Thomie v. Dennard Brief for Plaintiffs-Appellants

    IN  T H E

Supreme Court of the United States
October Term, 1949

No. I l l

GLEN H. TAYLOR,

vs.
Petitioner,

CITY OF BIRMINGHAM, ALABAMA.

BRIEF FOR THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE AS AMICUS 
CURIAE IN SUPPORT OF PETITION FOR CERTIORARI.

T httbgood M arshall ,
C onstance B aker M otley,
J ack  G reenberg,

Attorneys for National Asso­
ciation for the Advancement 
of Colored People,

20 West 40th Street, 
New York 18, N. Y.



TABLE OF CASES

PAGE

Buchanan v. War ley, 245 U. S. 6 0 ___________________  3

McLaurin v. Oklahoma,____U. S---------, 70 Sup. Ct. 851 3

Morgan v. Virginia, 328 U. S. 373 ____________________  3

Nixon v. Condon, 286 U. S. 76 (1932) _______________  2

Shelley v. Kraemer, 334 U. S. 1 _____________________  3

Smith v. Allwright, 321 U. S. 649_____________________  2

Sweatt v. Painter,____U. S .____ , 70 Sup. Ct, 848 ____ 3

Other Authority-

Stern and Gressman, Supreme Court Practice 1950___ 3



1ST T H E

Supreme Court of the United States
October Term, 1949

No. I l l

Glen  H . T aylor,
Petitioner,

vs.

C it y  oe B ir m in g h a m , A labam a .

BRIEF FOR THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE AS AMICUS 
CURIAE IN SUPPORT OF PETITION FOR CERTIORARI.

The National Association for the Advancement of 
Colored People files this brief as amicus curiae, consent to 
do so having been granted by counsel for petitioner and 
respondent. The National Association for the Advance­
ment of Colored People is interested in the issue of state- 
enforced racial segregation here presented because racial 
segregation is a central problem in the field of race rela­
tions in which the Association has labored for more than 
forty years. During its long and intimate concern with 
problems of racial disharmony, the Association has fought 
segregation with every legitimate weapon at its command 
because racial separation not only frustrates the practice 
of democracy at home, but because it also—at great cost to



2

the nation—impairs the regard in which America is held 
abroad. It is filing this brief because it believes that the 
state-enforced separation, upon which the prosecution 
herein is based, should be struck down by this Court, and 
that the petition for certiorari should be granted.

The Association is of the opinion that the issues pre­
sented are adequately discussed in petitioner’s brief. 
Herein it merely desires to state its concurrence in the 
arguments there presented, and to perhaps touch upon 
some new matter.

The facts are presented in petitioner’s brief (pp. 3-6), 
and there is no need to repeat them here. They make it 
clear that petitioner’s arrest was for the purpose of en­
forcing Section 859(b) of the 1944 Code of the City of Bir­
mingham (see Appendix A ). Any interpretation which 
founds the arrest and conviction upon grounds not includ­
ing this statute is an attempt to substitute illusion for sub­
stance. This Court has demonstrated that where civil 
rights are involved it will characterize the facts itself and 
base its decision on the real issues. For example, in cases 
involving the rights of Negroes to vote in so-called “ white 
primaries” , despite the characterization of certain political 
parties as private clubs by state and inferior federal courts, 
this Court immediately went to the real issue (Smith v. All- 
wright, 321 IT. S. 649; Nixon v. Condon, 286 U. S. 76 (1932)).

As amicus curiae, the Association urges that certiorari 
be granted for the reason that the decision of the state 
court below is in conflict with applicable decisions of this 
Court. A  federal question of substance—the constitu­
tionality of Section 859 of the 1944 Code of the City of 
Birmingham, which orders racial segregation—has been de­
cided by the Supreme Court of the State of Alabama despite 
its disavowals of this fact. This question has been decided



3

in a way not in accord with applicable decisions of this 
Court—which have consistently struck down racial segre­
gation and discrimination. These cases, be they concerned 
with transportation (Morgan v. Virginia, 328 U. S. 373),
education (Sweatt v. Painter,   U. S . ____, 70 Sup. Ct.
848; McLaurin v. Oklahoma, ____ IT. S. ___ , 70 Sup. Ct.
851), voting (Smith v. Allwright, supra; Nixon v. Condon, 
supra), zoning (Buchanan v. Warley, 245 tl. S. 60), or re­
strictive covenants (Shelley v. Kraemer, 334 U. S. 1), have 
asserted and demonstrated that state-enforced racial seg­
regation is repugnant to the Constitution. Therefore, the 
action of the State of Alabama in upholding racial segre­
gation in the face of this Court’s uniform disapproval 
thereof is in conflict with applicable decisions of this Court.

It may be argued that the conflict is merely one of prin­
ciple and not a real conflict in the application of the rules 
of law. (See Stern and Gressman, Supreme Court Practice 
1950, p. 100.) Amicus curiae urges that this is not the case. 
Segregation is essentially the same wherever practiced. 
By one means or another the Court has given it essentially 
the same treatment whenever the question has been pre­
sented. The decision of the Supreme Court of Alabama 
upholds state-enforced segregation—the decisions all cited 
above struck down segregation.

However, if the Court is of the opinion that a conflict 
of decisions concerning segregation in public assembly is 
the conflict required to grant certiorari in this case, then 
another reason presents itself for which certiorari should 
be granted. There are no decisions in this Court of which 
amicus curiae knows dealing with this specific matter. In a 
matter of such transcendent importance, a declaration of 
the law as to state-enforced segregation in public assembly 
would be of utmost importance. The importance and need 
for such a declaration need not be set forth in detail. The



4

Court is fully aware of them—it has demonstrated this 
awareness by its consideration of case after case dealing 
with the race relations problem.

Respectfully submitted,

T htjbgood M arshall ,
C onstance B aker  M otley,
J ack  G reenberg,

Attorneys for National Asso­
ciation for the Advancement 
of Colored People.



5

APPENDIX A
General City Code of Birmingham

Segregation Ordinance

S ection 859. S eparation of E aces.

(a) It shall be unlawful for any person in charge or 
control of any room, hall, theatre, picture house, audi­
torium, yard, court, ball park, public park, or other indoor 
or outdoor place, to which both white persons and Negroes 
are admitted, to cause, permit or allow therein or thereon 
any theatrical performance, picture exhibition, speech, or 
educational or entertainment program of any kind whatso­
ever, unless such room, hall, theatre, picture house, audi­
torium, yard, court, ball park, or other place, has entrances, 
exits and seating or standing sections set aside for and 
assigned to the use of white persons, and other entrances, 
exits and seating or standing sections set aside for and 
assigned to the use of Negroes, and unless the entrances, 
exits and seating or standing sections set aside for and 
assigned to the use of white persons are distinctly sepa­
rated from those set aside for and assigned to the use of 
Negroes, by well defined physical barriers, and unless the 
members of each race are effectively restricted and con­
fined to the sections set aside for and assigned to the use 
of such race.

(b) It shall be unlawful for any member of one race to 
use or occupy any entrance, exit or seating or standing 
section set aside for and assigned to the use of members 
of the other race.

(c) It shall be unlawful for any person to conduct, par­
ticipate in or engage in any theatrical performance, picture



6

exhibition, speech, or educational or entertainment pro­
gram of any kind whatsoever, in any room, hall, theatre, 
picture house, auditorium, yard, court, ball park, public 
park, or other indoor or outdoor place, knowing that any 
provision of the two preceding subdivisions has not been 
complied with.

(d) The chief of police and members of the police de­
partment shall have the right, and it shall be their duty, 
to disperse any gathering or assemblage in violation of 
this section, and to arrest any person guilty of violating 
the same.