The Akron City Council enacted a fair housing ordinance which
established a Commission on Equal Opportunity in Housing to enforce
the antidiscrimination sections through conciliation or persuasion,
if possible, or, if not, through orders judicially enforceable.
Thereafter, a proposal for an amendment to the city charter, which
had been placed on the ballot by petition, was passed. It provided
that any ordinance (including any in effect) which regulates the
use, sale, advertisement, transfer, listing assignment, lease,
sublease, or financing of real property on the basis of race,
color, religion, national origin, or ancestry must first be
approved by a majority of the voters before becoming effective. The
trial court denied appellant's housing discrimination complaint,
holding that the fair housing ordinance was rendered ineffective by
the charter amendment, and the Ohio Supreme Court affirmed, finding
that the amendment was not repugnant to the Equal Protection
Clause.
Held:
1. The case is not moot. Neither the 1968 Civil Rights Act
(which specifically preserves local fair housing laws), nor the
1866 Civil Rights Act, was intended to preempt local housing
ordinances; the Ohio Act of October 30, 1965 (which concerns
"commercial" housing), does not apply to this case, and the Akron
ordinance provides an enforcement mechanism unmatched by either
state or federal legislation. Pp.
393 U. S.
388-389.
2. The charter amendment contains an explicitly racial
classification treating racial housing matters differently from
other racial and housing matters and places special burdens on
racial and religious minorities within the governmental process by
making it more difficult for them to secure legislation on their
behalf. Pp.
393 U. S.
389-391.
3. Racial classifications "bear a heavier burden of
justification" than other classifications, and here Akron has not
justified its discrimination against minorities, which constitutes
a denial of the equal protection of the laws. Pp.
393 U. S.
391-393.
12 Ohio St.2d 116, 233 N.E.2d 129, reversed.
Page 393 U. S. 386
MR. JUSTICE WHITE delivered the opinion of the Court.
The question in this case is whether the City of Akron, Ohio,
has denied a Negro citizen, Nellie Hunter, the equal protection of
its laws by amending the city charter to prevent the city council
from implementing any ordinance dealing with racial, religious, or
ancestral discrimination in housing without the approval of the
majority of the voters of Akron.
The Akron City Council in 1964 enacted a fair housing ordinance
premised on a recognition of the social and economic losses to
society which flow from substandard, ghetto housing and its
tendency to breed discrimination and segregation contrary to the
policy of the city to "assure equal opportunity to all persons to
live in decent housing facilities regardless of race, color,
religion, ancestry or national origin." Akron Ordinance No. 8731964
§ 1. A Commission on Equal Opportunity in Housing was established
by the ordinance in the office of the Mayor to enforce the
antidiscrimination sections of the ordinance through conciliation
or persuasion if possible, but, if not, then through "such order as
the facts warrant," based upon a hearing at which witnesses may be
subpoenaed, and entitled to enforcement in the courts. Akron
Ordinance No. 873-1964, as amended by Akron Ordinance No.
926-1964.
Page 393 U. S. 387
Seeking to invoke this machinery which had been established by
the city for her benefit, Nellie Hunter addressed a complaint to
the Commission asserting that a real estate agent had come to show
her a list of houses for sale, but that, on meeting Mrs. Hunter,
the agent
"stated that she could not show me any of the houses on the list
she had prepared for me because all of the owners had specified
they did not wish their houses shown to negroes."
Mrs. Hunter's affidavit met with the reply that the fair housing
ordinance was unavailable to her because the city charter had been
amended to provide:
"Any ordinance enacted by the Council of The City of Akron which
regulates the use, sale, advertisement, transfer, listing
assignment, lease, sublease or financing of real property of any
kind or of any interest therein on the basis of race, color,
religion, national origin or ancestry must first be approved by a
majority of the electors voting on the question at a regular or
general election before said ordinance shall be effective. Any such
ordinance in effect at the time of the adoption of this section
shall cease to be effective until approved by the electors as
provided herein."
Akron City Charter § 137. The proposal for the charter amendment
had been placed on the ballot at a general election upon petition
of more than 10% of Akron's voters, and the amendment had been duly
passed by a majority.
Appellant then brought an action in the Ohio courts on behalf of
the municipality, herself, and all others similarly situated, to
obtain a writ of mandamus requiring the Mayor to convene the
Commission and to require the Commission and the Director of Law to
enforce the fair housing ordinance and process her complaint. The
trial court initially held the enforcement provisions of the fair
housing ordinance invalid under state law, but the Supreme Court of
Ohio reversed,
State ex rel. Hunter
Page 393 U. S. 388
v. Erickson, 6 Ohio St.2d 130, 216 N.E.2d 371 (1966).
On remand, the trial court held that the fair housing ordinance was
rendered ineffective by the charter amendment, and the Supreme
Court of Ohio affirmed, holding that the charter amendment was not
repugnant to the Equal Protection Clause of the Constitution.
Akron contends that this case has been rendered moot by the
passage of the Civil Rights Act of 1968, Pub.L. 90-284, 82 Stat.
73, the decision of this Court in
Jones v. Alfred N. Mayer
Co., 392 U. S. 409
(1968), and the passage of an Ohio Act effective October 30, 1965,
Ohio Rev.Code Ann., Tit. 41, c. 4112. It is true that each of these
events is related to open housing, but none of the legislation
involved was intended to preempt local housing ordinances or
provide rights and remedies which are effective substitutes for the
Akron law.
The 1968 Civil Rights Act specifically preserves and defers to
local fair housing laws, [
Footnote
1] and the 1866 Civil Rights Act [
Footnote 2] considered in
Jones should be read
together with the later statute on the same subject,
United
States v. Stewart, 311 U. S. 60,
311 U. S. 64-65
(1940);
Talbot v. Seeman,
1 Cranch 1,
5 U. S. 34-35
(1801), so as not to preempt the local legislation which the far
more detailed Act of 1968 so explicitly preserves. If the Ohio
statute mooted the case, surely the Ohio Supreme Court would have
so held when the validity of the Akron ordinance was twice before
it after the Ohio statute was passed. Moreover, the sections of the
Ohio law which are crucial here apply only to "commercial housing,"
and, on any reading
Page 393 U. S. 389
we can imagine, do not apply to Mrs. Hunter's case, [
Footnote 3] though the Akron ordinance
does. Finally, the case cannot be considered moot, since the Akron
ordinance provides an enforcement mechanism unmatched by either
state or federal legislation. Unlike state or federal programs, the
Akron ordinance brings local people together for conciliation and
persuasion by and before a local tribunal. It is precisely this
sort of very localized solution to which Congress meant to defer.
We therefore reject the contention that this case is moot.
Akron argues that this case is unlike
Reitman v.
Mulkey, 387 U. S. 369
(1967), in that, here, the city charter declares no right to
discriminate in housing, authorizes and encourages no housing
discrimination, and places no ban on the enactment of fair housing
ordinances. But we need not rest on
Reitman to decide this
case. Here, unlike
Reitman, there was an explicitly racial
classification treating racial housing matters differently from
other racial and housing matters.
By adding § 137 to its Charter, the City of Akron, which
unquestionably wields state power, [
Footnote 4] not only suspended
Page 393 U. S. 390
the operation of the existing ordinance forbidding housing
discrimination, but also required the approval of the electors
before any future ordinance could take effect. [
Footnote 5] Section 137 thus drew a distinction
between those groups who sought the law's protection against
racial, religious, or ancestral discriminations in the sale and
rental of real estate and those who sought to regulate real
property transactions in the pursuit of other ends. Those who
sought, or would benefit from, most ordinances regulating the real
property market remained subject to the general rule: the ordinance
would become effective 30 days after passage by the City Council,
or immediately if passed as an emergency measure, and would be
subject to referendum only if 10 of the electors so requested by
filing a proper and timely petition. [
Footnote 6] Passage by the Council sufficed unless the
electors themselves invoked the general referendum provisions of
the city charter. But for those who sought protection against
racial bias, the approval of the City Council was not enough. A
referendum was required by charter at a general or regular
election, without any provision for use of the expedited special
election ordinarily available. The Akron charter obviously made it
substantially more difficult to secure enactment of ordinances
subject to § 137.
Only laws to end housing discrimination based on "race, color,
religion, national origin or ancestry" must run § 137's gauntlet.
It is true that the section draws no distinctions among racial and
religious groups. Negroes and whites, Jews and Catholics are all
subject to the same requirements if there is housing discrimination
against them which they wish to end. But § 137
Page 393 U. S. 391
nevertheless disadvantages those who would benefit from laws
barring racial, religious, or ancestral discriminations as against
those who would bar other discriminations or who would otherwise
regulate the real estate market in their favor. The automatic
referendum system does not reach housing discrimination on sexual
or political grounds, or against those with children or dogs, nor
does it affect tenants seeking more heat or better maintenance from
landlords, nor those seeking rent control, urban renewal, public
housing, or new building codes.
Moreover, although the law, on its face, treats Negro and white,
Jew and gentile in an identical manner, the reality is that the
law's impact falls on the minority. The majority needs no
protection against discrimination, and, if it did, a referendum
might be bothersome, but no more than that. Like the law requiring
specification of candidates' race on the ballot,
Anderson v.
Martin, 375 U. S. 399
(1964), § 137 places special burdens on racial minorities within
the governmental process. This is no more permissible than denying
them the vote, on an equal basis with others.
Cf. Gomillion v.
Lightfoot, 364 U. S. 339
(1960);
Reynolds v. Sims, 377 U.
S. 533 (1964);
Avery v. Midland County,
390 U. S. 474
(1968). The preamble to the open housing ordinance which was
suspended by § 137 recited that the population of Akron consists
of
"people of different race, color, religion, ancestry or national
origin, many of whom live in circumscribed and segregated areas,
under sub-standard, unhealthful, unsafe, unsanitary and overcrowded
conditions, because of discrimination in the sale, lease, rental
and financing of housing."
Such was the situation in Akron. It is against this background
that the referendum required by § 137 must be assessed.
Because the core of the Fourteenth Amendment is the prevention
of meaningful and unjustified official distinctions based on race,
Slaughter-House
Cases, 16
Page 393 U. S. 392
Wall. 36,
83 U. S. 71
(1873);
Strauder v. West Virginia, 100 U.
S. 303,
100 U. S.
307-308 (1880);
Ex parte Virginia, 100 U.
S. 339,
100 U. S. 311
345 (1880);
McLaughlin v. Florida, 379 U.
S. 184,
379 U. S. 192
(1964);
Loving v. Virginia, 388 U. S.
1,
388 U. S. 10
(1967), racial classifications are "constitutionally suspect,"
Bolling v. Sharpe, 347 U. S. 497,
347 U. S. 499
(1954), and subject to the "most rigid scrutiny,"
Korematsu v.
United States, 323 U. S. 214,
323 U. S. 216
(1944). They "bear a far heavier burden of justification" than
other classifications,
McLaughlin v. Florida, 379 U.
S. 184,
379 U. S. 194
(1964).
We are unimpressed with any of Akron's justifications for its
discrimination. Characterizing it simply as a public decision to
move slowly in the delicate area of race relations emphasizes the
impact and burden of § 137, but does not justify it. The amendment
was unnecessary either to implement a decision to go slowly or to
allow the people of Akron to participate in that decision.
[
Footnote 7] Likewise,
insisting that a State may distribute legislative power as it
desires and that the people may retain for themselves the power
over certain subjects may generally be true, but these principles
furnish no justification for a legislative structure which
otherwise would violate the Fourteenth Amendment. Nor does the
implementation of this change through popular referendum immunize
it.
Lucas v. Colorado General Assembly, 377 U.
S. 713,
377 U. S.
736-737 (1964). The sovereignty of the people is itself
subject to those constitutional limitations which have been duly
adopted and remain unrepealed. Even though Akron might have
proceeded by majority vote at town meeting on all its municipal
legislation, it has instead chosen a more complex system. Having
done so,
Page 393 U. S. 393
the State may no more disadvantage any particular group by
making it more difficult to enact legislation in its behalf than it
may dilute any person's vote or give any group a smaller
representation than another of comparable size.
Cf. Reynolds v.
Sims, 377 U. S. 533
(1964);
Avery v. Midland County, 390 U.
S. 474 (1968).
We hold that § 137 discriminates against minorities, and
constitutes a real, substantial, and invidious denial of the equal
protection of the laws.
Reversed.
[
Footnote 1]
Nothing in the federal statute is to be construed "to invalidate
or limit any law of a State or political subdivision of a State"
giving similar housing rights, and deference is to be given to
local enforcement. Civil Rights Act of 1968, Tit. VIII, §§ 815,
810(c), 82 Stat. 89, 86.
[
Footnote 2]
"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."
§ 1, 14 Stat. 27, as amended, 42 U.S.C. § 1982.
[
Footnote 3]
The Ohio statute makes it unlawful for "any person" to "[r]efuse
to sell . . . or otherwise deny or withhold
commercial
housing from any person because of the race [or] color" of the
prospective owner. Ohio Rev.Code Ann. §§ 4112.02(H) and
4112.02(H)(1) (Supp. 1967) (emphasis added). "Commercial housing"
is defined to exclude "any personal residence offered for sale or
rent by the owner or by his broker, salesman, agent, or employee."
Ohio Rev.Code Ann. § 4112.01(K) (Supp. 1967). The statute makes it
unlawful to
"[p]rint, publish, or circulate any statement or advertisement
relating to the sale [of a] . . . personal residence . . . which
indicates any preference, limitation, specification, or
discrimination based upon race. . . ."
Ohio Rev.Code Ann. § 4112.02(H)(6) (Supp. 1967). Since Mrs.
Hunter does not seek commercial housing, or complain of the affront
to her sensibilities of hearing a "circulated" statement (if the
Ohio statute goes that far), she cannot obtain the relief she seeks
under the Ohio statute.
[
Footnote 4]
See, e.g., Evans v. Newton, 382 U.
S. 296 (1966);
Burton v. Wilmington Parking
Authority, 365 U. S. 715
(1961);
Shelley v. Kraemer, 334 U. S.
1 (1948).
[
Footnote 5]
Thus, we do not hold that mere repeal of an existing ordinance
violates the Fourteenth Amendment.
[
Footnote 6]
Ordinances may be initiated through a petition signed by 7% of
the voters, and the city charter may be amended or measures enacted
by the council repealed through a referendum which may be obtained
on petition of 10% of the voters.
[
Footnote 7]
The people of Akron had the power to initiate legislation, or to
review council decisions, even before § 137.
See n 6,
supra. The procedural
prerequisites for this popular action are perfectly reasonable, as
the gathering of 10% of the voters' signatures in the course of
passing § 137 illustrates.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART Joins,
concurring.
At the outset, I think it well to sketch my constitutional
approach to state statutes which structure the internal
governmental process and which are challenged under the Equal
Protection Clause of the Fourteenth Amendment. For equal protection
purposes, I believe that laws which define the powers of political
institutions fall into two classes. First, a statute may have the
clear purpose of making it more difficult for racial and religious
minorities to further their political aims. Like any other statute
which is discriminatory on its face, such a law cannot be permitted
to stand unless it can be supported by state interests of the most
weighty and substantial kind.
McLaughlin v. Florida,
379 U. S. 184,
379 U. S. 192
(1964).
Most laws which define the structure of political institutions,
however, fall into a second class. They are designed with the aim
of providing a just framework within which the diverse political
groups in our society may fairly compete, and are not enacted with
the purpose of assisting one particular group in its struggle with
its political opponents. Consider, for example, Akron's procedure
which requires that almost any ordinance be submitted to a general
referendum if 10% of the
Page 393 U. S. 394
electorate signs an appropriate petition.
* This rule
obviously does not have the purpose of protecting one particular
group to the detriment of all others. It will sometimes operate in
favor of one faction, sometimes in favor of another. Akron has
adopted the referendum system because its citizens believe that,
whenever an action of the City Council raises the emotional
opposition of any significant group in the community, the people
should have a right to decide the matter directly. Statutes of this
type, which are grounded upon general democratic principle, do not
violate the Equal Protection Clause simply because they
occasionally operate to disadvantage Negro political interests. If
a governmental institution is to be fair, one group cannot always
be expected to win. If the Council's fair housing legislation were
defeated at a referendum, Negroes would undoubtedly lose an
important political battle, but they would not thereby be denied
equal protection.
This same analysis applies to other institutions of government
which are even more solidly rooted in our history than is the
referendum. The existence of a bicameral legislature or an
executive veto may on occasion make it more difficult for
minorities to achieve favorable legislation; nevertheless, they may
not be attacked on equal protection grounds, since they are founded
on neutral principles. Similarly, the rule which makes it
Page 393 U. S. 395
relatively difficult to amend a state constitution is commonly
justified on the theory that constitutional provisions should be
more thoroughly scrutinized and more soberly considered than are
simple statutory enactments. Here, too, Negroes may stand to gain
by the rule if a fair housing law is made part of the constitution,
or they may lose if the constitution adopts a position of strict
neutrality on the question.
See Reitman v. Mulkey,
387 U. S. 369,
387 U. S. 389
(1967) (dissenting opinion of HARLAN, J.). But even if Negroes are
obliged to undertake the arduous task of amending the state
constitution, they are not thereby denied equal protection. For the
rule making constitutional amendment difficult is grounded in
neutral principle.
In the case before us, however, the city of Akron has not
attempted to allocate governmental power on the basis of any
general principle. Here, we have a provision that has the clear
purpose of making it more difficult for certain racial and
religious minorities to achieve legislation that is in their
interest. Since the charter amendment is discriminatory on its
face, Akron must "bear a far heavier burden of justification" than
is required in the normal case.
McLaughlin v. Florida,
379 U. S. 184,
379 U. S. 194
(1964). And Akron has failed to sustain this burden. The city's
principal argument in support of the charter amendment relies on
the undisputed fact that fair housing legislation may often be
expected to raise the passions of the community to their highest
pitch. It was not necessary, however, to pass this amendment in
order to assure that particularly sensitive issues will ultimately
be decided by the general electorate. Akron has already provided a
procedure, which is grounded in neutral principle, that requires a
general referendum on this issue if 10% of the voters insist. If
the prospect of fair housing legislation really arouses passionate
opposition, the voters will have the final say. Consequently, the
charter amendment
Page 393 U. S. 396
will have its real impact only when fair housing does not arouse
extraordinary controversy. This being the case, I can perceive no
legitimate state interest which in any degree vindicates the action
taken by the City here.
As I read the Court's opinion to be entirely consistent with the
basic principles which I believe control this case, I join in
it.
* Section 25 of Akron's city charter exempts the following
ordinances from the referendum procedure:
"(a) Annual appropriation ordinances. (b) Ordinances or
resolutions providing for the approval or disapproval of
appointments or removals and appointments or removals made by
Council. (c) Actions by Council on the approval of official bonds.
(d) Ordinances or resolutions providing for the submission of any
proposition to the vote of the electors. (e) Ordinances providing
for street improvements petitioned for by owners of a majority of
the feet front of the property benefited and to be specially
assessed for the cost thereof."
It is not suggested that any of these exceptions were made with
the purpose of disadvantaging Negro political interests.
MR. JUSTICE BLACK, dissenting.
Section 10, Art. I, of the Constitution provides, among other
things, that: "No State shall . . . pass any Bill of Attainder, ex
post facto Law, or Law impairing the Obligation of Contracts. . .
." But there is no constitutional provision anywhere which bars any
State from repealing any law on any subject at any time it pleases.
Although the Court denies the fact, I read its opinion as holding
that a city that "wields state power" is barred from repealing an
existing ordinance that forbids discrimination in the sale, lease,
or financing of real property "on the basis of race, color,
religion, national origin or ancestry. . . ." The result of what
the Court does is precisely as though it had commanded the State by
mandamus or injunction to keep on its books and enforce what the
Court favors as a fair housing law.
The Court purports to find its power to forbid the city to
repeal its laws in the provision of the Fourteenth Amendment
forbidding a State to "deny to any person within its jurisdiction
the equal protection of the laws." For some time, I have been
filing my protests against the Court's use of the Due Process
Clause to strike down state laws that shock the Court's conscience
or offend the Court's sense of what it considers to be "fair" or
"fundamental" or "arbitrary" or "contrary to the beliefs of the
English-speaking people." I now protest just as vigorously against
use of the Equal Protection Clause to bar States from repealing
laws that the Court wants the
Page 393 U. S. 397
States to retain. Of course, the Court, under the ruling of
Marbury v.
Madison, 1 Cranch 137 (1803), has power to
invalidate state laws that discriminate on account of race. B ut it
does not have power to put roadblocks to prevent States from
repealing these laws. Here, I think the Court needs to control
itself, and not, as it is doing, encroach on a State's powers to
repeal its old laws when it decides to do so.
Another argument used by the Court supposedly to support its
holding is that we have in a number of our cases supported the
right to vote without discrimination. And we have. But in no one of
them have we held that a State is without power to repeal its own
laws when convinced by experience that a law is not serving a
useful purpose. Moreover, it is the Court's opinion here that casts
aspersions upon the right of citizens to vote. I say that for this
reason. Akron's repealing law here held unconstitutional provides
that an ordinance in the fair housing field in Akron
"must first be approved by a majority of the electors voting on
the question at a regular or general election before said ordinance
shall be effective."
The Court uses this granted right of the people to vote on this
important legislation as a key argument for holding that the
repealer denies equal protection to Negroes. Just consider that for
a moment. In this Government, which we boast is "of the people, by
the people, and for the people," conditioning the enactment of a
law on a majority vote of the people condemns that law as
unconstitutional in the eyes of the Court. There may have been
other state laws held unconstitutional in the past on grounds that
are equally as fallacious and undemocratic as those the Court
relies on today, but, if so, I do not recall such cases at the
moment. It is time, I think, to recall that the Equal Protection
Clause does not empower this Court to decide what ordinances or
laws a State may repeal. I would not strike down this repealing
ordinance.