Earl Warren: -- et al, petitioners versus Lincoln W. Mulkey et al. Mr Wirin.
A. L. Wirin: Chief Justice, may it please Your Honors. I address myself first to answer an inquiry put to Mr. Pruitt by the Chief Justice and by Justice Fortas as to whether or not the provision which we are challenging that we challenged below, Section 26 of the California Constitution, includes or encompasses persons who determine to discriminate in the sale or rental of housing because of race based upon agreement with others, particularly agreements in the nature of restrictive covenants. My answer to the question of Your Honors is different from that given to you by Mr. Pruitt. The text of Section 26 appears as an appendix to the brief for the petitioners as do the valid arguments which were submitted to the voters in California. The first sheet or page in the appendix, right after the blue sheet from the brief for the petitioners contains the text of Section 26. Your Honors will find that the brief for the petitioners and the brief for respondents may carry the similar colors but they're quite different in thrust and in import so far as the arguments presented are concerned. This is called brief for petitioners and it has an appendix following a little blue sheet and the critical or significant provisions of this -- of this entire section is in the first paragraph and I merely refer to the last sentence in the first paragraph and to the phrase, “In his absolute discretion.” And it seems to me that a reading of that phrase stated as broadly as I think the English language permits in his absolute discretion, would certainly include an individual who in his own absolute discretion undertakes voluntarily to arrive in the -- to arrive an agreement with others. All of whom voluntarily agree to discriminate in housing because of race and thus the restrictive covenant. So, it seems to me that a reading of a provision on its face, moreover Your Honors, we challenged below and the court below was of the view that Section 26 is unconstitutional on its face. Therefore, it seems to me what the provision says on its face is -- it is the first consideration. Additionally Your Honors, this section, Section 26 in the fourth paragraph which is the last paragraph on the same sheet, undertakes with precision to carve out certain exemptions. These exemptions are with respect to the obtaining of property by eminent domain and with respect to accommodations for transients. So, when the writers of this provision intended to make exemptions, they were able to and succeeded in setting forth those exemptions with precision, no exemption so far as the unlimited, unrestrained, uncontrolled by the courts, authority of the individual to exercise his absolute discretion no matter the circumstances or the considerations which entered into his -- his own discretion. No such limitation appears on the face of the -- of the section. Moreover Your Honors, I've stated Your Honors that the valid arguments are contained in this -- in this appendix. Your Honors will find nothing in the valid -- valid arguments which suggest any such exemption for persons who determine to discriminate in their absolute discretion based upon such agreements. And finally as to this narrow point, narrow or broad, in addition to the formal arguments which were submitted to the voters on -- to the voters, valid arguments and distributed by the Secretary of State which are attached as part of the appendix to the brief for the petitioners. There is an extended brief by one of amici, namely the United Auto Workers Union and I -- I state simply quickly for Your Honors' guidance, if it is, that attached as appendices to that brief, it is the gray brief, motion for -- by the United Auto Workers. There are arguments made to the voters perhaps informally, but nonetheless circulated by the California Real Estate Association and its subordinate organizations, distributed and circulated by that organization to the voters stating the purpose and the meaning of Section 26. And nowhere in any of the arguments presented to the voters, even informally is there any suggestion that the limitation suggested by Mr. Pruitt maybe -- maybe read into this section.
Potter Stewart: Mr. Wirin?
A. L. Wirin: Yes sir.
Potter Stewart: Under California law, who prepares these valid arguments?
A. L. Wirin: They're prepared by persons who are prominent on each -- on each side of the controversy. The decision as to who's prominent is made by the Secretary of State.
Potter Stewart: The Secretary of State designates the --
A. L. Wirin: Yes.
Potter Stewart: Or perhaps the drafters of the arguments on both sides?
A. L. Wirin: That is correct.
Potter Stewart: And then they're subject to any editorial supervision by the state?
A. L. Wirin: Oh no. We do not have, Your Honor, I mean, (Inaudible) --
Potter Stewart: So anybody can say anything?
A. L. Wirin: We have no censorship.
Potter Stewart: So once designated by the Secretary of State, the drafter of these arguments can say anything he wants -- he'd want --
A. L. Wirin: That's right.
Potter Stewart: -- even though it's a --
A. L. Wirin: I think so.
Potter Stewart: Even though it takes liberties with the -- what the --
A. L. Wirin: I think so.
Potter Stewart: -- (Voice Overlap) actually does.
A. L. Wirin: All I'm saying is that some evidence that this Court may consider as to the legislative history. And after what the proponents thought that the measurement. That's all I'm saying.
Potter Stewart: As to what the voters were told?
A. L. Wirin: And as to what the voters were told. I should say to you although it's utterly irrelevant that the -- those who oppose the proposition included Bishop Donahue, Dr. Cole, the President of the Council of Churches and a man named Stanley Mosk who happened to be the Attorney General of the State of California and on the other side with the Real Estate Association and its (Inaudible) Now, I -- I deal with another --
Byron R. White: Well, did I -- before you leave this point --
A. L. Wirin: Yes Your Honor, yes indeed.
Byron R. White: Let's assume there is a restrictive agreement between property owner and his neighbor that he won't sell to Negroes?
A. L. Wirin: Yes.
Byron R. White: And then he wants to sell his house, he decides he doesn't want to sell to a Negro? You wouldn't suggest that this -- or do you suggest that the Proposition 14 or Section 26 purports to give the courts authority to enforce that agreement?
A. L. Wirin: I think if he changed his mind or he'd have a right to change his mind, but I do say Your Honor --
Byron R. White: And furthermore Section 26 would seem to me that at least you can make an argument that Section 26 itself would bar the courts, would bar the courts from enforcing the remedy, again enforcing the contract against him because now it's not in his unfettered will. I mean to enforce it would interfere with his right to sell as he saw fit.
A. L. Wirin: Well, in the example which Your Honor gave, I -- I would agree, but I suggest a converse example that is assuming he enters --
Byron R. White: Well let's -- let's finish this one first.
A. L. Wirin: Yes, I agree with Your Honor. That is --
Byron R. White: And the -- and the --
A. L. Wirin: If he changed his mind I think -- I think that would be the end of it.
Byron R. White: So this doesn't purport to run -- run upstream against Shelley against Kraemer?
A. L. Wirin: I think it does though.
Byron R. White: Do you?
A. L. Wirin: Now in this way. If he changes his mind and decides not to remain a member of this -- not abide by the agreement which he made, he has a right to do that under this. But if he decides to adhere to the provisions of the agreement, it seems to me because Section 26 broadsidedly prohibits any agency of the State of California which includes a judge thereon from inquiring into the nature of or the basis for the exercise of absolute discretion by the individual. It seems to me that in such a circumstance, a court under this -- this provision is foreclosed from inquiring into the existence of an agreement or the nature of the agreement or whether or not the individual discriminates because of the agreement.
Byron R. White: The courts foreclosed from either -- and foresee it or -- or the contrary?
A. L. Wirin: Yes, yes, and of course my -- my complaint is that it is foreclosed in the contrary. Now in additionally Your Honors, Mr. Pruitt stated to you to the Court yesterday that it was his view that this provision applies to what he called individual action, the exercise of discretion by the individual and does not apply to action in -- by individuals acting in concert, kind of a corollary to the problem of persons agreeing in connection to -- to have restrictive covenants. Now here again Your Honors, there is nothing on the face of Section 26 since on the face of it, it provides that an individual may exercise his absolute discretion in determining whether or not to discriminate because of race. There is nothing in that section which bars an individual from cooperating with others, in concert or otherwise, in effectuating racial discrimination. And there is not -- there is no such exception in the -- in the Section 26 and no such exception is suggested in the valid arguments and no such exception is suggested by the California Real Estate Association to sponsor for this proposal in the arguments made which were distributed to the voters which as I have indicated are next to the brief of the Auto Workers Union. Now moreover, if I may say so to Your Honors, if it is true, if Mr. Pruitt is correct in his statement to this Court, that this provision, Section 26, does not affect persons engaging in discrimination or -- as a result of acting in concert, then Your Honors are confronted with the following situation. The judgment of the Supreme Court of California and Your Honor, this Court reviews judgments. That judgment merely ordered reverse the judgment of the Superior Court of Orange County. That judgment barred the plaintiff from having a trial on his complaint on the ground that the courts of California by Section 26 were barred from -- from permitting any relief in connection with alleged racial discrimination. Now Your Honors will find in the record at page 4, the complaint which the trial court ruled, stated no cause of action and accorded no right to power, the Court to grant relief and particularly paragraph 8 of the complaint. And Your Honors will find that in paragraph 8 at page 4 of the Reitman, of the multi-complaint against Reitman. He alleges not only acts of discrimination by the owners and by the -- by the Reitman. He alleges that the discrimination which the defendants participated in is also practiced by other real estate brokers and home and landowners and so forth and owners -- in Orange County and throughout California. Now it may be this complaint does -- certainly this complaint doesn't use the word concert, but it certainly undertakes to allege the actions of others as constituting a practice. That means that a practice often is engaged in -- when persons act in concert. So, therefore, if Your Honors accept the view of counsel for the petitioners that Section 26 does not apply to action in concert and since the cases here merely as a result of a sustaining of a motion to dismiss as it were by the trial court, minimally, it is my argument, this Court should affirm the judgment of the Supreme Court of California or dismiss the petition as -- as a -- I guess the phrase is improvidently granted or whatever it is. But now I turn to --
Speaker: (Inaudible)
A. L. Wirin: Oh, one further matter that I want to mention quickly in that connection. Mr. Pruitt has gone off the record.I make no criticism on it. That the apartment building involved in the Reitman case had 10 units. In fact I have checked on it and he is correct, but moreover, the complaint alleges that the Reitmans owned -- well, he didn't say this exactly -- virtually says it, have owned other apartment buildings and I am informed and I say this for what it is worth in the Court that the Reitmans, the petitioners here and defendants below are a large institution owning and managing numerous apartment houses in Orange County and constitute one of the largest apartment house owners and operators in Orange County. Now I say this to you Your Honors simply to say that if Your Honors were to follow my argument and affirm the judgment of the -- of the Supreme Court of California, the effect would be merely to permit the plaintiffs to proceed with proof of their complaint including paragraph 8 in the complaint and maybe they can prove what I have just said to Your Honors, I believe are the facts. Now I turn however to what I think is the critical issue in this case and that is whether or not Section 26, both on its face and in terms of its legislative history is no more than a repeal of earlier provisions of state law, whether or not in adopting Section 26, California played the role of neutrality, I think the phrase this Court has used, Mr Justice White has used is the role of strict neutrality.
Potter Stewart: May I ask Wirin --
A. L. Wirin: Certainly.
Potter Stewart: -- if 26, if you agreed that it did nothing more than repeal the provisions of the Unruh and Rumford Acts actions you've been talking about, would you be here?
A. L. Wirin: I am prepared to say I would not because in my view that is not this case.
Hugo L. Black: Why?
A. L. Wirin: Sir?
Hugo L. Black: Why?
A. L. Wirin: All right then. I'm going to answer Your Honor's question now in -- in -- with some -- with some detail if I may. Indeed, I was going to say now and I will state that I want to discuss the -- the phrase which you used Mr. Justice Black, namely whether or not a state is barred by the Fourteenth Amendment from remaining (Inaudible), from doing nothing, from hitting his hands off of and playing no role in the matter of racial discrimination. Now my answer to Your Honor is that a state is not barred by the Fourteenth Amendment from playing that role assuming the point, if that is -- if that is strictly the role which it placed.
Potter Stewart: How about Shelley and Kraemer?
A. L. Wirin: Well in Shelley versus Kraemer, there was affirmative action. There was affirmative action by the courts which was considered to be a violation of the Fourteenth Amendment. Of course I don't -- I don't argue with that case at all, but what I'm saying is -- I'm not discussing whether or not private action or whether they may be relieved from private action or against private action of the courts. I'm merely stating that if a state does not put its thumb on the scales, that it in actual realistic fact it plays the role of strict neutrality.
Potter Stewart: Which it did in Shelley and Kraemer because it didn't -- any of the policy or one way or the other.
A. L. Wirin: It --
Potter Stewart: Which is a private contract?
A. L. Wirin: Yes. But if, namely, the State of California through its courts undertook to enforce that private contract, and to that extent, there was state involvement and I -- so I'm trying not to reach that question until -- until a little bit later because I want to -- if I can and I can agree with Mr. Justice Black and that others -- members of the Court --
Potter Stewart: Mr. Wirin, I was trying to help you in that --
A. L. Wirin: I know you are.
Potter Stewart: -- this argument.
A. L. Wirin: I know you are. But I'm trying to convince Mr. Justice Black and I -- this will be the first time that I think I'm having difficulty in doing so, but there's always a first time Your Honor. And so I'm saying and I'm willing to rest with the statement that if a state is strictly neutral in fact and in reality that then discrimination by a private person, no matter his motive, no matter how venal his motive, no matter how racist or bigoted he is, it is no concern of the Fourteenth Amendment. Let me say that arguendo or -- or otherwise, but it is our position that California has done more than that in this case. Now I'm trying to begin to answer Mr. Justice Black's question. Now quickly it is arguable and we might be willing to concede. But prior to 1959, a person in California could refuse to sell property, including residential property which he operated as a business and this was no violation of the -- of anything under the Fourteenth Amendment. Concededly also, the State of California entered upon the scene in connection with housing in 1959 where it is up to the law which prohibited discrimination in business establishments which included the business of rental of premises and in --
Potter Stewart: (Inaudible) in the Fourteenth Amendment?
A. L. Wirin: No, not at all, not at all. This was something that the State of California could do and it did do, not under compulsion of Fourteenth Amendment and then not under compulsion of Fourteenth Amendment, the Legislature of California determined to do something more than did the 1959 Act, known as the Unruh Act and specifically protect persons from other persons so far as discrimination in housing, in residential housing is concerned and it did that in the other way. All right, this is 19 -- 1963. Now California through its legislature, either the legislature convening in Sacramento or the so-called super legislature, the people of California which under the California Constitution have a right to exercise the power, the equivalent of a legislature, so-called a super legislature. California had a choice Your Honors. There was Unruh, there was Rumford and the California Legislature might have repealed those provisions, if it had, we wouldn't be here. In California, the people didn't have to wait on the legislature because there is a provision for the initiative and referendum and so dissatisfied with the action of the legislature, the people of California had some choices. The people of California by referendum could have repealed Unruh and Rumford. Had the people of California merely repealed Unruh and Rumford, we wouldn't be here and this isn't that case.
Potter Stewart: Well Mr. Wirin, what if the --
A. L. Wirin: Yes sir.
Potter Stewart: -- Supreme Court of California say that the people of California as a super legislature had done when it enacted 26? In other words, how did it construe 26?
A. L. Wirin: The -- the California Supreme Court and this appears more particularly on the record at 27, which is the opinion of the Court, construed Section 26 as an affirmative act by the high legislature of California which encouraged -- that's record 27, which encourage racial discrimination. That phrase appears about halfway down of the first new paragraph. Here, the state has affirmatively acted. Shall I direct Your Honors to it?
Potter Stewart: Yes please.
A. L. Wirin: All right. I'm looking at page 27.
Potter Stewart: I have it.
A. L. Wirin: I'm looking at the first new paragraph and then -- one, two, three, the third, the third, the third sentence maybe. Here, the state -- here, the state. Your Honors I'm looking at the record which is a -- which is a --
Potter Stewart: We have it.
A. L. Wirin: Well, I don't know whether Justice White have it.
Potter Stewart: All right.
A. L. Wirin: It's a Manila brown up on page 27 and I'm referring to the sentence, here, the state has affirmatively acted to change its existing laws from a situation wherein the discrimination practice was legally restricted to one where it is encouraged.
Hugo L. Black: Now I -- we certainly are concluding by the interpretation of 26, given 26 by the California Supreme Court, are we not?
A. L. Wirin: I would -- I would certainly so assume. I certainly so urge.
Byron R. White: Does it explain how it's encouraged -- how this action taken in passing 26 encourage discrimination over and above what ordinary repeal would have done?
A. L. Wirin: Yes.
William J. Brennan, Jr.: Does the Court explain --
A. L. Wirin: It can be Your Honor. That court does not.
William J. Brennan, Jr.: Yes.
A. L. Wirin: But I have an explanation --
William J. Brennan, Jr.: Well --
A. L. Wirin: -- which I made to that court which the court didn't --
William J. Brennan, Jr.: Well I know Mr. Wirin, but certainly it can either side can expect us. I would suppose, independently to construe 26.
A. L. Wirin: Well, I --
William J. Brennan, Jr.: You take -- you take the view that it goes beyond just to repeal Rumford and Unruh.
A. L. Wirin: Yes.
William J. Brennan, Jr.: Mr. Pruitt takes the position it doesn't go beyond and each of you argues that the -- that the opinion of the California Supreme Court supports your position.
A. L. Wirin: Yes. Well --
William J. Brennan, Jr.: Now, if it doesn't, what are we suppose to do?
A. L. Wirin: If it doesn't --
Byron R. White: If we can't -- we can't tell which it is what we are supposed to do.
A. L. Wirin: I think Your Honors after I state to the Court what is in our briefs with respect to this matter. The Court will see that the Supreme Court of California had a sufficient showing before it, so that it's use of the phrase that this provision encourages discrimination is -- is first supported and then supportable. Moreover --
Byron R. White: Mr. Wirin, why isn't -- why -- why isn't -- maybe the construction of 26 isn't open here, you put it that way, but why isn't the impact of it, the constitutional fact that's opened for review here?
A. L. Wirin: I would think -- I would think it is Your Honors.
Byron R. White: Is that what you're suggesting?
A. L. Wirin: Yes, it's I'm saying.
Byron R. White: Even if the California courts that -- don't really explain how and in what respect this encourages discrimination.
A. L. Wirin: I think so and this Court has -- now I agree with you Mr. Justice White. I'm agreeing that this Court -- when do the constitutional question always looks at the matter closely, considers the position of the findings of a state court with a great freedom.
Hugo L. Black: But Mr. Wirin, (Inaudible)
A. L. Wirin: Does it? I was hoping I wouldn't --
Hugo L. Black: (Voice Overlap) --
A. L. Wirin: -- but then (Inaudible) to you Your Honor.
William J. Brennan, Jr.: You concede that if this is nothing but a repealer then you wouldn't be here.
A. L. Wirin: Yes.
William J. Brennan, Jr.: Because there would no constitutional question.
A. L. Wirin: Yes
William J. Brennan, Jr.: But it is important to know whether 26 is.
A. L. Wirin: Yes.
William J. Brennan, Jr.: Anything beyond that and we can't tell from the opinion of the California Supreme -- you know, we've had this trouble with your court before in the last couple of years.
A. L. Wirin: I thought we have the best court.
William J. Brennan, Jr.: You may have but we've had -- only two terms ago we have to send a case back and say, “We don't know what you mean.”
A. L. Wirin: Well --
William J. Brennan, Jr.: And now you tell us.
A. L. Wirin: But Mr. Justice Brennan I -- I want to say -- I want to argue to the Court that our -- that the legislative history of this proposal which -- which is called to your attention in our briefs as well as the face of this proposal demonstrates that it is affirmative action and not merely a repeal. And I also want to state Your Honors having -- I indicated to you Your Honors that the Supreme Court of California used -- was of the view that this provision encouraged discrimination. In the Snyder case, the record is to the effect. Mr. and Mrs. Prendergast were Caucasian and Negro. The record is to the effect, it is alleged in the complaint by them. There is no denial by the defendant that the effort to oust them from the premises which they had theretofore lawfully -- lawfully possessed came after the adoption of Proposition 14 of Section 26. So there's something in the record from which the Supreme Court of California could have inferred that the effect of the adoption of Section 26 was to encourage even in -- even in that very case the taking of the measures which were taken by the parties in that case, but more than that and additionally, I was saying to Your Honors that had California and the voters of California and the California Real Estate Association wanted merely a repeal. They could have achieved their repeal by the voters of California under the provision in the California Constitution which is Article 4 which provides for the initiative and referendum by a referendum. This is how a repeal is achieved, an initiative in California is more than a referendum. It is more than a repeal. It is an effort affirmatively to enact some -- some new provision of law.
Speaker: Is there anything in Section 26 (Inaudible) initiative, the referendum in the opinion?
A. L. Wirin: No Your Honor.
Speaker: You said it could be repealed.
A. L. Wirin: It could be repealed.
Speaker: Yes.
Speaker: Mr. Wirin, may (Voice Overlap) --
A. L. Wirin: It could be repealed. It could be repealed to the --
Speaker: There's no difference in that respect is there -- this is a legislative act of the constitution (Inaudible).
A. L. Wirin: There are -- there are two differences in what --
Speaker: On the constitution (Inaudible)
A. L. Wirin: Yes, yes but because it is on the constitution -- because it is on the -- now, California could have put the same provision Mr. Justice Black into a statute. If it were in a statute, it would have the effect of law, but it could -- it would not require a vote of the people in order to repeal it.
Potter Stewart: I thought it would as I read the briefs.
A. L. Wirin: No.
Potter Stewart: If by referendum, they put it into a statute.
A. L. Wirin: I think not Your Honor. I think it is --
Potter Stewart: I thought if the people put it into a statute only the people could change it (Inaudible)
A. L. Wirin: No, if the people put it into an initiative, only the people can change it. If they put it into a referendum, either the legislature or the people can change it. But let me conclude this point with this further observation. Had this been an initiative which was written into a statute of California, they still would be required another initiative in order to get rid of it. Why then Your Honors and I ask this in parallel to the questions, was this provision written into the Constitution of California? Why was it put into Article 1 of the Constitution of California which is the Declaration of Rights of California? Because it was intended by those who wanted it to elevate the right of discrimination into a constitutional right. Now when a matter becomes one of constitutional right as for example when the right of freedom of speech is provided for in a constitution, it is intended and expected that it will encourage persons to exercise freedom of speech.And when a provision is enshrined in a state constitution, it is intended and in my opinion has the inevitably effect of encouraging persons to engage in the discrimination which is affirmatively sanctioned. Now one final word --
Abe Fortas: Well by this -- excuse me Mr. Wirin, but by this action the people of California, I suppose it's arguable, have removed from the ordinary legislative process, this subject of legislation in the field of discrimination with respect to rental, lease, or sale of property. And they have similarly, if I understand the argument, have removed that subject from the jurisdiction of their courts. Now the question is, whether that removal of this subject from the ordinary state processes is state action within the meaning of the Fourteenth Amendment. It seemed -- it seemed to me that that is one of the questions here now. Now, perhaps similarly I suppose that if the Federal Government passed a statute on this subject with respect to discrimination in housing and the area of this section that the effect of this constitutional provision would mean that regardless of what the legislature of California might want to do, that California could not -- the California courts could not cooperate in the enforcement of the federal statute by virtue of their jurisdiction without saying that the resolution is pro tanto and valid as in conflict with the federal law. I don't know where they come out on that.
A. L. Wirin: Well my response to Your Honor is this, certainly that provision in the first paragraph of this -- of this -- of Section 26 is written in the broadest of terms in the most comprehensive of language and bars the state or any of its agencies and of course part of an agency of a state from ever under any circumstances interfering with the exercise of absolute discretion brought by an individual. And to that extent, I have to -- as additional string to our bow, the point which had just been discussed.
Potter Stewart: Mr. Wirin.
A. L. Wirin: Yes.
Potter Stewart: My question was prompted by what I read in the reply brief with petitioners, the bottom of page 6 and the top of page 7 and I understand the answer to your question, you tell me that that -- that they --
A. L. Wirin: No.
Potter Stewart: -- misrepresented this to the Court?
A. L. Wirin: No, would you Your Honor tell me again what that page that was?
Potter Stewart: The reply brief of the petitioners, the bottom of page 6 and the top of page 7 which says that -- it's quotes -- it quotes -- it quotes Article 4, Section 1 of the California Constitution and it receives to say, “Accordingly had to measure -- propose a statute rather than amendments in the California Constitution.” It could still be repealed or modified only by both or the people.
A. L. Wirin: Yes, but Mr. Justice of course --
Potter Stewart: Well, that was my question.
A. L. Wirin: But Your Honor -- my answer to Your Honor's question is this statement is 100% correct and I have said nothing. I think I said nothing, to contradict it. Here's what I'm saying.
Potter Stewart: I understood your answer.
A. L. Wirin: Well, let me -- (Inaudible) If Unruh and Rumford were dealt with by a referendum of the people, that referendum would be merely a repeal, but if -- but if --
Potter Stewart: This is an initiative, isn't it?
A. L. Wirin: But if it's an issue -- whether or not the initiative amends the statutes of California or changes the constitutions --
Potter Stewart: -- or change.
A. L. Wirin: And one -- and one of my arguments is precisely because the right to discriminate it is enshrined to the constitutional right in the Constitution of California when it maybe have been because it could have been made a statute and still be the legislature couldn't touch it.
Potter Stewart: I don't see what possible difference that makes to the federal constitutional issue that's before this Court.
A. L. Wirin: Mr. Justice Stewart.
Potter Stewart: Whether the -- whether California has acted through its legislature, through initiative of its people, through its courts, through some political subdivision, if that action violates Federal Constitution, it violates it, and if it doesn't, it doesn't. I don't see what possible difference it makes, what instrumentality of the state that it is acting through.
A. L. Wirin: May I just state to Your Honor why I think there may be a difference. If the claim of a claimant is that private discriminatory action is encouraged by state action. And hence that state action violates the Fourteenth Amendment, it seems to me it is arguable, if the state action is in the constitution, that the power of encouragement of the practice which is enshrined in the constitution, the power of encouragement is the greater if it is in the constitution rather than the statute. Now that is all I'm arguing, and I -- I need to get back my argument.
Earl Warren: Very well. Mr. Solicitor General.
Thurgood Marshall: Mr. Chief Justice, may it please the Court.We appeared today as amicus in these cases because we believe that the two of them represents serious and far-reaching questions regarding the extent to which states may by indirect means substantially contribute to invidious discrimination of a kind which if practiced directly would certainly clearly violate the Fourteenth Amendment. Now, the subject matter of the state constitutional provision involved here against the discrimination in the sales and rental of housing is an addition of subsequent concern to the executive branch of our government as is indicated by present proposals for legislation on the federal level. These cases concerned the validity of formal legal action taken by the State of California with respect to discrimination in housing. And in our view, the action so taken goes beyond constitutional bounds.The provision of the state constitution which I would prefer to just call “Proposition 14” because that's the way it's commonly accepted and designated throughout the State of California, is we believe demonstrably an exercise of state power in support of racial discrimination as such. In support of this conclusion, we have urged three lines of argument. One I proposed to deal very briefly because it's already been discussed by -- a long time. The rest is essentially on the principle set forth in Mr. Justice Stewart's concurring opinion in the Burton case -- the Wilmington case. And although they had believed he and Mr. Justice Frankfurter and Mr. Justice Harlan believed it was not applicable to the facts of the case they still agreed with this principle. And that principle, as I understand it is that a state may not solemnly enact into law an explicit official authorization of racial exclusion or racial discrimination. That is true because such an enactment by its very nature puts the state on the side of racial distinctions and racial discriminations. Aside to which the state simply may not, under the Fourteenth Amendment tip the scales even by a hair's breadth, that's what Burton tells me. The proposition that a state must maintain the strictest neutrality with respect to private racial discrimination has of course been firmly established and is recently in Anderson against Martin. And in light of its history, this history of pro -- Proposition 14 which was so fully discussed in the opinion of the Supreme Court of California, and the briefs here, there can be little doubt that it actually enshrines as it carefully secured and preferred right of California citizens, a preferred right because it was deliberately put in the section with rights of free speech, free exercise of religion, et cetera. And for that reason, we come to the second line in this argument. And that emphasizes that Proposition 14 is not merely a state statute. It's not a statute which is subject to the ordinary interplay of political pressures within the jurisdiction of what remains the law. And I say in the question as to the difference between this being a constitutional provision or a statute, the important point is it can only be removed by a vote of the people of California. And the people we are arguing about here are the underprivileged people in the State of California and I don't think anybody denied that you don't get referendum by any place without hard earned cash and plenty of it. The whole level of political acumen in California as in any other places makes it possible that a minority group may have some political strength in an area here or an area there. But in no state that I know of do the minority groups have statewide power. And that's the reason it's important to recognize that this provision was deliberately put into the constitution, it was no accident. And I agree that if it just had been a repeal, we would not be here. The permanence it has as a constitutional provision and the sweeping effect which it must be given its all inclusive prohibition by local governmental agencies distinguishes it from a simple statute, declaring the state's neutrality. I -- I don't understand this argument that all it does is to say, “Well, everybody's free.” But incorporating Proposition 14 in the constitution, California said that legislation of governmental action of any sort may not be taken to eliminate or reduce private racial discrimination in housing unless one, either two-thirds of the legislature move or the issue is put up to vote by the majority of the people. Racial and other minorities and classes which are the likely victims of discrimination in housing are virtue -- by virtue of their minority status itself, placed in an obvious disadvantage.
Abe Fortas: Mr. General, are you saying that the effect of putting this in the constitution, the state action, putting this in the constitution as state action, and the reason why it's state action is that it has removed the subject matter from the reach of the ordinary governmental processes in the State of California, namely the legislature and the courts?
Thurgood Marshall: And the Executive Branch.
Abe Fortas: And the Executive.
Thurgood Marshall: And insofar as the courts are concerned, it's an absolute bar to a legal action. The -- as I understand Proposition 14, if someone sues on a common law theory, that he cannot be refused the rental of that building, the Court itself can dismiss it without requiring the defendant to even answer. And the only answer the defendant would be required to make is to “Section 26” and you're out of Court. It's an absolute bar.
Hugo L. Black: Are you attacking the constitutionality of that constitutional provision?
Thurgood Marshall: The constitutionality of it? Yes sir.
Hugo L. Black: Under the Federal Constitution?
Thurgood Marshall: Under the Federal Constitution, I say it violates the Fourteenth Amendment.
Hugo L. Black: But it didn't affect the race?
Thurgood Marshall: It didn't affect race.
Hugo L. Black: Yes.
Thurgood Marshall: It absolutely --
Hugo L. Black: Are -- are you attacking the right of California to allow its people to have a vote, one person one vote, to declare a state policy?
Thurgood Marshall: No sir. It's according to what the state policy is.
Hugo L. Black: Well, that's right.
Thurgood Marshall: If it is a state policy is to --
Hugo L. Black: You are not attacking -- you are not attacking the constitutionality of that as the -- within -- within the power of state to do -- to declare its policy, are you?
Thurgood Marshall: No sir. I am only saying that the State of California by -- cannot by any action (Inaudible) by vote, or by legislative act, or by the courts encourage racial discrimination.
Hugo L. Black: You get back --
Thurgood Marshall: That's what I say.
Hugo L. Black: You get back to the point, do you not that everybody has to in this case as to whether the Federal Constitution prevents California from doing what it's done here? Federal Constitution --
Thurgood Marshall: The Fourteenth Amendment --
Hugo L. Black: It does depend on the method that it's done.
Thurgood Marshall: No sir. We say that -- I'm not abandoning the method. I'm merely saying that that's a part of the picture, that's additional reason to understand what Proposition 14 means.
Abe Fortas: But you're arguing the same whether the -- under the Unruh law, prior or not?
Thurgood Marshall: If there was no Unruh law and no Rumford Act ever passed and Proposition 14 was the first legislation passed involved in housing, I would take the exact same position I take now, the exact same position, because the state has moved from its neutral position.
Hugo L. Black: And I was asking you that question because so you seem to be impliedly attacking California's right to adopt this method of establishing its policy if it wish to do so without regard to its federal constitutionality.
Thurgood Marshall: Oh I -- I'm not attacking the method as such. I'm just -- the result is -- I think if the Court had taken this position, would be one thing, the legislature would be one thing, the executive would be one thing. But here, California did not say that anybody can discriminate if they want to on the grounds of race. California, by adopting Proposition 14 and in the breadths of its language, encourages it. It's far from being neutral.
Potter Stewart: Well, wouldn't you have exactly the same argument, the -- the Federal Constitutional argument if the -- if Section 26 had been enacted by the California legislature.
Thurgood Marshall: Been enacted? Surely, I'd have the same argument.
Potter Stewart: Exactly.
Thurgood Marshall: Same argument.
Potter Stewart: That was what I thought.
Thurgood Marshall: I -- I just have more force with (Inaudible)
Potter Stewart: I don't quite see why, but if you think you have, why? [Laughter]
Thurgood Marshall: I -- I -- well, I -- I -- well, let's -- let's -- let's be reasonable (Voice Overlap) --
Hugo L. Black: It seems to me you would have less because here, moving in the direction of letting the people of the state, the voters of the state establish their policy, the nearest to a democracy you can get.
Thurgood Marshall: I do not agree, Mr. Justice Black, with all due respect, that a movement in 19 -- in these years toward perpetuating racial prejudice is progress by anybody.
Hugo L. Black: I wasn't talking about progress.
Thurgood Marshall: Oh.
Hugo L. Black: I was talking about movement towards democracy, to the -- get as near as you can to letting the people vote. I'm not attacking your basic argument --
Thurgood Marshall: Yes sir.
Hugo L. Black: -- that you're making.
Thurgood Marshall: Yes sir.
Hugo L. Black: But it does seem to me that you've gotten off on the (Inaudible)
Thurgood Marshall: Well, I do not know if I --
Hugo L. Black: At that point --
Thurgood Marshall: Yes sir.
Hugo L. Black: When you're impliedly attacking California's method of letting its people vote to establish policies.
Thurgood Marshall: Well, I think if I answer Mr. Justice Stewart's point, I might get a little --
Hugo L. Black: All right.
Thurgood Marshall: The facts show that the argument of people in minority groups, and with help of others were able to get the Unruh Act through and were able to get the Rumford Act through. And now that it's in the constitution that was the reason it was put in the constitution, because everybody knows that the minorities do not have that much strength on a statewide basis. Those are facts. I mean I'm sure you will agree with me Mr. Justice that the Real Estate Board didn't put Unruh and Rumford through, that we can be sure of.
Abe Fortas: General, is it clear that California legislature could deprive its courts a jurisdiction in obtaining common law action? I -- I don't know the answer to that.
Thurgood Marshall: I don't.
Abe Fortas: I'm asking you about that.
Thurgood Marshall: I don't either sir. And --
Abe Fortas: And that require a constitutional amendment?
Thurgood Marshall: I don't know the California law. But I do know this that we have had courts, at least a court that did rule in a Civil Rights case in 1890 in Michigan, and said he did need the Civil Rights law to maintain the common law right of a Negro to be served. That case was cited in Mr. Justice Goldberg's concurring opinion in the Maryland case. I do say that in our brief, we set forth the large number of municipalities and local units in this country that have adopted fair housing provisions. And they couldn't now in California if in County Z in California, all of the people decide that open housing is good and that 20 -- the 20% of the group said, “No, we don't want it.” And the 80% say, “We want it and we are in favor of adopting a resolution in our county requiring fair housing,” they can do it under this Act and that's the point I've been trying to get through Mr. Justice Black that the vote of the small unit is gone, you can't use any local pressure. The governor -- I mean the -- that was a mistake. The Attorney General of the state of California has filed a brief amicus in this case. Certainly, he doesn't agree with it. But his hands are tied. The whole executive branch of the government is tied.
Hugo L. Black: (Voice Overlap) is a constitutional provision. Are you against constitutional provision?
Thurgood Marshall: Not at all.
Hugo L. Black: What's -- what's the Bill of Rights or the constitutional provision to limit the local power or party unit to pass laws?
Thurgood Marshall: I think it would be a beautiful -- I think that, really, our differences -- if this were the Unruh or the Rumford Act had been a constitutional provision, I'd be all for it.
Hugo L. Black: That's right. (Voice Overlap) --
Thurgood Marshall: I would say that -- I would say that the -- two, the constitutional provision has the same validity regardless of which side it takes. But this one is a wrong one. And it makes no difference where it is, it's wrong.
Hugo L. Black: I agree with you, if it violates the Federal Constitution, it's wrong.
Thurgood Marshall: That's what I think.
Hugo L. Black: If it violates the Federal Constitution.
Thurgood Marshall: I'm sure it does.
Hugo L. Black: Not because it's conducted in a constitutional measure, the chief measure of protecting the liberties of the people of any country.
Thurgood Marshall: I would be far from doing anything to interfere with the right of the people to adopt their laws and their constitution, subject only to the Fourteenth Amendment. That's -- that's my own theory.
Earl Warren: I wonder -- I wonder if this section might not even prevent the courts or agencies of the state from cooperating with the Federal Government in the event of an open housing statute because it says 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 and decides to sell and so forth. Now, that looks to me like a pretty strong --
Thurgood Marshall: Well, we --
Earl Warren: -- an all-inclusive statement and I just wonder if they could -- under that constitutional section, if they could even cooperate with the Federal Government or the -- the Courts enforce federal rights.
Thurgood Marshall: Well, I think the Courts would be obliged to because under Article VI, the judges have to take the oath to --
Earl Warren: Well, I --
Thurgood Marshall: -- apply both (Voice Overlap)
Earl Warren: Well, I think so, but that wouldn't save the constitutionality of this Act.
Thurgood Marshall: Not at all.
Earl Warren: The mere fact that they have to do it, the Supremacy Clause probably would compel them to do it but isn't this an attempt to even to go that far.
Thurgood Marshall: I say that this provision is an absolute bar to a court taking any action against racial discrimination in housing.
Earl Warren: And it would at least, it seems to me, be a discouragement to any -- any agency of the State of California from even cooperating with the Federal Government in any such statute.
Thurgood Marshall: That's right. I think in support of that is the Attorney General himself to file his brief here. And I think that that brief would be speaking for the entire executive side of the State of California. And the -- the real difficulty here is that we all know there is considerable movement toward voluntarily working out open housing problems. And the movement is much accentuated on the local level. I don't know whether it's true in California or not, but I am talking about the reports that we filed in our brief. All of those, I mean, we right here, we know up in Montgomery County. There's a big movement there. It's all over the country. But here, you can't do it. The other point is that even if somebody -- the people that reads this and there despite the fact that it's not directly material, the literature in all of it was set up. It's in the UAW's brief and all. There's some people that now whose conscience is telling them they should open their houses up. They should open their apartments up. They get the idea that the State says “Don't do it!” It gives the -- the person whose conscience is working on him a block that says, “You don't have to do this.” And it's the opposite of the neutral position that the State should take in these matters. And I say the neutral position because I don't want it understood that I would object to the State taking the other position like the -- the Rumford Act or what have you.
Hugo L. Black: You said they can have that law but they can't repeal it.
Thurgood Marshall: No sir, they can repeal. They could have repealed Rumford.
Hugo L. Black: But that's drawing a distinction between what was done by the State and what they actually did.
Thurgood Marshall: Mr. Justice Black, my point is, if they -- they repealed Unruh and Rumford, the courts could -- could move in if they were (Inaudible), and say that the common law is not what you say it is. The local county units could move in. Maybe the -- I don't know the powers of the Governor but I mean maybe some executive branch could move in. There are lot of ways that this problem with racial discrimination in housing could be solved, if -- even if Unruh and Rumford were repealed. But instead of just repealing them, they'd put in this positive provision the bars anybody, bars anybody from interfering.
Hugo L. Black: Perhaps through a constitutional method (Inaudible), isn't it?
Thurgood Marshall: It's perfectly legitimate -- we don't quarrel that it was not properly adopted. But when it was adopted, it was about to its subject to this Court's determination as to whether it was constitutional or not.
Hugo L. Black: Subject to the Federal Constitution of course.
Thurgood Marshall: And subject to its own State Court. And I'm not abandoning the fact that --
Hugo L. Black: (Voice Overlap) --
Thurgood Marshall: -- that its own State Supreme Courts said it was.
Hugo L. Black: You mean the State Supreme Court can do away with this constitution?
Thurgood Marshall: It -- it can declare a provision. The Supreme Court deliberately said that we don't use that right. But we moved purely on federal grounds. I think that's the reason the Court did it. It was because they were worried about that point. I think it's what it was. But the -- the ultimate decision would have to be made by this Court.
Potter Stewart: Mr. Solicitor General.
Thurgood Marshall: Yes sir.
Potter Stewart: If I -- if I understand your argument correctly, and you tell me if I'm mistaken, it would be substantially the same argument even if there had been -- never been a Rumford or an Unruh Act, wouldn't it?
Thurgood Marshall: Yes sir.
Potter Stewart: That no state could do this --
Thurgood Marshall: (Inaudible)
Potter Stewart: -- regardless of its prior legislative enactments. And if this -- that the enactment of this constitutional provision in and of itself quite apart for many previous history of what the state had or had not enacted in this area would violate the Fourteenth Amendment --
Thurgood Marshall: I would say --
Potter Stewart: (Inaudible)
Thurgood Marshall: I would say that that is our position. And the reason is that the state has shifted from its neutral position on race. And when you shift from your neutral position, the thumb is on the scales. And I used that the line of cases of -- ending up with burden.
Potter Stewart: Well, I -- I thought that your argument would be substantially the same argument if the -- if there had never been any statutes weren't passed in this area by a state and if the common law had been the way -- the conventional common law has been with the exception of your (Inaudible) case and a couple others.
Thurgood Marshall: This (Voice Overlap) --
Potter Stewart: So that the common law generally had been (Inaudible) that it would still -- that the affirmative adoption by a state of Section 26 would nonetheless violate the Fourteenth Amendment (Inaudible)
Thurgood Marshall: That is --
Potter Stewart: I believe I was correct in understanding if that is your basic argument --
Thurgood Marshall: That is --
Potter Stewart: -- point apart from any -- the prior history of any Rumford Act or Unruh Act or anything else.
Thurgood Marshall: We just say that that helps our basic position.
Potter Stewart: Yes, but I --
Thurgood Marshall: We don't need it.
Potter Stewart: But I think on analysis and you tell me if I'm wrong, your basic position is that whether this 26 had been adopted by California with its particular history or by North Dakota, or by Ohio, or by Mississippi, or by any other state it would be violative of the Fourteenth Amendment.
Thurgood Marshall: I would say so because it's giving encouragement to racial discrimination and it is shackling handcuffing all state agencies from doing anything to eliminate it.
Potter Stewart: That's what I understood. And I -- I want you to -- these are not rhetorical questions. I'm asking for information so I'd --
Thurgood Marshall: I know that sir. (Inaudible) thank you sir.
Hugo L. Black: Well Mr. Solicitor General, these suits were brought in Orange County, weren't they?
Thurgood Marshall: One was in Orange County and one was in Los Angeles.
Hugo L. Black: All right, let's take the Orange County.
Thurgood Marshall: Yes sir.
Hugo L. Black: Let us suppose that the California legislature after this suit was instituted, passed a statute saying that the courts of Orange Country shall not entertain any lawsuits or where there was a claim of -- for relief based upon the refusal of a property owner to sell or rent housing to the plaintiff, would that be in conflict with Federal Constitution?
Thurgood Marshall: I think so. I think there's no question about it. It's also this case.
Hugo L. Black: And that would be in con -- well, I would say -- I was kind of thinking about this case. [Laughter] Was that -- would that be a conflict with the Fourteenth Amendment?
Thurgood Marshall: I think definitely yes. This case was filed before 14, and it laid around when 14 came out, the defendant came in it says, 14 dismissed, it's dismissed. That's what happened. Oh, I'm not saying it was passed discretionary for this person but with all due respect it did. It's our position that in both of these cases, the situation as it exists cannot be put within the four corners of the Fourteenth Amendment for the three reasons set out. The one we urged the strongest is the overbreadth and the extent to which it was done, the encouragement point is a secondary point to our argument. But on any basis, we believe that the judgment of the Supreme Court of California should be affirmed and back to the question we asked yesterday, we don't necessarily urge that beyond the exact same grounds as the Supreme Court of California but we think our three points do stand up and require the affirmance.
Earl Warren: Mr. Pruitt.
Samuel O. Pruitt, Jr.: Mr. Chief Justice, may it please the Court. First in response to several questions from the Court, it seems to be clear that the risk of being presumptuous that is the duty of this Court to read this measure in a way to say that's validity not in a -- with unfriendly way in an effort to read in -- into it some provision that is not reasonably implied. For example, I think there is nothing in this measure that can reasonably be read that says that the State Courts in California are prohibited by this measure from performing their Constitutional duty to enforce Federal Rights, whether they arise under a federal statute or under the Federal Constitution. Nor indeed as evidenced by the exercise of jurisdiction by the State Courts in these cases, does it deprive the State Courts of the obligation to entertain claims which might involve the rule of law set forth in Section 26 to interpret that rule of law and to apply it to the effects of the case before it. And I think it's quite ironic.
Abe Fortas: How -- how can you read that exception under the statute? Is there any language in here or -- because the language seems to be about as broad as it can be phrased.
Samuel O. Pruitt, Jr.: Mr. Justice Fortas, the language I think establishes a rule of law in California. Rules of law are applied by courts all the time.
Abe Fortas: Well, this -- this one is (Voice Overlap).
Samuel O. Pruitt, Jr.: Restatement -- pardon me, sir.
Abe Fortas: This is a constitutional provision.
Samuel O. Pruitt, Jr.: That is correct.
Abe Fortas: And it says that, “Neither the State nor any subdivision or agency.” And would you construe that to mean to -- not to apply to the courts?
Samuel O. Pruitt, Jr.: It's binding -- it's binding on the courts in the sense that the courts ought to apply the rule law that's provided for on this measure.
Abe Fortas: But it is -- and your argument then compared to what has been said by the counsel that this -- that the phrase, “Neither the State nor any subdivision or agency” does not include courts in the exercise of their own jurisdiction as we say is from enforcing State action.
Samuel O. Pruitt, Jr.: It prohibits the -- it tries to prohibit the court from applying a rule of law different than the one recited in the provision, that's true, but that's true of any statute held the Court that under particular circumstances this is what the law is. And a court is obligated to apply that rule of law unless it violates some constitutional provisions.
Potter Stewart: I -- I think you -- as I had understood your argument, Mr. Pruitt, it was that nothing in here and obviously nothing in here does and quite obviously nothing in here could take away from the courts their duty to apply the Federal Constitution. I think that is (Voice Overlap) --
Samuel O. Pruitt, Jr.: That is correct.
Potter Stewart: -- between you and my Brother Fortas which -- that you were talking about, the Federal Constitution and he -- he thought you're talking about the State Constitution.
Samuel O. Pruitt, Jr.: Yes.
Potter Stewart: Obviously there's a change in this -- in this (Inaudible) -- this is an addition to the State Constitution and insofar as its provisions, do not violate the Federal Constitution the State Courts are bound by it. But you're quite right insofar as this does violate the Federal Constitution under the Supremacy Clause, the State judges have the duty of following the Federal Constitution (Inaudible)
Samuel O. Pruitt, Jr.: Certainly, and that's what -- that's what the court below attempted to deal in this case we think erroneously but it certainly attempted to do what it thought it would require to do by the Federal Government.
Abe Fortas: And to the extent that the Supremacy Clause is not involved. This Constitutional Provision does remove in the California court common law jurisdiction.
Samuel O. Pruitt, Jr.: I would disagree, Mr. Justice Fortas. It tells them what the rule of law is, that the facts that -- that rule of law (Inaudible)
Abe Fortas: Well, I think -- (Inaudible) -- that is a meaningful distinction and maybe I'll contend that it's not.
Samuel O. Pruitt, Jr.: I might also say Mr. Justice Fortas that with respect to this method being an -- a departure from the ordinary processes of government in California or to placing this measure in the California Constitution has a significance that would be similar to an amendment to Federal Constitution, for example, just isn't so. This is a normal procedure in California. Our Constitution has been amended about 300 times since 1879 by initiative and other procedures. I don't say it isn't necessarily good but on the other hand, it isn't necessarily bad either. Now, it's quite ironic, I think that the respondents in this case supported by the United States and the Attorney General of California say, “They would be perfectly valid for the people of California to repeal the entire Unruh Act, the entire Rumford Act,” presumably to repeal all of our antidiscrimination laws which I think it's been conceded the State had no obligation to enact in the first place. Here, where the people are trying to affect a very limited repeal of only one tiny portion of conduct and place it within the discretion and live it to the conscience of the individuals, that they say violates Federal Constitution.
Speaker: I noticed you don't cite in your brief Truax versus Corrigan. Have you considered that?
Samuel O. Pruitt, Jr.: I have considered it and I believe I did cite the --
Speaker: I don't find it in your index. But don't bother now, but --
Samuel O. Pruitt, Jr.: I'll say that I've --
Speaker: How do you distinguish Taft's opinion in Truax v. Corrigan from this case, where the State of Arizona had withheld a remedy for a denial by private people of equal protection, equal treatment?
Samuel O. Pruitt, Jr.: I would prefer to rely on the dissenting opinion in that case, You Honor, which I think reflects to the current. And I'm proud to rely on it, I might say because --
Speaker: But you see, the dissenting opinion, it doesn't help you. There were three of them and I just refreshed my recollection on them. They don't help you much because they went off on the grounds if there was no lack of equal protection. And here we have -- any line drawn between race is a suspect line in this country. That's true isn't it, by the reason of the 13th, 14th, and 15th (Voice Overlap) --
Samuel O. Pruitt, Jr.: Oh, certainly, yes. I -- I believe --
Speaker: I don't think the dissenting opinion address themselves to State action.
Samuel O. Pruitt, Jr.: I believe they address themselves to this point and I believe that the current opinions of this Court fully support the dissenting opinion of Mr. Justice Brandeis and Mr. Justice Holmes --
Speaker: I don't think (Voice Overlap) --
Samuel O. Pruitt, Jr.: -- that the legislative power includes the right of the State to decide what its law is going to be in an area where Constitutional Rights are not affected.
Speaker: That's on the grounds of what is -- with classifications, yes, making a classification.
Samuel O. Pruitt, Jr.: That is correct. But in that case the --
Speaker: (Voice Overlap) we don't have that problem here but we do have problem as to whether or not the State can turn over its -- the municipal function of zoning to a real estate (Inaudible)
Samuel O. Pruitt, Jr.: Well, I regret that, Your Honor thinks that that's what this measure means because I don't think that --
William J. Brennan, Jr.: Well, that's a --
Samuel O. Pruitt, Jr.: -- it's a fair reading of it, if I may say so. And further, as I understand the holding and Truax v. Corrigan, it was that the Federal Constitution prohibited Arizona from adopting a law that would bar the remedy of injunctions and labor disputes. This is back in 1924 and if -- if that's presently the constitutional law of the decisions in this Court it would surprise me because the Norris–La Guardia Act in the Federal level does just that and no one, I think --
William J. Brennan, Jr.: But that's been (Voice Overlap) --
Samuel O. Pruitt, Jr.: -- has challenged --
William J. Brennan, Jr.: Yes, that's been removed by Congressional power.
Samuel O. Pruitt, Jr.: That -- that is --
William J. Brennan, Jr.: The constitutional theory of Taft is -- is something that I don't your brief has addressed itself to.
Samuel O. Pruitt, Jr.: No, as I say the reason I didn't cite the majority opinion is because of my opinion it's not currently of the law. Now with respect to whether the California court made any factual determination of encouragement, Mr. Wirin read a portion of a sentence from the opinion but he left out the phrase which I think establishes that really the California Supreme Court was making a statement of a legal conclusion. There is the Statement Mr. Wirin read, “Here, the State has affirmatively acted to change its existing law from a situation where in a discrimination practice was legally restricted to one where in it is encouraged,” and this is the part that was omitted, “within the meaning of the cited decisions.” But I think that's clearly a legal conclusion as to what this Court meant by encouragement in such decisions as Burton v. Wilmington Parking Authority, the Robinson v. Florida, and another cases cited in the opinion.
William J. Brennan, Jr.: Mr. Pruitt, is this an argument that this -- 26 can be read as nothing more than a mere repealer of the provisions of Rumford and Unruh? Is that your basic position, isn't it?
Samuel O. Pruitt, Jr.: That -- it is a --
William J. Brennan, Jr.: If I understand your -- everyone who has argued on the other side instead of, that's all it means, it wouldn't even be here. They've been --
Samuel O. Pruitt, Jr.: That is correct and that's all it means with this exception, Mr. Justice Brennan. And that is it's in our constitution that it reserves to the people the power to enact the statute in the future. Now if that aspect of it is valid and we think it clearly is then it is nothing more than a repealer.
William J. Brennan, Jr.: Well, how -- I still come back to what I asked then. You -- you certainly don't agree and let the Supreme Court of California interpret the Section 26 to do, do you?
Samuel O. Pruitt, Jr.: My analysis indicates that its interpretation was that the --
William J. Brennan, Jr.: (Voice Overlap) --
Samuel O. Pruitt, Jr.: -- nullification of this statute --
William J. Brennan, Jr.: But the other side doesn't agree with you. You -- you're not in agreement as to what the -- on the interpretations that the California Supreme Court gave to 26. You say it's only a mere repealer. And they say if that's all it is, they wouldn't be here. They say it's much more than that. You say it's not any more than that, is that right?
Samuel O. Pruitt, Jr.: Yes. The only thing --
William J. Brennan, Jr.: And -- what are we suppose to do in that -- in that circumstance?
Samuel O. Pruitt, Jr.: Well, I assume the Court will have to decide whether I'm right or they're right as to what the California Supreme Court held. And I think, an analysis of that decision --
William J. Brennan, Jr.: (Inaudible) the California Supreme Court didn't really tell us, isn't it?
Samuel O. Pruitt, Jr.: Well I think they did, Your Honor. If you read their decision in the light of Hill v. Miller where they say in California there is no right of action under these circumstances unless there's a statute. Even though in that case the landlord was very obliging in putting his notice termination that he was relying specifically on the right given to him by Section 26 to terminate for this tenancy.
William J. Brennan, Jr.: Well, Mr. Pruitt, isn't it consistent with what -- would it be consistent with what the Supreme Court of California said -- to say that whether or not this is a mere repealer that Proposition 14 encourages discrimination within the meaning of the cited cases. They didn't focus on whether or not it is mere repealer or it isn't -- or they didn't -- that they didn't really put it in those words, did they?
Samuel O. Pruitt, Jr.: No. That is correct.
William J. Brennan, Jr.: But they said whatever it is, we think it encourages discrimination. That's about as far as they went.Was it (Voice Overlap) --
Samuel O. Pruitt, Jr.: Well --
William J. Brennan, Jr.: -- many of the cited case?
Samuel O. Pruitt, Jr.: They described what happened as the sequence of legislative activity and they say this change of policy constitutes encouragement of racial discrimination. They said that.
Hugo L. Black: Would you -- I think I asked you the other day, I'm not sure yesterday, if the -- if Proposition 14 had said that Rumford and Unruh are hereby repealed and private parties are authorized to discriminate. Would you -- what would you say about that?
Samuel O. Pruitt, Jr.: I think the singling out of discrimination in any official statute might raise a serious constitutional problem, just as Your Honor thought there was a serious problem in the Georgia statute in Evans v. Newton because it singled out in Your Honor's opinion, racial discrimination as permissible conduct brought at the same time living in doubt whether you can discriminate on any other grounds but race.
Hugo L. Black: For example, I didn't single out racial discrimination. I just said that people are authorized to discriminate in the selling of their house.
Samuel O. Pruitt, Jr.: That would be perfectly valid. I -- I misunderstood your question.
Hugo L. Black: And do you think you have to take that position?
Samuel O. Pruitt, Jr.: No.
Hugo L. Black: Do you think if it -- do you think if -- if that statute -- if that kind of a proposition was invalid, you could still win here.
Samuel O. Pruitt, Jr.: Certainly.
Hugo L. Black: Why?
Samuel O. Pruitt, Jr.: Because I think the constitutional issue here --
Hugo L. Black: Don't you think that this is an authorization to discriminate, Proposition 14?
Samuel O. Pruitt, Jr.: It's an authorization to act without the compulsion of government. Now, that's an authorization to discriminate, that maybe a way of putting it but it's not an encouragement to discriminate. It's an encouragement to act on accordance with the dictates of your conscience, which is true of all areas of conduct which the government either commands, not be -- neither commands to be done nor prohibits from being done. This broad middle ground where the government does nothing so to speak, neither prohibits it nor does it command it. In those areas, freedom means that people are supposed to act in accordance with their consciences and it is to be hoped that they don't discriminate. But it includes, that's one of curse of freedom is that some people will.
Hugo L. Black: So authorization as such is not necessarily invalid as argued.
Samuel O. Pruitt, Jr.: That -- that is correct.
Earl Warren: I don't -- I don't think you have to say that and I think it's perfectly legitimate, some acts where a state authorizes something to be done to say that it's made it legal. But it's not, and it says we're not going to have any law on this subject.
Samuel O. Pruitt, Jr.: That's what --
Earl Warren: That's quite different.
Samuel O. Pruitt, Jr.: That's what this measure says.
Earl Warren: And what's -- what's done is here is a play on the words encourage and discourage.
Samuel O. Pruitt, Jr.: That is correct.
Earl Warren: But we have -- we have this situation and I wonder if you've found any -- any analogies to it in other constitutions that have been sustained, well recognized of the Thirteenth, Fourteenth, and Fifteenth Amendments were -- were designed to prevent discrimination of the Negro. Now, do you know of any other analogies where -- where the courts have sustained a statute or a constitutional provision that is designed to circumvent that right?
Samuel O. Pruitt, Jr.: Well in the form of Your Honor's question, I don't believe there would be such a case of a statute --
Earl Warren: Well -- well (Voice Overlap) --
Samuel O. Pruitt, Jr.: -- that was designed to circumvent the right not to be discriminated?
Earl Warren: Circumvent the purpose of the Fourteenth Amendment. The purpose of the Fourteenth Amendment is to prevent discrimination against Negroes. It is true that it only operates against the State not just against the individuals. But do you know of any other constitutional provision or statute which is to stand by this Court or higher courts, where the purpose was -- where the statute itself said that the people, affirmatively, that the people should not be interfered with in their right of discrimination. And isn't that what we have here?
Samuel O. Pruitt, Jr.: I know -- I know of such case that holds it on this --
Hugo L. Black: What about the Civil Right cases?
Samuel O. Pruitt, Jr.: But then I was going to say Mr. Justice Black that the whole -- the whole line of authorities from the Civil Rights cases down to the Guest Case last term, in making the distinction between State and private actions seems to make crystal clear that a state has an absolute right consistent with the Fourteenth Amendment to say this is the kind of conduct we can prevent if we think it's necessary or desirable. We don't have to do it in the Federal Constitution. And if we decide not to take a position on this kind of field -- in this field, there's nothing in the Federal Constitution that says we cannot. Now let's --
Earl Warren: I -- I don't -- I don't disagree with you on the fact that they can -- can do nothing about it?But can they encourage -- encourage it by a provision of this kind?
Samuel O. Pruitt, Jr.: I think the central, the core question in this case, Chief Justice please, is whether this rule of law is consistent with the Fourteenth Amendment. Now in 1959, everybody says that California just had the Common Law Rule and it wasn't printed in the statute so it wasn't in the constitution. There would be no Federal Constitutional question if the Court rendered judgment for the property owners in this case. Now in 1967, all of sudden that same rule of law raises a serious constitutional question. Now, why is that so? Why should it make a difference that California has experimented in this field by adopting a statute to see whether or not it would assist in the situation, the people say we don't want the statute and they repealed it. Why should that conduct of the legislative groups in California make it any different constitutional question than it would have been in 1959? Or for that matter, any difference in the constitutional question should these cases come up from Illinois or Texas or Mississippi? Why should there be a different rule of Constitutional Law applicable to California?
Earl Warren: I don't think there is but couldn't they -- couldn't they simply have repealed the Rumford and the Unruh Amendments here and let it go with that and then the State would be neutral?
Samuel O. Pruitt, Jr.: As I said at the beginning, Mr. Chief Justice, it seems to me it's very ironic to suggest that a repeal of these measures, which is a much more drastic step, from the step that people took here. They didn't repeal the Unruh Act. It prohibits discrimination on racial or religious grounds in business establishments of every kind whatsoever. My opponents here say that California can repeal that whole law, consistent with the Federal Constitution. But what they can't do is the (Inaudible) of that law, this narrow area of conduct for a private property on. I find that very ironic and unacceptable under the Federal Constitution.
Earl Warren: I think it's a legislative process for -- for the legislature to pass and repeal laws. That's what the legislature is there for. But does that follow? The State has the right to say that it no longer can pass a law that is in furtherance of the Fourteenth Amendment so far as discrimination is concerned.
Samuel O. Pruitt, Jr.: Again, that's not what this measure says. It says it can pass such a law when the people pass it in that part of the process of the Democratic Government in California. I know nothing in the Federal Constitution that says that kind of a democratic process is prohibited.
Byron R. White: But in any event Proposition 14 ends up like creating a constitutional right to discriminate?
Samuel O. Pruitt, Jr.: I disagree with the --
Byron R. White: I mean --
Samuel O. Pruitt, Jr.: It doesn't create any right of any kind, Your Honor. It recognizes a rule of law which was created many years ago by -- and it's reported in Black Stones Commentary and approved by this Court.
Byron R. White: (Voice Overlap) -- yes, but let's just say that before Rumford and Unruh, was there a constitutional right to discriminate in California?
Samuel O. Pruitt, Jr.: Constitutional right in the sense of --
Byron R. White: There was not because --
Samuel O. Pruitt, Jr.: No, no.
Byron R. White: -- Unruh and -- Unruh and Rumford did away with the right to discriminate. But now, there is a Constitutional Right to discriminate in the State of California in the sense that no legislature -- no legislative act or ordinance is valid in that State, but isn't a Constitutional right, it's nothing, is it? People have the constitutional right to discriminate much have the (Inaudible) the right to free to speech.
Samuel O. Pruitt, Jr.: They have a State Constitutional Right in the sense that they may -- they act in that manner until and unless a valid statute prohibits them from doing so.
Byron R. White: That's right.
Hugo L. Black: They have the say when they have -- by the due process (Inaudible)
Samuel O. Pruitt, Jr.: That is correct.
Hugo L. Black: That they have a right to be free, conduct themselves as they please so long as they do not violate some law enacted to prevent or -- or aid something. (Inaudible) not to have a life, liberty, or property taken away without due process except by due process of law which means the law of the land.
Samuel O. Pruitt, Jr.: That is certainly my understanding, Mr Justice Black, and I think it was stated by this Court long ago as Buchanan v. Warley in about 1917 insofar as I know has not been changed.
William J. Brennan, Jr.: Do you have the initiative in California or legislative acts?
Samuel O. Pruitt, Jr.: Yes, the initiative applied both to --
William J. Brennan, Jr.: Yes.
Samuel O. Pruitt, Jr.: -- Constitutional Amendments and the legislative acts, but either one is modifiable in the future only by further action of the people. For the fact that this is in the California Constitution by initiative as distinguished from the California statute by initiative has no bearing on who has the right repeal it. Effect in short, if the Court pleased that the court below exercised the judicial power of the United States to strike down a rule of law which the people of California adopted in the orderly manner of democracy which we practice there. We asked the Court not to exercise that power to overrule the judgment of the people here. The people are the only sorts for the ultimate and abiding solution of the kind of problem that's been raised by my opposition. And if these arguments that they are addressing to this Court or addressed to the legislative bodies in California for the people, they are the ones that have to be convinced that their method of approach to this problem is preferable to the one adopted by the people. We ask that the judgments be reversed.