colored 
American citizens in the northern urban centers more 
nearly approximated that obtaining for the entire popula­
tion than ever before. The number and proportion of Ne- 
groes well above the subsistence level had increased greatly. 
The sampling of Negro veterans referred to above is ample 
demonstration of this tendency. Racial restrictive cove 
nants, at least insofar as Negroes are concerned, cannot be 
justified on the grounds of inability to pay:

“ The peculiar intensity of the housing 
of Negroes is not due to their disporportionate y



83

incomes alone. The really distinctive factor under­
lying these problems stems from the fact that, among 
the basic consumer goods, only for housing are Ne­
groes traditionally excluded from freely competing 
in the open market. Consequently, not only do the 
majority of Negroes live in low-rent substandard 
housing, but even when colored families can afford 
rents which normally assure decent shelter, they are 
often denied it. ” 88

There is no validity to the assumption that racial re­
strictive covenants can be justified in terms of the eco­
nomics of residential real estate. Negro occupancy does 
not in itself destroy or depreciate the property. Large 
numbers of Negroes can afford to enter the free housing 
market. The only significant economic fact which the avail­
able data confirm is that traditionally Negroes have been 
forced to pay a larger portion of their income and a larger 
absolute price for smaller value and for substandard dwell­
ing. Racial prejudice and the desire to profit by it are at 
the root of all restrictive covenants aimed at Negroes.

Thus Negroes are able to pay for better housing in large 
numbers, but the wall of racial covenants that surrounds 
their areas of concentration and excludes them from most 
newly constructed surburban housing prevent their secur­
ing it. This is no temporary phenomenon of a general hous­
ing shortage. It is an historic fact and will persist as long 
as i acial covenants are enforced by the courts and given 

respectability”  by implied legality. Such a situation not 
onJ extracts gross social and economic costs from Negroes 
and the whole community, but it accentuates the frustrations

coloi ed Americans that inevitably follow  from  the color- 
caste system.

1946̂ peaJ g ’ ^ HICAG0: A  City  of Covenants, Crisis, March,



84

VI

Judicial Enforcement of This Restrictive Covenant 
Violates the Treaty Entered Into Between the 
United States and Members of the United Nations 
Under Which the Agreement Here Sought to Be 
Enforced Is Void.

By Articles 55 and 56 of the United Nations Charter, 
each member nation of that body is pledged to take joint 
and separate action to promote:

“ Universal respect for, and observance of human 
rights and fundamental freedoms for all without dis­
tinction as to race, sex, language or religion.”

While the Charter recognizes the sovereignty of the mem­
bers, it states at the outset:

“ All members, in order to insure to all of them 
the rights and benefits resulting from membership, 
shall fulfill in good faith the obligations in accordance 
with the present Charter. ” 1

This solemn international compact was described by the 
Michigan Supreme Court as merely, “ indicative of a desir­
able social trend and an objective devoutly to be desired by 
all well-thinking people” (R. 67).

In addition to the decisions of this Court defining human 
rights to include the right of colored persons to own and 
use property,2 the provisions of the United Nations Charter 
have been similarly construed by authorities.3 * * For example,

1 United Nations Charter, Article 2, Paragraph 2.
2 See Point II of this brief. . . .
3 See January, 1946 issue of 243 Annals of the Am erican Ace J

o f Political and Social Science, on “Essential Human Rights, ^
ticularly articles by Edward R. Stettinius, Jr., p. 1, Charles r- ^  
riam, p. 11.



85

the American Law Institute interprets the provisions of 
Article 55 to include the right of every person to adequate 
housing.4

The United Nations Charter is a treaty, duly executed 
by the President and ratified by the Senate (51 Stat. 1031). 
Under the Constitution such a treaty is the ‘ ‘ supreme Law 
of the Land” and specifically, “ the Judges in every State 
shall be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding. ’ ’ 5

In the face of this provision, the Michigan Supreme 
Court stated that it is not a principle of law that a treaty 
between sovereign nations, “ is applicable to the contractual 
rights between citizens when a determination of these rights 
is sought in State courts” (R. 67).

Historically, however, no doubt has been entertained as 
to the supremacy of treaties under the Constitution. Thus 
Madison, in the Virginia Convention, said that if a treaty 
does not supersede existing state laws, as far as they con­
travene its operation, the treaty would be ineffective.

“ To counteract it by the supremacy of the state 
laws wordd bring on the Union the just charge of 
national perfidy, and involve us in war. ’ ’ 8

More recently, in holding that the public policy of New York 
against confiscation of private property could not prevent 
the United States from collecting a debt assigned to it by 
the Soviet Government in an exchange of diplomatic corre­
spondence, this Court stated:

“ Plainly the external powers of the United States 
are to be exercised without regard to state laws or

of p ,̂e-r*c,an âw Institute, 243 Annals o f the A m erican  A cadem y  
lenli-Q “tu °T- Soaal S c i e n c e -  See also in the Annals, C. Wilfred 
'Art; 1 b r c  Economic and Social Rights,” pp. 43-45. e Article VI, Section 2. 6

6 Elll°ts Debates 515



86

policies. * # * In respect of all international negoti­
ations and compacts, and in respect of our foreign 
relations generally, state lines disappear. As to such 
purposes the state of New York does not exist. Within 
the field of its powers, whatever the United States 
rightfully undertakes, it necessarily has warrant to 
consummate. And when judicial authority is invoked 
in aid of such consummation, State Constitutions, 
state laws, and state policies are irrelevant to the 
inquiry and decision. ” 7

Early in the history of our foreign relations, treaty 
obligations of the federal government operated to affect the 
common law and statutory rights of American citizens to 
inherit property,8 to rely upon a rule of admiralty law,9 and 
to void the defense that a debt revived by treaty had been 
paid to the state which had expropriated it during the Revo­
lution.10

The treatment of minority citizens within the border of 
a sovereign state is the proper subject of international 
negotiations and is a subject directly affecting international 
relations. The question arose, in view of the Nazi extermi­
nation policy, whether, “ sovereignty goes so far that a 
government can destroy with impunity its own citizens and 
whether such acts of destruction are domestic affairs or 
matters of international concern. ” 11 That question was 
resolved by the human rights provisions of the United 
Nations Charter, and by the subsequent adoption by the 
United Nations General Assembly of a resolution affirming

7 V . S . v. B elm ont, 301 U. S. 324, 331. .«
8 H auenstein  v. Lynham , 100 U. S. 483; Geoffroy v.

U. S. 258. This doctrine has been strongly reiterated in o> 
A llen , 67 Sup. Ct. 1431 (Advance Sheets).

9 T he S choon er P eg g y , 5 U. S. 103.
10 W are v. H ylton , 3 Dali. 199. _ , T + national
11 Raphael Lemkin, “Genocide as a Crime under In er 

Law,” Am. J. of Int. Law, Vol. 41, No. 1 (Jan., 1947), p-



87

tie principles that genocide is a crime under International 
Law whether committed by private individuals, public of­
ficials or statesmen.12 This resolution changes fundamen­
tally the responsibility of a sovereign nation toward its 
citizens.18 While the Nuremberg trials were confined in 
scope to acts committed after the commencement of war or 
in preparation for it, the inclusion of persecution of German 
nationals in crimes against humanity indicates that the field 
of international affairs has been broadened to include do­
mestic activity of a nation.

Official spokesmen for the American State Department 
have expressed concern over the effect racial discrimination 
in this country has upon our foreign relations and the then 
Secretary of State Stettinius pledged our government be­
fore the United Nations to fight for human rights at home 
and abroad.14

The interest of the United States in the domestic affairs 
of the nations with whom we have signed treaties of peace 
following World War II can be seen from the provisions in 
the peace treaties with Italy, Bulgaria, Hungary and Ru­
mania, and particularly with settlement of the free territory 
of Trieste, in all of which we specifically provided for gov­
ernmental responsibility for a non-discriminatory practice 
as to race, sex, language, religion, and ethnic origin.15

Rraolution of General Assembly of United Nations, Dec. 11, 1946. 
j Lemkin, op. t i t , p. 150.

U c* ^ jarrnl<b “The Charter and the Promotion of Human Rights,” 
1  6 , Pafrtment Bulletin 210 (Feb. 10, 1946) ; and Stettinius’
w U T . •5 tate D ePart™ent Bulletin, 928 (May, 1945 ). See also 
nnhilr i Ct!ng Secretai7 of State Dean Acheson to the F. E. P. C. 
“theit) lenS* “  tlle Final Report of F. E. P. C., reading in part, 
trv 1ioq1S en?  °* discrimination against minority groups in this coun- 

15 r 3 j acgerse effect upon our relations with other countries.” 
ties 1941 ?or?”*1??, t̂ lese provisions in, “Making the Peace Trea- 
Ser'ies u: (Department of State Publications 2774, European 

> ’ 16 state Department Bulletin 1077, 1080-82.



The Potsdam Declaration provided for the abolition of 
all Nazi laws establishing racial or religious discrimination, 
“ whether legal, administrative or otherwise.”

This growth in international law has established that 
it is now proper for the executive arm of the United States 
Government to enter into treaties affecting the treatment of 
citizens of the United States within its own boundaries. 
There was never any question, however, that at all times the 
United States could by treaty protect and extend the rights 
of nationals of other states residing in this country, and as 
to covenants running against the foreign born of many na­
tions, such power has always existed.

The Supreme Court of Michigan stated (R. 67) that 
treaties do not affect the contractual rights between citi­
zens “ when a determination of these rights is sought in­
state courts.”  Such a contention was reviewed and re­
jected by this Court in K e n n e t t  v. Cham bers,16 where this 
Court declared void a contract under which an American 
citizen sought to collect sums due him under an agreement 
by which he furnished funds to equip a Texan to fight 
Mexico during the life of treaties of friendship and comity 
between Mexico and this country. This Court held the con­
tract void, saying:

“ These treaties, while they r e m a in e d  in effect, 
were the Supreme law and binding not only on t  e 
government but upon every citizen. No _contrae 
could lawfully be made in violation of their provi 
sions. For, as the sovereignty resides in the peop d 
every citizen is a portion of it, and is himself Pers0 
ally bound by the laws which the re p re s e n ta t iv e s  o 
the sovereignty may pass or the treaties th e y  m . 
enter within the scope of their delegated au °' , 
* * * It is his own personal compact as a por10 
the sovereignty in whose behalf it is m a de__ (P — _

18 55 U. S. 38. See also: M a yer v. W hite, 65 U. S. 317.



89

In an early case, this Court held that an American citi­
zen who had acted as master of a foreign vessel privateer­
ing against Spanish ships could not be, “ recognized in our 
courts as a legal claimant of the fruits of his own wrong” in 
libel proceedings, because of treaty provisions between this 
country and Spain.17

This principle was applied to an attempted enforce­
ment of a deed restriction against leasing to Chinese and a 
federal judge there said that the restriction was void be­
cause it contravened the terms of a treaty by which Chinese 
subjects were accorded all the rights, privileges and im­
munities accorded citizens of the most favored nation.18

Within the framework of our federal form of govern­
ment, there may be fields in which enabling legislation is re­
quired to implement the solemn obligations of the human 
rights sections of the United Nations Charter. But the 
decisions of this Court leave no doubt that a contract by its 
own terms violative of the treaty obligations of the United 
States is void.

Even were it not established that the individual’s right 
to enter into contracts in violation of treaties is restricted, 
certainly such contracts cannot be enforced by resort to 
the power of the state’s judiciary since the states have di­
vested themselves of all authority in connection with in­
ternational relations and have agreed that for their mutual 
protection, this authority must be vested solely in the fed­
eral government.

Such a decision was reached by the Court of another 
member of the United Nations, the Ontario Supreme Court, 
when it held unenforceable a restriction against ownership

"The Beno Corrunes, 19 U. S. 152.
'jandolfo v. Hartman, 49 Fed. 181.



90

of land by, “ Jews or persons of objectionable nation­
ality. ” 19

The attempt by the courts of the various states to aid 
private individuals in the prosecution of a course of action 
utterly destructive of the solemn treaty obligations of the 
United States must be struck down by this Court or America 
will stand before the world repudiating the human rights 
provisions of the United Nations Charter and saying of 
'them that they are meaningless platitudes for which we re­
ject responsibility.

Conclusion

This Court in 1917 declared unconstitutional efforts of 
the states to establish residential segregation by legislative 
enactments. Residential segregation by state court enforce­
ment of racial restrictive covenants has spread over large 
areas and has excluded numerous groups. Continued en­
forcement of these covenants will firmly establish ghettos 
in this country.

Respondents ’ only basis for relief is the racial restrictive 
covenant which is ineffective without state action through its 
courts. The only basis for the decree of the courts of Michi­
gan is the race of petitioners. If all other facts in the pres­
ent record had been the same except that petitioners 
happened to be members “ of the Caucasian race,” the same 
courts of Michigan would have used all of the resources of 
the State of Michigan to protect them fully in their right to 
use and occupy their property.

The enforcement of racial restrictive c o v e n a n ts  clearly 
violates the Fourteenth Amendment. The d e n ia l to  peti­
tioners of their rights guaranteed b y  the F o u r te e n th  Amend

19 In  R e  D rum m ond W ren , 4 D. L. R. 674 (1945).



91

ment is a part of a general pattern of enforcement of 
similar covenants blanketing large sections of onr country. 
This case is not a matter of enforcing an isolated private 
agreement. It is a test as to whether we will have a united 
nation or a country divided into areas and ghettos solely 
on racial or religious lines. To strike down the walls of 
these state court imposed ghettos will simply allow a flexible 
way of life to develop in which each individual will be able 
to live, work and raise his family as a free American.

It is the protection by the Constitution of this basic 
human freedom which makes possible the functioning of a 
democratic economic and political system based on private 
property.

Wherefore, it is respectfully submitted that the judg­
ment of the Supreme Court of Michigan should be reversed.

Submitted by,

T h u e g o o d  M a r s h a l l , 
L o r e n  M i l l e r ,
W i l l i s  M. G r a v e s ,
F r a n c i s  D e n t ,

C o u n se l f o r  P e t i t io n e r .

William H. H astie,
Chaeles H. H ouston,
Geoege M. J ohnson,
William R. M ing , J r .,
James Nabrit, J r .,
Marian W ynn  P erry,
Spottswood W . R obinson , I I I  

Andrew W einberger,
R uth  W e y a n d ,

O f C ounsel.



Petitioners’ Appendix A

Total Population, Non-White Population, Percentage of Non-White Population and Percentage of Total Dwelling Units 
Occupied by Non-Whites in Selected Northern and Border Metropolitan Districts, 1940 and 1947.

M etrop olitan  D istr ict T o ta l P op u la tion  a
N o n -W h ite  

P op u la tion  a

P e r  Cent, o f  
N o n -W h ite  in  T o ta l 

P op u la tion  a

P e r  Cent, o f  T o ta l 
D w ellin g  U nits 

O ccu p ied  by  
N o n -W h ite s  b

1940 1947 1940 1947 1940 1947 1940 1947

N e w  Y o rk -N o rth e rn  N e w  Jersey 11,014,511 11,669,409 675,969 1,015,002 6 8 6 8
C h ica g o  .................................................. 4,499,126 4,644,640 329,157 447,370 7 10 7 8
L o s  A n g e les  ........................................ 2,904,596 3,916,875 127,477 240,375 4 6 4 4
P h iladelph ia  ............................ .. 2,898,644 3,372,690 317,285 439,410 7 13 7 11
D etro it  .................................................... 2,295,867 2,702,398 171,877 348,245 7 13 7 11
P ittsbu rgh  ............................................ 1,994,060 2,100,092 115,423 131,052 6 6 6 6
St. L ou is  ............................................... 1,367,977 1,584,044 150,088 239,470 11 15 11 15
B altim ore  ............................................... 1,046,692 1,306,040 188,106 284,383 18 22 16 18
W  ash ington .......................................... 907,816 1,205,220 215,398 285,988 24 24 19 20
S e a t t le '...................................................... 452,639 602,910 15,417 24,090 3 4 3 3
P ortlan d , O r e ......................................... 406,406 534,422 6,696 11,268 2 2 1 2
Y  oun gstow n  ....................................... 372,428 380,897 23,008 29,915 6 8 6 8
C olum bus ............................................... 365,796 432,304 38.246 40,795 9 11 9 8A k ro n  ..................................................... 349,705 423,539 14,317 27,343 4 6 4 5
l  o led o  .......................................... 341,663 383,418 15,245 20,196 4 5 4 4

a S o u r c e :  Current Population Reports, Population Characteristics, U .  S . B u r e a u  o f  th e C e n su s , S e r ie s  P .  2 1 , 1 9 47 . 
b S o u r c e : Current Population Reports, Housing, TJ. S . B u r e a u  o f  th e C e n su s , S e r ie s  P .  7 1 , 1947 .

16 Census enum erations fo r  A p ril, 1040 ; the 1947 figures are TJ. S . Census estim ates fo r  A p ril, 1947.

to





L a w y e r s  P r e ss , I n c ., 165 William St., N. Y. C. 7 ’Phone: BEekman







SUPREME COURT OF THE UNITED STATES

Nos. 72 and  87.—O ctober T e r m , 1947.

J. D. Shelley, Ethel Lee Shelley, His 
Wife, Petitioners,

72 v.
Louis Kraemer and Fern W. Krae- 

mer, His Wife.

On Writ of Certio­
rari to the Su­
preme Court of 
the State of Mis­
souri.

Orsel McGhee and Minnie S. Mc­
Ghee, His Wife, Petitioners,

87 v.

Benjamin J. Sipes and Anna C. 
Sipes, James A. Coon and Addie 
A. Coon.

On Writ of Certio­
rari to the Su­
preme Court of 
the St at e  of  
Michigan.

[May 3, 1948.]

Mr. Chief Justice Vinson delivered the opinion of 
the Court.

These cases present for our consideration questions re­
lating to the validity of court enforcement of private 
agreements, generally described as restrictive covenants, 
which have as their purpose the exclusion of persons of 
designated race or color from the ownership or occupancy 
of real property. Basic constitutional issues of obvious 
importance have been raised.

The first of these cases comes to this Court on certiorari 
to the Supreme Court of Missouri. On February 16, 
1911, thirty out of a total of thirty-nine owners of prop- 
oh} fronting both sides of Labadie Avenue between 
laylor Avenue and Cora Avenue in the city of St. Louis, 
SI»ned an agreement, which was subsequently recorded, 
Providing in part:

• • ■ the said property is hereby restricted to the 
use and occupancy for the term of Fifty (50) years 
rom this date, so that it shall be a condition all the



2 SH ELLEY v. KRAEMER.

time and whether recited and referred to as [sic] 
not in subsequent conveyances and shall attach to 
the land, as a condition precedent to the sale of the 
same, that hereafter no part of said property or any 
portion thereof shall be, for said term of Fifty-years, 
occupied by any person not of the Caucasian race, 
it being intended hereby to restrict the use of said 
property for said period of time against the occu­
pancy as owners or tenants of any portion of said 
property for resident or other purpose by people of 
the Negro or Mongolian Race.”

The entire district described in the agreement included 
fifty-seven parcels of land. The thirty owners who signed 
the agreement held title to forty-seven parcels, including 
the particular parcel involved in this case. A t  the time 
the agreement was signed, five of the parcels in the dis­
trict were owned by Negroes. One of those had been 
occupied by Negro families since 1882, nearly thirty years 
before the restrictive agreement was executed. The trial 
court found that owners of seven out of nine homes on 
the south side of Labadie Avenue, within the restricted 
district and “in the immediate vicinity” of the premises 
in question, had failed to sign the restrictive agreement 
in 1911. At the time this action was brought, four of 
the premises were occupied by Negroes, and had been so 
occupied for periods ranging from twenty-three to sixty- 
three years. A fifth parcel had been occupied b y  N egroes 
until a year before this suit was instituted.

On August 11, 1945, pursuant to a contract of sale, 
petitioners Shelley, who are Negroes, for valuable con 
sideration received from one Fitzgerald a warranty oe 
to the parcel in question.1 The trial court foun t a

1 The trial court found that title to the property which Pet‘^ ^  
Shelley sought to purchase was held by one Bishop, a rea  ̂
dealer, who placed the property in the name of Josep me 1 ^
Bishop, who acted as agent for petitioners in the pure ase, c 
the fact of his ownership.



SHELLEY v. K R A E M E R . 3

petitioners had no actual knowledge of the restrictive 
agreement at the time of the purchase.

On October 9, 1945, respondents, as owners of other 
property subject to the terms of the restrictive covenant, 
brought suit in the Circuit Court of the city of St. Louis 
praying that petitioners Shelley be restrained from tak­
ing possession of the property and that judgment be en­
tered divesting title out of petitioners Shelley and revest­
ing title in the immediate grantor or in such other person 
as the court should direct. The trial court denied the 
requested relief on the ground that the restrictive agree­
ment, upon which respondents based their action, had 
never become final and complete because it was the inten­
tion of the parties to that agreement that it was not to 
become effective until signed by all property owners in 
the district, and signatures of all the owners had never 
been obtained.

The Supreme Court of Missouri sitting en  banc reversed 
and directed the trial court to grant the relief for which 
respondents had prayed. That court held the agreement 
effective and concluded that enforcement of its provisions 
violated no rights guaranteed to petitioners by the Fed­
eral Constitution.2 At the time the court rendered its 
decision, petitioners were occupying the property in 
question.

The second of the cases under consideration comes to 
this Court from the Supreme Court of Michigan. The 
circumstances presented do not differ materially from the 
Missouri case. In June, 1934, one Ferguson and his wife, 
who then owned the property located in the city of De­
troit which is involved in this case, executed a contract 
providing in part:

This property shall not be used or occupied by
auy person or persons except those of the Caucasian 
race.

2 Kraemer v. Shelley, 355 Mo. 814, 198 S. W. 2d 679 (1946).



4 SH ELLEY v. KRAEMER.

“It is further agreed that this restriction shall not 
be effective unless at least eighty percent of th e  prop­
erty fronting on both sides of the street in th e  block 
where our land is located is subjected to th is o n  
similar restriction.”

The agreement provided that the restrictions were to 
remain in effect until January 1, 1960. The con tractw a s 
subsequently recorded; and similar agreements w ere exe­
cuted with respect to eighty percent of the lots in the 
block in which the property in question is s it u a t e d .

By deed dated November 30, 1944, petitioners, who 
were found by the trial court to be Negroes, a c q u ir e d  title 
to the property and thereupon entered into its occupancy, 
On January 30, 1945, respondents, as owners o f  property 
subject to the terms of the restrictive agreement, brought 
suit against petitioners in the Circuit Court o f  Wayne 
County. After a hearing, the court entered a  decree 
directing petitioners to move from the property within 
ninety days. Petitioners were further enjoined and re­
strained from using or occupying the premises in the 
future. On appeal, the Supreme Court of Michigan af­
firmed, deciding adversely to petitioners’ contentions that 
they had been denied rights protected by the Fourteenth 
Amendment.3 4

Petitioners have placed primary reliance on th e ir  con­
tentions, first raised in the state courts, that ju d ic ia l en 
forcement of the restrictive agreements in these cases o? 
violated rights guaranteed to petitioners by the®1 
teenth Amendment of the Federal Constitution an «s 
of Congress passed pursuant to that A m e n d m e n t. F  
cifically, petitioners urge that they have been d e m e  -

3 Sipes v. McGhee, 316 Mich. 614, 25 N. W. 2d 638 (1947)' ^
4 The first section of the Fourteenth Amendment provi es. 

persons born or naturalized in the United States, and su jec ^  
jurisdiction thereof, are citizens of the United states an . 
State wherein they reside. No State shall make or en orce



SHELLEY v. K R A E M E R . 5

equal protection of the laws, deprived of property without 
due process of law, and have been denied privileges and 
immunities of citizens of the United States. We pass to 
a consideration of those issues.

I.

Whether the equal protection clause of the Fourteenth 
Amendment inhibits judicial enforcement by state courts 
of restrictive covenants based on race or color is a question 
which this Court has not heretofore been called upon to 
consider. Only two cases have been decided by this 
Court which in any way have involved the enforcement of 
such agreements. The first of these was the case of 
Corrigan v. Buckley, 271 U. S. 323 (1926). There, suit 
was brought in the courts of the District of Columbia to 
enjoin a threatened violation of certain restrictive cov­
enants relating to lands situated in the city of Washing­
ton. Relief was granted, and the ca$e was brought here 
on appeal. It is apparent that that case, which had 
originated in the federal courts and involved the enforce­
ment of covenants on land located in the District of 
Columbia, could present no issues under the Fourteenth 
Amendment; for that Amendment by its terms applies 
only to the States. Nor was the question of the validity 
of court enforcement of the restrictive covenants under 
the Fifth Amendment properly before the Court, as the 
opinion of this Court specifically recognizes.5 The only 
constitutional issue which the appellants had raised in 
the lower courts, and hence the only constitutional issue 
before this Court on appeal, was the validity of the cov­
enant agreements as such. This Court concluded that

which shall abridge the  p riv ile g e s  o r  im m u n itie s  o f  c it iz e n s  o f  th e
nited States; n or shall a n y  S ta te  d e p r iv e  a n y  p e rs o n  o f  li fe , l ib e r ty , 

or ProPerty, w ithout due p ro ce ss  o f  la w ; n o r  d e n y  t o  a n y  p e rs o n  
within its jurisdiction th e  eq u a l p r o t e c t io n  o f  th e  la w s .”

5 Corrigan v. B u ck ley , 271 U . S . 3 2 3 , 3 3 0 -3 3 1  (1 9 2 6 ) .



6 SH ELLEY v. KRAEMER.

since the inhibitions of the constitutional provisions in­
voked, apply only to governmental action, as contrasted 
to action of private individuals, there was no showing that 
the covenants, which were simply agreements between 
private property owners, were invalid. Accordingly, the 
appeal was dismissed for want of a substantial question, 
Nothing in the opinion of this Court, therefore, may prop­
erly be regarded as an adjudication on the merits of the 
constitutional issues presented by these cases, which raise 
the question of the validity, not of the private agreements 
as such, but of the judicial enforcement of those agree­
ments.

The second of the cases involving racial restrictive 
covenants was H a n sb erry  v. L ee , 311 U. S. 32 (1940). 
In that case, petitioners, white property owners, were 
enjoined by the state courts from violating the terms 
of a restrictive agreement. The state Supreme Court had 
held petitioners bound by an earlier judicial determina­
tion, in litigation in which petitioners were not parties, 
upholding the validity of the restrictive agreement, al­
though, in fact, the agreement had not been signed by 
the number of owners necessary to make it effective under 
state law. This Court reversed the judgment of the state 
Supreme Court upon the ground that petitioners had 
been denied due process of law in being held estopped 
to challenge the validity of the agreement on the theory, 
accepted by the state court, that the earlier litigation, 
in which petitioners did not participate, was in the nature 
of a class suit. In arriving at its result, this Court di 
not reach the issues presented by the cases now under 
consideration.

It is well, at the outset, to scrutinize the terms ot t e 
restrictive agreements involved in these cases. In y 
Missouri case, the covenant declares that no part o t e 
affected property shall be “occupied by any person no 
of the Caucasian race, it being intended hereby to res ric



SHELLEY v. K R A E M E R . 7

the use of said property . . . against the occupancy as 
owners or tenants of any portion of said property for 
resident or other purpose by people of the Negro or Mon­
golian Race.” Not only does the restriction seek to pro­
scribe use and occupancy of the affected properties by 
members of the excluded class, but as construed by the 
Missouri courts, the agreement requires that title of any 
person who uses his property in violation of the restriction 
shall be divested. The restriction of the covenant in the 
Michigan case seeks to bar occupancy by persons of the 
excluded class. It provides that “This property shall not 
be used or occupied by any person or persons except those 
of the Caucasian race.”

It should be observed that these covenants do not 
seek to proscribe any particular use of the affected prop­
erties. Use of the properties for residential occupancy, 
as such, is not forbidden. The restrictions of these agree­
ments, rather, are directed toward a designated class of 
persons and seek to determine who may and who may 
not own or make use of the properties for residential 
purposes. The excluded class is defined wholly in terms 
of race or color; “simply that and nothing more.” 6 

It cannot be doubted that among the civil rights in­
tended to be protected from discriminatory state action 
by the Fourteenth Amendment are the rights to acquire, 
®joy, 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 
nhich the Amendment was intended to guarantee.7 Thus, 
i 1978 of the Revised Statutes, derived from § 1 of the 
ivil Rights Act of 1866 which was enacted by Congress

‘ Buchanan v. Warley, 245 U . S . 60 , 73 (1 9 1 7 ) .

’ Slaughter-House C a ses, 16 W a ll . 3 6 , 7 0 , 81  (1 8 7 3 > . S ee  F la c k , 
e ^ o p t io n  o f the F o u r te e n th  A m e n d m e n t .



8 SH ELLEY v. KRAEM ER.

while the Fourteenth Amendment was also under con­
sideration,3 provides:

“All citizens of the United States shall have the 
same right, in every State and Territory, as is en­
joyed by white citizens thereof to inherit, purchase, 
lease, sell, hold, and convey real and personal prop­
erty.” 8 9

This Court has given specific recognition to the same 
principle. B uchanan  v. W a rley , 245 U. S. 60 (1917).

It is likewise clear that restrictions on the right of 
occupancy of the sort sought to be created by the private 
agreements in these cases could not be squared with the 
requirements of the Fourteenth Amendment if imposed 
by state statute or local ordinance. We do not under­
stand respondents to urge the contrary. In the case of 
B uchanan  v. W a rley , supra, a unanimous Court declared 
unconstitutional the provisions of a city ordinance which 
denied to colored persons the right to occupy houses in 
blocks in which the greater number of houses were occu­
pied by white persons, and imposed similar restrictions 
on white persons with respect to blocks in which the 
greater number of houses were occupied by colored per­
sons. During the course of the opinion in that case, 
this Court stated: “The Fourteenth Amendment and 
these statutes enacted in furtherance of its purpose oper­
ate to qualify and entitle a colored man to acquire 
property without state legislation discriminating against 
him solely because of color.” 10

8 I n  O y a m a  v . C a lifo rn ia , 3 3 2  U . S . 633, 640 (1948) the section 
o f  th e  C iv i l  R ig h t s  A c t  h e re in  co n s id e re d  is described as the federa 
s ta tu te , “ e n a c te d  b e fo r e  th e  F o u r te e n th  A m en d m en t but vindicate 
b y  i t .”  T h e  C iv i l  R ig h ts  A c t  o f  1866 w as reenacted in § 18 of tie 
A c t  o f  M a y  3 1 , 1870 , s u b se q u e n t  t o  th e  a d o p tio n  o f the Fourteen! 

A m e n d m e n t . 16 S ta t . 144.
9 14 S ta t . 2 7 , 8  U . S . C . § 42 .
10 B u c h a n a n  v . W a r le y ,  24 5  U . S . 6 0 ,7 9  (1 9 1 7 ) .



SHELLEY v. K R AEM ER . 9

In Harmon v. Tyler, 273 U. S. 668 (1927), a unanimous 
court, on the authority of B uchanan  v. W a rley , supra, 
declared invalid an ordinance which forbade any Negro 
to establish a home on any property in a white community 
or any white person to establish a home in a Negro com­
munity, “except on the written consent of a majority of 
the persons of the opposite race inhabiting such com­
munity or portion of the City to be affected.”

The precise question before this Court in both the 
Buchanan and H arm on  cases, involved the rights of white 
sellers to dispose of their properties free from restrictions 
as to potential purchasers based on considerations of race 
or color. But that such legislation is also offensive to 
the rights of those desiring to acquire and occupy property 
and barred on grounds of race or color, is clear, not only 
from the language of the opinion in B uchanan  v. W arley , 
supra, but from this Court’s disposition of the case of 
Richmond v. D eans, 281 U. S. 704 (1930). There, a 
Negro, barred from the occupancy of certain property 
by the terms of an ordinance similar to that in the 
Buchanan case, sought injunctive relief in the federal 
courts to enjoin the enforcement of the ordinance on 
the grounds that its provisions violated the terms of 
the Fourteenth Amendment. Such relief was granted, 
and this Court affirmed, finding the citation of B uchanan  
Vi II arley, supra, and H arm on  v. T yler , supra, sufficient 
to support its judgment.11 * 054

Courts o f G eorgia , M a r y la n d , N o r t h  C a r o lin a , O k la h o m a , T e x a s , 
and tirginia have a lso  d e c la re d  s im ila r  s ta tu te s  in v a lid  as b e in g  
m contravention o f  the  F o u r te e n th  A m e n d m e n t . G lo v e r  v . A tla n ta ,  

m jGa' 285 ’ 96 S ' K  562 J a c k s o n  v . S ta te ,  132 M d . 311 ,
™  Atl. 910 (1 9 1 8 ) ; C lin a rd  v . W in s to n -S a le m ,  21 7  N . C . 119, 6  S . E . 
-d 867 (1 940 ); A llen  v . O k la h o m a  C i t y ,  175 O k la . 42 1 , 52  P . 2 d
054 (1936); L ib e r ty  A n n e x  C o r p .  v . D a lla s , 28 9  S . W . 1067 (T e x . 

Mais\ ’ 1927); hvine v' Clif ton F o r g e ,  124 V a . 78 1 , 97  S . E . 31 0



12 SH ELLEY v. KRAEMER.

ployed no less than eighteen times during the course of 
that opinion.13

Similar expressions, giving specific recognition to the 
fact that judicial action is to be regarded as action of the 
State for the purposes of the Fourteenth Am endm ent, are 
to be found in numerous cases which have been more 
recently decided. In T w ining  v. N ew  Jersey, 211 U. S. 
7 8 ,  9 0 - 9 1  ( 1 9 0 8 ) ,  the Court said: “The judicial act of the 
highest court of the State, in authoritatively construing 
and enforcing its laws, is the act of the State.” In Brink- 
erh off-F aris  T ru st & Savings Co. v. Hill, 281 U. S. 673, 
6 8 0  ( 1 9 3 0 ) ,  the Court, through Mr. Justice Brandeis, 
stated: “The federal guaranty of due process extends to 
state action through its judicial as well as through its 
legislative, executive or administrative branch of gov­
ernment.” Further examples of such declarations in the 
opinions of this Court are not lacking.14

One of the earliest applications of the prohibitions con­
tained in the Fourteenth Amendment to action of state 
judicial officials occurred in cases in which Negroes had * 154

13 A m o n g  th e  p h ra se s  a p p e a r in g  in  th e  op in ion  are the following: 
“ th e  o p e r a t io n  o f  S ta te  la w s , a n d  th e  a c t io n  o f  State officers executive 
o r  ju d ic ia l ” ; “ S ta te  la w s  a n d  S ta te  p roceed in gs” ; “ State law ... 
o r  s o m e  S ta te  a c t io n  th r o u g h  its  o fficers  o r  agents” ; “ State laws and 
a c t s  d o n e  u n d e r  S ta te  a u t h o r it y ” ; “ S ta te  laws, or State action of 
s o m e  k in d ” ; “ s u ch  la w s  as th e  S ta tes  m a y  ad op t or enforce ; such 
a c t s  a n d  p r o c e e d in g s  a s  th e  S ta te s  m a y  com m it or take ; State 
le g is la t io n  o r  a c t io n ” ; “ S ta te  la w  o r  S ta te  authority .”

™ N e a l  v . D e la w a r e ,  103 U . S . 37 0 , 397 (1881) ;. Scott ,v. M cM

154 U . S'. 3 4 , 4 5  ( 1 8 9 4 ) ;  C h ic a g o , B u rlin g ton  and Quincy R - ^  
v . C h ica g o ,  166 U . S . 2 2 6 , 2 3 3 -2 3 5  (1 8 9 7 ) ;  H ovey  v.
U . S . 4 0 9 , 4 1 7 -4 1 8  ( 1 8 9 7 ) ;  C a r t e r s .  T exa s , 177 U . S. 442,447 (191X). 
M a r t in  v . T e x a s ,  2 0 0  U . S . 3 1 6 , 31 9  (1 9 0 6 ) v  Raymond v. C U V  
U n io n  T r a c t io n  C o .,  2 0 7  U . S . 2 0 , 3 5 -3 6  (1 9 0 7 ) ; Home Telepw 
a n d  T e le g r a p h  C o .  v . L o s  A n g e le s ,  227 U . S. 278, 286-28  ( 
P r u d e n t ia l  I n s u r a n c e  C o .  v . C h e e k ,  259 U . S. 530, 548 (1922) , 
c a n  R a ilw a y  E x p r e s s  C o .  v . K e n t u c k y , -273 U . S. 269 ,^27  ̂
M o o n e y  v . H o lo h a n ,  2 9 4  U . S . 103, 112 -11 3  (1935),

L e e ,  31 1  U . S . 3 2 ,4 1  (1 9 4 0 ) .

Han sherry»



13

been excluded from jury service in criminal prosecutions 
by reason of their race or color. These cases demonstrate, 
also, the early recognition by this Court that state action 
in violation of the Amendment’s provisions is equally 
repugnant to the constitutional commands whether di­
rected by state statute or taken by a judicial official in the 
absence of statute. Thus, in Strauder v. W est V irginia, 
100 U. S. 303 (1880), this Court declared invalid a state 
statute restricting jury service to white persons as 
amounting to a denial of the equal protection of the 
laws to the colored defendant in that case. In the same 
volume of the reports, the Court in E x  p a rte  V irginia, 
supra, held that a similar discrimination imposed by the 
action of a state judge denied rights protected by the 
Amendment, despite the fact that the language of the 
state statute relating to jury service contained no such 
restrictions.

The action of state courts in imposing penalties or de­
priving parties of other substantive rights without pro­
viding adequate notice and opportunity to defend, has, 
of course, long been regarded as a denial of the due process 
of law guaranteed by the Fourteenth Amendment. 
Brinkerhofi-Faris Trust & Savings Co. v. H ill, supra. Cf. 
Pennoyer v. Neff, 95 U. S. 714 (1878) ,15

In numerous cases, this Court has reversed criminal 
convictions in state courts for failure of those courts to 
provide the essential ingredients of a fair hearing. Thus 
it has been held that convictions obtained in state courts 
under the domination of a mob are void. M o o re  v. 
Dempsey, 261 U. S. 86 (1923). And see Frank  v. M a n ­
num, 237 U. S. 309 (1915). Convictions obtained by 
coerced confessions,16 by the use of perjured testimony 11

11 And see Standard Oil C o . v . M isso u r i,  2 2 4  U . S . 2 7 0 , 2 8 1 -2 8 2  
0912); Hansberry v . L ee ,  311 U . S . 32  (1 9 4 0 ) .
J B r o r n  v. M ississippi, 297 XL S. 27 8  ( 1 9 3 6 ) ;  C h a m b e r s  v . F lo r id a , 

, U. S. 227 (1 9 4 0 ) ; A sh cra ft  v . T e n n es s e e ,  3 2 2  U . S . 143 ( 1 9 4 4 ) ;  
U e  v' Mississippi, 332 U . S. 742 (1 9 4 8 ) .

SHELLEY v. K R AEM ER .



14

known by the prosecution to be such,17 or without the 
effective assistance of counsel,18 have also been held to be 
exertions of state authority in conflict with the funda­
mental rights protected by the Fourteenth Amendment.

But the examples of state judicial action which have 
been held by this Court to violate the Amendment’s com­
mands are not restricted to situations in which the judi­
cial proceedings were found in some manner to be pro- 
cedurally unfair. It has been recognized that the action 
of state courts in enforcing a substantive common-law 
rule formulated by those courts, may result in the denial 
of rights guaranteed by the Fourteenth Amendment, even 
though the judicial proceedings in such cases may have 
been in complete accord with the most rigorous concep­
tions of procedural due process.19 Thus, in American 
F ed era tion  o f  L abor v. Sw ing, 312 U. S. 321 (1941), en­
forcement by state courts of the common-law policy of 
the State, which resulted in the restraining of peaceful 
picketing, was held to be state action of the sort pro­
hibited by the Amendment’s guaranties of freedom of 
discussion.20 In C antw ell v. Connecticut, 310 U. S. 296 
(1940), a conviction in a state court of the common-law 
crime of breach of the peace was, under the circumstances 
of the case, found to be a violation of the Amendment’s 
commands relating to freedom of religion. In Bridges v. 
C alifornia , 314 U. S. 252 (1941), enforcement of the

17 See M o o n e y  v. H o lo h a n ,  294 U. S. 103 (1935); Pyle v. Kansu, 

317 U.S. 213 (1942).
18 P o w e ll  v . A la b a m a ,  287 U. S. 45 (1932) ; Williams v. Kaiser, 6U

IT. S. 471 (1945); T o m k in s  v . M isso u r i, 323 U. S. 485 (lWI 
D e M e e r l e e r  v . M ic h ig a n ,  329 U. S. 663 (1947). ,

19 In applying the rule of E r ie  R. C o . v . Tom pkins, 304 1 . •
(1938), it is clear that the common-law rules e n u n c ia te d  } staj 
courts in judicial opinions are to be regarded as a part o t e 
of the State. nQ,m.

20 And see B a k e r y  D r iv e r s  L o c a l  v . W o h l, 315 U . S. 7 (
C a fe te r ia  E m p lo y e e s  U n io n  v . A n g e lo s ,  320 U. S. 293 (194 )•

SH ELLEY v. KRAEMER.



SHELLEY v. K R A E M E R . 15

state’s common-law rule relating to contempts by publi­
cation was held to be state action inconsistent with the 
prohibitions of the Fourteenth Amendment.21 And cf. 
Chicago, Burlington and Q uincy R . C o. v. C hicago, 166 
U.S. 226 (1897).

The short of the matter is that from the tune of the 
adoption of the Fourteenth Amendment until the present, 
it has been the consistent ruling of this Court that the ac­
tion of the States to which the Amendment has reference, 
includes action of state courts and state judicial officials. 
Although, in construing the terms of the Fourteenth 
Amendment, differences have from time to time been ex­
pressed as to whether particular types of state action may 
be said to offend the Amendment’s prohibitory provisions, 
it has never been suggested that state court action is im­
munized from the operation of those provisions simply 
because the act is that of the judicial branch of the state 
government.

III.

Against this background of judicial construction, ex­
tending over a period of some three-quarters of a century, 
we are called upon to consider whether enforcement by 
state courts of the restrictive agreements in these cases 
may be deemed to be the acts of those States; and, if 
so, whether that action has denied these petitioners the 
equal protection of the laws which the Amendment was 
intended to insure.

he have no doubt that there has been state action 
in these cases in the full and complete sense of the phrase. 
The undisputed facts disclose that petitioners were willing 
purchasers of properties upon which they desired to es­
tablish homes. The owners of the properties were willing 
f  ers’ and contracts of sale were accordingly consum-

21 And see Pennekamp v. Florida, 328 U. S. 331 (1946); Craig v. 
" “me!/,331 U.S.367 (1947).



16 SH ELLEY v. KRAEMER.

mated. It is clear that but for the active intervention 
of the state courts, supported by the full panoply of state 
power, petitioners would have been free to occupy the 
properties in question without restraint.

These are not cases, as has been suggested, in which 
the States have merely abstained from action, leaving 
private individuals free to impose such discriminations 
as they see fit. Rather, these are cases in w h ich  the States 
have made available to such individuals the full coercive 
power of government to deny to petitioners, on the 
grounds of race or color, the enjoyment of property rights 
in premises which petitioners are willing and financially 
able to acquire and which the grantors are willing to sell, 
The difference between judicial enforcement and non­
enforcement of the restrictive covenants is the difference 
to petitioners between being denied rights of property 
available to other members of the community and being 
accorded full enjoyment of those rights on an equal 
footing.

The enforcement of the restrictive agreements by the 
state courts in these cases was directed pursuant to the 
common-law policy of the States as formulated by those 
courts in earlier decisions.22 In the Missouri case, en­
forcement of the covenant was directed in the first in­
stance by the highest court of the State after the trial 
court had determined the agreement to be invalid for 
want of the requisite number of signatures. In the Mich­
igan case, the order of enforcement by the trial court was 
affirmed by the highest state court.23 The judicial action

22 See Swain v. Maxwell, 355 Mo. 448, 196 S. W. 2d 780 d^b 
Koehler v. Rowland, 275 Mo. 573, 205 S. W. 217 (1918). J eea 
Parmalee v. Morris, 218 Mich. 625, 188 N. W. 330 (1922). 
Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925).

23 Cf. Home Telephone and Telegraph Co. v. Los n g e e s ,

U. S. 278 (1913); Raymond v. Chicago Union Traction to., 
U.S.20 (1907).



SHELLEY v. K R A E M E R . 17

in each case bears the clear and unmistakable imprimatur 
of the State. We have noted that previous decisions of 
this Court have established the proposition that judicial 
action is not immunized from the operation of the Four­
teenth Amendment simply because it is taken pursuant 
to the state’s common-law policy.24 Nor is the Amend­
ment ineffective simply because the particular pattern 
of discrimination, which the State has enforced, was de­
fined initially by the terms of a private agreement. State 
action, as that phrase is understood for the purposes of 
the Fourteenth Amendment, refers to exertions of state 
power in all forms. And when the effect of that action 
is to deny rights subject to the protection of the Four­
teenth Amendment, it is the obligation of this Court to 
enforce the constitutional commands.

We hold that in granting judicial enforcement of the 
restrictive agreements in these cases, the States have 
denied petitioners the equal protection of the laws and 
that, therefore, the action of the state courts cannot stand. 
We have noted that freedom from discrimination by the 
States in the enjoyment of property rights was among 
the basic objectives sought to be effectuated by the 
framers of the Fourteenth Amendment. That such dis­
crimination has occurred in these cases is clear. Because 
of the race or color of these petitioners they have been 
denied rights of ownership or occupancy enjoyed as a 
matter of course by other citizens of different race or 
color.-3 The Fourteenth Amendment declares “that all 
persons, whether colored or white, shall stand equal before 
the laws of the States, and, in regard to the colored race, 
for whose protection the amendment was primarily de- 
srgned, that no discrimination shall be made against them * 20

Bridges v. California, 314 U. S. 252 (1941); American Federation 
of Labor y. Swing, 312 U. S. 321 (1941).

20 See Yick Wo v. Hopkins, 118 U. S. 356 (1886); Strauder v. West 
'mma, 100 U. S. 303 (1880); Truax v. Raich, 239 U. S. 33 (1915).



18

by law because of their color.” 26 Strauder v. West Fir- 
ginia, supra  at 307. Only recently this Court has had 
occasion to declare that a state law which denied equal 
enjoyment of property rights to a designated class of 
citizens of specified race and ancestry, was not a legitimate 
exercise of the state’s police power but violated the guar­
anty of the equal protection of the laws. Oyama v. Cali­
forn ia , 332 U. S. 633 (1948). Nor may the discrim ina­
tions imposed by the state courts in these cases be justified 
as proper exertions of state police power.27 Cf. Buchanan 
v. W a rley , supra.

Respondents urge, however, that since the state courts 
stand ready to enforce restrictive covenants excluding 
white persons from the ownership or occupancy of prop­
erty covered by such agreements, enforcement of coven­
ants excluding colored persons may not be deemed a 
denial of equal protection of the laws to the colored per­
sons who are thereby affected.28 This contention does 
not bear scrutiny. The parties have directed our atten­
tion to no case in which a court, state or federal, h a s  been 
called upon to enforce a covenant excluding m e m b e r s  of 
the white majority from ownership or occupancy of real 
property on grounds of race or color. But there are more 
fundamental considerations. The rights created b y  the

26 Restrictive agreements of the sort involved in these cases have 
been used to exclude other than Negroes from the ownership or 
occupancy of real property. We are informed that such agreement! 
have been directed against Indians, Jews, Chinese, Japanese, Mexi­
cans, Hawaiians, Puerto Ricans, and Filipinos, among others.

27 See Bridges v. California, 314 U. S. 252, 261 (1941); Cantwelli 
Connecticut, 310 U. S. 296, 307-308 (1940).

28 It should be observed that the restrictions relating to residentia 
occupancy contained in ordinances involved in the Buchanan, Hai moi- 
and Deans cases, cited supra, and declared by this Court to be inM 
sistent with the requirements of the Fourteenth Amendment, app'e 
equally to white persons and Negroes.

SH ELLEY v. KRAEMER.



SHELLEY v. K R AEM ER . 19

first section of the Fourteenth Amendment are, by its 
terms, guaranteed to the individual. The rights estab­
lished are personal rights.29 It is, therefore, no answer to 
these petitioners to say that the courts may also be in­
duced to deny white persons rights of ownership and 
occupancy on grounds of race or color. Equal protection 
of the laws is not achieved through indiscriminate impo­
sition of inequalities.

Nor do we find merit in the suggestion that property 
owners who are parties to these agreements are denied 
equal protection of the laws if denied access to the courts 
to enforce the terms of restrictive covenants and to assert 
property rights which the state courts have held to be 
created by such agreements. The Constitution confers 
upon no individual the right to demand action by the 
State which results in the denial of equal protection of 
the laws to other individuals. And it would appear be­
yond question that the power of the State to create and 
enforce property interests must be exercised within the 
boundaries defined by the Fourteenth Amendment. Cf. 
Marsh v. Alabama, 326 U S. 501 (1946).

The problem of defining the scope of the restrictions 
which the Federal Constitution imposes upon exertions of 
power by the States has given rise to many of the most 
persistent and fundamental issues which this Court has 
been called upon to consider. That problem was fore­
most in the minds of the framers of the Constitution, 
and since that early, day, has arisen in a multitude of 
forms. The task of determining whether the action of 
a State offends constitutional provisions is one which may 
not be undertaken lightly. Where, however, it is clear 
that the action of the State violates the terms of the

JMcCobe v. Atchison, Topeka & Santa Fe R. Co., 235 U. S. 151, 
io « f  (1914)’ Missouri ex rel Gaines v. Canada, 305 U. S. 337 

0yama\. California, 332 U. S. 633 (1948).



fu n dam en ta l charter, it  is the obligation of this Court® 
to  declare.

T h e  h istorica l con tex t in w hich the Fourteenth Amend­
m en t becam e a part o f  the Constitution should not be 
forgotten . W h atever else the framers sought to achieve, 
it  is clear th a t the m atter o f  prim ary concern was the 
establishm ent o f  equ a lity  in the enjoyment of basic civil 
and p o litica l rights and the preservation of those rights 
from  d iscrim in atory  action  on the part of the States based 
on  considerations o f  race or color. Seventy-five years ago 
this C ou rt an nou n ced  that the provisions of the Amend­
m en t are to  be  construed  w ith  this fundamental purpose 
in  m in d .30 U p on  fu ll consideration, we have concluded 
that in these cases the States have acted to deny peti­
tioners the equal p rotection  o f  the laws guaranteed by 
the F ourteenth  A m en dm ent. H aving so decided , we find 
it unnecessary to  consider whether petitioners have also 
been  deprived  o f  p rop erty  w ithout due process of law 
or den ied  priv ileges and im m unities of citizens of the 
U n ited  States.

F or the reasons stated, the judgm ent of the Supreme 
C ourt o f  M issouri and the judgm ent of the Supreme 
C ou rt o f  M ich iga n  m ust be reversed.

Reversei

M r . Justice R eed, M r . Justice Jackson, and Mb. Jus­
tice R utledge took  n o  part in the consideration or 
decision  o f  these cases.

2 0  S H E L L E Y  v. K R A E M E R .

30 Slaughter-House Cases, 16 Wall 36, 81 (1873); Straudif 
West Virginia, 100 U. S. 303 (1880). See Flack, The Adoption oj ■ 
Fourteenth Amendment.



Supreme Court of tlie United States
October Term, 1947 

No. 72
J. D . S H E L L E Y ,  e t al., P e t it io n e r s , 

v .
LO U IS K R A E M E R  an d  F E R N  E . K R A E M E R ,  R e s p o n d e n ts .

On Writ of Certiorari to the Supreme Court of the State of Missouri.

No. 87
ORSEL M cG H E E  and M I N N I E  S. M c G H E E ,  his w ife , P e tit io n e rs ,

v.
BEN JAM IN  J. S I P E S  an d  A N N A  C . S I P E S ,  J A M E S  A  C O O N  

and A D D I E  A . C O O N , et al., R e s p o n d e n ts .
On Writ of Certiorari to the Supreme Court of the State of Michigan.

No. 290
JA M E S  M . H U R D  an d  M A R Y  I. H U R D ,  P e tit io n e rs , 

v .
FREDERIC E. H O D G E , L E N A  A . M U R R A Y  H O D G E ,  P A S Q U A L E  

D e R IT A , V I C T O R I A  D e R I T A ,  e t al., R e s p o n d e n ts .
On Writ of Certiorari to the United States Court of Appeals 

for the District of Columbia.

IN  T H E

No. 291
R A P H A E L  G. U R C I O L O , R O B E R T  H . R O W E ,  I S A B E L L E  J. 

R O W E , H E R B E R T  B . S A V A G E ,  et al., P e t it io n e r s , 
v .

FREDERIC E. H O D G E , L E N A  A . M U R R A Y  H O D G E ,  P A S Q U A L E  
D e R IT A , V I C T O R I A  D e R I T A ,  et al., R e s p o n d e n ts .

On Writ of Certiorari to the United States Court of Appeals 
for the District of Columbia.

CONSOLIDATED BRIEF IN BEHALF OF 
.American Jewish Committee 

I • l (Anti-Defamation League)
ewtsh War Veterans of the United States of America 

Jewish Labor Committee 
As Amici Curiae

Newman Levy 
Sol Raskin 
Jacob Schaum

Of Counsel

Joseph M . P roskauer  
Jacob Gr u m et

Attorneys for
American Jewish Committee 
B'nai B ’rith (Anti-Defamation League) 
Jewish W ar Veterans of the United 

States of America 
Jewish Labor Committee

BAH PRESS. IN C .. 4 7  W EST S T ., N E W  Y O R K . BO. 9 -----0 1 5 7  - 8





TABLE OF CONTENTS

PAGE

Interest o f the Amici .....................................................................  2

Opinions Below  ................................................................................. 5

Jurisdiction .......................................................................................... 5

Statement o f F acts  ......................................................................  6

Summary o f the A r g u m e n t ............................................................ 7
Argument:

I. The Judicia l E n fo rce m e n t o f  R a c ia l  R e s tr ic t iv e
Covenants in  the M ich iga n  a n d  M is s o u r i C a ses  
Is a V io la tion  o f  the D u e  P r o c e s s  C la u se  o f  th e  
Fourteenth A m en dm en t to  the C o n s t itu t io n ; 
and o f Sections 1977 an d  1978 o f  th e  R e v is e d  
Statutes (8 IJ. S. C ., S ecs . 41, 4 2 ) ............................  9

A. The R ig h t o f _ a  C itizen  to  A c q u ir e , O w n ,
E n joy  and D isp o se  o f  P r o p e r t y  W ith o u t  
D iscrim in ation  as to  R a ce  o r  C o lo r  I s  a 
F edera l C iv il R ig h t  P r o te c te d  b y  th e  C o n ­
stitution .....................................................................  9

B. State A c t io n  D e p r iv in g  a  P e r s o n  o f  the 
O w nership, U se  o r  O ccu p a n cy  o f  P r o p ­
erty S o M y  B eca u se  o f  H is  R a c e  o r  C o lo r  
Is F orb id d en  b y  the D u e  P r o c e s s  C lau se
o f the F ou rteen th  A m e n d m e n t .....................  16

C. The D ecrees o f  the S ta te  C o u rts  W e r e  
F orb idden  S ta te  A c t io n  a n d  T h e r e fo r e  
V iolated  the D u e P r o c e s s  C la u se  o f  the
f  ourteen! h A m en d m en t .................................... 1 7

(a ) J u d ic ia l A c t io n  I s  S ta te  A c t io n  .... 17

(b ) T he D ecrees  H e re in  A r e  F o r b id d e n  
S tate A c t io n  a n d  T h e r e fo r e  V io la te
the F ou rteen th  A m e n d m e n t .............  20



11 Index

I I .  T h e  J u d ic ia l E n fo r c e m e n t  o f  R acial Restric­
t iv e  C ov e n a n ts  in  the M ich iga n  and Missouri 
C a ses  I s  a V io la t io n  o f  the E qual Protection 
C lau se  o f  the F o u r te e n th  Am endm ent to the

PAGE

C o n st itu t io n  ...................................................................  24

I I I .  T h e  J u d ic ia l E n fo r c e m e n t  o f  the Racial Re­
s tr ic t iv e  C oven a n ts  in  the D istr ict o f Columbia 
C a ses  V io la te s  th e  D u e  P ro ce ss  Clause of the 
F i f t h  A m e n d m e n t an d  S ection  1978 of the 
R e v is e d  S ta tu tes  (8 U . S . C ., Sec. 4 2 ) ..............  33

I V . T h e  C a se  o f  Corrigan  v. Buckley Did Not De­
c id e  th e  Q u estion s  P re se n te d  Herein .................. 34

C o n c lu s io n  .................................................................   36

A p p e n d ix  ......................................................................................... 37

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

A d k in s  v . C h ild r e n ’ s H o s p ita l, 261 U . S. 525 
A llg e y e r  v . S ta te  o f  L o u is ia n a , 165 U . S. 578

B a u m a n n  v . P in ck n e y , 118 N . Y . 604 ...........................
B o w le s  v . W illin g h a m , 321 U . S. 503 ...........................
B r id g e s  v . C a lifo rn ia , 314 U . S . 52 
B r in k e r h o f f -F a r is  T r u s t  C o. v . H ill, 281 U. S. 673 .... 
B u ch a n a n  v . W a r le y , 245 U . S. 60 10,12, lo, 16,

25,26,31

C a n tw e ll v . C on n ecticu t , 310 U . S. 296
C a r e y  v . C ity  o f  A t la n ta , 143 G a. 192, 84 S. E. 4o6 ....
C a rte r  v . T e x a s , 177 U . S . 442 ......................
C h ica g o  B . & Q. R . C o. v . C h ica g o , 166 U. S. 226 ■
C iv il R ig h ts  C a ses , 109 U. S . 3 .................. W W 110 £
C lin a rd  v . C ity  o f  W in s to n -S a le m , 217 N. C. H >

S . E . (2 d )  867 .........................................................................
C o r r ig a n  v . B u ck le y , 271 U . S . 323 ...............................

2 2 , 23,

19 
16 
32
20 

21,33

16
8,34

E x  P a r te  V ir g in ia , 100 U . S . 339

F a y  v . N ew  Y o r k , 331 U . S . , 91 Law  Ed. Adv. 
O p in io n  1517 (N o . 377, d e c id e d  June 23,

24



In d ex iii

PAGE

Gandolfo v. H artm an, 49 F e d . 1 8 1 ........................................  23

Hall v. DeCuir, 95 II. S. 485 ....................................................  12
Harmon v. Tyler, 273 U . S. 668 .............................................  16, 22
Heiner v. Donnan, 285 IT. S . 3 1 2 ........................................... 33
Hill v. Texas, 316 U. S. 400 ....................................................... 31
Hirabayashi v. IT. S., 320 IT. S . 8 1 ........................................  32
Holden v. H ardy, 169 IT. 8 . 366 .............................................  12
Holmes v. G ravenhorst, 263 N . T .  1 4 8 ............................... 12
Home Tel. & Tel. Co. v . L o s  A n g e le s , 227 U . S . 278 .... 32
Hurd v. Hodge, No. 290 .........................................................5, 6,7 ,1 1
Hurd v. Hodge, 162 F . (2 d ) 233 .............................................  5, 23
Hurtado v. C alifornia, 110 IT. S . 5 1 6 ...................................  33

Jackson v. State, 132 M d. 3 1 1 ,1 0 3  A . 9 1 0 .........................  16

Korematsu v. U. S., 323 IT. S . 214 26

Liberty Annex C orp. v . C ity  o f  D a lla s , 289 S . W .
1067 ...............................................................................................  16

Long Island W ater S u p p ly  C o. v . B r o o k ly n , 166 IT. S .
685 .................................................................................................  29

McCabe v. A tchison, T . & S . F . R . C o ., 235 IT. S . 141 28
McGhee v. Sipes, N o. 87 ...........................................................  5, 6, 7
Marsh v. Alabama, 326 IT. S . 5 0 1 ........................................... 17
Missouri ex rel. G aines v . C anada , 305 U . S . 337 ......... 28
Mitchell v. IT. S., 313 IT. S. 8 0 ................................................. 28

Nebbia v. New Y ork , 291 U . 8 . 502 ......................................
Norman v. B altim ore an d  O h io  R a ilr o a d  C o., 294 

U. S. 240 ........................

Powell v. Alabam a, 287 IT. S . 45

Raymond v. Chicago U n ion  T r a c t io n  C o ., 207 U . S . 20 
Richmond v. Deans, 281 U . S. 704 ........................................

Shelley v. K raem er, 198 S. W . ( 2d )  679 ............................
fenelley v. K raem er, N o. 72 ..........
bipes v. McGhee, 316 M ich . 614, 25 N . w ! ' (2 d )  6 3 8 ""  
smith y. Loughman, 245 N . Y . 486
? t Wdei 1̂  H ughes, 321 U . S . 1  ........
state of W ashington ex rel. S ea ttle  T it le  T r u s t  C o. 

v. Roberge, 278 U . S. 116 .........................................

30

29

19

32
16

5 ,6
5

5 ,2 7  
27 
32

12



iv Index

S te e le  v . L o u is v il le  a n d  N a sh v ille  R a ilroa d  Co., 323

PAGE

U . S . 192 ...................................................................................  13
S te r lin g  v . C on sta n tin , 287 U . S . 378 ......................... lj
S tra u d e r  v . W e s t  V a ., 100 TJ. S . 303 ........................... 21,24
T e r r a c e  v . T h o m p s o n , 263 IT. S . 197 ...................... 12,14, IS

T e r r a c e  v . T h o m p s o n , 274 F e d . 841 .............................  14
T r u a x  v . C o r r ig a n , 257 IJ. S . 3 1 2 ..................................  15
T w in in g  v . N e w  J e r s e y , 211 IT. S . 7 8 ...........................19,33
T y le r  v . H a rm o n , 158 L a . 439 .........................................  22

IT rcio lo  v . H o d g e , N o . 2 9 1 .............................................. 5,6,7,11
U r c io lo  v . H o d g e , 162 F . (2 d )  233 ...............................  5

V ir g in ia  v . R iv e s , 100 IJ. S . 313 ....................................  1

O T H E R  A U T H O R I T I E S  CITED

F if t h  A m e n d m e n t .8,33,31

T h ir te e n th  A m e n d m e n t ....................................................... 34,48

F o u r te e n th  A m e n d m e n t ..................7 ,8 ,9 ,10,12,13,14,
24, 25, 31,32,33,34, 3a

R e v is e d  S ta tu te s , S e c t io n  1977 .............................V 't
S e c t io n  1978 ......................... 8,9,10,33,
S e c t io n  1979 ...................................  *

8 U n ite d  S ta tes  C o d e , S e c t io n  41
S e c t io n  42

....8,9,31
8,9,10,33,31

J u d ic ia l  C o d e , S ec . 237 (28  U . S. C., Sec. 344(b)) 
S ec . 240 (2 8  U . S . C., Sec. 347(a)) ■■

C iv il R ig h ts  A c t s  ...................................................................
M cG o v n e y , D . O ., Racial Residential Segregation by 

S tate Court E nforcem ent o f  Restrictive ^9™ 
m ents, Covenants or Conditions in Reeds Is  ̂
constitutional, 33 C a lif . L a w  R e v . 5 ......................



IKT T H E

Supreme C ourt o f  th e  U n ite d  S ta te s
October Term, 1947

No. 72
J. D. SHELLEY, et al., Petitioners, 

v.
LOUIS KRAEMER and FERN E. KRAEMER, Respondents.

On Writ of Certiorari to the Supreme Court o f the State o f Missouri.

No. 87
ORSEL McGHEE and MINNIE S. McGHEE, his wife, Petitioners,

v.
BENJAMIN J. SIPES and ANNA C. SIPES, JAMES A COON 

and ADDIE A. COON, et al., Respondents.
On Writ of Certiorari to the Supreme Court of the State of Michigan.

No. 290
JAMES M. HURD and MARY I. HURD, Petitioners, 

v.
FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 

DeRITA, VICTORIA DeRITA, et al., Respondents.
On Writ of Certiorari to the United States Court of Appeals 

for the District of Columbia.

No. 291
RAPHAEL G. URCIOLO, ROBERT H. ROW E, ISABELLE J. 

ROWE, HERBERT B. SAVAGE, et al., Petitioners,
V.

FREDERIC E. HODGE, LENA A. MURRAY HODGE, PASQUALE 
DeRITA, VICTORIA DeRITA, et al., Respondents, 

n Writ of Certiorari to the United States Court of Appeals 
for the District of Columbia.

CONSOLIDATED BRIEF IN BEHALF OF

Jewish
d > . American Jewish Committee 

nai B’rith (Anti-Defamation League) 
ar Veterans of the United States of America 

Jewish Labor Committee 
As Amici Curiae



2

Interest o f the Amici

T h is  b r ie f  is  filed  o n  b e h a lf  o f  the following organi­
za tio n s  :x

A m e r ic a n  J e w is h  C om m ittee  
B ’n a i B ’ r ith  (A n ti-D e fa m a t io n  League) 
J e w is h  L a b o r  C om m ittee  
J e w is h  W a r  V e te ra n s  o f  the United States of 

A m e r ic a

E a c h  o f  th ese  o rg a n iz a t io n s  has am ong its fundamental 
ten ets  th e  p r e s e r v a t io n  o f  the righ ts guaranteed every 
c it iz e n  b y  o n r  F e d e r a l C on stitu tion . Each has recognized 
th a t a n y  in v a s io n  o f  th e  d e m o cra tic  right o f  any individual 
o r  g r o u p  u n d erm in es  the fou n d a tion  o f our democratic 
system .

O rg a n iza t io n s  d e d ica te d  to  the defense of America! 
d e m o c r a c y  ca n n o t s ta n d  b y  s ilen tly  while th e  residential 
a re a s  o f  o u r  c it ie s  a n d  tow n s  are  overrun by a spreading 
f lo o d  o f  r e s t r ic t iv e  co v e n a n ts  ban n in g  occupancy by mem­
b e rs  o f  sp e c if ic  r a c ia l o r  re lig io u s  groups. T h e  dangers 
to  o u r  d e m o c r a t ic  w a y  o f  l i fe  a ris in g  from  racial residen­
t ia l s e g r e g a t io n  a re  o b v io u s . O rganizations such as those 
s p o n s o r in g  th is  b r ie f  ca n n o t acqu iesce in the application 
in  A m e r ic a  o f  d is c r im in a to r y  practices to so vital an

a sp e c t  o f  o u r  e c o n o m y  as h ou s in g .
In  1890 S a n  F r a n c is c o  sou gh t to achieve racial zoning 

b y  a d o p t in g  a n  o rd in a n ce  b a rr in g  Chinese from living 
c e r ta in  a re a s  o f  th e  c ity . T h is  w as follow ed by the ena  ̂
m en t o f  s im ila r  o rd in a n ce s  d irected  against Negroes  ̂
s e v e ra l so u th e rn  a n d  b o r d e r  cities. In  1917, 
h o ld in g  b y  th is  c o u r t  th a t such  ordinances were nn

1 A  short description of each of the organizations is atta 
appendix to this brief.



3

tutional placed an in su rm ou n tab le  o b s ta c le  in  the w a y  o f  
efforts to achieve racia l re s id e n tia l s e g re g a t io n  b y  le g is ­
lation. Thereafter, those seek in g  to  e x ten d  th e  p a tte r n  o f  
racial segregation fou n d  a n ew  a n d  b e tte r  m ean s o f  
achieving their goal. T h e y  se ized  u p o n  th e  a n cien t an d  
well established device  o f  the p r iv a te  r e s tr ic t iv e  co v en a n t 
barring from  a n e ig h b orh ood  u ses  d e tr im e n ta l to  the 
health or com fort o f  th ose r e s id in g  in  it, su ch  as g lu e  o r  
soap factories, livery  stables, ch a rn e l h ou ses , a n d  b ro th e ls . 
They adapted the p r iv a te  re s tr ic t iv e  co v e n a n t to  th e ir  
needs, revising it to ba r— in stea d  o f  sp e c ifie d  u ses— o c c u ­
pancy by those racia l, re lig io u s , o r  e th n ic  g r o u p s  w h ich  
they considered undesirable . T h e  u se  o f  th is  n ew  te ch ­
nique spread with om inou s r a p id ity , p r im a r ily  b eca u se  
many state courts upheld  and  e n fo r c e d  the n e w  c o v e n a n t s ; 
nearly always the cou rts  fa ile d  to  d is t in g u ish  b e tw een  a 
covenant barring an ob n ox iou s  u se  a n d  a c o v e n a n t  b a r r in g  
residential occupancy b y  m em b ers  o f  sp e c if ic  ra c ia l o r  
religions groups.

The racial restrictive  cov en a n t is  an  in stru m en t o f  
bigotry giving aid  and c o m fo r t  to  r a c ia l a n d  re lig io u s  
prejudice. Im plicit in  such a co v e n a n t is  the a n ti-d e m o ­
cratic and false racist d octr in e  th at u n d e s ira b le  so c ia l 
traits are an attribute n ot o f  the in d iv id u a l bu t o f  a ra c ia l 
or religious group. Such  cov en a n ts  c la s s ify  an  in d iv id u a l 
not on the basis o f  h is b eh a v io r , bu t on  th e  b a s is  o f  h is  
racial origin. T hey w ou ld  d en y  the fr e e  ch o ice  o f  a h om e 
to a Carver, C ardozo, or L in  Y u ta n g  m e r e ly  b eca u se  o f  
color or religion. T h ey  a scr ib e  so c ia l o b je c t io n a b il i ty  to  
unborn generations.

Slums and ov ercrow d in g  a re  the in e sca p a b le  c o n co m i­
tants of restrictive coven an ts an d  ra c ia l s e g re g a tio n . 
Death, disease and crim e are the n o to r io u s  sp a w n  o f  o v e r ­
crow ding. Inter-group stresses an d  ten s ion s  w h ich  th rea ten  
°m democratic state a rise  in e v ita b ly  w h en  ra c ia l o r  re li-



4

g io u s  g r o u p s  fin d  th em se lv es  is o la te d  within 
a n d  fo r c e d  to  liv e  in  c ircu m scr ib ed  segregated 
C le a r ly , th e  g r o w in g  fu s io n  o f  in terest o f America’s 
ra c ia l, r e lig io u s , a n d  e th n ic  g ro u p s , the free interchange of 
v a r y in g  cu ltu ra l v ie w p o in ts , the development of mutual 
to le ra n ce  a n d  con fid en ce  a m on g  ou r  citizens— requisites for 
th e  s tre n g th e n in g  a n d  fu lfillm en t o f  our dem ocracy-are 
d a n g e r o u s ly  im p e d e d  b y  re s tr ic t iv e  covenants. It is not 
s u r p r is in g  th a t th e  P r e s id e n t ’s C om m ittee On Civil Eights 
fo u n d  th a t “ s e g re g a t io n  is  an  obstacle to
h a rm o n io u s  r e la t io n s h ip s  a m on g  g rou p s”  and recom­
m e n d e d  v ig o r o u s  a c t io n  to  ou tla w  restrictive covenants.

A lth o u g h  N e g r o e s  h a v e  su ffe red  m ost from the wide­
s p r e a d  u se  o f  r e s t r ic t iv e  cov en a n ts , m any other groups in­
c lu d in g  M ex ica n s , S p a n ish  A m erican s , Orientals, Arme­
n ia n s , H in d u s , S y r ia n s , T u rk s , Jew s, and C atholics have 
fo u n d  su ch  co v e n a n ts  b a r r in g  them  from  many residential 
a rea s  in  m a n y  c it ie s . I n  a  recen t case in C a lifo r n ia  a full- 
b lo o d e d  A m e r ic a n  In d ia n  w a s ord ered  by the court to 
v a ca te  h is  h om e  b eca u se  o f  a lim itation  upon occupancy 
to  C a u ca sia n s  o n ly . I n  a M a ry la n d  suburb of Washington,
D . C ., a  g r o u p  o f  h o m e  ow n ers , seeking to enforce a restric­
t iv e  co v e n a n t a g a in s t  J e w s , p e tit ion ed  the M a ry la n d  com. 
f o r  a d e cre e  d ir e c t in g  a n on -J ew ish  w ife  to oust her Jewish 
h u sb a n d  f r o m  th e ir  jo in t ly  ow n ed  home. This is t*e 
re d u c t io  a d  a b su rd u m  to  w h ich  ra c ia l restrictive covenant.

lead. ,
The impact of the racial restrictive covenant does ^

end at the water’s edge. In many lands the Presfagê  
American democracy suffers because our practice m ■ 
field of race relations does not always square W1  ̂
ideals. Even now, democracy is engaged in a wor 
struggle to demonstrate its supremacy over con en 
political idealogies. The refusal of judicial supp°



0

racial restrictive covenants w ill re m o v e  a  p o w e r fu l  p r o p a ­
ganda weapon fro m  the h an d s o f  d e m o c r a c y  ’ s o p p o n e n ts .

The organizations s p o n s o r in g  th is  b r ie f  a re  p e cu lia r ly  
alert to the dangers to  d e m o cra cy  a r is in g  f r o m  ra c ia l o r  
religious residential seg reg a tion . J e w ish  e x p e r ie n ce  u n d er  
European despotism  gave  r ise  to  the w o r d  ‘ ‘ g h e tto  ’ ’ . T h e  
threat of revival o f  that in s titu tion — im p lic it  in  th e  m u sh ­
room growth in a lm ost e v e ry  m a jo r  A m e r ic a n  c it y  o f  ra c ia l 
restrictive covenants— dem an ds in te rce ss io n  in  th ese  ca ses .

All parties to the cases f o r  r e v ie w  h e re in  h a v e  g iv e n  
their consent to the filin g  o f  th is  b r ie f  amicus curiae.

Opinions Below

The opinion o f  the S u p rem e C o u r t  o f  M is s o u r i in  Shel­
ley v. Kraemer (R . 153) is  r e p o r te d  in  198 S . W . (2 d )
679.

The opinion o f  the S u p rem e  C o u r t  o f  M ich ig a n  in  
McGhee v. Sipes (R . 87) is  r e p o r te d  in  316 M ich . 614, 25 
N. W. (2d) 638.

The opinion o f  the U n ited  S ta tes  C o u r t  o f  A p p e a ls  in  
Kurd v. Hodge and Urciolo v . H odge  (R .  417 -432 ) is  r e ­
ported in 162 F . (2 d ) 233.

Jurisdiction

Jurisdiction o f  th is C ou rt o f  b o th  Shelley  v . K raem er  
Ao. 72) and McGhee v. Sipes (N o . 8 7 ) is  in v o k e d  u n d er  
Section 237 o f the J u d ic ia l C od e  (28  U . S . C ., S ec . 344  ( b ) ) .

Jurisdiction o f  Hurd v. H odge  (N o . 290 ) a n d  o f  Urciolo 
v. lodge (No. 291) is  in v ok ed  u n d e r  S e c t io n  240 o f  th e  
Judicial Code (28 U . S. C ., S ec. 347 ( a ) ) .



6

T h e  ju d g m e n t  s o u g h t  to  he review ed in Shelley i 
K ra em er  w a s  e n te re d  b y  th e  S u p rem e Court of the State 
o f  M is s o u r i  o n  D e ce m b e r  9, 1946, M otion  for rehearing 
w a s  filed  o n  D e ce m b e r  24, 1946, an d  denied on January 13, 
1947. P e t it io n  f o r  c e r t io r a r i  w a s filed in this Court on 
A p r i l  21, 1947, a n d  w a s  g ra n te d  J u n e  23, 1947.

T h e  ju d g m e n t  so u g h t to  b e  rev iew ed  in McGhee v. Sipes 
w a s  e n te re d  in  the S u p re m e  C o u rt  o f  the State of Michi­
g a n  o n  J a n u a r y  7, 1947. A p p lic a t io n  fo r  rehearing was 
filed  on  J a n u a r y  23, 1947, a n d  d en ied  M arch 3, 1947. Peti­
t io n  f o r  c e r t io r a r i  w a s  file d  in  th is C ourt on May 10,1917, 
a n d  g ra n te d  J u n e  23, 1947.

T h e  ju d g m e n ts  so u g h t to  be rev iew ed  in Hurd v. Hoke 
a n d  Urciolo  v . H odge  w e re  en tered  b y  the United States 
C o u rt  o f  A p p e a ls  f o r  th e  D is tr ic t  o f  Columbia on M a y  26, 
1947. M o t io n  f o r  r e h e a r in g  w a s denied June 23,1917. 
C o n so lid a te d  p e t it io n s  f o r  ce r t io ra r i, filed on August 22, 
1947, w e re  g ra n te d  o n  O cto b e r  20, 1947.

Statement of Facts

T h e re  a re  fo u r  ca ses  h ere in  in volv ing the validity of 
ju d ic ia l  e n fo r ce m e n t  o f  ra c ia l restrictive  covenants: one 
o r ig in a t in g  in  S t. L o u is , M is s o u r i ; one from  Detroit, Mich­
ig a n  ; an d  tw o  c o n s o lid a te d  a ction s  from  the District o 
C o lu m b ia . T h e  p u r p o s e  o f  the covenants was to preserve 
th e  re s p e c t iv e  n e ig h b o rh o o d s  f o r  w hite residents only, M 
to  p re v e n t  th e  o c c u p a t io n  o f  the restricted property 1 
N e g ro e s .

I n  Shelley  v . K raem er, N o . 72, the Missouri case, the 
co v e n a n t  p r o h ib it in g  ow n e rsh ip  and  occupancy was ma  ̂
in  1911 a n d  w a s  to  ru n  f o r  f i f ty  years. The tna c0 
d e c id e d  in  fa v o r  o f  the N e g r o  purchasers, but t is J



7

ment was reversed on  a p p ea l w ith  d ir e c t io n  th a t a d e cre e  
be entered holding the re s tr ic t io n s  v a lid  a n d  g r a n t in g  the 
relief sought by  the p la in tiffs .

In McGhee v. Sipes, N o. 87, the M ich ig a n  ca se , th e  c o v e ­
nant, made in 1934, w as to  ru n  f o r  tw en ty -fiv e  y e a r s . I t  
prohibited use and o ccu p a n cy  b y  n o n -C a u ca s ia n s , and was 
not to become effective  u n til at le a s t  e ig h ty  p e r ce n t  o f  
the frontage on the b lock  w a s c o v e r e d  b y  th e  sam e o r  a 
similar restriction. T h e  tr ia l c o u r t  g ra n te d  th e  r e lie f  
sought by the p la intiff, and  the ju d g m e n t  w a s a ffirm ed  on  
appeal.

In Hurd v. Hodge, N o . 290, a n d  Urciolo  v . H odge, N o . 
291, the consolidated D is tr ic t  o f  C o lu m b ia  ca ses , th e  r e ­
strictions were against a lien a tion  to  N e g ro e s , a n d  w e re  
perpetual. U rciolo, one o f  the p e t it io n e rs , is  w h ite ; the 
others are N egroes. T h e  tr ia l c o u r t  r e n d e re d  ju d g m e n t , 
divesting the N egro p u rch a sers  o f  tit le , e n jo in in g  the w h ite  
owners from  renting, lea sin g , o r  c o n v e y in g  th e  p r o p e r ty  
to Negroes, and ord er in g  the N e g r o  p u rch a se rs  to  v a ca te  
the premises. This w as affirm ed o n  a p p e a l, w ith  M r. J u s ­
tice Edgerton dissenting.

Summary of the Argument

These cases present to th is C o u rt  sq u a re ly  f o r  th e  firs t  
time the validity o f  ju d ic ia l e n fo rce m e n t  o f  r e s tr ic t iv e  
covenants that bar the sale to  o r  the o c cu p a n cy  b y  N e g ro e s
°f real property. T he fo l lo w in g  a rg u m en ts  w ill  b e  u r g e d  
by this brief:

!• The decrees o f  the M iss o u r i a n d  M ich ig a n  C ou rts  
cprived the petitioners o f  th e ir  p r o p e r t y  w ith o u t  du e 

process of law in v io la tion  o f  the F o u r te e n th  A m e n d m e n t



8

t o  the C o n s t itu t io n ; a n d  w e re  in  v io la tion  of Sections 1977 
a n d  1978 o f  th e  R e v is e d  S ta tu tes  (8 U . S. C., Secs. 41,42),

I I .  T h e  d e cre e s  o f  th e  M is s o u r i and Michigan Courts 
d e n ie d  to  the p e t it io n e rs  eq u a l p rotection  o f the law in 
v io la t io n  o f  th e  F o u r te e n th  A m en dm ent to the Consti­
tu tion .

I I I .  T h e  d e cre e s  o f  th e  D is tr ic t  o f  Columbia Court 
d e p r iv e d  th e  p e t it io n e r s  o f  th e ir  property  without due 
p ro c e s s  o f  la w  in  v io la t io n  o f  the F ift h  Amendment to the 
C o n s t itu t io n ; a n d  w e re  in  v io la t io n  o f  Section 1978 of the 
R e v is e d  S ta tu te s  (8 U . S . C ., Sec. 4 2 ).

I Y . T h e  q u e stio n s  r a is e d  b y  the present cases have 
n e v e r  b e e n  d e c id e d  b y  th is  C ou rt. The case of Corrigm 
v. B uckley, 271 U . S . 323, fre q u e n tly  relied on to sustain 
the c o n s t itu t io n a lity  o f  ra c ia l re str ictiv e  covenants, did not 
d e c id e  th e  q u e s tio n s  p re s e n te d  herein .

In a sm u ch  as th e  m a n y  m o re  questions involved in these 
ca ses  a re  fu l ly  c o v e r e d  in  th e  m ain  briefs submitted by 
th e  p e t it io n e r s  h e re in , w e  a re  con fin ing ourselves in this 
amicus b r ie f  to  th e  in v a lid ity  o f  jud icia l enforcement of 
r a c ia l r e s t r ic t iv e  c o v e n a n ts  u n d er the F ifth  and Fourteenth 
A m e n d m e n ts  o f  th e  C on stitu tion , and under Sections 197 
a n d  1978 o f  the R e v is e d  S ta tu tes  (8 U . S. C., Secs. 41,42).



9

I

The judicial enforcement of racial restrictive cove­
nants in the Michigan and Missouri cases is a violation 
of the Due Process Clause of the Fourteenth Amend­
ment to the Constitution; and of Sections 1977 and 
1978 of the Revised Statutes (8  U. S. C., Secs. 41, 42) .

A. The right of a citizen to acquire, own, enjoy and 
dispose of property without discrimination as to race or 
color is a federal civil right protected by the Constitution.

Section 1977, R ev ised  S ta tu tes  (8  U . S . C ., S ec . 4 1 ) 
provides:

All persons w ith in  th e  ju r is d ic t io n  o f  th e  U n ite d  
States shall have the sam e r ig h t  in  e v e r y  S ta te  an d  
Territory to m ake an d  e n fo r c e  co n tra c ts , to  su e , be 
parties, give evidence, an d  to  th e  fu l l  a n d  eq u a l ben efit 
of all laws and p ro ce e d in g s  f o r  th e  s e c u r ity  o f  p e rs o n s  
and property as is e n jo y e d  b y  w h ite  c it iz en s , a n d  shall 
be subject to like pu n ish m en t, p a in s , p e n a lt ie s , ta x es , 
licenses, and exaction s o f  e v e r y  k in d , a n d  to  n o  o th er .

Section 1978, R ev ised  S ta tu tes  (8 U . S . C ., S ec . 4 2 )
provides:

All citizens o f  the U n ite d  S ta tes  sh a ll h a v e  the 
same right, in  ev ery  S ta te  a n d  T e r r it o r y , as  is  e n jo y e d  
by white citizens th e re o f to  in h erit , p u rch a se , lea se , 
sell, hold, and con v ey  rea l a n d  p e r s o n a l p r o p e r ty .

Tbe statutes are a d e c la ra t io n  b y  C o n g re s s  o f  th e  r ig h t  
all citizens to acqu ire  an d  e n jo y  p r o p e r t y  w ith o u t  d is ­

crimination as to race o r  co lo r . I f  a  w h ite  m a n  ca n  m ake 
a valid contract to pu rch ase  re a l p r o p e r ty , C o n g re s s  sa y s  

at a Negro can m ake the sam e co n tra c t . I f  a  w h ite  m an



10

h as a  r ig h t  to  a cq u ire  a n d  o w n  a  p articu lar piece of prop, 
e r ty  th e  la n g u a g e  o f  S e c t io n  1978 indicates that a Negro 
h a s  th e  id e n tica l r ig h t .

T h e s e  se c t io n s  w e re  d e r iv e d  fr o m  the Civil Eights Acts 
o f  1866-75 w h ich  w e re  u n d e r  consideration  in the Civil 
R ights Cases, 109 U . S . 3. In  h is  opinion, Mr. Justice 
B r a d le y  a s s e r te d  th a t th ere  w ere  certain  “ fundamental 
r ig h ts  w h ich  a p p e r ta in  to  th e  essen ce  o f  citizenship, and 
th e  e n jo y m e n t  o r  d e p r iv a t io n  o f  w hich  constitutes tie 
e sse n tia l d if fe r e n c e  b e tw e e n  fr e e d o m  and slavery.”  Among 
th e  r ig h ts  “  w h ich  a re  th e  essen ce  o f  c iv il freedom” is the 
r ig h t , the C o u r t  sa id , to  “ p u rch a se , lease, sell and convey 
p r o p e r t y ”  (p . 2 2 ) .

T h e s e  r ig h ts , th e  Civil R ights Cases held, cannot he 
p r o te c te d  b y  th e  fe d e r a l  g o v e rn m e n t under the Fourteenth 
A m e n d m e n t f r o m  in fr in g e m e n t  b y  individual action, “ un­
s u p p o r te d  b y  sta te  a u th o r ity  in  the shape o f law, customs, 
o r  judicial o r  e s e c u t iv e  p r o c e e d in g s ”  (p. 17)-  ̂ (Italics 
a d d e d .)  T h e y  a re , n e v e rth e le ss , am ong the constitutional 
r ig h ts  o f  a ll c it izen s  o f  th e  U n ite d  States. It w ill appear 
la te r  th a t th e  in fr in g e m e n t  in  the present cases was sup­
p o r te d  “ b y  sta te  a u th o r ity  * * * in  the shape of * * * F >'

cial * * * proceedings.”  .
I n  Buchanan  v. W arley, 245 U . S. 60, the City o 0

ville, Kentucky, enacted a municipal ordinance t .a  j  
bade any white person or Negro to reside on any ci y 
in which the majority of houses were oecupie v Pe 
of the other color. This Court held that the ordinance« 
lated the due process clause of the Fourteen ^
ment. It was declared in that case that the rig ^
pose of one’s property without discrimma lon Tte 
or color is a civil right protected by the Cons i 

Court said (p. 81):



11

The case p resen ted  d oes  n o t  d ea l w ith  an  a ttem p t 
to prohibit the a m a lga m a tion  o f  th e  ra ces . T h e  r ig h t  
which the ord in an ce a n n u lled  w a s  the c iv i l  r ig h t  o f  a 
white man to d isp ose  o f  h is  p r o p e r t y  i f  h e  sa w  fit to  
do so to a p erson  o f  c o lo r , a n d  o f  a  c o lo r e d  p e r s o n  to  
make such d isp os ition  to  a  w h ite  p e rso n .

It is urged  that th is p r o p o s e d  s e g re g a t io n  w ill p r o ­
mote the pu b lic  p ea ce  b y  p r e v e n t in g  ra ce  con flicts . 
Desirable as this is, a n d  im p o r ta n t  as is  the p r e s e r v a ­
tion o f the pu b lic  p ea ce , th is  a im  ca n n ot b e  a cco m ­
plished by  law s o r  o rd in a n ces  w h ich  d en y  r ig h ts  c r e ­
ated or p rotected  b y  th e  F e d e r a l C o n st itu tio n .

It appears to be settled  f r o m  th e  fo r e g o in g  th a t th e  
right to acquire, ow n, an d  d is p o s e  o f  p r o p e r t y  w ith o u t 
discrimination as to race  o r  c o lo r  is  a  c iv i l  r ig h t  th a t is  
an incident o f nation a l c it iz en sh ip  a n d  is  g u a ra n te e d  b y  
the Constitution.

In all cases h erein  the p r o p e r t y  in v o lv e d  h a d  b een  
deeded to the N egro  p e t it io n e rs .1 I n  th e  M issouri a n d  
District of Columbia cases th ere  w e re  r e s tr ic t io n s  a g a in s t  
ownership as w ell as o c c u p a n c y ; th e  p u rch a s e rs  h e ld  the 
property subject to b e in g  d iv e s te d  o f  t it le  i f  th e  r e s t r ic ­
tions were upheld. In  the Michigan  ca se  th e re  w a s  o n ly  a  
restriction against occu p a n cy . In  the Michigan  ca se , th e re ­
fore, the petitioner a cq u ired  v a lid , le g a l t it le , a n d  w a s 
possessed o f all the in ciden ts  o f  o w n e rsh ip . T h e  p r o p e r t y  
was residential p r o p e r ty  in  a r e s id e n tia l n e ig h b o rh o o d , 
and its use as a hom e w as a p r o p e r , le g a l  u se . H e  co u ld  
ha\e rented it to w hite occu p a n ts . H e  w a s  fo r b id d e n , b e ­
cause of his color, to  o ccu p y  it h im se lf.

fR1wne1PeS ion,er. Urciol°  in Urci°lo v. Hodge, No. 291, is white 
tn, Dura, in Hurd v. Hodge, No. 290, at the trial claimed
Negro5 (R° 380) *nc^ari but was found by the court to be .a



1 2

I n  Buchanan  v . W arley, supra, the City of Louisville 
s o u g h t to  a c co m p lis h  th e  sam e resu lt  b y  means of a munici­
p a l o rd in a n ce . T h e  C o u r t  sa id , a t p a g e  7 4 :2

T h e  F o u r te e n th  A m e n d m e n t protects life, liberty, 
a n d  p r o p e r t y  f r o m  in v a s io n  b y  the states without due 
p r o c e s s  o f  la w . P r o p e r t y  is  m o re  than the mere thing 
w h ich  a  p e r s o n  ow n s. I t  is  e lem entary  that it includes 
th e  r ig h t  to  a cq u ire , u se , a n d  d ispose  o f it. The Con­
s t itu t io n  p r o te c ts  th ese  essen tia l attributes of prop­
e r ty  # * * P r o p e r t y  co n s is ts  o f  the free  use, enjoyment, 
a n d  d is p o s a l o f  a  p e r s o n ’ s acquisitions without con­
t r o l  o r  d im in u tio n  sa v e  b y  th e  la w  o f  the land.

T h a t  th e  r ig h t  to  u se  o n e ’ s p rop erty  for a lawful, 
p r o p e r  p u r p o s e  is  a n  in c id e n t o f  ow nership , and as such is 
w ith in  th e  p r o te c t io n  o f  the con stitu tion a l guaranty of due 
p r o c e s s , is  c o n c lu s iv e ly  se ttled . P articu larly  is this true 
o f  th e  r ig h t  to  u se  r e s id e n tia l p r o p e r ty  fo r  residential pur­
p o s e s .3 T h is  w a s  c le a r ly  r e co g n iz e d  in Buchanan v. Wat- 
ley, supra, w h ich  s ta ted  th a t o ccu p a n cy  was an incident of 
th e  r ig h t  o f  p u rch a s e  o r  sa le  o f  rea l property  (p. 75).

I t  is  s ig n ifica n t th a t a ll o f  the restrictions upon real 
p r o p e r t y  e n fo r c ib le  b y  th e  p o lic e  p ow er  such as the1 &ei; 
s ta b les , b r ick y a rd s , a n d  th e  like, ’ ’ m entioned in Buchan 
v. W arley  as  th e  le g it im a te  su b je ct  o f  restrictive cove

2 The due process clause was relied upon because the ac
brought by a white vendor who was deprived by the ordina- 
right to dispose of his property. There can be no dou ,
result would have been reached under the due o u r c haser.
protection clauses had the action been brought by a g V

3 Terrace v. Thompson, 263 U. S. 197, 215 g 3$,
Warley, supra, 245 U. S. 60, and Holder,_y Hardy ^  ^  
3 9 1 ) ; State of Washington ex rel. Seattle Tine Inst c - ^
278 U . S. 116, 121 ; Sterling v. Constantin, 287 u. -y ^  
DeCuir 95 U . S. 485, 508; Holmes v. Gravenhorst, 20a -
152.



13

nants, were restriction s  u p o n  u se . T h e y  w e re  b u rd en s  
imposed upon the p r o p e r ty  n o t  u p o n  th e  o ccu p a n ts . A  
blacksmith, a glue m aker, o r  a  l iv e r y  s ta b le  p r o p r ie to r , 
may be law fully res tr ic ted  in  th e  p u rs u it  o f  h is  r e sp e c t iv e  
occupation in a p a rticu la r  n e ig h b o r h o o d  b u t n o  on e  w ill 
deny that he m ay live , w ith ou t le g a l in te r fe re n ce , w h ere  
anyone else m ay live.

That this is one o f  the r ig h ts  p r o te c te d  b y  the F o u r ­
teenth Amendm ent, an d  th at ca n n o t b e  ta k en  a w a y  w ith o u t 
denial of due p rocess , seem s to  be  se tt le d  b e y o n d  q u estion . 
In Allgeyer v. State o f Louisiana, 165 U . 8 . 578, th e  C o u rt  
said (p. 589):

The liberty m en tion ed  in  th a t am en d m en t [th e  
Fourteenth] m eans, n o t o n ly  th e  r ig h t  o f  th e  c it izen  
to be free fr o m  the m ere  p h y s ica l re s tra in t  o f  h is  p e r ­
son, as by  in ca rcera tion , b u t th e  te rm  is  d eem ed  to  
embrace the r ig h t o f  the c it iz e n  * * * to  l iv e  a n d  w o rk  
where he w ill.

This distinction b etw een  lim ita tio n s  o n  u se  a n d  lim ita ­
tions on occupancy is im p orta n t. T h e  on e  im p o se s  a  s e r v i­
tude upon p rop erty  w h ich , a t  tim es, is  le g a l ly  p e rm iss ib le . 
The other im poses a se rv itu d e  u p o n  th e  in d iv id u a l w h ich  
is repugnant to the b a s ic  co n ce p ts  o f  th e  C o n st itu tio n . I t  
takes away fro m  him , so le ly  b eca u se  o f  th e  c o lo r  o f  h is  
skin, a right w hich  the A llgeyer  ca se  sa y s  is  g u a ra n te e d  to  
him by the F ourteenth  A m en d m en t— th e r ig h t  to  liv e  w h e re  
he will. The language o f  th is C o u rt  in  Steele  v. Louisville 
and Nashville Railroad Co., 323 U . S . 192, 203, is  e q u a lly  
pertinent to the p resen t c a s e s :

Here the d iscr im in a tion s  b a s e d  on  ra ce  a lon e  a re  
obviously irre levan t an d  in v id io u s .

It may be cla im ed th at th e  ca ses  su s ta in in g  sta tu tes  
prohibiting aliens fr o m  o w n in g  re a l p r o p e r t y  a re  in  p o in t  
here. Let us con sid er th is  f o r  a m om en t.



14

T h e  le a d in g  ca se  is  T errace  v. Thompson, 263 U. S. 197 
in  w h ich  th e  C o u r t  h a d  u n d e r  con s id era tion  a provision of 
th e  C o n s t itu t io n  o f  th e  S ta te  o f  W a sh in g ton  that prohibited 
the “ o w n e rsh ip  o f  la n d s  b y  a lien s , other than those who 
in  g o o d  fa ith  h a v e  d e c la re d  th e ir  in ten tion  to become citi­
zen s o f  th e  U n ite d  S ta te s .”  T h e re  w as likewise involved 
a  s ta tu te , th e  A n t i -A lie n  L a n d  L a w , forb idding the use of 
p r o p e r ty  b y  a  n o n -d e c la ra n t  a lien .

T e r r a c e , a  c it iz e n  o f  th e  U n ite d  States, wished to lease 
c e r ta in  a g r ic u ltu r a l la n d  to  a  Japan ese . He, therefore, 
b r o u g h t  su it a g a in s t  th e  A t t o r n e y  G eneral to enjoin him 
f r o m  e n fo r c in g  th e  A n t i-A lie n  L a n d  L aw  on the ground 
th a t it  co n flic te d  w ith  th e  du e  p ro ce s s  and equal protection 
c la u ses  o f  th e  F o u r te e n th  A m en d m en t.

T h is  C o u rt  o v e r r u le d  th e  con ten tion , and in so doing 
m a d e  p e r fe c t ly  c le a r  th e  ra tio n a le  o f  its decision. The 
e ssen tia l d if fe re n ce  b e tw e e n  a lien s and  non-aliens, insofar 
as  le g is la t io n  o f  th is  k in d  is  con cern ed , lies in their respec­
t iv e  o b lig a t io n  o f  lo y a lty  to  the governm ent.

‘ ‘ T h e  r ig h ts , p r iv i le g e s  a n d  du ties  o f  aliens differ widely 
f r o m  th o se  o f  c it iz e n s ,”  th e  C ou rt said, “ and those of 
a lien  d e c la ra n ts  d i f fe r  su b sta n tia lly  from  those of non- 
d e c la r a n ts ”  (p . 2 1 8 ). I t  th en  q u oted  the following with 
a p p r o v a l  f r o m  the o p in io n  o f  the co u rt  below  :4

It is obvious that one w h o  is not a citizen and can­
not become one lacks an interest in, and the power o 
effectually work for the welfare of, the state, an , w 
lacking, the state may rightfully deny him the rig 
own and lease real estate within its boundaries. * 
one incapable of citizenship may lease or J 
estate, it is within the realm of possibility tha e ■ 
foot of land within the state might pass to t e o 
ship or possession of noncitizens (pp- 220, U  )■

* 274 Fed. 841, 849.



15

It is clear that the le g is la t io n  w a s  su sta in ed  as a  ju s t i ­
fied protective m easure. T h e  c la ss ifica t io n  in to  c it izen s , 
declarant aliens, and n o n -d ec la ra n t a lien s  w a s  re a so n a b le  
and not arbitrary. A  state  h as a r ig h t  to  im p o s e  s ta n d a rd s  
of loyalty upon th ose w h o  w o u ld  h o ld  la n d  w ith in  its  
borders. It is not u n rea son a b le  to  p u t in to  a  p a r t icu la r  
category those aliens w h o h a v e  sh ow n  so  litt le  d e v o t io n  to  
our institutions as to  h ave  r e fr a in e d  f r o m  seek in g  c it iz e n ­
ship.

As to those w ho are  b a rre d  f r o m  n a tu ra liza t io n  b y  co n ­
gressional enactm ent, the C o u rt  s a id : “ T h e  S ta te  p r o p ­
erly may assume that the co n s id e ra t io n s  u p o n  w h ich  C on ­
gress made such c la ss ifica tion  a re  su b sta n tia l a n d  re a ­
sonable. ’ ’

There is no dou bt th at a la w  th a t m ak es  re a so n a b le , 
non-arbitrary class ifica tion s d o e s  n o t  d e n y  eq u a l p r o te c ­
tion.0 But d iscrim in ation  b a se d  u p o n  ra ce  o r  c o lo r  d o e s  
not come within that ru le . U n less  it  ca n  b e  d e te rm in e d  
that a man’s loy a lty  can  b e  m e a su re d  b y  h is  a n c e s tr y  o r  
the color o f his skin, c la ss ifica tio n  b a se d  u p o n  th o se  c o n ­
siderations is u nreasonable  a n d  a rb itra ry .

If the State o f  W a sh in g to n  sta tu te , in s te a d  o f  p r o ­
hibiting non-declarant a liens f r o m  o w n in g  o r  le a s in g  p r o p ­
erty, had barred N egroes , it  w o u ld  h a v e  b e e n  u n co n s t itu ­
tional under Buchanan v. W arley. T h is  seem s to  b e  a 
complete refutation  o f  the p e r t in e n cy  o f  T errace  v. 
Thompson. 5

5 Truax v. Corrigan, 257 U. S. 312, 337.



16

B. State action depriving a person of the ownership, 
use or occupancy of property solely because of his race or 
color is forbidden by the due process clause of the Four, 
teenth Amendment.

T h e  issu e  in  Buchanan  v. W arley, 245 TJ. S. 60, was 
s ta te d  b y  th e  C o u r t  in  th ese  w o r d s  (p . 7 5 ):

T h e  co n cre te  q u e s t io n  h ere  i s : M ay the occupancy 
an d , n e ce s s a r ily , th e  p u rch a se  and  sale of property of 
w h ich  o c c u p a n c y  is  a n  in ciden t, he inhibited by the 
sta tes , o r  b y  on e  o f  its  m u n icipa lities , solely because 
o f  th e  c o lo r  o f  the p r o p o s e d  occupant o f  the premises!

A n d  a g a in , a t  p a g e  7 8 :

I n  th e  fa c e  o f  th ese  constitu tional and statutory 
p r o v is io n s , can  a  w h ite  m a n  be denied, consistently 
w ith  du e  p r o c e s s  o f  law , the righ t to dispose of his 
p r o p e r ty  to  a p u rch a s e r  b y  p roh ib itin g  the occupation 
o f  it  f o r  th e  so le  re a s o n  th at the purchaser is a person 
o f  c o lo r , in te n d in g  to  o c c u p y  the premises as a place 
o f  re s id e n ce ?

T h e  a n sw e r  to  th ese  q u estion s  is emphatic and final:

W e  th in k  th is  a ttem p t to  preven t the alienation of 
th e  p r o p e r t y  in  q u e s t io n  to  a person  o f color was not 
a  le g it im a te  e x e rc ise  o f  the p o lice  power of the state, 
a n d  is  in  d ir e c t  v io la t io n  o f  the fundamental lw 
en a cted  in  th e  F o u r te e n th  A m endm ent of the Consti ■ 
,tion p r e v e n t in g  sta te  in te r fe re n ce  with property rig 5 
e x ce p t  b y  due p ro c e s s  o f  law . T hat being the case, 
th e  o rd in a n ce  ca n n o t sta n d  (p . 82 ).

T h e  p r o p o s it io n  th a t su ch  d iscrim in atory  action 
s ta tes  is  fo r b id d e n  is  th u s de fin ite ly  settled by 
v. W arley .6

6 H arm on v. T yler , 273 U. S. 668; Richmond 
704; C arey  v. C ity o f Atlanta, 143 G a . 192, 84 S. E- >
State, 132 M d .  311, 103 A .  910; Clinard v . O ty  of j
217 N. C. 119, 6 S. E. (2 d ) 867; L iberty Annex Corf. ■ - 
Dallas, 289 S. W . 1067.



17

C. The decrees of the state courts were forbidden 
state action and therefore violated the due process clause 
of the Fourteenth Amendment.

(a)

Judicial action is state action.

Thus far we have sh ow n  th at th e  r ig h t  to  b u y , se ll, a n d  
occupy real p rop erty  w ith ou t d is c r im in a tio n  as t o  ra ce  o r  
color is a civil r igh t g u a ra n teed  a n d  p r o te c te d  b y  th e  C o n ­
stitution. It  is a lso  c lea r  th a t a n y  le g is la t io n  th a t w o u ld  
take away that r igh t w o u ld  b e  fo r b id d e n  sta te  a c t io n  a n d  
therefore unconstitutional.

To paraphrase the la n g u a g e  o f  M arsh  v . Alabama, 326 
U. S. 501, 505, i f  the p a r tie s  to  th ese  r a c ia l  co v e n a n ts  
“ owned all the hom es, a n d  a ll th e  s to re s , a n d  a ll the 
streets, and all the s idew alks, a ll th ose  o w n e rs  to g e th e r  
could not have set u p  a m u n ic ip a l g o v e rn m e n t  w ith  suffi­
cient power to pass an  o r d in a n c e ”  b a r r in g  th e  o w n e rsh ip , 
use, and alienation o f  rea l p r o p e r t y  o n  th e  g r o u n d  o f  c o lo r .

The question, th ere fo re , is , ca n  p r iv a te  p a r t ie s , b y  m ak ­
ing a contract, em p ow er the ju d ic ia r y  to  d o  th a t  w h ich  is  
beyond the sovereign  p o w e r  o f  th e  s ta te  to  d o  ?

It has long been  settled  th a t th e  ju d ic ia l  a c t io n  o f  a  
state court is the a ction  o f  th e  sta te  it s e lf ,  a n d  th a t w h en  
such action con travenes th e  C o n s t itu tio n  it  co m e s  w ith in  
the purview o f the F o u rte e n th  A m en d m en t.

As far back as 1879 th is C o u rt  sa id  in  Virginia  v . R ives, 
100 U. S. 313, 318:

It is doubtless tru e  th a t a  S ta te  m a y  a ct th ro u g h  
different agencies,— eith er  b y  it s  le g is la t iv e , its  e x e cu ­
tive, or its ju d ic ia l a u th o r it ie s ; a n d  th e  p r o h ib it io n s  
of the am endm ent ex ten d  to  a ll a c t io n  o f  th e  S ta te  
denying equal p ro te c t io n  o f  th e  la w s , w h e th e r  it  be  
action by one o f  these a g en c ie s  o r  b y  a n o th er .



I S

I n  E x  P arte Virginia, 100  U . S . 339, the same year the 
C o u r t  s a id  (p . 3 4 6 ) :

T h e y  [th e  p r o h ib it io n s  o f  the Fourteenth Amend- 
m e n t] h a v e  r e fe r e n c e  to  a ction s  o f  the political bod? 
d e n o m in a te d  a S ta te , b y  w h a tev er  instruments or in 
w h a te v e r  m o d e s  th a t a c t io n  m a y  be taken. A  State 
a cts  b y  _ its  le g is la t iv e , its  executive, or its judicial 
a u th o r it ie s . I t  ca n  a c t  in  n o  o th er  way.

T h e s e  w e re  ca se s  in v o lv in g  the righ t o f Negroes to 
s e rv e  as  ju r o r s . T h is  C o u r t  h as n o t hesitated to set aside 
a  d e te rm in a tio n  o f  th e  h ig h e s t  C ou rt o f  a state, either on 
m a tte rs  o f  p r o c e d u r e  o r  su b sta n tiv e  law, when it mani­
fe s t ly  v io la te d  th e  p r o v is io n s  o f  the Fourteenth Am end­
m en t, a n d  w h en  a  f a r  r e a ch in g  deprivation  of C onstitu­
t io n a l r ig h ts  w a s  im p lic it  in  th e  decis ion .

I n  BrinTcerhoff-Faris T rust Co. v. Hill, 281 U. S. 673, 
an  a p p lic a t io n  f o r  a n  in ju n c t io n  to  restrain  the collection 
o f  an  a lle g e d  d is c r im in a to r y  ta x  w as denied because tie 
p la in t if f  h a d  n o t  e x h a u ste d  h is  rem edies before the tax 
c o m m iss io n e r . A n  e a r lie r  d e c is io n  o f  the Missouri court 
h a d  h e ld  th a t  th e  ta x  co m m iss io n e r  w as without power to 
g r a n t  th e  r e l ie f  sou g h t. T h is  ru lin g  was later reversed, 
b u t in  the m ea n tim e  p la in t i f f ’ s tim e to  file a complaint will 
th e  ta x  co m m is s io n e r  h a d  e x p ire d , and he was deprived of 
h is  d a y  in  co u rt . M r. J u s t ic e  B ra n d e is , writing the opinion 
o f  th is  C o u rt , sa id , a t  p a g e s  679, 680 :

If  the result above stated were attained by an exer 
cise of the state’s legislative power, the transgressioj- 
of the due process clause of the Fourteenth me 
ment would be obvious *  * * The violation is n°D® 
less clear when that result is accomplished by 
judiciary in the course of construing an o ® 
valid * * * state statute. The federal guaran y  ̂
process extends to state action through its ju 1 1



19

well as through its le g is la tiv e , e x e cu tiv e , o r  a d m in is ­
trative branch o f  g ov ern m en t.

In Powell v. Alabama, 287 U . S . 45, th e  d e fe n d a n ts  h a d  
been convicted o f  rape  w ith ou t the p r o p e r  a ss ig n m e n t b y  
the court o f counsel. T h is  C o u rt  r e v e r s e d  th e  ju d g m e n t  
of the Supreme C ourt o f  A la b a m a  a ffirm in g  th e  c o n v ic t io n  
because by jud icia l a ction  du e  p r o c e s s  h a d  b e e n  d e n ie d  to  
the defendants by  the S tate  o f  A la b a m a .

In Bridges v. California, 314 U . S . 252, th e  d e fe n d a n t  
was convicted o f  con tem pt u n d e r  th e  co m m o n  la w  o f  th e  
state. This C ourt re v e rse d  th a t sen ten ce  b eca u se  th e  
action of the C a liforn ia  co u rt  d en ied  to  th e  d e fe n d a n t  the 
right of free speech p ro te c te d  b y  th e  F o u r te e n th  A m e n d ­
ment.

In Cantwell v. Connecticut, 310 TJ. S . 296, th is  C o u rt  
likewise set aside a co n v ic t io n  b eca u se  th e  d e fe n d a n t  h a d  
been denied the righ t o f  f r e e  sp eech  g u a ra n te e d  b y  the 
Fourteenth A m endm ent. I n  th a t ca se  th e  c o n v ic t io n  w a s 
for the common law  o ffen se  o f  in c it in g  a  b re a ch  o f  the 
peace, and this C ourt o v e rru le d  th e  ju d g m e n t  o f  th e  C o n ­
necticut court in in te rp re tin g  its  ow n  ju d g e -m a d e  law .

The statement o f  the C ou rt o n  th is  p o in t  in  Twining  v. 
Pew Jersey, 2 1 1  U . S. 78, h as b een  w id e ly  q u o ted . I n  th a t 
case the question in v o lv ed  w a s th e  r ig h t  o f  a  t r ia l  ju d g e  in  
a criminal case to com m ent u p o n  the fa i lu r e  o f  a  d e fe n d a n t  
to testify in his ow n b eh a lf. A lth o u g h  th e  C o u r t  d e c id e d  
that the comments d id  n ot con stitu te  a  d e n ia l o f  d u e  p r o c ­
ess, it stated (pp . 90, 9 1 ) :

The ju d icia l act o f  th e  h ig h est c o u r t  o f  th e  S ta te , 
in authoritatively con stru in g  a n d  e n fo r c in g  it s  laws, 
is the act o f  the state.

Dae process o f  law  m eans so m e th in g  m o r e  th a n  m ere
appliance with the fo rm s  an d  ru les  o f  le g a l p r o c e d u r e .



20

A  m a n  m ig h t  h a v e  a  fa i r  t r ia l ;  the ju d g e  might be careful 
a n d  a ccu ra te  in  h is  a p p lic a t io n  to  th e  case o f the sta te  law 
y e t , i f  th e  u ltim a te  d e c is io n  resu lts  in  the denial o f  a con­
s t itu t io n a lly  p r o te c te d  r ig h t  th ere  has been an infringe- 
m en t o f  th e  F o u r te e n th  A m en d m en t.

T h is  w a s  c le a r ly  e x p r e s s e d  in  Chicago, B. S Q, R, fa 
v. Chicago, 166 IT. S . 226, in  w h ich  it was c la im e d  that 
p r o p e r t y  h a d  b e e n  ta k en  f r o m  th e  ra ilroad  in condemna­
t io n  p r o c e e d in g s  b y  th e  C ity  o f  C h ica go  without adequate 
co m p e n sa tio n . T h e  C o u r t  sa id  (p p . 234, 235):

B u t  a  s ta te  m a y  n o t , b y  a n y  o f  its agencies, dis­
r e g a r d  th e  p r o h ib it io n s  o f  th e  Fourteenth Amend­
m en t. I t s  ju d ic ia l  a u th o r it ie s  m ay  keep within tie 
le t te r  o f  th e  s ta tu te  p r e s c r ib in g  form s o f p r o c e d u r e  in 
th e  co u r ts  a n d  g iv e  th e  p a r t ie s  interested the fullest 
o p p o r tu n ity  t o  b e  h e a rd , a n d  y e t  it  might be that its 
fin a l a c t io n  w o u ld  b e  in con s is ten t with that amend 
m en t. I n  d e te rm in in g  w h a t is  due process o f  law «• 
g a r d  m u st b e  h a d  to  su bstan ce , n ot to form * * * the 
fin a l ju d g m e n t  o f  a  sta te  cou rt, under the authorih 
o f  w h ich  th e  p r o p e r t y  is  in  fa c t  taken, is to be deemed 
th e  a ct o f  th e  S ta te  w ith in  th e  m eaning o f that amend­
m en t.

( b )

The decrees herein are forbidden state 
action and therefore violate the Fourteenth 

Amendment.

W e  d o  n o t  c o n te n d  th a t the procedural rights of h  
lit ig a n ts  in  th ese  ca ses  w e re  n o t scrupulously protect*. 
n o r  d o  w e  co n te n d  th a t th e  tr ia l cou rts  were without juris 
d ic t io n  to  a d ju d ic a te  p r iv a te  con tra cts  between individual 
I t  is  th e  result o f  th e  a d ju d ic a t io n  that we challenge. ! 
d e c re e s  d e p r iv e d  th e  p e t it io n e rs  o f  fundamental con® 
t io n a l r ig h ts . T h e y  w e re , th e re fo re , forbidden state acif



2 1

We do not claim  that a ll s ta te  ju d ic ia l  a c t io n  is  r e v ie w - 
able by this Court, n or  d o  w e  ask  th a t th e  C o u rt  g o  b e y o n d  
the issues presently b e fo r e  it. T h e re  is  n o  n e ce s s ity  h e re  
further to extend “ the v a g u e  c o n to u r s ”  o f  th e  du e  p r o c e s s  
clause.7 The C ourt sa id  in  Strauder  v . W est Virginia,8 
“ The Fourteenth A m en dm en t m ak es  n o  a tte m p t to  en u ­
merate the rights it d es ig n ed  to  p r o te c t . I t  sp ea k s  in  g e n ­
eral terms, and those a re  as co m p re h e n s iv e  as p o s s ib le .”  

All that we are ask in g  the C o u rt  to  d e c id e  h e re  is  th a t 
when a decree of a state court accomplishes a result fo r ­
bidden to the state legislature, and deprives a person  be­
cause of Ms race, color, or religion, o f a fundamental right 
guaranteed and protected by the Constitution, it is forbid ­
den state action and invalid under the F ourteen th  A m end­
ment.

We submit that th is is  p r e c is e ly  th e  e ffe c t  o f  th e  d e cre e s  
in the present cases. W e  h a v e  sh ow n  th a t th e  r ig h t  o f  a 
person to buy, sell, o ccu p y , a n d  e n jo y  p r o p e r ty , a n d  “ to  
live and work w here he w i l l ”  is  g u a ra n te e d  a n d  p r o te c te d  
by the Constitution. I t  is  a p p a re n t th a t th e  d e cre e s  h e re in  
take that right aw ay.

It has been u rged  that the Civil R ights Cases, 109 U . S . 
3, is controlling. T he d e c is io n  in  th o se  ca se s  h e ld  th a t 
racial discrimination b y  in d iv id u a ls  d id  n o t  ra ise  a re v ie w - 
a le federal question. T h e  d is c r im in a to r y  a cts , th e  b a r ­
ring of Negroes fr o m  inns an d  p la ce s  o f  p u b lic  am u sem en t, 
were complete and s e lf -e n fo r c in g ; th ere  w a s  n o  n e e d  to  
no e the aid o f  the g ov ern m en t. T h e  C o u r t  in d ica te d  

c early that i f  the d iscr im in a tion , to  be  e ffe c t iv e , n eed ed  
e support o f ju d ic ia l a ction  the s itu a t io n  w o u ld  b e  d i f -  

' ^ r~ Justice B ra d le y  sa id , a t  p a g e  1 7 :

261 U s ! ”! ! / ' ’ d issentinS  0 Pin io n  in  Adkins v .  Children’s Hospital, 

81°0U. S. 303, 310.



22

I n  th is  c o n n e c t io n  it  is  p r o p e r  to  state that civi 
r ig h ts , su ch  as a re  g u a ra n te e d  b y  the Constitution, 
a g a in s t  s ta te  a g g r e s s io n , ca n n o t be impaired by the 
w r o n g fu l  a cts  o f  in d iv id u a ls , unsupported by state au­
thority in the shape o f  la w s, custom s, or judicial or 
e x e cu t iv e  proceedings. ( I t a lic s  added .)

I f ,  as th e  a b o v e  la n g u a g e  in d ica tes , the impairment of 
c iv i l  r ig h ts  b y  in d iv id u a ls  co m e s  w ith in  the prohibitions of 
th e  F o u r te e n th  A m e n d m e n t w h en  supported by judicial 
p r o c e e d in g s , it  fo l lo w s  th a t th e  im pairm ent of constitu­
t io n a l r ig h ts  b y  the ju d ic ia l  en fo rcem en t o f private con­
tra c ts , su ch  as th ese  r e s tr ic t iv e  covenants, likewise corns 
u n d e r  th e  ban .

T h e r e  is  a  fu r th e r  c o n s id e ra t io n  that should be men­
t io n e d . I f  in d iv id u a ls , b y  p r iv a te  agreem ent, can establish 
r a c ia l ly  s e g r e g a te d  a re a s , th e y  a re  v irtua lly  performingi 
le g is la t iv e  a ct. T h is  w a s  th e  e ffe c t  o f  the ordinance lei 
u n co n s t itu t io n a l in  H arm on v. Tyler.9 10

I n  th a t ca se  a  N e w  O rlea n s  ord in an ce  barred whitesor 
N e g r o e s  f r o m  “ a n y  co m m u n ity  o r  p ortion  o f the city** 
e x ce p t  o n  th e  w r itte n  co n se n t o f  a  m a jo r ity  of the opposite 
ra ce  in h a b it in g  su ch  co m m u n ity  o r  portion  of the city. 
I n  e ffe c t , it  c o n fe r r e d  lo c a l  o p t io n  u pon  the residents! 
N e w  O rlea n s  to  e s ta b lish  r a c ia l z on in g  restrictions. I t ®  
h e ld  u n co n s t itu t io n a l o n  th e  a u th ority  of Buchmm - 
W arley. S u r e ly  th e  a b sen ce  o f  such  ordinance in the pres­
en t ca se  ca n n o t c o n fe r  g r e a te r  p o w e r  upon the contractu 
p a r t ie s  th a n  th e y  w o u ld  h a v e  h a d  u nder an ordinance.

T h e  a rg u m e n t th a t a  sta te  ca n n ot do by judicial ad® 
th a t w h ich  it  is  fo r b id d e n  to  d o  b y  legislation is succinct;

9 273 U. S. 668.
10 Quoted in Tyler v. Harmon, 158 La. 439, 440.



23

and convincingly stated  b y  M r. J u s t ic e  E d g e r t o n  in  M s 
dissenting opinion in  the co u r t  b e lo w  in  H urd  v . H odge  :n

It is strangely in con s is ten t to  h o ld  as th is  co n r t  
does that although n o  le g is la tu re  ca n  a u th o r ize  a  co u rt , 
even for  a m om ent, to  p re v e n t  N e g r o e s  f r o m  a cq u ir in g  
and using particu lar p r o p e r ty , a  m e re  o w n e r  o f  p r o p ­
erty at a given  m om ent can  a u th o r ize  a  c o u r t  to  d o  so 
for all time. E ith er the du e p r o c e s s  c la u ses  o f  the 
Constitution do n ot fo r b id  g o v e rn m e n ts  to  p re v e n t  
Negroes from  a cq u ir in g  a n d  u s in g  p a r t ic u la r  p r o p ­
erty, in which case th ey  d o  n o t  f o r b id  c o u r ts  to  en ­
force racial restriction s  w h ich  sta tu tes  h a v e  im p o s e d ; 
or these clauses d o  fo r b id  g o v e rn m e n ts  to  p re v e n t  
Negroes from  a cq u irin g  and  u s in g  p a r t icu la r  p r o p e r ty , 
in which case th ey  fo r b id  co u rts  to  e n fo r c e  ra c ia l r e ­
strictions which coven ants h a v e  im p o se d . Buchanan 
v. Warley rules ou t the firs t  a lte rn a tiv e . A s  J u d g e  
Eoss, the donor o f  the A m e r ic a n  B a r  A s s o c ia t io n ’ s 
Boss Essay P rize , sa id  lo n g  a g o  in  r e fu s in g  to  e n fo r c e  
by injunction a coven an t a g a in st t r a n s fe r s  to  C h in e se : 
‘ It would be a v e ry  n a rro w  c o n s tru c t io n  o f  the co n s t i­

tutional am endm ent in  q u estion  a n d  o f  th e  d e c is io n s  
ased upon it * * * to h o ld  th at, w M le  s ta te  and munici-

Fi l f ! slatures are fo r b id d e n  to  d is cr im in a te  a g a in st 
tne Chinese in  th eir  leg is la tion , a  c it iz e n  o f  the state
may lawfully do so b y  co n tra ct , w h ich  th e  co u r ts  m a y
nFoFi? 6 ~Ple co u rts sh ou ld  n o  m o re  e n fo r c e  the 
one than the oth er . ” 11 12

11 !62 F. (2d) 233, 240.
12 Gandolfo v. Hartman, 49 Fed. 181, 182.



24

II

The judicial enforcement of racial restrictive cove, 
nants in the Michigan and Missouri cases is a violation 
of the Equal Protection Clause of the Fourteenth 
Amendment to the Constitution.

T h e  eq u a l p r o te c t io n  c la u se  o f  the Fourteenth Amend­
m en t, as w a s  sa id  in  th e  re ce n t  case  o f  Fay v. New Fork,1

p r o h ib it s  p r e ju d ic ia l  d is p a r it ie s  b e fore  the law. Under 
it  a  sy s te m  w h ich  m ig h t be  constitutionally unobjec­
t io n a b le  i f  a p p lie d  to  a ll, m a y  be brought within the 
p r o h ib it io n  i f  som e  h a v e  m o re  favorable treatment,

I t  w o u ld  seem  to  b e  b e y o n d  argum ent that to permit a 
w h ite  m a n  to  l iv e  in  h is  o w n  h ou se  and to forbid a Negro 
to  l iv e  in  h is  is  a  p r e ju d ic ia l  d isp a r ity . To eject a Negro 
f r o m  h is  h o m e  s o le ly  b e ca u se  o f  h is  color, and to allow his 
w h ite  n e ig h b o r  to  re m a in  u n m olested  certainly gives the 
w h ite  m a n  “ m o r e  fa v o r a b le  trea tm en t.”

W e  m a y  a d d  th a t i t  is  a  sh ock in g  prejudicial disparity 
f o r  th e  la w  to  in te r fe r e  in  a  p r iv a te  arrangement between 
a w ill in g  se lle r  a n d  a  w ill in g  p u rch aser o f real property, 
a n d  p r o h ib it  o r  an n u l th e  tra n sa ctio n  because the purchaser 
is  a N e g r o .2

T h e  p u r p o s e  o f  th e  F o u rte e n th  Amendment was to 
p r o h ib it  p r e c is e ly  th e  s o r t  o f  ra cia l distinctions accom­
p lis h e d  b y  th e  co v e n a n ts  in  these cases. This was elo­
q u e n t ly  s ta te d  in  Strauder  v . W est Virginia, 100 U. S. 30,

1 331 U. S. , 91 Law Ed. Adv. Opinions 1517, $
(No. 377, decided June 23, 1947).

2 All of these restrictive covenant cases involve transactions  ̂
tween willing vendors and willing purchasers. If that were 
there could be no cases.



25

where, after sum m arizing the p r o v is io n s  o f  th e  F o u rte e n th  
Amendment the C ourt sa id , a t p a g e s  307, 308 :

What is this bu t d e c la r in g  th a t th e  la w  in  the 
States shall be the sam e f o r  th e  b la ck  as f o r  th e  w h i t e ; 
that all persons, w h eth er  c o lo r e d  o r  w h ite , sh a ll stan d  
equal before the law s o f  the S ta te s  an d , in  r e g a r d  to  
the colored race, f o r  w h o se  p r o te c t io n  th e  A m e n d m e n t 
was prim arily  d esign ed , th a t n o  d is c r im in a tio n  sh a ll 
be made against th em  b y  la w  b eca u se  o f  th e ir  c o lo r ?  
The words o f  the A m en d m en t, i t  is  tru e , a re  p r o h ib i­
tory, but they con ta in  a  n e c e s s a r y  im p lica t io n  o f  a 
positive im m unity, o r  r ig h t , m o s t  v a lu a b le  to  the c o l­
ored race— the r ig h t to  e x e m p tio n  f r o m  u n fr ie n d ly  
legislation against th em  d is t in c t iv e ly  as  c o lo r e d ;  e x ­
emption fro m  leg a l d is cr im in a tio n s , im p ly in g  in fe r i ­
ority in civil socie ty , le ss e n in g  the s e cu r ity  o f  th e ir  
enjoyment o f  the r ig h ts  w h ich  o th ers  e n jo y , an d  d is ­
criminations w h ich  a re  step s  to w a rd s  r e d u c in g  th em  
to the condition  o f  a  su b je c t  ra ce .

It is pertinent to co n s id e r  f o r  a m om en t th e  u n d e r ly in g  
puipose o f these ra cia l re s tr ic t iv e  co v e n a n ts . T h e  t r a g ic  
fact of race p re ju d ice  is so  p e r v a s iv e  a n d  so  d e e p ly  r o o te d  
in our national li fe  that th is c o u r t  can , w ith o u t m u lt ip li­
cation of illustrations, take ju d ic ia l  n o t ic e  o f  it. A  w id e ­
spread belief in the sp eciou s  “ in fe r io r i t y  in  c iv i l  s o c ie t y ”  
of the Negro re fe rred  to  in  the Strauder  ca se  u n q u e s t io n ­
ably exists.

This lamentable fa c t  o f  ra ce  p r e ju d ic e  is , o f  co u rse , 
sc om admitted, and  v a r io u s  ra t io n a liz a t io n s  h a v e  b een  
a vanced to ju s t ify  these d is c r im in a to r y  co v e n a n ts . T h e  
most frequent are that the r e s tr ic t iv e  co v e n a n ts  p r e s e r v e  
ea estate values and  that th e y  p re v e n t  in te r r a c ia l s tr ife , 
ssunung arguendo that th ese  co n te n tio n s  m a y  h a v e  som e 

cann° t  ju s t i fy  a  c o n tra v e n tio n  o f  th e  C o n st i- 
wa. Both o f  these a rg u m en ts  w e re  su m m a rily  d is p o s e d  
m uc l̂anan v. W arley, supra, p a g e s  81, 8 2 :



26

I t  is  u r g e d  th a t th is  p r o p o s e d  segregation will pro­
m o te  th e  p u b lic  p e a ce  b y  p reven tin g  race conflicts, 
D e s ira b le  as th is  is , a n d  im p o rta n t as is the preserva­
t io n  o f  th e  p u b lic  p e a ce , th is a im  cannot be accom­
p lis h e d  h y  la w s  o r  o rd in a n ce s  w hich  deny rights cre­
a te d  o r  p r o te c te d  b y  the F e d e r a l Constitution.

I t  is  sa id  th a t su ch  a cq u is ition s  by  colored persons 
d e p re c ia te  p r o p e r t y  o w n e d  in  the neighborhood by 
w h ite  p e rs o n s . B u t  p r o p e r t y  m a y  be acquired by un­
d e s ira b le  w h ite  n e ig h b o rs , o r  put to disagreeable 
th o u g h  la w fu l u ses  w ith  lik e  resu lts .

T h e  tru th  o f  th e  m a tte r  is  th a t som e white people do 
n o t  w a n t  N e g r o e s  as n e ig h b o rs . T h is  they cannot accom­
p lis h  b y  le g is la t io n , so  th e  ra c ia l restrictive  covenant was 
d e v is e d  to  c ir cu m v e n t  th e  ru lin g  o f  Buchanan v. Warty. 
T h e  v e r y  fa c t  th a t fe a r s  a re  e x p re sse d  in these cases that 
th e  p re s e n ce  o f  N e g r o e s  in  a  n e igh b orh ood  will depreciate 
v a lu e s  a n d  p r o m o te  s t r i fe  is  in  its e lf  persuasive evidence 
o f  th e  b a s ic  r e a s o n  f o r  th e  d iscrim in ation ,— racial antag­
on ism .

T h a t  r a c ia l h o s t i l it y  is  an  im p orta n t motive for these re­
s tr ic t io n s  is  r e c o g n iz e d  in  Buchanan v. Warley, where the 
C o u r t  sa id , a t  p a g e s  80, 8 1 :

T h a t  th e re  e x is ts  a  seriou s  and difficult problem 
a r is in g  f r o m  a fe e l in g  o f  ra ce  hostility  which the law 
is  p o w e r le s s  to  c o n tr o l, a n d  to  w hich it must give a 
m e a su re  o f  c o n s id e ra t io n  m a y  be free ly  admitted,

T h e  o p in io n  th en  a d d s :

B u t  its  s o lu t io n  ca n n o t be  prom oted  by depriving 
c it iz e n s  o f  th e ir  co n stitu t io n a l righ ts and privileges.

T h e  la n g u a g e  o f  th is  C o u rt  in  Korematsu v. TJ. S., ■t- 
U . S . 214, 216, is  th e r e fo r e , sq u a re ly  in  point:

I t  sh ou ld  b e  n o te d  to  b e g in  witlq that all le- â  
s tr ic t io n s  w h ich  c u r ta il the c iv il rights of a si B



27

racial group are im m ed ia te ly  su sp ect. T h a t is  n o t  to  
say that all such re s tr ic t io n s  a re  u n co n st itu tio n a l. I t  
is to say that cou rts  m u st s u b je c t  th em  to  the m o st  
rigid scrutiny. P re s s in g  p u b lic  n e ce ss ity  m a y  som e­
times ju stify  the ex isten ce  o f  su ch  r e s t r ic t io n s ; racial 
antagonism never can. (I ta lic s  a d d e d .)

Two arguments h ave fr e q u e n t ly  b e e n  a d v a n ce d  in  su p ­
port of the jud icia l e n fo rcem en t o f  r a c ia l r e s t r ic t iv e  c o v e ­
nants. One is that the cou rts  w o u ld , i f  ca lle d  u p o n , e n fo r c e  
similar covenants b y  N e g ro e s  a g a in s t  w h ites , a n d  co n s e ­
quently there is no d en ia l o f  eq u a l p r o te c t io n . T h e  o th e r  
is that to refuse to  e n fo rce  th ese  co v e n a n ts  w o u ld  d en y  
equal protection to the co n tra c t in g  p a r t ie s . T h is  w a s  e x ­
plicitly stated in the o p in io n  b y  the co u r t  b e lo w  in  Sipes  v . 
McGhee,3

The speciousness o f  these co n te n tio n s  is  a p p a re n t . T h a t 
Negroes are being h erded  in  r e s tr ic te d  s lu m  a re a s  w ith  the 
concomitant result o f  d isease , cr im e , a n d  r a c ia l te n s io n  is  
well known. It is u n rea list ic  to  s a y  th a t th e  w h ites , w h o  
have unrestricted access to  a ll th e  h a b ita b le  a re a s  o f  the 
country, may perhaps be b a r r e d  b y  N e g r o e s  f r o m  som e o f  
them by d iscrim inatory  cov en a n ts . I t  w o u ld  ig n o r e  the 
obvious facts o f  co n te m p o ra ry  l i fe  to  im a g in e  a  d e s ira b le  
residential n eigh borh ood  in h a b ited  b y  w e a lth y  N e g r o e s  
from which w hites w ou ld  b e  ex c lu d ed . A s  M r. J u s t ice  
Cardozo said in Smith v . Loughman, 245 N . Y . 486, 496, o f  
another constitutional p r o v is io n :

We are not to  w h ittle  it  d o w n  b y  re fin em en t o f  ex - 
cep ion or by  the im p lica t io n  o f  a r e c ip r o c a l  a d v a n ta g e  
that is m erely tr iv ia l o r  sp ec iou s .

However, the con stitu tion a l o b je c t io n  is  n o t  a n sw e re d  
7 supposing the p o ss ib ility  o f  r e c ip r o c a l  d is cr im in a tio n . 5

5 316 Mich. 614, 25 N. W . (2d) 638, 644.



A  d e n ia l o f  a co n s t itu t io n a l r ig h t  to  a N egro today cannot 
b e  su sta in ed  b eca u se  a s im ila r  r ig h t  m ay  perhaps be denied 
to  a w h ite  m a n  in  th e  h y p o th e t ica l future. This is con. 
v in c in g ly  p re s e n te d  b y  P r o fe s s o r  M cG ovn ey4 who says:

B u t  in  e v e r y  ca se  o f  sta te  cou rt enforcement of a 
r e s tr ic t iv e  a g re e m e n t th e  b lo w  fa lls  upon an individ­
ual, n o t  u p o n  a  g r o u p  as such. The c o m m a n d  o f the 
C la u se  is  th a t n o  sta te  sh a ll den y  to any p e r s o n  the 
eq u a l p r o te c t io n  o f  the law s. T he i m m u n i t y  granted 
is  a n  in d iv id u a l one. W h e n  because o f an agreem ent 
o f  on e  g r o u p  a sta te  o u sts  a N egro  from  residing in 
th e  h om e  o f  h is  ch o ice  it  d oes  not square i t s e l f  will 
th e  co m m a n d  o f  the c la u se  b y  en forcin g  the agreem ent 
o f  a n o th e r  g r o u p  b y  w h ich  a w hite man is barred 
f r o m  the h om e  o f  h is  ch o ice . Instead of com plying  
w ith  th e  C la u se , th e  sta te  com m its two v i o l a t i o n s  of 
it . T w o  in d iv id u a ls , on e  N e g ro  and one w h ite , has 
ea ch  b een  d is c r im in a te d  a ga in st because o f  h is  race, 
U n d e r  th e  E q u a l P r o te c t io n  Clause, as under Dne 
P r o c e s s  C la u ses , th e  S u p rem e Court, has several 
tim es  p o in te d  o u t th a t “ the essence o f the constitn- 
t io n a l r ig h t  is  th a t  it  is  a p erson a l one * * * It is 
th e  in d iv id u a l w h o  is  en titled  to the equal protection  
o f  th e  la w s .” 5

T h e  co n te n tio n  th a t r e fu s a l to  en force  these covenants 
w o u ld  d e n y  eq u a l p r o te c t io n  to  the contracting p a r tie s  is 
e q u a lly  u n sou n d . I f  w e  b a la n ce  righ ts  conferred b y  private 
co n tr a c ts  a g a in s t  fu n d a m e n ta l constitutional rights, there 
ca n  be  n o  q u e s t io n  th a t con stitu tion a l rights must prevail

4 McGovney, D. O., Racial Residential Segregation by State « 
Enforcement of Restrictive Agreements, Covenants or Co‘n 1101,1 
Deeds Is Unconstitutional, 33 Calif. Law Rev. 5, 28, 29.

5 See, also cases cited, ibid., page 2 9 : McCabe v. Ate 
F. R. Co., 235 U. S. 141, 161, 162 ; Missouri ex rel. Games v. - 
305 U. S. 337, 351 ; Mitchell v. U. S., 313 U. S. 80, 97.



29

In these cases the re la tiv e  eq u itie s  m a y  b e  thus s ta te d : 
On the one hand there a re  the c o n tr a c t in g  p a r t ie s  w h o  in  
good faith believed that b y  jo in in g  in  a  c o v e n a n t  th e y  co u ld  
secure their p rop erty  fr o m  th e  u n d e s ira b le  p r o x im ity  o f  
colored neighbors. O n the o th e r  h a n d  th e re  is  th e  N e g r o  
who, during an acute h o u s in g  s h o r ta g e  is  p re v e n te d  f r o m  
acquiring a home, or, h a v in g  a cq u ire d  it , is  d r iv e n  o u t o f  it 
solely because he is a N eg ro .

It has been m ade a b u n d a n tly  c le a r  in  th e  ca ses  q u o te d  
above6 that the righ t o f  a p e r s o n  to  a cq u ire  p r o p e r t y  a n d  
remain unmolested in  the e n jo y m e n t  o f  it  is  a  p a ra m o u n t  
constitutional right. T h is  r ig h t  is  s u p e r io r  to  a n y  p r iv a te  
contractual right, and a ll c o n tra c ts  a re  su b o rd in a te  to  it. 
As Mr. Chief Justice H u g h es  sa id  in  Norm an  v . Baltim ore 
and Ohio Railroad Co., 294 U . S . 240, 3 0 8 :

Parties cannot rem ov e  th e ir  t ra n sa ct io n s  f r o m  the 
reach o f dom inant co n stitu t io n a l p o w e r  b y  m a k in g  
contracts about them .

Mr. Justice B rew er sa id  in  Long Island W a ter  Supply  
Co. v. Brooklyn, 166 IT. S . 685, 6 9 2 :

But into all con tracts , w h eth er  m a d e  b e tw e e n  S ta tes  
and individuals, o r  betw een  in d iv id u a ls  o n ly , th ere  
enter conditions w h ich  arise not out of th e  literal 
terms o f the con tra ct i t s e l f ; they a re  su p e r in d u ce d  
y the preex istin g  an d  h ig h e r  a u th o r ity  of th e  law s 

ot nature, or n ations or of the co m m u n ity  to  w h ich  
e parties belong; they are always presumed, and 

oiust be presumed, to be known and recognized by 
? ’ are. Binding upon all, and need never, therefore, 
Be carried into express stipulation, for this could add 
s°v, 1 °̂. ^eir force. Every contract is made in 
n or nation to them, and must yield to their control, 

conditions inherent and paramount, wherever a 
ecessity for their execution shall occur.

‘ See, also, cases cited in note 3, Point I, su pra  (p. 12).



30

T h e  la n g u a g e  o f  th is  C o u rt  in  N eblia  v. New Tori, 291 
U . S . 502, 523, is  a lso  in  p o i n t :

U n d e r  o u r  f o r m  o f  gov ern m en t the use o f  prop­
e r ty  a n d  th e  m a k in g  o f  co n tra cts  are normally mat­
te r s  o f  p r iv a te  a n d  n o t  o f  p u b lic  concern. T h e  general 
ru le  is  th a t b o th  sh a ll be  fr e e  o f  governmental inter­
fe r e n c e . B u t  n e ith e r  p r o p e r ty  rights nor contract 
r ig h ts  a re  a b s o lu te ; f o r  govern m en t cannot e x i s t !  
th e  c it iz e n  m a y  a t w ill  u se  h is  p roperty  to th e  detri­
m en t o f  h is  fe l lo w s , o r  ex e rc ise  his freedom o f  con­
tr a c t  to  w o r k  th em  h a rm .

I t  ca n n o t b e  d e n ie d  th a t th e  restr ictiv e  covenants herein 
w e re  to  th e  d e tr im e n t  o f  th e  N e g ro  owners and worked 
th em  h a rm . I f  th e y  h a d  b een  w h ite  there would h a v e  beei 
n o  su ch  d e tr im e n t o r  h a rm . I t  fo llo w s , therefore, that the 
ju d ic ia l  e n fo r ce m e n t  o f  th ese  coven ants, based solely upon 
th e  c o lo r  o f  th e  sk in , co n s titu te s  a denial o f equal protec­
t io n  o f  th e  law .

I t  is  o u r  co n te n tio n  th a t  ju d ic ia l enforcement of these 
r e s tr ic t iv e  co v e n a n ts  w o u ld  be  unconstitutional even as to 
th e  o r ig in a l p a r t ie s  to  th e  agreem en t. I f  one of the parties 
a tte m p te d  to  se ll to  a N e g r o , an  in ju n ction  to restrain him 
w o u ld  b e  p r o h ib it e d  sta te  a ction .

B u t  th e  fa c t s  in  th e  ca ses  a t ba r are stronger, f o r  the 
v ic t im s  o f  th ese  r e s tr ic t io n s  a re  n ot parties to the ague 
m en ts  th a t c re a te  th em . T h e ir  constitutional right to  bay. 
sell, a n d  e n jo y  p r o p e r t y  h as been  invaded without the 
s lig h te s t  sem b la n ce  o f  con sen t. A  person may la w fu l. 
b a r g a in  a w a y  som e  o f  h is  con stitu tion a l rights. H e ®  
n e v e r  b a r g a in  a w a y  th e  con stitu t ion a l right of-another

I t  h a s  b e e n  co n te n d e d  th at the cases that uphoh t-- 
c o n s t itu t io n a lity  o f  “ eq u a l b u t sep a ra te ”  a c c o m m o  a i®  
f o r  N e g r o e s  in  p u b lic  co n v e y a n ce s  are authority for t e



31

cial segregation crea ted  b y  r e s tr ic t iv e  cov en a n ts . T h e re  
are two answers:

The first is that h ou s in g  is  u n iq u e . A n  a g re e m e n t to  
purchase a particular p ie ce  o f  p r o p e r t y  is  n o t  sa tis fied  b y  
the offer o f som e oth er p r o p e r ty .7 D u r in g  a  h o u s in g  
shortage such as exists a t th e  p re s e n t  tim e  th ere  m a y  n o t  
be another house ava ilab le . B u t  in  a n y  even t, tw o  h ou ses  
are not identical in  the sense th a t tw o  d in in g  ca rs  o r  tw o  
Pullman cars or even  tw o  sch o o ls  a re  id e n tica l. A  w h ite  
man seeking a hom e has a  c o n s t itu t io n a lly  p r o te c te d  r ig h t  
to indulge in all the nuances a n d  v a g a r ie s  o f  ta ste . T o  r e ­
fuse the sam e right to  a N e g ro  is  to  d e n y  h im  eq u a l p r o te c ­
tion which, as the C ourt sa id  in  H ill v . T exas, 3 1 6  U .  S .  4 0 0 , 
404, “ is something m ore  th a n  an  a b s tra c t  r ig h t . I t  is  a 
command which the S ta te  m u st re sp e c t , th e  ben efits  o f  
which every  person  m ay  dem an d . ’ ’

But the com plete an d  fina l a n sw er  to  th e  “ eq u a l bu t 
separate”  argum ent is  th at th is  C o u rt  h a s  c le a r ly  a n d  
emphatically declared  th at it  d o e s  n o t  a p p ly  to  r a c ia l s e g ­
regation in housing. Buchanan v . W arley, p a g e  8 1 , s a y s :

As we have seen, th is co u r t  h a s  h e ld  la w s  v a lid  
which separated the ra ces  o n  th e  b a s is  o f  eq u a l a c ­
commodations in  p u b lic  co n v e y a n ce s , a n d  c o u r ts  o f  
high authority have h eld  en actm en ts  la w fu l w h ich  p r o ­
vide for separation  in  the p u b lic  s ch o o ls  o f  w h ite  a n d  
colored pupils w h ere equ a l p r iv i le g e s  a re  g iv en . B u t, 
m view o f  the r ig h ts  se cu red  b y  the F o u rte e n th  
Amendment to the F e d e ra l C o n st itu tio n , su ch  le g is la - 
ron must have its lim ita tion s , a n d  ca n n o t be  su sta in ed  

I f T  ex<?rc i?e a u th o r ity  e x ce e d s  the re s tra in ts  
a Yfm stitution- W e  th in k  th ese  lim ita tio n s  a re  

cee ed m  law s and o rd in a n ces  o f  the ch a ra c te r  n ow  
before us.

th e re m S ” V' Pm ckne^  118 N- Y- 604, 612, 613, and authorities



32

A ll  th at w e  sa id  in  th e  p re v io u s  point concerning due 
p r o c e s s  a p p lie s  e q u a lly  to  the equ a l protection clause of 
th e  F o u r te e n th  A m e n d m e n t. J u d ic ia l action is state action, 
a n d  a  ju d ic ia l  d e c re e  th a t d en ies  equal protection of tit 
la w  is  d e n ia l b y  th e  sta te .8 I t  is  forbidden  state action, 
“ o d io u s  to  a  fr e e  p e o p le  w h ose  institutions are founded 
u p o n  a d o c tr in e  o f  e q u a lity .”  EirabayasU v. Unitel 
States, 320 U . S . 81, 100.

H om e Tel. &  Tel. Co. v. 
Carter v. T exas, 177 U. S 
1,  16.



33

III

The judicial enforcement of the racial restrictive 
covenants in the District of Columbia cases violates 
the Due Process Clause of the Fifth Am endm ent and 
Section 1978 of the Revised Statutes (8  U . S. C., Sec. 
42).

Section 1978 o f  the R e v is e d  S ta tu tes , w h ich  is  a  c o n ­
gressional enactment, is  the m u n ic ip a l la w  o f  the D is tr ic t  
of Columbia, Civil Rights Cases (su p ra ).1 T h e  d ecrees  
which deny to N egroes “ the sam e r ig h t  * * * as is  en ­
joyed by white citizens * * * to  * * * p u rch a se , lea se , sell, 
hold and convey”  rea l p r o p e r ty  is  c le a r ly  in  v io la t io n  
thereof.

It is well settled that the w o r d s  “ due p r o c e s s ”  h ave  
the same meaning in  the F i f t h  a n d  F o u r te e n th  A m e n d ­
ment.2 In Twining v. New Jersey ,s d is cu ss in g  du e  p ro c e s s , 
it was said:

If any d ifferent m ea n in g  o f  th e  sam e w o r d s  as  th ey  
^ u s e d  in the F ou rteen th  A m e n d m e n t [a n d  in  th e  
huth Am endm ent] can  be  co n ce iv e d , n o n e  h as y e t  
appeared in ju d ic ia l d ec is ion .

All that we said above  co n ce rn in g  d u e  p r o c e s s  u n d e r  
the Fourteenth A m endm ent, th e re fo re , a p p lie s  h ere . I t  
"ould have been beyon d  the p o w e r  o f  C o n g re ss  to  en a ct 
a racial residential seg reg a tion  la w  f o r  th e  D is t r ic t  o f  

urn ia. The ju d ic ia l en fo rce m e n t o f  th e  r e s tr ic t iv e  

on *S- g ov ern m en ta l a c t io n  an d  co n se -
y eprived the p e tit ion ers  o f  th e ir  p r o p e r t y  w ith o u t 

dae process o f law.

I1Q9U. S. 3, 19.

110 U s 516 \^lonnan’ 285U. S. 312, 326; H urtado v. Calijornia, 
a. 516, Bowles v. Willingham, 321 U. S. 503, 518

3211 U. S. 78, 101.



34

IV

The case o f Corrigan  v .  B u ckley  did n o t  decide the 
questions presented herein.

T h e  ca se  o f  Corrigan  v . Buckley, 271 U. S. 323, has 
b e e n  fr e q u e n t ly  r e lie d  u p o n  b y  state  courts and the courts 
o f  th e  D is t r ic t  o f  C o lu m b ia  to  su sta in  the constitutionality 
o f  r a c ia l r e s t r ic t iv e  co v e n a n ts . A n  examination of the 
o p in io n  w ill sh ow  th at th e  ca se  has been misinterpreted, 
a n d  th at th e  q u e stio n s  p re se n te d  h ere  are still undecided

C o rr ig a n , B u ck le y  a n d  o th ers  m ade an agreement that 
n o  p a r t  o f  th e  r e s tr ic te d  p r o p e r ty , which was located ii 
th e  D is t r ic t  o f  C o lu m b ia , sh ou ld  he sold  to or occupied 1)J 
N e g ro e s . C o r r ig a n  m a d e  a  con tra ct to sell a lot to a 
N e g r o , a n d  a h il l w a s  filed  to  e n jo in  the sale. A motion 
w a s  m a d e  to  d ism iss  th e  b il l  on  the ground that the 
co v e n a n t w a s  v o id  b eca u se  it  v io la ted  the Constitution 
a n d  th e  L a w s  o f  the U n ite d  S ta tes , and was against putt 
p o lic y . T h is  m o t io n  w a s  d en ied .

T h e  ca se  re a ch e d  th is  C o u rt  on  appeal. The defend­
an ts b a se d  th e ir  a p p e a l on  the sole grounds that tit 
co v e n a n t w a s  v o id  b eca u se  it  v io la ted  the Fifth, Tin- 
teen th , a n d  F o u r te e n th  A m en dm en ts , and Sections A . 
1978, 1979, R e v is e d  S ta tu tes .

T h e  C o u r t  r e fu s e d  to  en terta in  jurisdiction and 
m issed  th e  a p p e a l b eca u se  the re cord  did not present a 
c o n s t itu t io n a l o r  s ta tu to ry  q u estion  substantial in char 
a cte r  a n d  p r o p e r ly  r a is e d  in  the low er court.

T h e  a tta ck  in  th is ca se  w a s so le ly  upon the constitu 
t io n a lity  o f  the covenant. T h e  C o u rt  stated in its °P®1® 
th at c o n tra c ts  b e tw een  in d iv id u a ls  d id  not come under ■ 
p ro h ib it io n s  o f  th e  F ift h , T h irteenth  and Fourteen̂ ' 
A m e n d m e n ts , n o r  w e re  th e y  in va lidated  by Sections  ̂
1978 o f  the R e v is e d  S ta tu tes . T h e  F ifth  Amendment,-



35

Court said, is a lim itation  u p o n  the p o w e r s  o f  the g e n e ra l 
government; the T h irteen th  A m e n d m e n t fo r b id s  in v o lu n ­
tary servitude, but does n o t  o th e rw ise  p r o te c t  in d iv id u a l 
rights; and the 14th A m en d m en t is  a  lim ita t io n  u p o n  state 
action, which was not in v o lv e d  in  the ca se  s in ce  it  a rose  
in the District o f  C olum bia.

The constitutionality o f  the decrees  o f  the lo w e r  co u r t  
(as distinguished fro m  the co n s t itu t io n a lity  o f  the c o v e ­
nants) was raised u p on  the a rg u m e n t in  the S u p rem e  
Court, but was not in  the re co rd . O n  th is  p o in t  th e  C o u rt  
said, page 331:

* * * this con ten tion  lik ew ise  ca n n o t se rv e  a s  a 
jurisdictional basis f o r  the a p p ea l. A s s u m in g  th a t such  
a contention, i f  o f  a su b sta n tia l ch a ra c te r , m ig h t h a v e  
constituted grou nd  f o r  an  a p p e a l u n d e r  P a r a g r a p h  3 
of the Code p rov is ion , it  w a s  n o t  r a is e d  b y  the p e t i­
tion for the appeal o r  b y  a n y  a ss ig n m e n t o f  e r ro r , 
either in the cou rt o f  a p p ea ls  o r  in  th is  c o u r t ; a n d  it  
likewise is lacking in  su bstan ce .

It appears, th ere fore , th at th is  p o in t  w h ich  is  n o w  
raised in the present cases, th a t ju d ic ia l  e n fo rce m e n t  o f  
racial restrictive coven ants is  fo r b id d e n  g o v e rn m e n ta l 
action, “ might have con stitu ted  g r o u n d  f o r  a n  a p p e a l”  i f  
it had been prop erly  ra ised .

Since the ease w as d ism issed  o n  ju r is d ic t io n a l g ro u n d s  
t e statement “ and is lik ew ise  la ck in g  in  s u b s ta n ce ”  is
ictum on a point w hich  the C o u rt  s ta te d  w a s  n o t  b e fo r e  

it.



36

Conclusion

For the reasons urged herein, we respectfully ask 
that the judgments o f the courts below be reversed,

R e s p e c t fu l ly  subm itted ,

J oseph M .  Proskauer 
J acob Grumet

Attorneys for
American Jewish Committee 
B’nai B’rith (Anti-Defamation League) 
Jewish W ar Veterans of the United 

States of America 
Jewish Labor Committee

Newman L evy 
Sol R abkin  
J acob S chaum

Of Counsel



37

APP EN D IX

American Jewish Committee

The American Jew ish  C om m ittee  is  a  c o r p o r a t io n  c re ­
ated by an A ct o f  the L e g is la tu re  o f  the S ta te  o f  N e w  
York in 1906. Its ch arter s ta t e s :

The object o f  th is c o r p o r a t io n  sh a ll b e  to  p re v e n t  
the infraction o f  the c iv il an d  re lig io u s  r ig h ts  o f  J e w s , 
in any part o f  the w o r ld ; to  r e n d e r  a ll la w fu l a ss is t­
ance and to take a p p ro p r ia te  re m e d ia l a c t io n  in  the 
event of threatened o r  a ctu a l in v a s io n  o r  r e s tr ic t io n  
of such rights, o r  o f  u n fa v o ra b le  d is c r im in a tio n  w ith  
respect thereto * * *.

During the fo r ty  y ea rs  o f  o u r  ex is ten ce  it  h a s  b een  one 
of the fundamental tenets o f  o u r  o rg a n iz a t io n  th a t the 
welfare and security o f  J ew s  in  A m e r ic a  d ep en d s  u p on  
the preservation  o f  con stitu tion a l g u a ra n te e s . A n  in v a s ion  
of the civil rights o f  an y  g ro u p  is  a  th re a t  to  the s a fe ty  
of all groups.

For this reason we h ave , on  m a n y  o c ca s io n s  fo u g h t  
in defense o f civil liberties a lth ou gh  J e w is h  in te re s ts  w e re  
not specifically involved . T h e  p re s e n t  r a c ia l  r e s tr ic t iv e  
covenant case is one w ith  w h ich  w e  a re  d e e p ly  co n ce rn e d , 

he pattern o f d iscrim in ation  in  h o u s in g  b eca u se  o f  ra ce , 
re y o n  and color has g row n  o m in o u s ly  in  r e ce n t  y e a rs , 
®  millions o f person s a re  b e in g  d e p r iv e d  o f  r ig h ts  th at

e nee y enjoyed b y  others. C oven a n ts  a g a in st  J e w s  a re  
mmg more frequent, b u t th is is  n o t  o u r  so le  in te rest . 

™ 0n ° f  fu n dam en ta l co n s titu t io n a l r ig h ts  o n  a
transn V  SCâ 6 Presents to  th is  C o u r t  a  q u e stio n  o f
transcendent public im portan ce .



38

B ’nai B ’rith (Anti-Defamation League)

B ’n a i B ’r ith , fo u n d e d  in  1843, is the oldest civic or- 
g a n iz a t io n  o f  A m e r ic a n  J e w s . I t  represents a member­
sh ip  o f  300,000 m en  a n d  w om en  and their families. The 
A n t i-D e fa m a t io n  L e a g u e  w a s  organ ized  in 1913, as a 
se c tio n  o f  th e  p a re n t  o rg a n iza tio n , in  order to cope with 
r a c ia l a n d  r e lig io u s  p r e ju d ic e  in  the United States. The 
p r o g r a m  d e v e lo p e d  b y  the L e a g u e  is designed to achieve 
th e  fo l lo w in g  o b je c t iv e s : to  elim inate and counteract 
d e fa m a t io n  a n d  d is c r im in a tio n  against the various racial, 
re lig io u s , a n d  e th n ic  g r o u p s  w h ich  com prise our American 
p e o p le ;  to  c o u n te ra c t  u n -A m erica n  and anti-democratic 
a c t iv it y ; to  a d v a n ce  g o o d w ill  and mutual understanding 
a m o n g  A m e r ic a n  g r o u p s ; to  en courage and translate into 
g r e a te r  e ffe c t iv e n e s s  th e  id ea ls  o f  Am erican democracy.

Jewish W a r Veterans of the United States 
of America

T h e  J e w is h  W a r  V e te ra n s  o f  the United States of 
A m e r ic a  w a s  o rg a n iz e d  in  1896 b y  C ivil W ar veterans of 
the J e w is h  fa ith . A t  th e  p resen t tim e it has 100,000 mem­
b e rs  o rg a n iz e d  in  600 P o s ts  in  275 cities throughout tie 
U n ite d  S ta tes . I t  ca r r ie s  an extensive veteran service 
p r o g r a m  r e p r e s e n t in g  v e te ra n s  b e fore  the Veterans Ad 
m in is tra tio n , co n d u cts  h o sp ita l and rehabilitation PK 
g ra m s  f o r  v e te ra n s , g iv e s  ad v ice , guidance and counseling 

th ro u g h  n in e teen  offices th rou gh ou t the United States, 
c a r r ie s  on  A m e r ic a n is m  p ro g ra m s  and, in geneial. PM 
g ra m s  s im ila r  to  th ose  o f  the A m erican  Legion, Veteran 
o f  F o r e ig n  W a r s  a n d  o th er  veteran  organizations.



39

Jewish Labor Committee

The Jewish L abor C om m ittee  is  an  o rg a n iz a t io n  r e p ­
resenting 500,000 affiliated J e w ish  tra d e  u n io n is ts  b e lo n g ­
ing to the A .F. o f  L . and C .I.O . In c lu d e d  a m o n g  its  a ffili­
ations are the In tern ation a l L a d ie s  G a rm en t W o r k e r s ’ 
Union, A.F. o f L ., U n ited  H a t  a n d  C a p  a n d  M illin e ry  
Workers, A .F . o f  L . and  the A m a lg a m a te d  C lo th in g  
Workers of A m erica, C .I.O . as w e ll as  m a n y  sm a ller  o r ­
ganizations. It functions in  b e h a lf o f  th ese  o rg a n iz a t io n s  
for the protection o f  J ew ish  a n d  J e w ish  la b o r  in te re s ts  
throughout the w orld . On the A m e r ic a n  scen e  it  con d u cts  
extensive educational w ork  in  b e h a lf o f  g o o d  h u m an  r e la ­
tions within the A .F . o f  L ., the C .I.O . a n d  in d e p e n d e n t 
anions, and overseas it p ro v id e s  a id  a n d  a ss is ta n ce  to  
labor and Jewish labor, c o o p e ra t iv e  a n d  cu ltu ra l in s t i­
tutions.



(199)







N os. 72, 87, 290, 291.

IN THE

iuprm? (tort of %  Ittitoft States
October Term, 1947

J. D. SHELLEY, ET AL.,
Petitioners,

v.
LOUIS KRAEMER, ET AL.

ORSEL McGHEE, ET AL.,
Petitioners,

v.
BENJAMIN J. SIPES, ET AL.

JAMES M. HURD, ET AL.,
Petitioners,

v.
FREDERICK E. HODGE, ET AL.

RAPHAEL G. URCIOLO, ET AL.,
Petitioners,

V.

FREDERICK E. HODGE, ET AL.

On W rits of Certio rari to  t h e  S u p r e m e  C o u r t s  o f  M is ­
souri and M ic h ig a n  a n d  t h e  U n it e d  S t a t e s  C o u r t  of 
A ppeals for t h e  D is t r ic t  of  C o l u m b ia .

Motion for Leave to File Brief and Brief for the American 
Association for the United Nations as Amicus Curiae

Algeb H iss,
Ashek B ob L an s , 
Philip C. J essup, 
Joseph M. P roskaue- 
Mwes H M cD ougal, 
Victor E lting ,

Of Count

A m e r ic a n  A s s o c ia t io n  f o r  
t h e  U n it e d  N a t io n s  

as A m icu s  Curias





I N D E X

PAGE

M otion ....................................................................................................  2

Brief ...................................................................................................... 3

Opinions B e l o w ......................................................................... 3

Jurisdiction ................................................................................ 3

Question P resen ted  ...............................................................  3

Summary o f  A r g u m e n t ........................................................... 4

A r g u m e n t

I—E nforcem ent o f  R a c ia l R e s tr ic t iv e  C oven a n ts  Is  
a V iolation  o f  A r t ic le s  55 ( c )  a n d  56 o f  the T r e a ty  
Known as the U n ited  N a tion s  C h a r t e r ......................  5

A . In terpretation  o f  A r t ic le s  55 ( c )  a n d  5 6 ............. 5

B. The O bligations o f  the U n ite d  S ta tes  U n d e r
A rticles 55 and  56 o f  the C h a rter  A r e  N o t  
Qualified b y  A r t ic le  2, P a r a g r a p h  7 T h e r e o f . .  13

II—As Part o f  the “ S u p rem e L a w  o f  th e  L a n d ” , 
Treaties In va lida te  C on flic t in g  P r o v is io n s  o f  
State Com m on L a w  o r  S ta te  S ta tu te s ......................... 15

III—Both State and F e d e ra l C ou rts  a re  P r o h ib ite d  
from  Taking A ffirm ative  A c t io n  W h ic h  C o n tra ­
venes the D eclared  F o r e ig n  P o l i c y  o f  th e  U n ite d  
States o f  E lim in atin g  R a c ia l a n d  R e lig io u s  D is ­
crimination .......................................................... 2 1

!V  Court Orders E n fo r c in g  R a c ia l R e s tr ic t iv e  C o v e ­
nants C onstitute G ov ern m en ta l A c t io n ......................  26

Conclusion— The D ecis ion s  o f  the C o u rt  B e lo w  S h ou ld  
Be R eversed 31



11

L is t  o f  A u t h o r it ie s . C it e d  

Cases
PAGE

A . F . o f  L . v . S w in g , 312 U . S . 3 2 1 .......................................  30

B e rn s te in  v . V a n  H e y g h e n  F r e r e s  S ocie te  Anonyme,
163 F e d . (2 d )  246 (C . C . A .  2 d ) .........................................  24

B u ch a n a n  v . W a r le y , 245 U . S . 6 0 ..................................... 10,29

C a n tw e ll v . C on n ecticu t , 319 U . S . 2 9 6 ................................ SO
C a rn e a l v . B a n k , 10 Id . 1 8 1 ...................................................... 17
C h ira c  v . C h ira c , 2 W h e a t . 2 5 9 ..............................................  17
C ity  o f  R ic h m o n d  v . B e a n s , 281 U . S . 7 0 4 ........................  10
C iv il  R ig h ts  C a ses , 109 U . S . 3 .......................................10,28,30
C la rk  v . A lle n , 67 S u p . C t. 1 4 3 1 ..............................................  17
C o r r ig a n  v . B u ck le y , 271 U . S . 3 2 3 ..................................... 10,11

R e  D ru m m o n d  W r e n  (1 9 4 5 ), 4 D o m in ion L aw  Reports 
674 (1 9 4 5 ) , O n ta r io  R e p o r t s  7 7 8 .......................................  11

E r ie  R a ilw a y  v . T o m p k in s , 3 0 4 'TJ. S . 6 4 ...........................  18

F a c t o r  v . L a u b e n h e im e r , 290 TJ. S . 2 7 6 .............................  8
F o n g  Y u e  T in g  v . U n ite d  S ta tes , 149 U . S. 698.............. 24

G a n d o lfo  v . H a rtm a n , 49 F e d . 181 (C . 0 .  S. D., 'Calif.) -17,29 
G e o fr o y  v . R ig g s , 133 U . S . 2 5 8 ............................................1M '

H a rm o n  v . T y le r , 273 U . S . 6 6 8 ............................................ 1®
H a u e n ste in  v . L y n h a m , 100 U . S . 4 8 3 ..............................C  ^
H u g h e s  v . E d w a rd s , 9 Id . 4 8 9 ................................................  ^
H u r d  v . H o d g e , 162 F e d . (2 d )  233 (A p p . D . C .) . .  .10,11)28

J o n e s  v . U n ite d  S ta tes , 137 U . S . 2 0 2 ................
J o r d a n  v . T a s h iro , 278 U . S . 1 2 3 ..........................

K e n n e tt  v . C h a m b ers , 14 H o w . 3 8 .....................

M a rsh  v . A la b a m a , 326 U . S . 5 0 1 ..........................
M is s o u r i v . H o lla n d , 252 U . S . 4 1 6 .....................

N ie lse n  v . J o h n s o n , 279 U . S . 4 7 .........................
N o r c r o s s  v . J a m e s , 140 M a ss . 182, 2 N. E . 946

7,17
27



I l l

PAGE
Orr v. H odgson, 4 W h ea t. 4 5 3 ......................................................  18

Santovincenzo v. E ga n , 284 U . S . 3 0 .......................................  15
Steele v. L. & N. B y ., 323 U . S . 1 9 2 ............................................  30

Todok v. U nion S tate B ank , 281 U . S . 4 4 9 .............................  17
Tulk v. M oxhay, 2 P h illip s  774 (E n g lis h  C h a n cery ,

1848) ..................................................................................................  27
Tucker v. A lex a n d ro ff, 183 U . S . 4 2 4 .......................................  6

Valentine, et al. v . N e id eck er, 299 U . S . 5 .............................  7
Ex Parte V irg in ia , 100 U . S . 3 3 9 ..............................................  30

United States v. B elm on t, 301 U . S . 3 2 4 ............................. 20, 23
United States v. C u r t is s -W r ig h t  E x p o r t  C o rp o ra t io n ,

299 U. S. 304 .....................................................................................  24
United States v. P in k , 284 N . Y . 555, 32 N . E . (2 d )

552 ........................................................................................................  19
United States v. P in k , 315 U . S . 2 0 3 .....................................20, 23
University o f  I llin o is  v. U n ited  S ta tes , 289 U . S . 4 8 . . . .  16

Ware v. H ylton, 3 D a ll.1 9 9 .............................................................  17

Yick W o v. H opkins, 118 U . S . 3 5 6 ............................................  10

S t a t u t e s

Constitution o f  the U n ited  S ta tes , A r t .  I I ,  S ec . 2
Fifth A m end...............................................

Fourteenth A m en d ............................................
Art. V I, Sec. 2 ....................................................................

Civil Rights A ct  o f  1866, 8 U . S . C . § 4 2 ....................

28 U. S. C. §344 ( b ) . . .
§347 (a).............................................

. . . .  5

. . . .  2 

. . . .  2 
1 5 ,1 8 , 30

.9 ,1 0 ,1 1

. . . .  3

. . . .  3



IV

M iscellaneous Authorities

PAGE
A m e r . L a w  In st ., S ta tem en t o f  E ssentia l Human 

R ig h ts , A r t .  1 7 . ..........................................................................  jj

A n n a ls  o f  the A m e r ic a n  A c a d e m y  o f  P olitica l and So­
c ia l S c ie n ce , 1 .......................................   11

C h a rte r  o f  th e  U n ite d  N a tio n s , C om m en tary  and Docu­
m en ts  (1 9 4 6 ) 1 9 2 ...................................................................... 3

2 H y d e , In te rn a tio n a l L a w  (1945  ed .) 1938 ................... 16

1 K e n t , C o m m en ta r ies , 1 7 4 ....................................................  6

P o ts d a m  D e c la ra t io n , S ec . I l l  A  4 .......................................  22

R e p o r t  o f  P r e s id e n t ’ s C om m ittee  on Civil Eights 
(1 9 4 7 ) 146 ....................................................................................  22

S te tt in iu s , C h a rte r  o f  U n ite d  N a tion s— R eport to the 
P r e s id e n t  o f  th e  R e s u lts  o f  the S an  Francisco Con­
fe r e n c e , D e p t , o f  S ta te  P u b lica t io n  2349, Conf. Ser,

S te tt in iu s , H u m a n  R ig h ts  in  the U n ited  Nations Char­
te r  (1 9 4 6 ) 2 4 3 ...........................................................................l:

U n ite d  N a t io n s  C h a rter , A r t .  2, p a r . 7 ............................

T u n is -M o r o c c o  N a t io n a lit ie s  C ase , 1 W o r ld  Court Be- 
p o r ts  1 5 6 ......................................................................................



IN’ TH E

§npnw (tort of tip llmteb States
Octobeb T eem , 1947

------------------+------------------

N o. 72
J . D . S helley , e t  a l . ,

P etitioners,
v.

L o u is  K raemer, e t  a l .

On W rit oe Certiorari to th e  S uprem e  C ourt 
of the S tate of M issouri.

N o. 87.
O r s e l  M c Gt h e e , e t  a l . ,

P etitioners,
v.

B en jam in  J . S ipes, e t  a l .

On  W rit of Certioeaei to th e  S uprem e  Court 
of the S tate of M ich ig an .

N o. 290.
J ames M. H urd, e t  a l . ,

v.

F rederick E . H odge, e t  a l .  

N o. 291.

R aphael Gr. U rciolo, e t  a l . ,  

v.

F rederick E . H odge, e t  a l .

P etitioners,

P etitioners,

bits of Certioeaei to the  U nited S tates C ourt of 
A ppeals for the D istrict of C olum bia .

■-------- ------------- f -----------------------

MF0R}T m ° RA ^ AVE T 0  FILE BRIEF AND BRIEF
TA n .dMKKICAIS a s s o c i a t i o n  f o r  t h e
UNITED NATIONS AS AMICUS CURIAE



2

M OTION OF THE AMERICAN ASSOCIATION FOR 
THE UNITED NATIONS FOR LEAVE TO FEE 

BRIEF AS AMICUS CURIAE

T h e  A m e r ic a n  A s s o c ia t io n  f o r  the United Nations re­
s p e c t fu l ly  re q u e sts  th is  C o u rt  f o r  leave to file a brief as 
amicus curiae in  th e  a b o v e -ca p t io n e d  cases. We have re­

c e iv e d  the co n se n t o f  co u n s e l to  both  petitioners and re­
sp o n d e n ts  in  N o s . 87, 290, a n d  291. W e  have not received 
a n y  a n sw er  to  o u r  le tte rs  to  cou n se l in  No. 72.

T h e  A m e r ic a n  A s s o c ia t io n  fo r  the United Nations is 
a  n a tio n w id e , n o n -p ro fit  o rg a n iza tio n  whose members are 
v it a l ly  in te re s te d  in  a d h eren ce  b y  th is Government to tie 
p r o v is io n s  a n d  to  th e  s p ir it  o f  the U nited Nations Charter,

W e  h a v e  file d  th is  b r ie f  becau se  o f  the extraordinary 
im p o r ta n ce  o f  th ese  ca ses , p a rticu la r ly  with reference to 
the g o o d  fa ith  o f  th is  c o u n try  in  observ in g  the intent of tie 
C h a rter . W e  b e lie v e  th a t, i f  th is C ourt were to uphold tie 
d e c re e s  b e lo w  e n fo r c in g  ra c ia l restrictive covenants, tie 
g u a ra n te e s  o f  fu n d a m e n ta l h um an  rights contained in the 
C h a rte r  w o u ld  be  v it ia te d  a n d  the international prestige of 
th is  c o u n tr y  w o u ld  b e  g r e a t ly  im paired . We further be­
lie v e , a lth o u g h  th is  p o in t  w ill n o t he elaborated upon in our 
b r ie f ,  th a t th ese  d e c r e e s -v io la te  the F ifth  and Fourteenth 
A m e n d m e n ts  to  th e  C on stitu tion .

O n  th e  o th e r  h a n d , re v e rs a l o f  the decrees by this Court 
w o u ld  b e  a m a g n ifice n t  a ffirm ation  o f  the principles to 

w h ich  th is  c o u n tr y  h as su b scr ib ed  in  the United Nation- 
C h a rte r  a n d  in  the U n ite d  S ta tes  Constitution. The Aniei 
lea n  A s s o c ia t io n  f o r  the U n ited  Nations, therefore, r« 

s p e c t fu l ly  re q u e sts  le a v e  to  file  th is b r ie f amicus curiae.



3

BRIEF FOR THE AMERICAN ASSOCIATION FOR  
THE UNITED NATIONS AS AMICUS CURIAE

Opinions Below

The opinion o f  the S u p rem e C o u rt  o f  the S ta te  o f  M is ­
souri in No. 72 (R . 153-159), is  r e p o r te d  a t 198 S . W . 2d  
679. The opinion o f  the S u p rem e  C o u rt  o f  th e  S ta te  o f  
Michigan in No. 87 (R . 6 0 -69 ), is  r e p o r te d  a t 316 M ich . 
614. The opinion o f  the U n ited  S ta tes  C o u rt  o f  A p p e a ls  
for the D istrict o f  C olu m bia  in  N os . 290 a n d  291 (R . 417- 
432) is reported at 162 F . 2nd  233.

Jurisdiction

This C ourt’ s ju r isd ic t io n  is  in v o k e d  u n d e r  28 U . S . 0 . 
§344 (b) and §347 (a ) .

Question Presented

This brief w ill be  p r im a r ily  c o n ce rn e d  w ith  th e  q u e s ­
tion of whether b y  e n fo rc in g  ra c ia l r e s tr ic t iv e  cov en a n ts  
(a) so as to preclude p e tit io n e rs , as n e g ro e s , f r o m  p u r ­
chasing an d /or occu p y in g  rea lty , (b )  so as to  p re c lu d e  
othei owners o f  rea lty  fr o m  se llin g  o r  le a s in g  th e ir  p r o p -  
eity to negroes, and (c )  so as to  e je c t  n e g ro e s  f r o m  p r o p ­
erty already occupied  b y  them , the C o u rts  b e lo w  v io la te d  
Articles 55 (c ) and 56 o f  the U n ited  N a t io n s ’ C h a rter .

The second question  d iscu ssed  is  w h eth er  th e  e n fo r c e ­
ment of racial restrictive  coven a n ts  b y  th e  C o u rts  b e lo w  

°es not constitute im p ro p e r  in te r fe re n ce  w ith  th e  p u b lic



4

p o li c y  en u n cia ted  in  E x e c u t iv e  A greem en ts and Declara­
tio n s , m a d e  in  th e  co n d u c t  o f  the fo re ig n  relations of tie 
U n ite d  S ta tes .

S u m m a r y  o f  A r g u m e n t

I .  E n fo r c e m e n t  o f  ra c ia l r e s tr ic t iv e  covenants is a vio­
la t io n  o f  A r t ic le  5 5 (c )  a n d  56 o f  the treaty known as tie 
U n ite d  N a t io n s  C h a rte r .

a. In te r p r e ta t io n  o f  A r t ic le s  5 5 (c )  and 56.

b . T h e  o b lig a t io n s  o f  the U n ited  States under Articles 
55 a n d  a n d  56 a re  n o t  qu a lified  by  Article 2, Para­
g r a p h  7 th e r e o f .

I I .  A s  p a r t  o f  th e  ‘ ‘ S u p re m e  L a w  o f  the Land” , treaties 
in v a lid a te  co n flic t in g  p r o v is io n s  o f  state common law or 
sta te  sta tu tes .

I I I .  B o th  s ta te  a n d  fe d e r a l  cou rts  are prohibited from 
ta k in g  a ffirm ative  a c t io n  w h ich  contravenes the declared 
fo r e ig n  p o l i c y  o f  th e  U n ite d  S ta tes  o f  eliminating racial 

a n d  r e lig io u s  d is cr im in a tio n .

I V . C o u r t  o r d e r s  e n fo r c in g  ra c ia l restrictive covenants 

co n s titu te  g o v e rn m e n ta l a ction .



5

I

Enforcement of Racial Restrictive Covenants Is a 
Violation of Articles 5 5 (c )  and 56  of the Treaty Known 
as the United Nations Charter.

A. Interpretation of Articles 55(c) and 56

Insofar as p resen tly  re leva n t, A r t ic le  5 5 (c )  o f  the 

United Nations C harter p r o v id e s :

“ * * * the U n ited  N a tion s  sh a ll p r o m o te  * * * 
uniform  respect fo r ,  and  ob se rv a n ce  o f ,  h u m a n  r ig h ts  
and fundam ental fre e d o m s  f o r  a ll w ith o u t  d is t in c ­
tion as to race, sex , la n g u a g e , a n d  r e l ig io n .”

Article 56 o f  the C harter em b od ies  the fo l lo w in g  c o m ­
mitment by the ra tify in g  n a tion s  to  im p lem en t the p r o v i ­
sions of A rticle 55:

“ A ll m em bers p le d g e  th em se lves  to  tak e  jo in t  
and separate action  in  c o o p e r a t io n  w ith  the O rg a n i­
zation fo r  the a ch ievem en t o f  the p u rp o s e s  set fo r t h  
in A rticle 5 5 .”

The United N ations C h a rter  w a s  ra tifie d  b y  th e  P r e s i ­
dent of the U nited States, a fte r  con sen t h a d  b een  g iv e n  b y  
the Senate pursuant to A r t ic le  I I ,  S e c t io n  2, o f  th e  C o n st i­
tution. 51 Stat. 1031. A cco rd in g ly , the C h a rter  is  a  “ tr e a ty  
made * * * under the a u th ority  o f  the U n ite d  S ta te s ”  a n d  is  
“ the supreme law  o f  the la n d .”

Unless assured equal a ccess  to  h o u s in g  a n d  sh e lter , m i- 
1101 it\ gioups are d iscr im in a tor ia lly  d e p r iv e d  o f  l ib e r ty  
and property. H ence it  seem s to us p la in  th a t the r ig h t  to  
acquire and occupy p ro p e r ty  w ith ou t d is cr im in a tio n  be-



6

ca u se  o f  ra ce  is  on e  o f  th e  “ fu n d a m en ta l freedoms” pro- 
te c te d  b y  A r t ic le s  5 5 (c )  an d  56 o f  the Treaty. In partic­
u la r , th ese  p r o v is io n s  p re c lu d e  a ll cou rts o f the United 
S ta te s  f r o m  e n te r in g  a n y  d e cre e s  w h ich  affirmatively sup­
p o r t  a n d  e n fo r c e  ra c ia l d is cr im in a tio n  in the acquisition 
a n d  o c cu p a n cy  o f  p r o p e r ty .

(1 )  R e c o g n iz in g  th a t  a s cru p u lou s  respect for interna­
t io n a l a g reem en ts  is  th e  b e d ro ck  u p on  w hich civilized inter­
n a tio n a l l i fe  is  bu ilt, th is  C o u rt  has consistently held that 
su ch  a g reem en ts  m u st be  b r o a d ly  construed .

I n  Tucker  v. A lexandroff, 183 U . S. 424, 437, the court 
q u o te d  a p p r o v in g ly  C h a n ce llo r  K e n t ’ s famous doctrine: 
‘ ‘ T re a t ie s  o f  e v e r y  k in d  a re  to  re ce iv e  a fair and liberal 
in te rp re ta t io n  a c c o r d in g  to  the in ten tion  o f the contracting 
p a r t ie s , a n d  a re  to  be  k e p t  w ith  the m ost scrupulous good 
fa i t h ”  (1  K e n t , Commentaries, p . 174).

I n  F actor  v . Laubenheim er, 290 U . S. 276, 293, this Court 
h e ld :

“ I n  c h o o s in g  b e tw een  con flicting  interpretations 
o f  a  t r e a ty  o b lig a t io n , a  n a rro w  and restricted con­
s tru c t io n  is  to  be  a v o id e d  as n ot consonant with the 
p r in c ip le s  d eem ed  co n tro ll in g  in  the interpretation 
o f  in te rn a tio n a l a g reem en ts  * # *. F or that reason 
i f  a t r e a ty  fa i r ly  a d m its  o f  tw o constructions, one 
r e s tr ic t in g  th e  r ig h ts  w h ich  m ay  be claimed under 
it , a n d  th e  o th e r  e n la rg in g  it, a more liberal con­
s tru c t io n  is  to  b e  p r e fe r r e d .”

T h is  d o c tr in e  is  e q u a lly  a p p lica b le  in the construction of 
tre a t ie s  d e a lin g  w ith  q u estion s  w h ich , under our Federal 
system , m ig h t o th e rw ise  be  con fid ed  to the jurisdiction of



7

the separate states.1 F o r , as s ta ted  b y  M r. J u s t ic e  S to n e  in  
Nielsen v. Johnson, 279 U . S . 47, 5 2 :

“  * * * as the trea ty -m a k in g  p o w e r  is  in d ep en d en t 
o f and su perior to  the le g is la t iv e  p o w e r  o f  th e  sta tes, 
the m eaning o f  tre a ty  p r o v is io n s  so c o n s tru e d  is  n o t  
restricted b y  an y  n e ce ss ity  o f  a v o id in g  p o ss ib le  c o n ­
flict w ith  state le g is la tio n  * #

See, also, Valentine, et al. v. Neideclcer, 299 U . S . 5 ;  Jordan 
v. Tashiro, 278 U. S. 123, 127-130.

(2) The decision  o f  the S u p rem e  C o u rt  o f  M ich ig a n  
in No. 87, McGhee do M cGhee v. Sipes, et al. (E . 6 0 -6 9 ), 
asserted that the p ro v is io n s  o f  A r t ic le s  5 5 (c )  a n d  56 o f  the 
Charter are m erely  the sta tem en t o f  “ an  o b je c t iv e  d e v o u tly  
to be desired b y  a ll w ell-th in k in g  p e o p le . ’ ’

This in terpretation  is  an  u n rea son a b le  c o n s tru c t io n  o f  
these Articles. I f  the d ra ftsm e n  o f  the C h a rte r  h a d  p o s ­
sessed the lim ited in ten tion  a scr ib e d  to  th em  b y  th e  S u ­
preme 'Court o f  M ich igan , th ey  n eed  o n ly  h a v e  in se rte d  
therein a general d ec la ra tion  th at th e  p r o m o t io n  o f  h u m an  
rights was one o f  the o b je c t iv e s  o f  th e  o rg a n iza tio n .

Indeed, the first d r a ft  o f  the U n ite d  N a tio n s  C h a rte r—  
the so-called “ T he D u m b a rton  O aks P r o p o s a ls ” — co n ­
tained only the m ost n om in a l r e fe re n ce  to  the p r o te c t io n

his statement is not to be taken as a concession that, apart
rom the existence of relevant international agreements, the de-
ermination of whether or not racial restrictive covenants should be
ju icia y enforced is to be made solely in the light o f the public
P icy o the several states. In our opinion, enforcement o f such

venan s is prohibited by the Fourteenth Amendment to the United
amirL , °nf ltlltl° n> for the reasons persuasively stated in the
AmeriV rip S. ? * herdn the Department of Justice and by theAmerican Civil Liberties Union.



8

o f  h u m a n  r ig h ts  a n d  d id  n o t  p la ce  a n y  obligation upon the 
s ig n a to r y  p o w e r s  f o r  th e ir  p ro te c t io n . (See Stettinius, 
Charter o f  the United N ations— R eport to the President 
on the R esults o f the San Francisco Conference, Dept, of 
S ta te  P u b lic a t io n  2349, C o n fe re n ce  S er. 71, pp. 25-27.)

H o w e v e r , a t  th e  o u tse t  o f  th e  S an  Francisco Confer­
en ce , the U n ite d  S ta te s  D e le g a t io n  p ro p o se d  that the agree­
m en t be  e x p a n d e d  to  in c lu d e  g u a ra n tees  o f  the fundamental 
fr e e d o m s  “ f o r  a ll, w ith o u t d is t in c tio n  as to race, sex, lan­
g u a g e  o r  r e l ig io n ” . T h e  p re s e n t  lan gu age o f Article 55(e)  
w a s  d r a ft e d  p r in c ip a l ly  b y  th e  U n ited  States Delegation, 
F o r m e r  S e c r e ta r y  o f  S ta te  S te tt in iu s , in  his Report to the 
P r e s id e n t  on  the S a n  F r a n c is c o  C onference, stressed the 
s ig n ifica n ce  o f  th e  w o r d  “ o b s e r v a n c e ”  in  the final version 

o f  th a t A r t ic le . Ibid.

T h e  r e c o r d  o f  th e  S a n  F r a n c is c o  Conference fu rth er  
in d ica te s  th a t A r t ic le  56 w a s  in se rte d  in  the Charter so as 
to  m a k e  th e  p le d g e  o f  ob se rv a n ce  o f  human rights con­
ta in e d  in  5 5 (c )  a com m itm en t b in d in g  upon the m em ber  
n a tio n s .2 3 A s  s ta ted  in  a C om m ittee  report, the o b lig a t io n  
im p o s e d  b y  A r t ic le  56 w a s  th r e e -fo ld : “ To take se p a r a te  
a c t io n  to  im p lem en t th e  p u rp o s e s  o f  A rticle 55, to ta le  
jo in t  a ct io n , a n d  to  c o o p e r a te  w ith  the Organization.” See

2 It is well established that the record of negotiations preceding 
the preparation of a Treaty is germane in construing the Pr0™'°”s 
of that Agreement. See Terrace, et al. v. Thompson, 263 U. S. > 
223-4; U. S. Shoe Machinery Company v. Duplessis Shoe Macwier) 
Company, 155 Fed. 842, 848 (C. C. A. 1st); Lighthouses case, ten 
Ct. Int. Jus., Judgment, March 17, 1934, Ser. A /B, N o. 6 , P- 1
3 Hudson, World Court Reports (1938) 368, 378; Lauterpa . 
Some Observations on Preparatory Work in the Interpreted 
Treaties (1935), 48 Harv. L. Rev. 549, 552, 571-3, 591,  ̂ 1
International Law (1945 Ed.) pp. 1468-70; McNair, ® 
Treaties (1938) 185.



9

Goodrich and H am bro, Charter o f the United Nations, Com­
mentary and Documents (1 9 4 6 ), p . 192.3

Secretary S tettin ius h as s ta ted  th a t A r t ic le  56 w a s  in ­
tended to constitute a p le d g e  b y  the s ig n a to r y  p o w e rs  to  
protect human righ ts , “ to  th e ir  o w n  b e s t  a b ility , in  th e ir  
own way, and in  a ccord a n ce  w ith  th e ir  ow n  p o lit ic a l  an d  
economic institutions an d  p r o c e s s e s ”  S te tt in iu s , op. cit. 
supra, p. 115.

In the federa l stru ctu re  o f  th e  U n ite d  S ta te s , it  is  the 
especial responsib ility  o f  th is  C o u rt  to  tak e  a p p r o p r ia te  
action to protect, as a ga in st d is c r im in a tio n  b y  lo c a l  g o v ­
ernmental bodies, in clu d in g  the sta te  co u rts , th ose  h u m an  
rights to whose en fo rcem en t the U n ite d  S ta te s  G o v e rn ­
ment is pledged b y  so lem n  in te rn a tio n a l a g reem en t.

(3) A s prev iou sly  p o in te d  ou t, A r t ic le  5 5 ( c )  w a s  in ­
troduced into the T re a ty  at the in s is te n ce  o f  th e  U n ite d  
States Delegation to the S an  F r a n c is c o  C o n fe r e n c e . I t  is  
therefore appropriate  that c o n s id e ra t io n  sh ou ld  b e  g iv e n , 
in interpreting this A r t ic le , to  the t r a d it io n a l A m e r ic a n  
definitions o f fundam ental hum an  r ig h ts .

The right to use and o c c u p y  re a l p r o p e r t y  fr e e  o f  ra c ia l 
discrimination is one o f  th ose  fu n d a m e n ta l fr e e d o m s .

Congressional a ccep tan ce  o f  th is ten et is  in d ica te d  b y  
the Civil E ights A c t  o f  1866, r e a d in g :

‘ A ll citizens o f  the U n ite d  S ta te s  sh a ll h a v e  the 
same right in  ev e ry  S ta te  a n d  T e r r it o r y  as is  en-

See also United Nations 
t̂ion, San Francisco 1945, 

document 699, 11/3/40, May 
June 2, 1945.

Conference on International Organi- 
Volume X , pp. 139, 140, and 160; 
30, 1945, and Document 747, 11/3/46,



10

joyed by white citizens thereof to inherit, purchase, 
lease, sell, hold and convey real and personal prop' 
erty.”  8 U. S. C. §42.

In a series of decisions dating back to the 1870s, this 
Court has made it plain that racial inhibitions on the oppor­
tunity to occupy realty are prohibited by the Fourteenth 
Amendment. Thus in the Civil Bights Cases, it was held 
that the right “ to hold property, to buy and to sell” with­
out discrimination as to race could not be impaired by legis­
lative, judicial or executive action by the states. 109 U. S, 
3, 17.

In Yick Wo v. Hopkins, 118 U. S. 356,—the first case in 
which state action was invalidated under the Fourteenth 
Amendment—the unanimous Court barred enforcement of 
a municipal ordinance, which, despite its impartial lan­
guage, had been applied so as to discriminate against the 
utilization of certain types of buildings by Orientals.

The thread of these and similar cases was firmly woven 
into the law of the land in Buchanan v. Warley, 245 U. S. 60, 
where it was stated that the right to buy, use and dispose of 
property on equal terms was a fundamental right of citi­
zenship. In effectuation of this principal, it was held that 
a municipality could not constitutionally regulate the pur­
chase and sale of property for occupancy, in terms of the 
color of the proposed occupant. See, also, Harmon v. 
Tyler, 273 U. S. 668; City of Richmond v. Deans, 281F& 
704.

(The statement of the majority in No. 290, Hud v 
Hodge, 162 Fed. (2d) 233 (App. D. C.), that the decision of 
this Court in Corrigan v. Buckley, 271 U. S. 323, insulate 
racial restrictive covenants against invalidation un e



11

Fourteenth Amendment is clearly erroneous. As pointed 
out in the dissenting opinion of Mr. Justice Edgerton in 
Hurd v. Hodge, all that the court held in Corrigan was that 
such covenants are not void per se under the Constitution 
and the Civil Rights Act. The contention that the Consti­
tution and the Civil Rights Act prohibited enforcement of 
such covenants was not before this Court in that case.)

(4) Persuasive support for the conclusion that enforce­
ment of racial restrictive covenants is prohibited by the 
United Nations Charter is provided by the views of au­
thoritative commentators.

Thus, Edward Stettinius, Chief of the United States 
Delegation to the San Francisco Conference, has declared 
that the right to purchase and use property without dis­
crimination because of race is one of the freedoms guaran­
teed by these sections. See Stettinius, Human Rights in 
the United Nations Charter (1946) 243 Annals of the 
American Academy of Political and Social Science, pp. 1-3.

Similarly, Article 17 of the Statement of Essential Hu­
man Rights prepared by the American Law Institute de­
clares that

“ Everyone has the right to protection against 
arbitrary discrimination in the provisions and 
application of the law because of race, religion, sex or 
any other reason.” 4

This interpretation is further bolstered by the decision 
the High Court of Ontario in Re Drummond Wren

(1945), 4 Dominion Law Reports 674, (1945) Ontario Re­
ports 778.

f r e e d o m r ' t l i p t - th f  t j t a t e m e n t  i n c I u d e s  a m o n g  t h e  f u n d a m e n t a l  
> !g h t  o f  a l l  i n d i v i d u a l s  t o  “ a d e q u a t e  h o u s i n g ” .



This case arose upon an application, under a special 
statutory proceeding available in Ontario, to have the fol­
lowing restrictive covenant declared invalid: “ Land not 
to be sold to Jews or persons of objectionable nationality.”

The Ontario High Court found that the quoted cove­
nant was invalid, since violative of the United Nations 
Charter and also of the public policy of the province. Tie 
relevant portion of the Court’s decision is as follows:

‘ ‘ First and of profound significance is the recent 
San Francisco Charter, to which Canada was a signa­
tory, and which the Dominion Parliament has now 
ratified. * * *

“ Under articles 1 and 55 of this Charter, Canada 
is pledged to promote ‘ universal respect for, and 
observance of, human rights and fundamental free­
doms for all without distinction as to race, sex, 
language or religion.’ * * *

“ Ontario and Canada too, may well he termed a 
province, and a country, of minorities in regard to 
the religious and ethnic groups which live therein, 
It appears to me to be a moral duty, at least, to lend 
aid to all forces of cohesion, and similarly to repel 
all fissiparous tendencies which would imperil na­
tional unity. The common law courts have, by their 
actions over the years, obviated the need for rig* 
constitutional guarantees in our policy by their wise 
use of the doctrine of public policy as an active agen 
in the promotion of the public weal. While com s 
and eminent judges have, in view of the poweis o 
our legislatures, warned against inventing new ®a s 
of public policy, I do not conceive that I w°u e 
breaking new ground were I to hold the restncr  ̂
covenant impugned in this proceeding to be V01 ® 
against public policy. Rather would I he appy »

12



13

well-recognized principles of public policy to a set 
of facts requiring their invocation in the interest of 
the public good. * * *

“ My conclusion therefore is that the covenant is 
void because offensive to the public policy of this 
jurisdiction. This conclusion is reinforced, if re­
inforcement is necessary, by the wide official ac­
ceptance of international policies and declarations 
frowning on the type of discrimination which the 
covenant would seem to perpetuate ”  [(1945) On­
tario Reports at 781-784]. (Italics supplied.)

B. The Obligations of the United States Under Articles 55 
and 56 of the Charter Are Not Qualified by Article 2, 
Paragraph 7 Thereof

Article 2, paragraph 7 of the United Nations Charter 
provides:

“ Nothing contained in the present Charter shall 
authorize the United Nations to intervene in matters 
which are essentially within the domestic jurisdic­
tion of any state or shall require the Members to 
submit such matters to settlement under the present 
Charter. * * *”

It is plain that this language is a limitation on the United 
Nations Organization itself and that it does not in any 
way modify the obligations assumed under the Charter by 
the several member States.

Article 56 embodies a specific commitment by all signa- 
tmy nations to carry out the purposes of Article 55'. It 
is arguable that sub-sections (a) and (b) of Article 55— 
pledging the promotion of “ higher standards of living”  
and the solution of various international problems—are too 
Va°Ue ari(l embracing to compel specific action under



Article 56, or to affect the decisions of national tribunals, 
However, the more explicit language of sub-section (c) of 
Article 56 is a mandate to this Court (and the courts of all 
member nations) to protect all generally accepted “human 
rights and fundamental freedoms.”

Article 56 imposes upon the United States the legal ob­
ligation to enforce the objectives stated in Article 55, in 
accordance with its ‘ ‘ own political and economic institu­
tions and processes.”  Stettinius, op. cit. supra, p. 115. 
At the very least, the courts of the United States are obli­
gated to take no action which violates those “ human rights 
and fundamental freedoms ’ ’, which as demonstrated above, 
are protected under Article 55(c), against discrimination 
because of “ race, sex, language and religion” .

14

The argument of the preceding paragraphs is not in­
tended to be a concession that the question of whether or 
not Negroes are protected against discrimination in the ass 
of land is “ within the domestic jurisdiction” , as that phrase 
is used in Article 2, paragraph 7 of the Charter. A field of 
policy ceases to be essentially “ within the domestic juris­
diction”  of a state, if “ the right of the state to use its dis­
cretion is * * # restricted by obligations which it may haw 
undertaken toward other states.”  Tunis-Morocco Nutiw- 
alities Case, 1 World Court Reports 156.

In so far as the United States has assumed obligations, 
under Articles 55(c) and 56 (and also under the E xecu tive  
Agreements and Declarations referred to in P0̂  ® 
hereof), to protect “ human rights and fundamental free 
doms” , these matters cease to remain “  essentially wit® 
the domestic jurisdiction”  of the United States.



15

II

As Part of the “ Supreme Law of the Land” , Treaties 
Invalidate Conflicting Provisions o f State Common Law 
or State Statutes.

In No. 87, McGhee & McGhee v. Sipes, et al., The Mich­
igan Supreme Court implied that the provisions of a 
Treaty are not “ applicable to the contractual rights be­
tween citizens when a determination of these rights is sought 
in a State court”  (R. 67). This doctrine is contrary to the 
express language of the United States Constitution and to 
a half score of decisions of this Court, which make the 
provisions of treaties binding in all law suits brought in 
any court in the United States.

(1) Article VI, Section 2, of the Federal Constitution
states:

“ This Constitution, and the Laws of the United 
States which shall be made in pursuance thereof; 
and all treaties made, or which shall be made, under 
the Authority of the United States, shall be the 
supreme law of the Land; and the Judges in every 
State shall be bound thereby, anything in the Con­
stitution or Laws of any State to the contrary not­
withstanding. ’ ’

It has been held that Treaties (and other International 
Agreements) are superior to state law in all situations, 
which are “ proper subject of negotiation between our Gov­
ernment and the governments of other nations # * * ”

e0froy BW s, 133 U. S. 258, 266. See also Santovin- 
censo v. Egan, 284 U. S. 30, 40.

As was recently stated by Professor Hyde, “ the ad- 
ancement of interests acknowledged to be of international



11

concern”  has recently impelled the United States (and 
other nations) to place treaty “ restrictions upon the cod- 
duct of individuals * * * in relation to activities wMel 
would appear normally to lack international significance 
* * 2 Hyde, International Law (1945 ed.), 1398. Tie
foreign relations record, developed at length in Point III 
hereof, indicates beyond possibility of quibble that protec­
tion of human rights has in recent years become one of tie 
important fields of negotiation in foreign relations.5 6

Moreover, it is plain that the Tenth Amendment does 
not in anywise limit the Treaty-making power of the Fed­
eral Government, even if used to accomplish results which 
Congress might be impotent to achieve directly. Missrni 
v. Holland, 252 U. S. 416, 432-3 ;6 University of Illinois i 
United States, 289 U. S. 48.

(2) In numerous cases, Treaties concluded by the 
United States and dealing with property or contract rights,

5 I n  a n y  c a s e  t h e  p r e c e d e n t s  o f  1 5 0  y e a r s  i m p e l  th is  Court to told 
t h a t  t h e  d e t e r m i n a t i o n  o f  w h e t h e r  a  p a r t i c u l a r  s u b je c t  is w ithin the 
s p h e r e  o f  i n t e r n a t i o n a l  a g r e e m e n t  i s  a  p o l i t i c a l  q u e s t i o n — where tie 
d e c i s i o n  o f  t h e  E x e c u t i v e  a n d  S e n a t e  i s  f i n a l .  “ W h a t  the President 
a n d  S e n a t e  h a v e  d e e m e d  a  p r o p e r  s u b j e c t  o f  in t e r n a t io n a l  agreement 
h a s  n e v e r  b e e n  o t h e r w i s e  r e g a r d e d  b y  t h e  S u p r e m e  C ou rt. 2 B y e, 
International L a w  ( 1 9 4 5  e d . )  1 4 0 0 .  C f .  D o e  v .  Braden, 16 How. i 
6 5 7 ;  T erlin d en  v .  A m e s ,  1 8 4  U .  S .  2 7 0 ,  2 8 8 ;  Anchor Liner, 
ridge, 2 8 0  F e d .  8 7 0 ,  8 7 6 .

6 A s  J u d g e  H o l m e s  s t a t e d  i n  t h a t  c a s e ,  A r t i c l e  6, Section M
t h e  C o n s t i t u t i o n  p r o c l a i m s  a s  t h e  p r i m a r y  l a w  o f  th e  lan d , all rea 
m a d e  “ u n d e r  t h e  a u t h o r i t y  o f  t h e  U n i t e d  S t a t e s ” . S e e , a so, 
o p i n i o n  o f  M r .  J u s t i c e  W h i t e ,  i n  D o w n es  v .  Bidwell, 182 U . • 
3 1 7 ;  B a ldw in  v .  F ra n k s,  1 2 0  U .  S .  6 7 8 ,  6 8 2 ;  c f .  V ie w s  o f  1 ®  
J e f f e r s o n ,  A m erica n  S ta te  P a p ers, F oreign  Relations ^
S ta tes,  V o l .  1 ,  p .  2 5 2 ;  C o m m e n t  a t t r i b u t e d  b y  M r .  Ju stice  o 
C h i e f  J u s t i c e  M a r s h a l l ,  5  M o o r e ,  D ig est o f  International '

16



17

ordinarily subject to control by the States, have been held 
to overrule contrary State laws.

Thus, in 1796, this Court held in Ware v. Hylton, 3 Dali. 
199, that the 1783 treaty between the United States and 
Great Britain, which gave British creditors the right to 
recover debts contracted here before the treaty was ratified, 
notwithstanding that the debts may have been paid into the 
state public treasuries under state statutes, was ‘ ‘ sufficient 
to nullify the law of Virginia, and the payment under it.”

See also:
Chirac v. Chirac, 2 Wheat. 259;
Hughes v. Edwards, 9 Id. 489;
Carneal v. Bank, 10 Id. 181;
Hauenstein v. Lynham, 100 U. S. 483;
Geofroy v. Riggs, 133 U. S. 258;
Todok v. Union State Bank, 281 U. S. 449;
Nielsen v. Johnson, 279 U. S. 47;
Clark v. Allen, 67 Sup. Ct. 1431.

It is also clearly established that the relevant provisions 
of treaties are binding and final upon individual citizens, 
in all actions brought upon private contracts.

Kennett v. Chambers, 14 How. 38, was an application for 
specific performance of a contract to supply arms to Texan 
lebels against Mexico, made at a time when this country 
still recognized Mexican sovereignty over Texas. This 
Court held that no Tribunal in the United States could 
enforce a contract, whose terms were contrary to the na- 
wnal policy, as embodied in treaties with Mexico.

In Gandolfo v. Hartman, 49 Fed. 181 (C. C. S. D., Calif.), 
Circuit Court refused to enforce a private covenant



18

not to rent property to Chinese persons, on the ground that 
the equal treatment provisions in the Chinese-American 
Treaty of 1880 made such provisions void. The court stated 
that when the legislatures were forbidden to discriminate 
against the Chinese by this treaty, it would be unthinkable 
to permit individual citizens to discriminate by contract 
enforcible in the courts.

(3) Article VI, Section 2 of the Constitution makes 
treaties (and other international agreements) superior to 
the decision or common law of the States.

For it can scarcely be doubted that the reference in that 
Section to the “ Laws of any State”  subsumes the common 
law of the various states as well as their statutes.

As was stated in Erie Railway v. Tompkins, 304 U. S.64, 
78, the law of a State may equally well be declared “by* 
legislature in a statute or by its highest court in deci­
sion * * V ’7

This court has always held that treaties were superior 
to and invalidated inconsistent doctrines of State common 
law. Thus, in Orr v. Ilodgson, 4 Wheat. 453, a treaty stip­
ulation was held to overrule the common law of the state 
that intestate real property of an alien escheated to the sov 
ereign.

7 I n  d e t e r m i n i n g  t h e  e x t e n t  o f  n a t i o n a l  responsibility t0 
r e p a r a t i o n s  f o r  t h e  b r e a c h  o f  a n  i n t e r n a t i o n a l  o b l i g a t i o n ,  i «  
b e e n  t h e  r u l e  t h a t  t h e  a c t  o f  t h e  h i g h e s t  c o u r t  m  a country ^  
t h e  a c t  o f  t h a t  c o u n t r y ’ s  g o v e r n m e n t .  S e e  statement o 58S'
o f  S t a t e  K e l l o g g ,  5  H a c k w o r t h ,  D ig est o f  ’ ,Re.
R e s e a r c h  o n  I n t e r n a t i o n a l  L a w ,  T h e  L a w  o f  Respo 
p r i n t e d ) ,  24 A m e r i c a n  J o u r n a l  o f  I n t e r n a t i o n a l  L a w ,  P ^  
(1929) 166, 178 ;  2 H y d e ,  International L a w  (1945 e .)



19

A similar decision was rendered in Hauenstein v. Lyn- 
ham, 100 U. S. 483. While various provisions of the Vir­
ginia statutes were referred to in that case, it is clear that 
the decision of the Court of Appeals of Virginia, reversed 
therein by this Court, was predicated entirely upon the 
common law of the state. 100 U. S. 483, 484-5.

The same point was made in the following dictum of 
Mr. Justice Taney in Kennett v. Chambers, 14 How. 38, 51:

* certainly no law of Texas then or now in 
force could * * * compel a court of the United States 
to support a contract, no matter where made or 
where to he executed, if that contract * * * was in 
conflict with subsisting treaties with a foreign na­
tion.”

The issue was most squarely raised as an aftermath of 
the so-called “ Litvinoff Assignment”  of 1933, whereby the 
Soviet Government transferred to the United States all its 
property claims against American nationals. Thereafter 
the United States claimed possession of all of the assets 
in New York of certain Russian companies, whose property 
had been expropriated by Russian Government decrees.

The New York Court of Appeals, the highest court in 
the State, held that such expropriatory decrees could not 
be recognized in New York, because violative of the public 
policy of the forum (United States v. Pink, 284 N. Y. 555, 
^  N. E. (2d) 552). This Court reversed the decision of 
the Court of Appeals on the ground that the public policy 
o hew kork could not be enforced in the fact of the con-

aiy P1 °visions of the Litvinoff Assignment, stating in 
part;

And the policies of the States become wholly 
irrelevant to judicial inquiry when the United States,



acting within its constitutional sphere, seeks enforce­
ment of its foreign policy in the courts.” (Unitd 
States v. Pink, 315 U. S. 203, 233-4.)

A similar conflict between the public policy of New York 
and the provisions of the Litvinoff Assignment was pre­
sented in United States v. Belmont, 301 U. S. 324, whereii 
Court stated in part:

“ Plainly, the external powers of the United 
States are to be exercised without regard to state 
laws or policies. The supremacy of a treaty in Is 
respect has been recognized from the b e g in n in g * M, 
Within the field of its powers, whatever the United 
States rightfully undertakes it necessarily has war­
rant to consummate. And when judicial authority 
is invoked in aid of such consummation, state con­
stitutions, state laws, and state policies are irrele­
vant to the inquiry and decision. It is inconceivable 
that any of them can be interposed as an obstacle It 
the effective operation of a federal constitutional 
power.”  (301 U. S. 324, 331-2.)8

The Litvinoff Assignment was an executive agreement 
which did not require and had not secured the consent c. 
the Senate. (See United States v. Pink, 315 U. S. 203,229.) 
If the pre-existing common law of a state cannot fe en­
forced by the courts of that state against the contrary pm 
visions of an executive agreement, a fortiori that comnio- 
law cannot be enforced against the contrary provisionso 
a treaty.
—~ i it ,

8 T h i s  C o u r t ’ s  d e c i s i o n  i n  U . S .  v .  B elm on t, s u p ra , rei(erjf  ■ 
d e c i s i o n  o f  t h e  C i r c u i t  C o u r t  o f  A p p e a l s  f o r  t h e  S econ   ̂ ^
w h i c h ,  h o w e v e r ,  w a s  a d m i t t e d l y  b a s e d  u p o n  t h e  common 
N e w  York.



21

III

Both State and Federal Courts are Prohibited from  
Taking Affirmative Action Which Contravenes the D e­
clared Foreign Policy of the United States of Eliminating 
Racial and Religious Discrimination.

Even conceding, arguendo, that Articles 55 (c) and 56 
of the United Nations Charter are not self-executing, they 
nevertheless constitute an authoritative declaration of the 
foreign policy of the United States as committing this Gov­
ernment to the elimination of racial discrimination.

This policy has been reiterated in recent Executive 
Agreements and Declarations. Thus, one of the resolutions 
adopted on March 7, 1945, at the Chapultepec Inter-Amer­
ican Conference, committed the United States (as well as all 
other signatory powers) to “ prevent * * * all acts which 
may provoke discrimination among individuals because of 
race or religion” .8

Similarly Article 6 (c) of the Charter, ratified by the 
United States, establishing the Nuremberg International 
Militray Tribunal10 stated that prosecutions on racial or 
religious grounds “ whether or not in violation of the dom­
inant law of the country where perpetrated,”  constituted 
a punishable international crime.

The Treaties of Peace between the Allied Powers (in­
cluding the United States) and Italy, Roumania, Bulgaria 
and Hungary, all contain provisions whereby the latter na-

U n i f 2 egc ! aft i 0 n  ? L aT’  r e P n n t e d  i n  R e p o r t  o f  t h e  D e l e g a t i o n  o f  t h e  
P ro b le m s  a / w 0  ^merica t o  t h e  I n t e r - A m e r i c a n  C o n f e r e n c e  o n
State P ub lL tiIr2497,ppeaC39, ^  DePartment of



22

tions agree not to impose any restrictions on their nationals 
for religious or racial reasons.10 11

Section III A 4 of the Executive Agreement between the 
United States, Eussia, France and Great Britain, known 
as the Potsdam Declaration, provides for the abolition of 
all Nazi laws establishing racial or religious discrimination, 
“ whether legal, administrative or otherwise.” 12

This Court may take judicial notice that in each of 
these instances the provisions for the protection of human 
rights were adopted primarily upon the insistence of the 
United States Government.

Former Under-Secretary of State Acheson has pointed 
out that “ * * * discrimination against minority g r o u p s  in 
this country has an adverse effect upon our relations with 
foreign countries.”  Report of the President’s Committee 
on Civil Rights (1947), 146.

By treaty, executive agreement and declaration, the 
President and the Senate have committed this country to 
the firm policy of eliminating racial and religious discrim­
ination, and, most particularly o f  eliminating governm ental 
procedures which protect such discrimination. It is self- 
evident that enforcement by a governmental ageney-s 
state court—of a covenant which denies to American citi-

10 T r i a l  o f  W a r  C r i m i n a l s ,  D e p a r t m e n t  o f  S t a t e  P ub lica tion  N o. 
2 4 2 0 ,  p p .  1 3 ,  1 6 .

1 1  S e e  D e p a r t m e n t  o f  S t a t e  P u b l i c a t i o n  2 7 4 3 ,  European Series 4  
A r t i c l e  1 5  o f  t h e  I t a l i a n  T r e a t y ;  A r t i c l e  2  o f  t h e  B u lga rian , 
g a r i a n  a n d  R o u m a n i a n  T r e a t i e s .

12  1 3  D e p a r t m e n t  o f  S t a t e  B u l l e t i n  ( N o .  3 1 9  A u g u s t  5, W 
p p .  1 5 3 - 5 5 .



23

ens because of color the right to occupy property cannot 
but embarrass the conduct of onr foreign relations.13

Recent decisions hy this Court have made it plain that 
the highest courts of the several states cannot, under the 
guise of declaring the public policy of their jurisdictions, 
interfere with contrary policy enunciated by the Federal 
Government, in its control of our foreign relations.

Thus in Belmont v. United States, 301 U. 8. 324 and 
United States v. Pink, 315 U. S. 203, this Court reversed 
decisions based upon the admitted public policy of the State 
of New York as applied to certain types of extra-terri­
torial judicial decrees, because of inconsistency between 
this policy and the inferences deduced by the Court from 
an Executive Agreement made by the President on his own 
responsibility.

In the Belmont case, supra, Mr. Justice Sutherland said:
“ Plainly, the external powers of the United States 
are to be exercised without regard to state laws or 
policies. The supremacy of a treaty in this respect 
has been recognized from the beginning. Mr. Madi­
son, in the Virginia Convention, said that if a treaty 
does not supersede existing state laws, as far as they

a  +■ , ref f h / o f  o b l i g a t i o n s  i m p o s e d  u p o n  t h i s  G o v e r n m e n t  b y  
im n r  ?  L i- a n d  t i r e  U n i t e d  N a t i o n s  C h a r t e r  a n d  o f  t h e
r n n U t  <° l g a l̂ o n s  lr n P ° s e d  b y  t h e  a b o v e  s t a t e d  A g r e e m e n t s  w o u l d  
C-hnr! n n I n t e r n a t l o n a l  D e l i n q u e n c y  b y  t h e  U n i t e d  S t a t e s .  S e e  
ser Factory Case, P e r .  C t .  I n t .  J u s . ,  J u d g m e n t ,  J u l y  2 6 ,  1 9 2 7 ,  
602- n  r P' l1’ 1 Hudson’ World C o u r t  R e p o r t s  ( 1 9 3 4 )  5 8 9 ,  
A d v k n r J  n  reC- J~Buf 9anan C om m unities Case, P e r .  C t .  I n t .  J u s . ,
W o r ld  C o ^ R 0 " ’  J u Iy /  3 1 ’  1 9 3 ° ’  S e r - b ' N o - 1 7 ’  P -  3 2 > 2 H u d s o n ,  Q  I n t R  1̂ e.p o r t * ( 1 9 3 5 )  6 4 0 ,  6 6 1 ;  T h e F r e e  Z o n e  C ase, P e r .
»  W otY d  l ™  A  “ C T 5 e r  6 - 1 9 3 0 '  s e r '  a - N “ - **■ P -  1 2 > 2  H u d -  o r d  C o u r t  R e p o r t s  ( 1 9 3 5 )  4 4 8 ,  4 9 0 .



24

contravene its operation, the treaty would be in. 
effective. ‘ To counteract it by the supremacy of tit 
state laws, would bring on the Union the just charge 
of national perfidy, and involve us in war.’ And 
while this rule in respect of treaties is established 
by the express language of cl. 2, Art. 6, of the Con­
stitution, the same rule would result in the case of 
all international compacts and agreements from tie 
very fact that complete power over international 
affairs is in the national government and is not 
and cannot be subject to any curtailment or inter­
ference on the part of the several states. * * * Ii 
respect of all international negotiations and com­
pacts and in respect of our foreign relations gem- 
ally, state lines disappear.”  (301 U. S. 324,331) 
(Italics supplied.)

More recently, in Bernstein v. Van Heyghen Frim 
Societe Anonyme, 163 Fed. (2d) 246 (C. C. A. 2d), Judge 
Learned Hand has intimated that a clear declaration el 
Federal policy as to the invalidity of racial confiscate; 
decrees enacted by the former Nazi Government of Ger­
many would necessarily overrule conflicting provisions el 
the statutes and common law of the states and determine 
the title to property located therein. This is the inevitf 
conclusion to be drawn from the decisions of this Courts 
which it has been held that as “ necessary concomitantst 
nationality” , the Federal Government has plenary po®E 
in the field of foreign relatons.

See:
United States v. Curtiss-Wright Export ft 

poration, 299 U. S. 304, 318;
Jones v. United States, 137 U. S. 202,212,
Fong Tue Ting v. United States, 149 U.

705.

1



25

It follows that this Court should reverse the decisions 
of the Supreme Courts of Missouri and Michigan in Nos. 72 
and 87, as contrary to the express and binding foreign 
policy of the United States.

For the same reason, the decision of the Court of Ap­
peals for the District of Columbia in Nos. 290 and 291 must 
be reversed. This Court has no occasion to concern itself 
with speculation as to the public policy of the State of 
Maryland at the end of the Eighteenth Century, when the 
District Cession Act was passed. For the public policy 
of the District is necessarily subject to constant modifica­
tion, in accordance with relevant Federal action. It would 
be absurd to permit “ local governmental bodies”  in the 
Capital of the United States to create and enforce racial 
discriminations, which are contrary to the International 
policy of this government.



26

IV

Court Orders Enforcing Racial Restrictive Covenants 
Constitute Governmental Action.

The argument that the decree enforcing a racial re­
strictive covenant merely effectuates a contract between 
private parties and does not constitute “ governmental11 
action cannot withstand analysis.

Judges cannot be reduced to the status of county clerks 
or land registrars the courts have always declined to en­
force those contracts which they felt were “ injurious to 
the interests of the public”  and, therefore, “ void on tie 
grounds of public policy” .14

In other words, implicit in every decision to enforce a 
contract is the premise that performance of that contract 
is not contrary to the public welfare. The frequently in­
articulate premise of the law courts has been stated will 
great explicitness in the decisions of courts in equity, de­
termining whether or not to enforce a formally valid con­
tract by injunction or specific performance.15

The historical development of the law governing I® 
enf orcibility of restrictive covenants on the use and alien-

14 H o r n e r  v .  G ra ves, 7  B i n g  7 3 5 ,  7 4 3 ;  s e e  a ls o  5 W i l l *  
C on tra cts  ( 1 9 3 7  E d . ) ,  p p .  4 5 5 4 - 4 5 6 8 ;  W i n f i e l d ,  Public Policy 
E n glish  C o m m o n  L a w  ( 1 9 2 8 ) ,  4 2  H a r v .  L .  R e v .  76 .

15 “ I n  e q u i t y ,  *  *  *  t h e r e  m u s t  b e  t h e  f u r t h e r  in q u ir y  whether it t> 
a g a i n s t  p u b l i c  p o l i c y  t o  h a v e  t h e  c o n t r a c t  p e r f o r m e d . ”  5 W i l l *  
C ontracts  ( 1 9 3 7  E d . ) ,  n .  4  a t  p .  4 0 0 1 ;  s e e  a l s o ,  Seattle Electric ^  
v. S n oqu a lm ie F a lls P o w e r  C om pa n y, 4 0  W a s h .  3 8 0 , 82 h- 1 1 
C ities S erv ice  O il C o .  v .  K n ch u ck , 2 6 7  N .  W .  3 2 2  ( W i s . ) ; " «  ■ 
D ’ A rv ille ,  1 6 2  M a s s .  5 5 9 ,  3 9  N .  E .  1 8 0 ;  W arner Brothers P im s ' 
N e lso n  ( 1 9 3 7 ) ,  1  K .  B .  2 0 9 .



27

ability of land has always been characterized by constant 
reference to public policy. The running of the burden of 
restrictive agreements on land against subsequent pur­
chasers and assignees was an invention of courts of equity 
in the middle of the nineteenth century. See Tulk v. 
Moxhay, 2 Phillips 774 (English Chancery, 1848). The judi­
cial legislation embodied in this and similar decisions 
necessarily involved a conclusion that the objective ob­
tained by the enforcement of restrictive covenants was of 
greater communal importance than preservation of the 
traditional policy of permitting owners freely to use their 
property in any lawful manner.

After the courts swept aside the doctrinal cobwebs, 
that restrictive covenants were enforcible only if they 
“ touched and concerned”  and/or if there was “ privity of 
estate” , they enunciated even more clearly the require­
ment that such restrictions could be enforced only if they 
promoted the wisest and best use of land. As stated by 
Justice Holmes in Norcross v. James:16 “ Equity will no 
more enforce every restriction that can be devised, than 
the common law will recognize as creating an easement, 
every grant purporting to limit the use of land in favor 
of other land. The courts have been particularly cau­
cus m enforcing covenants restraining alienation, be­

cause of the desire to insure maximum freedom of access 
o basic natural resources.

i U1̂ er P100̂  is required that the determination of 
e er or not to enforce restrictive covenants against

discussion^  t h e ^ a w  o T  ’ E ' F ° r a n  i n s t r u c t i v e  g e n e r a l
and Other Interests r Z I*  T 6 “ v e n a n t s > s e e  C l a r k ,  C oven an ts

nxerests Running with the L an d  ( 2 d  E d  1 9 4 7 )



28

land is hedged about from start to finish with considera­
tions of public policy, it is furnished in the decisions 
of the courts below.

Thus, the opinion of the Court of Appeals for the Dis­
trict of Columbia (in Nos. 290 and 291) expressly referred 
to the considerations of community policy, which, it was 
felt, made it desirable that the restrictions should be en­
forced.17 Similarly, the Supreme Court of Michigan (in 
No. 87) and the Supreme Court of Missouri (in No. 72) 
expatiated upon the social benefits considered likely to 
result from maintenance of racial restrictions.18

The judge who enjoins the sale of realty or decrees the 
ejection of persons from their property pursuant to a 
racial covenant is performing a governmental function— 
as is revealed by an analysis of the consequences of such a 
decision.

If a land owner refuses to sell his land to a Negro, 
because of the prospective purchaser’s color, it maybe 
assumed that no question of constitutional law or treaty 
supremacy arises. Moreover, no question of affirmative 
governmental action is presented. Cf. Civil Bights Casts, 
109 IT. S. 3.

However, when one of the parties to a restrictive agree­
ment or his assign sells land to a Negro (or an Indian, 
Chinese, Jew or Catholic) in violation of an agreement, 
and another party resorts to the courts in an attempt to 
prevent such violation—the agreement loses its essentially 
private character.

17  S e e  R .  4 1 7 - 4 1 8 .
18 S e e  R .  6 5 - 6 6  a n d  R .  1 5 6 - 1 5 7 ,  r e s p e c t i v e l y .



29

Whether a court’s jurisdiction is invoked by a public 
official or a private citizen, the judiciary is nonetheless an 
instrument of government. The decree of a court enjoining 
a Negro purchaser from occupying property, or its order 
ejecting him from property, constitutes more than min­
isterial action and carries with it the threat of enforce­
ment by governmental sanction.

A sale made after the rendition of such a decree sub­
jects the party against whom it has been directed to con­
tempt proceedings—for defying the machinery of govern­
ment. Moreover, in a case such as Hurd v. Hodge (No. 
290), where the court orders the purchasers to evacuate 
their property, refusal by them to do so could result in 
their forcible dispossession by the local marshals.

Surely, it is immaterial that the courts below grounded 
their decisions upon their conceptions of the public policy 
of their jurisdictions. For no court in the United States 
has the right to enforce contracts which are palpably con­
trary to the terms and the spirit of International agree­
ments entered into by the Federal Government.

It is plain that a state law or municipal ordinance 
establishing a racial restrictive zoning system would be 
illegal under Articles 55 (c) and 56 of the United Nations 
Charter, under the international Agreements referred to 
in Point III hereof, and under the Fourteenth Amendment. 
See Gandolfo v. Hartman, 49 Fed. 181 (C. C. S. D., Cal.) ; 
Buchanan v. Warley, 245 U. S. 60.

This Court cannot permit the judicial machinery of the
ited States to be used to protect a private ghetto sys- 

em, which the state and municipalities (and even Con­
gress) would be powerless to establish. For this Court has



30

repeatedly held that judicial action is equally the action 
of government and subject to constitutional and other lim­
itations, whether it is based upon policy decisions implicit 
in the common law or policy decisions made explicit in 
statutes.

Thus, Marsh v .  Alabama, 3 2 6  U .  S .  5 0 1  in v o lv e d  an 
attempt by the State of Alabama to enforce its n o n *  
criminatory trespass statute, at the instigation of a cor­
porate property owner, who had barred a m e m b e r of 
Jehovah’s Witnesses from proselytizing on its p r e m ia  
The state sought to justify its action, against invalidation 
for repugnance to the Fourteenth Amendment, on the the­
ory that it was merely protecting a private land owner. 
This Court held that since the state, if it had been  tie 
owner of the property, could not constitutionally have re­
stricted freedom of speech in this manner, it co u ld  not 
utilize its judicial power to effectuate a similar restriction 
imposed by a private owner.

See also:

Civil Rights' Cases, 109 U. S. 3,11,17;
Ex Parte Virginia, 100 U. S. 339;
Steele v. L. <& N. Ry., 323 U. S. 192;
Cantwell v. Connecticut, 319 U. S. 296;
A. F. of L. v. Swing, 312 U. S. 321.

The decisions cited above have uniformly held W 
judicial rules of substantive law, including equity, are m 
valid when they conflict with the requirements of the F°’jr 
teenth Amendment.

By parallel reasoning, Article 6, Section 2 of the Con 
stitution invalidates judicial rules of substantive law( 111



31

eluding equity, whether enunciated by the state or federal 
courts, when contrary to the provisions of Treaties or of 
Executive Agreements, made in the conduct of the For­
eign Eelations of the United States.

Through appropriate international agreements, the 
United States Government has condemned tribalistic 
theories of racial supremacy. The United States Govern­
ment has firmly committed itself to the elimination of racial 
and religious discriminations affecting life, liberty and 
property. Hence the anachronistic decisions of the courts 
below should be reversed.

CONCLUSION

The decisions of the courts below should be reversed.

Respectfully submitted,

T h e  A m e r ic a n  A s s o c ia t io n  

F o r  t h e  U n it e d  N a t io n s , 

Amicus Curiae,
A l g e r  H i s s ,

A s h e r  B o b  L a n s ,

P h i l i p  C . J e s s u p ,

J o s e p h  M. P k o s k a u e r ,

M t r e s  S . M c D o u g a l ,
V ic t o r  E l t i n g ,

Of Counsel.









Nos. 72, 87, 290, 291

IN THE

dmtrt of tip HttiPi* States
OCTOBER TERM, 1947

J . D . S h e l l e y , e t  a l ., Petitioners 
v.

Louis K r a e m e r , e t  a l .

Oesel  M cG e e , e t  a l ., Petitioners 
v.

B e n j a m in  J .  S ip e s , e t  a l .

J am es  M . H u e d , e t  a l ., Petitioners 
v.

F b e d e b ic k  E . H odge , e t  a l .

R a p h a e l  G . IJb c io l o , e t  a l ., Petitioners 
v.

F b e d e b ic k  E. H odge , e t  a l .

0N w r it s  o f  c e r t i o r a r i  t o  t h e  s u p r e m e
COURTS OF MISSOURI AND MICHIGAN AND THE 
u n ited  STATES COURT OF APPEALS FOR THE  
DISTRICT OF COLUMBIA.

M0TIO.N UOR LEAVE TO FILE AND BRIEF FOR THE  
AMERICAN FEDERATION OF LABOR AS

AMICUS CURIAE.

0 /  C ou n se l:
H arry B. M eric a n

H e b b e r t  S . T h a t c h e r , 
R o b e r t  A. W il s o n ,

Attorneys.





INDEX
P a g e

M O T I O N  P O E  L E A V E  T O  F I L E  B R I E F . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Q U E S T I O N  P R E S E N T E D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    3

S U M M A R Y  O F  A R G U M E N T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

ARGUMENT ....................   5

I . N e g r o e s  O c c u p y  P o o r l y  E q u i p p e d ,  R u n d o w n  a n d  
O v e r c r o w d e d  D w e l l i n g s  t o  a  G r e a t e r  D e g r e e  t h a n  d o  
W h i t e  P e r s o n s  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

I I .  T h e s e  C o n d i t i o n s  R e f l e c t  t h e  E f f e c t  o f  R a c i a l  R e s t r i c t i y e  
C o v e n a n t s  a s  w e l l  a s  P o v e r t y . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2 4

I I I .  C o n g e s t i o n  i s  A g g r a v a t e d  a n d  P e r p e t u a t e d  b y  R a c i a l
R e s t r i c t i v e  C o v e n a n t s  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2 7

I V . J u v e n i l e  D e l i n q u e n c y  R e s u l t s  f r o m  C o n g e s t i o n  . . . . . . . . .  2 9

V . T h e  B a c k g r o u n d  a n d  E f f e c t s  o f  R a c i a l  R e s t r i c t i v e  
C o v e n a n t s  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3 3

C O N C L U S I O N 38





Nos. 72, 87, 290, 291 
IN THE

(Emtrt of tip Untfrft States
OCTOBER TERM, 1947

J . D . S h e l l e y , e t  a l ., Petitioners 
v.

Louis K b a e m e r , e t  a l .

Obsel  McG-ee, e t  a l ., Petitioners 
v.

B e n j a m in  J .  S ip e s , e t  a l .

J am es  M. H u r d , e t  a l ., Petitioners 
v.

F r e d e r ic k  E. H odge , e t  a l .

R a ph ae l  0 .  U r c io l o , e t  a l ., Petitioners 
v.

F r e d e r ic k  E. H odge , e t  a l .

ON WRITS OF CERTIORARI TO THE SUPREME 
COURTS OF MISSOURI AND MICHIGAN AND THE 
UNITED STATES COURT OF APPEALS FOR THE 
DISTRICT OF COLUMBIA.

MOTION FOR LEAVE TO FILE AND BRIEF FOR THE  
AMERICAN FEDERATION OF LABOR AS 

AMICUS CURIAE.

Motion of the American Federation of Labor for Leave to 
File Brief as Amicus Curiae.

The American Federation of Labor respectfully prays 
eave a brief as amicus curiae in the above-mentioned
eases. The applicant has filed with the Clerk the written 
consent of counsel for petitioners and for respondents in

1



2

Nos. 2 9 0 ,  2 9 1  and No. 8 7 .  The applicant has in writing 
requested the consent of counsel for petitioners and for 
respondents in No. 72. No reply has as yet been received 

The American Federation of Labor (A. F.' of L.) is an 
association of labor unions formed for the purpose of pro­
tecting and advancing the interests of workers in the Unitei 
States. In 1 9 4 7  its affiliated unions included 7,577,716 
members.1 Some 7 5 0 , 0 0 0  of these members were Negroes, 

The interest of the A. F. of L. in the cases now before  this 
Court is founded upon its desire to help in every possible 
way to secure for its members—and for all Americans-!1 
opportunity to live in decent homes in physically and social 
healthy surroundings. The judicial enforcement o f  racial 
restrictive covenants is one of the chief means, by whichits 
Negro members are confined to ghettoes and prevented 
from competing in the open market for what l i t t le  unoccu­
pied dwelling space exists today. It is also the in s t r u m e n t  
which will negate, for our Negro members, f u l l  participa­
tion in any expansion of housing facilities in the United 
States which may be undertaken in the future. A l l  that tie 
A. F. of L. has accomplished in raising the income o f  Negro 
workers in the past—all that may be done in the future-^  
rendered virtually worthless when members cannot n 
their increased means to leave the ghettoes and m o w 1,1
more congenial surroundings.

During its entire history, the A. F. of L. has fought for 
equal job rights and benefits for all its members, regar ms 
of race, creed, or color. It has consistently opposed an) ̂  
crimination against minority groups in the oppoi UIy  ̂  
obtaining jobs, in the wage rates paid on the job,®® 
method of selection for advancement on the job. s  ̂
have been guided by the principle that the _ve ® 
union standards to the detriment of any minon)

1 American Federation of Labor Report of the 
the 66th Convention (1947), p. 10.

Executive Con®'1 ,l



3

threatens the standards of the entire work force. Thus, in 
the view of the A. F. of L. the fight to eliminate discrimina­
tion in job opportunities, in wage standards, and likewise 
in the opportunity to obtain adequate housing facilities, has 
not been a fight for minority groups alone hut for the entire 
laboring population of this country.

Evidence of this philosophy by the Federation abounds 
in the official reports of A. F. of L. activities. By conven­
tion action the A. F. of L. has placed itself on record, many 
times over, against all forms of discrimination based on 
race, creed, color or national origin. In its attempts to elimi­
nate discrimination, the A. F. of L. has consistently declared 
its support of federal legislation to abolish the poll tax, to 
adopt a national anti-lynching hill and to establish a perma­
nent Fair Employment Practices Commission.2

The Federation has also made every effort to secure 
passage of federal legislation to encourage construction of 
new housing which will be available to persons at the lower 
income levels. The Taft-Ellender-Wagner Bill has been 
supported by the A. F. of L. in the hope that it will help to 
solve the immediate problems of many American workmen.3 
Even if such a measure should be passed by the Congress, 
its effectiveness, so far as Negro members are concerned, 
will be made difficult so long as courts may enforce racial 
restrictive covenants. The great majority of Negroes in 
uxban areas are either actual or potential union members.

BRIEF FOR THE AMERICAN FEDERATION OF 
LABOR AS AMICUS CURIAE

Question Presented
Other biiefs submitted in these cases discuss in consider- 

a 6 detai1 the le£al and social problems involved. With the

‘7 he f merican Federation of Labor Yv\r+ • Paniphlet: American Federation o f Labor. Re­port of -rampmer: American Fed
P 3 AuiPrinn S of 66th Convention (1947), pp *?\eri£an Federation of L a W  P o lv t  It 629, 630, 652.

Report of the Executive Council to



4

arguments advanced, particularly in the brief for peti­
tioners, Nos. 290 and 291, the A. F. of L. is in full accord. 
We feel there is no need for repeating these arguments. In 
this brief, we wish to emphasize instead the effect which 
these racial restrictive covenants have had on the welfare 
and living standards of members of the American Federa­
tion of Labor.

SUMMARY OF ARGUMENT

The American Federation of Labor will establish the fact 
that housing conditions for Negroes are inferior to those 
available for white persons largely because of the operation 
of racial restrictive covenants. It will further show the 
significance of this fact to Negroes and to the communities 
in which they live.

Data gathered by the Bureau of the Census support the 
conclusion that Negroes, more frequently than whites, live 
in substandard, overcrowded houses. Poverty of Negroes 
as a class- is not the sole reason for this cond ition . Analysis 
of information contained in t h e  1 9 4 0  U . S. Census estab­
lishes the fact that discrimination forces N egroes to accept 
inferior dwellings for the same rentals as p a id  by whites. 
Discrimination likewise forces Negro fa m ilie s  to “ double 
up”  with other families to a greater d e g r e e  than is neces­
sary for white families. There is no im m ediate  prospec 
that this situation will be remedied by new construction. 
Poor housing, aggravated by racial restrictive covenants, 
creates a breeding ground for juvenile delinquency.

Residential segregation is caused by poverty, ethi® 
attachment and discriminatory coercion. I t  has frequen 
been encountered in American cities where immigio® 
gather. But these people often choose segregation w 
they become familiar with the language and customs o 
country. Later, they disperse. The Negro, as a 1®11̂  
discrimination, is a permanent alien. Inform al soeia p



5

sure is an important weapon in the enforcement of segrega­
tion. Until this Court, in Buchanan v. Worley, 245 U.S. 60; 
Harmon v. Tyler, 273 U.S. 668, and City of Richmond v. 
Deans, 281 U.S. 704, found the practice unconstitutional, 
municipal zoning ordinances were used to support this 
informal coercion. After these cases were decided, persons 
interested in perpetuating residential segregation had 
recourse to the racial restrictive covenant, which performed 
all the functions of the outlawed zoning ordinances so long 
as they were enforced by the judiciary.

ARGUMENT
I. NEGROES OCCUPY P O O R L Y  E Q U I P P E D ,  RUN­

DOWN AND OVERCROWDED DW ELLINGS TO A  
GREATER DEGREE THAN DO W H ITE PERSONS.

In the first place, consideration should be given to the 
actual conditions under which people live in the United 
States today, in a situation shaped to a considerable degree 
by racial restrictive covenants. In April, 1947, the Bureau 
of the Census, Department of Commerce, undertook a 
series of sample surveys in 34 metropolitan areas through­
out the United States, and it has since issued Current Popu­
lation Reports presenting data on population characteris­
tics, housing and labor force. There is now in preparation 
a leport on characteristics of occupied dwelling units by 
color of occupant.4

One table of the housing report on each area deals with 
c aracteristics of the dwelling units involved. There are, 
owever, only 13 areas in which ordinary occupied dwelling 

Um s aie c âssified according to the color of the occupants.5
No. 2Wlent population Reports. Housing’ Characteristics. Series P-70.

than-ordina?y”\®uUsintU *®tm^ 4shes between “ ordinary”  and “ other- 
1st cabins etc ,T“  e l att.6r group includes trailer camps, tour-
rooms, institutions lofi’ dor™ tories, rooming houses with 10 or more 
in the survey Curriaif SI>andi ™ lltary or labor camps are not included 
35, p. 2. } ' tjUrrent Population Reports. Housing. Series P-71, No.



6

But these reports relate to districts which, combined, house 
roughly one-quarter of the Nation’s Negro population.

There are presented below tables summarizing salient 
features of the data on each of the metropolitan districts 
for which data for white persons and non-white persons 
were compiled separately.

Washington, D. C.
At the time the survey—April, 1947—was made in tie 

Washington, D. C., Metropolitan District, the po p u la tio n  
was estimated to be 919,232 white persons and 285,988 non­
white persons.6 At the same time, the area contained 275,388 
ordinary dwelling units occupied by whites and 68,052 occu­
pied by non-whites. 1

C H A R A C T E R IS T IC S  O F  O R D IN A R Y  DW ELLING UNITS, BY 
CO LO R OF OCCUPANTS, IN  WASHINGTON, D. C*

W h ite tfon-wUi

Population ........................................ 919,232 285,988
Per cent of total • •............................. 76 21
Ordinary dwelling u n it s ................ • ■ 275,388 68,052
Per cent of t o t a l ............................... 80
Plumbing facilities and repair

Total .............................................. 100% m
71Private bath and private flush toilet 95

Private flush toilet, no b a th ........... 1 0

* Analysis of these figures shows clearly that greater prop 
the non-white population than of the white inhabitants lacke ' 
veniences of modern homes, lived in run-down dwelling' nm > r j 
low-rent quarters, and lived in crowded units. This is generally  ̂
all cities studied. Comparison with data for the twelve on 
discloses that for white dwelling units Washington—with r 
had the greatest proportion of home units containing botn p .£ts. 
and private flush toilet; complete electrification with six tage of
and central heating—with Philadelphia; and the highest perceii

1 Less than 1 per cent. Hon*Source: Current P op u la tion  Reports, n 
Series P-71, No. 1, P-

8 Current Population Reports. Population Characteristics. (
p. 2. It is estimated that this sample survey yields 
accurate within a range of 6 per cent.



7

W h ite N on -w h ite
gunning water, no private flush

toilet ..................................... 4 12
No running water....................... 1 11

In need of major repair . . . . -•........ 2% 19%
Other facilities

Cooking facilities ....................... 98% 92%
Electric lighting......................... 100% 92%
Central heating ...............• •........ 97% 70%

Number of persons per room
Total ........................................ 100% 100%
0.50 persons or less .................... 30 18
0.51 to 1.50 persons . • •................. 66 69
1.51 or more persons .................. 4 12

Monthly rentals
Total ............................... 100 % 100%
Under $10................................
$10 to $19................... 1 13
$20 to $29........ 4 17
$30 to $39........... 17 30
$40 to $49.............. 19 18
$50 or more ......... 59 23

Baltimore, Maryland
The population of the Baltimore, Maryland, Metropolitan 

District consisted of 1,021,657 whites and 284,383 non- 
whites.7 The area contained 291,387 ordinary dwelling units

had the p,er IKOpt'1 or more. Its units occupied by whites
of units 6Ŝ  Perceptage with private flush toilet, but no private baths; 
of maim- runn!®§' water—with four other areas; of units in need
monthlv—w i o f * Wl?1 Chica&°; of units renting for less than $10 
and $30-!!? ltTt-+SUxTOthê  ?reas; of units renting from $10-19; $20-29; 
the largest nereS+^eWjPrl?ans’ l7'0.r non-white units, Washington had 
Md o/units rentimff™ « ôtS occupied by °-51 t? 1-50 persons per room; 
portion of units’ lnf 4 0r $50 or more monthly; it had the smallest pro- 
characteritief for les-s than ?10; and from $10-19- As between
same district n f „ n at®:0pc.uPled and non-white-occupied units in the 
between n rn n m -t;  * 13 districts Washington had the largest discrepancy

,7„Proportions ot units rentino- -fen SKn enbetween proportions ef -V “ vyabmngpon naa me largest disc  ̂
least differences: , -«,°  ̂ umts. renting for $50 or more monthly and the
Detroit- and nnitT h f-6̂  to units renting for less than $1 .____y_dna “ its renting- from $40-49.

No.<28)1p,n5,Population Reports- Population Characteristics. Series P-21,



8

occupied by white persons and 63,139 occupied by non-white 
persons.

CHARACTERISTICS OF ORDINARY DWELLING UNITS BY 
COLOR OF OCCUPANTS, IN BALTIMORE, MD.* ’

W hite Non-wkik
Population ..................................... 1,021,657 284,383
Per cent of total............................... 78 22
Ordinary dwelling units........ .......... 291,387 63,139
Per cent of total............................... 82 18
Plumbing facilities and repair

Total ....................................... .. 100% 100%
Private bath and private flush toilet. 89 65
Private flush toilet, no bath............ 2 10
Running water, no private flush

toilet....................................... 7 18
No running water........................ 2 7

In need of major repair.................... 4% 33%
Other facilities

Cooking facilities......................... 98% 0
Electric lighting ......................... 100% 0
Central heating........................... 87% 0

Number of persons per room
Total .......................................... 100% 100%
0.50 persons or less...................... 38 24
0.51 to 1.50 persons...................• • 60 68
1.51 or more persons.................... 2 8

Monthly rentals
Total .......................................... 100% my

Under $10 ............. ..................... 2
$10 to $19 .................................... 9 22
$20 to $29 ................................ .. 19 38
$30 to $39.................................... 28 22

13
4$40 to $49 ••................................ 21

$50 or more.................................. 22
Source: Current P o p u la tio n  Reports. Housing 

Series P-71, No. 28, p. »•
* Compared with the other cities covered in the survey, 

one of seven cities in which all units occupied by whites n" , ^  
lighting; and it was one of five cities in which there were no s ^  
renting at under $10 per month. It was also one of three c Ujjy 
showed the greatest difference in proportions between units o r lS 
white and non-whites in regard to occupancy by 0.51 to i. 
per room.



9

Atlanta, Georgia
The population of the Atlanta, Georgia, Metropolitan 

District consisted of 355,224 white persons and 142,885 non- 
white persons.8 In this area there were 96,473 ordinary 
dwelling units occupied by whites and 40,426 occupied by 
non-whites.
CHARACTERISTICS OF ORDINARY DWELLING UNITS, BY 

COLOR OF OCCUPANTS, IN ATLANTA, GEORGIA*
W h ite N on-w hite

Population ....... • •........................ 355,224 142,885
Per cent of total............................. 71 29
Ordinary dwelling units.................. 96,473 40,426
Per cent of total........... ................ 70 30
Plumbing facilities and repair

Total....................................... 100% 100%
Private bath and private flush toilet 82 43
Private flush toilet, no bath............ 3 15
Running water, no private flush

toilet ....... . 10 14
No running water..................... 6 28

In need of major repair.................... 6% 28%
Other facilities

Cooking facilities ....................... 99% 93%
Electric lighting........ 99% 77%
Central heating........... 54% 10%

Number of persons per room
iotal __ 100% 100%
0.50 persons or less ... 30 15
0.51 to 1.50 persons . . . . . . 64 651.51 or more persons........ 6 21

Source: Current Population Reports. Housing.
. _ Series P-71, No. 6, p. 6.

Atlanta— the .%her cities surveyed by the Census Bureau, 
occupied bv wbi+J6 °ther ci£ ef T had the hi&hest proportion of units one of four 8 ?erson.s which had installed cooking facilities. It was 
by 0.50 oersr,r,0IeS lrJ w^lc^ the proportion of non-white units occupied 
cities in whirl, less per room was lowest; and it was one of four 
month. As rwnva+i, were n° such units renting for $50 or more per 
whites and nf, An-i spread between proportions of units occupied by 
or less persons 7 hlt6S’ the largest difference in units occupied by 0.50 ____2J_ersons Per room was found in this city.

No. 6, p.6̂  ^opu âtion Reports. Population Characteristics. Series P-21,



1 0

Monthly rentals
W hite Non-whilt

Total ............................. ............ 100% 100$
Under $10...................... ............ 5 23
$10 to $19 ...................... 58
$20 to $29...................... ............ 21 13
$30 to $39___• •............. 4
$40 to $49...................... ............ 15 1
$50 or more....................

Birmingham, Alabama
The population of Birmingham, Alabama, Metropolitan 

District consisted of 292,638 white persons and 209,760 non- 
white persons.* 9 There were 80,902 ordinary dwelling units 
in this area occupied by whites and 54,454 occupied by 
non-whites.

CHARACTERISTICS OF ORDINARY DWELLING UNITS, BY 
COLOR OF OCCUPANTS, IN BIRMINGHAM, ALA*

White Non-dih
Population .................................... 292,638 209,760
Per cent of total................. ...........  58
Ordinary dwelling units..................  80,902 54,461
Per cent of total..............................  60
Plumbing facilities and repair

Total .......... ............................... 100% *
Private bath and private flush toilet 78
Private flush toilet, no bath..........  2

Source: Current Population Reports. 
Series P-71, No. 32, p. 6.

* Comparison with data for the other cities included in t e ® 
shows that, with regard to the dwelling units occupied by wmtes, 
ham had the largest proportion of units having running wai >' . 
private bath; it had— with five other cities—the largest p
units containing installed cooking facilities; and the large 
of units renting for less than $10 per month. It had the low J SllSD 
in the following respects: units with private bath ana P j to 
toilet; and units renting for $50 or more Pfr nroportions
dwelling units occupied by non-whites, it showed the hi? , jjemphif: 
in the following respects: units having no running water

* QprieS9 Current Population Reports. Population Characteristics.
No. 32, p. 5.



1 1

W h ite N on-w hite
Running water, no private flush

toilet ..................................... 15 27
No running water....................... 5 30

In need of major repair.................. 8% 30%
Other facilities

Cooking facilities ........................ 99% 94%
Electric lighting .. • •.................. 99% 89%
Central heating.......................... 43% 4%

Number of persons per room
Total ........................................ 100% 100%
0.50 persons or less ....••............ 28 17
0.51 to 1.50 persons..................... 66 58
1.51 or more persons.................... 6 25

Monthly rentals
Total ........................................ 100% 100%
Under $10................. ............... 6 47
$10 to $19................................ 26 48
$20 to $29............ 27 5
$30 to $39.............. 19 1
$40 to $49.................... 12
$50 or more........... 9

Chicago, Illinois
Tlie population of the Chicago, Illinois, Metropolitan Dis­

trict was composed of 4,197,270 white persons and 447,370 
non-white persons.10 There were 1,222,760 ordinary dwell­
ing units in this area occupied by whites and 111,265 occu­
pied by non-whites.

than Sin L ,. Persons or more per room; units renting for less
respects- •t l̂e lowest percentage in the following
renting at ooVmg both private bath and private flush toilet; units 
cities-Band t’i~ ‘CKnPer mon^ i  at $30-39; at $40-49—with two other 
widest differences°;^°r moreJ7”wi1tth three other cities. It showed the 
following resnecte.™ p-Iop,ortl.on between whites and non-whites in the 
units having n n  u . s  having private bath and private flush toilet; 
per room—with wait.er; units occupied by 0.51 to 1.50 persons
P« room; and units cltles; units occupied by 1.51 or more persons 
present the minimum gap” 8 f °r ^10 °r leSS per In no case did it

P-21, No. 29, p°^uiati°n Reports. Population Characteristics. Series



1 2

CHARACTERISTICS OF ORDINARY DWELLING UNITS BY 
COLOR OF OCCUPANTS, IN CHICAGO, ILL.* ’

White Non-whitPopulation .................................... 4,197,270 447,370
Per cent of total............................... 90 10Ordinary dwelling units................... 1,222,760 111,265
Per cent of total ............................... 92 8
Plumbing facilities and repair

Total........................................... 100% 100%
Private bath and private flush toilet 92 78
Private flush toilet, no bath.......... 2 i
Running water, no private flush

toilet ....................................... 5 12
No running water............... • •... 1 6

In need of major repair................... 2% 12 %
Other facilities

Cooking facilities ........................ 99% 96%
Electric lighting .................... 100% 100%
Central heating........................... 82% 72%

Number of persons per room
Total .......................................... 100% 100%
0.50 persons or less..................... 38 25
0.51 to 1.50 persons...................... 60 62
1.51 or more persons.................... 2 13

Source: Current Population Reports. Housing.
Series P-71, No. 29, p. 6.

* Comparison with data for the other cities surveyed shows that with 
regard to dwelling units occupied by whites, Chicago had the high® 
percentage in the following respects: units having installed coofif 
facilities— with five other cities; electric lighting in all units—with 
other cities; units renting for from $40-49 monthly. It had the io 
proportions in the following respects: units having no running ware -  
with four other cities; and in units requiring major repairs—with w 
ington. With regard to dwelling units occupied by non-whites, 
the highest percentages in the following categories: electric ng s „ 
all units—with Detroit; and units renting from $40-49 Per.m“ .nt! 
had the lowest proportions in the following respects: units having p  ̂
flush toilets but no private bath—with Philadelphia; units 1 ^
major repairs; units renting under $10 per month—with 
cities. It showed the smallest differences in proportions bet 
and non-whites in the following respects: units with electn ,b ‘ jj 
with,.Detroit; units renting at $10-19 monthly; $20-29; $•>«- . 
or more. As these latter figures show, Chicago shows the ie jj, 
tiation in distribution of dwelling units so far as rentals a



13

W h ite  N on-w hite
Monthly rentals

Total........................................  100% 100%
Under $10..................................  1 1
$10 to $19..................................  11 15
$20 to $29..................................  17 18
$80 to $39 ..................................  24 20
$40 to $49 ..................................  28 24
$50 or more................................  20 22

Dallas, Texas
The population of the Dallas, Texas, Metropolitan Dis­

trict consisted of 399,344 white persons and 70,708 non- 
white persons.11 There were 123,068 ordinary dwelling units 
in the area occupied by whites and 21,208 occupied by 
non-whites.

CHARACTERISTICS OF ORDINARY DWELLING UNITS, BY 
COLOR OF OCCUPANTS, IN DALLAS, TEXAS.*

W h ite
Population ..............................................  399,344
Per cent of total..................................  85
Ordinary dwelling units..................  123,068
Per cent of total............................ ’ gg
Plumbing facilities and repair

p0tel ............................................  100%
private bath and private flush toilet 86
Private flush toilet, no bath..........  1

N on-w hite
70,708

15
21,208

15

100%
55
13

Source: Current Population Reports. Housing. 
, . Series P-71, No. 34, p. 6.

regard™^dweflin? urHt!ja f °r %  0*;her cities surveyed shows that with 
had the h ig W ££. ™Its> 0C(;UPied by whites, Dallas—with St. L o u is - 
West percentage .l}tage ° f ? * lts 1!1 need ?f maj°r  repairs. It had the 
facilities - and with pect to units equipped with installed cooking
PWby n o S t e  „With regard to dwellinS units occu-
central heating—witt, m th?> ,owest Percentage of units equipped with 
moremonthly-iw;th fhJ!oW+iPr e^?S; a? d ,of unlts renting for $50 or 111 Proportion between ther cities. It showed the smallest difference 
ment with central heating*6 and non_w5llte units with respect to equip-

P -2 lS e-  Population34, p, 5. Reports. Population Characteristics. Series



14

W h ite N on -w h ite
Running water, no private flush

toilet .......................................... 7 3
No running w a te r .......................... 7 22

In need of major r e p a ir .................. 9%
Other facilities

Cooking fa c ilit ie s ........................... 97% 90%
E lectric lighting ........................... 99% 93%
Central heating ........................... 4% n

Number of persons per room
Total ............................................. 100% 100%
0.50 persons or le s s ........................ 34 23
0.51 to 1.50 persons...................... 59 62
1.51 or more persons...................... 7 15

Monthly rentals
Total ............................................ 100% 1UU%

Under $ 1 0 .................................... 2 5

$10 to $19 ..................................... 14 a

$20 to $ 2 9 .................................... 25 3o
$30 to $39 ..................................... 30 10

$40 to $49 .................................... 17 l

$50 or m o re ................................... 12

Detroit, Michigan
The population of the Detroit, Michigan, Metropolitan 

District was composed of 2,354,153 whites and 348,245 non 
white persons.12 There were 666,796 ordinary dwelling 
units occupied by whites and 83,386 units by non-whites.
CHARACTERISTICS OF ORDINARY DWELLING UNITS,B- 

COLOR OF OCCUPANTS, IN DETROIT, MICH.
W h ite  Non- * 1

Population .....................................  2,354,153 ^ ^
Per cent of total.......; .....................  8 ‘ 83)386
Ordinary dwelling units .................

S o u r c e :  C u r r e n t  Populationi Reports.Ho**
S e rie s  P -71 , No. 19. P- J- ^  

*  B y  com p arison  w ith  d a ta  fo r  o th er cities, with i'ê centaSesJ® 
u n its  occupied by w h ites, D e tro it  had the hig______ ___ _— ^

1 2  Current Population Reports. Population Chaiacteristi 
P-21, No. 19, p. 5.



15

White Non-white
Per cent of total ..................................... 89 11
Plumbing facilities and repair

Total ..................................................... 100% 100%
Private bath and private flush toilet 93 84
Private flush toilet, no b a t h ........... 1 8
Running water, no private flush

toilet ................................................. 4 7
No running water............................... 1 2

In need of major repair........................ 3% 25%
Other facilities

Cooking facilities ............................... 99% 99%
Electric lighting ................................. 100% 100%
Central heating................................... 87% 58%

Number of persons per room
Total ..................................................... 100% 100%
0.50 persons or le s s ............................. 35 30
0.51 to 1.50 persons .......................... 63 63
1.51 or more persons.......................... 2 7

Monthly rentals
Total ........................ 100% 100%
Under $10 ................
$10 to $ 1 9 ..................... 3 9
$20 to $ 2 9 .......... 17 33
$30 to $39 ............ 35 41
$40 to $ 4 9 ............ 27 14
$50 or more . 17 3

espect to the following factors: units equipped with installed cooking 
acuities—with five cities; units with electric lighting—with six cities.

nati the lowest percentages with respect to units having no running 
f er .with four cities; and units renting for under $10 monthly—with 
h v  With regard to dwelling units occupied by non-whites, it 
wi t h'  ‘f , t percentage with respect to the following factors: units 
f. ■iiSrivate hsth and private flush toilet; units with installed cooking 
mnntw68’ UI%S Y'P1 electric lighting—with Chicago; and units with 
jn f y, rentals of $30-39. It had the lowest percentages for the follow- 
m ilts unlts having running water, but no private flush toilet;
1 'll nv no running water—with Philadelphia; units occupied by
unlpr ®°rePers°as per room—with Philadelphia; and units with rentals 

■t l) per month. It ^showed the smallest difference in proportions 
fits with respect to: units with private 

, units having no running water—with 
with installed cooking facilities; units with electric

bath ^  “ ou-white units with respect to: units with private
Phil ad v, Priva'f lu s h  toilet; units having no running water—with 
lisMinppL^4Urut-s wrtk installed cooking facilities; units with electric 
Philafkimuo (jh.lcaSo; units with 0.50 or less persons per room—witl 
ington P ’ ana unite renting for under $10 monthly—with Wash'



16

Memphis, Tennessee
The population of the Memphis, Tennessee, Metropolitai 

District consisted of 239,010 white persons and 163,742 
non-whites.13 This area contained 66,123 ordinary dwelling 
units occupied by white persons and 45,260 occupied ly 
non-white persons.

CHARACTERISTICS OF ORDINARY DWELLING UNITS, BT 
COLOR OF OCCUPANTS, IN MEMPHIS, TENN.4

W h ite NoimiMi

Population ........................................ 239,010 163,742
Per cent of t o ta l................................. 59 41
Ordinary dwelling u n it s .................... 66,123 45,260
Per cent of total ............................... 59 41

Plumbing facilities and repair
Total .............................................. 100% 100%
Private bath and private flush toilet 80 30
Private flush toilet, no bath........... 2 28
Running water, no private flush

12toilet .......................................... 11
No running w a te r ......................... 6 30

In need of major repa ir.................... 4% lir/o

Source: Current Population Reports, Housing. 
Series P-71, No. 14, p. 6.

* Comparison with the data for the other cities surveyed rev3?,s,, 
with regard to dwelling units occupied by whites, Memphis—'wi a 
folk-Portsmouth-Newport News— had the highest proportion ° 
occupied by 0.51 to 1.50 persons per room; and of units °“ uPie L'k 
or less persons per room. With regard to dwelling units o p ; 
non-whites, it had the highest percentage of units with pn jn, 
toilet, but no bath; and—with Birmingham—of units witt‘ •... unjts 
water. It had the lowest percentage in the following categ ■ __ 
with electric lighting; units occupied by 0.50 or less person P 
with two cities; and units renting for $50 orm ore)p®rnr)ortionsd 
three cities. It showed the greatest differences between^ Ltemries:
units occupied by whites and non-whites m the electric
units with private flush toilet, but no private bath; u +he smalkst 
lighting; and units renting from $40-49 monthly. It sho . running 
difference in proportion of white and non-white units 
water, but no private flush toilet—with Tulsa. __—-
—.............—---------------  " ~ ĝes

is Current Population Reports. Population C haracters  ic 
P-21, No. 14, p. 5.



1 7

W h ite N on-w hite
Other facilities

Cooking facilities.................... 98% 94%
Electric lighting ..................... 99% 76%
Central heating ..................... 46% 4 %

Number of persons per room
Total .................................... 100% 100%
0.50 persons or less.................. 24 15
0.51 to 1.50 persons.................. 67 61
1.51 or more persons................ 9 24

Monthly rentals
Total .................................... 100% 100%
Under $10.............................. 2 32
$10 to $19.............................. 12 52
$20 to $29.............................. 24 10
$80 to $39.............................. 23 4
$40 to $49.............................. 19 1
$50 or more............................. 20 . ,

New Orleans, Louisiana
The population of New Orleans, Louisiana, Metropolitan 

District was composed of 434,784 white persons and 166,824 
non-white persons.14 This area contained 122,976 ordinary 
dwelling units occupied hy white persons and 44,464 occu­
pied by non-white persons.

CHARACTERISTICS OF ORDINARY DWELLING UNITS, BY 
COLOR OF OCCUPANTS, IN NEW ORLEANS, LA.*

W h ite
434,784

72

N on-w hite
166,824

28
Population ...............................
Per cent of total........

Source: Current Population Reports. Housing. 
, r . Series P-71, No. 31, p. 6.

New ^ata ôr other cities surveyed reveals that
highest tiva™ r?Sard to dwelling units occupied by whites, has the 
lowesfnewS1011 umt? renting at from $10-19 per month, and the 
units rertin!ft+g|S o fL1lnlts with no running water—with four cities; 
$40-49 w ;fia from $30-39—with Washington; and units renting from * "hh rea-ard tn dwell;,,,, w  vr------- - i .„ jregard to dwelling units occupied by Negroes, it had

P-21,1'NaJH J’°,Pu*ation Reports. Population Characteristics. Series



18

W h ite N o n -w h ite
Ordinary dwelling units .................. 122,976 44,464
Per cent of total ............................... 73 27
Plumbing facilities and repair

Total .............................................. 100% 100%
Private bath and private flush toilet 93 53
Private flush toilet, no b a th ........... 1 19
Running water, no private flush

toilet .......................................... 5 12
No running water ........................ 1 16

In need of major r e p a ir .................... 7% 42%
Other facilities

Cooking facilities .......................... 98% 85%
E lectric lighting ........................... 99% 82%
Central heating ............................. 15% n

Number of persons per room
Total .............................................. 100% 100%
Under $ 1 0 ...................................... 2 20
$10 to $ 1 9 ...................................... 29 61
$20 to $ 2 9 ...................................... 27 16
$30 to $ 3 9 ...................................... 17 2
$40 to $49 ...................................... 11

1$50 or m o re .................................... 13

Norfolk—Portsmouth—Newport News, Virginia
The Bureau of the Census combined Norfolk, Portsmouth 

and Newport News, Virginia, into a single Metropolitan 
District for the purposes o f  this survey. The population 
of these communities consisted of 329,376 white persons 
and 141,658 non-white persons.15 The area contained 95,9? 
ordinary dwelling units occupied by whites and 37,318 oe 
cupied by non-whites.
the highest proportion of units needing major repairs; and of uiî ' 
renting at from $10-19 monthly. It had the lowest percent g , 
with installed cooking facilities; units with central heating Latest *  
and units with monthly rentals of $40-49. It showed the;? 
ferences in proportions of units occupied by whites and no i- ^
respect to units needing major repairs; and units with mst 
facilities.

i s  Current Population Reports. Population Characteristics.
P-21, No. 13, p. 5.



1 9

CHARACTERISTICS OF ORDINARY DWELLING UNITS, BY 
COLOR OF OCCUPANTS, IN NORFOLK, PORTS­

MOUTH AND NEWPORT NEWS, VA.*
W h ite N on-w hite

Population .................................... 3 2 9 ,3 7 6 1 4 1 ,6 5 8
Per cent of total ............................ 7 0 3 0
Ordinary dwelling units ................. 9 5 ,9 7 4 3 7 ,3 1 8
Per cent of total ............................ 7 2 2 8
Plumbing facilities and repair

Total ........................................ 1 0 0 % 1 0 0 %
Private bath and private flush toilet 9 4 4 4
Private flush toilet, no bath.......... 1 2 4
Running water, no private flush

toilet ..................................... 4 1 7
No running water....................... 2 1 5

In need of major repair.................. 4 % 2 3 %
Other facilities

Cooking facilities .............
Electric lighting.............
Central heating...............

Number of persons per room
Total ............................
0.50 persons or less..........
0.51 to 1.50 persons..........
1.51 or more persons........

Monthly rentals
Total ....................
Under $10..............
$10 to $19...... ..............
$20 to $29........... ’ ’ ‘
$30 to $39...........
$« to $49 ’ ’ ’ ‘ ‘ ' ' '  ’ ‘ ‘ '
$50 or more

9 8 %
100%

5 1 %

100%
3 1
6 7
2

100%

6 
1 6  
4 6  
1 6  
1 6

9 3 %
88%

5 %

100%
2 7  
6 2  
11

100%
11
4 8
2 8  
11

i

Source: Current Population Reports. Housing.
* Comnn ■ Series P-71, No. 13, p. 6.

the tri-citie^wi^^rpCTo6^?*3' / 01!^®  °’t^er cities surveyed discloses that 
largest percentages to dw®lllng units occupied by whites, had the 
electric l i g h t i n e - ^  respect to the following factors: units with 
P e rro o m iw it^ M ^ l-f^ ^ 168.- unU? containing 0.51 to 1.50 jper room—with Mcmri,;.: t * .’ containing u.ol to l.oU persons
had the smallest t- d  'U1118 .W l t h  monthIy rentals of $30-39. They 

cities. With +°n a°f  u-nits wlth rentals of under $10—with
had the lowest pronortion1 0 ™?ts 0CCUPied by non-whites they 
monthly. Thev showed °+l W th c,\*les—of units renting for $30-39
occupied by whites ana the gr®atest differences in proportion of units 
heating; and units with ™ imhltes 71th resPect to units with central 
6nce with respect to Tentals of S30' 39! and the least differ--- ------  P t t0 units containing 0.50 or less persons per room.

Less than 1 per cent.



20

Philadelphia, Pennsylvania
The population of the Philadelphia, Pennsylvania, Met­

ropolitan District was composed of 2,933,280 white persons 
and 439,410 non-white persons.16 This region contained 
826,149 ordinary dwelling units occupied by whites and 
112,908 occupied by non-whites.

W h ite N on -w litf
2,933,280 439,410

87 13
826,149 112,908

1288

100% W$
95 79

1

C H A R A C T E R IS T IC S  OP O R D IN A R Y  DWELLING UNITS,I 
COLOR O F O C CU PAN TS, IN  PHILADELPHIA, PA.*

W h ite

Population ........................................  2,933,280
Per cent of t o t a l ...............................
Ordinary dwelling units ..................
Per cent of t o t a l...............................
Plumbing facilities and repair

Total ..............................................
Private bath and private flush toilet 
Private flush toilet, no b a th .........

Source: Current Population Reports, 
Series P-71, No. 12, p. 6.

* Comparison with the data for two other cities included in the surrey 
discloses that Philadelphia, with regard to dwelling units occupied #! 
whites, had the highest proportions in the following respects: 5 
having both a private bath and a private flush toilet—with Was | 
ton; units containing installed cooking facilities—with five cities, 
with electric lighting—with five cities; units with central seating-- 
Washington; and units with 0.50 or less persons per room. «  n . 
lowest percentages with respect to the following factors: units 
running water, but no private flush toilet; units having no » 
water—with four cities; units containing 0.51 to 1 .5 0  personsP r 
units with 1.51 or more persons per room; and units with moni j ' 
under $10—with four cities. With regard to dwelling units P ^  
non-whites, it had the highest proportions of the following iac r , ^  
with central heating; units with 0.50 or less persons per™ “ :tioIls *tl 
with monthly rentals of $20-29. It had the smallest proportion ______________ _____________  . , a  u i e  ,

respect to units having a private flush toilet, but no pnva e jg 
Chicago; units having no running water—with Detroit, urn 
to 1.50 persons per room; and units with 1.51 or more P « s o ? 
with Detroit. It showed the greatest difference m proportion 
occupied by whites and non-whites with respect o 
$20-29 monthly and the least differences with respect n ■
J. , ................ h n t  nn n n v a te  Dain,factors: units with private flush toilet, hut. « ° npH +1 i =;o“nersor.s P 
no running water—with Detroit; units with 0.50 „ ’ns per room,
room—with Detroit; and units with 1.51 or more personsj____^
_____  _______  ..._______ ________ —------------- ------*— " , • geries

Current Population Reports. Population C haracters 
P-21, No. 12, p. 5.



2 1

White Non-white
Running water, no private flush

3 1 5

No running water....................... 1 2
In need of major repair.................. 4 % 2 4 %

Other facilities
Cooking facilities ....................... 9 9 % 9 3 %

Electric lighting......................... 1 0 0 % 97%
Central heating .......................... 97% 73%

Number of persons per room
Total ........................................ 1 0 0 % 1 0 0 %

0.50 persons or less...................... 43 3 6

0.51 to 1.50 persons .................... . 5 6 5 6

1.51 or more persons.................... 1 7
Monthly rentals

Total ............................... ....... 1 0 0 % 1 0 0 %
Under $10.................................. 1 2
$10 to $19.................................. 1 2 2 2
$20 to $29.................................. 2 6 5 5
$80 to $39.................................. 3 0 16
$40 to $49................................ 1 7 4
$50 or more........................... 1 5 1

'Less than 1 per cent.

St. Louis, Missouri
The population of the St. Louis, Missouri, Metropoli­

tan District was composed of 1,344,574 white persons and 
2o9,470 non-white persons.17 There were 394,856 ordinary 
duelling units occupied by whites and 66,990 occupied by 
non-whites.

P-21,̂ Nô lS p°hu ât'on Reports. Population Characteristics. Series



22

CHARACTERISTICS OF ORDINARY DWELLING UNITS, BY 
COLOR OF OCCUPANTS, IN ST. LOUIS, MISSOURI.*

W h ite Non-white
Population ........................................ 1,344,574 239,470
Per cent of total ............................... 85 15
Ordinary dwelling units .................. 394,856 66,990
Per cent of total ............................... 85 15
Plumbing facilities and repair

Total .............................................. 100% 100 Jo
Private bath and private flush toilet 83 35
Private flush toilet, no b a th ........... 4 16
Running water, no private flush

toilet .......................................... 10 37
No running water .......................... 3 11

In need of major r e p a ir .................... 9% 32%
Other facilities

Cooking facilities ......................... 99% W[Q.

Electric lighting ........................... 100% 97%
Central heating ........................... 75% 30%

Number of persons per room
Total .............................................. 100% 100%
0.50 persons or le s s ........................ 29 15
0.51 to 1.50 persons........................ 66 63

231.51 or more persons...................... 5
Monthly rentals

Total .............................................. 100% 1007»
Under $10 . 
$10 to $19 . 
$20 to $29 . 
$30 to $39 . 
$40 to $49 . 
$50 or more

5
27
26
1 9
12
12

Source: Current Population Reports. Housing' 
Series P-71, No. 15, p. 6.

* Comparison with the data for the other cities included in th®sui1''? 
discloses that with respect to dwelling units occupied by w ’ j„lg UillLS oaupiou  ̂ ii, jfl
Louis had the highest ‘proportions in the following resP“  ?'■ " facili- 
need of major repairs—with Dallas; units with ln s ta l le a ^ c o o ^
ties—with live cities; units with electric ngnuug— “ highest pet" 
respect to dwelling units occupied by non-whites, it had tn s and 
centage of units with running water, but no private 0 ’ It
the lowest percentage of units with 0.50 or less persons P;t_/O o  j j v t  xr j  H0U#

also had the greatest difference in proportions between white an 
white units with running water, but no private flush tone .



23

Tulsa, Oklahoma
The population of Tulsa, Oklahoma, Metropolitan Dis­

trict was composed of 190,953 white persons and 22,323 
non-white persons.18 There were 58,695 ordinary dwelling 
units occupied by whites and 6,153 occupied by non-whites.

CHARACTERISTICS OF O R D IN A R Y  D W E L L IN G  U N ITS, B Y  
COLOR OF O CCUPANTS, IN  T U L SA , O K L A H O M A .*

W h ite N on-w hite
Population .................................... 190,953 22,323
Per cent of total............................. 90 10
Ordinary dwelling units ................. 58,695 6,153
Per cent of total.............................. 90 10
Plumbing facilities and repair

Total .................................. 100% 100%
Private bath and private flush toilet 79 57
Private flush toilet, no bath........ 2 6
Running water, no private flush

toilet ............. 11 12
No running water ........................ 8 25

In need of major repair................... 6% 13%
Other facilities

Cooking facilities................. 98% 94%
Electric lighting .. 98% 93%
Central heating . 38% 11%

Number of persons per room
Total ... 100% 100%
u-oU persons or less 33 29

Source: Current Population Reports. Housing.
, _ . Series P-71, No. 33, p. 6.

indipaufP+'w11 *he data ° f  the other cities included in the survey 
had the respect to dwelling units occupied by whites, Tulsa
month],, - 5 , ,  Percentages of units with no running water; and with 
electri/liffhe1 S ?20-29; and the smallest percentage of units with 
between , a ŝo had the greatest difference in proportions
roon—with + aiu. non”white units with 0.51 to 1.50 per persons per 
the least iiiff ° Cltles-: and units with monthly rentals of $10-19. It had 
water hut „ en<ies m Proportions with respect to units with running 
major rpnnilo.priVf^e ? ush toilet— with Memphis; units in need of 
Norfolk p„rfS; all, with 0.50 or less persons per room—with_____ Portsmouth, Newport News.

P-21, No^js ^°P}Aation Reports. Population Characteristics. Series



24

White Non-white0.51 to 1.50 persons.............. ....... 66 581.51 or more persons.......... ....... 7 14
Monthly rentals 

Total .................................. ....... 100% 100%
Under $10........................... ....... 2 6
$10 to $10........................... ....... 12 57
$20 to $29........................... ....... 31 28
$30 to $39 ........................... ....... 30 7
$40 to $49 .......................... .......  15 2
$50 or more......................... ....... 10 1
The reports of the Bureau of the Census summarized 

above show convincingly that non-whites in the United 
States—and they are predom inantly Negroes—live in 
poorer dwellings than whites. A greater proportion of 
non-white persons occupying ordinary dwelling units live 
in homes with limited—or no—plumbing facilities than do 
white people; their homes are relatively less frequently 
equipped with installed cooking facilities, electric lighting 
and central heating; their residences are comparatively 
more often in need of major repairs; they are more fre­
quently overcrowded; and their dwelling units are com­
paratively less frequently found among the better resi­
dences, as indicated by rents.
II. THESE CONDITIONS REFLECT THE EFFECT OF 

RACIAL RESTRICTIVE COVENANTS AS WELL 
AS POVERTY.

The stock answer of those who support racial restrictive 
covenants to the facts set forth above is that they reflect 
merely the lower income level of Negroes. But this asser­
tion is contrary to the facts. In addition to poverty, there 
is no doubt that racial discrimination—-and racial restric­
tive covenants, as a manifestation thereof—plays an im p o i -  
tant part in forcing Negroes into inferior housing.

This has been proved by C. K. Robinson, Housing Ana 
lyst of the National Housing Administration, who stu ic 
data collected in the 1940 Federal Census for the puipo-e



25

of discovering how far ability to pay (i.e., income level) 
affected the kind of home which a non-white person could 
occupy.19 The data analyzed related to 6,365,845 dwelling 
units occupied by white families and 850,063 units occupied 
by non-white families in sixteen northern and western cities 
and twenty-six southern principal metropolitan districts. 
It was found that in these localities there were 1,229,883 
substandard units occupied by white families, or 19.37 per 
cent of all units with white occupancy, and 494,990 sub­
standard units occupied by non-white families, or 58.2 per 
cent of all units with non-white occupancy.20

The following table summarizes the findings of the ana­
lyst with regard to the percentage of dwelling units at 
specified rent levels which were substandard, classified by 
the race of the occupant. The ratio of the proportion of 
non-white units to the proportion of white units at the same 
rent scale is also shown.
PROPORTION OF W H IT E  A N D  N O N -W H IT E  D W E L L IN G  

UNITS W H IC H  W E R E  SU B S T A N D A R D  B Y  
R E N T A L  L E V E L S .*

Monthly Proportion
Ratio of 

Non-White
Rental Substandard (%) to White
Level White Non-White (Proportion)

$ 5 90.2 97.6 1.1
5-9 87.7 94.1 1.1

10-14 69.4 79.4 1.1
15-19 42.1 55.3 1.3
25-29 14.4 31.0 1.8
30-39 7.7 20.9 2.2
40-49 4.0 13.5 3.4
50-59 3.2 10.9 3.4
60-74 2.8 9.1 3.3
75-99 2.7 10.7 3.9
100 and over 2.8 13.4 4.8

‘ Robinson, op. cit. p. 297.
Rental's®°kinson, “ Relationship Between Condition of Dwellings and 
296 (AnJ* ,1 ' , 22 Journal of Land and Public Utility Economics

20 Rob,’ ’ 1924
lacked eith?11’ 0r>'- clt' p' 2®®- “ Substandard units” were those which 
which ■ a PnYate flush toilet, a private bath, or running water, or 

e ln need of major repairs.



26

The assumption underlying the analysis was that: “If 
there were no racial factors operating to limit the supply 
of housing available to Negroes, the units they occupy, 
distributed by rental groups, would generally tend to fall 
into the same classification, by state of repair and plumb­
ing, as those occupied by white households.21 The study 
proves conclusively that this is not the case.

The conclusions drawn by the analyst from this study, 
so far as they are relevant to the subject matter of this 
brief, are: (1) the non-white group receives more sub­
standard housing for the same price, even at the lowest 
rental level, where one would expect only poverty to oper­
ate as a factor, than does the white group; (2) the pro­
gressive increase in the ratio of non-white to white occu­
pancy in substandard housing in each successive rental 
bracket from the lowest to the highest—with one slight 
exception—clearly indicates existence of discrimination, 
independent of ability to pay rent.22

The above table shows that cost is obviously no factor 
in determining whether or not a Negro will live in a prop­
erly equipped home in good repair, since even at $100 or 
more per month there is an appreciable chance that the 
tenant will live in a substandard dwelling. In fact, the 
chances are almost as great for a Negro seeking a home 
which rents for $100 or more per month as for a white 
person seeking a home at the $25-$29 level. I t  would be 
foolish to suppose that Negroes would deliberately choose 
substandard housing. And the consistency with which the 
proportion of non-whites in substandard dwellings exceed 
those of whites, at every rent level, is a definite indication 
that this situation is not accidental. If these elements o

21 Robinson, op. cit. p. 301. . , „  ... white
2 2  Robinson, op. cit. p. 301; Shuman, “ D if fe re n t ia l  Rents tor 

and Negro Families;” 3 Journal of Housing 169; C ouncil o i o * a 
cies of the District of Columbia and Vicinity; The Socia 
Report on Racial Relations (Nov. 1946) pp. II-C-9,11.



27

not provide an explanation of the condition reflected by 
Robinson’s data, discrimination does. And bousing segre­
gation, implemented by racial restrictive covenants, serves 
as a foundation of that discrimination.23

Ill, CONGESTION IS AGGRAVATED AND PERPETU­
ATED BY RACIAL RESTRICTIVE COVENANTS.

These figures are only a reflection of tbe fact that racial 
restrictive covenants narrow the available market for 
Negroes seeking dwellings.24 Unable to find unoccupied 
units, they are forced to ‘ ‘ double up, ’ ’ causing congestion 
and leading inevitably to blighted areas and juvenile de­
linquency.25 Data gathered by the Bureau of the Census 
and the Bureau of Labor Statistics from July, 1946, through 
January, 1947, show the extent of this practice among white 
and Negro families.

“DOUBLING UP” IN ORDINARY DWELLING UNITS OCCU­
PIED BY NEGRO AND WHITE FAMILIES,

JULY, 1946, THROUGH JANUARY, 1947.
Occupied by Negroes Occupied by Whites

Community
Total

Dwelling
Pctg.

“ Doubled
Total

Dwelling
Pctg.

“ Doubled
Units Up” Units Up”

Washington, D. C... . . . .  252,450 7 59,760 21
Baltimore, Md. . . . .. 205,800 8 44,415 20
Chattanooga, Tenn. ... . . . .  26,865 11 9,970 11
Austin, Tex. . 10 3,472 8
Baton Rouge, La. ... . . . . 16,170 9 8,406 11
Waeo, Tex. . 6 3,472 8
Columbia, S. C . . . .  12,425 13 5,489 9
Raleigh, N. C. . 14 3,476 14
Louisville, Ky . ... 104,055 9 14,760 12
Memphis, Tenn. 14 35,748 9

G. Myrdal, “An American Dilemma”  (New York, 1944), p. 379. 
5. Robinson, op. cit. p. 296.

in a"dwpirUreaU Census definited as “ doubled up” a person living
container! -ng ™it_ which contained more than one family, i.e., the unit 
mairiori m a“ dlL°n to the head of the household, married couples or 

arned w°men with husbands absent.



28

Community

Occupied by Negroes 
Total Pctg. 

Dwelling “ Doubled 
Units Up”

Occupied by Whites 
Total Pctg, 

Dwelling “Doubled 
Units Up”

Jackson, Miss................. ...........  10,934 17 5,976 16
Greensboro, N. C. . . . .........  11,880 16 3,960 17
Charlotte. N. C........................  18,886 13 7,976 9
Beaumont-Pt. Arthur, T ex .. 25,662 8 8,883 11
Asheville, N. G............. ...........  10,374 10 3,451 13
Birmingham, Ala. . . ...........  55,496 10 34,335 11
M ontgomery, A la. . . . ........... 12,857 12 11,868 9
F t. W orth, T ex............ ...........  52,417 9 8,838 53
Houston, T ex................. .........  103,055 10 24,600 13
Roanoke, Y a .................. ...........  17,892 14 2,976 4
Atlanta, Ga.................... .........  73,725 13 32,868 15
New Orleans, L a .......... ...........  107,470 14 44,775 15
Shreveport, L a ............... .........  21,736 9 10,934 9

Source: Bureau of the Census, Department of 
Commerce, and the Bureau of Labor 
Statistics, Department of Labor, Vet­
erans Housing Survey: Population, H. 
Vet. Nos. 84, 58, 97, 102, 100, 99,101, 
85, 69, 74, 65, 63, 64, 66, 70, 73,78, 
79, 75, 82, 68.

The range of degrees of “ doubling up”  among Negro 
families for the communities listed is from 4 to 53 per cent 
and the median is 11 per cent—a substantial figure, particu­
larly in view of the fact that all the large cities included 
are at the median or above. The range for whites is from 
6 to 17 per cent and the median is 10. This is no tempo­
rary condition. The Bureau of Labor Statistics, Con­
struction Statistics Division, has gathered unpublished 
data which indicates that between December, 1946, an 
June, 1947, building operations were started on an infim- 
tesimal number of dwelling units for Negro occupancy ] 
comparison with those started on units for white occu 
pancy. While the figures were derived from studies m 
selected cities and only in the specified months, they serve 
as an adequate indication of comparative activity. ̂ > 0 ^  
as demand for housing by white persons is active, i * 
obvious that little building for Negro occupancy wi



P E R C E N T  O F  N O N - W H I T E  P O P U L A T I O N ,  N U M B E R  A N D  P E R C E N T A G E  D I S T R I B U T I O N  O F  D W E L L I N G  
U N I T S  S T A R T E D ,  B Y  R A C E  O F  O C C U P A N T S  I N  S E L E C T E D  I N D U S T R I A L  A N D  U R B A N  A R E A S

D E C E M B E R , 1 9 4 6 -J U N E , 1 94 7

Dwelling Units Started 2
Percentage White 3 Negro
non-white Total

Area population 1 Number Per cent Number Per cent Number Per cent
D ecem ber 19U6

Pittsburgh, Pa................................. ___  6 372 100.0 368 98.9 4 1.1
Columbus, O h io .............................. ___  9 141 100.0 131 92.9 10 7.1
Minneapolis, Minn........................... ___  1 410 100.0 410 100.0 0 0.0

January 19U7
Atlanta, Ga....................................... ___ 29 365 100.0 351 96.2 14 3.8
Boston, Mass................................. ___  2 246 100.0 246 100.0 0 0.0
Chicago, 111....................................... 719 100.0 719 100.0 0 0.0
Dallas, Tex....................................... 333 100.0 325 97.6 8 2.4
Denver, Colo..................................... 274 100.0 274 100.0 0 0.0
New York, Newark, Jersey City. ___  8 2,863 100.0 2,863 100.0 0 0.0
San Francisco Bay Area, Calif.. . . . . .  5 1,567 100.0 1,567 100.0 0 0.0
Seattle-Tacoma, Wash.:

Seattle.......................................... 376 100.0 376 100.0 0 0.0
T acom a........................................

St. Louis, Mo................................... 320 100.0 312 97.5 8 2.5
Washington, D. C............................ 719 100.0 696 96.8 23 3.2
Mobile Co., Ala................................ 62 100.0 45 72.6 17 27.5

F eb ru a ry  19 U7
Detroit, Mich.................................... 812 100.0 812 100.0 0 0.0
Philadelphia, Pa.-Camden, N. J ... -----  13 372 100.0 372 100.0 0 0.0
Los Angeles, Calif........................... 5,675 100.0 5,667 99.9 8 .1
Memphis, Tenn................................ ___ 41 416 100.0 344 82.7 72 17.3



Area

Percentage 
non-white 

population 1 Number
Total

Per cent

Dwelling Units Started 2 
White s

Number Per cent

Negro 

Number Per cent

Columbus, O h io ........ -.................. ........  9 274 100.0
M arch 19A7 

274 100.0 0 0.0
Minneapolis, Minn......................... ........  1 194 100.0 194 100.0 0 0.0
Pittsburgh, Pa............................... ........  6 453 100.0 453 100.0 0 0.0
Sacramento, Calif......................... .......... 5.8f 317 100.0 317 100.0 0 0.0

Detroit, Mich........................................ ........  13 1,528 100.0 1,528
M a y ISVI

100.0 0 0.0
Los Angeles, Calif............................ .......... 6 2,582 100.0 2,582 100.0 0 0.0
Philadelphia, Pa.-Camden, N. J . . .......... 13 1,481 100.0 1,481 100.0 0 0.0
Toledo, O h io .................................. ........  5 104 100.0 102 98.1 2 1.9

Columbus, O h io ............................ ........  9 174 100.0 165
June 19U7

94.8 9 5.2
Sacramento, Calif......................... ........  5.8f 183 100.0 283 100.0 0 0.0

1 Source: Current Population Reports, Population Characteristics Series, Series P. 21, April 1947, Department of 
Commerce, Bureau of the Census.

2 Bureau of Labor Statistics, Construction Statistics Division, Material not published.
3 Inclu des a ll-N e g ro  units.
* Special Sam ple S u rvey o f T en  C ongested  P roduction  A r e a s , Series C A -2 , N o . 1 , D ep a rtm en t o f  C om m erce B u reau  

o f tb e  C ensu s, 1944 . *
•V Special C ensu s, Series P -S C  183 , D ep a rtm en t o f  C om m erce, B u reau  o f the Census, M a y  1945.



3 1

started. And when this demand slackens, racial restric­
tive covenants, the immediate effect of which is to limit 
Negro demand for housing, will check operations in spite 
of the need shown by the data on substandard and over­
crowded dwellings contained in the Bureau of the Census 
Survey in April, 1947, presented above.

IV. JUVENILE DELINQUENCY RESULTS FROM CON­
GESTION.

Since there is no question, in the face of the facts out­
lined above, that Negroes live, to a considerable degree, 
in substandard dwellings and are living in overcrowded 
homes and neighborhoods, it is in order to examine one 
of the chief results of such a situation. Crowded dwelling 
units create conflicts in the home and affect the feeling of 
security and emotional stability of the children in it. They 
expose the young to conditions which breed and encourage 
delinquency.26 In the face of such a situation—aggravated 
by substandard housing and a congested neighborhood, 
such as reflected by the Bureau of the Census statistics 
here presented—proper parental guidance is impossible.27 
Good citizens cannot be developed under such circum­
stances.28 The situation is further straitened by the rela­
tively high rents paid by Negroes, as shown by Robinson, 
cited above. This drain on family resources causes diver­
sion of funds needed for other physical and cultural pur­
poses. It is a prime factor—along with the stringent hous­
ing shortage—of “ doubling up.” 29 

The National Conference on Prevention and Control of 
Juvenile Delinquency has aptly summarized the connection 
etween restrictive covenants and juvenile delinquency:

HnavMm°ni] Conference on Prevention and Control of Juvenile De- 
Myrdal op dtP°rt3 7 " ®-0US7nS an<t Juvenile Delinquency (1946) p. 3.

27 Ibid. p. 2.
28 Ibid. p. 4.

Repoit on Housing and Juvenile Delinquency, p. 4.



32

“Housing for minority racial groups, particularly 
Negroes, is among the worst in the United States. The 
core of this problem is the lack of land area for normal 
expansion. The operation of racial restrictive cove­
nants and neighborhood opposition has resulted in resi­
dential segregation in dense settlements which virtually 
destroys any possibility of healthy family development, 
The creation of sharp dividing lines reverberates 
throughout the entire community to distort the atti­
tudes and lives of young people of all races.” 80

The following table shows the distribution of juvenile 
delinquency, by race, in six of the cities covered by the 
Bureau of the Census surveys which have been presented:

JUVENILE DELINQUENCY CASES, 1945, DISPOSED OF BY 
COURTS SERVING AREAS WITH POPULATIONS 

OP 100,000 OR MORE •
Ratio of

Area
Total
Cases

White
Offenders

Pctg. Negro 
Non-White Non-White to Total 
Offenders Offenders Population

Wash., D. C. .. .. 3,202 1,331 1,871 59 24
Detroit, Mich. .. .. 1,990 1,499 491 25 13
St. Louis, Mo. .. .. l,671f 1,069 580 35 15
Tulsa, Okla. ... .. 1,143 878 265 23 10
Phila., Pa......... .. 9,652 5,332 4,320 45 13
Dallas, Texas .. .. 2,263 1,627 636 28 15

* Federal Security Agency, Social Security Administration, U, 
Children’s Bureau, 11 The Child Supplement, p. 9f. 

f  Race was not reported in 22 cases.

This table shows clearly that the problem o f  juvenile 
delinquency is a serious one. In every instance, the Negio 
child is a more frequent offender than the c o m p a r a W 1- 
number of his race in the community would seem to  jusfa 7- 
This is not by any means caused solely by racial res nc 
tive covenants, hut the covenants certainly c o n tr ib u te  0 
the differences disclosed by figures in the last two co uinn

so Ibid. p. 12.



33

V . THE BACKGROUND AND EFFECTS OF RACIAL  
RESTRICTIVE COVENANTS.

In the light of the facts so far presented, it seems desir­
able to sketch the background of the problem before this 
Court.

Racial residential segregation is an undemocratic device, 
as is any type of discrimination because of race, creed, 
color or national origin. And it is a weapon for purposes 
of offense only. Myrdal states :

“The sanctions which enforce the rules of segregation 
and discrimination will also be one-sided in their appli­
cation. They are applied by the whites to the Negroes, 
never by the Negroes to the whites. Whites occasionally 
apply them to other whites who go too far, but the 
latter are felt to have already lost caste. The laws are 
written upon the pretext of equality, but are applied 
only against Negroes.” 31

There are, generally speaking, three causes of racial 
residential concentrations: poverty, ethnic attachment and 
enforcement by white people. These are the same factors 
which operated to segregate foreign immigrants during 
the latter half of the past century and in the first two 
decades of the present century. They operate differently, 
however, in the case of Negroes. Immigrants tended to 
group together while they adjusted themselves to a strange 
anguage and new customs. They lived in congested areas 
ecause their economic resources were limited. Because 

° their poverty and their strange languages and customs,
® ei Americans tended to “ keep them in their place.”
. as immigrants or their descendants acquired larger 
incomes and adopted American social customs and the lan-
hAlv couni;ryj they tended to leave the areas they 
.!' a hi a large measure, enforcement of segregation 
jmrusbed, and they were able to leave the segregated
31 Myrdal, op. cit., p. 577.



34

areas and find new, congenial and healthy surroundings. 
If Negroes faced the same situation, they would now be 
more widely scattered. Because of the poverty of a large 
number of them, there would still be many in congested 
and substandard areas, but not to the extent shown bv 
the Bureau of the Census surveys. In fact, Negroes are, 
under present conditions, permanent aliens, and they are 
made so by racial segregation, largely through the opera­
tion of restrictive covenants.32

It is often argued that Negroes like to be segregated; 
that they are happy in their lowly status; and that they 
do not want equality. One also meets frequently the con­
tention that segregation is necessary to keep the peace be­
tween the races.33 In fact, what segregation does to the 
bulk of Negroes is to increase their housing costs, to over­
crowd them, lower their living standards, and lay them 
open to exploitation, since their poverty would tend to sep­
arate them anyway. The people even more sharply affected 
by segregation are the middle class and upper class 
Negroes. If white people did not exert pressure upon 
them when they had the means and the desire to move 
from segregated areas and disperse among other Ameri­
cans, there would be no conflict. As we have seen, segre­
gation is a weapon used solely by whites.34 35 Their effects 
might be avoided if the real object of segregation were 
merely to keep whites and Negroes apart. But the em­
phasis is always to keep Negroes out of white neighbor­
hoods. No effort is made to provide Negroes with adequate 
housing and new areas which they can inhabit.85

A t  present, the best a Negro worker can do to escape 
slums and blighted areas and still remain in existing & 1 
limits is to move into districts where racial covenants are

32 Myrdal, op. eit., p. 619f.
33 Ibid, p. 584.
3-4 Ibid. p. 625.
35 Ibid, p. 350.



35

being broken or waived. New developments, except in the 
outskirts, are virtually non-existent. As a result, the 
Negro’s—including Negro workers and AFL members— 
choice is limited to obsolescent dwellings dumped on the 
market at high prices. In an attempt to meet the heavy 
charges on the property, lodgers are taken in and houses 
are broken up into smaller units—and a new blighted area 
created by people seeking to get away from just such 
conditions.36 It is not enough to “ protect”  white people 
from Negro “ invasion.”  Some method must be devised 
which will allow Negroes with adequate resources to leave 
the ghettoes and to find decent houses in decent neighbor­
hoods. Otherwise, ‘ ‘ doubling up, ’ ’ scandalous housing con­
ditions, and mounting juvenile delinquency will continue.37 
Eacial restrictive covenants are an important contributing 
cause of the failure to provide the necessary outlets for 
the pressures generated by segregation.38 *

No satisfactory solution of this problem is possible 
within the existing physical limits of segregated areas. Ex­
isting buildings are of limited value as residences. The 
land, however, is valuable for business use, and the tax rate 
high. Repair of existing structures or erection of new ones 
are retarded by the high costs.89

Nor is there much hope for relief by dispersion to out­
lying areas. These are usually unimproved and without 
adequate municipal utilities or protection services. Fur­
thermore, restrictive racial covenants are an increasingly 
potent barrier.40

Only the abandonment of the restrictive covenant and 
other practices of segregation will solve the problem. Even

36Report on Racial Relations (November, 1946) p. II-C-10.
s Myrdal, op. cit., p. 626.
s Report on Racial Relations, p. II-C-10.

p.10). °hnson. “ Patterns of Negro Segregation,”  (New York, 1943,

10 Report on Racial Relations, p. II-C-11.



3 6

i f  p o s s ib le  p la n n in g  to  m eet the n eed s  o f  m inority groups 
is  u n d e rta k e n — so m e th in g  w h ich  is  ce rta in ly  not being done 
a d e q u a te ly — h o u s in g  s e g r e g a t io n  s im p ly  serves as a means 
to  e x p o s e  th o se  g r o u p s  to  o th e r  fo r m s  o f  discrimination, 
p a r t ic u la r ly  on  th e  p a r t  o f  o ffic ia ls .41 Segregation in 
s ch o o ls , h o s p ita ls  a n d  o th e r  p u b lic  p la ces  is an inevitable 
re su lt  o f  r e s id e n tia l s e g r e g a t io n  ev en  i f  not the result of 
c o n s c io u s  p o l i c y .42 I f  p r e ju d ic e  on  the part of officials 
e x is ts , d is c r im in a t io n  m a y  be  p ra c t ic e d  and considerable 
h a rm  d o n e  to  N e g r o e s  w ith o u t d ir e c t  e ffe ct upon whites.43

O ne o f  th e  im p o r ta n t  fo r c e s  o p e ra t in g  to maintain resi­
d e n tia l s e g r e g a t io n  o f  N e g r o  w o rk e rs  is inform al social 
p r e s s u r e . I n  m a n y  ca ses , w h ites  w ill n ot sell or rent to 
N e g ro e s , a n d  th e y  w ill m ee t a n y  n ew  N egro  residents in 
th e ir  co m m u n ity  w ith  s o c ia l a n d — in  extrem e cases—physi­
ca l h o s t il ity . T h e  p r e s s u r e  o f  n eed  o fte n  causes Negroes 
to  m o v e  to  n ew  a re a s  in  sp ite  o f  th is opposition .44 The 
fir s t  m ea n s d e v is e d  f o r  s u p p o r t in g  in form al pressures 
a ft e r  th e  E e c o n s t r u c t io n  E r a  w a s the zoning regulation, 
in  m a n y  a n d  d e v io u s  fo r m s . T h is  C ou rt, in Buchanan v. 
W orley , 245 U . S . 6 0 ; H arm on  v. Tyler, 273 U. S. 668, and 
C ity o f  Richm ond  v. Deans, 281 IT. S. 704, has barred the 
u se  o f  th is  m eth od , on  th e  g r o u n d  that the Fourteenth 
A m e n d m e n t d e p r iv e s  th e  S ta te  o f  the p ow er to enact and 
e n fo r c e  th r o u g h  its  e x e cu t iv e s  reg u la tion s  which make dis­
t in c t io n s  b e tw e e n  c it iz e n s  b a se d  on  co lor . In order to 
e v a d e  th e  e ffe c ts  o f  the ru lin g s  o f  th is Court, racial re­
s t r ic t iv e  co v e n a n ts  w e re  d e v ise d . T h e y  now  constitute the 
c h ie f  b u lw a rk s  to  s u p p o r t  in fo r m a l soc ia l pressure wheie 
it  m a y  w e a k e n .45

41 Myrdal, op. cit. p. 618.
42 Ibid. p. 601f. Johnson, op. cit. p. 8.
43 Ibid. p. 618.
44 Ibid. p. 622. _ „ are
45 Report o f the President’s Committee on Civil Rights. To 

These Rights,”  p. 91.



37

In actual e ffect, the ra c ia l r e s t r ic t iv e  co v e n a n t h a s  b een  
a successful in stru m en t to  a c co m p lis h  a ll the p u r p o s e s  o f  
the zoning regu la tion s  w h ich  th is  C o u rt  h e ld  to  be b e y o n d  
the powers o f  the S ta te s .46 B u t its  e ffe c t iv e n e ss  rests  u p o n  
the judicial e n fo rcem en t b y  S ta te  c o u r ts — as m u ch  the in ­
strumentality o f  the S ta te  as th e  le g is la t iv e  a n d  the e x e cu ­
tive—of the a greem en ts  m a d e  b e tw e e n  in d iv id u a ls  w h o  
have and exercise  n o  r e s p o n s ib i lit y  to  th e  S ta te  f o r  the 
consequences o f  th e ir  a c ts .47

46 M T V  u  i
37 Yale t ' t fm ” l7$re' “ Zoning Ordinances and Restrictions in Deeds,” 
(N e w  Y o r k  m V Febo'ni^28 )- Cited in R ' sterner> “ The Negro’s Share”

op, cit.^p1;!^  Rres*dent’s Committee on Civil Rights, p. 69. Johnson,



38

CONCLUSION

I n  o r d e r  to  m a k e  p o s s ib le  th e  e lim in ation  o f the un­
d e s ira b le  c o n d it io n s  w h ich  a re  a g g r a v a te d  b y  racial restric­
t iv e  co v e n a n ts , a n d  w h ich  h a v e  b e e n  ou tlin ed  in th is  brief, 
th e  A m e r ic a n  F e d e r a t io n  o f  L a b o r  u rg es  that th is  Court 
d e n y  to  th e  S ta te  a n d  F e d e r a l  ju d ic ia r y  the p o w e r  to en­
f o r c e  ra c ia l r e s t r ic t iv e  co v e n a n ts  o n  the ground th at they 
a re  in  p u r p o s e  a n d  e ffe c t  r a c ia l z o n in g  ordinances. It is 
c le a r  th a t th e y  in v a r ia b ly  o p e ra te  to  close  to occupancy 
b y  N e g r o e s  w h o le  se ct io n s  o f  c it ie s  a n d  are useless i f  they 
d o  n o t  e ffe c tu a te  th e  e co n o m ic  a n d  so c ia l purposes o f  those 
w h o  p e rp e tu a te  th e ir  e x e cu tio n , a t  the expense of the entire 
co m m u n ity . A  S ta te , th r o u g h  its  cou rts , cannot, consist­
e n tly  w ith  th e  F o u r te e n th  A m e n d m e n t, en force ra c ia l zon­
in g  o r d in a n c e s  w h e th e r  su ch  o rd in a n ces  are inaugurated 
b y  a c t  o f  th e  sta te  le g is la tu r e  o r  b y  p riva te  individuals,18

R e s p e c t fu l ly  su b m itted ,

H e b b e r t  S. T hatcher, 
R o b e r t  A . W ilso n ,

Attorneys.
736 Bowen Building, 
Washington 5, D. C.

H ar r y  B. M e r ic a n , 
of Counsel,

1815 17th Street, N. W., 
Washington 9, D. C. 48

48 B rief in these cases submitted by American 
Amicus Curiae.

Civil Liberties Union as







N os. 72, 87, 290, 291.

IN  T H E

Supreme Court of tjje Winittb S tates!
Octobbe T eem , 1947.

J. D. Shelley, et al ., P etition ers,
v.

L ou is  K eaemee, et a t ,

Oesel M cGee, et al ., P etition ers,
v.

B enjam in  J. S ipes, et a t ,.

James M. H ued, et al ., P etitioners,
v.

F rederick E . H odge, et al .

Raphael G. Ueciolo, et al ., P etitioners,
v.

F bedeeick E . H odge, et al .

°n Ŵ tM°fLCerti0rari t0 the SuPreme Courts of Missouri 
and Mwhigan and the United States Court of Appeals 
for the District of Columbia.

MOTION for l e a v e  to f i i  
national l a w y e r s  g u ii

A N D  B R I E F  F O R  T H E  
A S  A M IC U S  C U R IA E .

R obert W . K e n n y , President, 
0 . J ohn  R ogge, Chairman, 

National■ Com m ittee on Civil R ights 
and Liberties, National Law yers Guild.

M ozart G. R atner ,
Counsel fo r  Am icus Curiae.





I N D E X .

Opinions B e l o w ...........................................................................  2

Jurisdiction.............................................    3

Question P r esen ted ...................................................................  3

Statement......................................................................................  3

Argument........................................................................................ 5

I. The N atu re  o f  the I s s u e s ...............................................  7

II. B y  E nforcing* P r iv a te  C on tra cts  W h ich  D ep rive
P erson s o f  R ig h ts  G u a ra n teed  b y  the F ourteenth
A m endm ent the S ta te  V io la te s  the F ourteenth
A m e n d m e n t .............................................................................  9

A . T he N a tu re  o f  the R ig h ts  G uaran teed  b y  the
F o u rte e n th  A m e n d m e n t ..........................................  9

B. T he N a tu re  o f  the D u ties  Im p o se d  b y  the
F ou rteen th  A m e n d m e n t ..........................................  1 1

C. T he L im ita t io n s  Im p o s e d  b y  the F ourteenth  
A m en d m en t A p p ly  to  S ta te  A c t io n  W h ich  
F lo w s  f r o m  P o lic ie s  E m b o d ie d  in  the C om ­
m on -L a w  as W e l l  as fr o m  P o lic ie s  E m bod ied
in  L e g i s l a t i o n ................................................................ 16

D. A d o p t io n  an d  E n fo r c e m e n t  b y  S tate C ourts
or L e g is la tu r e s  o f  a  P o l i c y  W h ich  S u pp orts  
the In fr in g e m e n t  b y  In d iv id u a ls  o f  C iv il 
R ig h ts  G u a ra n teed  b y  the F ou rteen th  
A m en d m en t is  U n co n s t itu t io n a l.....................  17

E. T he F o u r te e n th  A m en d m en t p reclu d es the
states fr o m  s u p p o r t in g  a ction  b y  ind ividuals 
w h ich  im p e d e s  the e x e rc ise  o f  r igh ts  gu aran ­
teed in  the F o u r te e n th  A m en dm en t, b y  ap p ly ­
in g  th ere to  the sam e p o lic ie s , p rin cip les  and 
law s w h ich  g o v e r n  la w fu l, non -d iscrim in a- 
to ry  in d iv id u a l a c t io n ............................................. 2 1

F- P e tit io n e rs  ca n n o t be h e ld  to have “ w a iv e d ”  
their r ig h ts  u n d e r  the F ou rteen th  A m en d ­
m ent ....................................................................................  27

Page

Conclusion ...........................................................................................  29



11 Index Continued.

T A B L E  O F  C A S E S .
Page

Alabam a S tate F edera tion  o f o f Labor v. McAdory, 325
U . S . 450 ............................................... _..................................  18

A m erican  F edera tion  o f Labor  v. Swing, 312 U . S. 321. 16
B akery D rivers Local v. W ohl, 315 U . S . 7 6 9 ...................  16
B ridges  v . California, 314  U . S . 3 2 1 ....................................  16
B rinkerhoff F arris Co. v. Hill, 281 U . S . 6 9 3 .................  11
Buchanan  v . W arley , 245 U . S . 6 0 ......................7, 8,9,10,20,24
Burdick  v. United States, 236 U . S . 7 9 ................................ 28
Cantwell v. Connecticut, 310 U . S . 2 9 6 ...............................  16
C ity o f Richmond  v . Deans, 281 U . S . 7 0 4 ........... 7,8,10,20
Civil R ights Cases, 109 U . S . 3 ................... .7 , 9,11,12,13,24
Corrigan, v. Buckley, 271 U . S . 323 .......................................5,13
Crist v. Henshaw, 196 O kla , 168 ...........................................  17
Euclid  v. A m bler R ealty  Co., 272 II. S . 4 6 5 ................... 10,14
E x  P a rte Endo, 323’ U . S . 2 8 3 ................................................ • 71
E x  P a rte Virginia, 100 U . S . 339 ........................................... U
F arrington  v. Tokushige, 273 U . S . 2 8 4 ............................  9
Gandolfo  v. Hartm an, 49 F e d . 1 8 1 ...................................... 73
H arm on v. T yler, 273 U . S . 66 8 ............................................7,8,20
H ein erv . Donnman, 285 U . S . 3 1 2 ........................................  3
H irabayashi v. United States, 320 TJ. S . 8 1 ................... 71
H undley  v . Gorewitz, 132 F . 2d  2 3 . .................................... 4,20
J. I. Case Co. v. N. L. R. B., 321 TJ. ,S. 3 3 2 .....................  f
Jam ison  v . T exas, 318 U . S . 413 .......................................... iJ
L ib erty  A n n ex  Cory. v . C ity o f Dallas, 289 S. W . 1067

A i l ’d ., 295 S . W . 591, 19 S . W .  (2 d )  8 4 5 ................ • 8
L ib erty  W arehouse Co. v. Tobacco Growers, 276 IT. S.

7 1 .........................................................................................
M arsh V. Alabama,' 326 JJ. S . ’ 5 0 1 .................  12,13,22,23,%
M artin  v . Struthers, 319 U . S . 1 4 1 ......................................2 ’
M ays  v . B urgess, 147 F . 2 d  8 6 9 ...............................................
M issouri ex. rel. Gaines v. C a n a d a .....................................  ..
M oore  v. D em psey, 261 U . S . 8 6 ............................................,
M urdock  v . Pennsylvania, 319 U . S. 1 0 5 .........
N. Jj. R . B. v. Meclo Photo Supply Co., 321 TJ. S. 678. ■
N. L. R. B. v. W aum bec Mills, 114 F . 2d 2 2 6 . . .  • • • • ■ • • 
N orm an  v. Baltim ore $  Ohio B y. Co., 294 TJ. S. 24 .. >
Phelps D odge Corp. v . N. L. R. B., 313 TJ. S. 177.......... ^
Pollock  v. W illiam s, 324 TJ. S . ..............................................  U
P ow ell v . Alabama, 287 TJ. S . 4 5 ..................... •••IJA" 25
R epublic A viation  Corp. v. N. L. R. B., 324 TJ. o . •'



P a ge
Spencer Chapel M ethodist E piscopal Church v. Brogan,

1 0 4  Okla. 1 2 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
Steele v. Louisville and Nashville Railroad Co., 323

U . S .  1 9 2  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 , 1 0 , 2 3 , 2 6
Texas and New Orleans Railroad Co. v. Brotherhood

of Railway Clerks, 2 8 1  U .  S .  5 4 8 ...................................  1 5
Thomas v .  Collins, 3 2 3  U .  S .  5 1 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 ,  2 3
Twining v .  Neiv Jersey, 2 1 1  U .  S .  7 8 . . . . . . . . . . . . . . . . . . . . . . . . . . .  1 1
United States v .  P etrillo , 3 3 1  IT. .8 . 8 8 8 . . . . . . . . . . . . . . . . . . . . . . .  1 8
West Coast H otel Co. v .  Parrish, 3 0 0  U .  S .  3 7 9 . . . . . . . . . . . .  1 0
West Virginia State Board o f Education  v. Barnett,

391 U. S. 624 .......................................................................... . 10
Tick Wo. v. Hopkins, 1 1 8  IT. S .  3 5 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1 0
Yu Cong E ng  v. Trinidad, 2 7 1  IT. 8. 5 0 0 . . . . . . . . . . . . . . . . . . . . . . .  1 0

Index Continued. iii





I N  T H E

Supreme Court of tfje Wnitzh Htfateg
O c t o b e r  T e r m , 1 9 4 7 .

N o .  7 2 .
J . D . S h e l l e y , e t  a l ., P etitioners,

Y .

L o u i s  K r a e m e r , e t  a l .

O n W r i t  o f  C e r t io ra r i to  th e  S u p rem e C ou rt o f  th e  
S ta te  o f  M issou ri.

N o .  8 7 .
O r s e l  M c G e e ,  e t  a l ., P etitioners, 

v .
B e n j a m i n  J .  S ip e s , e t  a l .

On W r it  o f  C e r t io ra r i to  th e  S u p rem e C ou rt o f  the 
S ta te  o f  M ich ig a n .

N o .  2 9 0 .
J a m e s  M .  H u r d , e t  a l ., P etitioners, 

v .
F r e d e r ic k  E .  H odge ,  e t  a l .

N o . 2 9 1 .
R a p h a e l  G. U r c io l o , e t  a l ., Petitioners, 

v .
F r e d e r ic k  E .  H o d g e , e t  a l .

On W r its  o f  C e r t io ra r i to  th e  U n ite d  S ta tes  C ou rt o f  
A p p e a ls  f o r  th e  D is tr ic t  o f  C o lu m bia .

m o t i o n  f o r  l e a v e  t o  f i l e  a n d  b r i e f  f o r  t h e

N A T IO N A L  L A W Y E R S  G U IL D  A S  A M IC U S  C U R IA E .



2

MOTION OF THE NATIONAL LAWYERS GUILD FOR 
LEAVE TO FILE BRIEF AS AMICUS CURIAE.

T h e  N a t i o n a l  L a w y e r s  G u i l d  r e s p e c t f u l l y  p r a y s  l e a v e  to 
f i l e  a  b r i e f  a s  a m i c u s  c u r i a e  i n  t h e  a b o v e  c a p t i o n e d  cases. 
T h e  a p p l i c a n t  h a s  f i l e d  w i t h  t h e  c l e r k  t h e  w r i t t e n  c o n s e n t  o f 
c o u n s e l  f o r  p e t i t i o n e r s  a n d  f o r  r e s p o n d e n t s  i n  N o s .  2 9 0 , 291 
a n d  N o .  8 7 .  T h e  a p p l i c a n t  h a s  i n  w r i t i n g  r e q u e s t e d  th e  con ­
s e n t  o f  c o u n s e l  f o r  p e t i t i o n e r s  a n d  f o r  r e s p o n d e n t s  in 
N o .  7 2 .  N o  r e p l y  h a s  a s  y e t  b e e n  r e c e i v e d .

T h e  N a t i o n a l  L a w y e r s  G u i l d  i s  a n  o r g a n i z a t i o n  o f  m em ­
b e r s  o f  t h e  A m e r i c a n  B a r ,  d e v o t e d  p a r t i c u l a r l y  t o  th e  p r o ­
t e c t i o n  o f  t h e  f u n d a m e n t a l  c i v i l  r i g h t s  g u a r a n t e e d  b y  the 
C o n s t i t u t i o n  o f  t h e  U n i t e d  S t a t e s .  I t  b e l i e v e s  t h a t  t h e  basic  
c o n s t i t u t i o n a l  q u e s t i o n  p r e s e n t e d  i n  t h e s e  c a s e s  i s  o f  m a jo r  
i m p o r t a n c e  t o  t h e  n a t i o n .  I t  b e l i e v e s  t h a t  t h e  ju d g m e n ts  
b e l o w  a n d  t h e  r e a s o n i n g  o n  w h i c h  t h e y  a r e  b a s e d  s e r io u s ly  
i m p a i r  c o n s t i t u t i o n a l  d o c t r i n e s  h e r e t o f o r e  e s t a b l i s h e d  by 
t h i s  C o u r t  a n d  t e n d  t o  s u b v e r t  t h e  p r o t e c t i o n  a c c o r d e d  civil 
r i g h t s  b y  t h e  F i f t h  a n d  F o u r t e e n t h  A m e n d m e n t s .  I t  con ­
c e i v e s  i t  t o  b e  i t s  p u b l i c  d u t y ,  a s  a n  o r g a n i z a t i o n  o f  m em b ers  
o f  t h e  b a r ,  t o  b r i n g  b e f o r e  t h i s  C o u r t  t h e  r e a s o n s  w hich 
i m p e l  i t s  c o n c l u s i o n  t h a t  t h e  j u d g m e n t s  b e l o w  s h o u ld  be 
r e v e r s e d .  T h e  N a t i o n a l  L a w y e r s  G u i l d  t h e r e f o r e  r e s p e c t ­
f u l l y  r e q u e s t s  l e a v e  t o  f i l e  a  b r i e f  a s  a m i c u s  c u r i a e .

BRIEF FOR THE NATIONAL LAWYERS GUILD AS 
AMICUS CURIAE.

Opinions Below.

T h e  o p i n i o n  o f  t h e  S u p r e m e  C o u r t  o f  t h e  S t a t e  o f  M is­
s o u r i  i n  N o .  7 2  ( R .  1 5 3 - 1 5 9 ) ,  i s  r e p o r t e d  a t - - - - - M o .  2 d - — ,
1 9 8  S .  W .  2 d  6 7 9 .  T h e  o p i n i o n  o f  t h e  S u p r e m e  Court o f  be 
S t a t e  o f  M i c h i g a n  i n  N o .  8 7  ( R .  6 0 - 6 9 ) ,  i s  reported a t 
M i c h .  6 1 4 .  T h e  o p i n i o n  o f  t h e  U n i t e d  S t a t e s  C o u r  o 
A p p e a l s  f o r  t h e  D i s t r i c t  o f  C o l u m b i a  i n  N o s .  2 9 0  a m  
( R .  4 1 7 - 4 3 2 )  i s  r e p o r t e d  i n  1 6 2  F .  2 d  2 3 3 .



3

J u r is d ic t io n .

T h e  j u r i s d i c t i o n  o f  t h i s  C o u r t  i s  i n v o k e d  u n d e r  S e c t i o n s  
237 a n d  2 4 0  o f  t h e  J u d i c i a l  C o d e  ( 2 8  U .  S .  C .  3 4 4  ( b )  a n d  
347 ( a ) ) .

Question Presented.
T h is  b r i e f  w i l l  d i s c u s s  o n l y  t h e  q u e s t i o n  w h e t h e r ,  b y  

e n f o r c i n g  t h e  r a c i a l  r e s t r i c t i v e  c o v e n a n t s  h e r e  i n v o l v e d  i n  
su ch  m a n n e r  a s  t o  p r e c l u d e  p e t i t i o n e r s ,  b e c a u s e  o f  t h e i r  
r a c e , f r o m  o w n i n g  o r  o c c u p y i n g  r e a l  p r o p e r t y ,  a n d  t o  p r e ­
c lu d e  o w n e r s  o f  r e a l  p r o p e r t y  f r o m  s e l l i n g  o r  l e a s i n g  s u c h  
p r o p e r t y  t o  N e g r o e s ,  t h e  c o u r t s  b e l o w  v i o l a t e d  t h e  F i f t h  a n d  
F o u r t e e n t h  A m e n d m e n t s .

Statement.
Nos. 2 9 0  and 2 9 1 — P e t i t i o n e r s  i n  N o .  2 9 0  n o w  o c c u p y  a s  

th e ir  h o m e ,  p u r s u a n t  t o  a  g r a n t  b y  d e e d  f r o m  o n e  R y a n  a n d  
h is  w i f e ,  r e s i d e n t i a l  p r o p e r t y  i n  t h e  1 0 0  b l o c k  o f  B r y a n t  
S t r e e t , N o r t h w e s t ,  i n  t h e  D i s t r i c t  o f  C o l u m b i a  ( R .  3 8 1 - 3 8 2 ) .  
In  N o . 2 9 1 ,  p e t i t i o n e r s  R o w e ,  S a v a g e  a n d  S t e w a r t  a r e  e a c h  
g r a n t e e s  b y  d e e d  f r o m  p e t i t i o n e r  U r c i o l o ,  o f  a  p i e c e  o f  i m ­
p r o v e d  p r o p e r t y  o n  t h e  s a m e  b l o c k  ( R .  3 8 2 ) .  T h e s e  c a s e s  
a r is e  o u t  o f  s u i t s  f i l e d  b y  r e s p o n d e n t s ,  o w n e r s  o f  f o u r  o t h e r  
lo ts  in  t h e  s a m e  b l o c k ,  i n  t h e  U n i t e d  S t a t e s  D i s t r i c t  C o u r t  
f o r  th e  D i s t r i c t  o f  C o l u m b i a ,  t o  s e c u r e  a  d e c l a r a t i o n  t h a t  
the d e e d s  t o  t h e  p e t i t i o n e r  g r a n t e e s  a r e  n u l l  a n d  v o i d ,  a n d  
an  i n j u n c t i o n  o r d e r i n g  t h e  g r a n t e e s  t o  v a c a t e  t h e i r  h o m e s  
and p r o h i b i t i n g  t h e  r e n t i n g ,  s a l e ,  l e a s i n g  o r  t r a n s f e r r i n g  
o f  th e  r e s i d e n t i a l  p r o p e r t y  t o  a n y  N e g r o  o r  c o l o r e d  p e r s o n .

T h e  s u i t s  w e r e  p r e d i c a t e d  u p o n  t h e  f a c t  t h a t  w h e n  t h e  
p r o p e r t ie s  i n v o l v e d  w e r e  t r a n s f e r r e d  b y  d e e d s  i n  o r  a b o u t  
the y e a r  1 9 0 6 ,  t h e r e  w a s  i n c l u d e d  i n  t h e  d e e d s  a  c o v e n a n t  
v l i i c h  p r o v i d e d  ( R .  3 8 0 ) ,  t h a t  t h e  l o t s  c o n v e y e d  “ s h o u l d  
n e v e r  b e  r e n t e d ,  l e a s e d ,  s o l d ,  t r a n s f e r r e d  o r  c o n v e y e d  n n t o  
an y N e g r o  o r  c o l o r e d  p e r s o n ” . I t  w a s  c l a i m e d  t h a t  t h e  
g r a n te e  p e t i t i o n e r s  a r e  N e g r o e s  o r  c o l o r e d  p e r s o n s .  I t  w a s  
u r th e r  c l a i m e d  t h a t  a l t h o u g h  t h e  g r a n t e e  p e t i t i o n e r s  a e -  

T n ie d  t h e i r  r e s p e c t i v e  p r o p e r t i e s  f r o m  p e r s o n s  w h o  w e r e



4

t h e m s e l v e s  r e m o t e  g r a n t e e s  f r o m  t h e  o r i g i n a l  c o v e n a n to r s , 
t h e y  c o n l c l  a c q u i r e  n o  r i g h t s  i n  s u c h  p r o p e r t y  b e c a u s e  o f  tie  
e x i s t e n c e  o f  t h e  c o v e n a n t  i n  t h e  1 9 0 6  d e e d .  T h e  t r i a l  court 
s u s t a i n e d  t h e  a c t i o n ,  f o u n d  t h a t  t h e  r e s p e c t i v e  gran tees 
w e r e  c o l o r e d  p e r s o n s ,  a n d  g r a n t e d  t h e  r e l i e f  p r a y e d  in  full 
( E .  3 8 4 - 3 8 5 ) .  T h e  d e c r e e  r e q u i r e d  in ter  alia, t h a t  peti­
t i o n e r s  “ r e m o v e  t h e m s e l v e s  a n d  a l l  o f  t h e i r  p e r s o n a l  be­
l o n g i n g s  f r o m  t h e  l a n d  a n d  p r e m i s e s  n o w  o c c u p i e d  b y  th em ”  
( E .  3 8 4 - 3 8 5 ) ,  b u t  m a d e  n o  p r o v i s i o n  f o r  t h e  r e t u r n  o f  the 
m o n e y  w h i c h  t h e  g r a n t e e s  h a d  p a i d  f o r  t h e  p r o p e r t y .  (See
E .  8 0 , 2 1 9 ) .

T h e  U n i t e d  S t a t e s  C o u r t  o f  A p p e a l s  f o r  t h e  D is t r i c t  of 
C o l u m b i a ,  J u d g e  E d g e r t o n  d i s s e n t i n g ,  a f f i r m e d  t h e  decision  
b e l o w  i n  r e l i a n c e  u p o n  i t s  p r i o r  h o l d i n g  i n  M ay  v .  Burgess, 
1 4 7  F .  2 d  8 6 9 .  T h e  C o u r t  h e l d  t h a t  n e i t h e r  t h e  p o l i c y  o f  the 
c o m m o n  l a w  a g a i n s t  r e s t r a i n t s  u p o n  a l i e n a t i o n ,  n o r  the 
“ c h a n g e d  c o n d i t i o n s ”  d o c t r i n e  p u r s u a n t  t o  w h i c h  a  court 
o f  e q u i t y  b a l a n c e s  t h e  b e n e f i t s  t o  b e  a c h i e v e d  t h r o u g h  en­
f o r c e m e n t  o f  s u c h  c o v e n a n t s  a g a i n s t  t h e  d a n g e r  th a t  en­
f o r c e m e n t  “ w o u l d  *  *  *  c r e a t e  a n  u n n a t u r a l  b a r r i e r  to 
c i v i c  d e v e l o p m e n t  a n d  t h e r e b y  *  *  *  e s t a b l i s h  a  v irtu a lly  
u n i n h a b i t a b l e  s e c t i o n  o f  t h e  c i t y ”  (H undley  v .  Gorewitz, 
1 3 2  F .  2 d  2 3 ,  2 4 ) ,  o u t w e i g h e d  i n  t h e s e  c a s e s  t h e  p o l i c y  of 
t h e  l a w  “ t h a t  e q u i t y  w i l l  e n f o r c e  a  p r o p e r  c o n t r a c t  con cern ­
i n g  l a n d ,  a g a i n s t  a l l  p e r s o n s  t a k i n g  w i t h  n o t i c e  o f  it • 
( E .  4 1 7 - 4 1 8 ;  M a ys  v .  B u rg ess , supra,  a t  p p .  8 7 1 ,  8 7 2 ) .  The 
C o u r t  f u r t h e r  h e l d  t h a t  j u d i c i a l  e n f o r c e m e n t  o f  th e  racial 
r e s t r i c t i v e  c o v e n a n t  d i d  n o t  v i o l a t e  t h e  F i f t h  o r  th e  F ou r­
t e e n t h  A m e n d m e n t s  ( E .  4 1 8 ;  M a ys  v .  B u rgess, supra, at pp- 
8 7 0 - 8 7 1 ) .

N o. 87— P e t i t i o n e r s  n o w  o c c u p y  a s  t h e i r  h o m e ,  p u rsu a n  
t o  a  d e e d  e x e c u t e d  b y  a  g r a n t e e  o f  o n e  F e r g u s o n  a n d  is 
w i f e ,  r e s i d e n t i a l  p r o p e r t y  i n  t h e  C i t y  o f  D e t r o i t ,  M ich igan ) 
i d e n t i f i e d  a s  4 6 2 6  S e e b a l d t  A v e n u e  ( E .  1 6 , 1 9 ) .  I n  1931, )e 
F e r g u s o n s ,  w h i l e  o w n e r s  o f  t h e s e  p r e m i s e s ,  e x e c u t e  , m 
c o n s i d e r a t i o n  f o r  t h e  r e c i p r o c a l  a g r e e m e n t  o f  n e ^ ^ or1^  
p r o p e r t y  o w n e r s ,  a  c o v e n a n t  p r o v i d i n g ,  in ter alia ( • >
t h a t  “ T h i s  p r o p e r t y  s h a l l  n o t  b e  u s e d  o r  o c c u p i e d  1  " il 
p e r s o n  o r  p e r s o n s  e x c e p t  t h o s e  o f  t h e  C a u c a s i a n  r a c e .



5

T h is  c a s e  a r i s e s  o u t  o f  a  s u i t  f i l e d  b y  r e s p o n d e n t s ,  n e i g h ­
b o r in g  p r o p e r t y  o w n e r s ,  t o  o b t a i n  i n j u n c t i v e  r e l i e f  r e s t r a i n ­
in g  p e t i t i o n e r s ,  o n  t b e  g r o u n d  t h a t  t h e y  a r e  a l l e g e d l y  n o t  
o f  th e  C a u c a s i a n  r a c e ,  f r o m  u s i n g  o r  o c c u p y i n g  t h e  p r o p ­
e r ty  t h e y  h a v e  p u r c h a s e d  a n d  o c c u p y  ( R .  1 6 ) .  T h e  t r i a l  
c o u r t  f o u n d  t h a t  p e t i t i o n e r s  a r e  “ o f  t h e  c o l o r e d  o r  N e g r o  
r a c e ”  ( R .  7 4 ) ,  a n d  g r a n t e d  t h e  i n j u n c t i v e  r e l i e f  p r a y e d  i n  
fu ll  ( R .  7 4 - 7 5 ) .

T h e  S u p r e m e  C o u r t  o f  t h e  S t a t e  o f  M i c h i g a n  a f f i r m e d .  
T h e  c o u r t  c o n c l u d e d  t h a t  s i n c e  t h e  p u b l i c  p o l i c y  o f  t h e  S t a t e  
o f  M i c h i g a n  a p p r o v e d  t h e  c r e a t i o n  a n d  e n f o r c e m e n t  o f  
r e s t r i c t i o n s  u p o n  t h e  u s e  a n d  o c c u p a n c y  o f  l a n d ,  t h o u g h  i t  
d i s a p p r o v e d  t h e  c r e a t i o n  o f ,  a n d  d e n i e d  e n f o r c e m e n t  t o  
r e s t r a in t s  u p o n  a l i e n a t i o n ,  t h e  i n s t a n t  r e s t r i c t i o n  u p o n  o c c u ­
p a n c y  b y  n o n - m e m b e r s  o f  t h e  C a u c a s i a n  r a c e  s h o u l d  b e  
e n fo r c e d  ( R .  6 5 - 6 6 ) .  T h e  c o u r t  r e c o g n i z e d  t h a t  t h e  q u e s ­
tion  w h e t h e r  j u d i c i a l  e n f o r c e m e n t  o f  r a c i a l  r e s t r i c t i v e  
c o v e n a n ts  w a s  v i o l a t i v e  o f  t h e  F o u r t e e n t h  A m e n d m e n t  h a d  
n ot b e e n  d e c i d e d  b y  t h i s  C o u r t  i n  C orrigan  v .  B uckley,  2 7 1  
U. S . 3 2 3  ( R .  6 6 ) .  I t  n e v e r t h e l e s s  h e l d  t h a t  p e t i t i o n e r ’ s  
o b je c t io n  t o  t h e  a c t i o n  o f  t h e  c o u r t  b e l o w  o n  c o n s t i t u t i o n a l  
g r o u n d s  w a s  w i t h o u t  m e r i t  s i n c e  ‘ ‘  T o  a c c e p t  t h i s  r e a s o n i n g  
w o u ld  a l s o  a t  t h e  s a m e  t i m e  d e n y  ‘ t h e  e q u a l  p r o t e c t i o n  o f  
the l a w s ’  t o  t h e  p l a i n t i f f s  a n d  p r e v e n t  t h e  e n f o r c e m e n t  o f  
th e ir  p r i v a t e  c o n t r a c t s  ’  ’  (ib id . ) .

A 'o . 72— I n  1 9 1 1 ,  3 0  o u t  o f  a  t o t a l  o f  3 9  n e i g h b o r i n g  p r o p ­
er ty  o w n e r s  i n  t h e  C i t y  o f  S t .  L o u i s ,  M i s s o u r i ,  s i g n e d  a n  
a g r e e m e n t  “ f o r  t h e  b e n e f i t  o f  a l l ”  p r o v i d i n g  t h a t  t h e r e ­
a fte r , f o r  a  t e r m  o f  f i f t y  y e a r s ,  t h e  p r o p e r t y  “ f r o n t i n g  o n  
L a b a d ie  A v e n u e  a n d  r u n n i n g  b a c k  t o  t h e  a l l e y  o n  t h e  N o r t h  
an d S o u t h  s i d e s  o f  L a b a d i e  A v e n u e  b e t w e e n  T a y l o r  a n d  
C o ra  A v e n u e ”  s h o u l d  n o t  b e  o c c u p i e d  “ b y  a n y  p e r s o n  n o t  
° f  th e  C a u c a s i a n  r a c e ”  ( R .  2 ,  1 9 - 2 0 ) .  A m o n g  t h e  n i n e  
o w n e rs  o f  p r o p e r t y  i n  t h e  a r e a  d e s c r i b e d  a t  t h e  t i m e  t h e  
a g r e e m e n t  w a s  e x e c u t e d  w e r e  f i v e  N e g r o e s  ( R .  2 - 3 ) .  Y e a r s  
a ter  p e t i t i o n e r s  p u r c h a s e d  t h e  p r o p e r t y  w h i c h  t h e y  n o w  
o c c u p y  f r o m  a  r e m o t e  g r a n t e e  o f  o n e  o f  t h e  s i g n a t o r i e s  t o  
the a g r e e m e n t  ( R .  1 - 3 ,  1 4 0 ) .



6

T h e  c a s e  a r i s e s  o u t  . o f  a  s u i t  f i l e d  b y  r e s p o n d e n t s ,  n eigh ­
b o r i n g  p r o p e r t y  o w n e r s ,  i n  t h e  C i r c u i t  C o u r t  o f  t h e  C ity  of 
S t .  L o u i s ,  t o  o b t a i n  a n  i n j u n c t i o n  o u s t i n g  p e t i t i o n e r s  from  
r e s i d e n c e  o n  t h e  g r o u n d  t h a t  t h e y  a r e  N e g r o e s ,  a n d  as 
s u c h  h a v e  n o  r i g h t  t o  o c c u p y  t h e  p r o p e r t y  ( R .  4 - 8 ) .

T h e  t r i a l  c o u r t  f o u n d  t h a t  p e t i t i o n e r s  a r e  N e g r o e s ,  but 
d e c l i n e d  t o  e n f o r c e  t h e  r e s t r i c t i o n  o n  t h e  g r o u n d  t h a t  i t  had 
b e e n  t h e  i n t e n t i o n  o f  t h e  s i g n e r s  t h a t  t h e  a g r e e m e n t  becom e 
f i n a l  a n d  b i n d i n g  o n l y  u p o n  t h e  c o n c u r r e n c e  o f  a l l  o f  the 
o w n e r s  o f  t h e  p r o p e r t y  d e s c r i b e d  t h e r e i n ,  a n d  t h a t  since 
n i n e  p r o p e r t y  o w n e r s  h a d  n o t  j o i n e d  i n  t h e  a g re e m e n t, 
l e a v i n g  s o m e  o f  t h e  p r o p e r t y  n o t  c o v e r e d ,  t h e  a g re e m e n t 
h a d  n e v e r  b e c o m e  f i n a l  a n d  w a s  o f  n o  f o r c e  a n d  e f f e c t  (E. 
1 3 9 - 1 4 4 ) .

T h e  S u p r e m e  C o u r t  o f  t h e  S t a t e  o f  M i s s o u r i  rev ersed . 
L o o k i n g  t o  t h e  s u r r o u n d i n g  c i r c u m s t a n c e s  t o  a s c e r t a i n  the 
p u r p o s e  w h i c h  t h e  s i g n e r s  s o u g h t  t o  a c h i e v e  b y  t h e  agree ­
m e n t ,  t h e  c o u r t  f o u n d  t h a t  “ O b v i o u s l y  i t  c o u l d  n o t  have 
b e e n  t h e  i n t e n t i o n  o f  t h e  p a r t i e s  t o  p r e v e n t  a n y  N e g r o  occu­
p a n c y  a t  a l l  b e c a u s e  t h a t  a l r e a d y  e x i s t e d .  I t  m u s t  have 
b e e n  t h e i r  i n t e n t i o n  t o  p r e v e n t  g r e a t l y  i n c r e a s e d  o c cu p a n cy  
b y  N e g r o e s .  A n d  t h e i r  p l a n  h a s  s u c c e e d e d ”  ( R .  1 5 6 ) .  The 
c o u r t  p o i n t e d  o u t  t h a t  “ I f  t h e  p u r p o s e  o f  a  p l a n  under 
w h i c h  s o m e  p r o p e r t y  i s  r e s t r i c t e d  f a i l s  b e c a u s e  o t h e r  p ro p ­
e r t y  i n  t h e  d i s t r i c t  h a s  n o t  b e e n  l i k e w i s e  r e s t r i c t e d ,  then 
e q u i t y  w i l l  n o t  e n f o r c e  t h e  a g r e e m e n t .  T h e  g e n e r a l  p u rp o se  
o f  a  r e s t r i c t i v e  a g r e e m e n t  m u s t  b e  a c h i e v e d  i n  o r d e r  to 
j u s t i f y  a  b u r d e n ”  ( R .  1 5 7 ) .  T h e  c o u r t  c o n c l u d e d ,  h ow ever, 
t h a t  “ s i n c e  t h e  p u r p o s e  o f  t h e  p l a n  i s  b e i n g  a c c o m p l i s h e d ”  
i t s  e n f o r c e m e n t  a c h i e v e s  a  “ b e n e f i t ”  (ibid .)  c o n s o n a n t  with 
p u b l i c  p o l i c y ,  a n d  o n e  s u f f i c i e n t  t o  j u s t i f y  t h e  burden  
i m p o s e d .

T h e  c o u r t  r e j e c t e d  p e t i t i o n e r s ’  c o n t e n t i o n  t h a t  ju d ic ia l 
e n f o r c e m e n t  o f  t h e  c o v e n a n t  v i o l a t e d  t h e  Fourteenth 
A m e n d m e n t  f o r  r e a s o n s  s i m i l a r  t o  t h o s e  a d v a n c e d  b y  the 
U n i t e d  S t a t e s  C i r c u i t  C o u r t  o f  A p p e a l s  f o r  t h e  District o 
C o l u m b i a  i n  N o s .  2 9 0  a n d  2 9 1 ,  a n d  b y  t h e  S u p r e m e  C o u r t  o 
t h e  S t a t e  o f  M i c h i g a n  i n  N o .  8 7 .



7

A R G U M E N T .

I. T h e  N a tu re  o f  th e  Issues.

T h e  c e n t r a l  i s s u e  i n  t h e s e  c a s e s  a r i s e s  f r o m  a n  a p p a r e n t  
c o n f l ic t  b e t w e e n  p r i n c i p l e s  h e r e t o f o r e  u n r e c o n c i l e d  b y  t h i s  
C o u r t .  O n  t h e  o n e  h a n d  i t  i s  u r g e d  t h a t  t h e  r i g h t  o f  a n  
in d i v i d u a l  t o  o w n ,  u s e  a n d  d i s p o s e  o f  p r o p e r t y ,  v e s t s  i n  
p r o p e r t y  o w n e r s  a  r i g h t  t o  d i s c r i m i n a t e  a m o n g  w o u l d - b e  
b u y e r s  o n  r a c i a l  g r o u n d s .  I t  i s  f u r t h e r  u r g e d  t h a t  t h i s  
r ig h t , w h e n  c o u p l e d  w i t h  t h e  r i g h t  t o  c o n t r a c t  f r e e l y ,  v e s t s  
in  p r o p e r t y  o w n e r s  t h e  r i g h t  t o  b i n d  t h e m s e l v e s  b y  c o n ­
t r a c t  w i t h  o t h e r  p r o p e r t y  o w n e r s  t o  p r a c t i c e  s u c h  d i s c r i m i ­
n a t io n  i n  d i s p o s i n g  o f  t h e i r  p r o p e r t y  i n  t h e  f u t u r e .  A l l e g ­
e d ly , t h e  a c t i o n  o f  t h e  j u d i c i a r y  i n  c o m p e l l i n g  a d h e r e n c e  t o  
su ch  a g r e e m e n t s  d o e s  n o t  i n v o l v e  t h e  a p p l i c a t i o n  o f  a  d i s ­
c r i m in a t o r y  r a c i a l  p o l i c y  b y  t h e  s t a t e ,  b u t  r e p r e s e n t s  m e r e l y  
an a p p l i c a t i o n  o f  a  u n i f o r m  p o l i c y  a g a i n s t  r e p u d i a t i o n  o f  
v a lid  p r i v a t e  a g r e e m e n t s .  I t  i s  s a i d  t h a t  t h e  s t a t e  c a n n o t  b e  
d e e m e d  t o  h a v e  b e e n  p r e c l u d e d  b y  t h e  F o u r t e e n t h  A m e n d ­
m e n t f r o m  e n f o r c i n g ,  o n  a  n o n - d i s c r i m i n a t o r y  b a s i s ,  s u c h  
d i s c r i m i n a t o r y  p r i v a t e  a g r e e m e n t s .

O n  t h e  o t h e r  h a n d ,  i t  i s  c l e a r  t h a t  t h e  r i g h t  o f  p e r s o n s  t o  
a c q u ir e , u s e ,  a n d  d i s p o s e  o f  p r o p e r t y  w i t h o u t  d i s c r i m i n a ­
tio n  o n  t h e  b a s i s  o f  r a c e ,  i s  a  r i g h t  g u a r a n t e e d  a g a i n s t  s t a t e  
a c t io n  b y  t h e  F o u r t e e n t h  A m e n d m e n t .  Buchanan  v .  W ar- 
ley, 2 4 5  U .  S .  6 0 ;  H arm on  v .  T yler ,  2 7 3  I I .  S .  6 6 8 ;  C ity o f  
Richmond v .  D eans, 2 8 1  U .  S .  7 0 4 .  A l t h o u g h  t h e  Civil R ights  
Cases, 1 0 9  U .  S .  3 ,  1 7 ,  h e l d  t h a t  t h e  d i s c r i m i n a t o r y  d e n i a l  o f  
p r o p e r t y  r i g h t s  b y  i n d i v i d u a l s  w a s  n o t  o f  i t s e l f  v i o l a t i v e  
o f  th e  F o u r t e e n t h  A m e n d m e n t ,  t h a t  c a s e  a l s o  m a d e  i t  c l e a r  
th at s u c h  d e n i a l s  r e t a i n e d  i m m u n i t y  o n l y  a s  l o n g  a s  t h e y  
w ere  “ u n s u p p o r t e d  b y  S t a t e  a u t h o r i t y  i n  t h e  s h a p e  o f  l a w s ,  
cu s to m s , o r  j u d i c i a l  o r  e x e c u t i v e  p r o c e e d i n g s . ”  I m m u n i t y  
is lo s t  t h e  m o m e n t  r a c i a l  d i s c r i m i n a t i o n  b y  i n d i v i d u a l s  i s  

s a n c t i o n e d  i n  s o m e  w a y  b y  t h e  s t a t e ”  (ib id .).
Thus it has been held that although individual property 

owners may, by  refusing to sell to Negroes, effectively 
exclude them from  the community, a state may not, at their



b e h e s t ,  a d o p t  o t  a p p l y  a  p o l i c y  o f  r a c i a l  s e g r e g a t i o n  in 
r e s i d e n t i a l  a r e a s .  B uchanan  v .  W a rley , supra ; City of 
R ich m on d  v .  D ean s, supra. M o r e o v e r ,  a l t h o u g h  p ro p e r ty  
o w n e r s  m a y ,  w i t h o u t  v i o l a t i n g  t h e  F o u r t e e n t h  A m e n d m e n t , 
a g r e e  n o t  t o  s e l l  t h e i r  p r o p e r t y  t o  N e g r o e s  w i t h o u t  first 
s e c u r i n g  t h e  c o n s e n t  o f  a  m a j o r i t y  o f  t h e i r  n e ig h b o r s ,  it 
h a s  b e e n  h e l d  t h a t  a  s t a t e  c a n n o t  c o n s t i t u t i o n a l l y  con d ition  
t h e  r i g h t  o f  o c c u p a n c y  o f  p r o p e r t y  b y  a  N e g r o  u p o n  the 
a p p r o v a l  o f  a  m a j o r i t y  o f  t h e  w h i t e  i n h a b i t a n t s  o f  th e  com ­
m u n i t y .  H a rm on  v .  T y le r ,  2 7 3  U .  S .  6 6 8 .

T h e  T y le r  c a s e  m a k e s  i t  c l e a r  t h a t  t h e  s t a t e  c a n n o t  lend 
i t s  p o w e r s  t o  t h e  s u p p o r t  o f  a  p o l i c y  o f  r a c i a l  s e g r e g a t io n  
a d o p t e d  b y  i n d i v i d u a l s .  C f .  L ib e r ty  A n n ex  C'orp. v .  City of 
D allas, 2 8 9  8 .  W .  1 0 6 7 ,  a f f ’ d . ,  2 9 5  S .  W .  5 9 1 ,  1 9  S . W . 2d 
8 4 5  ( T e x a s ) .  F o r ,  i n  t h e  T y le r  c a s e  i t  w a s  n o t  th e  ord i­
n a n c e ,  o r  a n y  s t a t e  p o l i c y ,  w h i c h  d e c r e e d  s e g r e g a t i o n ;  the 
o r d i n a n c e  m e r e l y  p e r m i t t e d  t h a t  r e s u l t  t o  b e  a c h ie v e d  if 
t h e  p r i v a t e  i n d i v i d u a l s  w h o  i n h a b i t e d  t h e  c o m m u n i t y  so 
d e s i r e d . 1 I t  c o u l d ,  i n d e e d ,  h a v e  b e e n  c o n t e n d e d ,  a s  p la u sib ly  
a s  i t  i s  i n  t h i s  c a s e ,  t h a t  i n  h o n o r i n g  t h e  w i l l  o f  t h e  inhabit­
a n t s ,  t h e  s t a t e  w a s  i n t e r e s t e d  o n l y  i n  a p p l y i n g  a n  abstract 
p r i n c i p l e  o f  g o o d  g o v e r n m e n t — m a j o r i t y  r u l e — a n d  was 
c o m p l e t e l y  u n c o n c e r n e d  w i t h  w h e t h e r  o r  n o t  t h e  in h a b ita n ts  
o f  t h e  c o m m u n i t y  d i s c r i m i n a t e d  a g a i n s t  N e g r o e s .

W e  b e l i e v e  i t  e n t i r e l y  f a l l a c i o u s  t h e r e f o r e  t o  c o n te n d , as 
r e s p o n d e n t s  d o ,  t h a t  s t a t e  a c t i o n  w h i c h  s a n c t i o n s  o r  sup­
p o r t s  d e n i a l  o f  p r o p e r t y  r i g h t s  o n  t h e  b a s i s  o f  r a c e  m a y  be 
h e l d  v i o l a t i v e  o f  t h e  F o u r t e e n t h  A m e n d m e n t  o n l y  i f  the 
s t a t e ’ s  a c t i o n  i s  i t s e l f  m o t i v a t e d  b y  d i s c r i m i n a t o r y  co n s id e i- 
a t i o n s  b a s e d  o n  r a c e .  W e  s u b m i t  t h a t  w h e n e v e r  a  state de­
p r i v e s  a  p e r s o n ,  b e c a u s e  o f  h i s  r a c e ,  o f  t h e  r i g h t  t o  acquire, 
u s e  a n d  d i s p o s e  o f  p r o p e r t y ,  t h e  s t a t e  v i o l a t e s  th e  F o iu -

1 Although the ordinance involved in the Tyler case ma e 
proval of the majority of residents a condition preceden o 
Negroes ’ right of occupancy, there can be no doubt that, 11 e 
would have been the same if  the statute had instead 8,ve , 
majority power to defeat the Negroes’ right of occupan y 
voting against it. Cf. Steele v. Louisville and Nashville 
Co., 323 U. S. 192.



9

tee n th  A m e n d m e n t .  W e  s u b m i t  f u r t h e r  t h a t  w h e n  a  s t a t e ,  
t h r o u g h  i t s  c o u r t s ,  i s s u e s  a n  i n j u n c t i o n  t o  p r e c l u d e  t h e  p u r ­
ch a se  o r  o c c u p a n c y  o f  p r o p e r t y  b y  a  N e g r o  b e c a u s e  o f  h i s  
ra ce , t h e  s t a t e  d e p r i v e s  t h e  N e g r o  o f  h i s  r i g h t s  u n d e r  t h e  
F o u r t e e n t h  A m e n d m e n t .  W e  b e l i e v e  t h a t  s u c h  d e p r i v a t i o n  
can  n o  m o r e  b e  j u s t i f i e d  a s  a n  i n c i d e n t  o f  t h e  s t a t e ’ s  p o l i c y  
o f  e n f o r c i n g  p r i v a t e  c o n t r a c t s ,  t h a n  i t  c o u l d  b e  j u s t i f i e d  a s  
an in c id e n t  o f  s o m e  o t h e r  a l l e g e d l y  n o n - d i s c r i m i n a t o r y  s t a t e  
p o l ic y , s u c h  a s  m a j o r i t y  r u l e .  A n d  f i n a l l y ,  w e  c o n t e n d  t h a t  
to h o ld  s u c h  s t a t e  c o u r t  a c t i o n  v i o l a t i v e  o f  t h e  F o u r t e e n t h  
A m e n d m e n t  w o u l d  b e  t o  a p p r o v e  a n d  f o l l o w ,  n o t  r e j e c t ,  t h e  
d o c t r in e  o f  t h e  C ivil R ig h ts  C ases, u p o n  w h i c h  r e s p o n d e n t s  
m u st r e ly .

T h e  s a m e  l i m i t a t i o n s  w h i c h ,  u n d e r  t h e  F o u r t e e n t h  
A m e n d m e n t ,  g o v e r n  s t a t e  a c t i o n ,  a r e  a p p l i c a b l e  t o  t h e  f e d ­
era l g o v e r n m e n t  u n d e r  t h e  F i f t h  A m e n d m e n t .  R ein er  v .  
Dorinan, 2 8 5  U .  S .  3 1 2 ,  3 2 6 ;  F a rr in g to n  v .  T okush ige,  2 7 3  
U. S . 2 8 4 , 2 9 8 - 2 9 9 .  T h e  d i s c u s s i o n  b e l o w ,  t h e r e f o r e ,  h a s  
b een  f r a m e d  i n  t e r m s  o f  t h e  F o u r t e e n t h  A m e n d m e n t ,  a n d  
is a p p l i c a b l e  t o  t h e  D i s t r i c t  o f  C o l u m b i a  c a s e s  a s  w e l l  a s  t o  
the c a s e s  p r e s e n t l y  b e f o r e  t h e  C o u r t  w h i c h  a r i s e  o u t  o f  
d e cre e s  i s s u e d  b y  s t a t e  c o u r t s .

II. By E n forc in g  P r iv a te  C o n tra cts  W h ic h  D e p r iv e  P erson s 
of B ights G u a ra n teed  b y  th e  F o u rte e n t A m en d m en t the 
State V io la tes  th e  F o u rte e n th  A m en d m en t.

A . TheN ature o f  the R ig h ts  G uaranteed  b y  the F ou rteen th  
Amendment.

. ^  as i m p o r t a n t  t o  d i s t i n g u i s h  a t  t h e  o u t s e t  b e t w e e n  c i v i l  
i lg h ts  o n  t h e  o n e  h a n d ,  w h i c h  t h e  F o u r t e e n t h  A m e n d m e n t  
p r o te c t s , a n d  s o  c a l l e d  “ s o c i a l  r i g h t s  o f  m e n  a n d  r a c e s  i n  

e o o m m u n i t y  ’ ’  w h i c h ,  i n  t h e  C ivil R igh ts  C ases, 1 0 9  IT . S . ,  
at P- 22, w e r e  h e l d  n o t  p r o t e c t e d .  T h e  r i g h t  t o  p u r c h a s e ,  
ase a n d  d i s p o s e  o f  p r o p e r ty  w i t h o u t  d i s c r i m i n a t i o n  o n  t h e  

r a c e  i s  c l e a r l y  o n e  o f  t h e  c i v i l  r i g h t s  p r o t e c t e d  b y  
e l o u r t e e n t h  A m e n d m e n t .  Buchanan  v .  W a rley , supra.

Civil R ights C ases  i t  w a s  r e f e r r e d  t o  a s  “ o n e  o f  t h o s e



1 0

f u n d a m e n t a l  r i g h t s  w h i c h  a r e  t h e  e s s e n c e  o f  c i v i l  f r e e d o m , ”  
1 0 9  U .  S . ,  a t  p .  2 2 .  I t  i s  t h e r e f o r e  i n a d m i s s i b l e  i n  d is c u s s ­
i n g  t h e  s c o p e  o f  t h a t  r i g h t ,  a n d  t h e  n a t u r e  o f  a c t i o n  w h ich  
w o u l d  i m p a i r  i t ,  t o  s e e k  f o r  a n a l o g i e s  i n  s u c h  f i e l d s  a s  the 
r i g h t  t o  e q u a l  a c c o m m o d a t i o n  i n  i n n s ,  c o n v e y a n c e s ,  or 
p l a c e s  o f  a m u s e m e n t .  W h e t h e r  o r  n o t  d e n i a l  o f  t h e s e  la tte r  
r i g h t s  w o u l d  b e  d e e m e d  t o  r u n  a f o u l  o f  t h e  F o u r t e e n t h  
A m e n d m e n t ,  i t  i s  c l e a r  t h a t  o p p o r t u n i t y  t o  a c q u i r e  a n d  use 
p r o p e r t y  w i t h o u t  r e g a r d  t o  r a c e  i s  p r o t e c t e d  b y  t h e  F o u r ­
t e e n t h  A m e n d m e n t .

N o r  i s  t h i s  r i g h t  p r o t e c t e d  m e r e l y  a s  a  p a r t  o f  t h e  g u a r ­
a n t e e  o f  “ p r o p e r t y  r i g h t s ”  o r  “ l i b e r t y  o f  c o n t r a c t ”  con ­
t a i n e d  i n  t h e  F o u r t e e n t h  A m e n d m e n t .  F o r ,  i f  s o ,  i t  cou ld  
b e  d e n i e d  w h e n e v e r  a  l e g i s l a t u r e  i n  t h e  e x e r c i s e  o f  i t s  w ide 
d i s c r e t i o n ,  f o u n d  r e a s o n a b l e  b a s i s  i n  t h e  p u b l i c  in te re s t  
f o r  i t s  a b r i d g m e n t .  C f .  W e s t  C oast H o te l Co. v .  Parrish, 
3 0 0  U .  S .  3 7 9 ;  E u clid  v .  A m b ler  R ea lty  Co., 2 7 2  U .  S . 365; 
N orm an  v .  B a ltim ore  <& Ohio R y . C o., 2 9 4  U .  S .  2 4 0 ,  307-308. 
L i k e  t h e  r i g h t  t o  f r e e d o m  o f  s p e e c h ,  a n d  o f  t h e  p r e s s ,  and 
f r e e d o m  o f  r e l i g i o n ,  t h e  r i g h t  t o  a c q u i r e ,  u s e  a n d  d i s p o s e  o f 
p r o p e r t y ,  w ith ou t racial d iscrim ination , i s  n o t  s u b j e c t  to  the 
p o l i c e  p o w e r  o f  t h e  s t a t e .  ‘  ‘ D i s c r i m i n a t i o n s  b a s e d  o n  race 
a l o n e  a r e  o b v i o u s l y  i r r e l e v a n t  a n d  i n v i d i o u s . ”  Steele v. 
L o u isv ille  & N ash ville  R a ilroad  Co.> 3 2 3  U .  S .  1 9 2 , 2 0 3 . Cl. 
T ick  W o  v .  H op k in s ,  1 1 8  IT . S .  3 5 6 ;  Y u  Cong Eng v. Trini­
dad, 2 7 1  U .  S .  5 0 0 ,  5 2 8 ;  M issou ri e x  rel. Gaines v .  Canada, 
3 0 5  TJ. S .  3 3 7 ,  3 4 9 - 3 5 2 .  A n d  t h e r e f o r e  s u c h  d is c r im in a t io n s  
c a n n o t  c o n s t i t u t i o n a l l y  b e  m a d e  t o  a f f e c t  t h e  r i g h t  o f  indi 
v i d u a l s  t o  a c q u i r e ,  u s e  o r  d i s p o s e  o f  p r o p e r t y ,  r e g a r  ess 
o f  t h e  n a t u r e  o r  s u b s t a n t i a l i t y  o f  t h e  p u b l i c  i n t e r e s t  w h ic 
a  l e g i s l a t u r e  m a y  b e l i e v e  w o u l d  b e  s e r v e d  t h e r e b y .  u 
chanan  v .  W o rley , su p ra ; C ity  o f  R ichm ond  v .  Deans, supra 
O n l y  a  s h o w i n g  o f  c l e a r  a n d  p r e s e n t  d a n g e r  t o  t h e  e x is  once 
o f  g o v e r n m e n t  c a n  j u s t i f y  a b r i d g m e n t  o f  t h e  civil r ig h t s  o 
f r e e d o m  o f  s p e e c h  a n d  o f  p r e s s ,  o f  a s s e m b l y  a n d  o f  w o r s  i i 
W e s t  V irg in ia  S ta te  B oa rd  o f  E d u cation  v .  Barnett, 6
V . S .  6 2 4 ,  6 3 9 ;  o n l y  s u c h  a  s h o w i n g  c o u l d  j u s t i f y  d is c r in n n a



1 1

l io n  b e c a u s e  o f  r a c e .  H irabayash i  v .  U nited S tates, 3 2 0  
U . S . 8 1 , 1 0 0 - 1 0 2 ;  E x  P a r te  U ndo, 3 2 3  U .  S .  2 8 3 ,  2 9 7 ,  3 0 2 .

B. The N ature o f  the D u ties  Im p osed  by the F ou rteen th  
Am endm ent.

T h e  o b l i g a t i o n  t o  r e f r a i n  f r o m  i n t e r f e r i n g  w i t h  t h e  e x e r ­
c is e  o f  c i v i l  r i g h t s  p r o t e c t e d  b y  t h e  F o u r t e e n t h  A m e n d m e n t  
is  i m p o s e d  o n l y  u p o n  t h e  s t a t e s .  T h a t  o b l i g a t i o n  e x t e n d s ,  
h o w e v e r ,  t o  e v e r y  a g e n c y  a n d  o f f i c e r  o f  t h e  s t a t e ,  e x e c u t i v e ,  
l e g i s l a t i v e ,  a n d  j u d i c i a l . 2 I t  a p p l i e s  t o  “ S t a t e  a c t i o n  o f  
e v e r y  k i n d ”  ( C ivil B ig h ts  C ases, 1 0 9  U .  S . ,  a t  p .  1 1 ) ,  a n d  i t  
p r e c lu d e s  t h e  s t a t e  f r o m  u s i n g  a n y  o f  i t s  p o w e r s  t o  “ s u p ­
p o r t ”  o r  “ s a n c t i o n ”  i n t e r f e r e n c e  b y  i n d i v i d u a l s  w i t h  t h e  
e n jo y m e n t  o f  c i v i l  r i g h t s  b y  o t h e r  i n d i v i d u a l s  (ibid., a t  
p. 1 7 ) .

T h e  F o u r t e e n t h  A m e n d m e n t ,  o n  i t s  f a c e ,  d o e s  n o t  i m p o s e  
on  i n d i v i d u a l s  a n y  d u t y  t o  r e f r a i n  f r o m  i n t e r f e r i n g  w i t h  t h e  
e n jo y m e n t  b y  o t h e r s  o f  t h e  r i g h t s  i t  g u a r a n t e e s .  I f ,  h o w ­
ev e r , i t  w e r e  h e l d  t h a t  t h e  F o u r t e e n t h  A m e n d m e n t  i m p o s e d  
an o b l i g a t i o n  u p o n  t h e  s t a t e s  a f f i r m a t i v e l y  t o  i l l e g a l i z e  a n d  
p u n is h  s u c h  i n d i v i d u a l  c o n d u c t ,  t h e  r e s u l t  w o u l d  h a v e  b e e n  
p r e c i s e ly  t h e  s a m e  a s  i f  t h e  A m e n d m e n t  h a d  i n  t e r m s  i m ­
p o s e d  o n  i n d i v i d u a l s  t h e  s a m e  o b l i g a t i o n s  w h i c h  i t  i m p o s e d  
on  th e  s t a t e s .  T h i s ,  i n  t h e  C ivil B igh ts  Cases, t h e  C o u r t  
r e fu s e d  t o  d o .  I t  d i s t i n g u i s h e d  s h a r p l y  ( 1 0 9  TJ. S . ,  a t  p .  
1 7 ), b e t w e e n  “ a c t s  o f  i n d i v i d u a l s  u n s u p p o r t e d  b y  a n y  
[s ta te ]  a u t h o r i t y , ”  w h i c h ,  t h o u g h  t h e y  i n t e r f e r e  w i t h  t h e  
e n jo y m e n t  o f  c i v i l  r i g h t s  b y  t h e  i n j u r e d  p a r t y ,  c a n n o t  b e  
t e e m e d  v i o l a t i v e  o f  t h e  F o u r t e e n t h . A m e n d m e n t ,  a n d  p r o ­
te c t io n  a c c o r d e d  s u c h  a c t s  “ b y  s o m e  s h i e l d  o f  s t a t e  l a w  o r  
state a u t h o r i t y , ”  w h i c h  d o e s  v i o l a t e  t h e  A m e n d m e n t .

T h e  Civil B igh ts  C ases  d i d  n o t  p r o c e e d  o n  t h e  t h e o r y  t h a t  
n ere  w a s  i n  t h e  i n d i v i d u a l  a n y  c o n s t i t u t i o n a l  r i g h t  t o  

c e p i i v e  o t h e r s  o f  c i v i l  r i g h t s  g u a r a n t e e d  b y  t h e  C o n s t i t u -  II

II ^(thts Cases, 1 0 9  U . S . 3 , 1 1 , 1 7 ;  E x Parte Virginia, 1 0 0  
n J r  6 6 3 Twining v .  New Jersey, 211 U . S . 7 8 , 9 0 -9 1 ;  Moore v . 
Jm/F ir’Se^ ’ 7 ? ^  ^ 6 ;  Powell v .  Alabama, 2 8 7  U . S . 4 5 ;  Brinker-
H -P m s Co. v . Hill, 2 8 1  U .  S . 6 7 3 .



1 2

t i o n ; i t s  h o l d i n g  f o l l o w e d  r a t h e r  f r o m  t h e  f a c t  t h a t  t h e  F o u r ­
t e e n t h  A m e n d m e n t  d i d  n o t  i m p o s e  p r o h i b i t i o n s  u p o n  indi­
v i d u a l s  a s  s u c h .  I t  w a s  t h i s  f a c t  w h i c h  i m p e l l e d  t h e  h o ld in g  
t h a t  p r i v a t e  i n v a s i o n s  o f  c i v i l  r i g h t s  a r e  damnum absque 
in ju ria  u n d e r  t h e  F o u r t e e n t h  A m e n d m e n t  w h e n  th e y  are 
a c c o m p l i s h e d  w i t h o u t  t h e  a u t h o r i t y ,  s u p p o r t  o r  s a n c t io n  of 
t h e  s t a t e .  N o t h i n g  i n  t h o s e  c a s e s  o r  a n y  s u b s e q u e n t  ca se  in 
t h i s  c o u r t  h a s  s u g g e s t e d  t h a t  s u c h  p r i v a t e  d e n i a l s  o f  civil 
r i g h t s  r e m a i n  c o n s t i t u t i o n a l l y  u n o b j e c t i o n a b l e  w h e n  a 
s t a t e ’ s  p o w e r s  a r e  i n v o k e d  t o  e f f e c t u a t e  t h e  d e n i a l .  N o  case 
i n  t h i s  C o u r t  h a s  e v e n  s u g g e s t e d  t h a t  i n d i v i d u a l s  o r  private  
g r o u p s  h a v e  t h e  r i g h t ,  d e s p i t e  t h e  F o u r t e e n t h  A m e n d m e n t , 
t o  o b t a i n  s t a t e  a i d  o r  a s s i s t a n c e  i n  c a r r y i n g  o u t  a c t s  o f  dis­
c r i m i n a t i o n  b a s e d  o n  r a c e .  Q u i t e  t o  t h e  c o n t r a r y ,  t h is  Court 
s a i d  i n  t h e  C ivil R ig h ts  C ases  t h a t  t h e  i m p a c t  o f  th e  F o u r ­
t e e n t h  A m e n d m e n t  l a y  p r e c i s e l y  i n  t h e  f a c t  t h a t  i t  d e s tro y e d  
t h e  p o w e r  o f  t h e  s t a t e  t o  r e n d e r  a u t h o r i z a t i o n ,  s u p p o r t  or 
a s s i s t a n c e  t o  d i s c r i m i n a t o r y  a c t s  o f  i n d i v i d u a l s  b a s e d  on 
r a c e  w h e r e  s u c h  a c t s  i m p i n g e d  u p o n  r i g h t s  g u a r a n t e e d  by 
t h e  A m e n d m e n t .

T h e  C ivil R ig h ts  C ases  t h u s  i m p l i c i t l y  h e l d  t h a t  a  state 
c a n n o t  b e  s a i d  t o  ‘  ‘  s a n c t i o n ”  o r  ‘ 4 s u p p o r t ”  a c t s  o f  in d iv id u ­
a l s  w h i c h  i t  m e r e l y  d o e s  n o t  r e n d e r  u n l a w f u l  a n d  pun ish ­
a b l e . 3 I t  i s  f o r  t h i s  r e a s o n  t h a t  t h e  s t a t e s  a r e  n o t  required by 
t h e  F o u r t e e n t h  A m e n d m e n t  t o  p u n i s h  a  p r o p e r t y  o w n e r  who 
u t i l i z e s  h i s  c o n t r o l  o f  p r o p e r t y  o n  w h i c h  o t h e r s  w o r k  and 
l i v e  t o  b a r  c o m m u n i c a t i o n  b e t w e e n  t h e m  a n d  o u t s id e r s  on 
r e l i g i o u s  m a t t e r s  a n d  o t h e r  q u e s t i o n s  o f  p u b l i c  concern. 
O f .  M arsh  v .  A labam a,  3 2 6  U .  S .  5 0 1 .  I t  i s  f o r  t h is  reason 
t h a t  t h e  s t a t e s  a r e  n o t  r e q u i r e d  b y  t h e  F o u r t e e n t h  A m en c- 
m e n t  t o  p u n i s h  e m p l o y e r s  w h o  d i s c h a r g e  e m p lo y e e s  id

3 This is not to say, of course, that the states remain free under 
the Fourteenth Amendment to deny protection to individuas 
jured by conduct which is illegal under statelaw simply ee 
the illegal conduct results in impairment of rights guaran ee 
the Fourteenth Amendment. Such a denial of redress, as 

,  Rights Cases clearly indicated, would amount to a denia o
protection of the laws. It is with respect to individual a i ^ 
tions o f civil rights accomplished by means not mdepen 
legal that the state may remain aloof.



13

r e p r i s a l  a g a i n s t  t h e  e x e r c i s e  o f  t h e i r  c o n s t i t u t i o n a l  r i g h t  t o  
p r o s e l y t i z e  o n  b e h a l f  o f  a  l a b o r  o r g a n i z a t i o n .  C f .  Thom as  
v . Collins, 3 2 3  U .  S .  5 1 6 ,  5 3 7 ,  5 4 0 .  A n d  i t  i s  f o r  t h i s  r e a s o n  
t h a t  t h e  s t a t e s  d o  n o t  v i o l a t e  t h e i r  o b l i g a t i o n s  u n d e r  t h e  
F o u r t e e n t h  A m e n d m e n t  m e r e l y  b y  f a i l i n g  t o  i l l e g a l i z e  a n d  
p u n is h  t h e  m a k i n g  o r  v o l u n t a r y  p e r f o r m a n c e  b y  i n d i v i d u a l s  
o f  a g r e e m e n t s  w h i c h  r e s t r i c t  t h e  r i g h t  t o  p u r c h a s e ,  u s e  a n d  
se ll  r e a l  p r o p e r t y  o n  t h e  b a s i s  o f  r a c e .  C f C orrigan  v .  
Buckley, 2 7 1  U .  8 .  3 2 3 .

O n c e  t h e  s t a t e  g o e s  b e y o n d  t h i s ,  h o w e v e r ,  t h e  m o m e n t  i t  
f o r s a k e s  t h e  r o l e  o f  p a s s i v e  n o n - p a r t i c i p a n t  a n d  l e n d s  t o  
a n y  s u c h  p r i v a t e  i n f r i n g e m e n t s  o f  c i v i l  r i g h t s  t h e  s u p p o r t  
o r  s a n c t i o n  o f  i t s  p o l i c i e s  o r  i n s t r u m e n t a l i t i e s  o f  g o v e r n ­
m e n t , t h e  s t a t e  v i o l a t e s  t h e  F o u r t e e n t h  A m e n d m e n t .  J u s t  
a s  th e  s t a t e  c a n n o t  s u p p o r t  t h e  p r o p e r t y  o w n e r  i n  t h e  e x e r ­
c is e  o f  h i s  r i g h t s ,  w h e n  t h a t  e x e r c i s e  i n v a d e s  t h e  c o n s t i t u ­
t io n a l  r i g h t  o f  o t h e r s  f r e e l y  t o  s p e a k  a n d  t o  l i s t e n  ( M arsh  v .  
Alabama, 3 2 6  U .  S .  5 0 1 ) ,  s o  t h e  s t a t e  c a n n o t  s u p p o r t  t h e  
p r o p e r t y  o w n e r  w h o  s e e k s  t o  d e n y  t o  o t h e r s  t h e i r  c o n s t i ­
t u t io n a l  r i g h t  t o  a c q u i r e ,  u s e  a n d  d i s p o s e  o f  p r o p e r t y  w i t h ­
o u t  d i s c r i m i n a t i o n  o n  t h e  b a s i s  o f  r a c e .  A l m o s t  c o n t e m p o ­
r a n e o u s  r e c o g n i t i o n  t h a t  t h i s  w a s  i n d e e d  t h e  h o l d i n g  o f  t h e  
Civil Rights C ases  a p p e a r s  f r o m  t h e  d e c i s i o n  o f  J u d g e  E o s s  
in  Gandolfo v .  H artm an ,  4 9  F e d .  1 8 1 ,  1 8 2 - 1 8 3  ( 1 8 9 2 ) ,  d i s ­
m is s in g ,  o n  C o n s t i t u t i o n a l  g r o u n d s ,  a  s u i t  f o r  e n f o r c e m e n t  
o f  a  r a c i a l  r e s t r i c t i v e  c o v e n a n t .

T h is  d o e s  n o t  t r a n s f o r m  t h e  F o u r t e e n t h  A m e n d m e n t  i n t o  
an  i n s t r u m e n t  f o r  t h e  r e g u l a t i o n  o f  i n d i v i d u a l  d i s c r i m i n a ­
t io n  b a s e d  o n  r a c e .  T h e  o n l y  e f f e c t  o f  t h e  r u l e  i s  t o  d e p r i v e  
i n d iv id u a l s  o f  t h e  p o w e r  a n d  p r i v i l e g e  o f  i n v o k i n g ,  i n  t h e  
p e r f o r m a n c e  o f  d i s c r i m i n a t o r y  a c t s ,  a i d  a n d  p r o t e c t i o n  
w h ich  a  s t a t e  c o u l d  a c c o r d  t h e m  i n  t h e  p e r f o r m a n c e  o f  n o n -  
d i s c r i m i n a t o r y  a c t s .  T h a t ,  o f  c o u r s e ,  d o e s  n o t  r e s u l t  i n  
d e s t r u c t io n  o f  t h e  p o w r n r ' w h i c h  r e s p o n d e n t s  c l a i m ,  i .  e . ,  
th e ir  p o w e r  a s  p r o p e r t y  o w n e r s  t o  d i s c r i m i n a t e  o n  r a c i a l  
g r o u n d s  i n  d i s p o s i n g  o f  t h e i r  h o l d i n g s ,  o r  t o  m a k e  a n d  p e r -  
f o i m  c o n t r a c t s  t o  d o  s o .  M arsh  v .  A labam a, supra, d o e s  
n o t  i m p l y  t h a t  t h e  F o u r t e e n t h  A m e n d m e n t  h a s  d e s t r o y e d



14

t h e  a n a l a g o u s  p o w e r  o f  p r o p e r t y  o w n e r s  t o  d e n y  a ccess  
t o  t h e i r  p r o p e r t y  t o  p e r s o n s  w h o  w i s h  t o  p r o s e l y t i z e  a m o n g  
t e n a n t s  o n  b e h a l f  o f  a  r e l i g i o u s  s e c t .  A b s e n t  s t a t e  la w  to 
t h e  c o n t r a r y ,  s u c h  c o n d u c t  b y  t h e  p r o p e r t y  o w n e r  is  not 
i l l e g a l .  A l l  t h a t  i s  h e l d  i s  t h a t  t h e s e  p o w e r s  a r e  n o t  a ffirm a ­
t i v e l y  p r o t e c t e d  b y  t h e  F o u r t e e n t h  A m e n d m e n t ,  a n d  that 
p r o p e r t y  o w n e r s  h a v e  n o  c a u s e  t o  c o m p l a i n  o f  t h e  f a c t  that 
t h e  s t a t e s  a r e  p r e c l u d e d  f r o m  l e n d i n g  a i d  o r  a s s i s t a n c e  to 
t h e i r  e f f e c t u a t i o n .  I t  w o u l d  b e  s t r a n g e  i n d e e d  t o  h e a r  it 
s a i d  t h a t  t h e  F o u r t e e n t h  A m e n d m e n t ,  w h i c h  v ra s  e n a c t e d  to 
s e c u r e  c i v i l  r i g h t s ,  i n s t e a d  b o u n d  t h e  s t a t e s  t o  s a n c t i o n  th eir 
i n f r i n g e m e n t . 4

Y e t  t h e  a r g u m e n t  o f  t h e  S u p r e m e  C o u r t  o f  M i c h i g a n ,  that 
e n f o r c e m e n t  o f  r a c i a l  r e s t r i c t i v e  c o v e n a n t s  c a n  b e  d en ied  
o n l y  a t  t h e  p r i c e  o f  d e n y i n g  t o  t h e  p a r t i e s  t o  s u c h  a g r e e ­
m e n t s  t h e  “ e q u a l  p r o t e c t i o n  o f  t h e  l a w s ”  ( N o .  8 7 , R .  66 ), 
l e a d s  t o  j u s t  t h i s  c o n c l u s i o n .  ( C f .  N o .  7 2 ,  R .  1 5 8 ) .  The 
a r g u m e n t  i s  t h a t  a  c o u r t  c o u l d  n o t ,  w i t h o u t  d e n y i n g  equal 
p r o t e c t i o n ,  r e f u s e  t o  e n f o r c e  a  r a c i a l  r e s t r i c t i v e  c o v e n a n t , 
w h i l e  a t  t h e  s a m e  t i m e  c o n t i n u i n g  t o  e n f o r c e  o t h e r  c o v e ­
n a n t s  r e s t r i c t i n g  t h e  u s e  o f  l a n d .  T h e  f a l l a c y  i n  t h i s  a rg u ­

4 W ith due deference, we cannot perceive the force of the argu­
ment which has been made repeatedly by the Court of Appeals for 
the District of Columbia that failure to enforce racial restrictive 
covenants would “ destroy”  * * * titles to valuable real estate made 
and taken on the faith of our decisions”  (No. 290, R. 417-418; 162
F. 2d at 234). Whose titles? Certainly not those of the Negroes who 
are being evicted from their homes. Certainly not those of re­
spondents; no one seeks to oust them from ownership. The most 
that can be said is that respondents, and others similarly situatefl, 
would be disappointed in their expectation that the state throng 
its courts would aid them in compelling a willing property owner o 
refrain from selling or leasing his property to Negroes. If Norman 
v. Baltimore and Ohio By. Co., 294 U. S. 240, Euclid v. Am er 
Realty Co., 272 U. S. 365 and W est Coast Hotel Co. v. Parnsh, huu 
U. S. 379, teach anything they teach that the expectations o 
property owner, or of a party to a contract, concerning the ava 
ability of judicial aid for the enforcement of property or ) ®n ̂
‘ ‘ rights ’ ’ are not to be deemed inviolable even as against the p 
power of a state. It is incredible that such expectations s 
be permitted to stand in the way of securing to others civi g 
guaranteed by the Constitution.



15

m e n t  i s  e x p o s e d  b y  m e r e  r e f e r e n c e  t o  t h e  i n n u m e r a b l e  c a s e s  
in  w h i c h  c o u r t s  r e f u s e  t o  e n f o r c e  c o n t r a c t s ,  o t h e r w i s e  e n ­
t i r e ly  v a l i d ,  b e c a u s e  t h e  p a r t i c u l a r  c o n t r a c t s  a r e  d e e m e d  
v i o l a t i v e  o f  “ p u b l i c  p o l i c y . ”  N o  o n e ,  s o  f a r  a s  w e  a r e  
a w a r e , h a s  y e t  s u g g e s t e d  t h a t  w h e n  a  c o u r t  r e f u s e s  t o  e n ­
f o r c e  a  c o n t r a c t  m a d e  o n  S u n d a y ,  y e t  e n f o r c e s  a n  i d e n t i c a l  
c o n t r a c t  m a d e  o n  M o n d a y ,  i t  d e n i e s  t o  t h e  p a r t i e s  t o  t h e  
S u n d a y  c o n t r a c t  e q u a l  p r o t e c t i o n  o f  t h e  l a w s .  N o t h i n g  i n  
th e  C o n s t i t u t i o n  r e q u i r e s  a  c o u r t  t o  d e n y  e n f o r c e m e n t  t o  
S u n d a y  c o n t r a c t s ,  f o r  n o  c o n s t i t u t i o n a l  r i g h t s  w o u l d  b e  
im p a i r e d  b y  t h e i r  e n f o r c e m e n t .  B u t  t h e  C o n s t i t u t i o n  d o e s  
r e q u ir e  t h a t  c o u r t s  r e f r a i n  f r o m  e n f o r c i n g  c o n t r a c t s  w d r ic h ,  
as d o  r a c i a l  r e s t r i c t i v e  c o v e n a n t s ,  d e p r i v e  p e r s o n s  o f  c i v i l  
r ig h t s  g u a r a n t e e d  b y  t h e  F o u r t e e n t h  A m e n d m e n t .  C a n  
th e re  h e  a n y  d o u b t  t h a t  t h i s  f a c t ,  d e n i a l  o f  c i v i l  r i g h t s ,  j u s t i ­
fies a  d i s t i n c t i o n ,  f o r  p u r p o s e s  o f  e n f o r c e m e n t ,  b e t w e e n  s u c h  
c o n t r a c t s  a n d  c o n t r a c t s  r e s t r i c t i n g  l a n d  u s e  w h i c h  a r e  n o t  
o p e n  t o  o b j e c t i o n  o n  s u c h  g r o u n d s ?

_ I m p l i c i t  i n  t h e  a r g u m e n t  o f  t h e  s t a t e  c o u r t s  b e l o w  i s  t h e  
v ie v  t h a t  n o  s t a t e  c o u l d  b y  s t a t u t e  p r o h i b i t  a  p r o p e r t y  
o w n e r  f r o m  d i s c r i m i n a t i n g  a m o n g  p r o s p e c t i v e  p u r c h a s e r s  
on  th e  b a s i s  o f  r a c e  i n  d i s p o s i n g  o f  h i s  p r o p e r t y .  B y  t h e  
sa m e t o k e n  i t  w o u l d  f o l l o w  t h a t  n o  s t a t e  c o u l d  b y  s t a t u t e  
p r o h ib i t  a n  e m p l o y e r  f r o m  d i s c r i m i n a t i n g  a g a i n s t  p r o s p e c ­
tive  e m p l o y e e s  o n  t h e  b a s i s  o f  r a c e .  S u c h  s t a t u t e s ,  h o w ­
ev e r , w o u l d  s t a n d  u p o n  m u c h  t h e  s a m e  b a s i s  a s  t h e  B a i l w a y  
L a b o r  A c t  o f  1 9 2 6 ,  t h e  N a t i o n a l  L a b o r  R e l a t i o n s  A c t ,  a n d  
its c o u n t e r p a r t s  i n  s t a t e  l a w s .  W h a t  w a s  s a i d  b y  t h i s  C o u r t  
in reply t o  e m p l o y e r  c o n t e n t i o n s  t h a t  t h e s e  s t a t u t e s  u n c o n -  
s l t u t io n a l l y  i n t e r f e r e d  w i t h  t h e i r  r i g h t s  a s  p r o p e r t y  o w n e r s  
leeby t o  s e l e c t  t h e i r  e m p l o y e e s  i s  e q u a l l y  a p p l i c a b l e  t o  t h e  

a a c^  i m p l i c i t  i n  t h e  o p i n i o n s  o f  t h e  c o u r t s  b e l o w  u p o n  s t a t -  
u es p r o h i b i t i n g  r a c i a l  d i s c r i m i n a t i o n  i n  t h e  s a l e  o r  l e a s i n g  
o p i o p e i t y .  I n  T exa s  and N ew  O rleans R ailroad  Co. v .

motherhood o f  R ailw ay C lerks,  2 8 1  U .  S .  5 4 8 ,  5 7 0 - 5 7 1 ,  t h e  
c o u r t  s a i d :

The prohibition by  Cong’ress o f  interference with the 
ec ion o f representatives fo r  the purpose o f negotia­



16

t i o n  a n d  c o n f e r e n c e  b e t w e e n  e m p l o y e r s  a n d  e m p lo y e e s , 
i n s t e a d  o f  b e i n g  a n  i n v a s i o n  o f  t h e  c o n s t i t u t i o n a l  righ t 
o f  e i t h e r ,  w a s  b a s e d  o n  t h e  r e c o g n i t i o n  o f  t h e  r igh ts  
o f  b o t h  * * *. T h e  R a i l w a y  L a b o r  A c t  o f  1 9 2 6  does 
n o t  i n t e r f e r e  w i t h  t h e  n o r m a l  e x e r c i s e  o f  t h e  r ig h t  o f 
t h e  c a r r i e r  t o  s e l e c t  i t s  e m p l o y e e s  o r  t o  d i s c h a r g e  them . 
T h e  s t a t u t e  i s  n o t  a i m e d  a t  t h i s  r i g h t  o f  t h e  e m p lo y e r s  
b u t  a t  t h e  i n t e r f e r e n c e  w i t h  t h e  r i g h t  o f  e m p l o y e e s  to 
h a v e  r e p r e s e n t a t i v e s  o f  t h e i r  o w n  c h o o s i n g .  A s  the 
c a r r i e r s  s u b j e c t  t o  t h e  A c t  h a v e  n o  c o n s t i t u t i o n a l  righ t 
t o  i n t e r f e r e  w i t h  t h e  f r e e d o m  o f  t h e  e m p l o y e e s  in  m ak­
i n g  t h e i r  s e l e c t i o n s ,  t h e y  c a n n o t  c o m p l a i n  o f  t h e  statute 
o n  c o n s t i t u t i o n a l  g r o u n d s . ”

P r o p e r t y  o w n e r s  h a v e  n o  m o r e  c o n s t i t u t i o n a l  r i g h t  to  d is­
c r i m i n a t e  a g a i n s t  w o u l d - b e  p u r c h a s e r s  b e c a u s e  o f  their 
r a c e ,  c o l o r ,  c r e e d  o r  u n i o n  a f f i l i a t i o n ,  t h a n  e m p l o y e r s  have 
t o  d i s c r i m i n a t e  o n  s u c h  g r o u n d s  a g a i n s t  w o u l d - b e  em­
p l o y e e s .  O f .  P h elp s  D o d g e  C orp .  v .  N . L . R . B., 3 1 3  U . S. 
1 7 7 ;  N. L . R . B . v .  W a u m b ec  M ills, 1 1 4  F .  2 d  2 2 6  ( C .C .A .  1).

C. T h e  L im ita tion s  Im p o sed  by  the F o u rteen th  Amendment 
A p p ly  to S ta te  A c tio n  W h ich  F low s from  Policies 
E m bod ied  in  the C om m on-L aw  as W ell as f r o m  Policies 
E m bod ied  in L eg isla tion .

J u d i c i a l  a c t i o n  i s  n o  l e s s  a c t i o n  o f  t h e  s t a t e ,  s u b je c t  to 
t h e  l i m i t a t i o n s  o f  t h e  F o u r t e e n t h  A m e n d m e n t ,  w h e n  that 
a c t i o n  f l o w s  f r o m  p o l i c i e s  e m b o d i e d  i n  t h e  c o m m o n  la w  of 
t h e  s t a t e  t h a n  w h e n  i t  f l o w s  f r o m  p o l i c i e s  e m b e d d e d  in  leg is­
l a t i o n .  T h i s  p r i n c i p l e  h a s  b e e n  a p p l i e d  o f t e n  a n d  u n ifo rm ly  
b y  t h i s  C o u r t .  S e e ,  e .  g\ , C antw ell  v .  Connecticut, 3 1 0  U- 
2 9 6 ;  B rid g es  v .  C aliforn ia , 3 1 4  U .  S .  2 5 2 ;  Am erican Federa 
tion  o f  L a b o r  v .  S w ing, 3 1 2  U .  S .  3 2 1 ;  B a k ery  D rivers Loca 
v .  W oh l,  3 1 5  U .  S .  7 6 9 .  T h u s ,  . t h e  a c t i o n  o f  a  s t a t e  c o u r t  m 
e n j o i n i n g  a  w h i t e  p r o p e r t y  o w n e r  f r o m  s e l l i n g  h i s  p r o p e r  y 
t o  a  N e g r o  w o u l d  b e  e q u a l l y  v i o l a t i v e  o f  t h e  F o u r t e e n  
A m e n d m e n t  w h e t h e r  t h e  i n j u n c t i o n  w a s  p r e d i c a t e d  on a 
c o m m o n  l a w  p o l i c y  o f  t h e  s t a t e  w h i c h  h e l d  t h e  o w n e r s  ip 
a n d  o c c u p a n c y  o f  s u c h  p r o p e r t y  b y  a  N e g r o  t o  e



17

“ n u i s a n c e , ”  o r  u p o n  a n  i d e n t i c a l  p o l i c y  d e c l a r e d  b y  a c t  o f  
th e  s t a t e  l e g i s l a t u r e .  S p en cer  C hapel M ethod ist E p iscopa l 
Church v .  B rog a n ,  1 0 4  O k l a .  1 2 3 ,  2 3 1  P a c .  1 0 7 4 ;  C rist  v .  
Henshaw, 1 9 6  O k l a .  1 6 8 ,  1 6 3  P .  2 d  2 1 4 .  A  s t a t e  c o u r t  c a n ­
n o t  c o n s t i t u t i o n a l l y  f o l l o w  a n d  a p p l y  a  c o m m o n  l a w  p o l i c y  
w h i c h  t h e  l e g i s l a t u r e  c o u l d  n o t  c o n s t i t u t i o n a l l y  a d o p t  a n d  
d i r e c t  t h e  c o u r t s  t o  e n f o r c e .

D. A doption  and E n fo rcem en t by  S ta te  C ourts or L eg isla ­
tures o f  a P o licy  W h ich  S u p p orts  the In frin gem en t by 
Individuals o f  C ivil R ig h ts  G uaranteed  b y  the F o u r ­
teenth A m en d m en t is U nconstitu tional.

F o r  t h e  r e a s o n s  s e t  f o r t h  a b o v e ,  i t  i s  e n t i r e l y  p r o p e r  t o  
t e s t  t h e  v a l i d i t y  o f  t h e  p o l i c y  a d o p t e d  a n d  a p p l i e d  b y  t h e  
s t a t e  c o u r t s  i n  t h e s e  c a s e s  i n  t e r m s  o f  w h e t h e r  t h a t  p o l i c y  
is  o n e  w h i c h  s t a t e  l e g i s l a t u r e s  c o u l d  c o n s t i t u t i o n a l l y  e n a c t  
in t o  l a w .  T h e  q u e s t i o n  t h e n  b e c o m e s  w h e t h e r  a  s t a t e  c o u l d  
b y  s t a t u t e  p r o v i d e  t h a t  c o v e n a n t s  a g a i n s t  s a l e  t o ,  o r  o c c u ­
p a n c y  o f  c e r t a i n  l a n d s  b y  N e g r o e s  s h o u l d  b e  l a w f u l  a n d  
e n f o r c i b l e  b y  i n j u n c t i o n ,  n o t  o n l y  a g a i n s t  w i l l i n g  w h i t e  
s e l le r s ,  b u t  a g a i n s t  N e g r o  b u y e r s .

E v e n  s o m e  w h o  f i n d  n o  c o n s t i t u t i o n a l  i n f i r m i t y  i n  s t a t e  
c o u r t  e n f o r c e m e n t  o f  r e s t r i c t i v e  c o v e n a n t s  i n  c a s e s  s u c h  a s  
th o s e  n o w  b e f o r e  t h e  C o u r t ,  c o n c e d e  t h a t  s u c h  a  s t a t u t e  
w o u ld  b e  i n v a l i d .  A s  o n e  s u c h  w r i t e r  p u t s  i t ,  t h e  s t a t u t e  
w o u ld  e x t e n d  “ t h e  p o l i c y  a n d  s a n c t i o n  o f  t h e  s t a t e  b e y o n d  
th e  m e r e  p r o t e c t i o n  o f  p r o p e r t y  o r  c o n t r a c t  r i g h t s  t o  t h e  
V ery  a ° t  o f  d i s c r i m i n a t i o n . ”  T h e  s a m e  w r i t e r  f u r t h e r  
a d m it s  t h a t  u n d e r  s u c h  a  s t a t u t e  ‘ ‘  t h e  d i s c r i m i n a t i o n  i t s e l f  
[ i s ]  a u t h o r i z e d  a n d  e n c o u r a g e d  b y  t h e  s t a t e . ”  6

T h e s e  c o n c e s s i o n s  a r e  i n d e e d  u n a v o i d a b l e ,  f o r  t h e  s t a t u t e  
a p p r o v e s ,  a u t h o r i z e s  a n d  e n c o u r a g e s  d i s c r i m i n a t i o n  p r e ­
c is e ly  a s  d i d  t h e  s t a t u t e  h e l d  i n v a l i d  i n  H arm on  v .  T yler , 
A 3  IT. S .  6 6 8 ,  d i s c u s s e d  supra,  p .  8 .

p FlGnston, John A., S ta te  C ou rt E n fo rcem en t o f  R ace R estrictive  
m as ®tate A c tio n  W ith in  S cope o f  F ou rteen th  A m en d- 
nent. {C om m ent), 45 Mich. L. Rev. 733, 743.



18

T o  h o l d  s u c h  a  s t a t u t e  v a l i d  w o u l d  b e  t o  h o l d  t h a t  a  sta te  
c o u l d  b y  s t a t u t e  d e f i n e  a s  a  m i s d e m e a n o r  o r  e v e n  a s  a 
f e l o n y ,  t h e  p u r c h a s e  b y  a  N e g r o  o f  p r o p e r t y  w h i c h  the 
o w n e r  h a d  c o n t r a c t e d  t o  s e l l  o n l y  t o  w h i t e s .  M o r e o v e r ,  
s i n c e  i t  i s  a  f a m i l a r  d o c t r i n e  t h a t  a  s t a t e  m a y  n o r m a l ly ,  
t o  p r o m o t e  t h e  s a n c t i t y  o f  c o n t r a c t s ,  p r o v i d e s  p e n a l t i e s  fo r  
i n d u c i n g  b r e a c h  t h e r e o f  ( c f .  L ib e r ty  W a reh ou se  Co. v . To­
bacco G ro w ers ,  2 7 6  U .  S .  7 1 ) ,  s u c h  a  h o l d i n g  w o u l d  m e a n  
t h a t  a  s t a t e  c o u l d  b y  s t a t u t e  m a k e  i t  a  c r i m e  f o r  a  N e g r o  
t o  i n d u c e  t h e  s a l e  t o  h i m  o f  p r o p e r t y  w h i c h  t h e  o w n e r  is 
u n d e r  c o v e n a n t  t o  s e l l  o n l y  t o  w h i t e s ,  p r o v i d e d  o n l y  the 
s t a t e  a v o i d s  e q u a l  p r o t e c t i o n  o b j e c t i o n s  b y  f i n d i n g  th at 
s u c h  r a c i a l  r e s t r i c t i v e  c o v e n a n t s  a r e  t h e  t y p e  o f  c o n t r a c t s  
m o s t  o f t e n  b r o k e n  a s  a  r e s u l t  o f  d e l i b e r a t e  i n d u c e m e n t  b y  
t h i r d  p e r s o n s .  A labam a S ta te  F ed era tio n  o f  Labor v. 
M cA d o ry ,  3 2 5  U .  S .  4 5 0 ,  4 7 1 - 4 7 2 ;  U n ited  S ta tes  v .  Petrillo, 
3 3 1  U .  S .  8 8 8 .  W e  b e l i e v e  t h a t  n o  o n e  s e r i o u s l y  c o n te n d s  
t h a t  s u c h  s t a t u t e s  w o u l d  b e  c o m p a t i b l e  w i t h  t h e  F o u r t e e n t h  
A m e n d m e n t .

T h e  p o l i c y  a p p l i e d  b y  t h e  s t a t e  c o u r t s  i n  t h e s e  c a s e s ,  h o w ­
e v e r ,  i s  e x a c t l y  t h e  s a m e  a s  t h a t  e m b o d i e d  i n  t h e  h y p o t h e t i ­
c a l  s t a t u t e s  d i s c u s s e d  a b o v e ,  a n d  m u s t  f a l l  f o r  t h e  sam e 
r e a s o n s .  T o  s u g g e s t ,  a s  t h e  w r i t e r  q u o t e d  a b o v e  d o e s ,7 th at 
i n  r e c o g n i z i n g  t h e  v a l i d i t y  a n d  d e c r e e i n g  t h e  e n f o r c e m e n t  
o f  r e s t r i c t i v e  c o v e n a n t s ,  a  c o u r t ,  u n l i k e  a  l e g i s l a t u r e ,  is 
u n c o n c e r n e d  w h e t h e r  t h e  o b l i g a t i o n s  i m p o s e d  t h e r e i n  co m ­
p o r t  w i t h  p u b l i c  p o l i c y ,  i s  t o  d e n y  t o  t h e  j u d i c i a r y  its 
a c k n o w l e d g e d  p l a c e  i n  o u r  g o v e r n m e n t a l  s c h e m e .  T o  a ss e r t  
t h a t  a  c o u r t  e n f o r c e s  r a c i a l  r e s t r i c t i v e  c o v e n a n t s  s o l e l y  b e ­
c a u s e  t h e y  m e e t  t h e  f o r m a l  r e q u i r e m e n t s  o f  a  “ c o n t r a c t  is 
t o  v i e w  t h e  l a w  i n  M r .  J u s t i c e  H o l m e s ’  p h r a s e ,  a s  a  “ b r o o d ­
i n g  o m n i p r e s e n c e  i n  t h e  s k y . ”  “ A  p r o m i s e  u p o n  a  p r o m is e  
w i l l  l i e ”  i s  n o t  a  p e r n i c i o u s  a b s t r a c t i o n  w h i c h  d e c r e e s  tue 
e n f o r c e m e n t  o f  a l l  r e c i p r o c a l  p r o m i s e s  w h i c h  d o  n o t  th em ­
s e l v e s  v i o l a t e  p o s i t i v e  l a w .  S u n d a y  c o n t r a c t s ,  c o n t r a c t s  m  
r e s t r a i n t  o f  m a r r i a g e ,  a n d  d o z e n s  o f  o t h e r s ,  w h i c h  m e e t  a

7 Houston, op. cit. supra, note 5, at pp. 741, 742-743.



19

o f  t h e  f o r m a l  c o n t r a c t  r e q u i r e m e n t s  a n d  a r e  n o t  i n  t h e m ­
s e l v e s  “ v o i d , ”  a r e  d e n i e d  e n f o r c e m e n t  b y  s t a t e  c o u r t s  o n  
th e  g r o u n d  t h a t  t h e y  d o  n o t  c o m p o r t  w i t h  p u b l i c  p o l i c y . 8 
W h e n  a  c o u r t  e n f o r c e s  a  c o n t r a c t  i t  d e c i d e s ,  i m p l i e d l y  i f  
th e  q u e s t i o n  i s  n o t  r a i s e d ,  e x p r e s s l y  i f  i t  i s ,  t h a t  t h e  o b l i ­
g a t i o n s  u n d e r t a k e n  b y  t h e  p a r t i e s  m a y  l a w f u l l y  b e  a s s u m e d ,  
a n d  t h a t  p e r f o r m a n c e  o f  t h e  c o n t r a c t  a c c o r d s  w i t h  t h e  
p u b l i c  p o l i c y  o f  t h e  s t a t e .

C e r t a i n l y  t h i s  i s  t r u e  w h e r e  a  c o u r t  o f  e q u i t y  i s  a s k e d  
to  e n f o r c e  a  c o n t r a c t  b y  i n j u n c t i o n  o r  s p e c i f i c  p e r f o r m a n c e .  
T h e s e  r e m e d i e s  a r e  n e v e r  g r a n t e d  w i t h o u t  i n q u i r y  i n t o  
w h e t h e r  p e r f o r m a n c e  o f  t h e  p a r t i c u l a r  c o n t r a c t  w o u l d  c o m ­
p o r t  w i t h  o r  c o n t r a v e n e  t h e  p u b l i c  p o l i c y  o f  t h e  j u r i s d i c t i o n . 9 
I n d e e d ,  t h e  b e s t  i l l u s t r a t i o n  o f  t h i s  p o i n t  i s  t o  b e  f o u n d  i n  t h e  
h i s t o r i c a l  d e v e l o p m e n t  o f  t h e  l a w  . g o v e r n i n g  r e a l t y  c o v e ­
n a n ts  t h e m s e l v e s .  R e s t r i c t i o n s  o n  l a n d  u s e ,  c o n t a i n e d  i n  s u c h  
c o v e n a n t s ,  w e r e  d e e m e d  a p p r o p r i a t e  b y  c o u r t s  o f  e q u i t y  
to  p r o t e c t  w h a t  t h e y  f o u n d  t o  b e  s o c i a l l y  d e s i r a b l e  i n t e r e s t s .  
I t  w a s  i n  c o n s e q u e n c e  o f  t h i s  d e t e r m i n a t i o n  t h a t  t h e  c o u r t s  
g a v e  b i n d i n g  e f f e c t  t o  t h e  r e s t r i c t i o n s ,  d e s p i t e  t h e  g e n e r a l  
p o l i c y  o f  t h e  l a w  w h i c h  d i s a p p r o v e d  r e s t r a i n t s  u p o n  t h e  
u t i l i z a t i o n  o f  p r o p e r t y  b y  t h e  o w n e r .  E n f o r c i b i l i t y  o f  
r e s t r i c t i o n s  u p o n  l a n d  u s e  b y  i n j u n c t i o n  f l o w e d  f r o m  a  
c o n s c i o u s  d e t e r m i n a t i o n  b y  t h e  c o u r t s  t h a t  t h e  o b j e c t i v e  
a t t a in e d  b y  t h e  r e s t r i c t i o n s  w a s  m o r e  i m p o r t a n t  t o  s o c i e t y  
th a n  t h e  r e t e n t i o n  i n t a c t  o f  t h e  a b s o l u t e  f r e e d o m  o f  p r o p ­
e r t y  o w n e r s  t o  u t i l i z e  t h e i r  p r o p e r t y  i n  a n y  l a w f u l  f a s h i o n  
th e y  m i g h t  d e s i r e .  W h e n  c o u r t s  o f  e q u i t y  a s s i m i l a t e d  r e ­
s t r i c t i o n s  u p o n  r a c i a l  o c c u p a n c y  a n d  o w n e r s h i p  t o  r e s t r i c ­
t io n s  u p o n  u s e ,  t h e y  m a d e  p r e c i s e l y  t h e  s a m e  p o l i c y  d e t e r ­
m in a t io n  c o n c e r n i n g  t h e  a d v a n t a g e s  o f  s u c h  r e s t r i c t i o n s  a s  
th e y  h a d  e a r l i e r  m a d e  w i t h  r e s p e c t  t o  r e s t r i c t i o n s  u p o n  u s e .

h e  c o u r t s  b a l a n c e d  t h e  p o l i c y  o f  t h e  l a w  a g a i n s t  r e s t r a i n t s  
u p o n  a l i e n a t i o n  o n  t h e  o n e  h a n d ,  a g a i n s t  t h e  d e s i r a b i l i t y

8'5lr5 4illiston on Contracts, (Rev. Ed., 1937), Sections 1628-1631, pp. 45544568.
9 Op. cit. supra, note 8, Section 1429, pp. 4000, 4001, note 4.



2 0

o f  r a c i a l  s e g r e g a t i o n  o n  t h e  o t h e r ,  a n d  c o n c l u d e d  t h a t  the 
l a t t e r  i n t e r e s t  s h o u l d  p r e v a i l .  T h e  s a m e  p o l i c y  d e t e r ­
m i n a t i o n s  a n d  c o n s i d e r a t i o n s  w h i c h  w e r e  a t  t h e  f o u n d a t i o n  
o f  t h e  s t a t u t e s  h e l d  i n v a l i d  i n  B uchanan  v .  W arley,  273 
U .  S .  6 6 8 ,  C ity  o f  R ich m on d  v .  D ean s,  2 8 1  U .  S .  7 0 4 ,  a n d  
H a rm on  v .  T y le r ,  2 7 3  U .  S .  6 6 8 ,  c o n s t i t u t e  t h e  r a t i o n a l e  f o r  
j u d i c i a l  e n f o r c e m e n t  o f  r a c i a l  r e s t r i c t i v e  c o v e n a n t s .

T h e  v e r y  d e c i s i o n s  o f  t h e  c o u r t s  b e l o w  p r o v e  t h e  p o in t .  
T h e  c o u r t s  b e l o w  d i d  n o t  a u t o m a t i c a l l y  d e c r e e  e n f o r c e m e n t  
o f  t h e  c o v e n a n t s  m e r e l y  b e c a u s e ,  a s  c o n t r a c t s ,  t h e y  w e r e  n o t  
^ i m p r o p e r , ’ ’ . a n d  t h e r e f o r e  f e l l  w i t h i n  t h e  r u l e  “ t h a t  e q u it y  
w i l l  e n f o r c e  a  p r o p e r  c o n t r a c t  c o n c e r n i n g  l a n d ,  a g a i n s t  a ll 
p e r s o n s  t a k i n g  w i t h  n o t i c e  o f  i t . ”  M a y  v .  B u rgess,  1 4 7  F . 
2 d  8 6 9 ,  8 7 2  ( A p p .  D .  ( ’ . ) .  O n  t h e  c o n t r a r y ,  t h e  C o u r t  o f  
A p p e a l s  f o r  t h e  D i s t r i c t  o f  C o l u m b i a  a p p l i e d  t h a t  r u l e  o n ly  
a f t e r  f i n d i n g  t h a t  e n f o r c e m e n t  w o u l d  n o t  “ c r e a t e  a n  u n ­
n a t u r a l  b a r r i e r  t o  c i v i c  d e v e l o p m e n t  a n d  t h e r e b y  *  # *  e s t a b ­
l i s h  a  v i r t u a l l y  u n i n h a b i t a b l e  s e c t i o n  o f  t h e  c i t y .  ’ ’ Hundley 
v .  G orew itz ,  1 3 2  F .  2 d  2 3 ,  2 4  ( A p p .  D .  C . ) ,  q u o t e d  w i t h  a p ­
p r o v a l  i n  M a y  v .  B u rg ess ,  1 4 7  F .  2 d  8 6 9 ,  8 7 1  ( A p p .  D . C .) ,  
o n  t h e  b a s i s  o f  w h i c h  t h e  C o u r t  o f  A p p e a l s  f o r  t h e  District 
o f  C o l u m b i a  a f f i r m e d  t h e  j u d g m e n t s  b e l o w  i n  N o s , ,2 9 0  a n d . ,
.2 9 1  ( R .  4 1 7 - 4 1 8 ;  su p ra ,. P n J T h e  S u p r e m e  C o u r t  o f
M i c h i g a n  a p p l i e d  t h a t  r u l e  o n l y  a f t e r  f i n d i n g  t h a t  racial 
r e s t r i c t i o n s  u p o n  o c c u p a n c y  g a v e  t o  s o c i e t y  t h e  s a m e  ty p e  
o f  b e n e f i t s  a s  d i d  r e s t r i c t i o n s  u p o n  u s e ; t h a t  t h e s e  b e n e fit s  

] w e r e  m o r e  s u b s t a n t i a l  t h a n  t h o s e  f l o w i n g  f r o m  r e s t r i c t i o n s  
J /  [ u p o n  a l i e n a t i o n  t o  N e g r o e s ,  a n d  t h a t  t h e s e  b e n e f i t s  w a r - 

*  j r a n t e d  t h e  c o u r t s  i n  e n f o r c i n g  r e s t r i c t i o n s  u p o n  occupancy, 
a l t h o u g h  r e s t r i c t i o n s  u p o n  a l i e n a t i o n w o u l d  n o t  b e  e n f o r c e d  j  
( N o .  87, R .  65 -66. supra .  t>. 5 ) /  T h T  S u p r e m e  C o u r t  o f  

' ' M i s s o u r i  a p p l i e d  t h a t  r u l e  o n l y  a f t e r  f i n d i n g  t h a t  t h e  p la n  
o f  t h e  c o v e n a n t o r s  “ t o  p r e v e n t  g r e a t l y  i n c r e a s e d  occupancy 
b y  N e g r o e s ”  w a s  a  w o r t h y  o b j e c t i v e ,  o n e  w h i c h  warrantee 
a  c o u r t  o f  e q u i t y  i n  i m p o s i n g  b u r d e n s  t o  a i d  i n  i t s  a c h ie v e ­
m e n t  ( N o .  7 2 ,  R .  156-157, su pra ,  p .  6 ) .

C a n  t h e r e  b e  t h e  s l i g h t e s t  d o u b t  t h e n ,  t h a t  t h e  c o u r  s 
b e l o w  d i d  n o t  b l i n d  t h e m s e l v e s  t o  t h e  o b j e c t s  a n d  p u r p o s e s



2 1

o f  t h e  c o v e n a n t s  b e f o r e  d e c r e e i n g  t h e i r  e n f o r c e m e n t !  C a n  
th e r e  b e  t h e  s l i g h t e s t  d o u b t ,  i n d e e d ,  t h a t  t h e  c o u r t s  b e l o w  
m a d e  v a l u e  j u d g m e n t s  i n  t e r m s  o f  d e s i r a b l e  s o c i a l  p o l i c y  
w h ic h  d i f f e r e d  n o t  a  b i t  f r o m  t h e  v a l u e  j u d g m e n t s  m a d e  b y  
l e g i s l a t u r e s  i n  d e c i d i n g  t o  e n a c t  l e g i s l a t i o n  a p p r o v i n g  a n d  
d e c r e e i n g  e n f o r c e m e n t  o f  c o n t r a c t s  p r o v i d i n g  f o r  r e s i ­
d e n t ia l  s e g r e g a t i o n !  N o t  o n l y  t h e  m o t i v e ,  b u t  t h e  r e s u l t ,  
is  in  b o t h  c a s e s  t h e  s a m e .  B e c a u s e  t h e  s t a t e  a p p r o v e s  a n d  
th e  c o u r t s  e n f o r c e ,  i n d i v i d u a l s  a r e  e n c o u r a g e d  t o  e n t e r  i n t o  
c o v e n a n t s  b a r r i n g  N e g r o e s  f r o m  o w n i n g  a n d  o c c u p y i n g  r e s i ­
d e n t ia l  p r o p e r t i e s ,  c o v e n a n t s  w h i c h  o f t e n  c l o s e  t o  N e g r o  
o c c u p a n c y  w h o l e  s e c t i o n s  o f  c i t i e s .

I t  i s  n o t  v a l i d ,  t h e r e f o r e ,  t o  a s s e r t  t h a t  w h e n  a  s t a t e  c o u r t  
e n f o r c e s  a  r a c i a l  r e s t r i c t i v e  c o v e n a n t  ‘  ‘ t h e  c o n s c i o u s  p o l i c y ”  
a p p l ie d  b y  t h e  c o u r t  “ e n d s  w i t h  t h e  e n f o r c e m e n t  o f  c o n ­
t r a c t u a l  u n d e r t a k i n g s  o r  w i t h  t h e  p r o t e c t i o n  o f  p r o p e r t y  
in t e r e s t s ‘ w h e r e  t h e  c o v e n a n t  i s  t r e a t e d  a s  a n  e q u i t a b l e  
s e r v i t u d e , ” 10 o r  t h a t  t h e  c o u r t ’ s  p o l i c y  “ l o o k s  n o  f a r t h e r  
th a n  t o  t h e  p r o t e c t i o n  o f  p r o p e r t y  a n d  c o n t r a c t  r i g h t s . ” 11 
A n d , c o n s e q u e n t l y ,  i t  c a n n o t  b e  s a i d  t h a t  w h e n  a  c o u r t  e n ­
fo r c e s  a  r a c i a l  r e s t r i c t i v e  c o v e n a n t ,  p u r s u a n t  e i t h e r  t o  i t s  
ow n  o r  t h e  l e g i s l a t u r e ’ s  v i e w  t h a t  s u c h  c o v e n a n t s  s e r v e  t o  
p r o t e c t  a  s o c i a l l y  d e s i r a b l e  i n t e r e s t ,  t h e  c o u r t  i s  e n f o r c i n g  a  
“ n o n - d i s c r i m i n a t o r y ”  p r i n c i p l e  o f  l a w .

E . The Fourteenth Am endm ent precludes the states from  
supporting action by individuals which impedes the 
exercise o f rights guaranteed in the Fourteenth  Am end­
ment, by applying thereto the same policies, principles 
and laws ivhich govern  lawful, non-discrim inatory indi­
vidual action.

J e n  i f  i t  b e  c o n c e d e d ,  h o w e v e r ,  f o r  p u r p o s e s  o f  a r g u -  
® e n  ; t h a t  i n  e n f o r c i n g  r a c i a l  r e s t r i c t i v e  c o v e n a n t s  a  c o u r t  
n c e e d  l o o k s  n o  f a r t h e r  t h a n  t o  t h e  p r o t e c t i o n  o f  p r o p e r t y  

1 uc c o n t r a c t  r i g h t s ,  ’ ’ i t  w o u l d  b y  n o  m e a n s  f o l l o w  t h a t  s u c h

u ®oustcm> op. cit. supra, note 5, p. 741. 
lhid; at p. 742-743.



a c t i o n  w o u l d  n o t  v i o l a t e  t h e  F o u r t e e n t h  A m e n d m e n t .  
N e i t h e r  s t a t e  c o u r t s  n o r  l e g i s l a t u r e s  c a n  c o n s t i t u t i o n a l l y  
v e s t  i n  i n d i v i d u a l s  p o w e r  t o  i n v o k e  t h e  a i d  o f  g o v e r n m e n t  in  
i n f r i n g i n g  c i v i l  r i g h t s  g u a r a n t e e d  b y  t h e  F o u r t e e n t h  
A m e n d m e n t .  N e i t h e r  s t a t e  c o u r t s  n o r  l e g i s l a t u r e s  can  
e v a d e  t h i s  o b l i g a t i o n  o n  t h e  p l e a  t h a t  t h e y  p r o t e c t  i n f r i n g e ­
m e n t s  o f  t h e  b a s i c  g u a r a n t e e s  o f  t h e  F o u r t e e n t h  A m e n d ­
m e n t  n o t  b e c a u s e  t h e y  a r e  i n f r i n g e m e n t s  b u t  d e s p i t e  it. 
N e i t h e r  c a n  c o n s t i t u t i o n a l l y  p r o t e c t  e v e r y  e x e r c i s e  o f  
p o w e r  f l o w i n g  e i t h e r  f r o m  c o n t r a c t  o r  f r o m  t h e  o w n e r s h ip  
o f  p r o p e r t y  b y  p l e a d i n g  a  c a l l o u s  d i s r e g a r d  o f  w h e t h e r  the 
p a r t i c u l a r  e x e r c i s e  o f  p o w e r  i n v o l v e s  a n  i n f r i n g e m e n t  o f  the 
c i v i l  r i g h t s  o f  o t h e r s .  G o v e r n m e n t  d o e s  n o t  s a t i s f y  i t s  o b ­
l i g a t i o n s  u n d e r  t h e  F o u r t e e n t h  A m e n d m e n t  b y  d e v o t i n g  its 
a t t e n t i o n  s i n g l e - m i n d e d l y  t o  t h e  p r o t e c t i o n  o f  p r o p e r t y  an d 
c o n t r a c t  r i g h t s  w i t h o u t  c o n c e r n  f o r  t h e  e f f e c t  o f  s u c h  p r o t e c ­
t i o n  u p o n  c i v i l  r i g h t s .

A m p l e  a u t h o r i t y  i n  t h e  d e c i s i o n s  o f  t h i s  C o u r t  s u p p o r t s  
t h i s  v i e w .  I n  M arsh  v .  A labam a,  3 2 6  U .  S .  5 0 1 ,  t h e  S t a t e  o f 
A l a b a m a  s o u g h t  t o  e n f o r c e  i t s  n o n - d i s c r i m i n a t o r y  t r e s p a s s  
s t a t u t e  o n  c o m p l a i n t  o f  a  c o r p o r a t i o n  w h i c h ,  i n  t h e  e x e r c is e  
o f  i t s  p r o p e r t y  r i g h t s ,  h a d  b a r r e d  a  m e m b e r  o f  J e h o v a h ’s 
W i t n e s s e s  f r o m  p r o s e l y t i z i n g  o n  i t s  p r e m i s e s .  T h i s  C o u rt  
h e l d  t h a t  s u c h  a n  a p p l i c a t i o n  o f  t h e  a d m i t t e d l y  v a l i d  s ta tu te  
w a s  a n  u n c o n s t i t u t i o n a l  i n v a s i o n  o f  t h e  v i s i t o r ’ s  r i g h t  to 
f r e e d o m  o f  s p e e c h .  S i n c e  t h e  s t a t e  c o u l d  n o t  c o n s t i t u t i o n ­
a l l y  h a v e  e r e c t e d  s u c h  a  b a r r i e r  t o  t h e  e n t r a n c e  o f  J e h o v a h ’s 
W i t n e s s  i f  i t  w e r e  t h e  o w n e r  o f  t h e  p r o p e r t y  o n  w h i c h  o th e rs  
w o r k e d  a n d  l i v e d  ( C f .  J am ison  v .  T exa s,  3 1 8  IT . S .  4 1 3 , 415- 
4 1 6 ) ,  i t  c o u l d  i n  n o  w a y  u t i l i z e  i t s  p o w e r  t o  s u p p o r t  the 
e r e c t i o n  o f  a  b a r r i e r  b y  t h e  p r i v a t e  o w n e r . 12 Steele v.

12 Houston’s attempted distinction of Marsh v. Alabama fn® 
the restrictive covenant cases, 45 Mich. L. Rev., at pp. 145-1 ,o 
the ground that that case involved a criminal statute whereas the 1 - 
stant cases involve only civil remedies is without merit. Certain y, 
if  the Alabama statute had provided for enforcement only m 
junction the effect of its application upon one who disregarae 
injunction issued pursuant thereto would have been no wit c 
ent from the effect of application of the criminal statute.



23

Louisvile & N ash ville  R ailroad  Co., 3 2 3  U .  S .  1 9 2 ,  i m p l i e d  
t h a t  g o v e r n m e n t  c o u l d  n o t  c o n f e r  t h e  p o w e r  o f  m a j o r i t y  r u l e  
u p o n  p r i v a t e  g r o u p s ,  e v e n  t h o u g h  t h a t  p o w e r  w a s  c o n f e r r e d  
w i t h o u t  d i s c r i m i n a t i o n  o t  a n y  k i n d ,  u n l e s s  t h e r e  w a s  c o u p l e d  
w i t h  t h a t  g r a n t  o f  p o w e r  t h e  d u t y  t o  r e f r a i n  f r o m  r a c e  d i s ­
c r i m i n a t i o n  i n  i t s  e x e r c i s e .  I n  t h a t  c a s e  c o n t r a c t s  b e t w e e n  
th e  r e p r e s e n t a t i v e  o f  o n e  s u c h  p r i v a t e  g r o u p  a n d  e m p l o y e r s  
w e r e  h e l d  u n e n f o r c i b l e  b e c a u s e  t h e y  c o n t a i n e d  p r o v i s i o n s  
d i s c r i m i n a t i n g  a g a i n s t  c e r t a i n  m e m b e r s  o f  t h e  g r o u p  o n  t h e  
b a s i s  o f  r a c e .  T h e  S tee le  c a s e  d e m o n s t r a t e s  t w o  t h i n g s : 
f i r s t ,  t h a t  a  s t a t e  c a n n o t  c r e a t e  l e g a l l y  e n f o r c i b l e  r i g h t s  i n  
p r i v a t e  p e r s o n s  w i t h o u t  i n s u r i n g  t h a t  i n  e x e r c i s i n g  s u c h  
r i g h t s  t h e  r e c i p i e n t s  w i l l  n o t  t r e n c h  u p o n  c i v i l  r i g h t s  
g u a r a n t e e d  b y  t h e  F o u r t e e n t h  A m e n d m e n t .  T h i s  p r i n c i p l e  
is  a s  a p p l i c a b l e  t o  r e c o g n i t i o n  o f  c o n t r a c t  a n d  p r o p e r t y

Thomas v. Collins, 323 U. S. 516, 534, 535, 540, 543. In any event, 
where constitutional liberties are involved, a state can no more 
“ restrain or impede”  their exercise by providing that proper in­
dulgence should be the occasion for recovery of damages, than it 
can “ prohibit”  proper indulgence altogether. See Thomas v. 
Collins, supra, at p. 543.

Houston’s second attempted distinction, op. cit. supra, at pp. 
746-747, is likewise insubstantial. He completely misconstrues the 
reason that “ the Court attached great significance to the fact that 
the corporation for its own advantage had opened its land to the 
public. ’  ̂ This fact is relevant only upon the question whether any 
constitutional right of the Jehovah’s Witness was involved at all.
01 course, if no other persons resided on the corporation’s prop­
erty than the owners, and they did not wish to listen, the Jehovah’s 
Witness would have had no constitutional right to enter the prop­
erty and compel their attention. So much was established in Martin 
v- htruthers, 319 U. S. 141, 148. The residence of others on the 
property, who might wish to listen, was therefore crucial to the 
existence of Miss Marsh’s right to enter and speak. So, in the 
restrictive covenant cases, the constitutional right involved must 
w established by the showing of a willing buyer and a willing 
j ®r- Once that fact is established, however, the state is pre- 

W  as p* 1. the Marsh case, from interfering, because of the race 
° »16-,Par^ P ants’ wbh the consummation of the transaction.
• p if’ ,as the Marsh case also shows, such interference cannot be 
J stilled on the ground that the state is called upon to act by a 
h.n7ate Person whose claims to protection stem from property



2 4

r i g h t s  a s  i t  i s  t o  r e c o g n i t i o n  o f  t h e  r i g h t  t o  m a j o r i t y  r u l e .13 
S e c o n d ,  t h a t  c o u r t s  c a n n o t ,  c o n s i s t e n t  w i t h  t h e  F o u r t e e n t h  
A m e n d m e n t ,  b l i n d l y  a p p l y  n o r m a l  p r i n c i p l e s  o f  c o n t r a c t  
e n f o r c e m e n t  t o  c o n t r a c t s  w h i c h  h a v e  r a c e  d i s c r i m i n a t i o n  as 
t h e i r  o b j e c t .

T h e  f a c t  t h a t  t h e  r u l e  o f  l a w  p u r s u a n t  t o  w h i c h  c o u r t s  o r  
l e g i s l a t u r e s  e n f o r c e  r a c i a l  r e s t r i c t i v e  c o v e n a n t s  m a y  be  
d e e m e d  “ n o n - d i s c r i m i n a t o r y ”  i s  i m m a t e r i a l .  N o  r u l e  o f  
l a w  p r o m u l g a t e d  b y  a n  a g e n c y  o f  g o v e r n m e n t  c a n  a t ta in  
“ c o n s t i t u t i o n a l  v a l i d i t y  b e c a u s e  i t  c l a s s i f i e s  t h e  p r i v i l e g e s  
p r o t e c t e d  b y  t h e  F i r s t  A m e n d m e n t  a l o n g  w i t h  t h e  w a r e s  and 
m e r c h a n d i s e  o f  h u c k s t e r s  a n d  p e d d l e r s  a n d  t r e a t s  t h e m  all 
a l i k e . ”  M u rd och  v .  P en n sy lva n ia , 3 1 9  U .  S .  1 0 5 ,  1 1 5 . T he 
p r i n c i p l e  i s  e q u a l l y  a p p l i c a b l e  t o  t h e  c i v i l  r i g h t  g u a r a n t e e d  
b y  t h e  F o u r t e e n t h  A m e n d m e n t ,  o f  a c q u i r i n g ,  u s i n g  a n d  d is ­
p o s i n g  o f  p r o p e r t y  w i t h o u t  d i s t i n c t i o n  b a s e d  o n  r a c e ,  f o r  
t h a t  r i g h t  t o g e t h e r  w i t h  “ f r e e d o m  o f  p r e s s ,  f r e e d o m  o f  
s p e e c h ,  f r e e d o m  o f  r e l i g i o n  [ i s ]  i n  a  p r e f e r r e d  p o s i t i o n . ”  
M u rd ock  v .  P en n sylvan ia , 3 1 9  U .  S . ,  a t  p .  1 1 5 .  Civil Rights 
C ases, 1 0 9  U .  S .  a t  p .  2 2 ;  B uchanan  v .  W a rley , supra. (S ee  
p p .  9 - 1 1 ,  su p ra .)  S o  a  s t a t e  c a n n o t  c o n s t i t u t i o n a l l y  act 
t o  p r e c l u d e  t h e  o w n e r s h i p  o r  o c c u p a n c y  o f  p r o p e r t y  b e ca u s e  
o f  r a c e ,  m e r e l y  b e c a u s e  i t  h a s  c l a s s i f i e d  c o v e n a n t s  w h ich  
d e n y  t o  m e m b e r s  o f  o n e  o r  m o r e  r a c e s  t h e  r i g h t  t o  o w n  or 
o c c u p y  p r o p e r t y ,  a l o n g  w i t h  c o m m e r c i a l  c o n t r a c t s ,  o r  con ­
t r a c t s  r e s t r i c t i n g  t h e  u s e  o f  l a n d ,  a n d  e n f o r c e s  t h e m  all 
a l i k e .

13 W e have demonstrated above, pp. 18-19, that it is the state, not 
private persons, which creates the right to enter into legally binding 
contracts. Private persons could, without state aid, make mutual 
promises and abide by them. But without state_ aid, the mere 
existence of the promises could not compel a recalcitrant promisor 
to abide by Ms bargain. W e have further demonstrated above, pp. 
11-15, that the negative role played by the state toward the ma mg 
and voluntary performance of promises differs in kind irom u 
affirmative role played by the state in enforcing promises agains 
recalcitrant promisors. And we have shown (iUd .),_that unu 
the doctrine of the Civil Bights Cases, the obligations ot 
Fourteenth Amendment apply whenever, as here, the state acu> 
the latter role.



2 5

T h e  c o n t e n t i o n  o f  t h o s e  w h o  w o u l d  u p h o l d  s t a t e  e n f o r c e ­
m e n t  o f  r a c i a l  c o v e n a n t s  o n  t h i s  p o i n t  i s  c l o s e l y  a n a l a g o u s  
to  t h e  c o n t e n t i o n  r a i s e d  b y  t h e  e m p l o y e r  i n  R epublic A v ia ­
tion Corp. v .  N. L . R . B .,  3 2 4  S '.  S .  7 9 3 .  I n  t h a t  c a s e ,  i n  t h e  
i n t e r e s t s  o f  e f f i c i e n t  p r o d u c t i o n ,  t h e  e m p l o y e r  h a d  p r o ­
m u l g a t e d  a  p l a n t  r u l e  p r o h i b i t i n g  a l l  s o l i c i t a t i o n  b y  e m ­
p l o y e e s  o n  p l a n t  p r o p e r t y  d u r i n g  n o n - w o r k i n g ,  a s  w e l l  a s  
w o r k i n g  t i m e .  A n  e m p l o y e e  w h o  v i o l a t e d  t h e  r u l e  b y  s o l i c i t ­
in g  u n i o n  m e m b e r s h i p  o n  p l a n t  p r o p e r t y  d u r i n g  h i s  l u n c h  
h o u r  w a s ,  i n  c o n s e q u e n c e ,  d i s c h a r g e d .  C h a r g e d  w i t h  h a v ­
in g  t h e r e b y  v i o l a t e d  t h e  N a t i o n a l  L a b o r  R e l a t i o n s  A c t ,  4 9  
S ta t . 4 4 9 ,  2 9  U .  S .  C .  S e c .  1 5 1 ,  e t  s e q . ,  w h i c h  e n j o i n s  e m ­
p l o y e r s  f r o m  i n t e r f e r i n g  “ b y  d i s c r i m i n a t i o n ”  w i t h  t h e  
e x e r c i s e  b y  e m p l o y e e s  o f  s e l f - o r g a n i z a t i o n a l  r i g h t s ,  t h e  e m ­
p l o y e r  d e f e n d e d  o n  t h e  g r o u n d  t h a t  s i n c e  t h e  p l a n t  r u l e  
a p p l i e d  t o  a l l  s o l i c i t a t i o n ,  n o t  m e r e l y  s o l i c i t a t i o n  f o r  u n i o n s ,  
its  e n f o r c e m e n t  a g a i n s t  o n e  w h o  s o l i c i t e d  u n i o n  m e m b e r s h i p  
c o u ld  n o t  b e  d e e m e d  d i s c r i m i n a t o r y .  T h i s  C o u r t  r e j e c t e d  
th e  c o n t e n t i o n  h o l d i n g  t h a t  s i n c e  t h e  r u l e  a g a i n s t  s o l i c i t a ­
t io n  w a s  i t s e l f  i n v a l i d  i n s o f a r  a s  i t  i m p o s e d  r e s t r a i n t s  u p o n  
l e g i t im a t e  u n i o n  a c t i v i t y ,  a p p l i c a t i o n  o f  t h e  r u l e  t o  s u c h  

.a c t i v i t y  w a s  n e c e s s a r i l y  d i s c r i m i n a t o r y  ( 3 2 4  U .  S . ,  a t
p . 8 0 5 ) .

T h e  n o - s o l i c i t a t i o n  r u l e  w a s  h e l d  i n v a l i d  d e s p i t e  t h e  f a c t  
th a t  t h e  m o t i v e  f o r  i t s  p r o m u l g a t i o n  w a s  n o t  a  d e s i r e  t o  
im p e d e  s e l f - o r g a n i z a t i o n a l  a c t i v i t y ,  b u t  r a t h e r  a  d e s i r e  “ t o  
m a in t a in  d i s c i p l i n e ”  i n  t h e  f a c t o r y  ( 3 2 4  IT . S . ,  a t  p .  7 9 8 ) .  I t  
w a s  u n q u e s t i o n e d  t h a t  t h e  e m p l o y e r  h a d  a  r i g h t  t o  p r o ­
m u lg a t e  r u l e s  f o r  t h e  a t t a i n m e n t  o f  t h i s  o b j e c t i v e .  T h i s  
C o u r t  h e l d ,  h o w e v e r ,  t h a t  t h e  e m p l o y e r  w a s  n o t  f r e e  t o  a c ­
c o m p l i s h  h i s  p u r p o s e  b y  t h e  p r o m u l g a t i o n  o f  r u l e s  w h i c h ,  i n  
p r a c t i c a l  o p e r a t i o n ,  i m p e d e d  t h e  e x e r c i s e  o f  s e l f - o r g a n i z a ­
t io n a l  r i g h t s  g u a r a n t e e d  b y  t h e  A c t .

T h e  p r o h i b i t i o n  c o n t a i n e d  i n  t h e  W a g n e r  A c t  u p o n  e m ­
p lo y e r  i n t e r f e r e n c e  w i t h  s e l f - o r g a n i z a t i o n a l  r i g h t s  i s  n o  
m o r e  s w e e p i n g  i n  c h a r a c t e r  t h a n  t h e  p r o h i b i t i o n  c o n t a i n e d  
111 ^ le  F o u r t e e n t h  A m e n d m e n t  u p o n  s t a t e  i n t e r f e r e n c e  o n  
la c ia l  g r o u n d s  w i t h  t h e  r i g h t  t o  a c q u i r e ,  u s e  a n d  d i s p o s e  o f



2 6

p r o p e r t y .  T h e  t e s t  o f  v i o l a t i o n  i s  i n  b o t h  c a s e s  t h e  sam e, 
I t  i s  w h e t h e r  t h e  s t a t e  o r  t h e  e m p l o y e r  h a v e  s o  u s e d  th eir 
p o w e r s  a s  t o  i n t e r f e r e  w i t h  t h e  e x e r c i s e  o f  t h e  g u a r a n t e e d  
r i g h t s .  I f  s o ,  t h e  p r o h i b i t i o n s  a r e  v i o l a t e d ,  r e g a r d le s s  
w h e t h e r  t h e  s t a t e  o r  t h e  e m p l o y e r  s o u g h t  t h e r e b y  t o  a c c o m ­
p l i s h  a  w h o l l y  p r o p e r  a n d  l e g i t i m a t e  o b j e c t i v e ,  a n d  d r e w  no 
i n v i d i o u s  d i s t i n c t i o n  b e t w e e n  a c t i v i t i e s  p r o t e c t e d  a g a in s t  
i n t e r f e r e n c e  a n d  t h o s e  n o t  p r o t e c t e d .

A t  b e s t ,  t h e  o b j e c t i v e  o f  t h e  s t a t e  i n  r e q u i r i n g  t h a t  b in d in g  
p r o m i s e s  b e  h o n o r e d ,  i s  a  l e g i t i m a t e  g o v e r n m e n t a l  o b je c t iv e  
n o  d i f f e r e n t  i n  k i n d  f r o m  t h e  r a i s i n g  o f  r e v e n u e  b y  ta x a t io n  
(M u rd och  v .  P en n sy lva n ia , su p ra ),  o r  t h e  p r o t e c t i o n  o f 
p r i v a t e  p r o p e r t y  f r o m  i n v a s i o n  b y  u n w a n t e d  s tr a n g e r s  
(M arsh  v .  A labam a, su p ra ; M artin  v .  S tru th ers, supra) or 
t h e  e x t e n s i o n ,  f o r  p r o p e r  p u r p o s e s ,  o f  t h e  p r i n c i p l e  o f  m a­
j o r i t y  r u l e  ( c o m p a r e  J. I. C ase Co. v .  N. L . B . B ., 3 2 1  U . S. 
3 3 2 ,  3 3 9  a n d  N , L . B . B .  v .  M ed o P h o to  S u pp ly  Go., 3 2 1 U . S. 
6 7 8 ,  6 8 4 ,  w i t h  S tee le  v .  L ou isv ille  $  N ashville  Bailroad Go., 
su p ra ).  G o v e r n m e n t  c a n  n o  m o r e  c o n s t i t u t i o n a l l y  tra m p le  
o n  c i v i l  r i g h t s  g u a r a n t e e d  b y  t h e  F o u r t e e n t h  A m e n d m e n t  in 
p u r s u i n g  t h a t  o b j e c t i v e  t h a n  i t  c a n  i n  p u r s u i n g  a n y  o f  these 
o t h e r  o b j e c t i v e s .  A  s t a t e  c a n n o t  p l a c e  i t s  p o l i c y  o f  e n fo r c ­
i n g  p r i v a t e  a g r e e m e n t s  b e y o n d  t h e  r e a c h  o f  t h e  F o u r t e e n t h  
A m e n d m e n t .

A d o p t i o n  o f  a n y  p r i n c i p l e  w h i c h  w o u l d  p l a c e  e n fo r c e ­
m e n t  o f  c o n t r a c t s  a b o v e  c i v i l  r i g h t s  g u a r a n t e e d  b y  the 
F o u r t e e n t h  A m e n d m e n t  w o u l d  i n v i t e  s u b v e r s i o n  o f  those 
r i g h t s .  T h e  r i g h t s  g u a r a n t e e d  b y  t h e  F i r s t  A m e n d m e n t  and 
i n c o r p o r a t e d  b y  t h e  F o u r t e e n t h  w o u l d  h e  a s  m u c h  en­
d a n g e r e d  a s  t h e  r i g h t  t o  s e l l  a n d  a c q u i r e  p r o p e r t y  w ithout 
d i s t i n c t i o n  o n  t h e  b a s i s  o f  r a c e .  P a r t i e s  m a y  b y  m utual 
c o n t r a c t  b i n d  t h e m s e l v e s ,  f o r  e x a m p l e ,  n e v e r  t o  discuss 
o p e n l y  m a t t e r s  o f  p u b l i c  c o n c e r n ,  n e v e r  t o  v o t e  i n  e lection s 
w h e r e  f e d e r a l  o f f i c i a l s  a r e  t o  h e  s e l e c t e d ,  o r  n e v e r  t o  practice  
a n y  r e l i g i o n .  C o u l d  i t  b e  d o u b t e d  t h a t  s t a t e ^  e n fo r c e m e n t  
o f  o b l i g a t i o n s  a s s u m e d  b y  c o n t r a c t  n o t  t o  e x e r c i s e  th e s e  c m  
r i g h t s  w o u l d  v i o l a t e  t h e  F o u r t e e n t h  A m e n d m e n t ?  Y e t  ne 
r i g h t s  d e a l t  w i t h  b y  s u c h  c o n t r a c t s  a r e  o n  n o  h ig h e r  con



27

s t i t u t i o n a l  l e v e l  t h a n  t h e  r i g h t  t o  s e l l  p r o p e r t y  t o  N e g r o e s  
w h i c h  i s  b a r t e r e d  a w a y  i n  t h e  c o v e n a n t s  h e r e  a t  i s s u e .  O n l y  
i f  a  s t a t e  c o u l d  b y  i n j u n c t i o n  r e s t r a i n  a n  o t h e r w i s e  q u a l i f i e d  
c i t i z e n  f r o m  v o t i n g  b e c a u s e  h e  h a d  b y  c o n t r a c t  a g r e e d  n o t  
t o  v o t e ,  c o u l d  a  s t a t e  b y  i n j u n c t i o n  r e s t r a i n  a  p r o p e r t y  
o w n e r  f r o m  s e l l i n g  p r o p e r t y  t o  a  N e g r o  b e c a u s e  o f  h i s  r a c e .

T h e s e  a n a l o g i e s  s u g g e s t  o n l y  t h e  e f f e c t  o f  j u d i c i a l  e n ­
f o r c e m e n t  o f  c o n t r a c t  o b l i g a t i o n s  u p o n  t h e  c i v i l  r i g h t s  o f  
th e  p a r t i e s  t h e m s e l v e s .  T o  a t t a i n  a  t r u e  a n a l o g y  t o  t h e  
in s t a n t  c a s e  i t  i s  n e c e s s a r y  t o  o b s e r v e  i n  a d d i t i o n  t h e  r e p e r ­
c u s s io n s  u p o n  t h e  c o n s t i t u t i o n a l  r i g h t s  o f  s t r a n g e r s  t o  t h e  
c o n t r a c t .  T h u s ,  a s s u m e  t h a t  t w o  r e l i g i o u s  s e c t s  a g r e e d  b y  
c o n t r a c t  n e v e r  t o  a d m i t  N e g r o e s  i n t o  t h e i r  c o n g r e g a t i o n s .  
N o  d o u b t  v o l u n t a r y  p e r f o r m a n c e  o f  s u c h  a  c o n t r a c t  w o u l d  
n o t  f a l l  w i t h i n  t h e  b a n  o f  t h e  F o u r t e e n t h  A m e n d m e n t .  B u t  
s u p p o s e  t h a t ,  i n  a  s u c c e e d i n g  g e n e r a t i o n ,  o n e  o f  t h e  s e c t s  
w is h e d  t o  r e c e d e  f r o m  t h e  p a c t .  C o u l d  t h e  s t a t e  t h e n ,  w i t h ­
o u t  m a k i n g  i n a d m i s s i b l e  i n r o a d s  u p o n  t h e  f r e e d o m  o f  r e ­
l ig i o n  o f  t h o s e  N e g r o e s  w h o  w i s h e d  t o  j o i n ,  a n d  o f  t h e  w h i t e  
p e r s o n s  w h o  w i s h e d  t o  h a v e  t h e m ,  r e s t r a i n  t h e m  f r o m  d o i n g  
s o ?  T h i s  i s  t h e  i n s t a n t  c a s e .  P e t i t i o n e r s ,  s t r a n g e r s  t o  t h e  
c o n t r a c t s  (supra, p p .  3 - 4 ,  5 ) ,  h a v e  b e e n  e n j o i n e d  b y  j u d i c i a l  
d e c r e e  f r o m  p u r c h a s i n g  a n d  o c c u p y i n g  p r o p e r t y  b e c a u s e  
o f  t h e i r  r a c e .

F. Petitioners cannot be held to have “ waived”  their rights 
under the Fourteenth Amendment.

I t  i s  n o t  o p e n  t o  r e s p o n d e n t s  t o  a r g u e  t h a t  b y  b e c o m i n g  
p a r t ie s  t o  t h e  c o n t r a c t  c o n t a i n i n g  t h e  d i s c r i m i n a t o r y  r e ­
s t r i c t i o n s  o r  b y  a c q u i r i n g  t h e  p r o p e r t y  b y  d e e d  c o n t a i n i n g  
su ch  r e s t r i c t i o n s ,  p e t i t i o n e r s  h a v e  w a i v e d  t h e i r  r i g h t s  u n d e r  
th e  F o u r t e e n t h  A m e n d m e n t .  T h e  F o u r t e e n t h  A m e n d m e n t ,  
in s o f a r  a s  i t  c o n f e r s  c i v i l  r i g h t s  u p o n  i n d i v i d u a l s  a g a i n s t  
th e  s t a t e ,  d o e s  s o  b y  d e p r i v i n g  t h e  s t a t e  o f  p o w e r  t o  u t i l i z e  
its  e x e c u t i v e ,  l e g i s l a t i v e  o r  j u d i c i a l  a g e n c i e s  t o  r e q u i r e  i n d i ­
v id u a ls  t o  a c t ,  o r  n o t  t o  a c t ,  i n  t h e s e  m a t t e r s  a g a i n s t  t h e i r  
w ill .  U n d e r  t h e  C o n s t i t u t i o n  n o  p e r s o n  c a n ,  b y  c o n s e n t  i n  
a d v a n c e ,  c o n f e r  u p o n  g o v e r n m e n t  p o w e r  t o  d e p r i v e  h i m  o f  
c iv i l  f r e e d o m .  N o  p e r s o n  c a n ,  b y  c o n t r a c t  o r  o t h e r w i s e ,  e m -



28

p o w e r  a  s t a t e  t o  c o m p e l  M m  t o  w o r k  a g a i n s t  M s  w ill. 
P o llo ck  v .  W illiam s,  3 2 4  IT . S .  4 .

T h e  h i g h  p r i v i l e g e s  c o n f e r r e d  u p o n  i n d i v i d u a l s  h y  the 
C o n s t i t u t i o n ,  m a y ,  i t  i s  t r u e ,  h e  w a i v e d .  N o  o n e  i s  r e q u i r e d  
t o  e x e r c i s e  h i s  f e d e r a l  p r i v i l e g e  a g a i n s t  s e l f - i n c r i m i n a t i o n  
( C f .  B u rd ick  v .  U nited  S ta tes ,  2 3 6  IT . S .  7 9 ) ;  o r  “ r i g h t ”  to  
c o u n s e l ,  o r  “ r i g h t ”  t o  h e  s e c u r e  a g a i n s t  u n r e a s o n a b l e  
s e a r c h e s  o r  s e i z u r e s .  N o r  i s  o n e  r e q u i r e d  b y  t h e  C o n s t i t u ­
t i o n  t o  s p e a k  o u t  o n  p u b l i c  i s s u e s ,  o r  t o  v o t e ,  o r  t o  p r a c t i c e  
r e l i g i o n ,  o r  t o  r e f r a i n  f r o m  d i s c r i m i n a t i n g  a m o n g  w o u l d  be 
p u r c h a s e r s  o f  p r o p e r t y  o n  t h e  b a s i s  o f  r a c e .  B u t  in d i ­
v i d u a l s  c a n n o t  c o n f e r  u p o n  t h e  f e d e r a l  g o v e r n m e n t  the 
p o w e r  t o  c o m p e l  t h e m ,  a g a i n s t  t h e i r  w i l l ,  t o  in c r i m i n a t e  
t h e m s e l v e s ,  o r  t o  r e f u s e  c o u n s e l ,  o r  t o  c o n s e n t  t o  a n  u n ­
r e a s o n a b l e  s e a r c h ;  n o r  c a n  t h e y  c o n f e r  u p o n  t h e  s ta te s  
p o w e r  t o  m a k e  t h e m  r e m a i n  s i l e n t  o n  p u b l i c  i s s u e s ,  o r  to 
r e f r a i n  f r o m  v o t i n g ,  o r  p r a c t i c i n g  r e l i g i o n ,  o r  s e l l i n g  th e ir  
p r o p e r t y  t o  N e g r o e s .  T h e s e  l a t t e r  p o w e r s  a r e  d e n i e d  to 
t h e  s t a t e s  b y  t h e  C o n s t i t u t i o n ;  o n l y  b y  a m e n d m e n t  o f  the 
C o n s t i t u t i o n  c o u l d  t h e  d e f e c t  o f  p o w e r  b e  s u p p l i e d .  I f  th is  
w e r e  n o t  t r u e  i t  w o u l d  m e a n ,  f o r  e x a m p l e ,  t h a t  a  s t a t e  c o u ld  
v a l i d l y  e n a c t  a n  e x  p o s t  f a c t o  l a w ,  o r  a  l a w  e s t a b l i s h i n g  a 
s t a t e  r e l i g i o n ,  o r  p r o h i b i t i n g  s p e e c h  o n  p u b l i c  q u e s t i o n s ,  i f  
o n l y  t h e  i n h a b i t a n t s  o f  t h e  s t a t e  u n a n i m o u s l y  a u t h o r i z e d  
s u c h  l e g i s l a t i o n .  N e i t h e r  i n d i v i d u a l l y  n o r  c o l l e c t i v e l y  can  
t h e  i n h a b i t a n t s  o f  a  s t a t e  c o n f e r  u p o n  i t  p o w e r s  d e n i e d  b y  
t h e  C o n s t i t u t i o n .

I t  f o l l o w s ,  w e  s u b m i t ,  t h a t  a n y  c o n s e n t  o r  a g r e e m e n t  
w h i c h  m a y  b e  i m p u t e d  t o  p e t i t i o n e r s  i s  w h o l l y  i m m a t e r ia l  
t o  t h e  q u e s t i o n  h e r e  p r e s e n t e d ,  w h e t h e r ,  b y  e n f o r c i n g  the 
d i s c r i m i n a t o r y  c o v e n a n t ,  t h e  s t a t e  h a s  e x c e e d e d  i t s  p o w e r s  
u n d e r  t h e  F o u r t e e n t h  A m e n d m e n t .

C e r t a i n l y  i t  c a n n o t  b e  a r g u e d  t h a t  p e t i t i o n e r s  h a v e  by  
a n y  a c t  w a i v e d  t h e  r i g h t  t o  h a v e  t h a t  q u e s t i o n  d e t e r m in e d  
i n  t h e  c o u r t s .  N o t  a  w o r d  o f  t h e  r e s t r i c t i o n s  f o r e c l o s e s  the 
r i g h t  o f  a n y  p a r t y  t h e r e t o  t o  t e s t  t h e  v a l i d i t y  o f  ju d ic ia l  
e n f o r c e m e n t  o f  t h e m  i n  t h e  c o u r t s .  T h u s ,  e v e n  i f  t h e  p e t i t i o n ­
i n g  s e l l e r  i n  N o .  2 9 1  w a s  a n  o r i g i n a l  p a r t y  t o  t h e  a g r e e m e n t



29

h e  w o u l d  r e t a i n  t h e  r i g h t  t o  c o n t e n d  t h a t  e n f o r c e m e n t  o f  
t h e  a g r e e m e n t  b y  t h e  s t a t e  v i o l a t e d  h i s  r i g h t s  u n d e r  t h e  
F o u r t e e n t h  A m e n d m e n t .  W h e t h e r  t h a t  r i g h t  c o u l d  e f ­
f e c t i v e l y  b e  w a i v e d  b y  c o n t r a c t ,  a n d  w h e t h e r  s u c h  a  w a i v e r  
c o u l d  b i n d  s u c c e e d i n g  p a r t i e s ,  s u c h  a s  p e t i t i o n e r s  i n  t h e  
i n s t a n t  c a s e s ,  a r e  t h e m s e l v e s  d o u b t f u l  q u e s t i o n s  w h i c h  n e e d  
n o t  b e  d e c i d e d  h e r e .  S u f f i c e  i t  t o  s a y  t h a t  a b s e n t  s u c h  a  
w a i v e r  t h e  q u e s t i o n s  h e r e  u r g e d  a r e  p r o p e r l y  b e f o r e  t h i s  
C o u r t .

CONCLUSION.
F o r  t h e  r e a s o n s  s t a t e d  a b o v e  i t  i s  r e s p e c t f u l l y  s u b m i t t e d  

t h a t  t h e  a c t i o n  o f  t h e  c o u r t s  b e l o w  i n  e n f o r c i n g  t h e  r a c i a l  
r e s t r i c t i o n s  c o n t a i n e d  i n  t h e  c o v e n a n t s  v i o l a t e d  t h e  F i f t h  
a n d  F o u r t e e n t h  A m e n d m e n t s .

R obert W .  K e n n y , President,
0 . J ohn  R ogge, Chairman, 

National Committee on Civil Bights 
and Liberties, National Lawyers Guild.

M ozart G. R atner,
Counsel for Amicus Curiae.