Mulkey v. Reitman

WHITE, J. *

I dissent.

In the final analysis as I view it, the primary issue here presented is whether article I, section 26, 1 added to our state Constitution by the people as an initiative measure (Proposition 14) at the general election of November 3, 1964, by a vote of 4,526,460 to 2,395,747, is a valid exercise of state legislative power in choosing not to regulate the private conduct of residential property owners in the sale or rental of their own private property, even if that conduct is discriminatory on racial or religious grounds, or whether such a legislative choice by the people violates the provisions of the Fourteenth Amendment to the Constitution of the United States or federal law.

While the attack in the briefs on the constitutionality of section 26 encompasses some highly emotional and, I feel, inaccurate charges as to its scope, meaning and effect, such as that by its adoption California has taken "affirmative action of a definite and drastic sort . . . [amounting] to condonation or approval of race discrimination in the sale, leasing and rental of housing . . . ”; that it is an " affirmative declaration that the State will never do anything to prevent or eliminate that discrimination”; that it puts "the State in direct opposition to national policy”; and that its effect is "not merely to repeal the Unruh and Rumford Acts hut to authorize racial discrimination in the renting of residential property,” I am *546 impressed, from a calm and dispassionate reading of section 26, that it is manifest that actually the measure amounts only to a legislative choice by the people acting through the power reserved to them by article IV, section 1, of our California Constitution that a particular method of attempting to solve the problem of housing for minorities, i.e., the imposition of governmental sanctions on private residential property owners shall not now be employed; that the state policy which existed in California prior to 1959 shall be restored; and that there be reserved to the people the exclusive legislative power to change or modify this policy.

Prior to the adoption of the Unruh Act, the California Legislature had chosen not to regulate the conduct of property owners in selecting their buyers or tenants whether or not the choice was based on race, color or creed. By the enactment of the Unruh Act in 1959, the Legislature chose to regulate racial and religious discrimination by persons in “business establishments of every kind whatsoever,” including persons engaged in the business of selling or renting residential property, brokers and others. (Burks v. Poppy Constr. Co., 57 Cal.2d 463, 468 [ 20 Cal.Rptr. 609 , 370 P.2d 313 ] ; Lee v. O’Hara, 57 Cal.2d 476, 478 [ 20 Cal.Rptr. 617 , 370 P.2d 321 ].) From September 1963, until section 26 of article I became effective, by enacting the Rumford Act, the Legislature chose to regulate specifically such discriminating conduct by owners of most but not all residential property. Then, in November 1964, by enacting section 26 of article I of the Constitution, the people exercised their legislative prerogative and declared that the conduct of a private property owner in refusing to sell or rent his property for whatever reason, should not be regulated by the state but should be left to private self-determination, but the legislation regulating persons other than the property owner when dealing with his own property was left in full force. Nor did the adoption of section 26 interfere with or impair the nearly century-old history of legislation affecting race relations in California commencing as it did in 1872 with the enactment of legislation prohibiting innkeepers and common carriers from discriminating in making their facilities available to all races and creeds (now Pen. Code, § 365), legislation which prohibited discrimination in ‘1 public accommodations” (Stats. 1893, ch. 185, p. 220). Those provisions which became sections 51-54 of the Civil Code in 1905 and were amended in 1919 and 1923 (Stats. 1919, ch. 210, p. 309; Stats. 1923, ch. 235, p. 485) guaranteed to “All citizens . . . full and equal accommodations ... of inns, restaurants, hotels, *547 eating houses . . . barber shops, bath houses, theatres, skating rinks, public conveyances, and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens.” Then in 1925 and succeeding years followed statutory prohibitions against race discrimination in the employment of teachers in California school districts, in civil service, in public works employment, and assistance programs for needy and distressed persons.

In 1959 the Legislature enacted a measure popularly known as the “Hawkins Act” (Health & Saf. Code, §§ 35700-35741) which prohibited “The practice of discrimination because of race, color, religion, national origin or ancestry in any publicly assisted housing accommodations. ...” (Italics added.) Also adopted at the 1959 legislative session was the California Fair Employment Practice Act (Lab. Code, §§ 1410-1432) prohibiting racial discrimination by certain employers and labor unions, thereby protecting and safeguarding the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, creed, color, national origin or ancestry. None of these guarantees against racial discrimination have been modified or impaired by the challenged constitutional amendment now engaging our attention.

In .1963 the Legislature, in enacting what is commonly known as the “Rumford Act” (Health & Saf. Code, §§ 35700-35744), chose to broaden the policy enunciated in the Hawkins Act, supra, with regard to discrimination in housing by extending the provisions of the Unruh and Hawkins Acts to regulate specifically discriminating conduct not only by persons in business establishments of every kind whatsoever, including persons engaged in the business of selling or renting residential property, brokers and others, but regulating such discriminatory conduct by owners of residential property containing more than four units even though not “publicly assisted.” It was this latter declared public policy only that was affected by the adoption of section 26.

I am impressed that charges made in the briefs of plaintiffs and amici curiae that the measure here under consideration was prompted by vicious motives cannot be sustained as against the clear language of the measure itself and the argument that was made to all the voters who cast their ballots at the election.

To discriminate means, insofar as applicable to the instant ease, “To make a difference in treatment or favor (of one as *548 compared with others)”; discrimination means . . an unfair or injurious distinction.” (Webster’s New Internat. Diet. (2d ed. 1954).) Contrary to the statutes and laws struck down because of racial discrimination in the cases relied upon by the majority, article I, section 26, now before us, grants equal rights and protection of the law to any person without regard to race, religion or color, to sell, lease or rent residential real property to any person as he chooses. Where is there discrimination or denial of equal rights to all in this enactment?

But, says the majority opinion, “It is now beyond dispute that the Fourteenth Amendment [Constitution of the United States], through the equal protection clause, secures ‘the right to acquire and possess property of every kind . . . without discrimination on account of color, race [or] religion. . . .’ (Buchanan v. Warley (1917) 245 U.S. 60, 62-63 [ 38 S.Ct. 16 , 62 L.Ed. 149 ].) . . . The question of the fact of discrimination by whatever hand, should give us little pause. The very nature of the instant action and the specific contentions urged by the defendants must be deemed to constitute concessions on their part that article I, section 26, provides for nothing more than a purported constitutional right to privately discriminate on grounds which admittedly would be unavailable under the Fourteenth Amendment should state action be involved. ’ ’

The answer to that is that section 26 does not sanction or condone racial or religious discrimination. It is rather a declaration of neutrality in a relatively narrow area of human conduct : the exercise of the discretion of a property owner to sell or not to sell or to rent or not to rent his residential property.

Since it is conceded that ‘ ‘ Individual invasion of individual rights is not the subject-matter of the [Fourteenth] amendment” (Civil Rights Cases, 109 U.S. 3, 11 [ 3 S.Ct. 18 , 27 L.Ed. 835 ]), it seems to me that any sound analysis of the constitutionality of section 26 must begin with the well established, but frequently ignored, premise that the prohibitions of the Fourteenth Amendment are directed at conduct for which the state is responsible or significantly involved and do not extend to private conduct however wrongful, discriminatory, unethical or violative or what may be regarded by many as the real philosophy of human relations. In other words, the state must be held responsible for denying a citizen the equal protection of the law.

The major constitutional attack on section 26 as contained in the majority opinion would seem to begin with the falla *549 cious assumption of the existence of a federal constitutional right to acquire property without racial discrimination from another citizen and leaps to the conclusion that the failure of the state to enforce that constitutional right inevitably involves the state in the constitutionally prohibited discrimination so significantly as to violate the Fourteenth Amendment. Nothing in the federal Constitution gives to one citizen the right to acquire property from another citizen who does not wish to sell it to him even if the refusal to sell is based on race or religion. A federal constitutional right arises only if the state is responsible for such discriminatory conduct or to some significant extent has been found to have become involved in it.

I am persuaded that in the absence of significant state involvement, the refusal of a property owner to sell or lease his property upon the grounds of race raises no federal constitutional question. As declared by the United States Supreme Court in the leading case of Burton v. Wilmington Parking Authority (1961) 365 U.S. 715, 722 [ 81 S.Ct. 856 , 6 L.Ed.2d 45 ] : “[P]rivate conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the state in any of its manifestations has been found to have become involved in it. ” (Italics added.)

And as was said by Mr. Justice Harlan in his concurring opinion in Peterson v. Greenville (1963) 373 U.S. 244, 249-250 [ 83 S.Ct. 1119 , 10 L.Ed.2d 323, 327 ], “The ultimate substantive question is whether there has been ‘State action of a particular character’ (Civil Rights Cases, supra [ 109 U.S. at p. 11 ])—whether the character of the State’s involvement in an arbitrary discrimination is such that it should be held responsible for the discrimination.

“This limitation on the scope of the prohibitions of the Fourteenth Amendment serves several vital functions in our system. Underlying the cases involving an alleged denial of equal protection by ostensibly private action is a clash of competing constitutional claims of a high order: liberty and equality. Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of protection from governmental interference. This liberty would be overridden, in the name of equality, if the strictures of the Amendment were applied to governmental and private action without distinction. Also inherent in the concept of State action are values of federalism, a recognition that there are *550 areas of private rights upon which federal power should not lay a heavy hand and which should properly he left to the more precise instruments of local authority.'” (Italics added.)

And since section 26, here in question, involves residential property, the views of Mr. Justice Douglas in his concurring opinion in Lombard v. Louisiana, 373 U.S. 267 at pp. 274-275 [ 83 S.Ct. 1122 , 10 L.Ed.2d 338, at p. 343 ] (one of the 1963 sit-in decisions) are cogent:

‘ ‘ If this were an intrusion of a man ’s home or yard or farm or garden, the property owner could seek and obtain the aid of the State against the intruder. For the Bill of Rights, as applied to the States through the Due Process Clause of the Fourteenth Amendment, casts its weight on the side of the privacy of homes. The Third Amendment with its ban on the quartering of soldiers in private homes radiates that philosophy. The Fourth Amendment, while concerned with official invasions of privacy through searches and seizures, is eloquent testimony of the sanctity of private premises. For even when the police enter a private precinct they must, with rare exceptions, come armed with a warrant issued by a magistrate. A private person has no standing to obtain even limited access. The principle that a man’s home is his castle is basic to our system of jurisprudence.”

Plaintiffs urge that the Constitution of California (article I, section 1) declares that among the inalienable rights guaranteed to all persons is the right of “. . . acquiring, possessing and protecting property.” But these rights not only include the right to acquire and possess property but also the right to dispose of it freely (Tennant v. John Tennant Memorial Home, 167 Cal. 570, 575 [ 140 P. 242 ]) and in any way not forbidden by law (People v. Davenport, 21 Cal.App.2d 292, 295-296 [ 69 P.2d 862 ]). Certainly the constitutional right to own and possess property includes the right to sell to one of the owner’s own choice subject only to a valid exercise of the police power for the protection of all the people. Never to my knowledge has article I, section 1, of our state Constitution been construed to give any person the right to acquire property from another who did not wish to sell it to him, however arbitrary his reasons might be. Section 1 of article I, when read with section 26, now means exactly what it meant prior to the adoption of legislation (the Unruh and Rumford Acts, supra) conferring a right to acquire property in certain instances without discrimination on grounds of race or religion. It is, therefore, erroneous, for plaintiffs to say that the *551 effect of section 26 is to “take from negroes but not from whites, some part of the inalienable rights granted by section 1. ” Under section 26 all persons of all races and creeds have exactly the same rights they have always had under section 1 in the absence of legislation and, to the extent any rights are restricted by section 26, such restrictions are applicable to all persons.

As I view it, the philosophy and rationale of article I, section 26, is epitomized by Mr. Justice Black, long an exponent of an expansive interpretation of the guarantees of the Fourth Amendment, when writing for himself and Justices Harlan and White in the dissent filed in the case of Bell v. Maryland (1964) 378 U.S. 226, 330-331 [ 84 S.Ct. 1814 , 12 L.Ed.2d 822, 858 ] wherein he said: “. . . the line of cases from Buchanan through Shelley establishes these propositions: (1) When an owner of property is willing to sell and a would-be purchaser is willing to buy, then the Civil Rights Act of 1866, which gives all persons the same right to ‘inherit, purchase, lease, sell, hold and convey’ property, prohibits a State, whether through its Legislature, executive, or judiciary, from preventing the sale on the grounds of the race or color of one of the parties. Shelley v. Kraemer, supra, 334 U.S. at 19 [92 L.Ed. at 1183, 3 A.L.R.2d 441 ], (2) Once a person has become a property owner, then he acquires all the rights that go with ownership: ‘the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save by the law of the land.’ (Buchanan v. Warley, supra, 245 U.S. at 74 [ 62 L.Ed. at 161 , L.R.A.1918C 1201]). This means that the property owner may, in the absence of a valid statute forbidding it, sell his property to whom he pleases and admit to that property whom he will; so long as both parties are willing parties, then the principles stated in Buchanan and Shelley protect this right. But equally, when one party is unwilling, as when the property owner chooses NOT to sell to a particular person or NOT to admit that person, as this Court emphasized in Buchanan , he is entitled to rely on the guarantee of due process of law, that is ‘law of the land,’ to protect his free use and enjoyment of property and to know that only by valid legislation, passed pursuant to some constitutional grant of power, can anyone disturb this free use.” (Italics added.)

As to the view of the majority that affording a property owner judicial recognition and enforcement of his property rights in the sale or leasing of residential property, on the ground that his motives in selling or leasing were based upon race, color or creed, spells out significant state involvement is *552 not, I submit, supported by statutory or decisional law. This I say because such denial, in the absence of a valid regulatory statute, would deprive such an owner of his property without due process of law because a property owner, as heretofore pointed out, has a constitutionally protected right to use and dispose of his property in whatever manner he wishes, not inconsistent with valid legislation. (Buchanan v. Warley (1917) 245 U.S. 60 [ 38 S.Ct. 16 , 62 L.Ed. 149 ] ; Richmond v. Deans (1930) 281 U.S. 704 [ 50 S.Ct. 407 , 74 L.Ed. 1128 ].)

In other words, since section 26 does not otherwise offend the Fourteenth Amendment, the mere recognition or enforcement by a court of—for instance—the termination of a month-to-month tenancy in accordance with its terms does not render the state responsible for the motives of the landlord.

In the instant case it is clear that section 26 has effectively repealed inconsistent portions of the Unruh and Rumford Acts, supra. Plaintiffs are, therefore, in the position of demanding that the courts refuse to recognize or actually prohibit conduct by defendants which is not now proscribed by any legislation.

When the Legislature adopted the Unruh, Hawkins and Rumford Acts, it was making a choice to impose sanctions upon certain owners of certain types of residential property if they refused to sell or lease it upon grounds of race, color, creed or national origin of the prospective purchasers. Certainly it cannot logically be contended that the Legislature would be barred from repealing those portions of the aforesaid statutes directing sanctions at private property owners in dealing with their own property and substitute therefor another program. If the Legislature has such discretion, then under the Constitution of this state, it cannot fairly be said that the people do not.

I am persuaded that none of the types of state involvement which have been held sufficient to invoke the Fourteenth Amendment in the cases relied upon in the majority opinion can be found in the California amendment here under attack. In fact, the very essence of section 26 is to remove the influence of the state from the formulation of private decisions affecting the sale or rental of privately owned residential property.

Plaintiffs seemingly contend and the majority opinion infers that all conduct which the state has the power to prohibit but which it does not prohibit is conduct for which the state is responsible for Fourteenth Amendment purposes. However, the Supreme Court of the United States has consistently and *553 without exception preserved the fundamental and long recognized principle that the Fourteenth Amendment does not reach private conduct however arbitrary or unenlightened it may be except only where such private conduct involves the performance of a traditional governmental or public function such as the conducting of elections, government of a town, the furnishing of public services under a monopoly granted by government, private zoning through restrictive covenants or operation of municipal parks. There is no suggestion in the cases now before us that the residential property involved is or ever has been owned, operated, financed or maintained by a governmental entity. Here the property is private residential property owned, operated and maintained by the private persons who were defendants in the court below.

Accordingly, the precise holding of the Supreme Court of the United States in the recent case of Evans v. Newton (1966) 382 U.S. 296 [ 86 S.Ct. 486 , 15 L.Ed.2d 373 ], based as it was on the continued municipal operation and maintenance of the property devoted to public use as a park, affords no comfort or support whatever to the attack on section 26. Just as the statute in Burton v. Wilmington Parking Authority, 365 U.S. 715 [ 81 S.Ct. 856 , 6 L.Ed.2d 45 ], could not provide the basis for a violation of the Fourteenth Amendment, so also section 26 does not provide the basis for a judgment that plaintiffs’ constitutional rights have been violated.

Admittedly, since government is not an exact science, one of the important factors deserving consideration concerning existing evils and the remedy therefor is prevailing public opinion. This is especially true when such public opinion has been reached after mature deliberation and is both deep-seated and widespread. By an overwhelming margin of popular votes, the people of California have made the same choice on the issue before us as has been made in 32 of our sister states, and our state still has more extensive regulations against racial discrimination than exist in 41 states of the union.

To analyze in detail the recent U.S. Supreme Court decision in Evans v. Newton, supra, would unduly prolong this already lengthy dissenting opinion. Suffice it to say that it is the most recent of a long line of United States Supreme Court decisions dating from the Slaughter-House cases in 1873 and Civil Rights cases in 1883 in which that court has steadfastly limited the sphere of the Fourteenth Amendment to conduct of the state or conduct for which the state can fairly be held responsible. In an unbroken line of decisions that court has *554 uniformly reiterated the principle that individual invasion of individual rights is beyond the regulatory ambit of the Fourteenth Amendment.

I do not justify discriminatory private conduct nor approve the state’s failure to forbid it, but I submit it is not the province of this court by judicial fiat to enact legislation, a function reserved to the People or the Legislature.

As was stated by Mr. Justice Goldberg, joined by the Chief Justice and Mr. Justice Douglas, in Bell v. Maryland, supra (1964) 378 U.S. 226 at p. 313 [ 84 S.Ct. 1814 , 12 L.Ed.2d 822 ], arguing for a federal right to equal access to public accommodations which the state may not infringe by judicial action against trespassers: “Prejudice and bigotry in any form are regrettable, but it is the constitutional right of every person to close his home or club to any person or to choose his social intimates and business partners solely on the basis of personal prejudices including race. These and other rights pertaining to privacy and private association are themselves constitutionally protected liberties.” (Italics added.)

Discrimination because of race or religion, political beliefs or other irrational grounds influences the conduct of individuals and society in many ways with as many effects. In virtually all but the artificially framed racial test ease, such discrimina-tions will, if present, be but one of many motivating factors. This, because we must realize that an innate quality of our very nature is that of selectivity. It manifests itself in our human behavior from the time we attain the use of reason practically until we draw our final breath. If, as conceded by plaintiffs in their briefs and at the oral arguments, and recognized in the majority opinion, we may be selective in choosing our associates in clubs, fraternal organizations, social intimates and business partners because of social or religious prejudice, then by what force of logic or justice should the state be permitted to assert its coercive powers to take from the individual property owner the decision as to who shall be admitted to that property as a resident neighbor or to whom the owner thereof may sell it, save by the law of the land ? Yet, this is exactly what the state would be doing in denying to a property owner judicial recognition and enforcement of his private contract and property rights upon the ground that his motives in seeking judicial relief are based upon race, color or creed. By reason of the repeal of certain provisions of the Rumford and Unruh Acts by the enactment of section 26, there is no valid existing regulatory statute depriving an owner of residential property of absolute discretion in the sale *555 or rental thereof. Therefore, since a property owner has a constitutionally protected right to dispose of and use his property in whatever manner he wishes not inconsistent with valid legislation, to deny such owner judicial relief would deny to him the equal protection of the laws in violation of the First, Third, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States.

The majority opinion relies upon the case of Shelley v. Kraemer, 334 U.S. 1 [ 68 S.Ct. 836 , 92 L.Ed. 1161 , 3 A.L.R.2d 441 ] as being analogous to the one with which we are here concerned. In Shelley , property subject to a racially restrictive covenant had been conveyed by a white owner to a Negro. Owners of a nearby property instituted an action to restrain Shelley, the Negro buyer, from taking possession, and to have title revested in the grantor. This case involved a “willing seller—willing buyer” relationship, and judicial enforcement of the restrictive covenant would have compelled the sellers to discriminate against their wishes. If the Shelley case stands for anything, it stands for the philosophy of section 26, by sustaining the freedom of sellers to select whomsoever they choose to buy their property, notwithstanding racial covenants. The key to both Shelley and Barrows v. Jackson, 346 U.S. 249 [ 73 S.Ct. 1031 , 97 L.Ed. 1586 ] (affirming Barrows v. Jackson, 112 Cal.App.2d 534 [ 247 P.2d 99 ]), where the courts refused to recognize a right to damages in neighboring property owners seeking recovery after breach of a racially restrictive covenant by a willing seller to a minority group buyer, is that, were the courts to give recognition to such a cause of action they would not be acting neutrally but actually would be compelling discrimination by a seller who did not wish to discriminate.

Neither ease supports the proposition that a state court would have been under a constitutional mandate to compel an owner to sell to a Negro if he preferred to adhere voluntarily to his restrictive agreement. Indeed, the court in Shelley expressly concluded “that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment.” ( 334 U.S. at p. 13 .) Later it noted that11 these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and ivhich the grantors are willing to sell. ’ ’ In short, ‘ ‘ but for the active intervention of the state courts, . . . petitioners *556 would have been free to occupy the properties in question without restraint.” ( 334 U.S. at p. 19 .) (Italics added.)

Plaintiffs’ arguments and the majority opinion based on the Shelley case simply do not apply to the cases now before this court where an unwilling seller or lessor is involved. As pointed out in Shelley , the court there was asked to enforce an agreement which denied to members of one race rights of acquisition, ownership, occupancy and disposition of property rights that were enjoyed as a matter of course by other citizens of a different race or color. Article I, section 26, of the California Constitution, now before us, applies to property owners without regard to race or color and, accordingly, the conduct condemned in the foregoing cases is not present here.

In support of its holding that a discriminatory act, even where the actor is a private citizen motivated by purely personal interests, may fall within the proscription of the equal protection clause if state or local government or the purpose of state or local government is significantly involved, the majority opinion herein cites the case of Burton v. Wilmington Parking Authority (1961) 365 U.S. 715, 722 [ 81 S.Ct. 856 , 6 L.Ed.2d 45 ]. This is a leading example of those cases presenting circumstances in which the state has leased state facilities either in whole or in part to a private person or group for carrying on activities or offering services to the public which the government may, but is not obligated to provide.

In Burton , the court found significant state involvement in restaurant discrimination because the land and building were publicly owned and had been acquired for “public use.” The premises were leased to a private operator but as a part of a publicly owned parking lot where the rental income from the restaurant was necessary for the financial stability of the parking operation.

The Burton case and those akin to it simply hold that if a state undertakes to provide or contribute to providing these services, it must obey the strictures of the Fourteenth Amendment, whether the state itself operates the facilities or limits its activities to leasing or financing the facilities operated by private persons but performing the same services.

None of the elements of state involvement present in the Burton case—the “white primary” cases where the holding was that the state could not escape the provisions of the Fourteenth Amendment by delegating to a private agency functions which were inherently governmental in character; or the so-called “sit-in” cases involving either municipal ordinances *557 requiring racial discrimination, where the court emphasized that it was not confronted with a private policy of discrimination or with mere enforcement by a state court of a state criminal trespass statute, but where the state invoked the statute to promote racial discrimination—is possible under the California constitutional provision here under attack. The very essence of section 26 is to avoid state involvement in private decisions in the sale or rental of privately owned residential property.

Plaintiffs rely on the case of Abstract Investment Co. v. Hutchinson, 204 Cal.App.2d 242 [ 22 Cal.Rptr. 309 ], cited in the majority opinion. In this case, the District Court of Appeal reversed a judgment for the plaintiff in an unlawful detainer action on the ground that the trial court had erred in refusing to admit evidence in support of certain affirmative defenses which alleged that plaintiff was terminating the tenancy solely because of the Negro defendant’s race. As indicated by excerpts on pages 247 through 251 of the Abstract case, the court was holding that under the law as it then existed racial discrimination was a ground for a court refusing to entertain or sustain a complaint for unlawful detainer because racial discrimination was contrary to the public policy declared inter alia in our state Constitution and in the Unruh and Hawkins Acts adopted by our state Legislature.

The extent of the significance attached by the District Court of Appeal to these state laws is reflected in its extensive discussion at pages 251 through 255 of the opinion concerning the constitutionality and applicability of these statutes.

To the extent that the court in Abstract relied upon state antidiscrimination legislation it should not be applied to cases such as the instant one involving as it does the leasing of residential property because of non-regulation by the state embodied in section 26. Likewise, to the extent Abstract was based upon the public policy provisions of the state Constitution, the holding was overruled by the adoption of section 26, here under attack insofar as the sale or leasing of residential property is concerned.

As I view it, another important issue presented to us is whether in the several states a person has a right of action under the Fourteenth Amendment to obtain judicial relief against another person who refuses on grounds of race to deal with him in the sale or leasing of private residential property. If he has such a right of action, then I agree that neither section 26, nor any statute, decision of any court, nor any vote of the electorate can properly deny it.

*558 Also, I certainly agree that conduct based on racial prejudice is injurious, that it is irrational, uncharitable, unenlightened and arbitrary. What I disagree with is the essential foundation of plaintiffs’ claim that racial discrimination practiced by private owners of private residential housing is directly forbidden by the Fourteenth Amendment. However delicately or artfully plaintiffs phrase the problem, whether in terms of “state responsibility” for not prohibiting what it has the power to prohibit, or of “ abdication of state responsibility” or of “purposefully permitting,” “authorizing” or “encouraging” discriminatory conduct, none of these words is so magic as to obscure the plain fact that the only conduct which has injured these plaintiffs is the conduct of private citizens with respect to their own private residential property. I submit the state cannot fairly be held responsible for that conduct unless it has a duty under the Fourteenth Amendment to prohibit such conduct, and that a state has that duty only if the Fourteenth Amendment contains a self-executing cause of action for racial discrimination in private housing.

No single case relied upon by plaintiffs or cited in the majority opinion holds or even suggests that there is such a cause of action under the Fourteenth Amendment. On the contrary, the authorities are unanimous in holding that no such federal constitutional cause of action now exists, that the Fourteenth Amendment does not extend and that sound reasons forbid its extension to the private conduct here involved.

Furthermore, recourse to the legislative history and debates in the Congress at the time the Fourteenth Amendment was under consideration clearly establishes that the amendment was designed to correct the unjust legislation of some of the states to the end that the law which operates upon one man shall operate equally upon all. This legislative history indicates that the purpose of the amendment was to prohibit state legislation such as was adopted in some of the states following the Civil War preventing Negroes from purchasing or leasing land, buying or selling other property or even making contracts precisely as by the federal Constitution, a state is forbidden to pass an “ ex post facto law. ’ ’

The Thirteenth Amendment had just been adopted inhibiting slavery but leaving the freedom of the emancipated people in the power of the states. Hence .the necessity of the prohibition to the states. By the very language of the amendment it is manifest that its entire structure rests on the discrimination made by laws of the various states.

*559 In an area concerned solely with the rights and obligations of citizens toward each other, the people have a right either directly or through their elected representatives to regulate that kind of conduct or not to regulate it. The adoption of section 26 of the Constitution of California evidences the decision of the people not to regulate such conduct in the sale or leasing of private residential property and extends such freedom of action to all persons, unrestricted by racial or religious barriers.

I would affirm the judgment.

Retired Associate Justice of the Sujjreme Court sitting under assignment by the Chairman of the Judicial Council.

For convenience this section of the Constitution will be referred to as section 26.