Reitman v Mulkey Brief Amicus Curiae in Support of Affirmance

    Ihtpratt? (Eourt nf thr litilrii Stairs
OCTOBER TERM , 1966

No. 483

N E IL R EITM A N , et a l .,

vs.

Petitioners,

LINCOLN W . M U LK EY, et a l .,

Respondents.

BRIEF OF THE ATTORNEY GENERAL OF THE 
STATE OF NEW YORK AS AMICUS CURIAE 

IN SUPPORT OF AFFIRMANCE

Louis J. Lefkowitz 
Attorney General of the 

State of New York

Samuel A. H irshowitz
First Assistant Attorney General

George D. Z uckerman 
Lawrence J. Gross 

Assistant Attorneys General 
of Counsel

249 Press of Fremont Payne, Inc., 80 Washington St., N. Y.—BOwling Green 9-8153



TABLE OF CONTENTS

Interest of the Amicus ...................................................  1

Questions Presented .......................................................  3

Constitutional Provision Involved ................................ 4

P oint I—Article I, §■ 26 of the California Constitu­
tion violates the Equal Protection Clause of the 
Fourteenth Amendment .......................................... 5

A. Article I, 26 is not a declaration of state
neutrality, but rather constitutes a state effort 
to sanction and perpetuate racial discrimina­
tion in the sale and rental of housing accom­
modations .............................................................  6
1. The existence of discrimination in the sale

and rental of housing accommodations in 
California .......................................................  6

2. Segregated housing conditions in Califor­
nia are in part the result of prior state 
a ction ...............................................................  9

3. The myth of state “ neutrality” ...................  12

B. The scope of the right to discriminate con­
ferred by Article I, § 26 would involve state 
a ction .....................................................................  14

P oint II—Article I, $ 26 of the California Constitu­
tion abridges the privileges of citizens of the 
United States to reside and acquire interests in 
real property within the State o f California . . . .  18

P oint III—Article I, <; 26 is violative of federal 
rights set forth in § 1982 of Title 42 of the United 
States Code ...............................................................  21

Conclusion .........................................................   25

PAGE



11 TABLE OF CONTENTS

Cases Cited

page

Anderson v. Martin, 375 U. S. 399 (1964) ..............  14

Banks v. Housing Authority, 120 Cal. App. 2d 1, 260
P. 2d 668, cert. den. 347 U. S. 974 (1954) ..........  11

Barrows v. Jackson, 346 U. S. 249 (1 9 5 3 )....................  17
Bell v. Maryland, 378 U. S. 226 (1964) ........................  21
Buchanan v. Warley, 245 U. S. 60 (1917) ....................  14
Burks v. Poppy Construction Company, 57 Cal. 2d

463, 370 P. 2d 313 (1962) ........................................  2

Burton v. Wilmington Parking Authority, 365 U. S.
715 (1961) .............................................................13,15,16

City of Greensboro v. Simpkins, 246 F. 2d 425 (4th 
Cir., 1957) ....................................................................  16

Civil Rights Cases, 109 IT. S. 3 (1883) ........................ 23,24

Clyatt v. United States, 197 U. S. 207 (1905) ..........  24
Colorado Anti-Discrimination Com’n v. Continental

Airlines, 372 U. S. 714 (1963) ..............................  20
Corfield v. Coryell, 4 Wash. C. C. 371 (1825) ..........  18
Crandall v. Nevada, 6 Wall. 35 (1868) ......................  19

Edwards v. California, 314 U. S. 160 (1941) ..............  19
Evans v. Newton, 382 U. S. 296 (1966) ......................  16
Gomillion v. Lightfoot, 364 U. S. 339 (1960) ..............  6

Griffin v. County School Board, 377 U. S. 218 (1964) 6
Hill v. Miller, 50 Cal. Rptr. 908, 413 P. 2d 852 (1966) 17

Katzenbach v. Morgan, 384 U. S. 641 (1966) ..........  24



t a b l e  o p  c o n t e n t s

Los Angeles Investment Company v. Gray, 181 Cal
680 (1920) .................................................................  9

Marsh v. Alabama, 326 U. S. 501 (1946) ..................  17
Ming v. Horgan, 3 Race Relations Reporter, 693 ..12,13 
Mulkey v. Reitman, 50 Cal. Rptr. 881, 413 P. 2d 825

(1966) ......................................................................... 16,17
Oyama v. California, 332 U. S. 633 (1948) ................14,22
Peyton v. Barrington Plaza Corporation, 50 Cal. Rptr

905, 413 P. 2d 849 (1 9 66 )......................................... i 5> 16

Prendergast v. Snyder, 50 Cal. Rptr. 903, 413 P 2d 
847 (1966) ...................................................................  17

Shelley v. Kraemer, 334 U. S. 1 (1948) ............9,10,14,17
Slaughter-House Cases, 16 Wall. 36 (1873) ..............  18

Smith v. Holiday Inns of America, 336 F. 2nd 630
(6th Cir., 1964) .........................................................  16

Strauder v. West Virginia, 100 U. S. 303 (1879) . . . .  14
Takahashi v. Fish and Game Commission, 334 U. S

410 (1948) ...................................................................  20

Taylor v. Board of Education of City School District 
of New Rochelle, 294 F. 2nd 36 (2nd Cir., 1961) 
cert. den. 368 U. S. 940 .......................................... 13

Terry v. Adams, 345 U. S. 461 (1953) .......................... 14
Truax v. Raich, 239 U. S. 33 (1915) ............................19, 20
Twining v. New Jersey, 211 U. S. 78 (1908) ..............  19
United States v. Guest, 383 U. S. 745 (1966) ..........  19

United States v. Schackney, 333 F. 2nd 475 (2nd Cir.
1964) ............................................................................

iii

PAGE

24



IV TABLE OP CONTENTS

Statutes Cited
page

California Civil Code, Sec. 51 -52 ..............................2,12,20

California Community Redevelopment Law, Sec. 33039 9

California Constitution, Art. I, Sec. 26 . .2, 3, 4, 5, 6,12,13,
14,15,16,17,18, 20, 21, 23,24,25

California Constitution (1879) Art. X I X ....................  11
California General Laws Acts, 260-261 ......................  11

California Health and Safety Code, Sec. 35700 ..  .2,12,20

Civil Rights Act of 1866, Ch. 31, Sec. 1, 14 Stat, 27 21
NewT York Civil Rights Law, Sec. 1 8 ..........................  1
New York Executive Law, Sec. 296 (3), (5) ..........  1,2
New York Public Housing Law, Sec. 223 ..................  1
Second Civil Rights Act, Ch. 114, Sec. 18, 16 Stat. 140 21

United States Code, Title 42, Sec. 1982 .............. 4, 21, 23, 24
United States Constitution, Fourteenth Amendment,

See. 1 ............................................................................ 6,18
United States Constitution, Thirteenth Amendment . . 21

United States Revised Statutes, Sec. 1978 (1875) . . . .  22

M iscellaneous

Governor’s Advisory Committee, A Report on Hous­
ing in California........................................................  7

The President’s 1967 Civil Rights Message to Con­
gress, New York Times, 2 /1 6 /6 7 ............................  8

President’s Committee on Civil Rights, To Secure
These Rights (1947) ..................................................  9



TABLE OF CONTENTS V

Taeuber, Carl and Alma, Negroes in Cities, Aldiner
(1965) ..........................................................................  7

United States Bureau of the Census, Current Pop­
ulation Reports—Technical Studies: P. 23-17
(1966) .........................................................................  7

United States Bureau of the Census, General Popula­
tion Characteristics, California: PC (l)-6b (1961) 6

United States Commission on Civil Rights, Fifty
States Report (1961) ...............................................  6,10

United States Commission on Civil Rights, Hearings 
Before the United States Commission on Civil 
Rights, Los Angeles, San Francisco, January 
1960 ..........................................................................9,10,11

United States Commission on Civil Rights, Report
No. 4 Housing (1961) .............................................. 10

United States Housing and Home Finance Agency, 
Potential Housing Demands of Non-White Pop­
ulation in Selected Metropolitan Areas (1962) . .  8

PAGE



OIxmrt of tljp Initeii grafts
OCTOBER TERM, 1966

No. 483

--------------4--------------

Neil R eitman, et al.,

vs.
Petitioners,

L incoln W . Mulkey, et al.,
Respondents.

------------------ ♦------------------

BRIEF OF THE ATTORNEY GENERAL OF THE 
STATE OF NEW YORK AS AMICUS CURIAE 

IN SUPPORT OF AFFIRMANCE

Interest of the Amicus

The State of New York has been a pioneer in the enact­
ment of fair housing legislation. New York banned dis­
crimination in public housing in 1939,1 in urban renewal 
housing in 1950,2 and in publicly-assisted housing accom­
modations in 1955.3 By statutes enacted in 1961 and 1963,

1 N. Y . Laws, 1939, Ch. 808, § 223, now found in Public Hous­
ing Law § 223.

2 N. Y . Laws, 1950, Ch. 287, now found in Civil Rights Law, 
Art. 2-A.

3 N. Y . Laws, 1955, Ch. 341, now found in Civil Rights Law, 
Art. 2 -A ; Laws, 1955, Ch. 340, now found in Executive Law § 296, 
subd. 3.



2

New York prohibited discrimination in all housing accom­
modations, private as well as public, with the exception of 
the rental by the owner of a unit in a two-family house in 
which the owner or members of his family reside or the 
rental by an occupant or an owner of a room or rooms in 
a housing accommodation in which they or members of 
their family reside.4

New York’s sister state of California has also taken 
great strides in recent years in the enactment of legislation 
to combat discriminatory practices in the sale or rental of 
housing accommodations.5 However, California’s progress 
in seeking to provide all citizens with the opportunity to 
acquire adequate housing was abruptly halted in 1964 by 
the adoption of Proposition 14 by the California electorate, 
after a vigorous campaign sponsored by the California 
Real Estate Association and the California Apartment 
Owners Association. Proposition 14, which was incorpo­
rated into the California Constitution as Article I, 26, 
not only has the effect of repealing existing state and local 
fair housing laws in California, but purports to create a 
right for any person or corporation to discriminate with 
“ absolute discretion”  in the sale or rental of residential 
property, regardless of the size or scope of the housing 
accommodation, and “ irrespective of how obtained or 
financed.”

4 N. Y . Laws, 1961, Ch. 414, as amended by Laws, 1963, Ch. 
481, now found in Executive Law § 296, subd. 5.

5 In 1959, the “ Unruh Act” (Cal. Civil Code §§ 51-52) pro­
hibited discrimination by any “ business establishment” , which was 
interpreted to encompass all businesses selling or leasing residential 
housing. See Burks v. Poppy Const. Co., 57 Cal. 2d 463, 370 P. 
2d 313 (1962). That same year the “ Hawkins Act”  (formerly 
Cal. Health & Safety Code §§ 35700-35741) prohibited racial and 
religious discrimination in publicly-assisted housing accommodations. 
In 1963, the “ Rumford Act”  (Cal. Health & Safety Code §§ 35700, 
et seq.) extended the prohibition against discriminatory practices 
to private dwellings containing more than four units.



3

The State of New York views the outcome of this litiga­
tion involving the constitutionality of Article I, § 26 of the 
California Constitution with more than academic interest. 
We are concerned with the effect that the operation of 
this section would have on the right of our citizens, who 
may he members of a minority race or religion, to freely 
travel to the State of California since we recognize that the 
constitutional right to travel to other states would be mean­
ingless if our citizens could not obtain adequate housing 
accommodations at the end of their journey. But of far 
greater concern is the effect that this litigation may have 
on the future of fair housing laws throughout the country. 
It is naive to believe that the recent experience in Cali­
fornia, where Proposition 14 was adopted by the electorate 
despite the active opposition of leaders of both major 
political parties as well as the leaders of every major reli­
gion in the State, could not be repeated in other states. 
Opponents of anti-discrimination legislation are certain to 
be encouraged to mount similar campaigns in the wake of 
their success in California. The rights of members of 
minorities to secure adequate housing accommodations as 
well as to obtain equal opportunities for employment and 
access to public accommodations might well rest on the 
outcome of this litigation. The time has now arisen in 
which the public must learn whether the basic needs of 
citizens in any state may constitutionally be subordinated 
to the desires of an unconcerned, intolerant majority.

The State of New York, accordingly, files this brief as 
amicus curiae pursuant to Rule 42 of the Revised Rules of 
this Court.

Questions Presented

1. Does Article I, § 26 of the California Constitution, 
which purports to create a constitutional right to dis­
criminate in the sale or rental of interests in real property,



4

irrespective of the scope of the housing accommodation or 
the manner in which such property was obtained or fi­
nanced, violate the Fourteenth Amendment of the United 
States Constitution?

2. Does Article I, § 26 of the California Constitution 
abridge Federal rights afforded by § 1982 of Title 42 of 
the United States Code?

Constitutional Provision Involved

Proposition 14, as now incorporated into the California 
Constitution as Article I, § 26, provides:

“ Neither the State nor any subdivision or agency 
thereof shall deny, limit or abridge, directly or in­
directly, the right of any person, who is willing or 
desires to sell, lease or rent any part or all of his real 
property, to decline to sell, lease or rent such property 
to such person or persons as he, in his absolute discre­
tion, chooses.

‘ Person’ includes individuals, partnerships, corpo­
rations and other legal entities and their agents or 
representatives but does not include the State or any 
subdivision thereof with respect to the sale, lease or 
rental of property owned by it.

‘ Real property’ consists of any interest in real prop­
erty of any kind or quality, present or future, irrespec­
tive of how obtained or financed, which is used, de­
signed, constructed, zoned or otherwise devoted to or 
limited for residential purposes whether as a single 
family dwelling or as a dwelling for two or more per­
sons or families living together or independently of 
each other.

This Article shall not apply to the obtaining of prop­
erty by eminent domain pursuant to Article I, Sections 
14 and 14*4 of this Constitution, nor to the renting or



5

providing of any accommodations for lodging purpose 
by a hotel, motel or other similar public place engaged 
in furnishing lodging to transient guests.

I f  any part or provision of this Article, or the appli­
cation thereof to any person or circumstance, is held 
invalid, the remainder of the Article, including the 
application of such part or provision to other persons 
or circumstances, shall not be affected thereby and 
shall continue in force and effect. To this end the 
provisions of this Article are severable.”

POINT I
Article I, § 26 of the California Constitution violates 

the Equal Protection Clause of the Fourteenth Amend­
ment.

In considering the constitutionality of Article I, § 26 of 
the California Constitution, it should be recognized at the 
outset that this section does more than render inoperative 
existing fair housing laws and ordinances within the state. 
I f the amendment at issue had as its sole purpose the re­
peal of certain legislation, it would have been simple 
enough to limit its language to achieve that result. In­
stead, it is clear from a reading of § 26 that the object of 
the Amendment was, as described by the Supreme Court 
of California in its decision below, to create “ a purported 
constitutional right to privately discriminate on grounds 
which admittedly would be unavailable under the Four­
teenth Amendment should state action be involved”  (R. 
20).

This attempt to evade the prohibitions of the Fourteenth 
Amendment must be deemed to have failed in at least two 
vital respects. First, the effect of Section 26, the attendant 
circumstances surrounding its enactment, and the history 
of state involvement in housing discrimination, reveal 
that its adoption cannot be considered as an act of neu­



6

trality by the state as petitioners suggest, but rather con­
stitutes a state attempt to sanction and perpetuate racial 
discrimination. Second, the application of the right cre­
ated by § 26 would apply to housing developments and in­
volve situations in which state action necessarily would 
be involved in violation of the prohibitions of the Four­
teenth Amendment.

A. Article I, § 26 is not a declaration of state neutrality, 
but rather constitutes a state effort to sanction and 
perpetuate racial discrimination in the sale and rental 
of housing accommodations.

As is often the case in examining the effect of state 
legislation in the light of a constitutional challenge under 
the Fourteenth Amendment, it is necessary to consider 
first the historical background and attendant circumstances 
concerning the act in issue. Griffin v. County School Board, 
377 U. S. 218, 231 (1964); Gomillion v. Lightfoot, 364 U. S. 
339 (1960). Here, the right of private discrimination set 
forth in § 26 must be construed in light of the existing 
patterns of housing segregation in California and the 
difficulties that have been encountered by members of 
minorities in seeking adequate housing accommodations. 
Such an examination will reveal that only in a historical 
vacuum can Article 1, § 26 be considered as an act of neu­
trality by the State of California.

1. The existence of discrimination in the sale and rental of 
housing accommodations in California.

In 1960, there were approximately 1.3 million non-whites 
residing in California, of which 883,000 were Negroes0 
who were concentrated principally in the major urban 
centers of the state.7

b U. S. Bureau o f Census, General Population Characteristics, 
California (P C  ( l ) -6 b ) ,  1961.

' U. S. Commission on Civil Rights, 50 States Report, p. 43 
(1961). ’ F



7

Approximately 80% of the Negroes living in California’s 
metropolitan areas were found to reside in segregated 
neighborhoods.8 Recent studies show that the patterns of 
segregation are increasing. For example, a 1966 survey 
by the Bureau of the Census reported that the percentage 
of Negroes in south Los Angeles has increased from 70% 
in 1960 to 81% in 19&5— Current Population Reports, Tech­
nical Studies, P-23-17.

The substantial segregation of non-whites in California 
has been the product of discrimination in the sale and ren­
tal of housing. A  Report on Housing i/n California issued 
by the Governor’s Advisory Commission on Housing Prob­
lems in 1963 revealed that it was practically impossible 
for non-whites to buy new homes in southern California 
subdivisions, while in northern California fewer than 100 
non-whites had been able to buy homes in unsegregated 
tracts in a period during which 350,000 new homes were 
built. The same report noted that “ even in San Fran­
cisco a survey of recently constructed apartments showed 
that there were no Negroes in structures containing 97% 
of the new units and no Orientals in 78% ”  (Governor’s 
Advisory Commission, op. cit., p. 9).

Petitioners have claimed that the fact that non-whites 
are substantially less well-housed then whites is not due 
to discrimination and segregation, but due to the complex 
factors that make non-whites poorer than whites. Brief 
for Petitioners, pages 42-43. While there is an element of 
truth in that statement, it ignores the fact that even where 
non-whites have the income to purchase homes, they are

8 Karl & Alma Taeuber, Negroes in Cities, Aldiner (1965), p. 
40. A  segregation index based upon the the percent o f Negroes who 
would have to move if they were to live at random in metropolitan 
areas was devised by the authors showing the following figures 
for major California cities: Los Angeles 81.8%, San Francisco
69.3%, San Diego 81.3%, Long Beach 84.0%, Riverside 83.5%, 
San Bernadino 84.0%, Bakersfield 87.5%, Fresno 83.9%, Oakland 
73.1%



8

often deprived of the opportunity of doing so due to the 
erection of discriminatory barriers. Thus, in both Los 
Angeles and San Francisco, it was found that non-whites 
earning between $7,000 and $10,000 would probably buy 
more than twice as many homes priced at $15,000 or higher 
than they already own as a group if such housing were 
available to them. Housing and Home Finance Agency, 
Potential Housing Demands of Norr-White Population in 
Selected Metropolitan Areas, Table G (1962). Moreover, 
since the supply of housing available to non-whites is 
limited as a result of discriminatory attitudes, the prices 
they must pay for housing accommodations are generally 
grossly inflated when compared to equivalent accommoda­
tions available to white citizens.

The inevitable result of discrimination in the sale or 
rental of housing accommodations is the creation of urban 
ghettos, with all its attendant disabilities. Many of these 
disabilities have been outlined in the President’s 1967 
Civil Rights Message to Congress, in the following terms:

“ The result of countless individual acts of dis­
crimination is the spawning of urban ghettos, where 
housing is inferior, overcrowded and too often over­
priced.

Statistics tell a part of the story. Throughout the 
nation, almost twice as many non-whites as whites oc­
cupy deteriorating or dilapidated housing. In Watts, 
32.5 per cent of all housing is overcrowded, compared 
with 11.5 per cent for the nation as a whole.

The environment of most urban ghettos is the same: 
Inferior public facilities and services—streets, light­
ing, parks; sanitation and police protection; inferior 
schools; and isolation from job opportunities. In 
every sphere of urban life the ghetto-dweller is short­
changed. ’ ’9

9 New York Times, February 16, 1967, p. 28.



9

Indeed, the California Legislature lias itself recognized 
that “ racial discrimination against persons of certain 
groups in seeking housing”  is one of the principal causes 
of slum and blighted residential areas. See Cal. Com­
munity Redevelopment Daw § 33039(c).

2. Segregated housing conditions in California are in part 
the result of prior state action.

The existence of racial segregation and housing in Cali­
fornia must, in large part, be attributed to the effect of 
restrictive covenants and to the actions of real estate 
boards—which have in the past involved support by state 
and local governments.

The use of racial restrictive covenants limiting the sale 
or rental of interests in real property to non-caucasians 
has been prevalent in Los Angeles County since as early 
as 1902.10 In 1920, the Supreme Court of California, in an 
action seeking enforcement of a restrictive covenant 
against a Negro purchaser, found that restrictions against 
use and occupancy by non-whites were valid and enforce­
able. Los Angeles Investment Company v. Gary, 181 Cal. 
680 (1920). During the next three decade's (until such 
covenants were held to be unenforceable by Shelley v. 
Kraemer, 334 U. S. 1 [1948]), Avith the assistance of the 
California courts, the use of restrictive covenants played 
a significant role in confining non-caucasians to certain 
urban areas.11 By 1947, it Avas reported that Los Angeles 
Avas widely covered by these racial restrictive covenants 
and that new housing subdivisions were blanketed by them. 
President’s Committee on Civil Rights, To Secure These 
Rights, 68 (1947).

10 Hearings before the United States Commission on Civil Rights, 
Los Angeles, San Francisco, January, 1960, pp. 256-257. (Hereafter 
referred to as Cal. Hearings.)

11 Cal. Hearings, p. 257.



10

Although the State of California licenses all real estate 
brokers, it has been generally conceded that California 
real estate agents have been a powerful force in creating 
and perpetuating patterns of segregation within the State.12 
The California State Advisory Committee of the United 
States Commission on Civil Rights concluded in 1961 that 
a large measure of blame for the existence of discrimina­
tion in California must be placed on the real estate in­
dustry. The Committee stated that:

“  * * * So far as Committee testimony has been given, 
it would appear that a considerable number of leaders 
in the real estate industry still continue to support and 
advance the concepts of segregation in their business. 
Their actions, in large part, appear to foster continued 
discrimination in California. In such population cen­
ters as Los Angeles and San Diego, the realty boards 
have no Negro members whatsoever. This is particu­
larly disturbing when it is known that such boards 
represent the top professional association of real 
estate brokers and that under State law, their members 
alone are entitled to use the coveted term ‘ realtor’ in 
business advertising.”  U. S. Commission on Civil 
Rights, 50 States Report, p. 44 (1961).

In the Palo Alto area, the United States Civil Rights 
Commission learned that only three of the 600 real estate 
brokers and salesmen showed property on a non-discrimi- 
natory basis.13

In addition to the actions of state licensed real estate 
brokers and the state responsibility in enforcing restric­
tive covenants prior to the Shelley decision, the state, as 
well as the federal government, had contributed to the 
existence of segregated patterns by pouring public funds

12 See Cal. Hearings, pp. 257, 483 et. seq.
13 U. S. Commission on Civil Rights Report No. 4, Housing, 

p. 123 (1961).



11

into housing projects which openly discriminated against 
non-white citizens. The San Francisco Housing Author­
ity had adopted a policy in 1942, which, until it was 
enjoined from continuing its discriminatory practices 
pursuant to court order obtained in Banks v. Housing 
Authority, 120 Cal. App. 2d 1, 260 P. 2d 668, cert, denied 
347 U. S. 974 (1954), provided that:

“ In the selection of tenants for the projects of this 
Authority, this Authority shall act with reference to 
the established usages, customs and traditions of the 
community * * * and shall not insofar as possible en­
force the commingling of races * * * ”  (Emphasis 
added) 260 P. 2d at 671.

With respect to assistance furnished by the Federal 
Housing Authority, an FHA official stated that of the 
125,000 FHA assisted housing units built from 1950 to 
1954 in the Los Angeles area, only 3,000 units were avail­
able for purchase by non-whites.14

In addition to the actions already described, the State 
of California has in the past specifically barred certain 
minorities from acquiring particular interests in real prop­
erty. Thus, in 1879, California adopted a constitutional 
provision authorizing the delegation of power to localities 
to zone Chinese into particular areas, or to remove them 
completely from the limits of cities and towns. California 
Constitution, Article X IX  (1879). This constitutional pro­
vision was not repealed until 1952. The California Legis­
lature also enacted an Alien Land Law in 1920 (Cal. 1 
General Laws, Acts 260-261) which prevented aliens who 
were ineligible for citizenship from acquiring interests in 
real property. It was repealed in 1950.

It should be pointed out that the above is not intended 
to single California out by way of condemnation for the 
existence of segregated housing patterns. This same criti­

14 Cal. Hearings, p. 258.



12

cism could probably be leveled at most states in this union. 
Nor has California shirked its responsibility in seeking 
to correct this situation as shown by the passage of their 
Legislature in recent years of the Unruh, Hawkins and 
Rumford Acts, supra. But the responsibility to eliminate 
the evils of housing discrimination is a continuing one and 
cannot be ignored as the proponents of Proposition 14 have 
contended by repealing fair housing ordinances and re­
storing the State to a position of neutrality—for which 
there is no historical basis.

3. The myth of state “ neutrality

In view of the above factors which have created segre­
gated housing patterns throughout California, it is absurd 
to contend that the repeal of existing fair housing laws 
and ordinances in California and the creation of a right 
to discriminate with impunity in the sale or rental of 
residential housing will involve an act of neutrality by the 
state. I f  non-white citizens in California were unable, as 
has been shown, to obtain housing accommodations except 
in urban ghettos prior to the recent enactment of state 
anti-discrimination statutes, the repeal of these laws and 
the creation of an absolute right to discriminate means 
the restoration of the same barriers these citizens have 
previously faced in seeking decent shelter.

The effect of Article I, 26, will be to prevent the Cali­
fornia Legislature from taking any future action to break 
down segregated housing patterns and to relieve the at­
tendant evils that arise in urban ghettos. It would not 
only bar the Legislature from seeking to ameliorate the 
problems faced by members of minorities in acquiring de­
cent housing, but would prevent the California courts from 
any extension of common-law policies in this area. In this 
regard, it should be noted that the Superior Court in 
Sacramento County, in the case of Mmg v. Horgan (No. 
97130), June 23, 1958, 3 Race Rel. L. Rep. 693), held that 
a Negro could not be excluded from purchasing a new



13

tract home in a subdivision in the Sacramento area which 
had obtained FH A and V A  insurance solely because of his 
race—despite the absence of any statutory provision at 
that time barring racial discrimination in the sale of hous­
ing. The Court stated at page 12 of its memorandum 
opinion:

“ # * can the courts close their eyes to the inevitable
result that if they should uphold defendants in their 
asserted right of freedom of contract, they would for 
practical purposes be reverting to a ‘ separate but 
equal’ rule for those for whom the builders and 
realtors choose to apply it? * * * If the courts were 
to * * * accord to builders and realtors the unfettered 
freedom of contract here contended for, the consti­
tutional guarantees of equal protection and non­
discrimination would be accorded only secondary im­
portance and they would have to recede from a good 
deal that has been laid down in recent years as fun­
damental doctrine * * * ”

I f  the right to discriminate which Article I,  ̂26 purports 
to provide is held constitutional under Fourteenth Amend­
ment requirements, the issuance of such decisions, as in 
the Ming case, supra, would be proscribed in the future.

In sum, the operation of Article I, § 26 can only serve 
to perpetuate the present patterns of segregated housing 
and encourage the development of similar patterns in the 
future. Even if the State or its subdivisions had not been 
indirectly responsible for housing segregation in the past, 
it may not by constitutional amendment seek to perpetuate 
the existence of segregated housing areas. Cf. Burton v. 
Wilmington Parking Authority, 3'65 U. S. 715, 725 (1961); 
Taylor v. Board of Education of City School District of 
New Rochelle, 294 F. 2d 36 (2nd Cir., 1961), cert, denied 
368 U. S. 940. Nor may the State encourage, or furnish 
the vehicle, by which racial prejudice may operate against



14

any group, whether by express statutory prohibition or 
by indirection. Anderson v. Martin, 375 U. S. 399, 402-404 
(1964); Terry v. Adams, 345 U. S. 461 (1953).

Nearly a century ago, this Court, in speaking of the pur­
poses of the Fourteenth Amendment, stated in Strauder v. 
West Virginia, 100 U. S. 303, 307-308 (1879):

“ * * * The words of the [fourteenth] amendment, it 
is true, are prohibitory, but they contain a necessary 
implication of a positive immunity, or right, most valu­
able to the colored race,— the right to exemption from 
unfriendly legislation against them distinctively as 
colored,—exemption from legal discriminations, im­
plying inferiority in civil society, lessening the security 
of their enjoyment of the rights which others enjoy, 
and discriminations which are steps towards reducing 
them to the condition of a subject race.”  (Emphasis 
supplied)

Article I, § 26 is, in purpose and effect, an example of the 
type of “ unfriendly legislation”  that the Fourteenth 
Amendment was intended to proscribe.

B. The scope of the right to discriminate conferred by 
Article I, § 26 would involve state action.

There can be no question that discriminatory State 
action abridging the right of any person to acquire, enjoy, 
own and dispose of property is in violation of the Four­
teenth Amendment. Shelley v. Kraemer, 334 U. S. 1, 10 
(1948); Oyama v. California, 332 U. S. 633 (1948); 
Buchanan v. Warley, 245 U. S. 60 (1917). Since it is im­
possible to fashion and apply a precise formula for recog­
nition of State responsibility under the Equal Protection 
Clause, this Court has stated:

“ Only by sifting facts and weighing circumstances 
can the non obvious involvement of the State in pri­



15

vate conduct be attributed its true significance.”  
Burton v. Wilmington Parking Authority, 365 U. S. 
715, 722 (1961).

The full scope of the right to discriminate conferred by 
the California amendment at issue cannot help but involve 
State action in a significant manner.

Although the language in the ‘ ‘ Argument in favor of 
Proposition 14”  on the official ballot (Petitioners’ Brief, 
App. 3-5) is subtly phrased to imply that it is only the 
individual homeowner whom the amendment is designed 
to protect, it is clear from a reading of the proposition 
itself that it is the large apartment house corporations 
and realty developers and real estate agents, who will 
share in the right to discriminate. Thus, the term ‘ ‘ per­
son,”  who in the amendment is given the right to decline 
to sell, lease or rent any interest in real property with 
‘ ‘ absolute discretion,”  is defined to include ‘ ‘ individuals, 
partnerships, corporations, and other legal entities and 
their agents or representatives,”  excluding only the State 
or any subdivision thereof with respect to property owned 
by it. The term ‘ ‘ real property”  is defined to include ‘ ‘ any 
interest in real property of any kind or quality, present or 
future, irrespective of how obtained or financed, which is 
used, designed, constructed, zoned or otherwise devoted to 
or limited for residential purposes * * *.”  Only property 
acquired by eminent domain, and public places engaged in 
furnishing lodging, are excluded from the section’s ap­
plication.

The scope of Article I, § 26 is, therefore, broad enough 
to confer a right of racial discrimination on any privately 
owned residential development, regardless of its size or 
the amount of state and federal financial support it has 
received. In Peyton v. Barrington Plaza Corporation, 50 
Cal. Rptr. 905, 413 P. 2d 849 (Sup. Ct., Cal., 1966), this 
very right to engage in racial discrimination upon the



16

authority of Article I, § 26 was asserted by Barrington 
Plaza, in the City of Los Angeles. Barrington Plaza, the 
largest apartment development in the western United 
States, provides apartment living for 2,500 people and in­
cludes many retail shops and professional services. The 
development was part of the urban development program 
undertaken by the City of Los Angeles, with 90% of its 
construction costs financed by a $17,000,000 low interest 
rate loan under the National Housing Act. Defendants’ 
assertion of Article I, § 26 as a defense to a claim for 
damages by a Negro physician who was refused an apart­
ment in Barrington Plaza was sustained by the Superior 
Court, but the judgment was reversed by the California 
Supreme Court on the authority of Mulhey v. Reitman, 50 
Cal. Rptr. 881, 413 P. 2d 825 (1966).

Even in the absence of the Mulhey decision, supra, there 
can be no doubt that the creation of a right by Article I, 
§ 26 to engage in racial discrimination, when practiced by 
a private development such as Barrington Plaza, must be 
held to contravene the prohibitions of the Fourteenth 
Amendment. See, e.g., Burton v. Wilmington Parking Au­
thority, supra; Evams v. Newton, 382 U. S. 296 (1966); 
Smith v. Holiday Inns of America, 336 F. 2d 630 (6th Cir., 
1964); City of Greensboro v. Simpkins, 246 F. 2d 425 (4th 
Cir., 1957). As the facts set forth in the opinion of the 
California Supreme Court point out, Barrington Plaza not 
only received substantial government financial assistance, 
but was aided by the State and local governments in re­
ceiving zoning changes to accommodate the development, 
it also received building permits, sold securities, and es­
tablished shops and professional services all pursuant to 
State or local approval, cooperation and authority. In 
line with the reasoning of the above authorities, all these 
facets of State involvement should prohibit racially dis­
criminatory conduct.

The type of housing development described in the Bar­
rington Plaza case, supra, is by no means unique in Cali­



17

fornia today. Many of these housing projects, in terms 
of their dimensions and functions alone, should be obliged 
to conform to the same constitutional restrictions as were 
imposed on the company town in Marsh v. Alabama, 326 
U. S. 501 (1946).

In practice, there are few residential housing projects 
that cannot be said to depend upon State support in signifi­
cant involvements. The issuance of corporate charters, the 
licensing of real estate brokers, the granting of zoning 
awards, the recording of deeds, and the construction of 
roads and sidewalks all involve aspects of State action.

Moreover, State action would he involved in any attempt 
by the California courts to enforce or recognize the right 
to discriminate accorded by Article I, § 26. Thus, in Hill 
v. MiUer, 50 Cal. Rptr. 908, 413 P. 2d 852 (1966), an action 
to restrain a landlord from evicting a Negro tenant, solely 
because of his race, was dismissed by the Trial Court by 
virtue of Article I, § 26, prior to being reversed by the 
California Supreme Court upon the authority of Mulkey v. 
Reitman, mpra. See also Prendergast v. Snyder, 50 Cal. 
Rptr. 903, 413 P. 2d 847 (1966). Here, again, even in the 
absence of the Mulkey decision, the enforcement or sanc­
tioning by the State judiciary of conduct based on racial 
discrimination would be violative of the Fourteenth Amend­
ment. See Shelley v. Kraemer, supra; Barrows v. Jackson, 
346 U. S. 249 (1953).

To attempt to carve out an exception to the “ State 
action”  concept by declaring that the right conferred by 
§ 26 shall apply to any interest ‘ ‘ irrespective of how ob­
tained or financed”  is a meaningless gesture. Clearly, a 
State constitution may not bind this Court in defining the 
area in which discriminatory conduct may flourish with 
impunity. While there may be residential properties in 
which the extent of State involvement is minimal, the ap­
plication of § 26 is in no manner confined to that area.

The highest court in California, with the primary re­
sponsibility of preserving, where possible, the constitutional



18

portions of State enactments, found it impossible to dif­
ferentiate between those portions or applications of the 
Amendment which might preserve a “ proper basis for 
discrimination”  consistent with Fourteenth Amendment 
requirements (R. 29-31). The language and object of the 
Amendment leaves no opportunity for severability unless 
the definition of the right to discriminate sought to be 
accorded is rewritten by this Court. The entire Amendment 
must, accordingly, be held invalid as a violation of the 
Fourteenth Amendment.

POINT II

Article I, § 26 of the California Constitution abridges 
the privileges of citizens of the United States to reside 
and acquire interests in real property within the State 
of California.

Section 1 of the Fourteenth Amendment provides:

“ All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States * * *”

The exact nature of the privileges and immunities which 
are derived from national citizenship has been a subject 
of dispute since the issuance of the opinion of Mr. Justice 
Miller in the Slaughter-House cases, 16 Wall. 36 (1873).15 
However, it is well established that the right to move freely 
from state to state is an incident of national citizenship

15 Prior to the adoption o f the Fourteenth Amendment, the 
privileges and immunities of citizens in the several States were 
said to include “ the enjoyment o f life and liberty with the right 
to acquire and possess property o f every kind.”  Corfield v. Coryell, 
4 Wash. C. C. 371 (1825).



19

protected by the privileges and immunities clause of the 
Fourteenth Amendment against state interference. Cran­
dall v. Nevada, 6 Wall. 35 (1868); Twining v. New Jersey, 
211 U. S. 78, 97 (1908); Truax v. Raich, 239 U. S. 33, 39 
(1915); United States v. Guest, 383 U. S. 745, 757-759 
(1966).

In Edwards v. California, 314 U. S. 160 (1941), where 
this Court invalidated a California statute designed to 
keep indigents from migrating to California, the right of 
American citizens to enter into and abide in any state 
served as the basis for the concurring opinion of Mr. Jus­
tice Douglas, joined by Justices Black and Murphy. Jus­
tice Douglas observed that to permit states to bar in­
digents from residing within their borders would allow:

“  * * * such an exception to be engrafted on the rights 
of national citizenship * * * [as] to contravene every 
conception of national unity * * * It would prevent a 
citizen because he was poor from seeking new horizons 
in other States. It might thus withhold from large 
segments of our people that mobility which is basic to 
any guarantee of freedom of opportunity.”  (p. 181)

A  state is not only prohibited from directly interfering 
with the national right to enter its borders, as in Edwards 
v. California, supra, but may not seek to circumvent this 
right by imposing barriers preventing non-residents 
from obtaining employment. Thus, in Truax v. Raich, 239 
U. S. 33 (1915), this Court sustained the contentions of a 
non-resident alien that an Arizona law, which required 
all Arizona employers of more than five workers to hire 
not less than 80% qualified or native born citizens of the 
United States, was invalid. The Court declared that Raich, 
having been lawfully admitted into the country under 
Federal law, had a Federal privilege to enter and abide 
in “ any state in the union,”  and that this privilege to 
enter and abide in any state carried with it the “ right to



20

work for a living in the common occupations of the com­
munity. ’ ’ The Court went on to state that:

“ The assertion of an authority to deny to aliens the 
opportunity of earning a livelihood when lawfully 
admitted to the State would be tantamount to the 
assertion of the right to deny them entrance and abode, 
for in ordinary cases they cannot live where they can­
not work. And, if such a policy were permissible, the 
practical result would be that those lawfully admitted 
to the country * * * instead of enjoying in a substan­
tial sense and in their full scope the privileges con­
ferred by admission, would be segregated in such of 
the States as chose to offer hospitality.”  (p. 42)

Similarly, in Takahashi v. Fish & Game Commission, 334 
U. S. 410 (1948), this Court followed the principles stated 
in Truax v. Raich, supra, to invalidate a California law 
barring the issuance of commercial fish licenses to any 
person ineligible for citizenship. See also Colorado Anti- 
Discrimination Commission v. Continental Air Lines 372 
U. S. 714, 721 (1963).

I f a state may not interfere with the national privilege 
of citizens (as well as aliens) to enter and abide in any 
state in the union by limiting their right to secure employ­
ment, it should necessarily follow that a state may not 
constitutionally limit their right to secure housing within 
its borders by laws which sanction, if not encourage, racial 
and religious discrimination in the sale and rental of 
housing accommodations.

The enactment of the Unruh, Hawkins and Rumford 
Acts by the California Legislature were based upon the 
recognition of the immense difficulties that have been en­
countered by members of minority races in obtaining ade­
quate housing in California. The repeal of fair housing 
legislation and the creation by Article I, § 26 of a “ right”  
to engage in racial or religious discrimination in housing 
transactions, will necessarily discourage non-whites from



21

moving to California, will limit the housing opportunities 
available to non-whites now residing in California, and 
will tend to confine them to other states and within segre­
gated locales in California itself.

In his concurring opinion in Bell v. Maryland, 378 U. S. 
226, 242 (1964), Mr. Justice Douglas, in declaring that 
segregation in private restaurants was a “ denial of a 
privilege and immunity of national citizenship” , stated 
(p. 255):

“ Is the right of a person to eat less basic than his 
right to travel, which we protected in Edwards v. 
California, 314 U. S. 160? Does not a right to travel 
in modern times sink in value materially when there 
is no accompanying right to eat in public places?”

To the above, we might add: Is not the right to enter 
into and abide in any state rendered meaningless without 
a right to obtain housing free from racial discriminatory 
practices that have been sanctioned by state law?

POINT III

Article I, § 26 is violative of federal rights set forth 
in § 1982 of Title 42 of the United States Code.

42 U.S.C. § 1982 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 above provision first appeared in § 1 of the Civil 
Eights Act of 1866 (Ch. 31, <§ 1, 14 Stat. 27) enacted 
several months after the adoption of the Thirteenth Amend­
ment. On May 31, 1870, after the ratification of the Four­
teenth Amendment, the above section was reenacted as 
part of §18 of the Second Civil Eights Act (Ch. 114, 16



22

Stat. 140) and was recast in its present form in the general 
statutory provision of 1875 as $ 1978 of the Revised 
Statutes.

Section 1982 was relied on by this Court in Oyama v. 
California, 332 U. S. 633 (1948), in holding that the Cali­
fornia Alien Land Law, as applied to bar the citizen son 
of a Japanese alien from inheriting an interest in agri­
cultural land, deprived the son of the equal protection of 
the laws and of his privileges as an American citizen. Re­
ferring to § 1982, the Court noted that (p. 640):

“ By federal statute, enacted before the Fourteenth 
Amendment but vindicated by it, the states must 
accord to all citizens the right to take and hold real 
property. ’ ’

The Court concluded (p. 647):
“  * * * this case presents a conflict between the State’s 
right to formulate a policy of landholding within its 
bounds and the right of an American citizen to own 
land anywhere in the United States. When these two 
rights clash, the rights of a citizen may not be sub­
ordinated merely because of his father’s country of 
origin.”

A  state law may be violative of the rights afforded by 
$ 1982, despite the absence of any express language refer­
ring to any race or creed, if the practical consequences 
of such law limits the opportunities of any class of citizens 
to acquire property interests. This was true of the statute 
in question in Oyama, supra, as was recognized by Mr. 
Justice Murphy in his concurring opinion in which he 
observed:

* ‘ In its argument before us California has disclaimed 
any implication that the Alien Land Law is racist in 
its origin, purpose or effect. Reference is made to the



23

fact that nowhere in the statute is there a single 
mention of race, color, creed * * * However, an exami­
nation of the circumstances surrounding the original 
enactment * * * and its subsequent application reveals 
quite a different story.”  322 U. S. at 650-651.

Similary, although Article I, § 26 of the California Consti­
tution does not specifically refer to any race or creed, its 
practical consequences will be to subject the non-white 
citizens of California to the prejudices of the white ma­
jority in acquiring or retaining interests in real property 
without recourse to any state agency or the courts.

It is obvious that the rights provided by $ 1982 may not 
be abridged by any state statute. However, it must also 
be remembered that § 1982 was originally enacted pursuant 
to the authority of Congress to enforce the Thirteenth 
Amendment. The objectives of Congress in enacting that 
section were described by this Court in the Civil Rights 
Cases, 109 U. S. 3, 22 (1883), in the following terms:

‘ ‘ Congress, # * * by the Civil Rights Bill of 1866, 
passed in view of the Thirteenth Amendment, before 
the Fourteenth was adopted, undertook to wipe out 
these burdens and disabilities, the necessary incidents 
of slavery, constituting its substance and visible form ; 
and to secure to all citizens of every race and color, 
and without regard to previous servitude, those funda­
mental rights which are the essence of civil freedom, 
namely, the same right to make and enforce contracts, 
to sue, be parties, give evidence, and to inherit, pur­
chase, lease, sell and convey property, as is enjoyed 
by white citizens.”

Since § 1982 rests upon the authority of the Thirteenth 
(as well as the Fourteenth) Amendment, its coverage ex­
tends to any discriminatory acts which abridge the rights 
set forth therein regardless of any showing of state ac­



24

tion. As observed by the court in the Civil Bights Cases, 
supra, at p. 23:

“ Under the Thirteenth Amendment, the legislation, so 
far as necessary or proper to eradicate all forms and 
incidents of slavery and involuntary servitude, may 
be direct and primary, operating upon the acts of in­
dividuals, whether sanctioned by state legislation or 
not * * * ”

See also Clyatt v. United States, 197 U. S. 207 (1905); 
United States v. Shackney, 333 F. 2d 475, 486 (2d Cir., 
1964).

It should be evident from the above that any agreement 
or action taken by private sellers or lessors of real prop­
erty to prevent Negroes from acquiring or leasing property 
would be violative of the rights set forth in § 1982. Inso­
far as Article I, § 26 of the California Constitution at­
tempts to cloak individuals and corporations with im­
munity in discriminating against non-white citizens in the 
sale or rental of real property, it is an abridgement of 
the rights provided by § 1982 and, under the Federal 
Supremacy Clause, cannot be sustained. Cf. Katzenbacli 
v. M or gem, 384 U. S. 641 (1966).



25

CONCLUSION

For the foregoing reasons, the decision of the Court 
below that Article I, § 26 of the California Constitution 
is in violation of the Fourteenth Amendment of the 
United States Constitution should be affirmed.

Dated: New York, N. Y., March 3, 1967.

Bespectfully submitted,

Louis J. L efkowitz 
Attorney General of the 

State of New York

Samuel A. H irshowitz 
First Assistant Attorney General

George D. Zuckerman 
L awrence J. Gross 

Assistant Attorneys General 
Of Counsel



(38729)