Constitutional Law: California Conundrum

Californians who voted 2 to 1 last year for Proposition 14—a constitutional amendment voiding state laws against housing discrimination—set the stage for an inevitable and important quarrel in the courts. Now called Section 26 of the California constitution, the amendment states in its key passage:

“Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly the right of any person, who is willing or desirous 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.”

Its proponents claim that the amendment leaves California, like 32 other states, “neutral” in private real estate dealings. Negroes angrily charge that Section 26 amounts to state-enforced racial discrimination. Thus far Negroes testing Section 26 have lost a series of lower state court cases.

Last week the argument reached the California Supreme Court in Los Angeles. For five hours, before 200 fascinated spectators and the court’s seven justices, nine lawyers presented oral arguments in seven consolidated test cases concerned with one overriding question: Does Section 26 violate the equal-protection clause of the U.S. Constitution’s 14th Amendment—a clause that has been held to bar only private discrimination that is clearly involved with “state action”?

What’s Right? Los Angeles Lawyer Herman F. Selvin, representing the American Civil Liberties Union, argued in the affirmative. “The right to acquire a home historically has been considered as basic to life as the right to acquire food,” declared Selvin. Nonetheless, he said, California has erected “a shield for racial discrimination” by denying court relief for Negroes when they seek to buy a house in a generally white neighborhood.

In Selvin’s words, Section 26 is an official guarantee to whites: “If you refuse to sell your home to Negroes, the state will do nothing to you.” In short, he said, “Racial discrimination in housing is declared to be an inalienable right.” But “California cannot secede from the 14th Amendment,” he insisted. “If the state encourages, it acts; if it acts, it’s responsible.” Section 26, he went on to say, clearly violates the meaning of the 14th Amendment “as written in the blood of the Civil War, the concept that once and for all, Negroes have the same rights of citizenship as their white overlords.”

What’s Wrong? From the California Real Estate Association, the court heard a far different story. Section 26 represents the people’s overwhelming veto of “ill-conceived” laws forbidding private discrimination, said Los Angeles Lawyer Samuel O. Pruitt Jr. Those laws, he suggested, violated private-property rights under the due-process clause of the 14th Amendment. In effect, they empowered the state to tell property owners to whom they must sell or rent.

“The rights to ownership cannot be taken away except by due process,” said Pruitt. “No such right to acquire other people’s property exists. The nature of the right to acquire property always depends on the willingness of the other person to dispose of it.” In short, by restoring state “neutrality,” said Pruitt, California has simply returned to the U.S. Constitution and “restated the common law of all 50 states.”

To a court that has been fiercely attacked as too civil-libertarian in everything from criminal cases to de facto school segregation, the arguments had a troublesome ring. Section 26 might indeed involve state action, but “the question is,” mused Chief Justice Roger Traynor, “what’s so wrong, about that action?” Traynor seemed to be looking to the difficult decision ahead as well as the involved arguments that he had just heard when he finally ended the debate with a sigh: “I don’t know how you feel, Counsel, but I’m awfully tired.”