# Reitman v. Mulkey/Opinion of the Court

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United States Supreme Court
387 U.S. 369
Reitman v. Mulkey
Argued: March 20 and 21, 1967. --- Decided: May 29, 1967
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. Section 26 of Art. I, an initiated measure submitted 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.
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 Code 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. The cross-complaint was dismissed with prejudice 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 matters 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. 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 discrimination contrary to the Fourteenth Amendment.
The California court could very reasonably conclude that § 26 would and did have wider impact than a mere repeal of existing statutes. Section 26 mentioned neither the Unruh nor Rumford Act in so many words. Instead, it announced the constitutional right of any person to decline to sell or lease his real property to anyone to whom he did not desire to sell or lease. Unruh and Rumford were thereby pro tanto repealed. But the section struck more deeply and more widely. Private discriminations in housing were now not only free from Rumford and Unruh but they also enjoyed a far different status than was true before the passage of those statutes. The right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government. Those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources. All individuals, partnerships, corporations and other legal entities, as well as their agents and representatives, could now discriminate with respect to their residential real property, which is defined as any interest in real property of any kind or quality, 'irrespective of how obtained or financed,' and seemingly irrespective of the relationship of the State to such interests in real property. Only the State is excluded with respect to property owned by it.
This Court has never attempted the 'impossible task' of formulating an infallible test for determining whether the State 'in any of its manifestations' has become significantly involved in private discriminations. 'Only by sifting facts and weighing circumstances' on a case-by-case basis can a 'nonobvious involvement of the State in private conduct be attributed its true significance.' Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860. Here the California court, armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of § 26, and familiar with the milieu in which that provision would operate, has determined that the provision would involve the State in private racial discriminations to an unconstitutional degree. We accept this holding of the California court.
The assessment of § 26 by the California court is similar to what this Court has done in appraising state statutes or other official actions in other contexts. In McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169, the Court dealt with a statute which, as construed by the Court, authorized carriers to provide cars for white persons but not for Negroes. Though dismissal of the complaint on a procedural ground was affirmed, the Court made it clear that such a statute was invalid under the Fourteenth Amendment because a carrier refusing equal service to Negroes would be 'acting in the matter under the authority of a state law.' This was nothing less than considering a permissive state statute as an authorization to discriminate and as sufficient state action to violate the Fourteenth Amendment in the context of that case. Similarly, in Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, the Court was faced with a statute empowering the executive committee of a political party to prescribe the qualifications of its members for voting or for other participation, but containing no directions with respect to the exercise of that power. This was authority which the committee otherwise might not have had and which was used by the committee to bar Negroes from voting in primary elections. Reposing this power in the executive committee was said to insinuate the State into the self-regulatory, decision-making scheme of the voluntary association; the exercise of the power was viewed as an expression of state authority contrary to the Fourteenth Amendment.
In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, the operator-lessee of a restaurant located in a building owned by the State and otherwise operated for public purposes, refused service to Negroes. Although the State neither commanded nor expressly authorized or encouraged the discriminations, the State had 'elected to place its power, property and prestige behind the admitted discrimination' and by 'its inaction * * * has * * * made itself a party to the refusal of service * * *' which therefore could not be considered the purely private choice of the restaurant operator.
In Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323, and in Robinson v. State of Florida, 378 U.S. 153, 84 S.Ct. 1693, the Court dealt with state statutes or regulations requiring, at least in some respects, segregation in facilities and services in restaurants. These official provisions, although obviously unconstitutional and unenforceable, were deemed in themselves sufficient to disentitle the State to punish, as trespassers, Negroes who had been refused service in the restaurants. In neither case was any proof required that the restaurant owner had actually ben influenced by the state statute or regulation. Finally, in Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338, the Court interpreted public statements by New Orleans city officials as announcing that the city would not permit Negroes to seek desegregated service in restaurants. Because the statements were deemed to have as much coercive potential as the ordinance in the Peterson case, the Court treated the city as though it had actually adopted an ordinance forbidding desegregated service in public restaurants.
None of these cases squarely controls the case we now have before us. But they do illustrate the range of situations in which discriminatory state action has been identified. They do exemplify the necessity for a court to assess the potential impact of official action in determining whether the State has significantly involved itself with invidious discriminations. Here we are dealing with a provision which does not just repeal an existing law forbidding private racial discriminations. Section 26 was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State. The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned.
Affirmed.

## Notes

* ↑ Section 1 of the Fourteenth Amendment provides as follows:
* ↑ The following is the full text of § 26: '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.
* ↑ Cal.Civ.Code §§ 51 and 52 provide in part as follows:
* ↑ The trial court considered the case to be controlled by Abstract Investment Co. v. Hutchinson, 204 Cal.App.2d 242, 22 Cal.Rptr. 309, which in turn placed major reliance on Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586.
* ↑ Respondents' complaint was dismissed without prejudice based on the trial court's finding that petitioner would not seek eviction without the declaratory relief he had requested.
* ↑ See n. 2, supra.
* ↑ In addition to the case we now have before us, two other cases decided the same day by the California Supreme Court are instructive concerning the range and impact of Art. I, § 26, of the California Constitution. In Hill v. Miller, 413 P.2d 852, 50 Cal.Rptr. 908 on rehearing, 64 Cal.2d 757, 415 P.2d 33, 51 Cal.Rptr. 689, a Negro tenant sued to restrain an eviction from a leased, single-family dwelling. The notice to quit served by the owner had expressly recited: 'The sole reason for this notice is that I have elected to exercise the right conferred upon me by Article I, Section 26, California Constitution, to rent said premises to members of the Caucasian race.' Although the California court had invalidated § 26, the court ruled against the Negro
* ↑ This case was a sequel to Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, which outlawed statutory disqualification of Negroes from voting in primary elections.
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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