Constitutional Law: Round 1 to Proposition 14

Negroes were stunned last fall when Californians voted 2 to 1 for “Proposition 14” — a constitutional amendment voiding state laws against housing discrimination. The amendment affirms the right of any property owner “to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.” Arguing that the amendment amounts to approval of racial discrimination, N.A.A.C.P. lawyers are trying to get it declared unconstitutional. Last week they got their first court decision—and lost.

The suit was filed in Sacramento against Crawford Miller, an insurance investigator and landlord who seeks to evict Clifton Hill and his family from their $86-a-month apartment solely because he wants “to rent said premises to members of the Caucasian race.” Defendant Miller says the new amendment gives him that right. Plaintiff Hill emphatically disagrees, citing the equal-protection clause of the U.S. Constitution’s 14th Amendment.

In his lengthy opinion, Superior Court Judge William Gallagher first seemed to duck the issue by ruling that the suit should have been filed in municipal court. But then he said that the plaintiff was wrong anyhow because the 14th Amendment forbids only state-enforced discrimination in public accommodations. While the state itself may not discriminate against Negroes, he said, the 14th Amendment entitles a U.S. citizen “to discriminate for any reason whatever in his private conduct subject to properly enacted statutory limitations.”

If a court refused to support Landlord Miller, said Judge Gallagher, it would violate Miller’s private property rights under the due-process clause of the 14th Amendment. As for the new state amendment, Gallagher said it simply resumes California’s former “neutrality in these matters” and restores to private property owners “an absolute freedom of choice in the disposition of their private property.”

Not surprisingly, the N.A.A.C.P. is appealing to the state’s highest court. It is also working on other test cases, and is determined if necessary to give the Supreme Court a crack at California’s constitutional conundrum.