# Barrows v. Jackson/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Vinson
United States Supreme Court
346 U.S. 249
Barrows v. Jackson
Argued: April 28, 29, 1953. --- Decided: June 15, 1953
This Court held in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, that racial restrictive covenants could not be enforced in equity against Negro purchasers because such enforcement would constitute state action denying equal protection of the laws to the Negroes, in violation of the Fourteenth Amendment to the Federal Constitution. The question we now have is: Can such a restrictive covenant be enforced at law by a suit for damages against a co-covenantor who allegedly broke the covenant?
Petitioners sued respondent at law for damages for breach of a restrictive covenant the parties entered into as owners of residential real estate in the same neighborhood in Los Angeles, California. The petitioners' complaint alleged in part:
'That by the terms of said Agreement each of the signers promised and agreed in writing and bound himself, his heirs, executors, administrators, successors, and assigns, by a continuing covenant that no part of his said real property, described therein, should ever at any time be used or occupied by any person or persons not wholly of the white or Caucasian race, and also agreed and promised in writing that this restriction should be incorporated in all papers and transfers of lots or parcels of land hereinabove referred to; provided, however, that said restrictions should not prevent the employment by the owners or tenants of said real property of domestic servants or other employees who are not wholly of the white or Caucasian race; provided, further, however, that such employees shall be permitted to occupy said real property only when actively engaged in such employment. That said Agreement was agreed to be a covenant running with the land. That each provision in said Agreement was for the benefit for all the lots therein described.'
The complaint further alleged that respondent broke the covenant in two respects: (1) by conveying her real estate without incorporating in the deed the restriction contained in the covenant; and (2) by permitting non-Caucasians to move in and occupy the premises. The trial court sustained a demurrer to the complaint, the District Court of Appeals for the Second Appellate District affirmed, 112 Cal.App.2d 534, 247 P.2d 99, and the Supreme Court of California denied hearing. We granted certiorari, 345 U.S. 902, 73 S.Ct. 644, because of the importance of the constitutional question involved and to consider the conflict which has arisen in the decisions of the state courts since our ruling in the Shelley case, supra. Like the California court in the instant case, the Supreme Court of Michigan sustained the dismissal of a claim for damages for breach of a racial restrictive covenant, Phillips v. Naff, 332 Mich. 389, 52 N.W.2d 158. See also Roberts v. Curtis, D.C., 93 F.Supp. 604. The Supreme Court of Missouri reached a contrary result, Weiss v. Leaon, 359 Mo. 1054, 225 S.W.2d 127, while the Supreme Court of Oklahoma has held that a claim for damages may be maintained against a white seller, an intermediate straw man, and a non-Caucasian purchaser for a conspiracy to violate the covenant, Correll v. Earley, 205 Okl. 366, 237 P.2d 1017.
The trial court in the case here held a party to a covenant restricting use and occupancy of real estate to Caucasians could not maintain a suit at law against a co-covenantor for breach of the covenant because of our ruling in Shelley, supra. In Shelley, this Court held that the action of the lower courts in granting equitable relief in the enforcement of such covenants constituted state action denying to Negroes, against whom the covenant was sought to be enforced, equal protection of the laws in violation of the Fourteenth Amendment. This Court said:
'We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated. * * *' 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161.
That is to say, the law applicable in that case did not make the covenant itself invalid, no one would be punished for making it, and no one's constitutional rights were violated by the covenantor's voluntary adherence thereto. Such voluntary adherence would constitute individual action only. When, however, the parties cease to rely upon voluntary action to carry out the covenant and the State is asked to step in and give its sanction to the enforcement of the covenant, the first question that arises is whether a court's awarding damages constitutes state action under the Fourteenth Amendment. To compel respondent to respond in damages would be for the State to punish her for her failure to perform her covenant to continue to discriminate against non-Caucasians in the use of her property. 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 sanction behind the covenants. If the State may thus punish respondent for her failure to carry our 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. The action of a state court at law to sanction the validity of the restrictive covenant here involved would constitute state action as surely as it was state action to enforce such covenants in equity, as in Shelley, supra.
The next question to emerge is whether the state action in allowing damages deprives anyone of rights protected by the Constitution. If a state court awards damages for breach of a restrictive covenant, a prospective seller of restricted land will either refuse to sell to non-Caucasians or else will require non-Caucasians to pay a higher price to meet the damages which the seller may incur. Solely because of their race, non-Caucasians will be unable to purchase, own, and enjoy property on the same terms as Caucasians. Denial of this right by state action deprives such non-Caucasians, unidentified but identifiable, of equal protection of the laws in violation of the Fourteenth Amendment. See Shelley, supra.
But unlike Shelley, supra, no non-Caucasian is before the Court claiming to have been denied his constitutional rights. May respondent, whom petitioners seek to coerce by an action to pay damages for her failure to honor her restrictive covenant, rely on the invasion of the rights of others in her defense to this action?
Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party. Reference to this rule is made in varied situations. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149-154, 71 S.Ct. 624, 636 639, 95 L.Ed. 817 (concurring opinion). The requirement of standing is often used to describe the constitutional limitation on the jurisdiction of this Court to 'cases' and 'controversies.' See Coleman v. Miller, 307 U.S. 433, 464, 59 S.Ct. 972, 986, 83 L.Ed. 1385 (concurring opinion). Apart from the jurisdictional requirement, this Court has developed a complementary rule of self-restraint for its own governance (not always clearly distinguished from the constitutional limitation) which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348, 56 S.Ct. 466, 482-483, 80 L.Ed. 688 (concurring opinion). The common thread underlying both requirements is that a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation. This principle has no application to the instant case in which respondent has been sued for damages totaling $11,600, and in which a judgment against respondent would constitute a direct, pocketbook injury to her.
There are still other cases in which the Court has held that even though a party will suffer a direct substantial injury from application of a statute, he cannot challenge its constitutionality unless he can show that he is within the class whose constitutional rights are allegedly infringed. Bode v. Barrett, 344 U.S. 583, 585, 73 S.Ct. 468, 470; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576, 35 S.Ct. 167, 169, 59 L.Ed. 364; People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160 161, 27 S.Ct. 188, 190, 51 L.Ed. 415; see also Tennessee Elec. Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 144, 59 S.Ct. 366, 372, 83 L.Ed. 543. One reason for this ruling is that the state court, when actually faced with the question, might narrowly construe the statute to obliterate the objectionable feature, or it might declare the unconstitutional provisions separable. People of State of New York ex rel. Hatch v. Reardon, supra, 204 U.S. at pages 160-161, 35 S.Ct. at pages 190-191, 59 L.Ed. 364; Wuchter v. Pizzutti, 276 U.S. 13, 26-28, 48 S.Ct. 259, 263-264, 72 L.Ed. 446 (dissenting opinion). It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. Nor are we so ready to frustrate the expressed will of Congress or that of the state legislatures. Cf. Southern Pacific Co. v. Gallagher, 306 U.S. 167, 172, 59 S.Ct. 389, 391, 83 L.Ed. 586.
This is a salutary rule, the validity of which we reaffirm. But in the instant case, we are faced with a unique situation in which it is the action of the state court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another's rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained. Cf. Quong Ham Wah Co. v. Industrial Acc. Comm., 184 Cal. 26, 192 P. 1021, 12 A.L.R. 1190.
In other unique situations which have arisen in the past, broad constitutional policy has led the Court to proceed without regard to its usual rule. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, a state statute required all parents (with certain immaterial exceptions) to send their children to public schools. A private and a parochial school brought suit to enjoin enforcement of the act on the ground that it violated the constitutional rights of parents and guardians. No parent or guardian to whom the act applied was a party or before the Court. The Court held that the act was unconstitutional because it 'unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.' Pierce v. Society of Sisters, supra, 268 U.S. at pages 534-535, 45 S.Ct. at page 573. In short the schools were permitted to assert in defense of their property rights and constitutional rights of the parents and guardians. See also Joint Anti-Fascist Refugee Comm. v. McGrath, supra, 341 U.S. at pages 141, 153-154, 71 S.Ct. at pages 632, 638, 639, 95 L.Ed. 817; Columbia Broadcasting System v. United States, 316 U.S. 407, 422 423, 62 S.Ct. 1194, 1202, 1203, 86 L.Ed. 1563; Helvering v. Gerhardt, 304 U.S. 405, 58 S.Ct. 969, 82 L.Ed. 1427; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; United States v. Railroad Co., 17 Wall. 322, 21 L.Ed. 597; Quong Ham Wah Co. v. Industrial Acc. Comm., supra; cf. United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59; Federal Communications Comm. v. Sanders Brothers Radio Station, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037; Wuchter v. Pizzutti, supra.
There is such a close relationship between the restrictive covenant here and the sanction of a state court which would punish respondent for not going forward with her covenant, and the purpose of the covenant itself, that relaxation of the rule is called for here. It sufficiently appears that mulcting in damages of respondent will be solely for the purpose of giving vitality to the restrictive covenant, that is to say, to punish respondent for not continuing to discriminate against non-Caucasians in the use of her property. This Court will not permit or require California to coerce respondent to respond in damages for failure to observe a restrictive covenant that this Court would deny California the right to enforce in equity, Shelley, supra; or that this Court would deny California the right to incorporate in a statute, Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; or that could not be enforced in a federal jurisdiction because such a covenant would be contrary to public policy:
'It is not consistent with the public policy of the United States to permit federal courts in the Nation's capital to exercise general equitable powers to compel action denied the state courts where such state action has been held to be violative of the guaranty of the equal protection of the laws. We cannot presume that the public policy of the United States manifests a lesser concern for the protection of such basic rights against discriminatory action of federal courts than against such action taken by the courts of the States.' Hurd v. Hodge, 344 U.S. 24, 35-36, 68 S.Ct. 847, 853, 92 L.Ed. 1187. See also Roberts v. Curtis, supra.
Consistency in the application of the rules of practice in this Court does not require us in this unique set of circumstances to put the State in such an equivocal position simply because the person against whom the injury is directed is not before the Court to speak for himself. The law will permit respondent to resist any effort to compel her to observe such a covenant, so widely condemned by the courts, since she is the one in whose charge and keeping reposes the power to continue to use her property to discriminate or to discontinue such use. The relation between the coercion exerted on respondent and her possible pecuniary loss thereby is so close to the purpose of the restrictive covenant, to violate the constitutional rights of those discriminated against, that respondent is the only effective adversary of the unworthy covenant in its last stand. She will be permitted to protect herself and, by so doing, close the gap to the use of this covenant, so universally condemned by the courts.
Petitioners argue that the right to equal protection of the laws is a 'personal' right, guaranteed to the individual rather than to groups or classes. For instance, discriminatory denial of sleeping and dining-car facilities to an individual Negro cannot be justified on the ground that there is little demand for such facilities by Negroes as a group. McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 161-162, 35 S.Ct. 69, 71, 59 L.Ed. 169. See Sweatt v. Painter, 339 U.S. 629, 635, 70 S.Ct. 848, 850, 94 L.Ed. 1114. This description of the right as 'personal,' when considered in the context in which it has been used, obviously has no bearing on the question of standing. Nor do we violate this principle by protecting the rights of persons not identified in this record. For instance, in the Pierce case, the persons whose rights were invoked were identified only as 'present and prospective patrons' of the two schools. Pierce v. Society of Sisters, supra, 268 U.S. at page 535, 45 S.Ct. at page 573, 69 L.Ed. 1070. In the present case, it is not non-Caucasians as a group whose rights are asserted by respondent, but the rights of particular non-Caucasian would-be users of restricted land.
It is contended by petitioners that for California courts to refuse to enforce this covenant is to impair the obligations of their contracts. Article I, § 10, of the Federal Constitution provides: 'No State shall * * * pass any * * * Law impairing the Obligation of Contracts * * *.' The short answer to this contention is that this provision, as its terms indicate, is directed against legislative action only.
'It has been settled by a long line of decisions, that the provision of section 10, article 1, of the federal Constitution, protecting the obligation of contracts against state action, is directed only against impairment by legislation and not by judgments of courts. * * *' Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451, 44 S.Ct. 197, 198, 68 L.Ed. 382.
It is finally contended that petitioners are denied due process and equal protection of the laws by the failure to enforce the covenants. The answer to that proposition is stated by the Court in Shelley, supra, in these words:
'The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. * * *' 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161.
The judgment is affirmed.
Affirmed.
Mr. Justice REED and Mr. Justice JACKSON took no part in the consideration or decision of this case.
Mr. Chief Justice VINSON, dissenting.

## Notes

* ↑ Petitioner Pikaar was not a signer of the covenant but is successor in interest of a signer.
* ↑ There is no question of restraint of sale here, as agreements restraining sale of land to members of defined racial groups have long been held unenforceable in California because they contravened the State's statutory rule and public policy against restraints on alienation. Wayt v. Patee, 205 Cal. 46, 269 P. 660; Title Guarantee & Trust Co. v. Garrott, 42 Cal.App. 152, 183 P. 470.
* ↑ See Frothingham v. Mellon, 262 U.S. 447, 486-489, 43 S.Ct. 597, 600-601, 67 L.Ed. 1078 (federal taxpayer sought to challenge a federal statute in the enforcement of which federal revenues were applied); Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (state taxpayer unable to show that there was 'a measurable appropriation or disbursement of * * * funds occasioned solely by the (state) activities complained of'); Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (doctor sought a declaratory judgment that a state statute would deprive certain of his patients of their lives without due provess of law); Tyler v. The Judges, 179 U.S. 405, 410, 21 S.Ct. 206, 208, 45 L.Ed. 252 (landowner sought to challenge the notice provisions for a land registration proceeding in which he had not made himself a party, although he had notice of the proceedings, and even though 'his interest in the land would remain unaffected' if the act were subsequently declared unconstitutional); Gange Lumber Co. v. Rowley, 326 U.S. 295, 66 S.Ct. 125, 90 L.Ed. 85; Alabama Power Co. v. Ickes, 302 U.S. 464, 478-480, 58 S.Ct. 300, 301-304, 82 L.Ed. 374; cf. McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 162-164, 35 S.Ct. 69, 71-72, 59 L.Ed. 169 (four Negroes who sought to enjoin enforcement of discriminatory state action denied relief on the ground that they failed to allege that they themselves had suffered, or were about to suffer, discriminatory treatment for which there was no adequate remedy at law). And compare Doremus v. Board of Education, supra, with Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 206, 234, 68 S.Ct. 461, 462-476, 92 L.Ed. 649.
* ↑ Cf. Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312; Hale v. Henkel, 201 U.S. 43, 69-70, 26 S.Ct. 370, 376-377, 50 L.Ed. 652, and the lower court cases which restrict to the person whose premises were invaded the right to have illegally-seized evidence excluded. The rights in these cases are obviously closely linked to the person of the individual.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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