Reitman v. Mulkey

Decision Date29 May 1967
Docket NumberNo. 483,483
Citation387 U.S. 369,18 L.Ed.2d 830,87 S.Ct. 1627
PartiesNeil REITMAN et al., Petitioners, v. Lincoln W. MULKEY et al
CourtU.S. Supreme Court

Samuel O. Pruitt, Jr., Los Angeles, Cal., for petitioners.

Herman F. Selvin and A. L. Wirin, Los Angeles, Cal., for respondents.

Sol. Gen. Thurgood Marshall for the United States, as amicus curiae, by special leave of Court.

Mr. Justice WHITE delivered the opinion of the Court.

The question here is whether Art. I, § 26, of the California Constitution denies 'to any person * * * the equal protection of the laws' within the meaning of the Fourteenth Amendment of the Constitution of the United States. 1 Section 26 of Art. I, an initiated measure sub- mitted to the people as Proposition 14 in a statewide ballot in 1964, provides in part as follows:

'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 real property covered by § 26 is limited to residential property and contains an exception for state-owned real estate.2 The issue arose in two separate actions in the California courts, Mulkey v. Reitman and Prendergast v. Snyder. In Reitman, the Mulkeys who are husband and wife and respondents here, sued under § 51 and § 52 of the California Civil Code3 alleging that petitioners had refused to rent them an apartment solely on account of their race. An injunction and damages were demanded. Petitioners moved for summary judgment on the ground that §§ 51 and 52, insofar as they were the basis for the Mulkeys' action, had been rendered null and void by the adoption of Proposition 14 after the filing of the complaint. The trial court granted the motion and respondents took the case to the California Supreme Court.

In the Prendergast case, respondents, husband and wife, filed suit in December 1964 seeking to enjoin eviction from their apartment; respondents alleged that the eviction was motivated by racial prejudice and therefore would violate § 51 and § 52 of the Civil Code. Petitioner Snyder cross-complainedfo r a judicial declaration that he was entitled to terminate the month-to-month tenancy even if his action was based on racial considerations. In denying petitioner's motion for summary judgment, the trial court found it unnecessary to consider the validity of Proposition 14 because it concluded that judicial enforcement of an eviction based on racial grounds would in any event violate the Equal Protection Clause of the United States Constitution.4 The cross-complaint was dismissed with prejudice5 and petitioner Snyder appealed to the California Supreme Court which considered the case along with Mulkey v. Reitman. That court, in reversing the Reitman case, held that Art. I, § 26, was invalid as denying the equal protection of the laws guaranteed by the Fourteenth Amendment. 64 Cal.2d 529, 50 Cal.Rptr. 881, 413 P.2d 825. For similar reasons, the court affirmed the judgment in the Prendergast case. 64 Cal.2d 877, 50 Cal.Rptr. 903, 413 P.2d 847. We granted certiorari because the cases involve an important issue arising under the Fourteenth Amendment. 385 U.S. 967, 87 S.Ct. 500, 17 L.Ed.2d 431.

We affirm the judgments of the California Supreme Court. We first turn to the opinion of that court in Reitman, which quite properly undertook to examine the constitutionality of § 26 in terms of its 'immediate objective,' its 'ultimate effect' and its 'historical context and the conditions existing prior to its enactment.' Judgments such as these we have frequently undertaken ourselves. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169; Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; Robinson v. State of Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771; Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762; Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430. But here the California Supreme Court has addressed itself to these mat- ters and we should give careful consideration to its views because they concern the purpose, scope, and operative effect of a provision of the California Constitution.

First, the court considered whether § 26 was concerned at all with private discriminations in residential housing. This involved a review of past efforts by the California Legislature to regulate such discriminations. The Unruh Act, Civ.Code §§ 51—52, on which respondents based their cases, was passed in 1959. 6 The Hawkins Act, formerly Health & Safety Code §§ 35700—35741, followed and prohibited discriminations in publicly assisted housing. In 1961, the legislature enacted proscriptions against restrictive covenants. Finally, in 1963, came the Rumford Fair Housing Act, Health & Safety Code §§ 35700—35744, superseding the Hawkins Act and prohibiting racial discriminations in the sale or rental of any private dwelling containing more than four units. That act was enforceable by the State Fair Employment Practice Commission.

It was against this background that Proposition 14 was enacted. Its immediate design and intent, the California court said, were 'to overturn state laws that bore on the right of private sellers and lessors to discriminate,' the Unruh and Rumford Acts, and 'to forestall future state action that might circumscribe this right.' This aim was successfully achieved: the adoption of Proposition 14 'generally nullifies both the Rumford and Unruh Acts as they apply to the housing mrk et,' and establishes 'a purported constitutional right to privately discriminate on grounds which admittedly would be unavailable under the Fourteenth Amendment should state action be involved.'

Second, the court conceded that the State was permitted a neutral position with respect to private racial discriminations and that the State was not bound by the Federal Constitution to forbid them. But, because a significant state involvement in private discriminations could amount to unconstitutional state action, Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, the court deemed it necessary to determine whether Proposition 14 invalidly involved the State in racial discriminations in the housing market. Its conclusion was that it did.

To reach this result, the state court examined certain prior decisions in this Court in which discriminatory state action was identified. Based on these cases, Robinson v. State of Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771; Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430; Barrows v. Jackson, 346 U.S. 249, 254, 73 S.Ct. 1031, 1033, 97 L.Ed. 1586; McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169, it concluded that a prohibited state involvement could be found 'even where the state can be charged with only encouraging,' rather than commanding discrimination. Also of particular interest to the court was Mr. Justice Stewart's concurrence in Burton v. Wilmington Parking Authority, 365 U.S. 715, 726, 81 S.Ct. 856, 862, 6 L.Ed.2d 45, where it was said that the Delaware courts had construed an existing Delaware statute as 'authorizing' racial discrimination in restaurants and that the statute was therefore invalid. To the California court '(t)he instant case presents an undeniably analogous situation' wherein the State had taken affirmative action designed to make private discriminations legally possible. Section 26 was said to have changed the situation from one in which discrimination was restricted 'to one wherein it is encouraged, within the meaning of the cited decisions'; § 26 was legislative action 'which authorized private discrimination' and made the State 'at least a partner in the instant act of discrimination * * *.' The court could 'conceive of no other purpose for an application of section 26 aside from authorizing the perpetration of a purported private discrimination * * *.' The judgment of the California court was that § 26 unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment.

There is so sound reason for rejecting this judgment. Petitioners contend that the California court has misconstrued the Fourteenth Amendment since the repeal of any statute prohibiting racial discrimination, which is constitutionally permissible, may be said to 'authorize' and 'encourage' discrimination because it makes legally permissible that which was formerly proscribed. But, as we understand the California court, it did not posit a constitutional violation on the mere repeal of the Unruh and Rumford Acts. It did not read either our cases or the Fourteenth Amendment as establishing an automatic constitutional barrier to the repeal of an existing law prohibiting racial discriminations in housing; nor did the court rule that a State may never put in statutory form an existing policy of neutrality with respect to private discriminations. What the court below did was first to reject the notion that the State was required to have a statute prohibiting racial discriminations in housing. Second, it held the intent of § 26 was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with § 26 as though it expressly authorized and constitutionalized the private right to discriminate. Third t he court assessed the ultimate impact of § 26 in the California environment and concluded that the section would encourage and significantly involve the State in private racial...

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