# Brief Amicus Curiae — Reitman v. Mulkey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0085%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief Amicus Curiae - **Published:** January 1, 1967 - **Citation:** 387 U.S. 369 ## Text - Offloe-Supreme Court, U.S, . MAR 9 1967 Supreme Court nf the Uni Pa fenatne CLERK _ OCTOBER TERM, 1966 No. 483 NEIL REITMAN, et At, | Petitioners, vs. LINCOLN W. MULKEY, et AL, eM Respondents. ¢ f BRIEF OF THE ATTORNEY GENERAL OF THE STATE OF NEW YORK AS AMICUS CURIAE IN SUPPORT OF AFFIRMANCE | EeeeEeEEE—e———_e_eee Louis J. LerKxowizz Attorney General of the State of New York Samue. A, Hirsnowitz First Assistant Attorney General Grorce D, ZUCKERMAN LAWRENCE J, Gross Assistant Attorneys General of ‘Counsel * => 249 Press of Fremont Payne, Ine., =, 00 Waning St., nN. ¥.—BOwling Green 9.8183 s TABLE OF CONTENTS , . | | PAGE _ Interest of the Amicus ........ yore TT eT Lee eeweeea’ 1 Questions Presented .............cccccepeccecsess 3 Constitutional Provision Involved ...... ole " g Point I—Article I, §26 of the California Constitu- tion violates the Equal Protection Clause of the Fourteenth Amendment .............sccsese0s 4) A. Article I,.§ 26 is not a declaration of -state neutrality, but rather constitutes a state effort to sanction and perpetuate racial discrimina- tion in the sale and rental of housing accom- modations. SKA VAOSRERS CURA RN SEES SOEKE Oe cGeS 6 1. The existence of discrimination in the sale and rental of housing accommodations in-° California ..........ccccceceesccccccens 6 2. Segregated housing conditions in Califor- — nia. are in part the result of prior state QUUIER x Kass canctuceseanssneuas ge eeeeees 3. The myth of state ‘neutrality? .......... 12 B. The scope of: the right to discriminate con- ferred by Article I, § 26 would involve state actiom .....; SGRN OES CNSR NR ORReSOMSSS wees 14 Pornt Il—Article I, § 26 of the California Constitu- tion abridges the privileges of citizens of the United States to reside and acquire interests in real property within the State of California .... © 18 Point III—Article I, $26 is violative of federal. rights set forth in § 1982 of Title 42 of the United States Code ........ cece eee eee eee tee eeees 21 Conclusion 64S 6 OSS CAREERS EOE SAREE SE SSeS BeCcrasteas . 25 ii TABLE OF CONTENTS Cases Crrep : _ PAGE Anderson v. Martin, 375 U. S. 399 (1964) ........ 14 Banks v. Housing Authority, 120 Cal. App. 2d 1, 260 P. 2d 668, cert. den. 347 U.S. 974 (1954) ...... 11 Barrows v. Jackson, 346 U. | Ft 3 are 17 Bell v..Maryland, 378 U. S. 226 (1964) ............. 21 Buchanan v. Warley, 245 U. 8. 60 (1917) ........... 14 Burks v. Poppy Construction Company, 57 Cal.. 2d , | 3S Fat Perret re 2 Burton v. Wilmington Parking Authority, 365 U. S. oe | rrr errr errr TTT rert rrr 13, 15, 16 City of Greensboro v. ee 246 F. 2d 425 (4th : ep eee ere Pere er errr rrr erry re _ 16 Civil Rights Cases, 109 U. S. 3 (1883) ...........6- 23;24 Clyatt v. United States, 197 U. S. 207 (1905) ...... 24 Colorado Anti-Discrimination Com’n v. Continental Airlines, 372 U. S. 714 (1963). ................ ‘20 Corfield v. Coryell, 4 Wash. C. C. 371 (1825) ...... 18 Crandall v. Nevada, 6 Wall. 35 (1868) ............ 19 Edwards v. California, 314 U: S. 160 (1941) ........ 19 ’ Evans v. Newton, 382 U. S. 296 (1966) ............ 16 - Gomillion v. Lightfoot, 364 U. S. 339 (1960) ....... ‘ 6 Griffin v. County School Board, 377 U.S. 218 (1964) 6 ‘Hill v. Miller, 50 Cal. Rptr. 908, 413 P. 2d 852 (1966) 17 - Katzenbach v. Morgan, 384 U. S. 641 (1966) ... ee ae TABLE OF CONTENTS | ili | PAGE Los Angeles Investment Company v. Gray, 181 Cal. ee ME -nskecudkuecesecuesceuseudeesnueeaes 9. Marsh v. Alabama, 326 U. S. 501 (1946) .......... 17 Ming\v. Horgan, 3 Race Relations Reporter, 693 ..12,13 Mulkey v. Reitman, 50 Cal. Rptr. 881, 413 P. 2d 825 NE os ie sinuadud téunathvnwutswiandians 16,17 Oyama v. California, 332 U. S. 633 (1948) ......... 14, 22 Peyton v. Barrington Plaza Corporation, 50 Cal. Rptr. OO, S28 P. BG OUP CIDE) nn cs vvewscvevscccsnss 15, 16 Prendergast v. Snyder, 50 Cal. Rptr. 903, 413 P. 2d. | 847 (1966) ......... ant ivik ied eerRe eR xe. 17 Shelley v. Kraemer, 334 U. S. 1 (1948) ....... 9, 10, 14, 17 Slaughter-House Cases, 16 Wall. 36 (1873) ........ 18 Smith v. Holiday Inns of America, 336 F. 2nd 630 Re Os WE ch. cuca vckacusuccuseeceskeesuce -16 Strauder v. West Virginia, 100 U. S. 303 (1879) .... 14 Takahashi v. Fish and Game Commission, 334 U. S. 410 (1948) ......ccccccccsscccccccccvcesiccccs 20 | Taylor v. Board of Education of City School District “of New Rochelle, 294 F. 2nd 36 (2nd Cir., bs cert. den, 368 U. S. 940............ oongesreeds 13° Terry v. Adams, 345 U. S. 461 : a rere . 14 Truax v. Raich, 239 U. S. 33 (1915) ..........+...-19, 20 ~ ‘Twining v. New Jersey, 211 U.'S. 78 (1908) ........ 19 United States v. Guest, 383 U. S. 745 (1966) ...... 19 United States v. Schackney, 333 F. = 475 (2nd Cir., 5 risatieeeemele ss 24 Sot RS Re) SK ee .7 ee iv TABLE OF CONTENTS Statutes Crrep California Civil Code, Sec. 51-52 ......6.......6. 2, 12, 20 California Community-Redevelopment Law, Sec. 33039 9 California Constitution, Art. I, Sec. 26 .. .2, 3, 4, 5, 6; 12, 13, _ 14, 15, 16, 17, 18, 20, 21, 23, 24, 25 California: Constitution (1879) Art. MEE Nes es veces 11 California General Laws Acts, 260-261 (ebepesbunne 11 California Health and Safety Code, Sec. 35700 . . .2, 12, 20 Civil Rights Act of 1866, Ch. 31, See. 1, 14 Stat. 27 21 New York Civil Righgs Law, Sec. 18 .......... akg) Ae New York Executive Law, Sec. 296 (3), (5) ...... 1,2 New York Public Housing Law, See, GED secsedsses 1 Second Civil Rights Act, Ch. 114, See. 18, 16 Stat. 140 21 * United States Code, Title 42, Sec, 1982 ........ 4, 21, 23, 24 United States Constitution, Fourteenth Amendment, BE cca cwisnsenscucseascsccuncassdues paacee ORD United States Constitution, Thirteenth Amendment... 21 United States Revised Statutes, Sec. 1978 (1875) .... 22 MISCELLANEOUS Governor’s Advisory Committee, A- Report on Hous- Gay Gs GOPAFOPUER occ cccccscasscsedcceceascses 7 The President’s 1967 Civil Rights Message to Con- | gress, New ZOOS Tames, BSIGATT onc cccccssevece 8 President’s Committee on Civil Rights, Jo Secure These Rights (1947) 5.0.5 .ccsccceccees ikéasees 9 TABLE OF CONTENTS Vv PAGE Taeuber, Carl and Alma, Negroes in Cities, ‘Aldiner EE Sxutsccacad a cbe Gua e sheen canadien 7 United States Bureau of the Census, Current Pop-: ulation Reports—Technical Studies: P. 23-17 SE ROD asthenen enna ? United States Bureau of the Census, General Popula- | tion Characteristics, California: PC(1)-6b (1961) 6 _ United States Commission on Civil Rights, Fifty States Report (1961) .....ssceseeeeeeeeeenees 6,10 United States Commission on Civil Rights, Hearings _ Before the United States Commission on : Civil _ Rights, Los Angeles, San Francisco, January PD enw enbeae gees unck en davegéaccencoase ...9, 10,11 Tnited States ‘Comniesion on Civil Rights, Report No. 4 Housing (L9GL) ....c cece eeeeeeeeeeeeees 10 United States Housing and Home Finance Agency, Potential Housing Demands of Non-White Pop- ulation in Selected Metropolitan Areas (1962) .. 8 assaeneiieatintal cieaateeemaaameianiahal |: Supreme Cot of + the uited States OCTOBER TERM, 1966 No. 483 7% bd . Nem RErrMan,*ET AL., : _ Petitioners, we piel Lincotn W. MUuLkKEy, ET AL., ~ 4 ae into’ housing projects which openly discriminated against non-white citizens. The San Francisco Housing Author- ity had adopted a policy in 1942, which, until it was enjoined from continuing ‘its discriminatory practices pursuant to court order obtained in Banks v. Housing Authority, 120 Cal. App. 201, 260 P. 2d 668, cert. denied 347 U. S, 974 (1954), provided that: ¢ ‘‘In the selection of tenants for the. projects of this ’ Authority, this Authority shall act with reference to the established usages, customs and traditions of the community * * * and shall not insofar as possible en- force the commingling of races.* *.*”? (Emphasis added) 260 P; 2d at 671. . With respect to assistance furnished by the. Federal Houslag Authority, an’ FHA official stated that of the 125,000 FHA assisted housing units built from 1950 to _ 1954 in the Los Angeles ‘area, only 3,000 ‘units were avail- _able for purchase by rion-whites." ; In addition to the actions already described; the State of California has in the past specifically barred certain - . minorities from acquiring particular interests in real prop- erty. Thus, in 1879, California adopted a constitutional provision authorizing the delegation of power to localities to zone Chinese into particular areas, or to remove them completely from the limits of cities and towns. ‘California Constitution, Article XTX (1879). This constitutional pro- ~ yision was not repealed until 1952. The California Legis- ~ lature also enacted an Alien Land Law in 1920 (Cal. 1 General Laws, Acts’ 260-261) which prevented aliens who were ineligible for citizenship from acquiring .interests in real property. It was repealed in 1950. . ‘It should be pointed out that the above is not inti to single California out by way of condemnation for the existence of megane a patterns.. This same criti- “ Cal. Hearings, p. 258. 4 POO NFS TOIT q . LOD DLE POLE LAP ELDON! LOR DE EOL GE LILLE LICL CALLS - - ‘ PL TL LL E P LR: LOO GEILE TOOL ONTO 0 © .* ad - . 12° ° cism could probably be leveled at most states in this union. Nor has California shirked its responsibility in seeking to correct this situation as shown by the passage of their . Legislature in recent .yéars of the Unruh, Hawkins and. Rumford Acts, supra. But the responsibility to eliminate the evils of housing discrimination is a continuing one and cannot be ignored as the proponents of Proposition 14 have contended by repealing Mair housing ordinances and _ re- “storing the State to a position of neutrality—for which there is no historical. basis. 3. The myth of state “neutrality’’. ‘In view of the above factors which have created segre- gated housing patterns throughout California, it is absurd to conten” that the repeal of .existing fair housing laws and ordina: es in California and the creation of a right to discrinwnate with impunity in the sale or rental of residential housing will involve an act of neutrality by the — state.. If non-white citizens in California were unable, as has been shown, to obtain housing accommodations except - in urban ghettos prior to the recent enactment of state anti-discrimination statutes, the repeal of these laws and the creation of an absolute right to discriminate means - the restoration of the same barriers>these citizens have. previously faced in seeking decent shelter. . The effect of Article I, § 26, will be to prevent the Cali- fornia Legislature from taking any future action to break down segregated housing patterns and to relieve the at- tendant evils that arise in urban ghettos. It would not only bar the Legislature from ‘seeking to ameliorate the problems faced by members of minorities in acquiring de-. cent housing, but would prevent the California courts from any extension of common-law: policies in this area. In this regard, it should be noted that the Supérior Court in Sacramento County, in the case of Ming v. Horgan (No. 97130), June 23,-1958, 3 Race Rel, L. Rep. 693), held that a Negro could not be excluded from purcha’ing a new ba ‘\ / cic tes. > tract home i in a subdivision in the Sacramento area w hich - had obtained FHA and VA i insurance solely because of his race—despite the absence of any - statutory provision at that time barring racial discrimination i in the sale of hous- — ing. . The Court stated at page 12 of. its memorandum opinior: — con e-courts close their eyes to the inevitable result that if\they should uphold defendants in their asserted right of freedom of: contract, they would for - ae a a be reverting to a ‘separate but’ equal’/rule for those for whom the’ builders and realtors choose to apply it? * * * If the courts were ‘ta * * * accord to builders and realtors the unfettered freedom of contract here contended for, the consti- _ tutional guarantees of equal protection and non- discrimination would be accorded only secondary im- portance and they would have to recede-from a good dea) that has-been laid down in recent years as fun- damental doctrine * * *”? » If the right to discriminate which Article I, $26 purports . to. provide is held constitutional under Fourteenth Amend- ment requirements, the issuance of such decisions, as in the Ming case, supra, weuld be proscribed in thie future. “In sum, the operation of Article I, 4 26 can only serve to perpetuate the present patterns of segregated housing and. encourage the development of simila tterns in the future. Even if the State or its subdivisions had not been - indirectly responsible for-housing segregation in the past,’ it may not by eonstitutional amendment seek to perpetuate the existence ef segregated housing areas. Cf. Burton v. Wilmington Pasting Authority, 365 U. S. 715, 725 (1961) ; Taylor v. Board of Education of City. School District of New Rochelle, 294 F. 2d 36 (2nd Cir., 1961), cert. denied 368 U. S. 940. Nor may the State encourage, or furnish the vehicle, by which racial prejudice may operate against — eae ne "14 any. group, whether by express statutory prohibition or by indirection. Anderson v. Martin, 375 U. S. 399, 402-404 (1964) ; Terry v: Adams, 345 U . 5.461 (1953). ‘ Nearly a century ago, this Court, in speaking of the pur- ‘ poses of the Fourteenth Amendment, stated in. Strauder v. West Virginia, 100 U. S. 303, 307-308 1879) : « MR orp HP $e aor $ i aia haat al amenity 20 \ _ work for a living in the common occupations of the com- munity. *?> The Court went on to state that: “The assertion of an authority to deny to aliens the opportunity of earning a ‘livelihood when lawfully — admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they can- not work. -And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country * * * instead of enjoying ina substan- tial sense and in their full scope the privileges con- ferred: by-admission, would be segregated in such of the States as chose to offer hospitality.’’ (p. 42) Similarly, in Takahashi v. Fish € Game Commission, 334 U. S. 410 (1948), this Court followed the principles stated in Truaz v. Raich, supra, to invalidate a California law ‘barring the issuance of commercial fish licenses to any person ineligible for citizenship. See also Colorado Anti- Discrimination Commission v. Continental Air Lines, 372 U. S. 714, 721 (1963). If a state may not interfere with the national privilege of citizens {as well as aliens) to enter and abide in any state in the union by limiting their right to secure employ- ment, it should necessarily follow that a state may not . constitutionally limit their right to secure housing within its borders by laws which sanction, if not encourage, racial and religious discrirhination in the- sale and rental of : housing accommodations. ' The enactment of the Unruh, Hawkins and Rumford Acts by the California Legislature were based upon the recognition of the immense difficulties that have been en- countered by members of minority races in obtaining ade- quate housing in California. The repeal of fair housing legislation and the création by Article I, § 26 of a ‘‘right’’ to engage in racial or religious discrimination in housing. transactions, will necessarily discourage non-whites from 21 . moving to California, will limit the housing opportunities available to non-whites now, residing in California, and will tend to confine them to other states and within segre- gated locales in California itseif. In his concurring opinion in Bell v. Maryland, 378 U. S. 226, 242 (1964), Mr. Justice Douglas, in declaring that . segregation in private restaurants was a ‘‘denial of a privilege and immunity of national — * : stated (p. 255) : | “Ts the right of a’ person to eat less basic than his right to travel, which we protected in Edwards v. California, 314 U. S. 160% Does-not a right to travel in modern times sink in value materially when there - is no accompanying right-to eat in public places?’’ To the above, we might add: Is not the right to enter into and abide in any state rendered meaningless without a right to obtain housing free from racial discriminatory practices that have been sanctioned by state law? POINT Ill Article I, § 26 is violative of federal rights set forth in § 1982 of Title 42 of the United States Code. 42 U.S.C. § 1982 provides: ‘‘ All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by ‘white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property:’’ The above provision first appeared in. §1 of the Civil’ Rights Act of 1866 (Ch. 31, $1, 14 Stat. 27) enacted several months after the adoption of the Thirteenth Amend- ~ ment. On May 31, 1870, after the ratification of the Four- teenth Amendment, the above section was reenacted as part of $18 of the Second bes sherry Act (Ch. 114, 16 PO Pm 4 ip On etre me IIT Ow ‘ e ee Te a Te ole SIE Rane espe ’ ° ° ’ m 29 Stat. 140) and was recast in its present form ‘in the general -Statutory provision of 1875 as $1978 of the Revised Statutes. ) ~ Section 1982 was relied on n by this Court in Oyama v. California, 332 U. S. 633 (1948), in holding that\the Cali- _ fornia Alien Land Law, as applied to bar the citizen son of a Japanese alien from inheriting an interest in agri- cultural land, deprived the son of the equal protection of the laws and of his privileges as an American citizen. Re- ferring to $4982, the Court noted that (p. 640): ‘ By federal statute, enacted before the Fourteenth - Amendment ‘but vindicated by it, the states must accord to all citizens the right to take and hold real. property.’’ The Court conceded, (p. 647): * ae ati a i os ‘ CE 98s NOE arn Hy eens SOLIS LT I OO OOO I AOD mT | OT LP SF . 24 ° tion. As observed by the court i in the Civil “Rights Cases, supra, at p. 23: ad “Under the Thirteenth Amendment, the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery ‘and involuntary servitude, may be direct and primary, operating upon the acts of in- dividuals, whether sanctioned by state legislation or not @ @ @99 See also Clyatt v v, United States, 197 U. S. 207 (1905) ; United States v: = 333 F. 2d 475, 486 (2d Cir., 1964). 5 It should be evident from the above that any agreement or action taken by private sellers or lessors of real prop- erty to prevent Negroes from acquiring or leasing property would be violative ofthe rights set forth in § 1982. Inso- far as Article I, $26 of the California Constitution at- tempts to cloak individuals and corporations with im- - munity in discriminating against non-white citizens, in the sale or rental of. real property, it is an abridgement of the rights provided by {1982 and, under the Federal Supremacy Clause, cannot be sustained. Cf. Katzenbach _ v. Morgan, 384 U. S. 641 (1966). 4 25 _ ; CONCLUSION For the foregoing reasons, the decision of the Court below that Article I, § 26 of the.California Constitution -“is in violation of the Fourteenth Amendment of the United States Constitution should be affirmed. — Dated: New York, N. Y., March 3, 1967. | Respectfully submitted, - ' Louis J. LEFKowITz +‘ - Attorney General of the : | State of New York. Samue. A. HirsHow!tTz First Assistant Attorney General ~ | - « Grorce D. ZucKERMAN LawRENCE J.GROsS , Assistant Attorneys General - Of Counsel « ae a t \ } \ @ / oe, SS --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0085%3A09. Public record. Not legal advice.