Saying No to Proposition 14

"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 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."

The language of Proposition 14 on the 1964 California ballot appealed to the voters. According to the California Real Estate Association, it left the state "neutral" in real estate dealings. Its terms were the terms of personal freedom in the use and disposition of private property. It also wiped out the provisions of the Unruh and Rumford acts, which banned racial discrimination in the renting of apartments and in the sale or rental of private dwellings containing more than four units. By an overwhelming vote of almost 2 to 1, the electorate approved Proposition 14, which became Section 26 of the California constitution.

Unconstitutional Majority. Section 26 left property owners free to sell or rent to Negroes or Japanese or anyone they chose. But it also left them free not to sell or rent for racial reasons, and this, charged Negroes, amounted to state-sanctioned discrimination, in violation of the 14th Amendment of the U.S.

Constitution. Last year the California Supreme Court agreed. "When the electorate assumes the lawmaking function," said the court, "the electorate is as much a state agency as any of its elected officials."

When the case reached the U.S. Supreme Court last fall, the California decision was endorsed by the state attorney general as well as by U.S. Solicitor General Thurgood Marshall, who argued that Section 26 "is an exercise of state power in support of discrimination." He felt that it was particularly dangerous because it was not enacted as a simple statute, but was embodied in the state constitution. To put it there, Californians resorted to the basic democratic principle of initiative and referendum. To remove it would take a similar referendum, and in the present-day U.S., argued Marshall, "you don't get referendums without hard-earned cash and plenty of it. In no state do minority groups have statewide power."

Last week the Supreme Court upheld the California decision. Speaking for a narrow, five-man majority, Justice Byron R. White declared that in its decision the California Supreme Court had not forbidden Californians either to repeal fair-housing laws or to enact laws making the state "neutral." All it did was to "reasonably" conclude that Section 26 affirmed discrimination as a state-guaranteed freedom. "We are dealing with a provision which does not just repeal an existing law forbidding racial discrimination," said White. "Section 26 was intended to authorize, and does authorize, racial discrimination in the housing market."

Repealing Rumford. Speaking for the four dissenters, Justice John M. Harlan sharply accused the majority of unfairly labeling Section 26 as "camouflage" for discrimination without any visible proof. Harlan called the provision "neutral" and "inoffensive on its face." Worse, he declared, "opponents of state antidiscrimination statutes are now in a position to argue that such legislation should be defeated because, if enacted, it may be unrepealable."

In fact, the California state senate passed a bill in April repealing the Rumford Act. Though unlikely to go that far, the state assembly is expected to water down the law as it now exists. Because of the mammoth 1964 vote, members of the legislature will have to pay attention to at least the spirit of Section 26. As for the limits on that spirit, the Supreme Court has reaffirmed that the 14th Amendment bars states from any "significant involvement" in private discrimination--but has not held that states must take affirmative action against that discrimination.

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