Petitioners Brief on Merits — Rice v. Sioux City Memorial Park Cemetery, Inc.
Supreme Court brief1955
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Supreme Court of the United States
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October Term, 1954
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No. 28
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—
EVELYN RICE,
Petitioner,
vs.
SIOUX CITY MEMORIAL PARK CEMETERY,
INCORPORATE)), A Comporation; F. K. LYTLE,
and J. M. @UNNELL,
Respondent.
SX
PETITIONER’S BRIEF ON THE MERITS
ray
——({)—
New R. McCivaay,
Winnebago, Nebraska,
Lowe. C. Kinpia,
503 Toy National Bank Building,
Sioux City 1, Iowa,
Counsel for Petitioner.
Jesse KE. MarsHAt,
1109 Badgerow Building,
Sioux City 1, Iowa,
H. C. Harpers,
615 Security Bank Building,
Sioux City 1, lowa,
Counsel for Respondent.
Cocxiz Printinc Co.,, Law Barers, Omana
i
INDEX
SUBJECT INDEX
Opinions Delivered in Courts Below .. CE reas 1
Statement of Grounds on which the Jurisdiction of
this Court Is Invoked WW iio
Constitutional and Treaty Provisions Involved 3
Questions Presses Ser eve oe ZZ
Statement of the Case een 4
a St nn teem Ow
MOI ari oiicc crececnn aia i
1. The ruling by the lowa Court is such State action
as is prohibited by the due process clause in the
Fourteenth Amendment... Be SAR
2. The ruling by the Iowa Court is such State action
as is prohibited by the equal protection clause of
the Fourteenth Amendment. 11
3. The ruling by the Iowa Court is a violation of the
United Nations Charter, a treaty of the United
States Government. . 16
4. The ruling by the Iowa Court erroneously inter-
prets the public policy of the United States Gov-
I chiistcinshatidinnniiinc-aistabiiad bhiké ainiinsaccobihaiahdaihn apes 23
Conclusion : is 25
IIE = shaiieiedisbibliccciinacadiltieeieiadiidaneiiciintcstcndeitapitiie ‘ 29
TABLE OF CASES CITED
Pages
Asakura v. Seattle, 265 U.S. 332 —..._ _.___......._— 18
Bacardi Corp. v. Domenach, 311 U.S. 150 200 oP
Barrows v. Jackson, 346 U.S. 249... W.7, 8, 9, 13, 24, 26
Bolling v. Sharpe, 98 L. ed. (Adv. p. 591) 20000000... 1
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281
I cal Na a a akilinestiemeneinal 8
Buchalter v. New York, 319 U.S. 427 8
Buchanan v. Warley, 245 U.S. 60 — oe 11,25
RR RR SS eee a |
Chambers vy. Florida, 3 5 2 ¢ 3 _eo 10
Chuctaw Indians v. United States, 318 U.S. 423 +18
Clifton v. Puente, 218 S. W. 2d 272 (Tex. Civ. APP
1948) i aia us 15, 26
Cook v. United States, 288 U. S. 102 00. dT
Curran v. City of New York, 77 N. Y. S. 2d 206 .W. 21
Davidson v. Bd. of Adms. of New Orleans, 96 U.S. 97 8
Den v. The Hoboken Land & — Co., 18 Howard
illest : steel Ca
Dorsey v. Stuyvesant Town ‘tae: 299 N. Y. 512, 87
N. EK. 2d 541, 14 A. L. R. 2d 133; certiorari denied
399 U.S. 981 ... vate Gegees ae
Foster v. Neilson, 7 L. Ed. 415 ........ cies ae
Fujii v. California, 242 Pae. 2d 617 20000... ee
Gandolfo y. Hartman, 49 Fed. 181 000 id
Geoffrey v. Riggs, 133 U.S. 58 000 7 8
Hurd v. Hodge, 334 U.S. 24 00 000. 7, 9, 12, 24, 26
iil
TABLE OF CASES—Continuned
Pages
Hurtado v. People of California, 110 U.S. 516 at 535,
a1, 532 isiccnisitniindhiaintalan . 9,10
Jordan v. Tashiro, 278 U.S. 123 | 18
Meyer v. Peabody, 212 U.S. 78 0... 8
Missouri v. Holland, 251 U.S. 415 oars 16
Namba v. MeCourt, 153 Ore. 579, 204 Pae. 2d 569 21
Oyama v. California, 332 U.S. 682... 22
Perez v. Lippold, 32 Cal. 2d 711 — 21
Phillips v. Naff, 52 N.W. 2d 158 (Mich.) 13
Santovineenzo vy. Egan, 284 U.S. 30 be 17
Shanks v. DuPont, 7 1. Ed. 666 —. - is
Shelley v. Kraemer, 334 U.S. 1 — nat: 9, 12, 13, 24, 26
Sipes v. McGhee, 316 Mich. 614, 25 N. W. 2d 638 a |
Tucker v. Alexandroff, 183 U.S. 424 —. ous 1s
Twining v. New Jersey, 211 U.S. 78 at 106 10
U.S. v. D’Auterive, 10 Howard 609, 15 L. Ed. 560 17
Ward v. Race Horse, 168 U.S. 504 | oo 17
STATUTES CITED
Article V1, Constitution of the United States. _ 16, 21, 27
Section 1, Amendment 14, Constitution of the United
States —.... s ~— i 33, 26, 27
The Vreamble and 5 Chae I, Article 1, | Sehpaee-
graphs 2 and 3, and Chapter IX, Articles 55 and
56, United Nations Charter oa > | F |
Civil Rights Act, 8 U.S.C. A. 41, et seq., 8 U.S.C. A,,
Sec. 42, et seq., 2 F.C. A. Title 8, See. 42 3, 23, 30
34 Iowa Law Review 1 _. a eetcomal ee
Supreme Court of the United States
Se |
October Term, 1954
a scemeeeneene -—--( )--~- + A cre nee sees
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EVELYN RICK,
Petitioner,
Vs.
SIOUX CITY MEMORIAL PARK CEMETERY,
INCORPORATED, A Corporation; F..K. LYTLE,
and J. M. GUNNELL,
Respondent.
ccintincsensessiittlliba
PETITIONER’S BRIEF ON THE MERITS
—0——_—_
OPINIONS DELIVERED IN COURTS BELOW
The opinion of the Supreme Court of Iowa herein
being reviewed is reported in 60 N. W. 2d 110 (Iowa 1953).
The decision of the United States District Court for
the Northern District of lowa, Western Division, remand-
ing the case to the State Court is reported in 102 Federal
Supplement 658.
—
STATEMENT OF GROUNDS ON WHICH THE
JURISDICTION OF THIS COURT IS INVOKED
Certiorari was sought and has been granted under
the provisions of 62 Statutes 929; 28 U.S.C. A., Section
9
1257(3) where right, title, privilege, or immunity are
claimed under the United States Constitution and under
a treaty of the United States Government. On November
20, 1953 the Supreme Court of Iowa, being the Court of
last resort, denied the petitioner’s petition for a rehearing
(R. 48). On February 15, 1954 petition for a writ of cer-
tiorari was filed in this Court, and on April 12, 1954 this
Court granted certiorari (R. 50).
The specific grounds on which jurisdiction of this
Court is invoked are:
1. The case involves rights and privileges claimed
under the United States Constitution and under a treaty
of the United States Government properly pleaded in all
stages of litigation.
2. The Iowa Court has directly and erroneously in-
terpreted the Fourteenth Amendment to the United States
Constitution adversely to this petitioner.
3. The Icwa Court has directly and erroneously in-
terpreted the applicability of the United Nations Charter,
a treaty of the United States Government, adversely ‘°
this petitioner.
4. The lowa Court has directly and erroneously in-
terpreted the public policy of the United States Govern-
ment adversely to this petitioner.
5. The precise question of whether a racial restric-
tive covenant may be successfully raised as a defense to
a damage action has never before been determined by this
Court, and the decision by the Iowa Court is erroneous
and presents a federal question of considerable substance
and great public importance.
CONSTITUTIONAL AND TREATY PROVISIONS
(a)
(b)
INVOLVED
‘¢* * * this constitution and the laws of the United
States which shall be made in pursuance thereof; and
all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme
law of the land; and the judges in every state shall
be bound thereby, anything in the constitution or laws
of any state to the contrary notwithstanding * * *.”’
Article VI, Constitution of the United States.
**All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens
of the United States and of the state wherein they
reside. No state shall make or enforce any law which
shall avridge the privileges or immunities of citizens
of the United States; nor shall any state deprive any
person of life, liberty, or property without due proe
ess of law; or deny to any person within its jurisdic-
tion the equal protection of the laws.’’
Sec. 1, Amendment 14, Constitution of the United
States.
(ec) Tie Preamble and Chapter 1, Article 1, Subpara-
(d)
graphs 2 and 8, and Chapter IX, Articles 55 and 56,
United Nations Charter.'
Civil Rights Act, 8 U.S.C. A. 41, et seq. 8 U.S.C. A.,
Sec. 42, et seq., 2 F.C. A., Title 8, See. 42.
ty
Vy
QUESTIONS PRESENTED FOR REVIEW
The questions presented are whether the Supreme
Court of Iowa erroneously ruled that the respondent cem-
| Set out verbatim in the Appendix.
2 Set out verbatim in the Appendix.
4
etery can use a racial restrictive covenant as a defense
to this damage action without such ruling becoming a
State action in violation of:
(a) The due process clause of the Fourteenth Amend-
ment.
(b) The equal protection clause of the Fourteenth
Amendment.
(c) The United Nations Charter, a treaty of the
United States Government, and
(d) The public policy of the United States Govern-
ment.
fy
Vs
STATEMENT OF THE CASE
Sergeant John Rice, who was 11/16ths Winnebago
Indian, was killed in action with the United Nations Fore-
es in Korea, and arrangements were made for the re-
turn of his body to his home in Winnebago, Nebraska.
Thereupon his widow, petitioner herein, arranged for
burial in the respondent cemetery in Sioux City, Iowa,
made a down payment and signed a printed contract on
August 12, 1951 for the purchase of cemetery lots con-
taining a clause granting burial privileges ‘‘only to mem-
bers of the Caucasian Race.’’ (R. 10.)
Thereupon the body arrived from Korea, and on Au-
gust 28, 1951 funeral services were held in the family
church at Winnebago, the funeral procession then went
to the respondent cemetery where graveside services were
held and the family and friends returned to their homes,
3
leaving the casket over the open grave with the belief
that it would be buried (R.13). Later that same day re-
spondent notified petitioner of its refusal to bury her
husband because he was not a member of the Caucasian
Race (R. 3 and 4) and that she would have to make other
arrangements, unless she would sign an affidavit to the
effect that her husband was a member of the Caucasian
Race, which she refused to do (R. 4).
Before final arrangements were made for burial, the
President of the United States intervened and made an
offer—which was accepted—to have the body sent to
Arlington National Cemetery in Washington, where final
services were held (R. 4).
On December 12, 1951 petitioner filed this damage
action in the District Court of Iowa, in and for Woodbury
County, claiming damages for humiliation and mental
suffering in the sum of $60,000.00 in each of three sep-
arate Counts, later twice amended, and the Cemetery, by
answer, claimed its conduct was justified by reason of
the racial restrictive clause in the contract, to which pe-
titioner responded that such a clause could not be used
as a defense. T’o avoid confusion resulting from the var-
ious amendments, a composite petition (R. 2-15) and an-
swer (R. 15-18) were by agreement filed by the parties
after respondent had unsuccessfully sought removal to
Federal Court (See 102 Fed. Supp. 658), and after the
State Court ruled adversely to respondent’s motion to
dismiss (R.18). Thereupon both parties made applica-
tion for adjudication of law points prior to trial and the
Court ruled thereon adversely to petitioner (R. 19-24).
Following the Court’s adjudication of law points, both
6
parties joined in an application for an interlocutory ap-
peal to the Iowa Supreme Court, which was denied (R.
24-26). Thereupon respondent sought and received a fa-
vorable adjudication on the remaining law points (R. 26-
29). Thereafter petitioner appealed to the lowa Supreme
Court, which ruled adversely to petitioner’s claim that
in allowing respondent to defend on the basis of the re-
strictive covenant the Iowa Court was committing such
State action as is prohibited by the due process and equal
protection clauses of the Fourteenth Amendment, the pub-
lie policy of the United States Government, and the United
Nations Charter (R. 30-44). Petitioner then sought re-
hearing on the same grounds (R. 45), which was resisted
(R. 46) and denied (R. 48). On February 15, 1954 peti-
tioner sought certiorari in this Court, and it was granted
on April 12, 1954 (R. 50).
ray
Avs
SUMMARY OF ARGUMENT
This argument is divided into four parts and a con-
clusion.
The first part is devoted to showing that the Iowa
Court’s ruling under all of the circumstances in this case
resulted in a violation of the due process clause of the
Fourteenth Amendment, and this for the reason that his-
torically in this country common decency in our govern-
ment requires that no such discrimination as has been
practiced here should be allowed to stand without redress.
The rights involved are fundamental human rights, and,
with the flexibility intended for constitutional interpreta-
tion and with legal precedence, there is justification for
holding that the due process clause has been violated.
7
The second phase of the argument is devoted to the
equal protection cl: use of the Fourteenth Amendment and
complains that petitioner has been discriminated against
and denied legal rights which would have been afforded
to persons under similar circumstances who had married
a member of the Caucasian Race. Emphasis is placed on
the recent decisions of this Court in Shelley v. Kraemer,
Hurd v. Hodge, and Barrows v. Jackson as being ample
legal precedent to support a reversal of the Iowa Court,
because its ruling has violated the equal protection clause
of the Fourteenth Amendment.
The third phase of the argument is devoted to the
applicability of the United Nations Charter and the er-
roneous interpretation and effect placed upon it by the
Iowa Court. Reference is made to Article VI of the United
States Constitution and to the Preamble and certain Ar-
ticles of the United Nations Charter. Reference is then
made to the applicable decisions requiring broad and lib-
eral interpretation of treaties. This phase of the argu-
ment is concluded by a showing that a broad and liberal
interpretation of the United Nations Charter requires a
finding that its purposes have been violated by the Iowa
Court.
The fourth and final phase of the argument is devoted
to a showing that the ruling of the Iowa Court results in
a violation of publie policy of the United States as skown
by the Constitution, acts of Congress, a treaty, and pro-
nouncements by this Court.
ARGUMENT
May it please the Court:
1. The ruling by the lowa Court is such State action
as is prohibited by the due process clause in the Four-
teenth Amendment.
State Courts are subject to all of the mardates in
the Fourteenth Amendment.
Brinkerhoff-Faris Trust & Savings Co. v. Hill,
281 U.S. 672.
Buchalter v. New York, 319 U.S. 427.
Den v. The Hoboken Land & Imp. Co., 18 Howard
272, 15 L. Ed. 372.
Shelley v. Kraemer, 334 U.S. 1.
Barrows v. Jackson, 346 U.S. 249.
The only question is whether the due process clause
is applicable to the facts of this case.
This Court has wisely and consistently refused to
give a precise definition to the due process clause of the
Fourteenth Amendment, indicating instead that what is
due process of law depends upon the circumstances and
varies with the subject matter and the neceasities of the
situation.
Davidson v. Bd. of Adms. of New Orleans, 96 U.
S. 97.
Meyer v. Peabody, 212 U.S. 78.
The question of the applicability of this clause to
cases involving racial restrictive covenants has recently
been presented to this Court but was not passed upon for
the reason that it was not necessary.
9
Shelley v. Kraemer, 334 U.S. 1.
Hurd v. Hodge, 334 U.S. 24.
Barrows v. Jackson, 346 U.S. 249.
In light of all of the circumstances in this case, peti-
tioner has been denied due process of law under the
Fourteenth Amendment for the reason that she has been
subjected to the loss of her property rights and mental
suffering and humiliation without any redress, contrary
to the established and fundamental principles upon which
this country was established as announced in its Consti-
tution and in the decisions of this Court.
Throughout the numerous decisions of this Court in
a great variety of cases involving the due proccss clause
of the Fourteenth Amendment, various tests are suggest-
ed and precedence or lack of it is given little weight since
each new case is examined on its own merits. And this
Court has held:
‘‘The 14th Amendment refers to the law of the
land of each state, * * * exerted within the limits of
those fundamental principles of liberty and justice
which lie at the base of all of our civil and political
institutions, * * *. Arbitrary power, enforcing its
edicts to the injury of the persons and property of
its subjects is not law * * *.”’
Hurtado v. People of California, 110 U.S. 516
at 535.
And in the same case, in discussing the desirability
and growth and flexibility, Justice Mathews said:
‘This flexibility and capacity for growth and
adaptation is the peculiar boast and excellence of
the common law * * *. The Constitution of the United
States * * * was made for the undefined and expand-
10
ing future * * * they must be held to guarantee not
particular forms of procedure, but the very substance
of individual rights to life, liberty and property.’’
Hurtado v. People of California, supra at 531,
532.
That more is required than procedural fairness was
recently reiterated by this Court in Shelley v. Kraemer,
334 U.S. 1.
In Twining v. New Jersey, 211 U.S. 78 at 106, this
Court asked:
‘‘Is it of such a nature that it must be included
in the conception of due process? Is it a fundamental
principle of liberty and justice which inheres in the
very idea of a free government and is the inalienable
right of a citizen of such a government? If it is, and
if it is of such a nature that pertains to process of
law, this court has declared it to be essential to due
process of law.
‘¢* * * the basic principle that all people must stand
in an equality before the bar of justice in every Amer-
ican court * * * under our constitutional system
courts stand against any winds that blow as havens
of refuge ior those who might otherwise suffer be-
cause they are helpless, weak, outnumbered, or be-
cause they are non conforming victims of prejudice
and publie excitement * * *. No higher duty, no more
solemn responsibility rests upon this court than that
of translating into living law and maintaining this
constitutional shield deliberately planned and _ in-
scribed for the benefit of every human being subject
to our Constitution of whatever race, creed, or per-
suasion.’’
Chambers v. Florida, 309 U.S. 27 at 241.
This Court has held that a statute limiting the right
of a property owner to convey his property to a person
11
of another race was a denial of due process of law (Bu-
chanan v. Warley, 245 U.S. 60, 62 L. Ed. 149) for the
reason that the discrimination aimed at by the statute
violated one of the basic and fundamental concepts of the
decency in the American Government. And it has heen
very recently indicated again by this Court that the equal
protection clause and the due process clause are not nec-
essarily interchangeable, even though frequently they are
used in that manner, and that school segregation resulted
in a violation of the due process clause of the Fifth
Amendment (Bolling v. Sharpe, 98 L. ed. (Adv. p. 591).
Petitioner does believe most strongly that the ruling
of the lowa Court has deprived her of her property with-
out due process of law and has violated one of the basic
concepts of equality and decency which are intended to
be covered by the due process clause, particularly when
we remember that the Fourteenth Amendment is to be
liberally construed (Byars v. U.S., 273 U.S. 28).
2. The ruling by the lowa Court is such State action
as is prohibited by the equal protection clause of the
Fourteenth Amendment.
A well-established requirement is that, because the
Fourteenth Amendment deals with basic civil and political
rights, it is to be liberally construed (Byars v. U.S., 273
U.S. 28), and in making this liberal construction
‘“‘The historical context in which the Fourteenth
Amendment became a part of the Constitution should
not be forgotten. Whatever else the framers sought
to achieve, it is clear that the matter of primary con-
cern was the establishment of equality in the enjoy-
ment of basie civil and political rights and the pres-
ervation of those rights from discriminatory action
1?
-_-
on the part of the States based on considerations of
race or color. Seventy-five years ago this Court an-
nounced that the provisions of the Amendment are
to be construed with this fundamental purpose in
mind.’’
Shelley v. Kraemer, 334 U.S. 1 at 23.
Stated differently, the question of a violation of the
Constitution (Fifth Amendment) is to be determined
‘‘not for any narrow, technical reason but for con-
siderations that touch rights so basic to our system
that after the Civil War their protection against in-
vasiou by the States was safeguarded by the Consti-
tution.”’
Hurd v. Hodge, 334 U.S. 24.
That discrimination has resulted in this case as the
result of the ruling by the I vu Court cannot be doubted.
No contrary logical analysis v.n be made. he restrictive
clause in the printed contract is on its face discriminatory,
and the Iowa Court has given its stamp ‘of approval to
that discrimination.
Fortunately it is no longer an open question whether
a State or Federal Court can directly enforce such a
covenant (Shelley v. Kraemer, 334 U.S.1; Hurd v. Hodge,
334 U.S. 24). By these rulings this Court gave new
strength to the equal protection clause. In both of these
cases this Court held that judicial enforcement of a racial
discriminatory covenant in a deed is prohibited by the
Fourteenth Amendment as pertains to State action and
by the Fifth Amendment and public policy as it pertains
to Federal action.
In citing these cases this Court found no difficulty
in recognizing the very basic rights involved, the obvious
13
discrimination based upon race or color, and that the de-
cision of the State Courts was such State action as was
prohibited by the Fourteenth Amendment, and that the
decision by the Federal Court in the Hurd case consti-
tuted a violation of the applicable provision in the Fifth
Amendment as well as public policy.
Following these two landmark cases which brought
to an end nearly a century and a half of legal approval
of discriminatory covenants in deeds in various State
Courts, those most directly affected by such rulings at-
tempted to restrict the effect of the Shelley and Hurd
rulings by such attempts as seeking damages for violation
of the racial restrictive covenant (Phillips v. Naff, 52 N.
W. 2d 158 (Mich.)). But these attempts to accomplish
indirectly what this Court so wisely held could not be
accomplished directly were finally resolved by this Court
in Barrows v. Jackson, 346 U.S. 249. This Court there
held that, if a State Court were to allow recovery of dam-
ages for violation of the restrictive covenant, it would be
such State action as is prohibited by the Fourteenth
Amendment, and further stated that the allowance of
damages would be:
‘*solely for the purpose of giving vitality to the re-
strietive covenant; that is to say to punish respondent
for not continuing to discriminate against non-Cau-
casians * * ° .’’
The very heart of the decision in the Barrows case
was that litigants through State Courts could not accom-
plish indirectly what Shelley v. Kraemer held could not
be accomplished directly.
Respondent cemetery in this case is attempting to
protect itself by using the restrictive covenant as a shield
14
in this damage action. The lowa Court by its ruling has
made it possible for the cemetery to use the covenant as
a defense. The lowa Court has therefore by its ruling
given vitality to the restrictive covenant and is punishing
getitioner for her failure to abide by it.
Respondent and the Iowa Court admit that the cove-
nant could not be specifically enforced, but the lowa Court
claims that, since it is neutral (R.36), it is not lending
support to the restrictive covenant. Clearly the Iowa
Court has not been neutral and, without the ruling of the
Iowa Court, the cemetery would have no legal basis on
which to defend its conduct.
Petitioner states again that she is not claiming that
ecntracts with racial restrictive covenants are illegal or
unconstitutional in and of themselves, nor is she claiming
that, so long as the parties to such contracts voluntarily
adhere to their terms, any wrong has been committed. Pe-
titioner’s case will not result in the disappearance of cem-
eteries intended only for members of a particular religious
belief or other private cemeteries devoted to particular
groups of people.’
Just as in the Shelley case, we are no longer con-
cerned with voluntary adherence to the terms of a private
contract because here as there one of the parties, petition-
er, refuses to adhere to it, and the question of that adher-
ence or lack of it is before the Court. The result is that
it is no longer just a private dispute because the Court
| Neither is petitioner suggesting that the cemetery was compelled
to sell the lot to her as was the situation in Dorsey v. Stuyvesant
Town Corp., 299 N. Y. 512, 87 N. E. 2d 541, 14 A.L.R. 2d 133)
certiorari denied 399 U.S. 981.
15
has been ealled upen to resolve it, and the lowa Court
cannot either directly under the Shelley case or indirectly
under the Larrows ease give its stamp of approval to
the covenant, but that is just what the lowa Court in this
ease has done.
If petitioner’s deceased husband had been a so-called
Caucasian, the cemetery’s conduct would have been sub-
ject to the recovery of damages, but, since petitioner's
husband was a part American Indian, the Lowa Court has
held that no recovery can be had and that petitiener must
bear her humiliation and grief without redress. This is
the clearest type of discrimination and can be justified
only by use of the restrictive covenant, and the Lowa
Court has held that such justification may be used. The
lowa Court has therefore itself violated the equal pro-
tection clause in.the Fourteenth Amendment.’
Interestingly, a Federal District Court in the State
of California many years ago correctly analyzed the prob-
lem when it said?
‘‘It would be a very narrow construction of the
constitutional amendment in question and of the de-
cisions based tipon it, and a very restricted applica-
tion of the broad principles upon which beth the
amendment and the decisions proceed, to hold that,
while state and municipal legislatures are forbidden
2 It is interesting to observe that in 1948 the Texas Civil Appeals
Court, in refusing to give judicial sanction to a restrictive covenant
forbidding the sale of land to persons of Mexican descent, rea-
soned that as a result of the litigation it was no longer @ question
of the voluntary choice of the parties to abide by the covenant
but had now become the choice of the State of Texas.
Clifton v. Puente, 2/8 S. W. 2d 272 (Tex. Civ. App. 1946).
16
to discriminate against the Chinese in their legisia-
tion, a citizen of the state may lawfully do so by
contract, which the courts may enforce. Such a view
is, | think, entirely inadmissible. Any result inhibited
by the constitution can no more be accomplished by
contract of individual citizens than by legislation, and
the court shovld no more enforce the one than the
other. This would seem to be very clear.”
Gandolfo v. Hartman, 49 Fed. 181.
3. The ruling by the Iowa Court is a violation of
the United Nations Charter, a treaty of the United States
Giovernment.
The Iowa Court quite summarily dismis: s this con-
tention by stating that the treaty has no ay dlieation to
the private conduct of individual citizens of the United
States (R.38) and by stating that the treaty does not
have the effect of superseding State laws rela‘ ng to con-
tracts (R. 39).
Article VI of the United States Constitu’ on specifi-
cally states that treaties under the authority of the United
States ‘‘shall be the supreme law of the lanj; and the
judges in every state shall be bound thereby, «aything in
the constitution or laws of any state to the co::trary not-
withstanding * * *.”’
Here then is another constitutional mancate which
the lowa Court has refused to cbey, and, if there be any
question about it, we will refer to some of the decisions
in this Court construing treaties and the effect of Article
VI hereinabove referred to.
One of the leading cases for interpretation and effect
of treaties is Missouri v. Holland, 251 U.S. 415, wherein
Mr. Justice Holmes, referring to the Migratory Bird
7
Treaty between the United States and Canada after a
Congressional attempt at control was declared unconsti-
tutional, said in part:
‘*Acts of Congress are the supreme law of the
land only when made in pursuance of the Constitu-
tion, while treaties are declared to be so when made
under the authority of the United States. * * * We do
not mean to imply that there are no qualificstions i
the treaty-making power; but that must be ascer-
tained in a different way. * * * and it is not lightly
to be assumed that, in matters requiring national ac-
tion, ‘a power which must belong to and somewhere
reside in every civilized government’ is not to be
found. * * * No doubt the great body of private rela-
tions usually falls within the control of the state, but
a treaty may override its power.’’ (Emphasis ours.)
It has been variously said that treaties are to be taken
in their ordinary meanings as understood in the public
law cf nations and not any artificial or special sense im-
pressed upon them by local law; Santovincenzo v. Egan,
284 U.S. 30; Geoffrey v. Riggs, 133 U.S. 58; United
States v. D’Auterive, 10 Howard 609, 13 Law Ed. 560;
treaties should be so construed as to uphold the sanctity
of publie faith, Ward v. Race Horse, 163 U.S. 504; words
with plain meaning cannot be rejected as surplusage in
treaties, Foster v. Neilson, 7 Law Ed. 415; and in con-
struing a treaty its history should be consulted, Cook v.
United States, 288 U.S. 102.
Treaties are to be construed in a broad and liberal
spirit and, where it fairly admits of two constructions,
that one is preferred which enlarges rather than limits
rights which may be claimed under such treaty.
Bacardi Corp. v. Domenach, 311 U.S. 150.
18
Jordan v. Tashiro, 278 U.S. 123.
Asakura v. Seattle, 265 U.S. 332.
Shanks v. DuPont, 7 Law Ed. 666.
Geoffrey v. Riggs, 133 U.S. 58.
Treaties are to be construed more liberally thar pri-
vate agreements, and it is permissible to look beyond the
written word: to the history of the treaty, the negotia-
tions, and the practical construction adopted by the par-
ties.
Choctaw Indians v. United States, 318 U.S. 425.
Because treaties are solemn obligations entered into
between nations for the interest of civilization, and as
their main object is to avoid war and secure a lasiing
peace and promote a friendly feeiing, they should be intez-
preted in that bread and liberal spirit which is calculated
to make for the existence of perpetual amity.
Tucker v. Alexandroff, 183 U.S. 424.
There can be no question then but that in approach-
ing this phase of our argument the United Nations Char-
ter and its effect and applicability must be viewed with a
broad and liberal rather than a confining interpretation.
Here the question cannot be whether a treaty can super-
sede local State laws pertaining to the conduct of private
individuals, but rather whether the United Nations Char-
ter was intended to serve as a mandate to the Iowa Court
that it couid not allow the cemetery to defend this action
on the basis of the restrictive covenant in question.
We come, therefore, to the problem of determining
the intended effect of the United Nations Charter.
19
The Preamble to the United Nations Charter, as set
forth in full in the Appendix to this argument, states in
part as follows:
‘‘We the peoples of the United Nations deter-
mined to save succeeding generations from the scourge
of war, which twice in our lifetime has brought untold
sorrow to mankind, and to reaffirm faith in funda-
mental human rights, in the dignity and worth of
the human person, in the equal rights of men and
women and of nations large and small, and to estab-
lish conditions under which justice and respect for
the obligations arising from treaties and other soure-
es of international law can be maintained, and to
promote social progress and better standards of life
in larger freedom, and for these ends to practice tol-
erance and live tegether in peace with one another as
good neighbors, and to unite our strength to maintain
international peace and security, and to ensure, by
the acceptance of principles and the institution of
methods, that armed force shall not be used, save in
the common interest, and to employ international ma-
chinery for the promotion of the economic and social
advancement of all peoples, have resolved to combine
our efforts to accomplish these aims. * * * ”’
Chapter 1, Article 1, Subparagraphs (2) and (3) of
the Charter state, in part, as follows:
¢¢ *
‘‘The Purposes of the United Nations are:
‘‘2. To develop friendly relations among nations
based on respect for the principle of equal rights and
self-determination of peoples, and to take other ap-
propriate measures to strengthen universal peace;
‘8. To achieve international cooperation in solv-
ing international problems of an economic, social,
cultural, or humanitarian character, and in promoting
and encouraging respect for human rights and for
fundamental freedoms for all without distinction as
to race, sex, language, or religion; * * * ”’
20
Finally Chapter IX, Articles 55 and 56 of the Charter
state, in part, as follows:
‘Article 55
‘*With a view to the creation of conditions of
stability and well-being which are necessary for peace-
ful and friendly relations among nations based on
respect for the principle of equal rights and self-d.-
termination of people, the United Nations shall pro-
mots: © * .*
‘‘e. universal resnect for, and observance of,
hu:nan rights and fundamental freedoms for all with-
out distinction as to race, sex, language, or religion.”
‘Article 56
‘‘All Members pledge themselves to take joint
and separate action in cooperation with the Organiza-
tion for the achievement of the purposes set forth in
Article 55.’
This Charter, devised and entered into by the great-
est minds of the world at the conclusion of World War II,
most clearly indicates not only the desire but the necessity
that human freedoms be protected without respect to
race or creed if international strife such as was suffered
in World War II is to be avoided. This Charter, with the
high and noble purpose of avoiding war and improving
the lot of mankind generally, must be given the broadest
and most liberal interpretation possible under the cases
hereinbefore cited.
It requires no stretch of the imagination but only 4
plain reading of the Charter to realize that it was intend-
ed to prevent just such discrimination and lack ef equality
as is apparent in this case. Article 56 above quoted spe-
2]
cifically states that each member nation will take joint
and separate action for the achievement of the broad pro-
tection of human rights and freedoms without disevimina-
tion. It is therefore incumbent upon the United States
Government, through its appropriate agencies, to make
certain that these fundamental principles are not violated
within the boundaries of the United States of America.
More explicitly, Article VI of the United States Constitu-
tion states most thoroughly that the State Courts are
bound by the great purposes of this United Nations Char-
ter, irrespective of anything in the Constitution or laws
of that State to the contrary.
It is therefore apparent that the Iowa Court, bound
as it was by this solemn treaty of the United States Gov-
ernment, is in error by trying to restrict or limit the
meaning of the Charter and by agreeing with the Michi-
gan Court that the Charter was merely indicative of a
desirable social trend (R. 39). It cannot possibly be said
that the Iowa Court, by the ruling herein complained of,
is giving even lip service to the Preamble or Article 55(c)
of the Charter, even though it is bound under Article 56
to affirmatively promote the purposes sci forth in Article
55.
This is not a novel suggestion and has previously
been discussed in such cases as Perez v. Lippald, 32 Cal.
2d 711; Namba v. McCourt, 153 Ore. 579, 204 Pace. 2d 569;
Curran v. City of New York, 77 N.Y.S. 2d 206; Fujii v.
California, 242 Pac. 2d 617; Stipes v. McGhee, 316 Mich.
614, 25 N. W. 2d 638. See also 34 lowa Law Review 1.
More important, this question has been discussed by
past and present members of this Court in the case of
99
Re
Oyama v. California, 332 U.S. 632, where at page 673
Mr. Justice Murphy and Mr. Justice Rutledge in a con-
curring opinion stated:
‘*Moreover, this nation has recently pledged it-
self, through the United Nations Charter, to promote
respect for, and observance of, human rights and fun-
damental freedoms for all without distinction as to
race, sex, language and religion. The Alien Land Law
stands as a barrier to the fulfillment of that national
pledge. Its inconsistency with the Charter, which has
been duly ratified and adopted by the United States,
is but one more reason why the statute must be con-
demned.’’
And at pages 649, 650 Myr. Justice Black and Mr. Justice
Douglas in a concurring opinion state:
‘‘There are additional reasons now why that law
stands as an obstacle to the free accomplishment of
our policy in the international field. One of these rea-
sons is that we have recently pledged ourselves to
cooperate with the United Nations to ‘promote * * *
universal respect for, and observance of, human
rights and fundamental freedoms for all without dis-
tinction as to race, sex, language, or religion.’ How
can this nation be faithful to this international pledge
if state laws which bar land ownership and occupancy
by aliens on account of race are permitted to be en-
forced ?’’
There as here the same question can be asked. How
can the United States be faithful to its pledge in solemn
treaty with other countries if its Courts, or the Courts of
the State of Iowa, given the opportunity presented in this
case, do not refuse, both directly and indirectly, to allow
respondent to use the restrictive covenant as a shield in
this action for damages when the only possible justifica-
23
tion for the cemetery’s conduct is bottomed on racial dis-
crimination?
4. The ruling by the Iowa Court erroneously inter-
prets the public policy of the United States Government.
The lowa Court has held that there is some doubt
as to whether the public policy of the United States is
violated by its ruling in this case (R. 40). We fail to
understand that doubt because the Iowa Court, citing some
of its own cases, indicates that to determine policy we
must look to the Constitution, statutes, and judicial de-
cisions (R. 40). That is precisely what we have consistent-
ly urged.
The Constitution of the United States clearly prohib-
its any action by the States which will result in the loss
of life, liberty, or property without due process of law,
or which will result in denying any person within its juris-
diction equal protection of the laws, all as is shown by
the. Fourteenth Amendment to the Constitution. The
United States Congress has enacted what is known as the
Civil hights Act, 8 U.S.C. A. 42, 2 F.C. A. Title 8, See.
42, which is aimed at preventing racial discrimination.
Thus we have the Constitution itself and an act of Con-
gress to indicate the public policy of the United States
Government, and, if that is not enough to satisfy the Iowa
Court, then the United Nations Charter, which is a treaty
requiring the member nations to protect its citizens
against racial discrimination, should clearly indicate the
public policy of the United States.
24
If there is still some doubt as to what this policy is,
the United States Supreme Court has several times an-
nounced it:
‘‘But even in the absence of the statute, there
are other considerations which would indicate that
enforcement of restrictive covenants in these cases
is judicial action contrary to the public policy of the
United States * * *. Where the enforcement of pri-
vaie agreements would be violative of that policy, it
is the obligation of courts to refrain from such exer-
tions of judicial power.’’
Hurd v. Hodge, 334 U.S. 24 at 34 and 35.
See also Shelley v. Kraemer, 334 U.S. 1.
Barrows v. Jackson, 346 U.S. 249.
We therefore have the Constitution of the United
States, a treaty of the United States, an act of Congress,
and decisions of the United States Supreme Court indi-
cating that the public policy of the United States Govern-
ment is opposed to such conduct as ‘s herein complained
of. In fact, the history of the United States from its
organization up to the present time is replete with indi-
cations, which have been heard around the world, that any
form of discrimination based upon race or color is pro-
hibited.
There cannot be the slightest doubt but that the public
policy of the United States has been violated here and
the Iowa Court has, by its ruling, offended that policy.
This Court, having assumed jurisdiction of this case,
should now correct that ruling and re-establish the public
policy of the United States Government.
—- oO
25
CONCLUSION
Petitioner has presented four reasons why the ruling
of the Iowa Court should be reversed, any one of which
standing alone would be sufficient cause for reversal.
We are dealing here with fundamental rights granted
to petitioner and others not because of some statute but
because individual liberties and common decency demand
it. This is basic in the history of the common law and in
the history of this Court and has been incorporated into
the Constitution of the United States.
A cruel and humiliating thing has been done to peti-
tioner by the respondent cemetery, and yet the lowa Court
has told petitioner that, even though she has been wronged,
she has no redress and she must suffer the consequences
of having married an American Indian rather than a so-
called Caucasian. This is a fundamental issue involving
fundamental human rights, and, since no one could even
suggest that the cemetery could have committed the same
acts without redress if petitioner’s husband had been a
so-called Caucasian, it is apparent that discrimination be-
cause of her interracial marriage is the only logical result
of the Iowa Court’s ruling. This being so fundamental a
right and being so firmly bottomed on discrimination, this
Court could well hold with reasoning similar to that found
in Buchanan v. Warley that due provess of law has been
denied to the petitioner.
The petitioner has more than lack of due process to
complain of. Again because of the very nature of the case
and the result of the lowa Court’s ruling, discrimination
is involved, and this discrimination is based upon the fact
26
that Sergeant Rice was part American Indian rather
than a so-called Caucasian. This is racial discrimination
in its simplest form, and such racial discrimination is
clearly prohibited by the equal protection clause of the
Fourteenth Amendment. To hold that this terrible thing
could be done to petitioner without redress because she
married a non-Caucasian, and for no other reason, is the
most violent sort of discrimination by the Iowa Court and
is therefore such discrimination by the State of Iowa as
is prohibited by the equal protection clause.
As said by the Texas Court in Clifton v. Puente, it
was no longer a question of the voluntary choice of the
parties to abide by the discriminatory clause but had now
become the choice of the State of Texas. Obviously the
parties in this case have not voluntarily adhered to the
restrictive covenant and, the matter being in Court, it was
the Iowa Court’s choice to abide or not abide by the re-
strictive covenant, and the Iowa Court chose to abide by
it, thereby violating the equal protection clause of the
Fourteenth Amendment.
Shelley v. Kraemer said that a State Court cannot
specifically enforce such a covenant in a deed, and Hurd v.
Hodge said that the public policy of the United States
would be violated if a Federal Court enforced such a cove-
nant. Barrows v. Jackson said that a State Court could
not allow recovery of damages for refusal to abide by
the restrictive covenant on the sound reasoning that what
cannot be done directly cannot be done indirectly, and the
allowance of recovery of damages would result in giving
vitality to the objectionable covenant in question. It is
inescapable that the Iowa Court has given vitality to this
> land
mf
restrictive covenant by allowing the cemetery to defend
on the basis of it, and such ruling by the Iowa Court vio-
lates the equal protection clause of the fourteenth Amend-
ment.
If more is needed, the United Nations Charter pre-
sents but another reason why the Iowa Court should be
reversed. Under Article VI of the Constitution, the
treaty supersedes State laws and is binding on the lowa
Courts, and under the many decisions in this Court, the
treaty is to be given a broad and liberal interpretation.
A broad and liberal interpretation of the United Na-
tions Charter compels the conclusion that the lowa Court
was bound to discredit any attempt at racial discrimina-
tion, and in this general type of case members of this
Court have agreed.
Finally. if there is still any doubt about the matter,
the first three phases of our argument can be combined
to give strength to the proposition that the ruling of the
Iowa Court is contrary to the public policy of the United
States.
There is nothing vague or indefinite or nebulous about
the policy involved. It has been announced in the Consti-
tution, it has been announced in an act of Congress, it
has been announced by a treaty, and it has beeu announced
by the decisios of this Court, not once but many times,
that discrimination because of race, creed, or color is
contrary to the public policy of the United States.
Petitioner has been discriminated against, and the
only possible justification which either the respondent or
the Iowa Court has been able to muster is the restrictive
28
covenant in the contract. This restrictive covenant dis-
criminates against those who are not members of the
so-called Caucasian Race and does nothing else. That is
its sole function. A Court which enforces it or allows it
to be used as a basis for a damage suit, or allows it te be
used as a defense against a damage suit, is giving vitality
to that covenant. The lowa Court has given it vitality
and should be reversed.
The decision of the Iowa Supreme Court should be
reversed and the case remanded to that court with instrue-
tions to take such appropriate action as is needed to con-
form to this decision with costs in the Supreme Court of
lowa and in this court taxed to the respondent and for
such other relief as this court may deem proper.
Respectfully submitted,
Nem R. McCiunan,
Winnebago, Nebraska,
Lowe. C, Kinpic,
503 Toy National Bank Building,
Sioux City 1, Lowa,
Counsel for Petitioner.
Kinpia & BEEBE,
Of Counsel.
PY
APPENDIX
The Preamble to the United Nations Charter recites,
in part, as follows:
‘“We the peoples of the United Nations deter-
mined to save succeeding generations from the scourge
of war, which twice in our lifetime has brought untold -
sorrow to mankind, and to reaffirm faith in funda-
mental human rights, in the dignity and worth of the
human person, in the equal rights of men and women
and of nations large and small, and to establish con-
ditions under which justice and respect for the obli-
gations arising from treaties and other sources of
international law can be maintained, and to promote
social progress and better standards of life in larger
freedom, and for these ends to practice tolerance and
live together in peace with one another as good neigh-
bors, and to unite our strength to maintain interna-
tional peace and security, and to ensure, by the accept-
ance of principles and the institution of methods, that
armed force shall not be used, save in the common in-
terest, and to employ international machinery for the
promotion of the economic and social advancement of
all peoples, have resolved to combine our efforts to
accomplish these aims. * * * *’
Chapter 1, Article 1, Subparagraphs (2) and (3) of
the United Nations Charter read, in part, as follows:
‘‘The Purposes of the United Nations are: * * *
‘*2. To develop friendly relations among nations
based on respect for the pritiple of equal rights and
self-determination of peoples, and to take other ap-
propriate measures to strengthen universal peace;
‘*3. To achieve international cooperation in solv-
ing internationsa! problems of an economic, social,
cultural, or humanitarian character, and in promoting
and encouraging respect for human rights and for
30
fundamental freedoms for all without distinction as
to race, sex, language, or religion; * * * ”’
Chapter LX, Articles 55 and 56 of the Charter, reads
in part as follows:
“Article 55
‘‘With a view to the creation of conditions of
stability and well-being which are necessary for peace-
ful and friendly relations among nations based on
respect for the principle of equal rights and self-de-
termination of people, the United Nations shal! pro-
mote;:.° * *
‘fe. universal respect fer, and observance of,
human rights and fundamental freedoms for all with-
out distinction as to race, sex, language, or religion.”’
‘“‘Article 56
‘‘All Members pledge themselves to take joint
and separate action in cooperation with the Organiza-
tion for the achievement of the purposes set forth
in Article 55.’’
Civil Rights Act, 42 U.S.C. A., See. 1981:
‘*Equal rights under the law. All persons within
the jurisdiction of the United States shall have the
same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws and pro-
ceedings for the seemity of persons and property as
is enjoyed by white citizens, and shall be subject to
like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.’’
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.