Mulkey v. Reitman Amici Curiae Brief

    L , A . N os. 28360, 28422 and 28449  
S. F . N os. 22019, 22020  and 22017  

Sac. N o . 7657

In the Supreme Court
OF THE

State of California

L. A. No. 28360
LINCOLN W. MULKEY, et a t, Plaintiffs m d Appellants,

vs.
NEIL REITMAN, et al., Defendants and Respondents.

Appeal from the Superior Court of Orange County 
Honorable Raymond Thompson, Judge

AMICI CURIAE BRIEF OF
Philip Adams, Beverly Axelrod, Richard A. Bancroft, Albert M. 
Bendich, Herbert A. Bernhard, Lester Bise, Harry Bremond, 
Ralph Evan Brown, Frank F. Chuman, J. K. Choy, Reynold H. 
Golvin, Jay Darwin, John F. Dunlap, Maurice Engel, Basil 
Feinberg, Andrew H. Field, Thomas L. Fike, Maxwell E. Green­
berg, Allen J. Greenberg, Joseph R. Grodin, Dorothy E. Handy, 
James K. Haynes, Bruce I. Hochman, Robert Holcomb, Harold 
W. Horowitz, Norman C. Howard, Neil F. Horton, Tevis Jacobs, 
Mathew M. Kearny, Herbert A. Leland, Jack Levine, David J. 
Levy, Arthur L. Littleworth, Julian W. Mack H, Douglas 
Maloney, James McDonald, Lloyd E. McMurray, Richard W. 
Petherbridge, James C. Powers, Ralph H. Prince, Gerald Rosen, 
Warren H. Saltzman, Edward Stern, Robert E, Sullivan, John 
E. Thorne, Solomon Zeltzer, David Ziskind

By:
DUANE B. BEESON 

Russ Building
Sail Francisco, California 94104 

SEYMOUR FARBER 
593 Market Street,
San Francisco, California 94105 

ROBERT H. LAWS, JR.
646 Van Ness Avenue 
San Francisco, California 94102 

HOWARD NEMEROVSKI 
111 Sutter Street 
San Francisco, California 94104 

94102 Attorneys for Amici Curiae

(Continued on Inside Cover)

Of Counsel:
JOSEPH B. ROBISON 
ROBERT M. O’NEIL 
EPHRAIM MARGOLIN 

683 McAllister Street 
San Francisco, California

P E R N A U -  W A L S H  P R I N T I N G  C O . ,  S A N  F R A N C I S C O



L. A. No. 28422
WILFRED J. PRENDERGAST and CAROLA EVA PRENDERGAST, on 

behalf of themselves and all persons similarly situated,
Cross-Defendants cmd Respondents, 

vs.
CLARENCE SNYDER, Cross-Complainant and Appellant.

Appeal from the Superior Court of Los Angeles County- 
Honorable Martin Katz, Judge

L. A. No. 28449
THOMAS ROY PEYTON, M.D.,

vs.
Plaintiff and Appellant,

BARRINGTON PLAZA CORPORATION, Defendant and Respondent.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

Sac. No. 7657
CLIFTON HILL, Plaintiff and Appellant,

vs.
CRAWFORD MILLER, Defendant and Respondent.

Appeal from the Superior Court of Sacramento County 
Honorable William Callagher, Judge

S. F. No. 22019
DORIS R. THOMAS, Plaintiff and Appellant,

vs.
G. E. GOULIAS, et ad., Defendants and Respondents.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge ; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

S. F. No. 22020
JOYCE GROGAN, Plaintiff and Appellant,

vs.
ERICH MEYER, Defendant and Respondent.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

S. F. No. 22017
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body, 

corporate and politic, Petitioner,
vs.

KARL BUCKMAN, Chairman of the Redevelopment Agency of the City of 
Fresno, Respondent.

Petition for Writ of Mandate







Subject Index

Page
Interest of Amici ...........................................................................  3

I. Introductory statement ......................................................  8
II. Discrimination in housing against members of minority 

groups exists on a substantial scale in California and 
has widespread harmful effects ...........................................  10
A. The existence of racial discrimination in housing in

California........................................................................ 10
B. The harmful effects of residential segregation in

California....................................................................... 13
III. The development of California law in the field of racial 

discrimination and the impact of Article I, Section 26, 
of the Constitution .............................................................  21
A. The legislative and judicial response to discrimina­

tory practices ...............................................................  21
1. California legislation prior to 1959 ....................  21
2. 1959 legislation—the Unruh, Hawkins and Fair

Employment Practice Acts ...................    24
3. Legislation subsequent to 1959 ............................ 26
4. Development of California antidiscrimination

common la w .............................................   28
B. The impact of Article I, Section 26, on California

law ................................................................................  32
1. The effect on the Rumford Act .......................... 32
2. The effect on the Unruh A ct ................................  33
3. The effect on the development of California

common law ...........................................................  34
4. The effect on future legislative regulation........ 35



Subject I ndex

Page
IV. Article I, Section 26 constitutes discriminatory state 

action within the reach of the Fourteenth Amendment
of the United States Constitution .................................... 36
A. The Fourteenth Amendment prohibits state action

in furtherance of racial discrimination in the sale 
and rental of real property ...................................... 36
1. Private discrimination on state-owned property 38
2. Private discrimination in the operation of prop­

erty under state-assistance programs ................  39
3. Private discrimination in the management of

property utilized in a quasi-public function . . .  41
4. Private discrimination where the state has dele­

gated a governmental function .......................... 41
5. Private discrimination authorized, sanctioned or

encouraged by the state .......................................  43
B. There is sufficient state encouragement of racial

discrimination under Article I, Section 26 to bring 
it within the proscription of the Fourteenth Amend­
ment ............................................................................... 47

C. The Fourteenth Amendment prohibits California
from disabling itself from dealing with matters of 
fundamental government concern ............................ 54

V. Article I, Section 26 constitutes an unconstitutional im­
pairment of the right to petition the government for 
redress of grievances .........................................................  58

VI. The constitutional defects in Article I, Section 26
render it completely void .................................................  62

Conclusion .........    65

ii



Table of Authorities Cited

Cases Pages
Abstract Investment Co. v. Hutchison, 204 CaI.App.2d 242

(1962)  45,49
Anderson v. Martin, 375 U.S. 399 (1964)............................. 45,49
Aptheker v. Secretary of State, 12 L.ed. 2d 992 (1 9 6 4 ).... 64

Baldwin v. Morgan, 287 F.2d 750 (C.A. 5, 1961) ................ 45
Barrows v. Jackson, 346 U.S. 249 (1953)..........................45,48,51
Bell v. Maryland, 378 U.S. 226 (1946)....................................  43
Bowman v. Birmingham Transit Company, 280 F.2d 531

(C.A. 5, 1960) ......................................... .'.............................47,49
Brotherhood of R. Trainmen v. Virginia, 377 U.S. 1 (1964) 58, 59
Buchanan v. Warley, 245 U.S. 60 (1917)..................................... 36
Burks v. Poppy Construction Co., 57 Cal.2d 463 (1962)

........................................................................................... 31,33,35,56
Burton v. Wilmington Parking Authority, 365 U.S. 715

(1961) ...........................................................................38,40,46,47

Carlson v. California, 310 U.S. 106 (1940).............................  64
City of Greensborough v. Simpkins, 246 F.2d 425 (C.A. 4,

1957)   39
Civil Rights Cases, 109 U.S. 3 (1883).............................42,43,58

Darlington v. Plumber, 240 F.2d 922 (C.A. 5, 1956), cert.
denied, 353 U.S. 924................................................................. 39

Department of Conservation & Dev. v. Tate, 231 F.2d 615
(C.A. 4, 1955), cert, denied, 352 U.S. 838.........................  39

Dorsey v. Styvesant Town Oorp., 299 N.Y. 512 (1949), cert, 
denied, 339 U.S. 981............................................................... 40

Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (1 9 6 1 ).... 58
Eaton v. Grubbs, 329 F.2d 710 (C.A. 4, 1964)...................... 40
Eisentrager v. Forrestal, 174 F.2d 961 (1949), reversed on 

other grounds, 339 U.S. 763 (1950)....................................  57

Gomillion v. Lightfoot, 364 U.S. 339 (1960)........................  53
Griffin v. School Board, 377 U.S. 218 (1964)........................  53
Guinn v. United States, 238 U.S. 347 (1915)........................  53

Home Bldg. & Loan Assoc, v. Blaisdell, 290 U.S. 398 (1934) 57
Hurd v. Hodge, 334 U.S. 24 (1948).........................................  44

Jackson v. Pasadena City School District, 59 Cal.2d 876 
(1963) ......................................................................................  56



IV T able of A ethobities Cited

Pages
James v. Marinship Corp., 25 Cal.2d 721 (1944)..................28,41
Johnson y. Levitt & Son, 131 F.Supp. 114 (E.D. Pa. 1955) 40

Lane v. Wilson, 307 U.S. 268 (1939).....................................  53
Lynch, v. United States, 189 F.2d 476 (C.A. 5, 1951)..........  42

Marsh v. Alabama, 326 U.S. 501 (1946).................................  41
McCabe v. Atchison T. & S. F. Ry., 235 U.S. 151 (1914).. .46, 49 
Ming v. Horgan (Cal. Super. Ct. 1958), 3 Race Relations 

L. Bepts. 693 ...........................................................................  40

Nixon v. Condon, 286 U.S. 73 (1932)..................................... 42,49

Orloff v. Los Angeles Tnrf Club, 30 Cal.2d 734 (1 9 5 1 ).... 31

Piluso v. Spenser, 36 Cal.App. 416 (1918)........ .....................  31

Reuter v. Board of Supervisors, 220 Cal. 314 (1934).......... 52

San Mateo v. Railroad Commission, 9 Cal.2d 1...................... 52
Sehwartz-Torrance Investment Corp. v. Bakery Local 31, 61

Cal.2d 766 (1964)..................................................................... 41
Second Slaughter House Case, Butchers’ Union Co. v. Cres­

cent City Co., I l l  U.S. 746 (1883)................................. 57, 58, 61
Shelley v. Kraemer, 334 U.S. 1 (1948)..................37,43,44,46,48
Simpkins v. Moses LI. Cohn Memorial Hospital, 323 F.2d

959 (C.A. 4, 1963), cert, denied, 376 U.S. 938.................. 39
Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1872)..........58, 59
Smith v. Allwright, 321 U.S. 649 (1944).................................  42
Smith v. California, 361 U.S. 147 (1959).............................. 63
Smith v. Holiday Inns of America, Inc., 336 F.2d 630 (C.A.

6, 1964) ...................... ............................................................  40
State Compensation Fund v. Riley, 9 Cal.2d 126 (1 9 3 7 ).... 52

Terry v. Adams, 345 U.S. 461 (1953).....................................  42
Testa v. Katt, 330 U.S. 386 (1947).........................................  57
Thomas v. Goulias, No. SF 22019.............................................  12
Thornhill v. Alabama, 310 U.S. 88 (1940).............................. 64

United States v. Cruikshank, 92 U.S. 542 (1876).................. 59
United States v. Hall, 26 Fed.Cas. 79 (C.C.S.D. Ala. 1871) 43

Williams v. Boilermakers, 27 Cal.2d 586 (1946).................... 30
Wright v. Rockefeller, 376 U.S. 52 (1964).............................  53

Yakus v. United States, 321 U.S. 414 (1944).......................... 57



Table of A uthoeities Cited v

Codes
Civil Code: Page

Section 51 ..........................................................................    24
Sections 51-54 .......................................................................  21
Section 52 .....................      24
Section 53 ............................................................................. 27
Section 69 ............................................................................. 27
Section 782 ........................................................................... 27

Education Code:
Section 8451 .........................................................................  22
Section 8452 .............................................   22
Section 13274 ....................................................................... 23
Section 13732 ....................................................................... 22

Election Code:
Section 223 ............................................................    27

Government Code:
Section 8400 ......................................................................... 23
Section 10702 ....................................................................... 22
Section 19704 .........................    22

Health, and Safety Code:
Section 33039 .....................................   27
Section 33050 ....................................................................... 26
Sections 35700-35741 .........................................    25
Sections 35700-35744 ........................................................... 28

Insurance Code:
Section 11628 ...........................    23

Labor Code:
Section 177.6 ......................................................................... 23
Sections 1410-1432 .................................................   25
Section 1412 ........................................................................  26
Section 1735 ............................................................    22

Military and Veterans Code:
Section 130 ..........................................................................  23

Penal Code:
Section 365 ..........................................................................  21

Welfare and Institutions Code:
Section 19 ............................................................................  22



Constitutions
California Constitution: Pages

Article I, Section 10 ...........................................................  60
Article I, Section 26 .......................................................... passim

United States Constitution, 14th Amendment ......................
..........................................................8,10, 36, 38, 42, 43, 54, 55, 58, 60

Statutes
Cal. Stats. 1893, c. 185, p. 220 ................................................  21

Cal. Stats. 1919, c. 210, p. 309 ................................................  21

Cal. Stats. 1923, c. 235, p. 485 ................................................  21

Cal. Stats. 1925, c. 276, p. 460, Sec. 2 ....................................  22

Cal. Stats. 1935, c. 618, pp. 1748-1749, Sec. 5.798 as amended 22

Cal. Stats. 1937, c. 753, p. 2110, Sec. 201.......................... 22

Cal. Stats. 1939, c. 643, p. 2068, Sec. 1 .................................. 22

Cal. Stats. 1941, c. 243, p. 1308, Sec. 1 .................................  22

Cal. Stats. 1941, c. 1192, p. 3005, Sec. 1 ................................ 23

Cal. Stats. 1947, c. 161, p. 690, Sec. 1 .................................... 22

Cal. Stats. 1949, c. 948, p. 1720, See. 1 ................................  23

Cal. Stats. 1949, c. 1578, p. 2826 ............................................ 23

Cal. Stats. 1951, c. 1718, p. 4038, Sec. 2 ...............................  22

Cal. Stats. 1955, c. 125, p. 588, Sec. 1 .................................... 23

Cal. Stats. 1955, c. 1910, p. 3519 ............................................ 23

Cal. Stats. 1959, c. 121, p. 1999, See. 1 ............................  25

Cal. Stats. 1959, c. 1102, p. 3182, Sec. 23...............................  26

Cal. Stats. 1959, c. 1681, pp. 4074-4077 ...............   25

Cal. Stats. 1961, c. 554, p. 1665, Sec. 2 ...................................  27

Cal. Stats. 1961, c. 1078, p. 2810, Sec. 1 ...................................  27

, Cal. Stats. 1961, c. 1877, p. 3976, See. 1 ...................................  27

vi Table oe A uthorities Cited



T able of A uthorities Cited vii

Pages
Cal, Stats. 1961, c. 1898, p. 4008, See. 1 ........................ 27

Cal. Stats. 1961, e. 2116, p. 4377, Sec. 1 .......................  27

Cal. Stats. 1963, c. 1853, p. 3823, Sec. 2 .......................  28

Attorney General’s Opinions
9 Ops. Cal. Atty. Gen. 271, 274 .................................................  31

Texts
Abrams, Forbidden Neighbors, pp. 70-81, 137-149, 150-190, 

227-243 (1955) ......................................................................... 11

A New Look at State Action, Equal Protection and “ Pri­
vate” Racial Discrimination, 59 Mich. L. Rev. 993 (1961) 38

Brown, The Right to Petition, 8 U.C.L.A. L. Rev. (1961) :
Page 729 .............................................................................. 59,60
Page 732 ............................   59

Clark, Prejudice and Your Child (1955), pp. 39-40 ............ 15

Comment, The Impact of Shelley v, Kraemer on the State 
Action Concept, 44 Cal. L. Rev. 718 (1956)........................ 38

Comment, The Rumford Fair Housing Act Reviewed, 37 
U.S.C. L. Rev. 427, 430, 432 (1964).....................................  21

Frank & Monro, The Original Understanding of “ Equal 
Protection of the Laws,” 50 Colum. L. Rev. 131 (1950).. 43

Groner & Helfeld, Race Discrimination in Housing, 57 Yale 
L. J. 426, 428-429 (1948) .....................................................  17

Horowitz, California Equal Rights Statute, 33 U.S.C. L. Rev. 
260-264 (1960) ........................................................................ 21

Horowitz, The Misleading Search for “ State Action” under 
the Fourteenth Amendment, 37 Cal. L. Rev. 208 (1957) 38

Kaplan, Discrimination in California Housing: The Need for 
Additional Legislaiton, 50 Cal. L. Rev. 635, 636 (1962)., 21



T able of A uthorities Cited

Pages
Karst. & Van Alstyne, Sit-Ins and State Action, 14 Stan. L.

Rev. 762 (1962) .......................................................................  38

Klein, The California Equal Rights Statutes in Practice, 10 
Stanford L, Rev. (1958) :

Pages 253, 255-259 ................................................................21,31
Pages 270-272 .......................................................................  31

Lewis, The Meaning of State Action, 60 Colum. L. Rev. 1083 
(I960)    38

Maslaw, De Facto Public School Segregation, 6 Vill. L. Rev.
353, 354-355 (1961) .................................................................  19

McEntire, Residence and, Race (1960), pp. 32-67, 61-66 . . . .  12

Miller, An Affirmative Thrust to Due Process of Law, 30 
Geo. Wash. L. Rev. 399 (1962).............................................  43

Myrdal, An American Dilemma (1944) :
Page 6 1 8 ................................................................................. 19
Pages 618-627 ...............        11

Note, Civil Rights: Extent of California Statute and Reme­
dies Available for Its Enforcement, 30 Cal. L. Rev. 563-565 
(1942) ................................................................................   21

Peters, Civil Rights and State Non-Action, 34 Notre Dame 
Law 303 (1959) .......................................................................  43

Shanks, “ State Action” and the Girard Estate Case, 105 U.
Pa. L. Rev. 213 (1956) .........................................................  38

St. Antoine, Color Blindness But Not Myopia .......................  38

Williams, The Twilight of State Action, 41 Tex. L. R. 347
(1963) .........................................................................................  38

Weaver, The Negro Ghetto (1948) .........................................  11

viii



Miscellaneous page
Editorial, Vol. XLIV, No. 2, California Real Estate Maga­

zine (Dee. 1963) ...................................................................  52

N.Y. State Commission Against Discrimination, In Search of 
Housing, A  Study of Experiences of Negro Professional 
and Technical Personnel in New York State (1959)..........  19

Report of Commission on Race and Housing, Where Shall 
We Live? (1958) :

Pages 1-10 ............................................................................. 11
Page 3 ...................................................   13
Pages 35-36 ..........................................................    19
Pages 5, 36-38 ....................................................................... 17
Page 36 ................................................................................. 14
Page 40 .....................................      18

Report of the President’s Committee on Civil Rights, To Se­
cure These Rights (1947) :

Pages 67-70 ........................................................................... 11
Pages 82-87 ........................................................................... 20

Report of U.S. Commission on Civil Rights, Book 4, Hous­
ing, p. 1 (1961) ....................................................................... 11

Report of U.S. Commission on Civil Rights (1959) :
Pages 336-374 ....................................................................... 11
Page 3 9 1 ....................................................    15
Page 392 ...............................................    17
Page 545 ................................................................................  19

U.S. Commission on Civil Rights, “ 50 States Report” (1961) :
Pages 43-46 ........................................................................... 11
Page 45 ................................................................................  18

U.S. Commission on Race and Housing, 1959 Report, p. 278 14

Table of A uthorities Cited ix





L. A. Nos. 28360, 28-422 and 28449 
S. F. Nos. 22019, 22020 and 22017 
Sac. No. 7657

In the Supreme Court
OF THE

State of California

L. A. No. 28360
LINCOLN W. MULKEY, et al., Plaintiffs and Appellants,

vs.
NEIL REITMAN, et al., Defendants and Respondents.

Appeal from the Superior Court of Orange County 
Honorable Raymond Thompson, Judge

L. A. No. 28422
WILFRED J. PRENDERGAST and CAROLA EVA PRENDERGAST, on 

behalf of themselves and all persons similarly situated,
Cross-Defendants and Respondents, 

vs.
CLARENCE SNYDER, Gross-Complainant and Appellant.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

L. A. No. 28449
THOMAS ROY PEYTON, M.D., Plaintiff and Appellant,

vs.
BARRINGTON PLAZA CORPORATION, Defendant and Respondent.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

CLIFTON HILL,
Sac. No. 7657

Plaintiff ami Appellant,

CRAWFORD MILLER, Defendant and Respondent.

Appeal from the Superior Court of Sacramento County 
Honorable William Gallagher, Judge



2

S. F. No. 22019
DORIS R. THOMAS, Plaintiff and Appellan t,

vs.
G. E. GOULIAS, et al., Defendants and Respondents.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge ; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Maria, Judge

JOYCE GROGAN, 

ERICH MEYER,

S. F. No. 22020
vs.

Plaintiff and Appellant, 

Defendant and Respondent.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Maria, Judge

S. F. No. 22017
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body, 

corporate and politic, Petitioner,
vs.

KARL BUCK MAN, Chairman of the Redevelopment Agency of the City of 
Fresno, jRespondent.

Petition for Writ of Mandate

AMICI CURIAE BRIEF OF

Philip Adams, Beverly Axelrod, Richard A. Bancroft, Albert M. 
Bendich, Herbert A. Bernhard, Lester Bise, Harry Bremond, 
Ralph Evan Brown, Frank F. Chuman, J. K. Choy, Reynold H. 
Colvin, Jay Darwin, John F. Dunlap, Maurice Engel, Basil 
Feinberg, Andrew H. Field, Thomas L. Fike, Maxwell E. Green­
berg, Allen J. Greenberg, Joseph R. Grodin, Dorothy E. Handy, 
James K. Haynes, Bruce I. Hochman, Robert Holcomb, Harold 
W. Horowitz, Norman C. Howard, Neil F. Horton, Tevis Jacobs, 
Mathew M, Kearny, Herbert A, Leland, Jack Levine, David J. 
Levy, Arthur L. Littleworth, Julian W. Mack II, Douglas 
Maloney, James McDonald, Lloyd E. McMurray, Richard W. 
Petherbridge, James 0. Powers, Ralph H. Prince, Gerald Rosen, 
Warren H. Saltzman, Edward Stern, Robert E. Sullivan, John 
E. Thorne, Solomon Zeltzer, David Ziskind



3

INTEREST OP AMICI

The California attorneys submitting this brief as 
amici curiae represent various organizations con­
cerned with discrimination based on race, religion or 
national origin. These organizations include:

1. National Committee Against Discrimination in 
Housing and its Affiliated Organizations:

Amalgamated Clothing Workers of America, 
AFL-CIO

American Baptist Convention, Division of Chris­
tian Social Concern

American Civil Liberties Union 
American Council on Human Rights 
American Ethical Union 
American Friends Service Committee 
American Jewish Committee 
American Jewish Congress 
American Newspaper Guild, AFL-CIO 
American Veterans Committee 
Americans for Democratic Action 
Anti-Defamation League of B ’nai B ’rith 
Brotherhood of Sleeping Car Porters, 

AFL-CIO/CLC
Commonwealth of Puerto Rico, Department of 

Labor, Migration Division
Congress of Racial Equality (CORE)
Cooperative League of the USA 
Friendship House
Industrial Union Department, AFL-CIO



4

International Ladies’ Garment Workers Union, 
AFL-CIO

International Union of Electrical, Radio and Ma­
chine Workers, AFL-CIO

Jewish Labor Committee
League for Industrial Democracy
The Methodist Church, Woman’s Division of 

Christian Service
National Association for the Advancement of Col­

ored People (N AACP)
National Association of Negro Business and Pro­

fessional Women’s Clubs
National Catholic Conference for Interracial Jus­

tice
National Council of Churches of Christ, Depart­
ment of Ethical and Cultural Relations
National Council of Jewish Women
National Council of Negro Women
National Urban League
Protestant Episcopal Church, Department of 

Christian Social Relations
Union of American Hebrew Congregations, Com­

mission on Social Action
Unitarian Fellowship for Social Justice
United Auto Workers of America, AFL-CIO
United Church of Christ, Council for Social Ac­

tion, and Race Relations Department, Board of 
Homeland Ministries

United Presbyterian Church, Board of Christian 
Education

United Steelworkers of America, AFL-CIO



5

2. and the following California organizations:
The American Federation of Teachers, AFL-CIO, 

California Division
American Friends Service Committee, California 

Offices
American Jewish Congress, California Divisions
American Jewish Committee, Los Angeles and 

San Francisco Chapters
Anti-Defamation League of B ’nai BTith, Central 

Pacific Region
Anti-Defamation League of B ’nai BTith, Pacific 

Southwest Region
Bay Area Urban League, Inc.
California Committee for Fair Practices
California League for American Indians
Catholic Inter-Racial Councils and Human Rela­

tions Councils of California
City of San Bernardino
Community Relations Committee, Jewish Welfare 

Federation Council of Greater Los Angeles
C.O.R.E. (Western Region)
East Bay Conference on Religion and Race
Episcopal Diocese of California
Fair Housing Council of San Mateo County
First Unitarian Church of San Francisco
Friends Committee on Legislation of Southern 

California
Golden Gate Chapter, Rational Association of 

Social Workers



6

Human Relations Council of Riverside, Execu­
tive Board

Human Relations Commission of San Bernardino
Interfaith Social Action Council of San Bernar­

dino
Japanese American Citizens League
Jewish Community Relations Council of San 

Erancisco, the Peninsula and Marin
Jewish Community Relations Council for Ala­

meda and Contra Costa Counties
Jewish Community Relations Council of San Jose
Jewish Labor Committee
Jewish War Veterans, California Department
Los Angeles Cloak Joint Board, ILGrWIT
Marin Committee for Fair Play
Marin Conference on Religion and Race
Marin County Human Rights Commission
NAACP, San Erancisco Branch
Napa County Human Relations Council
Orinda Council for Civic Unity
Palo Alto Pair Play Council
Pasadena Young Women’s Christian Association
Pittsburg Human Relations Commission
San Bernardino Leadership Council
San Erancisco Conference on Religion and Race
San Francisco Friends of Student Non-Violent 

Coordinating Committee
San Francisco Gfreater Chinatown Community 

Service Association



7

San Francisco Young Women’s Christian Asso­
ciation

San Jose Human Relations Commission
Social Action Committee, First Congregational 

Church, Riverside
Union of American Hebrew Congregations
Universalist Unitarian Church of Riverside, 

Board of Trustees

The foregoing organizations are committed to the 
proposition that discrimination based on race, religion 
or national origin is a major evil, both nationally and 
in California, and that the effects of such discrimina­
tion are particularly invidious in the field of housing. 
The organizations have long been actively concerned 
with the malignant growth and persistence of racial 
ghettos in the residential areas of California and the 
United States, and their pernicious social, educational 
and economic consequences.

The interest of Amici in these cases is limited to 
the question of the validity under the federal consti­
tution of Article I, Section 26, of the California con­
stitution, which became law following enactment as 
Initiative Proposition No. 14 in the general election 
of November 3, 1964.1 It is the position of Amici that 
the new constitutional amendment encourages, sanc­
tions, and unmistakeably places the state’s imprimatur 
on discriminations based on race, religion and na­
tional origin in the transfer of real property interests;

JThe briefs of the parties before the Court present full state­
ments of the facts and proceedings below which in our judgment 
necessarily present the broad constitutional issues.



8

and that the amendment arbitrarily precludes any 
exercise o f state power to redress private discrimina­
tion in the sale and leasing of real property. Amici 
submit that on these grounds Article I, Section 26, of 
the California Constitution violates the Fourteenth 
Amendment o f the United States Constitution, and is 
therefore void.

I. INTRODUCTORY STATEMENT.

The gravamen of the newly enacted Article I, Sec­
tion 26, of the California Constitution is contained 
in the following clause:

“Neither the State nor any subdivision or agency 
thereof shall deny, limit or abridge, directly or 
indirectly, 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 discretion, chooses.”

The language is, on its face, general and unqualified. 
No elfoid is made to catalogue the considerations 
which the amendment would immunize against state 
regulation or prohibition in a landowner’s deter­
mination to withhold property from particular in­
dividuals. Rather, by vesting “ absolute discretion”  in 
the property owner with respect to the disposition of 
his property, the amendment attempts to sweep within 
the pale of state constitutional protection both rea­
sonable and unreasonable motivations, ethical and 
unethical considerations, licit and illicit reasons for 
selecting and rejecting willing buyers and renters.



9

The major impact of the amendment falls only 
upon members of minority groups. A constitutional 
amendment was not needed to permit property owners 
to withhold a leasehold from lessees with pets, to 
withhold property in a senior citizens’ community 
from purchasers who do not meet an age requirement, 
or to withhold property for any number of considera­
tions under commonly accepted tenets of desirable 
social and economic behavior. However, in recent 
years the withholding of real property on purely 
racial or religious grounds has been made the occa­
sion for legal redress in California, and there is little 
doubt that Article I, Section 26, was proposed and 
passed for the precise objective of granting and 
guaranteeing the right to discriminate on racial and 
religious grounds in the selling and leasing of real 
property. See infra, pp. 21-32.

The language of the amendment achieves that pur­
pose. Under the “ absolute discretion”  phraseology, a 
Mexican seeking a home for his family in Los Angeles 
may be turned away because of his national origin 
by an owner whose house is on the market; a Japanese 
farmer may be denied farmland in the San Joaquin 
Valley because he is not Caucasian, and a Negro in 
San Francisco may be told that he cannot rent an 
apartment because of the color of his skin. In those 
instances, the amendment undeniably would sanction 
discrimination.

It is the position of Amici that Article I, Section 
26, of the California constitution, by granting the 
protection of law to those who discriminate against



10

minority citizens seeking to acquire property interests, 
by withholding redress of law from those who suffer 
such discrimination, and by arbitrarily precluding the 
effective exercise of state power to regulate discrimi­
nation in the transfer of real property, is in direct 
conflict with the Fourteenth Amendment of the United 
States Constitution. We develop the reasons which 
compel this conclusion in succeeding portions of the 
brief.

A proper evaluation, however, of the impact of the 
amendment in the area of personal rights covered 
by the Fourteenth Amendment requires initially a 
discussion of the extent of discriminatory practices 
in California and of the present laws which deal with 
those practices.

II. DISCRIMINATION IN HOUSING AGAINST MEMBERS OF 
MINORITY GROUPS EXISTS ON A SUBSTANTIAL SCALE IN 
CALIFORNIA AND HAS WIDESPREAD HARMFUL EFFECTS.

The ghetto pattern that dominates residential areas 
throughout the United States—and in California—has 
been revealed in every study made of the subject— 
whether by public agencies or by private institutions. 
Its harmful effects are well known.

A. The Existence of Racial Discrimination in Housing in Cali­
fornia.

That racial discrimination in housing exists through­
out the United States and in California need not be 
belabored.



11

In 1961, the U.S. Commission on Civil Rights ob­
served :2

In 1959 the Commission found that “ housing 
. . . seems to be the one commodity in the Ameri­
can market that is not freely available on equal 
terms to everyone who can afford to pay.” Today, 
2 years later, the situation is not noticeably bet­
ter.

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

And the California Advisory Committee to the U.S.
Commission on Civil Rights has reported:3

The State of California has a large and increas­
ing Negro population. These people live mainly in 
segregated patterns in the major urban centers 
of the State. In most cases, Negro housing areas

2Report of the U. S. Commission on Civil Rights, Book 4, Hous­
ing, p. 1 (1961). See, also, Report of the President’s Committee 
on Civil Rights, To Secure These Bights, pp. 67-70 (1947) ;  Myrdal, 
An American Dilemma, pp. 618-27 (1944) ; Weaver, The Negro 
Ghetto (1948) ; Abrams, Forbidden Neighbors, pp. 70-81, 137-49, 
150-190, 227-243 (1955); Commission on Race and Housing, 
Where Shall We Live?, pp. 1-10 (1958); Report of the U.S. 
Commission on Civil Rights, pp. 336-374 (1959).

3U. S. Commission on Civil Rights, “ 50 States Report” , pp. 43- 
46 (1961).



12

are considerably less attractive than housing in 
other areas.

* * * * *

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

* * * * *

This Negro housing problem is widespread. 
Negroes encounter discrimination not only where 
houses in subdi visions and in white neighborhoods 
are concerned but also in regard to trailer parks 
and motels. Testimony received by the Committee 
indicated that the trailer-park situation is par­
ticularly acute and that, especially in the southern 
part of the State, few, if  any, trailer parks will 
accept Negroes.4

Unquestionably there is an established pattern of 
Segregation in housing, and in the sale and rental of 
real estate in California.5

4The existence of housing bias in California's two principal 
metropolitan areas is further documented in McEntire, Residence 
and Race (1960), in a chapter (pp. 32-67). studying residential 
patterns in 12 large cities representing the major regions of the 
country, including Los Angeles and San Francisco. See particu­
larly the maps showing racial concentration in those two cities, 
pp. 61-66.

5In this connection, we refer the Court also to the uneontra- 
dict.ed affidavit of Earl Raab which is part of the record in 
Thomas v. Goulias, No. S F 22019, pending in this Court.



13

B. The Harmful Effects of Residential Segregation in California.

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

1. The most obvious price paid by those who are 
discriminated against is a loss of freedom. “ The 
opportunity to compete for the housing of one’s choice 
is crucial to both equality and freedom,”  declares the 
Commission on Race and Housing.6

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

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

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



14

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

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

Housing discrimination also abridges the right of 
the majority group owner freely to sell or rent his 
property. The mechanics of the dual, segregated hous­
ing market restrict the universe within which the 
white seller may find prospective purchasers. For 
practical purposes he may offer his house to whites or 
to Negroes, but not to both.

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

7Commission on Race and Housing, 1959 Report, p. 278.
8Similarly, the Commission on Race and Housing, in its Report, 

Where Shall We Live? (1958), p. 36, said: . . segregated groups
receive less housing value for their dollars spent than do whites, 
by a wide margin.”



15

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

Racial differences in the relation of housing 
equality and space to rent or value can be briefly 
summarized. As of 1950, nonwhite households, 
both renters and owners, obtained a poorer quality 
of housing than did whites at all levels of rent, or 
value, in all regions of the country. Nonwhite 
homeowners had better quality dwellings than 
renters and approached more closely to the white 
standard, but a significant differential persisted, 
nevertheless, in most metropolitan areas and value 
classes. . . .

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

9Op. cit. supra, p. 155.
10Se.e, in particular, Clark, Prejudice arid Your Child (1955), 

pp. 39-40.
"U . S. Commission on Civil Rights, 1959 Report, p. 391.



16

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

4. Perhaps the most notorious effect of the ghetto 
system is its creation of slums, with all their attendant 
evils—to the slum dweller and to the public weal. As 
we have seen, housing bias compels non-white groups 
to live in the restricted areas available to them. The 
excessive density of population resulting from the 
artificially limited supply is. a classic cause of slums, 
which in turn breed delinquency, vice, crime and 
disease.

Thus, in 1959, the U. S. Commission on Civil Rights 
described the effects of residential discrimination as 
follows. “ The effect of slums, discrimination and in­
equalities is more slums, discrimination and inequali­
ties. Prejudice feeds on the conditions caused by 
prejudice. Restricted slum living produces demoral­
ized human beings—and their demoralization then be­
comes a reason for ‘keeping them in their place’
Rot only are children denied opportunities but the 
city and nation are deprived o f their talents and pro­
ductive power.” The Commission reported that a 
former Secretary of Health, Education, and Welfare 
estimated the national economic loss at 30 million dol­
lars a year, representing the diminution in productive



17

power of those who by virtue of the inferior status 
imposed upon them were unable to produce their full 
potential.12

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

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

The problem has been fully described by the U. S. 
Commission on Civil Rights.14 It points out that 
minorities are frequently the principal inhabitants of 
the areas selected for slum clearance or urban re­
newal.15 But each of these programs depends for 
success on the ability to relocate some or all of the 
slum dwellers. Urban renewal obviously contemplates

12U. S. Commission on Civil Rights, 1959 Report, p. 392; Com- 
mission on Race and Housing, op. tit. supra, pp. 5, 36-38; Groner 
& Helfeld, Race Discrimination in Homing, 57 Yale L J 426 
428-9 (1948).

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

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

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



18

the destruction of obsolete slum buildings, and these 
residents must of course move. And if they are simply 
moved to another segregated area, adding to its popu­
lation densities, a new slum is created. In those cir­
cumstances the renewal program represents much 
motion but little movement.

As Albert M. Cole, former Federal Housing and 
Home Finance Administrator, has said :16

Regardless of what measures are provided or 
developed to clear slums and meet low-income 
housing needs, the critical factor in the situation 
which must be met is the fact of racial exclusion 
from the greater and better part of our housing 
supply. . . .  Ho program of housing or urban im­
provement, however well conceived, well financed, 
or comprehensive, can hope to make more than 
indifferent progress until we open up adequate 
opportunities to minority families for decent 
housing.

The California Advisory Committee to the U. S. 
Commission on Civil Rights discovered these phe­
nomena in full effect in this state, with clearly visible 
harm to the Negro population. It reported:17

The Committee found that concentration of 
Negro families into certain specified areas within 
California cities seems to be augmented, rather 
than alleviated, by urban renewal projects. It 
appears that Negroes displaced by such projects

3«“ What is the Federal Government’s Role in Housing?” Ad­
dress to the Economic Olnb of Detroit, Feb. 8, 1954, quoted in 
Report of the Commission on Race and Housing, Where Shall IFe 
Live?, p. 40 (1958).

ll50 States Report, supra, p. 45.



19

tend to find alternative housing in pre-existing 
Negro sections. There seems to be little effort to 
guide displaced families in their selection of 
homesites. The project moves forward and Negro 
families, along with other groups, must quickly 
find new homes. Mure often than not, these Negro 
families settle in adjacent ghettos already in 
existence.

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

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

One of the most disturbing features of the physical 
pattern of segregation, whether in housing or other­

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

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

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



20

wise, is that it builds the attitudes of racial prejudice 
which, in turn, strengthen the segregated conduct pat­
terns. This was recognized almost two decades ago by 
a Presidential Committee:21

For these experiences demonstrate that segre­
gation is an obstacle to establishing harmonious 
relationships among groups. They prove that 
where the artificial barriers which divide people 
and groups from one another are broken, tension 
and conflict begin to be replaced by cooperative 
effort and an environment in which civil rights 
can thrive.22

W e show now that California, prior to enactment of 
Article 1, Section 26 of the Constitution, had indeed 
made significant inroads in creating “ an environment 
in which civil rights can thrive” .

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

22The impact of housing discrimination is not limited to citizens 
of our country. The California Advisory Committee to the U. S. 
'Commission on Civil Rights confirms this:

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

“ The Committee is very disturbed by the evident impact of 
discriminatory treatment on foreign students whose precon­
ceptions about American democracy have been rudely upset. 
These students are potential leaders in their own countries 
and the image of America which they take back with them 
can be significantly tarnished by such experiences.” 50 States 
Report, supra p. 46.



21

III. THE DEVELOPMENT OF CALIFORNIA LAW IN THE FIELD 
OF RACIAL DISCRIMINATION AND THE IMPACT OF 
ARTICLE I, SECTION 26, OF THE CONSTITUTION.

A. The Legislative and Judicial Response to Discriminatory 
Practices.

1. California Legislation Prior to 1959.

California has a long history of legislation pro­
hibiting discrimination on the ground of race.23 The 
first California anti-discrimination statute, enacted in 
1872,24 prohibited innkeepers and common carriers 
from discriminating in making their facilities avail­
able to persons of all races and creeds. In 1897 legis­
lation was enacted which prohibited discrimination in 
“ public accommodations.”25 Those provisions, which 
became Sections 51-51 of the Civil Code in 1905, and 
were amended in 1919 and 1923,26 guaranteed to “ all 
citizens . . . full and equal accommodations . . .  of inns, 
restaurants, hotels, eating houses . . . barber shops, 
bath houses, theaters, skating rinks, public convey­
ances and all other places of public accommodation 
or amusement, subject only to the conditions and 
limitations established by law, and applicable alike to 
all citizens.”

2SSee generally, Klein, The California Equal Rights Statutes in 
Practice, 10 Stanford L. Rev., 263, 255-259 (1958); Kaplan, Dis­
crimination in California Housing: The Need for Additional Leg­
islation, 50 Cal. L. Rev., 635, 636 (1962) ;  Comment, The Rumford 
Fair Housing Act Reviewed, 37 U.S.C. L. Rev., 427, 430, 432 
(1964) ; Horowitz, California Equal Rights Statute, 33 U.S.C. L. 
Rev., 260-264 (1960) ; Note, Civil Rights: Extent of California 
Statute and Remedies Available for Its Enforcement, 30 Cal. L. 
Rev., 563-565 (1942).

24Now Pen. Code, See. 365.
25Cal. Stats. 1893,, e. 185, p. 220.
26Ca.l. Stats. 1919, c. 210, p. 309; Cal. Stats. 1923, e. 235, p. 485.



22

In 1925, the California legislature enacted provi­
sions27 which prohibit instruction in California public 
schools reflecting adversely upon the race or color of 
United States citizens. In 1935, the California Legis­
lature28 prohibited questions regarding, and discrimi­
nation on account of, race or color with respect to ap­
plicants or candidates for employment in California 
school districts. In 1937, the Legislature prohibited 
discrimination on the ground of race in the state civil 
service.29 Prohibition of discrimination by reason of 
race or color in employment on public work projects 
became law in 1939.30

The notation of color or race in California Civil 
Service personnel records was forbidden by statute in 
1941.31 In 1947, the California Legislature required 
that assistance programs for needy and distressed 
persons be administered “ without discrimination on 
account of race, . . .” 32 Two years later the legisla­
ture prohibited segregation and discrimination on the 
basis of race or color in the State militia, and enacted 
a declaration of State policy that:

27Cal. Stats. 1925, c. 276, p. 460, Sec. 2, now Education Code, 
Sections 8451 and 8452.

28Cal. Stats. 1935, c. 618, pp. 1748-1749, Sec. 5.798 as amended 
by Cal. Stats. 1951„ c. 1718, p. 4038, Sec. 2, now Education Code 
Section 13732.

29Cal. Stats. 1937, c. 753, p. 2110, See. 201, now Government 
Code, Section 10702.

30Cal. Stats. 1939, c. 643, p. 2068, Sec. 1, now found in Labor 
Code, Section 1735.

31Cal. Stats. 1941, c. 243, p. 1308, Sec. 1„ now Government Code, 
Section 19704.

32Cal. Stats. 1947, c. 161, p. 690, Sec. 1, now Welfare and 
Institutions Code, Section 19.



23

“ There shall be equality of treatment and oppor­
tunity for all members of the militia of this 
State without regard to race or color.”33

In the same year, 1949, the California Legislature for­
bade state agencies and offices from inquiring into 
the race of any job applicant, agent or employee of 
the State o f California.34 In 1951, discrimination was 
prohibited on the ground of race or color with respect 
to apprentices in public works by any employer or 
labor union.35 In 1955, the California Legislature en­
acted a measure36 prohibiting discrimination on the 
ground of race or color by certain automobile liability 
insurers. In the same session of the California Legisla­
ture the following provision was enacted for the pro­
tection of teachers:37

“ It shall be contrary to the public policy of 
this State for any person or persons charged, by 
[the governing boards, of school districts], with 
the responsibility of recommending [teachers] for 
employment by said boards to refuse or to fail 
to do so for reasons of race, color . . .  of said 
applicants for such employment.”

The foregoing summary shows that for nearly a 
century the California Legislature has responded to

3aOal. Stats. 1949, e. 948, p. 1720, Sec. 1, now Military and 
Veterans Code, Section 130.

34Cal. Stats. 1949, c. 1578, p. 2826, now in Government Code, 
Section 8400.

35Cal. Stats. 1941, c. 1192, p. 3005, Sec. 1, now in Labor Code, 
Section 177.6.

38Cal. Stats. 1955, c. 125, p. 588, Sec. 1, now in Insurance Code, 
Section 11628.

37lCal. Stats. 1955, c. 1910, p. 3519, now Education Code, Section 
13274.



24

the pressing need for corrective action against dis­
crimination on grounds of race and color. Legislative 
policy has been consistent in opposing such discrimi­
nation wherever it was found to exist, whether in 
public accommodations, education, employment, public 
welfare, the state militia or the insurance industry. 
As we show next, the Legislature has also applied the 
identical anti-discrimination policy to housing.

2. 1959 Legislation— The Unruh, Hawkins and Fair Employment
Practioe Acts.

During 1959 the California Legislature enacted 
three far-reaching statutes prohibiting discrimination 
on the grounds of race or color. The first was enacted 
as Sections 51 and 52 of the Civil Code and replaced 
the early civil rights provisions contained in the then 
Sections 51 through 54 (see p. 21, supra) :

“ §51. This section shall be known, and may 
be cited, as the Unruh Civil Rights Act.

“ All citizens within the jurisdiction o f this 
State are free and equal, and no matter what their 
race, color, religion, ancestry, or national origin 
are entitled to the full and equal accommodations, 
advantages, facilities, privileges, or services in all 
business establishments o f every kind whatsoever.

“ This section shall not be construed to confer 
and right or privilege on a citizen which is con­
ditioned or limited by law or which is applicable 
alike to citizens of every color, race, religion, an­
cestry, or national origin.”

“ § 52. Whoever denies, or who aids, or incites 
such denial, or whoever makes any discrimination, 
distinction or restriction on account of color, race,



25

religion, ancestry, or national origin, contrary to 
the provisions of Section 51 of this code, is liable 
for each and every such offense for the actual 
damages, and two hundred fifty dollars ($250) in 
addition thereto, suffered by any person denied 
the rights provided in Section 51 of this code.”

In addition to this measure, which on its face en­
compassed all residential housing sold or leased by a 
“ business,” the 1959 California Legislature enacted 
a specific statute directed against racial discrimina­
tion in residential housing.38 This measure, popularly 
known as the “ Hawkins Act,”  prohibited “ The prac­
tice of discrimination because of race, color, religion, 
national origin or ancestry in any publicly assisted 
housing accommodations . . . ”  (Cal. Stats. 1959, p. 
4074.)

The third major item of civil rights legislation 
during the 1959 session was the California Fair Em­
ployment Practices Act.30 This Act prohibited dis­
crimination on the grounds of race or color by certain 
employers and labor unions and established the Fair 
Employment Practice Commission to administer its 
provisions. The Act begins with this legislative decla­
ration of public policy (Lab. Code, Sec. 1411):

“ It is hereby declared as the public policy of 
this State that it is necessary to protect and safe­
guard the right and opportunity of all persons 
to seek, obtain, and hold employment without dis- * 3

38Cal. Stats. 1959, c. 1681, pp. 4074-4077, now in Health and 
Safety Code, Sections 35700-35741.

3i)Cal. Stats. 1959, c. 121, Sec. 1, p. 1999, now in Labor Code, 
Sections 1410-1432.



26

crimination or abridgement on account of race, 
religious creed, color, national origin, or ancestry.

“ It is recognized that the practice of denying 
employment opportunity and discriminating in the 
terms of employment for such reasons, foments 
domestic strife and unrest, deprives the State of 
the fullest utilization of its capacities for develop­
ment and advance, and substantially and ad­
versely affects the interests o f employees, em­
ployers, and the public in general.

“ This part shall be deemed an exercise of the 
police power of the State for the protection of 
the public welfare, prosperity, health, and peace 
of the people of the State of California.”

The next section of the Act provides (Lab. Code, 
sec. 1412) :

“ The opportunity to seek, obtain and hold em­
ployment without discrimination because of race, 
religious creed, color, national origin, or ancestry 
is hereby recognized as and declared to be a civil 
right.”

In addition to these anti-discrimination measures, 
the 1959 Legislature amended the Health and Safety 
Code to prohibit discrimination “ in undertaking com­
munity redevelopment or urban renewal projects.” 40

3. Legislation Subsequent to 1959.

There has been no slackening in the increasing 
tempo of civil rights legislation in California since

40Cal. Stats, 1959, c. 1102, Sec. 23, p. 3182, now in Health and 
Safety Code, Section 33050.



27

1959. In 1961 the Legislature prohibited county clerks 
from refusing to deputize voter registrars on the 
grounds of race or color.41 With respect to housing, 
the 1961 Legislature declared:42

The Legislature of the State o f California 
recognizes that among the principal causes of 
slum and blighted residential areas are the follow­
ing factors:

*  #  #  #  #

“ (c) Racial discrimination against persons of 
certain groups in seeking housing.”

In furtherance of the same policy, the 1961 Legisla­
ture prohibited all racially restrictive covenants affect­
ing real property interests,43 and all racially restric­
tive conditions subsequent in deeds of real property.44 
That session of the Legislature also added a provision 
to section 69 of the Civil Code providing that appli­
cants for marriage licenses “ shall not be required to 
state, for any purpose, their race or color.”  (Cal. 
Stats. 1961, p. 1665.)45

The next major assault by the California Legislature 
on racial discrimination, and in particular on racial 
discrimination in residential housing, is contained in

41Cal. Stats. 1961, c. 1898, See. 1, p. 4008, now in Election Code, 
Section 223.

42Cal. Stats. 1961, c. 2116, See. 1, p. 4377, now in Health and 
Safety Code, Section 33039.

43Cal Stats, 1961, c. 1877, Sec. 1, p. 3976, now in Civil Code, 
Section 53.

44Cal. Stats. 1961,, c. 1078, Sec. 1, p. 2810, now in Civil Code, 
Section 782,

45Cal. Stats. 1961, c. 554, Sec. 2, p. 1665.



28

the measure popularly known as the “ Rumford Act,”  
which added sections 35700-35744 to the Health and 
Safety Code46 and replaced the provisions of the 
“ Hawkins Act.”  The Rum-ford Act was broader than 
the Hawkins Act in covering inter alia, residential 
housing containing more than four units, even though 
not publicly assisted. In addition, the Legislature 
vested the exclusive authority to administer the Rum- 
ford Act in the Fair Employment Practice Commis­
sion. The legislative poliey which the Rumford Act 
implemented is expressed in its initial provision 
(Health & Safety Code, see. 35700) :

“ The practice of discrimination because of race, 
color, religion, national origin, or ancestry in 
housing accommodations is declared to be against 
public policy.

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

4. Development of California Antidiscrimination Common Law.

Legal developments against racial discrimination in 
California have not been confined to legislative action. 
This Court and other courts in the State, in the de­
velopmental tradition of the common law, have recog­
nized that private acts o f racial discrimination may 
warrant judicial relief.

An important example is James v. Marinship Corp., 
25 Cal.2d 721 (1944), involving a union which had a 
closed shop contract with an employer. The imion

46Cal. Stats. 1963, e. 1853, Sec. 2, p. 3823.



29

would not admit Negroes into membership with rights 
and privileges equal to those enjoyed by white mem­
bers, Instead, the Negro employees were given the 
option of joining a segregated union or being dis­
charged under the union security agreement. This 
Court concluded that the closed shop, coupled with the 
closed union, constituted an unlawful arrangement 
affecting employment, and ordered the union either to 
provide equal membership opportunities for Negroes 
or to refrain from causing their discharge.

The decision was not predicated on statute. Rather, 
the Court ruled that racial discrimination in the situ­
ation there presented was contrary to the “ public 
policy of the United States and [the State of Cali­
fornia]”  and was therefore unlawful as a matter of 
common- law. (25 Cal.2d at 739.) The Court explained 
the interplay between common law and statutory law 
prohibiting private discrimination (25 Cal.2d at 740) : 

“ Defendants contend that ‘ individual invasion 
of individual rights’ can be prohibited only by a 
statute of the: state, and they point out that Cali­
fornia statutes forbidding racial discrimination 
by private persons relate only to certain specifi­
cally enumerated businesses such as inns, restau­
rants, and the like, but not to labor unions (Civ. 
Code, §§51-52). It has been said, however, that 
such statutes, to the extent that they embrace 
public service businesses, are merely declaratory 
of the common law.”

Two years later, this Court made it clear that 
Marinship was not restricted to circumstances where 
a union had obtained a monopoly of labor in the lo­



30

cality involved. Thus, in Williams v. Boilermakers, 
27 Cal.2d 586 (1946), the Court sustained a complaint 
similar to that in Marinship, which did not allege the 
inability of the plaintiff to obtain work at his trade 
elsewhere in the community. Following a discussion of 
decisions in other states which granted a common law 
remedy in like instances, the Court stated (27 Cal.2d 
at 590-591) :

“ These decisions are based upon the theory that 
such collective labor activity does not have a 
proper purpose and constitutes an unlawful inter­
ference with a worker’s right to employment. . . . 
This rule is not founded upon the presence of a 
labor monopoly in the entire locality, and the 
reasoning is simply that it is unfair for a labor 
union to interfere with a person’s right to work 
because he does not belong to the union although 
he is willing to join and abide by reasonable 
union rules and is able to meet all reasonable con­
ditions of membership. No purpose appropriate to 
the functions o f a labor organization may be 
found in such discriminatory conduct. Here the 
union’s efforts are directed, not toward advancing 
the legitimate interests of a labor union, but 
rather against other workers solely on the basis 
o f race and color. . . . The public interest is 
directly involved because the unions are seeking 
to control by arbitrary selection the fundamental 
right to work.”

The Court added, in a more general vein, that “ where 
persons are subjected to certain conduct by others 
which is deemed unfair and contrary to public pol­
icy, the courts have full power to afford necessary



31

protection in the absence of statute”  (emphasis 
added) ,47

Apart from holdings which rest on the existence of 
a common law public policy against racial discrimina­
tion, this Court on numerous occasions has empha­
sized the pervasiveness of California’s anti-discrimi­
nation policy at all levels of California law. Thus, in 
Orloff v. Los Angeles Turf Club, 30 Cal.2d 734, 739 
(1951), the Court stated:

“ The so-called civil rights statutes (Civ. Code 
§§51-54) do not necessarily grant theretofore non­
existent rights or freedoms. The enactments are 
declaratory of existing equal rights and provide 
the means for their preservation by placing re­
strictions upon the power of proprietors to deny 
the exercise of the right and by providing pen­
alties for violation.”

See also, Piluso v. Spenser, 36 Cal.App. 416 (1918), 
for an earlier statement to similar effect. In holding 
the Unruh Act to be applicable to housing, the Court 
has likewise observed (Burks v. Poppy Construction 
Co., 57 Cal.2d 463, 471 (1962)) :

“ Discrimination on the basis of race or color is 
contrary to the public policy of the United States

47The California Attorney General has noted that the rule 
underlying the Marinship decision extended protection against 
racial discrimination from practices involving “ government 
agencies and public service businesses” to situations involving 
“ private rather than public action.” The Attorney General con­
cludes that “ What had hitherto been regarded as a rule of public 
policy affecting only the government and public service enter­
prises, has become to some extent, not yet clearly delineated, a 
rule of conduct affecting private individuals and organizations.”
9 Ops.Cal.Atty.Gen. 271, 274. See also Klein, The California 
Equal Rights Statutes in Practice, 10 Stan. L. Rev., 253, 270-272 
(1958).



32

and of this state. Atlhough the antidiscrimination 
provisions of the federal Constitution relate to 
state rather than private action, they nevertheless 
evidence a definite national policy against dis­
crimination.”

In sum, both statutory and common law prohibiting 
racial discrimination expanded and developed in this 
State consistently imtil the passage of Article I, Sec­
tion 26. The significance of the steady development is 
clear. First, the mere volume of the law evidences 
the magnitude in California of the evil of racial and 
religious discrimination. Second, the California Legis­
lature, in the exercise of traditional police powers, and 
the California courts, within the framework of the 
common law, have been able to play a continuingly ac­
tive role in redressing those evils. Plainly, the granting 
by this State of an ‘ ‘ absolute”  right to discriminate in 
housing on grounds of race or religion is a monu­
mental reversal of California’s deep rooted and un­
equivocal public policy against all forms of racial and 
religious discrimination. The extent of that reversal 
of public policy will be treated in the following exam­
ination of the effect on existing law of Article I, 
Section 26.

B. The Impact of Article I, Section 26, on California Law.
1. The Effect on the Rumford Act.

The Rumford Act expressly declares that racial and 
religious discrimination in housing is contrary to the 
public policy of California (see p. 28, supra). While 
the challenged constitutional amendment does not 
refer either to racial or religious discrimination or to



33

the Rumford Act, there is no doubt that both the 
language and the purpose of the amendment nullify 
the effectiveness of the Act. See p. 28, supra. 
Article I, Section 26, forbids the courts as well as any 
other state agency to deny * ‘ the right”  of a seller or 
lessor of real property “ to decline to sell, lease or rent 
such property to such person or persons as he, in his 
absolute discretion, chooses.”  The landlord who re­
fuses to rent an apartment to a Negro because of the 
color of his skin acts in derogation of the public 
policy articulated in the Rumford Act, but the new 
constitutional amendment plainly denies the Negro 
redress in Court or other state agency. The new 
amendment, in short, places the authority of the law 
in direct support of the discriminating landlord.

2. The Effect on the Unruli Act.

The Unruh Act, as shown above, prohibits racial 
discrimination “ in all business establishments of every 
kind whatsoever,”  including businesses which deal 
with housing. Burks v. Poppy Construction Co., 57 
Cal.2d 463 (1962). The effect of the new amendment 
upon the business activity of transferring of real 
property interests, as distinguished from non-business 
transactions, is not free from doubt.48

I f  business establishments are outside the scope of 
the amendment, the Unruh Act may continue to pro­

48Artiele I, Section 26, speaks in terms of “ any person” who 
desires to sell “ his real property,” and his right to decline to sell 
to a person “ as he, in his absolute discretion, chooses.” (Emphasis 
added.) The amendment defines “ person” to include “ partner­
ships, corporations and other legal entities,” but it is extremely



34

vide a limited remedy against discrimination. But that 
remedy would not extend to those who suffer from 
discriminatory practices by private landowners whose 
discrimination still would be sanctioned and encour­
aged by the state. On the other hand, if  the amend­
ment authorizes discrimination by business establish­
ments in the same manner as with individual land- 
owners, such authorization equally violates the Four­
teenth Amendment. See infra, p. 36, et seq.

3. The Effect on the Development of California Common Law.

It cannot be doubted that the effect of Article I, 
Section 26 is to stunt the potential growth of common 
law prohibiting discrimination in housing. The situ­
ation in housing now is analogous to that which would 
have resulted from a constitutional amendment, fol­
lowing the decision of this Court in Marinship, to the 
effect that unions with closed shop agreements are 
entitled to deny membership on any ground which 
they, in their absolute discretion, choose. Presumably, 
the California Constitution thereby would put an end 
to the common law principle embodied in Marinship. 
In short, California courts are precluded by the 
amendment, if  valid, from further considering com­
mon law principles in cases involving discrimination 
by landowners against minority groups. The force of 
social, moral and humane factors which have made the 
common law an accommodating legal framework, re­
doubtful that the purpose of the amendment was to protect the 
partnership or corporation or the individual in the business of 
selling or renting real property. The official ballot argument in 
favor of the amendment wa,s restricted to a discussion of its effect 
on the individual landowner.



35

sponsive to historical experience, has been neutralized 
in the area covered by the amendment.49

4. The Effect on Future Legislative Regulation.

The new amendment flatly prohibits the Legislature 
from “ directly or indirectly”  limiting the “ right”  of 
a landowner to discriminate in the sale or lease of his 
property. Thus, in this subject of vital public concern, 
there is total disabling of the ordinary legislative 
processes which are geared to respond to the need for 
regulation. The legislative disability extends to the 
county and municipal level as well as to the state 
Legislature.

In consequence of the amendment, California stands 
as the single state in the Union in which the power to 
deal with private discrimination in housing has been 
taken away from the Legislature and from local law 
making bodies by constitutional mandate. The situa­
tion is anomalous. As this Court has observed, “ Dis­
crimination in housing leads to lack of adequate hous­
ing for minority groups . . . and inadequate housing 
conditions contribute to disease, crime and immoral­
ity.” Burks v. Poppy Construction Co., 57 Cal.2d 463, 
471 (1962). These are precisely the problems which, 
under our form of government, are immutably en­
trusted to the state for regulation in the exercise of 
traditional police powers. But Article I, Section 26, of 
the Constitution, withdraws the Legislature and other

49Mere repeal of the Rumford Act would not have had the same 
effect. For example, in the absence of legislation, the courts might 
have provided redress to victims of housing discrimination. We 
discuss the point in greater detail, supra, p. 28.



36

branches o f the government from this vital area of 
responsibilty, and has the direct effect o f delegating 
solely to private persons the absolute power to control 
the discriminatory housing conditions which “ con­
tribute to disease, crime and immorality” throughout 
the state.

IV. ARTICLE I, SECTION 26 CONSTITUTES DISCRIMINATORY 
STATE ACTION WITHIN THE REACH OF THE FOURTEENTH 
AMENDMENT OF THE UNITED STATES CONSTITUTION.

A. The Fourteenth Amendment Prohibits State Action in Fur­
therance of Racial Discrimination in the Sale and Rental of 
Real Property.

The Fourteenth Amendment of the federal Consti­
tution provides:

“ No State shall make or enforce any law which 
shall abridge the privileges or immunities of citi­
zens 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 per­
son within its jurisdiction the equal protection 
o f the laws.”

The Amendment’s applicability to discriminatory state 
action in the sale and purchase of real property is 
clear:

“ Colored persons are citizens of the United States 
and have the right (under the equal protection 
clause) to purchase property and enjoy and use 
the same without laws discriminating against 
them solely on account of color.” (Buchanan v. 
Worley, 245 U.S. 60, 78-79 (1917).)



37

The landmark decision in Shelley v. Kraemer, 334 
U.S. 1 (1948), dispels all doubts :

• • among the civil rights intended to be pro­
tected from discriminatory state action by the 
Fourteenth Amendment are the rights to acquire, 
enjoy, own and dispose of property. Equality in 
the enjoyment o f property rights was regarded 
by the framers of that Amendment as an essential 
precondition to the realization of other basic civil 
rights and liberties which the Amendment was 
intended to guarantee.”  (334 U.S. at 10.)

Accordingly, California clearly is forbidden by the 
federal constitution from asserting its governmental 
authority to discriminate against minority groups in 
the enjoyment of the right to purchase or rent real 
property.

I f  California had enacted a constitutional amend­
ment stating that Negroes were not entitled to legisla­
tive or judicial relief from private acts of housing 
discrimination it would have been a plain violation 
of the Fourteenth Amendment. The difficulty in the 
present cases is that the discrimination becomes opera­
tive through a subtle combination of state and private 
action. The resulting problem, though novel in the 
present context, is not unfamiliar. In a complex so­
ciety, governmental and private action are increasingly 
often entwined as well as interdependent. The state 
acts in many forms and through many channels. Pri­
vate activity may benefit from, or be stimulated by, 
state subsidies, state regulation and other forms of 
state aid or state encouragement. We show, first, by



38

Way of background, that those combinations of private 
and state action which result in invidious discrimina­
tion or interference with individual liberty are consti- 
stutionally prohibited,50 and, second, that Article I, 
Section 26, despite its artful phrasing, is within the 
penumbra of that doctrine.

1. Private Discrimination on State-owned Property.

It is settled law that state ownership of property 
is sufficient for applicability of the Fourteenth Amend­
ment; operation o f the facility directly by the state 
is not a prerequisite. Thus, in Burton v. Wilmington 
Parking Authority, 365 U.S. 715 (1961), state prop­
erty was leased to a private restaurant which refused 
to serve Negroes. The discrimination was found to be 
state action for purposes of the Fourteenth Amend­
ment, even though the actual decision to exclude Ne­
groes from the restaurant was made by the restaurant 
alone and there was no showing that the state had 
endorsed or required the exclusion. As the Supreme 
Court explained (365 U.S. at 725) :

“ By its inaction * * * the state, has not only 
made itself a party to the refusal of service, but 
has elected to place its power, property and pres­

50For excellent analyses of the development of the law of state 
action, see Horowitz, The Misleading Search for “ State Action”  
under the Fourteenth Amendment, 37 Cal.L.Rev. 208 (1957); 
Williams, The Twilight of State Action, 41 Tex.L.R. 347 (1963); 
Lewis, The Meaning of State Action, 60 Colum.L.Rev. 1083 
(I960) ; Karst & Van Alsyne, Sit-Ins and State Action, 14 
Stan.L.Rev. 762 (1962); St. Antoine, Color Blindness But Not 
Myopia; A New Look at State Action, Equal Protection, and 
“ Private”  Racial Discrimination, 59 Mieh.L.Rev. 993 (1961); 
Shanks, “ State Action” and the Girard Estate Case, 105 U.Pa.L. 
Rev. 213 (1956); Comment, The Impact of Shelley v. Kraemer on 
the State Action Concept, 44 Cal.L.Rev. 718 (1956).



39

tige behind the admitted discrimination. The 
State has so far insinuated itself into a position 
of interdependence with (the lessee) that it must 
be recognized as a joint participant in the chal­
lenged activity * *

See also, Darlington v. Plumber, 240 F.2d 922 (C.A. 
5, 1956), certiorari denied, 353 U.S. 924; City of 
Greensborougli v. Simpkins, 246 F.2d 425 (C.A. 4, 
1957) ; Department of Conservation <4 Dev. v. Tate, 
231 F.2d 615 (C.A. 4, 1955), certiorari denied, 352 
U.S. 838.

2. Private Discrimination in the Operation of Property Under State- 
assistance Programs.

State assistance programs of various kinds are a 
sufficient link between the private property owner and 
the state to subject the operation of the property to 
the equal protection requirements of the Fourteenth 
Amendment. Thus, it has been recently held that 
where a private hospital received financial and other 
assistance under the Federal Hill-Burton Act which 
was administered by the state, the action of the pri­
vate hospital was action of the state for the purposes 
of the Fourteenth Amendment. (Simpkins v. Moses 
II. Cohn Memorial Hospital, 323 F.2d 959 (C.A. 4, 
1963), certiorari denied, 376 U.S. 938.) The same 
court found racial discrimination in a privately 
owned hospital to be constitutionally forbidden where 
the hospital land was granted by the state, was to re­
vert to the state upon cessation o f hospital operations, 
and where the state had supplied the hospital with 
funds for certain puiposes, and had granted it a tax



40

exemption and power of eminent domain. Eaton v. 
Grubbs, 329 F.2d 710 (C.A. 4, 1964).

Similarly, the Sixth Circuit has held that a private 
motel’s operations were subject to the Fourteenth 
Amendment where the real property upon which the 
motel had been constructed was purchased from a 
municipality pursuant to an urban renewal program 
and the motel was part of a comprehensive plan of 
development. Smith v. Holiday Inns of America, Inc., 
336 F.2d 630 (C.A. 6, 1964).

Consistent with the preceding cases is the earlier 
California decision in Ming v. Horgan (Cal. Super. 
Ct. 1958), 3 Race Relations L. Repts. 693, which in­
volved a private developer who was licensed and in­
spected by the state and who had secured FH A mort­
gage financing for purchasers of his homes. The 
Superior Court held that the action of the private 
developer in discriminating against prospective pur­
chasers on the grounds of race was state action pro­
hibited under the Fourteenth Amendment.51

Those decisions demonstrate that the nexus between 
prohibited discrimination and state responsibility is 
sufficient wherever there is some state assistance to, or 
participation in, the construction or operation of the 
property or facility, so that it may be said that the 
property owner is operating under the aegis or ap­
proval of the state. The Courts have warned private

51Deeisions to the contrary such as Dorsey v. Styvesant Town 
Corp., 299 N.Y. 512 (1949), certiorari denied 339 U.S. 981, and 
Johnson v. Levitt & Son, 131 F.S-upp. 114 (E.D. Pa. 1955) are 
of questionable validity in the light of Burton v. Wilmington 
Parking Authority, 365 U.S. 715 (1961), discussed supra, p, 38.



41

landowners, in substance, “ if  you rely to any appre­
ciable degree on state assistance or protection, you 
must observe the constitutional requirements imposed 
on states in the maintenance o f your property.”

3. Private Discrimination in the Management of Property Utilized in 
a Quasi-public Function.

In Marsh v. Alabama, 326 U.S. 501 (1946), the Su­
preme Court held that a town which was wholly- 
owned by a private corporation could not prohibit a 
member o f Jehovah’s Witnesses from distributing 
literature on a sidewalk of the town. The Court 
reasoned that since an ordinary municipality would 
be prohibited from such conduct, the same rule should 
be applicable to private property which serves as a 
municipality for its residents.52 The Court, in short, 
found that the action of the private corporation was 
the action o f the state for the purpose of the Four­
teenth Amendment. For analogous situations in which 
this Court has required private entities whose opera­
tions have public or quasi public aspects to bear the 
responsibilities of public bodies, see Schwa/rtz-Tor- 
rance Investment Corp. v. Bakery Local 31, 61 Cal. 
2d 766 (1964); and James v. Marinship Corp., supra,
p. 28.

4. Private Discrimination Where the State Has Delegated a Govern­
mental Function.

The state is constitutionally required to prevent 
private racial and religious discrimination when it 
delegates the performance of governmental responsi­

52 The applicability of this principle to subdivisions and planned 
communities seems apparent.



42

bilities to private groups. The principle has been 
firmly established with respect to political elections. 
The electoral process is, of course, a function with 
respect to which the state must assume a governmental 
responsibility. To the extent that illicit discrimination 
is accomplished in the handling of election procedures, 
it makes no difference under the Fourteenth Amend­
ment whether the state acts directly or through an 
intervening political group. Accordingly, private 
political parties cannot constitutionally discriminate 
against Negroes in party primaries. Smith v. All- 
wright, 321 U.S. 649 (1944). Nor can a voluntary 
political organization constitutionally discriminate 
against Negroes at pre-primary elections. Terry v. 
Adams, 345 U.S. 461 (1953) ; see Nixon v. Condon, 
286 U.S. 73 (1932).

Relevant also are cases in which local officials— 
police officers—were found to have transgressed the 
Fourteenth Amendment’s interdictions against state 
discrimination by failing to protect persons from 
racial and religious attacks. As stated in Lynch v. 
United States, 189 F.2d 476 (C.A. 5, 1951):

“  There was a time when the denial o f equal pro­
tection of the laws was confined to affirmative acts, 
but the law now is that culpable official inaction 
may also constitute a denial of equal protection.”

The principle that states must act affirmatively to 
insure equal protection of the laws is scarcely of recent 
origin. The opinion in the Civil Rights Cases, 109 
U.S. 3 (1883), although concluding that the Four­
teenth Amendment was directed only at the states and



43

not individuals, emphasized the importance of the 
constitutional objective of achieving equality of treat­
ment for all citizens. The basis of the decision was the 
assumption that redress under state law would, be 
available in the event of abridgement by private in­
dividuals of the complainant’s right to equal treat­
ment. 109 U.'S. at 17. Compare the earlier statement 
of a federal circuit court ( United States v. IT a l l 26 
Fed.Oas. 79 (C.C.S.D. Ala,, 1871):

“ (T )he Fourteenth Amendment not only pro­
hibits the making or enforcing of laws which shall 
abridge the privileges of the citizens, but prohibits 
the states from, denying to all persons within its 
jurisdiction the equal protection of the laws. 
Denying includes inaction as well as action, and 
denying the equal protection of the laws includes 
the omission to protect, as well as the omission to 
pass laws for protection. A  citizen of the United 
States is entitled to the enforcement of the 'laws 
for the protection of his fundamental rights, as 
well as the enactment of such laws.” 53 * * * * 58

5. Private Discrimination Authorized, Sanctioned or Encouraged by 
tie State.

The Fourteenth Amendment forbids the state from 
lending its power to authorize, sanction or encourage 
private discrimination. This was the ruling in Shelley

53A similar position was taken last year by Chief Justice War­
ren, and Justices Douglas and Goldberg in Bell v. Maryland, 378
U.S. 226 (1946). These Justices would hold that a violation of the
Fourteenth Amendment is established where a state fails to pro­
tect by its own laws the equality of access to public accommoda­
tions. See generally, Frank & Monro, The Original Understanding
of “ Equal Protection of the Laws,”  50 Colum.L.Rev. 131 (1950) ;
Miller, An Affirmative Thrust to Due Process of Law, 30 Geo. 
Wash.L.Rev. 399 (1962); Peters, Civil Rights and State Non- 
Action, 34 Notre Dame Law 303 (1959).



44

v. Kraemer, 334 U.S. 1 (1948), where landowners 
sought the assistance of a state court to enforce a re­
strictive racial covenant against a Negro purchaser. 
The discriminatory covenant involved only individual 
action, but the United States Supreme Court made it 
clear that the state was; implicated as soon as a suit 
was brought to enforce the covenant. As the Court 
stated (334 U.S. at 20):

“ 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 o f the Fourteenth 
Amendment, it is the obligation of this Court to 
enforce the constitutional commands. * * *
W e hold that in granting judicial enforcement of 
the restrictive agreements in these cases, the 
States have denied petitioners the equal protec­
tion of the laws and that, therefore, the action of 
the state courts cannot stand. W e have noted that 
freedom from discrimination by the States in the 
enjoyment of property rights was among the1 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 o f 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.54

MSee also Hurd v. Hodge 334 U.S. 24 (1948), where the Court 
held that enforcement of a racially restrictive covenant by a 
court in the District of Columbia violated section 1978 of the 
Revised Statutes, which 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.”



45

In Barrows v. Jackson, 346 U.S. 249 (1953), the 
Supreme Court subsequently held that a racially re­
strictive covenant could not constitutionally support 
a suit for damages. The Court explained (346 U.S. 
at 254) :

“ The result of that sanction by the State would 
be to encourage the use of restrictive covenants. 
To that extent, the State would act, to put its sanc­
tion behind the covenants. I f  the State may thus 
punish respondent for her failure to carry out her 
covenant, she is coerced to continue to use her 
property in a discriminatory manner, which in 
essence is the purpose of the covenant. Thus, it 
becomes not respondent’s voluntary choice but the 
State’s choice that she observe her covenant or 
suffer damages.”  (Emphasis added.)

Unconstitutional governmental encouragement of 
private discrimination also was found in Anderson v. 
Martin, 375 U.S. 399 (1964), involving racial labeling 
of candidates on ballots. That practice, although ob­
viously not requiring individuals to discriminate, was 
struck down because it encouraged' and assisted dis­
crimination. See also Baldwin v. Morgan, 287 E.2d 
750 (C.A. 5, 1961).

The principle that the state may not, through its 
legal system, encourage or sanction racial discrimina­
tion was also applied by a California Court in Abstract 
Investment Go. v. Hutchison, 204 Cal. App. 2d 242 
(1962). The case involved an action in unlawful de­
tainer of property leased under a month to month 
tenancy to the defendant, a Negro, who admitted that 
the landlord was entitled to possession under the terms



46

of the tenancy, but affirmatively alleged that the sole 
reason for the eviction was. that he was a Negro. The 
trial court refused to admit any evidence with respect 
to this affirmative defense and rendered judgment in 
favor o f the landlord. Applying Shelley v. Kraemer, 
supra, the District Court of Appeal reversed the judg­
ment on the ground that, i f  it could be proven that 
racial considerations lay behind the eviction, enforce­
ment of the landlord’s claim would constitute unlaw­
ful state action.

State authorization of discriminatory acts by pri­
vate individuals was recognized as satisfying the state 
action test under the Fourteenth Amendment, in Mc­
Cabe v. Atchinson T. A S. F. By., 235 U.S. 151 (1914). 
The case held that the denial of equal railroad facili­
ties to Negroes by a railroad was unconstitutional 
state action on the ground that the discrimination was 
authorized by a state statute. The Court reasoned that 
discrimination pursuant to statutory authorization was 
action under “ the authority of a state law” , which in 
constitutional contemplation was not materially less 
unconstitutional than discrimination pursuant to state 
requirement. (235 U.S. at 162.)

Three of the justices who participated in Burton 
v. Wilmington Parking Authority, supra, adopted this 
reasoning. Mr. Justice Stewart, concurring, finding 
that the state Court, involved in that case had con­
strued the state law “ as authorizing discriminatory 
classification based exclusively on color” , concluded 
that “ Such a law [is] clearly violative of the Four­
teenth Amendment.” 365 U.S. at 726-727. Mr. Justice



47

Frankfurter, dissenting with Justices Harlan and 
Whittaker, did not read the state statute as authoriz­
ing discriminatory treatment against Negroes, but 
made clear that if  the statute were so interpreted, it 
would not survive the constitutional test. “ For a state 
to place its authority behind discriminatory treatment 
based solely on color is indubitably a denial by a State 
of the equal protection o f the laws in violation o f the 
Fourteenth Amendment.”  365 U.S. at 727.

The same reasoning underlies the decision of the 
Court of Appeals for the Fifth Circuit in Bowman v. 
Birmingham, Transit Company, 280 F.2d 531 (C.A. 
5, 1960). In that ease, the City of Birmingham had 
authorized carriers to make such rules regarding the 
seating of passengers as the carrier deemed necessary 
for safety and convenience. The city also provided 
that violation of these rules would constitute a crim­
inal offense. A  carrier rule which provided for racially 
segregated seating on busses was found to be author­
ized by the City, and therefore was state action under 
the Fourteenth Amendment.

B. There Is Sufficient State Encouragement of Racial Dis­
crimination Under Article I, Section 26 to Bring It Within 
the Proscription of the Fourteenth Amendment.

W e have demonstrated that racial discrimination 
by private individuals is not wholly beyond the reach 
of the Fourteenth Amendment. While there must be 
a nexus between individual action and the state in 
order to bring the federal constitution into play, state- 
involvement need not rise to the level of direct or



48

affirmative action. A  state law requiring individual 
discriminatoiy acts is perhaps the most obvious form 
of state action through individual conduct, but the 
application of the Fourteenth Amendment has cer­
tainly not been limited to such flagrant situations. 
A  state cannot exculpate itself merely by showing that 
a private person made the effective determination to 
engage in invidious discrimination or some other in­
vasion of fundamental rights. Implication of the state 
through official authorization or encouragement of 
unequal treatment of the races, through the avail­
ability of its sanctions in support of such inequality, 
or through failure to act in an area of state respon­
sibility involving discriminatory conduct all have pro­
vided the occasion for invocation of the Fourteenth 
Amendment.

The conclusion is inescapable that the nexus between 
the state and private racial or religious discrimination 
in housing embodied in Article I, Section 26, brings 
it within the proscriptions of the Fourteenth Amend­
ment.

The new amendment to the California Constitution 
places the state’s legal system squarely behind private 
acts of housing discrimination. The landlord who 
would deny ISTegroes the opportunity to rent or pur­
chase is given the signal to proceed. But discrimi­
nation authorized or encouraged by the state has 
consistently been condemned under the Fourteenth 
Amendment, even though the decision to discriminate 
is left to private choice. See, e.g., Shelley v. Kraemer, 
334 U.S. 1 (1948); Barrows v. Jackson, 346 U.S. 249



49

(1953); Anderson v. Martin, 375 TJ.S. 399 (1964); 
McCabe v. Atchison T. & S. F. Ry., 235 U.S. 151 
(1914) ; Nixon v. Condon, 286 U.S. 73 (1932) ; Roman 
v. Birmingham Transit Company, 280 F'.2d 531 (C.A. 
5, 1960).

The new amendment implicates state agencies in dis­
criminatory practices in a manner no different in 
principle than was the case in Shelley v. Kraemer, 
supra. There the judicial enforcement o f private dis­
criminatory practices was determined to be state 
action within the Fourteenth Amendment. Under the 
new amendment, the state judiciary is brought into 
play on the side of discriminatory practices in an 
equally meaningful way, i.e., through protecting the 
act of discrimination against legal interference. The 
point is illustrated by Abstract Investment Co. v. 
Hutchison, 204 Cal.App.2d 242 (1962), where the 
Court concluded that a Negro might defend an action 
of unlawful detainer by showing that his rental prop­
erty was being taken from him solely on account of 
his color. Article I, Section 26, however, would deprive 
the Negro defendant of his defense on the ground that 
the landlord may decline to rent on any ground he 
chooses. Thus, the California Courts would be re­
quired to strike the defense in a repetition of the 
Abstract Investment case.55 Plainly, if  the federal 
Constitution requires judicial protection against evic­
tion on racial grounds, as held in Abstract Investment,

55This is precisely what occurred below in Hill v. Miller, Sac. 
No. 7657, now pending in this Court.



50

and the new amendment to the state Constitution 
prohibits the judiciary from preventing such an evic­
tion, the federal Constitution and Article I, Section 
26 are at war.

It is sheer sophistry to suggest that the new amend­
ment merely places the state in a neutral position— 
neither encouraging nor discouraging racial discrimi­
nation. Advocates of this view would argue that the 
amendment places the state in the same position as it 
would be in the absence of any legislation relating to 
discrimination in housing. But the enactment of an 
affirmative state policy banning state interference 
with landowners who discriminate against racial mi­
norities cannot be equated with the absence o f stat­
utory law relating to discrimination.

Unlike the situation which would exist if  present 
fair housing legislation were merely repealed, the new 
amendment: (1) prevents the development o f common 
law judicial remedies against private acts of racial 
discrimination, (2) precludes future State and local 
legislative action against private acts of racial dis­
crimination no matter how moderate the action and 
how pressing its need, (3) enshrines in the California 
Constitution the grant of an “ absolute”  right to dis­
criminate on racial and religious grounds. This we 
submit goes far beyond “ neutrality”  and, in substance, 
constitutes action of the State which clearly sanctions 
and encourages private acts of racial discrimination. 
There is, in fact, a difference in kind between state 
refusal to prohibit private acts of racial discrhnina-



51

tion (no fair housing legislation) and where, as here, 
the State by Constitutional amendment makes private 
acts of racial discrimination a protected “ right,”  In 
the former instance, private acts of racial discrimina­
tion are, to be sure, not prevented by legislation, but 
in the latter instance, they are actually encouraged by 
the State.

There can be little doubt that the new amendment 
on its face tends to encourage racial discrimination in 
housing on the part of those who desire to engage in 
it. As observed in Barrows v. Jackson, 346 U.S. 249, 
254 (1953), there is unconstitutional encouragement 
of the practice of writing racially restrictive covenants 
when the state places “ its sanction behind the (dis­
criminatory) covenants.”  Encouragement to discrimi­
nate is surely no less when the state enacts a consti­
tutional provision placing acts o f discrimination 
beyond the reach of the state Courts, the State Legis­
lature and every governmental agency in the state. By 
no stretch of the imagination may this be fairly re­
garded as “neutrality.”  By virtue of Article I, Section 
26, the state has placed its thumb on the scale and 
tipped it in favor of discrimination.

The encouragement and assistance which the new 
amendment affords to discrimination becomes even 
clearer upon consideration of the background events 
which led to its adoption. The measure was spon­
sored by the California Real Estate Association and 
the California Apartment Owners Association, and 
it was made clear during the efforts to obtain 
signatures on the initiative petition that the proposal 
was intended to nullify the Rumford Act and other



52

fair housing laws.56 The official ballot argument in 
favor of the measure disclosed the same purpose.57 It 
is of course general public knowledge that the cam­
paign respecting the proposed amendment was prin­
cipally concerned with the issue o f racial discrimina­
tion. In short, the purpose and expected effect o f the 
measure was to free property owners from legal re­
strictions against discriminatory practices in housing. 
Indeed, racial considerations in the transfer o f prop­
erty constituted the only matters in controversy in 
respect to the amendment; neither proponents nor op­
ponents were in disagreement as to other considera­
tions that might motivate a landowner to decline an 
offer to buy or rent, and there was no occasion to pro­
pose legislation in this respect.58

In light of this single-minded purpose of the new 
amendment, its constitutionality need not be evaluated 
in terms of its language alone. State laws or actions 
which are neutral considered in a vacuum are the

56See, for example, Editorial in Yol. XLIV  Issue No. 2 of Cali­
fornia Real Estate Magazine (Dec. 1963), the official publication 
of the California Real Estate Association, which is reproduced on 
pp. 44-45 of appellant’s opening brief in Hill v. Miller, Sac. No. 
7657.

57The argument asserted that “ Under the Rumford Act, any 
person refused by a property owner may charge discrimination” 
and urged voters to enact the proposed amendment in order to 
free property owners of any such charges.

58The relevance of materials from the official ballot argument 
in determining intent in initiative and referendum measures, par­
ticularly where supported by matters of common knowledge as to 
the issue before the voters, has been recognized by this Court. 
See Reuter v. Board of Supervisors, 220 Cal. 314 (1934) ; San 
Mateo v. Railroad Commission, 9 Cal.2d 1, 8; State Compensation 
Fund v. Riley, 9 Cal.2d 126, 134 (1937).



53

equivalent of unconstitutional discriminatory state 
action where, as in the present case, it can be shown 
by reference to surrounding circumstances that the 
purpose and necessary effect is to bring about racial 
or religious discrimination. For example, in Griffin v. 
School Board, 377 U.S. 218 (1964), the State of V ir­
ginia closed its public schools in one eounty but con­
tinued to operate its public school system, in the other 
counties. The authority of the state to close its schools 
for lawful reasons was unnecessary to consider, since 
the Court concluded on the basis of external circum­
stances surrounding the closing that this was not the 
case. As the Court stated (377 U.S. at 231):

“ * * * (The) public schools were closed and pri­
vate schools operated in their place with state and 
county assistance, for one reason, and one reason 
only: (to discriminate against Negro children).”

In the light o f this revealing motivation, the state 
action took on an unconstitutional aspect. To the same 
effect, see Wright v. Rockefeller, 376 U.S. 52 (1964), 
where the circumstances surrounding a state reappor­
tionment act were inquired into for the purpose of 
ascertaining whether the districts were composed 
“ with racial considerations in mind.” See also, Guinn 
v. United States, 238 U.S. 347 (1915) ; Lane v. Wilson, 
307 U.S. 268 (1939); Gomillion v. Lightfoot, 364 U.S. 
339 (1960).

The external evidence relating to the enactment 
of the new amendment inescapably points to the 
conclusion that it was conceived, prepared, sub­
mitted for signatures, presented to the voters and



54

enacted with a single purpose in mind—emasculating 
fair housing legislation (at least in the field o f indi­
vidual property transactions) and immunizing dis­
criminatory landowners against legal action. In these 
circumstances there is little room for the argument 
that the new amendment does not constitute state en­
couragement o f racial discrimination. Property own­
ers have been told in effect that the state law stands 
behind their declination to sell or rent to Negroes or 
members o f other minority groups. And this is indeed 
the case. I f  the new amendment stands, there is 
neither a statutory nor common law remedy available 
against racial discrimination in individual housing 
sales and rentals. The Fourteenth Amendment, how­
ever, will not permit state involvement of this charac­
ter in discrimination of so invidious a nature, and for 
that reason alone the amendment cannot constitu­
tionally stand.

C. The Fourteenth Amendment Prohibits California From Dis­
abling Itself From Dealing With Matters of Fundamental 
Government Concern.

We have shown supra, pp. 32-36, that Article I, 
Section 26 completely disables state and local legisla­
tive bodies from acting to prevent discrimination in 
the sale and rental of housing. Similarly, the judiciary 
is precluded by the amendment from developing and 
applying common law principles that in any manner 
limit discrimination o f this kind. The amendment in 
one stroke undoes all existing state regulation in this 
field, prohibits future action at any level of state 
government and arbitrarily delegates to private per­



55

sons the sole power to control the discriminatory hous­
ing conditions which contribute to many of Califor­
nia’s serious social problems. But we suggest that the 
strictures o f the Fourteenth Amendment may not be 
so easily avoided in matters of basic governmental re­
sponsibility. The purpose o f the Fourteenth Amend­
ment was to protect the rights of minority groups with 
respect to activities in which, under our political sys­
tem, the state is expected to play a role. State action 
in this sense is necessarily an expanding concept. Gov­
ernmental responsibility has grown with the prolifera­
tion of complex problems in contemporary life. State 
and individual relationships have more numerous 
points, of contact today than in years gone by. The 
Fourteenth Amendment assures the individual that in 
all matters where state responsibility is present, he 
will be accorded equal protection under the law.

As we have shown above in Point II, California is 
scarred by minority group ghettos and segregated 
housing patterns that cause severely harmful effects 
both for the minority groups affected and for the 
public at large. W e have further shown, in Point I I I  
above, that California has fully recognized the exist­
ence of this problem and its responsibility to deal with 
it. Legislative and judicial activity has steadily in­
creased because of the state’s recognition that housing 
discrimination creates problems of great magnitude 
with which government must deal. In these circum­
stances, the necessity at least for the availability of 
government remedial action cannot reasonably be 
denied.



56

This Court has catalogued the problems that may 
be traced at least in part to discrimination in hous­
ing: “ disease, crime and immorality.”  Burks v. Poppy 
Construction Co., 57 Cal.2d 463, 471 (1962). And in 
Jackson v. Pasadena City School District, 59 Cal.2d 
876, 881 (1963), the Court articulated the impact of 
housing discrimination on the schools o f our State: 

“ So long as large numbers of Negroes live in 
segregated areas, school authorities will be con­
fronted with difficult problems in providing Negro 
children with the kind of education they are en­
titled to have. Residential segregation is in itself 
an evil which tends to frustrate the youth in the 
area and to cause antisocial attitudes in behavior. 
Where such segregation exists it is not enough 
for a school board to refrain from affirmative dis­
criminatory conduct. The harmful influence on the 
children will be reflected and intensified in the 
classroom if  school attendance is determined on 
a geographic basis without corrective measures. 
The right to an equal opportunity for education 
and the harmful consequences of segregation re­
quire that school boards take steps, in so far as 
reasonably feasible, to alleviate racial imbalance 
in schools regardless of its cause.”

Anyone familiar with the problems of racial imbalance 
in our urban schools realizes that even the most 
imaginative “ corrective measures”  available to school 
boards seeking to comply with the above mandate 
cannot satisfactorily overcome the obstacles presented 
by residential segregation.

The foregoing problems can be dealt with only 
within the traditional police power of the state. Re­



57

sponsibility to deal with those problems carries with 
it logically the responsibility to deal with their social 
causes, The Supreme Court has recognized this:

“ No legislature can bargain away the public 
health or the public morals. The people them­
selves cannot do it, much less their servants. The 
supervision of both these subjects of governmental 
power is continuing in its nature, and they are to 
be dealt with as the special exigencies of the mo­
ment mag require. Government is organized with 
a view to their preservation, and cannot devest 
(sic) itself o f the power to provide for them. For 
this purpose the legislative discretion is allowed, 
and the discretion cannot be parted with any more 
than the power itself.”  (Emphasis added.) Second 
Slaughter House Case, Butchers’ Union Co. v. 
Crescent City Co., I l l  U.S. 716, 753 (1883). See 
also Home Bldg. Loan Assoc, v. Blaisdell, 290 
U.S. 398, 142, 444 (1934).09

It is suggested that California may still provide 
other means of alleviating the evils of discriminatory 
housing such as slum clearance programs and subsi­
dies to minorities and hence Article I, Section 26 59

59Tlxe unconstitutionality of the instant disablement is further 
demonstrated by analogy to other illegal disablements of funda­
mental power. For example a state cannot disable its courts from 
hearing and granting relief on federal causes of action. Testa v. 
Katt, 330 U.S. 386 (1947). A  government cannot disable its courts, 
even in a wartime emergency, from considering a defense in a 
criminal case that the law being enforced is invalid, unless an 
alternative and effective procedure for reviewing the validity of 
the law is available to the defendant. Yakus v. United States, 321 
U.S. 414 (1944). Similarly, it is extremely doubtful that courts 
could be disabled from exercising the power to issue writs of 
habeas corpus in appropriate cases. See Eisentrager v. Forrestal, 
174 F.2d 961, 965-966 (1949), reversed on other grounds, 339 
U.S. 763 (1950).



58

merely limits the Legislature in its choice of remedies. 
The argument misses the mark completely. It  ignores 
the fact that acts of private discrimination may be 
precisely “ the special exigencies of the moment” re­
quiring legislative supervision as indeed the Rumford 
Act so recognized. W e do not suggest that the Legis­
lature is constitutionally required to pass legislation 
in the nature of a Rumford Act but we do argue that 
it cannot be constitutionally deprived of the right to 
exercise its discretion to do so.

This conclusion also is fully consistent with and 
supported by the assumption made long ago in the 
Civil Bights Cases, 109 U.S. 3, 17 (1883), that redress 
under state law would be available to citizens faced 
with invidious forms of discrimination in their trans­
actions with other individuals.

V. ARTICLE I, SECTION 26 CONSTITUTES AN UNCONSTITU­
TIONAL IMPAIRMENT OF THE RIGHT TO PETITION THE 
GOVERNMENT FOR REDRESS OF GRIEVANCES.

The First Amendment guaranty against abridgment 
of “ the right of the people . . . to petition the Govern­
ment for a redress of grievances”  is applicable 
through the Fourteenth Amendment to the states. 
Brotherhood of R. Trainmen v. Virginia-, 377 U.S. 1 
(1964). The right guaranteed is the right to petition 
the government in any of its many forms. The 
Slaughter House Cases, 83 U.S. (16 Fall.) 36, 79 
(1872) (right to petition the legislature); accord, 
Eastern B. Conf. v. Noerr Motors, 365 U.S. 127, 138



59

(1961) ; Brotherhood of B. Trainmen v. Virginia, 377 
U.S. 1 (1964) (right to petition the courts) ; see 
Brown, The Bight to Petition, 8 U.C.L.A. L.Rev. 729, 
732 (1961). The right to petition, like freedom of 
speech, is a preferred right, a privilege and immunity 
of United States citizenship. Slaughter House Bases, 
83 U.S. (16 Wall.) 36, 79 (1872). As the United States 
Supreme Court said in United States v. Cruikshank, 
92 U.S. 542, 552 (1876) : “ The very idea of a govern­
ment republican in form, implies a right on the part 
of the citizens . . .  to petition for a redress of griev­
ances.”

As we have stated, prior to the adoption o f the new 
amendment California was in a position to hear the 
grievances of its citizens with respect to discrimina­
tion in housing, and to take appropriate remedial 
action in the exercise of its police powers. Today, how­
ever, as the direct result of Article I, Section 26, Cali­
fornia is precluded from dealing with citizens’ 
grievances relating to discrimination in housing. Cali­
fornia is limited to treating only the symptoms but 
not the source o f major social evils. It is analogous to 
allowing the state to provide hospital beds for cholera 
or smallpox victims but disabling it from preventing 
cholera or smallpox through vaccination, or to allow­
ing the state to pimish crimes committed by narcotic 
addicts but disabling it from preventing or controlling 
the sale, possession, or use of narcotics.

It may be suggested that persons in California who 
have grievances concerning discrimination in housing 
and its products of crime, disease, immorality, school



60

segregation and. impairment of the right to acquire 
property, might still petition for a redress o f those 
grievances by constitutional amendment. The pro­
ponents of Proposition 14 then may contend that 
Proposition 14 does not unconstitutionally abridge the 
right of petition because a narrow avenue of relief by 
constitutional amendment is left open.60

In sum, the effort to divest California citizens of 
their right to petition for redress in an area o f vital 
governmental concern cannot constitutionally be ac­
complished under the facts involved here. The right to 
petition for redress of grievances presupposes real, not 
imaginary, authority in the state to deal with matters 
properly within its province. Article I, Section 26 of 
thus inconsistent with the most fundamental tenets of 
governmental operation under the federal constitution, 
and cannot stand.

W e submit that one principle underlying the lan­
guage quoted from the Second Slaughterhouse case, 
supra, page 57, and similar judicial expressions, is

60 There are at least three fundamental weaknesses in sneh a 
contention: (1) The argument proves to much; all disablements 
would be constitutional under such an argument, since the people 
always would be able to upset them through another constitutional 
amendment. (2) The process of constitutional amendment is too 
costly, time consuming and uncertain. (3) The California Consti­
tution expressly recognizes that the crucial and most important 
right of petition to the government of California is the right to 
petition the California Legislature, the agency that, is equipped to 
redress the grievances in a practical, effective and efficient manner. 
Calif. Const. Art. I, Section 10. See Brown, The Right to Petition, 
8 U.C.L.A. L.Bev. 729 (1961). The slow process of constitutional 
amendment is not an adequate substitute for the traditional police 
powers of the Legislature.



61

that the legislature of a state must generally be able 
to respond to the petitions of its citizens on matters of 
vital public concern and that the majority o f the 
voters of a state cannot, except in limited instances, 
preclude the legislature from responding to such peti­
tions. Could, for example, a majority o f voters pre­
clude the state legislature from interfering with the 
“ absolute right”  of landowners to build structures for 
any use without regard to safety? Could the state 
legislature be precluded from interfering with the 
“ absolute right”  of property owners to discharge such 
substances into the air and/or water as they saw fit?

The answer we submit has been clearly articulated 
by the United States Supreme Court:

“  No legislature can bargain away the public 
health or morals. The people themselves cannot 
do it, much less their servants. Subversion of both 
the subjects of governmental power is continuing 
in its nature, and they are to be dealt with as the 
special agencies of the moment may require”  
(Second Slaughterhouse case, p. 57).

W e do not suggest that a majority of voters by 
initiative measure may never divest a state legislature 
of power over a particular subject. We submit that 
the right to petition, like other rights contained in the 
First Amendment, is not an absolute right and may 
be curtailed by precluding legislature response to a 
petition when on balance the legislative disablement is 
justified by considerations of public health and morals. 
We submit, however, that where, as here, there are 
present serious social evils and the disablement would



62

prevent the legislature from attacking their source, 
there must be a benefit to the public health and morals 
underlying the disablement which outweighs the detri­
ments to the public health and morals resulting from 
it. We submit that in the instant case, there is no such 
justification for the disablement, and that it cannot be 
said that, on balance, it is justified by considerations 
of public health and morals.

VI. THE CONSTITUTIONAL DEFECTS IN ARTICLE I, SECTION 
26 RENDER IT COMPLETELY VOID.

The bare language of Article I, Section 26 is not 
specifically directed to racial or religious grounds for 
discrimination, but purports to remove state power to 
act with respect to any declination by the owner to 
sell or rent, whatever his reasons. It may be argued, 
therefore, that the amendment is susceptible to some 
yet undefined constitutional applications and that the 
Court should therefore refrain from declaring it un­
constitutional on its face. While we would have no 
serious objection to the Court’s limiting its decision 
to the unconstitutional aspects of the new amendment, 
we suggest that the amendment, considered in the 
light of its purpose, does not warrant such judicial 
restraint. The constitutional defects we have outlined 
go to the very heart of the measure. The effect of the 
federal Constitution on the amendment is such that 
it is stripped of its substance, and nothing of impor­
tance in terms of its intendment remains. Absent an 
application in the field of racial discrimination, it is



63

plain that there would have been no occasion for the 
amendment to have been proposed.61

A  further reason for invalidating the amendment 
as a whole lies in its deterrent effect, in view of the 
breadth of its language, upon the enjoyment of the 
basic constitutional protections against improper dis­
crimination in the acquisition of property. It is well 
settled that when a law affecting constitutional rights 
is drawn so broadly that it discourages the exercise of 
those freedoms by persons fully entitled to do so, that 
law will be struck down in its entirety. Thus, in 
Smith v. California, 361 U.S. 147, 150-151 (1959), in 
striking down a Los Angeles ordinance imposing strict 
liability on sellers of obscene books, the Supreme 
Court said:

“ Our decisions furnish examples of legal devices 
and doctrines, in most applications consistent with 
the Constitution, which cannot be applied in set­
tings where they have the collateral effect of in­
hibiting the freedom of expression, bv making the 
individual the more reluctant to exercise it . . .  It 
has been stated here that the usual doctrines as 
to the separability of constitutional and unconsti­
tutional applications of statutes may not apply 
where their effect is to leave standing a statute 
patently capable of many unconstitutional appli­
cations, threatening those who validly exercise 
their rights of free expression with the expense 
and inconvenience of criminal prosecution. Thorn­
hill v. Alabama, 310 U.S. 88, 97, 98 . . . Cf. Staub

61See p. 9, supra.



64

v. Baxley, 355 U.S. 313 . . . And this Court has 
intimated that stricter standards o f permissible 
statutory vagueness may be applicable to a statute 
having a potentially inhibiting effect on speech ..

See also, Aptheker v. Secretary of State, 12 L.ed. 2d 
992, 1003 (1964) ; Thornhill v. Alabama, 310 U.S. 88, 
97-98 (1940); Carlson v. California, 310 U.S. 106 
(1940).

The breadth of Article I, Section 26 has the inevi­
table effect of deterring members of minority groups 
from seeking remedies for discriminatory practices 
against them in the field o f housing. The general word­
ing of the amendment stands as a governmental policy 
favoring a right o f landowners to discriminate on any 
ground they choose. The few speculative constitutional 
applications the amendment might have are inconse­
quential in comparison to the evils it was intended to 
perpetuate. The amendment must be struck down 
entirely if  its deterrent effects are to be fully elim­
inated.



65

CONCLUSION

For the reasons stated, this Court should declare 
Article I, Section 26 of the California Constitution to 
be in violation of the federal Constitution and there­
fore completely void.
May, 1965.

Respectfully submitted,
D u a n e  B . B eeson  
S e y m o u r  F akber  
R obert H . L a w s , J r .
H ow ard  N e m e r o v s k i, 

Attorneys for Amici Curiae.
Of Counsel:

J oseph  B . R obison 
R obert M . 0  ’N e il  
E p h r a im  M argolin