# Respondents Brief — Rice v. Sioux City Memorial Park Cemetery, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0112%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1955 - **Citation:** 349 U.S. 70 ## Text LI SRARY SUPREME Court, u @ SEP ] Supreme Court of the United States Vv October Term, 1954 No. 28 EVELYN RICE, Petitioner, VS. SIOUX CITY MEMORIAL PARK CEMETERY, INCORPORATED, A Corporation; F. K. LYTLE, and J. M. GUNNELL Respondent. —o-~ RESPONDENT’S BRIEF 4). ae ESSE FE. Marswauy, Of Counsel: 1109 Badgerow Bldg., Suvutyt & Marsan Sioux City, Iowa, ' ¢ 1109 Badgerow Bldg., . C. Harper, Sioux City, Iowa, 615 Security Bank Bldg., “ : Harper, GLeysteen & NeLsow Sioux City, Iowa, : ; 615 Security Bank Bldg., Counsel for Respondent. Sioux City, Iowa, pew R. McCuivnan, Of Counsel: Winnebago, Nebraska, Kixpic & Brese OWELL ©, Kinvic, eee oe 502 Toy National 903 Toy National Bank Building, Bank Building, Sioux City, Iowa, Sioux City, Iowa, Counsel for Petitioner. Cocamiz Pantine Co., Law Bammrs, Omana i INDEX SUBJECT INDEX Pages Opinion Delivereé by Coarts Below Statement of Grounds _... ES ACM OES Constitution and Treaty Provisions Involved 2 Questions Presented for Review 2 porte ce Ek EEE RE OS SET AC st tepes Hoc nae TE EO CR Argument: 1. No State Action Is Involved _. i 2. The United Nations Charter does not prevent ra- cial discrimination by private citizens of States _ 12 3. There is no Federal Public Policy forbidding Ra- cial Discrimination by Private Citizens of States... 14 we 16 SE eee TABLE OF CASES CITED Barrows v. Jackson (1953, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586) ‘ye Wh 5,17 Civil Rights cases (1883, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835) .. LPR A 15, 16 Clifton v. Punte (Tex. Civ. App. 1948), 218 S. W. 2d 272 ~ 11, 12 Dorsey v. Stuyvesant Town Corporation (299 N. W. 012, 87 N. E. 2d 541, 14 A. L. R. 2d 133, Cert. Den. 399 U.S. 981, 70 S. Ct. 1019, 94 L. Ed. 1385) _.6,7,8,9 Fujii v. California (217 Pae. 2d 481, 218 Pac. 2d 595, Reversed in 242 Pac. 2d 617, 622, 38 Cal. 2d 718)... «13 i TABLE OF CASES—Continued Pages Gandolfo v. Hart (Ct. C. Calif. 1892), 49 Fed. 181 10,11 Hurd v. Hodge (334 U.S. 24, 68 S. Ct. 847, 92 LL, Kd. 1187) ..... za 5 ee 4, 14, 15 MeGee y. Sipes (1948, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1187, 3 A. 1. R. 2d 441) aad 12, 13,17 Rice v. Sioux City Memorial Park Cemetery, et al Taek, Sere Oe Pes We, Oe Oe 1 Riee v. Sioux City Memorial Park Cemetery, et al (U.S. D. Ta.), 102 Fed. Supp. 658 0 Richardson vy. Mellish, 2 Bing 299 CO Richmond vy. — & Sioux City Ry. Co. (1868), 26 Ia. 191 . ane EERO FL a RNR | Shelley v. Kraemer (1948, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1187, 3 A. L. R. 2d 44] asinine ay! May By BA Sipes v. MeGee (316 Mich. 614, 25 N. W. 2d 638, 644... 13 Stuyvesant Town Corp. v. Berg (126 N. Y. L..J. 1008 9, 10 STATUTES, ANNOTATIONS AND ARTICLES CITED American Bar Association Journal, Vol. 40, No. 8, i Wr ROS PO 8,9) Annotations: 3 A.L.R. 2d 466 0. 18, 14 14 A.L. R. 2d 153 | Spamiaicumlincasigaa ae mee Jivil Rights Aet cof 1886 (8 U.S.C.A., §$ 41-42, 2 F.C. A., Title 8, §§ 41-42) CE EAE LM OS 4,15 Fifth Amendment —_.. siinninnbntbdnbitiosccd tt Ae ae Fourteenth Amendment 2, 3, 4, 5. 8, 10, 11, 16, 17 lowa Civil Rights Acts ‘agus (3) Code of Towa 1950) ator ontesteummanme Sukie rane 5, 6 STATUTES, ANNOTATIONS AND ARTICLES—Cont. Pages lowa Civil Rights Acts, Amendment (Chapter 84— eee a POR a 6 United Nations Charter —. ee < + YS we Sapreme Court of the United States 0 October Tim, 1954 No. 28 Vv EVELYN RICE, Petitioner, VS. SIOUX CITY MEMORIAL PARK CEMETERY, INCORPORATED, A Corporation: F. K. LYTLE, and J. M. GUNNELL Respondent. ) RESPONDENT'S BRIEF 5 A OPINION DELIVERED IN COURTS BELOW The statement in Petitioner’s Brief under this head- ing is correet, except that the opinion of the Supreme Court of lowa reported in 60 N. W. 2d 110 is the only decision herein involved. The decision in the United States District Court for the Northern District of fowa, Western Division, reported in 102 Fed. Supp. 658 is in no way involved. 0 STATEMEN’. OF GROUNDS Statement contained in Petitioner’s Brief under this heading is correct. CONSTITUTION AND TREATY PROVISIONS INVOLVED Statement contained in Petitioner’s Brief under thi- heading ix eorrect, —— | QUESTIONS PRESENTED FOP REVIEW Statement contained in Petitioner’s Brief under this heading is correct, except that we vould restate the ques- tion in slightly different form as follows: The review presents the single question whether the decisions of the Courts of Iowa, the Trial Court and the Supreme Court, constituted ‘‘state action’’ in con- travention of the Fourteenth Amendment to the Unit- ed States Constitution; any provision of the United Nations Charter; or, any applicable Federal Public Policy. ray FP STATEMENT OF THE CASE Petitioner’s statement of the case is accurate with the following modifications : ~” The contract in question was not strictly one fer the purchase of cemetery lots, but was one for ‘*Right of sepulture * * * for burial purposes only * * * and burial privileges accrue only to members of the Caucasian Race.’’ (R. 10.) There is nothing in Petitioner’s Petition filed in the court below claiming any fraud or asking reformation of the contract. (See Petition R. 2-9.) wekiestnes ans Sonik oth a ea ae sae EY RUE ES MN a uy 3 The case was not tried on the merits, but was heard on appeal in the Supreme Court of lowa upon the ruling of the Trial Court, upon points of law, and particularly the Prial Court’s ruling: (a) That while the burial contract between the par- ties is unenforceable by Court action because of the racial restriction, it is ‘‘not void’’: (R, 22 (b) That no ‘state action’? contrary to the Four- teenth Amendment or the United Nations Char- ter is involved, in permitting defendant to defend against an action for damages. (R, 22-24.) SUMMARY OF ARGUMENT Respondent’s argument is presented under three (3) heads: 1. No ‘‘state action’’ is involved contrary to the Four- teenth Amendment (either the ‘‘due process’’ or the ‘‘equal protection’’ clauses) by the ruling of the Iowa Court. ~ 2. The United Nations Charter does not prevent ‘‘racial discrimination” by private citizens of States. 3. There is no Federal Public Policy forbidding ‘racial diserimination’’ by private citizens of States. 4 ARGUMENT 1. No State Action Is Involved Petitioner in her argument has seperately presented the **due process" clause of the Fourteenth Amendment, although coneedisg that there appears to be no authority dircetly in point to the effect that racial discrimination by private citizens of a State has ever been held to violate ‘‘due process.” Even in the case of Hurd v. Hodge (334 ULS, 24:68 8. Cr. 847; 92 L. Ed. 1187), which involved not citizens of a State, but citizens of the District of Columbia, this Court found it unnecessary to rule upon that constitutional issue. The HURD ease was decided upon the Civil Rights Act of 1886 (8 U.S.C. A., §§ 41-42, 2 F.C. A., Title 8, 64 41, 42), which was held to be unconstitutional as applied to citizens of States in the Civic. Ricuts cases (1883, 109 U. S. 35; 3 8. Ct. 18; 27 L. Ed. 835), but was held to be applicable to citizens of the District of Columbia by the HURD decision, In any event the Fourteenth Amendment forbids denial of due process or equal protection hy the State and not by private individuals. The Fourteenth Amendment is, of course, not applicable to the District ef € olumbia, although the Fifth Amendment is. (Hurd v. Hodae, su- pra.) That racial discriminatio~ by citizens of states, cither private or corporate, is not violative of the equal protec tion clause, has been toe often held to merit argament. In the series of cases: Shelley v. Kraemer, MeGee °. Sipes (1948, 334 U.S. 1, 68 S. Ct. 836. 92 L. Kad. 1187, clause, and the ‘tequal protection’ Rene Se ete et a ANE a ee ae ee Be Re ee ee ee ee eS A. 1. R. 2d 441), ete., this Court made it perfectly clear that the only question open for decision was whether enforcement of a racial diserimination by any official action violated any rights of the citizen. Those cases held that a judicial injunction constituted such state ae- tion. _ the later decision of Barrows vr. Jackson (1952, 346 ULS. 249, 73 8. Ct . 1051, 97 L. Ed. 1586). this Court answe veer the question left open in the Shelley case and held that the granting of judgment for damages against one who breached a racial covenant constituted effective enforcement of a racial discrimination and was, therc- fore, state action contrary to the Fourteenth Amendment. But, in the Shelley case, this Court made it abundant- lv clear that merely private action violated no guarantees against racial discrimination. “Since the decision of this Cour in the civil rights cases, 109 ULS. 3; 27 L. Ed. 835. 3.8. (tr. is (1885), the principle has been firmly imbedded in eur constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may be fairly said to be that ef the States. That Amendment erects no shield against merely pri- vate conduct, however diseriminatory or wrongful.’ (Shelley v. Kraemer, supra. ) Respondent's case here rest upon the ingenious but unsound argument that failure to punish one who enters into an agreement containing a racial restriction encour- ages such discrimination. Such ‘‘failure to punish’? (se the argument goes) is action by the State. As pointed out by the Supreme Court of lowa in the decision here under review, the lowa Civil Rights Acts (Chapter 735 Code of Iowa 1950) forbids racial diserim- 6 ination by individuals as to certain activities; but until alter the trial of this case, lowa ‘thad not seen fit to de clare such private cemeteries within the civil right laws of this State’ CRISS.) The lowa Supreme Court points out, cowever, that following the decision by the Trial Court in this case, the lowa Legislature did (Chapter S4— math G. AQ S 1, 9 8, 1955) expand the Civil Right Law ‘to eover just such incidents as arose in this ease.’ The lowa Court states further: soe 8 but itis alse worthy of note that by excep tions this legislation did not abridge desirable indi- vidual rights of restriction in chureh and fraternal private burial places. Such proper discretion could nat occur under plamtiff’s urged Cxrpansion of con- stitutional construction.” ¢Kanphasis added, R. 37. 3S.) If Petitioner's theory is valid, there could be no such thing as a burial place restricted to religious and racial croups. Although Petitioner admits (Brief p. 14, n. 1) that under the doctrine of Dorsey v. Stuyvesant Town Corporation (299 N.Y. 512, 87 NE. 2d 541, 14 A. L. R. 2d 153, Cert. Den, 399 UL S) G81, 70S. Ct 1019, 94 L. Ed. i389), a private concern cannot be held liable in any man- ner for refusing to deal, or to enter inte a contract for racial or other reasons. Petitioner nevertheless contends that if such private concern dors enter into a contract limited to certain purposes, it should be made to respond in damages for refusal to perform a different contract unl, ited as to such purposes. Petitioner overlooks the fact that her contract was that she would bury only a Caucasian. The Respondent was not interested in whem she married. Neither are the Courts. oe a ae ee a a "oT IR MEETRGPEE SPREES He IN O RS™ RI Id Suppose the Petitioner had been an Indian, but her hus- hand had been a Caucasian. In such event if she had ef- fered his body for burial, there is no question the Re- spondent would have had to bury her husband or respond in damages. It is, therefore, clear that the complaint of Petitioner that she has been discriminated against be- cause of her marriage is obviously unfair and untrue, She has failed in the Distriet and Supreme Court of Iowa not because of her marriage but because of her contract, voluitarily made. Petitioner offered for burial a non- Caucasian, and seeks damages of $180,000.00 on account of Respondent's refusal to perform a wholly different contract. Petitioner states (Petitioner’s Brief, p. 14): ‘*Petitioner’s case will not result in the disap- pearance of cemeteries intended only for members of a particular religious belief or of other private cemeteries devoted to particular groups of people * * * neither is Petitioner suggesting that the ceme- tery was compelled to sell a lot to her as was the situation in Dorsey v. Stuyvesant Town Corporation teeny Despite Petitioner’s disclaimer, this is exactly what she is contending. Suppose a private cemetery ‘‘intended only for the members of a particular religious belief, or other private cemeteries devoted to particular groups of people,’’ contracts for the burial of the body of «a Catholic or Jewish communicant in good standing, and the other party to the contract offers for burial one not so qualified; according to Petitioner’s contention in this case, the refusal of a Court to grant damages against the cemetery for refusal of burial contrary to the terms s of such contract would constitute ‘‘state action’’ in viola- tion of the Fourteenth Amendment, the United Nations Charter, ete. It is an obvious contradiction in terms if a private person or corporation has the undoubted right to refuse to contract with a person for religious, racial, or any other reason, and has the right to deal, if at all, only with per- sons of a particular race or religion, but can be punished for so doing or for so limiting his or its contracts. We are thus forced into the absurd position of saying, ‘‘ You have a perfect right to do the act but you will be pun- ished or be liable for damages if vou do it.” Petitioner admits (Brief, p. 14) that Respondent has an undoubted right to refuse to deal with Petitioner at all, for any reason or no reason, but contends that if the parties did enter into a contract of a particular kind, damages should be awarded for not carrying out an en- tirely different contract. The right not to sell or to deal at all would appear to carry with it the right to deal only en the seller’s terms, so long as such terms are neither illegal nor void as a matter of law. In connection with the Dorsey v. Stuyvesant Town Corporation, supra, case, it is recalled that this Court denied Certiorari (339 U.S. 982; 94 L. Ed. 1385). Mr. Justice Jackson was of the opinion that certiorari should be granted. An interesting history of the Stuyvesant Town Corporation property that was involved appears in an article in the August 1954 American Bar Association Journal, Volume 40, No. 8, at p. 679. The negroes who had been demied the right to become tenants of the prop- erty on racial grounds by the highest Court in the State 9 of New York (Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512; 87 N. BE. 2d 541: 14 ALR. 2d 133) managed to get into the possession of one of the apartments ‘‘as guests or sub-tenants in violation of clear lease provisions making such occupancy by anyone a lease violation.’*? The building owner brought action for eviction, Stuyvesant Town Corp, v. Berg, (126 N.Y.1L.J. 1008). The author of the A.B..\. Journal article states: ‘“‘The position of the owner was sustained at all stages of the litigation, including, finally, denial in one of the cases of a stay by one of the justices of the United States Supreme Court.”’ Upon inquiry to the Clerk of this Court, we are advised that Mr. Justice Jackson on December 0, 1951, signed the order denying a stav, although this action is not offi- cially reported. Apparently the contention of the negroes in question was very similar to that of Petitioner in the instant case, to wit, that by not punishing Respondent, the Iowa Court was assisting in enforcing a restrictive covenant. Petitioner states: ‘Respondent cemetery in this case is attempting to protect itself by using the restrictive covenant as a shield in this damage action. The Iowa Court by its ruling has made it possible for a cemetery to use the covenant as a defense. The Iowa Court bas, therefore, by its ruling given vitality to the restrie- tive covenant and is punishing Petitioner for her fail- ure to abide by it.” (Petitioner’s Brief, pp. 13, 14.) Indeed, these persons seeking admission as tenants of the Stuyvesant Town Corporation property were in a much stronger position than Petitioner in our case because they were able to say that the Courts of the State of New York were being called upon to evict negroes from a prop- 10 erty to which they were denied access on racial grounds. Nevertheless, they were unsuccessful and Mr. Justice Jackson denied a stay of proceedings pending final de- termination. Of course, it may be said, and probably was claimed by the property owners that it was seeking to evict the negroes because they had gained possession of the apartment wrongfully, and not solely on the ground that they were negroes. The result was the same, how- ever, and it could as well be said in that case as Petition- er says in the case at bar that the property owner was being allowed by the State Courts to use the racial cove- nant ‘‘as a shield.’’ Petitioner quotes from and relies largely upon tke ease of Gandolfo v. Hart (Ct. C. Calif. 1892), 49 Fed. 181, in support of her contention that the decision of the Supreme Court of Iowa violated the equal protection clause of the Fourteenth Amendment. As throughout Pe- titioner’s argument, she persistently refuses to recognize the difference between state action, which is forbidden by the Amendment, and private action, which by an unbroken line of decisions is not. The Gandolfo case was a bill in equity asking injunc- tion against the owner of real estate to prevent him from leasing it to certain Chinese residents, contrary to the provisions of a restrictive covenant in the title. The de- fendant challenged the bill by demurrer, which was sus- tained. The right of the court to enforce a_ restrictive covenant by injunction was challenged as a violation of the treaty between the United States and China of No- vember 17, 1880, which guaranteed to certain Chinese res- idents: ‘‘all the rights, privileges, immunities and exemp- tions which are accorded the citizens and subjects of the x2 11 most favored nation.”’ The Court held that under the terms of this Treaty and the ‘‘equal protection of the laws” provision of the Fourteenth Amendment, the re- strictive covenant ‘‘should not be enforced in any court— certainly not in a court of equity of the United States.”’ There is nothing in the Gandolfo decision to support in the slightest Petitioner’s contention that she has the right to claim a judgment for damages against Respondent on the ground that Respondent refused to permit her to enforce a contract directly contrary to the provisions of such contract, voluntarily entered into. No one, and certainly not the Respondent, is asking any Court to ‘‘enforce’’ the racial restriction herein in. volved. Respondent entered into a contract freely and voluntarily with Petitioner, as it had an unquestioned right to do. Petitioner now SaVs: ‘‘True, you had the right to make this contract, but unless the Court will punish you for doing so, you are being permitted to use the racial restriction as a ‘shield’.’’ Petitioner seeks to support her contention that the Iowa Supreme Court has ‘violated the equal protection clause of the Fourteenth Amendment”’ by citing the case of Clifton v. Punte (Tex. Civ. App. 1948), 218 S. W. 2d 272 (Petitioner’s Brief, p. 15). Petitioner states (n. 2, p. 15 Brief): ‘““The Texas Civ- il Appeals Court, in refusing to grant judicial sanction to a restrictive covenant * * * reasoned that as a result of the litigation it was no longer a questivun of the vol- untary choice of the parties to abide by the covenant but had now beeome the choice of the State of Texas."’ No 12 such conclusion ean possibly be reached from the decision in that ease. Plaintiff-Appellant, CLIFTON, brought an action seeking to enforce forfeiture of title against the defendant by reason of a violation of a racial restriction contained in a deed in the chain of title. The Lower Court entered judgment in favor of defendant and the Court of Civil Appeals affirmed, upon the authority of Shelley v. Kraemer and McGee v. Stipes, supra. Nothing appears in the case to support Petitioner’s contention that the contract ceases to be ‘‘voluntary’’ when one of the parties goes into court. In the Clifton case the Court said (at p. 274): ‘‘Without affirmative enforcement of the racial covenant involved, it would seem that the scheme of restriction applicable to the subdivision of which the property involved here is a part, cannot be effectively realized, should voluntary methods fail.’’ In other words, all that the Texas Court said in the Cli/- ton case, and the only proposition for which that case can be an authority, is that ‘‘affirmative enforcement”’ of a racial covenant by the judicial arm of the State is foreclosed by the holding of the United States Supreme Court in the Shelley v. Kraemer and McGee v. Sipes cases. 2. The United Nations Charter Does Not Pre- vent Racial Discrimination by Private Citizens of States. Respondent concedes the correctness of the conten- tion of Petitioner that the United Nations Charter is 8 Treaty and as such is the ‘‘Supreme Law of the Land”’ and that ‘‘Judges in every State shall be bound thereby.” SIS SEATING? BOLD ES EVE Seb eer ua ie aya Dy Sate EAL elie BR Ae, Se ee, Rw eh a ele _ wom pas EN a pert w a, MEN PE RE Ps wp tangs teen. Sastinient VPC Dee ARE er cae be 1 The question here, however, is whether anything in this Treaty prohibits private citizens of the States from racial and religious discrimination against each other. This Court is aware that amici curiae briefs on be- half of the American Association for the United Nations were filed in the Shelley, McGee and Hurd cases (3 A. LL. R. 2d 441; 334 U.S. 28, n. 4), In the Sipes v. McGee ease in the Michigan Court (316 Mich. 614; 25 N. W. 2d 638, 644) the same contention regarding the United Nations Treaty was made. The Michigan Court was quoted with approval by the lowa Supreme Court (R.39). The United States Supreme Court reviewed the McGee case and reversed on consti- tutional grounds, but offered no criticism on the ruling with reference to the applicability of the Treaty. The California Court gave the Treaty the same interpretation. (Fujii v. California, 217 Pac. 2d 481, 218 Pac. 2d 595, Re- versed on this point in 242 Pace. 2d 617, 622, 38 Cal. 2d 718.) The decision in the Fujii case in the lower Califor- nia Court had appeared to hold that the Charter of the United Nations had the effect of superseding the Califor- nia Alien Land Law. It will be recalled that proponents of the Bricker Amendment contended that this Treaty had been held by the lower California Court to have the effect of private law and was binding upon individual citizens in their relations with each other. The California Su- preme Court, however (242 Pac. 2d 617, at 622 Calif. 2d 718) said: ‘‘We are satisfied, however, that the Charter provisions relied upon by plaintiff were not intended to supersede existing domestie legislation * * * .° 14 In the instant case, the Iowa Court correctly held: ‘«* * * the provisions of the United Natiens Charter have no bearing on the case before the Court.’’ (R. 39.) The ‘‘Treaty’’ argument is completely disposed of in the Annotations cited, and especially in 3 A. L. R. 2d 48¢4. Petitioner cites no authority contrary to the statement of the Michigan court quoted with approval by the Iowa Court. ‘¢ * * * these pronouncements (Art. 55, 56 United Nations Charter) are merely indicative of a desirable social trend and an objective devoutly to be desired by all well-thinking peoples.’’ (R. 39.) 3. There is no Federal Public Policy Forbidding Racial Discrimination by Private Citizens of States. The contention of the Petitioner that the action of the Supreme Court of Iowa violates the public policy of the United States appears to be based solely upon the language of the United States Supreme Court in the Hurd case (334 U.S. at 34-35; 92 L. Ed. 1195). It is to be re- membered that the decision of this Court in the Hurd ease rested upon the applicability of the Civil Rights Acts to citizens of the District of Columbia. After so deciding, the opinion states: ‘‘But even in absence of the statute there are other considerations which would indicate that en- forcement of restrictive covenants in these eases is judicial action contrary to the publie poliev of the United States * * *.’’ In any event, whether the ‘‘public policy’’ argument was essential to the decision or not, Federal Publie Pol- BY PRY OES LORE APOE BEHELD, Ferry eran 1 icy cannot transcend the Constitution. Congress, many years ago, undertook in the Civil Rights Acts to express a public poliey respecting rights of individuals within the States, and this Court in the Civil Rights cases held that action to be unconstitutional. If Congress is power- less to forbid private racial discrimination among citi- zens of the States, and is limited to the District of Co- lumbia, as held in the Civil Rights eases and in the Hurd case, where then can any ‘‘Federal Public Poliey” be found applicable to the facts in the ease at bar? ‘*Publie Policy’’ is not something that ean be plucked from the air, and it cannot be declared because it seems right and desirable to the particular judge before whom the question comes. It is well to remember the language of an old English case (Richardson v. Mellish, 2 Bing 299) : ‘*T protest, as my Lord has done, against argn- ing too strongly on public policy; it is a very unruly horse, and once you get astride it, you will never know where it will carry. It may lead you from sound law. It is never urged at all, but when other points fail.’’ The Iowa Supreme Court has frequently defined ‘*publie policy.’’ In the early ease of Richmond v. Du- buque & Stour City Ry. Co. (1868), 26 Ta. 191, the Iowa Court said: ‘*But further than this, the power of Courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and like the power to declare a statute un- constitational, should be exercised only in cases free from doubt.’’ 16 We submit that the ‘‘Publie Policy’’ of the United States applicable to the case at bar is correctly summar- ized as follows: 1. to ‘*Public Poliey,’’ as deduced from judicial de- cisions, is to allow the Citizens the greatest pos- sible measure of liberty consistent with law. Citizens of the States may discriminate between themselves on racial and religious grounds un- less forbidden to do so by State statute or de- cisions. Racial and religious discrimination may not be enforced by ‘‘State Action.’’ Citizens of the District of Columbia are forbid- den to discriminate by the Civil Rights Acts. In defining ‘‘ Public Policy’’ judges determine what the law is; not what they consider it ought to be. t) Vv CONCLUSION Jn conclusion, Respondent submits that the only ques- tion involved in this review of the opinion of the Iowa Supreme Court is whether there is anything in the Consti- tution, Laws, or Treaties of the United States which pre- vents racial discrimination in private contracts. If, as repeatedly stated by this Court, the Fourteenth Amend- ment ‘‘erects no shield against merely private conduct however discriminatory or wrongful’’ and ‘‘* * * restric- tive agreements standing alone cannot be regarded as 7 violative of any rights guaranteed to petitioners * * *,’’ then surely the parties in question had the undoubted right to enter into the contract here involved. It does not tollow from the fact that the restrictive covenant cannot be enforced by an injunction in a State Court (Shelley and McGee cases), nor that a breach of the contract can- not be punished by damages (Barrows), that one of the parties who freely entered into the contract can recover damages from the other party because such other party refuses to perform a wholly different contract. If Petitioner is allowed to prevail here, what will be the effect on the right of a private school te maintain racial or religious segregation? If sued by anyone either denied admittance because of such discrimination, or dis- charged from the institution because of the restriction after admittance had been gained by falsely representing he was of the required race or religious faith, must a State Court award injunction or damages because to allow any defense would constitute ‘‘State Action’’? The right to regulate the private conduct of, and to prescribe the rights, duties and obligations between, those within its borders has heretofore been left to each State. Respondent submits this is as it should be. If Petitioner is entitled to recover on the facts stated in her Petition, then this Court will have drastically extended its long established interpretation of the Fourteenth Amendment and will have sanctioned federal invasion of a field here- tofore held to be exclusively reserved to the individual States. 18 Respectfully submitted, Jesse Ek. MARSHALL, Of Counsel: 1109 Badgerow Building, Suvii & Marswarr, 1109 Badgerow Building, Sioux City 1, Iowa. Sioux City 1, Towa. H. C. Harper, Harper, GLEYSTEEN & ‘ : ae NELSON, a 615 Security National ; Bs Bank Building, Sioux City 1, lowa. Sioux City 1, Iowa. Counsel for Respondent. bs : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0112%3A6. Public record. Not legal advice.