Reitman v. Mulkey
Decided on May 29, 1967; 387 US 369


Minority couples challenge alleged racial discrimination in housing

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Civil Rights (Race), Fourteenth Amendment 

B. Legal Question Presented:

Does Article I, Section 26 of the California state constitution unconstitutionally involve the state in racial discrimination, and is it therefore invalid under the Fourteenth Amendment of the US Constitution?
II. CASE SUMMARY:

A. Background:

The California Legislature enacted several statutes regulating racial discrimination in housing. In 1964, Art. I, Section 26 was added to the state constitution. It provided in part that neither the State nor any agency thereof "shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses."

This case involves two separate actions that arose in the California courts; Mulkey v. Reitman and Prendergast v. Snyder. In Mulkey, respondents, the Mulkeys (husband and wife) sued, alleging that petitioner Reitman had refused to rent them an apartment solely on account of their race. An injunction and damages were demanded. Petitioners moved for summary judgment and trial court granted the motion. Respondents took the case to the California Supreme Court.

In the Prendergast case, respondents, husband and wife, filed suit seeking to enjoin eviction from their apartment; respondents alleged that the eviction was motivated by racial prejudice.  Petitioner Snyder cross-complained for a judicial declaration that he was entitled to terminate the month-to-month tenancy even if his action was based on racial considerations.  In denying petitioner's motion for summary judgment the trial court concluded that judicial enforcement of an eviction based on racial grounds would in any event violate the Equal Protection Clause of the United States Constitution.  The cross-complaint was dismissed and petitioner Snyder appealed to the California Supreme Court, which considered the case along with Mulkey v. Reitman.

The California Supreme Court, in reversing the Reitman case, held that Art. I, Section 26 involves the state in racial discrimination, and is therefore invalid as denying the equal protection of the laws guaranteed by the Fourteenth Amendment. For similar reasons, the court affirmed the judgment in the Prendergast case. The Supreme Court granted certiorari because the cases involved an important issue arising under the Fourteenth Amendment.
B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Herman F. Selvin and A. L. Wirin argued the cause for respondents. With them on the brief were Fred Okrand, Joseph A. Ball and Nathaniel S. Colley. Samuel O. Pruitt, Jr., argued the cause for petitioners. With him on the briefs was William French Smith.
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(
Petitioner/Appellant)
Unavailable  Unavailable
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Marshall W. Krause filed a brief for the American Civil Liberties Union Northern California as amicus curiae, urging affirmance.

Solicitor General Marshall, by special leave of Court, argued the cause for the United States, as amicus curiae, urging affirmance. With him on the brief were Assistant Attorney General Doar, Ralph S. Spritzer, Louis F. Claiborne, Nathan Lewin and Alan G. Marer.

Other briefs of amicus curiae urging affirmance were filed by by Thomas C. Lynch, Charles A. O'Brien, Miles T. Rubin, and Loren Miller, Jr., Howard J. Bechefsky, Philip M. Rosten and Harold J. Smotkin for the State of California; by Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, and George D. Zuckerman and Lawrence J. Gross, for the Attorney General of the State of New York; by Gerald D. Marcus for the California Democratic State Central Committee; by Joseph B. Robison and Sol Rabkin for the National Committee against Discrimination in Housing; and by Abe F. Levy for the United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) AFL-CIO, Region 6, et al.
No amici curiae briefs were filed on behalf of Petitioner.
IV. THE SUPREME COURT'S DECISION:

"The judgment [387 U.S. 369, 376]   of the California court was that [Section] 26 unconstitutionally involves the State in racial discriminations and is therefore invalid under the Fourteenth Amendment... There is no sound reason for rejecting this judgment... 

What the court below did was first to reject the notion that the State was required to have a statute prohibiting racial discriminations in housing. Second, it held the intent of 26 was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with 26 as though it expressly authorized and constitutionalized the private right to discriminate. Third, the court assessed the ultimate impact of 26 in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment...

Here the California court... has determined that the provision would involve the State in private racial discriminations to an unconstitutional degree. We accept this holding of the California court...

Here we are dealing with a provision which does not just repeal an existing law forbidding private racial discriminations. Section 26 was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State. The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned."

Held: The judgment of the Supreme Court of California is affirmed.

Justice Vote: 5 Pro vs. 4 Con

  • White, B.  Pro (Wrote majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Fortas, A. Pro (Joined majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Douglas, W. Pro (Wrote concurring opinion)
  • Harlan, J. Con (Wrote dissenting opinion)
  • Clark, T.  Con (Joined dissenting opinion)
  • Stewart, P. Con Joined dissenting opinion)
  • Black, H. Con (Joined dissenting opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging affirmance; the US Supreme Court affirmed the ruling of the California Supreme Court in a 5-4 vote, giving the ACLU an apparent win.