Reitman v. Mulkey,
387 U.S. 369 (1967)

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U.S. Supreme Court

Reitman v. Mulkey, 387 U.S. 369 (1967)

Reitman v. Mulkey

No. 483

Argued March 221, 1967

Decided May 29, 1967

387 U.S. 369


The California Legislature, during the period 1959-1963, enacted several statutes regulating racial discrimination in housing. In 1964, pursuant to an initiative and referendum, Art. I, § 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."

The California Supreme Court held that Art. I, § 26, was designed to overturn state laws that bore on the right of private persons to discriminate, that it invalidly involved the State in racial discrimination in the housing market, and that it changed the situation from one in which discriminatory practices were restricted to one where they are "encouraged," within the meaning of this Court's decisions. The court concluded that Art. I, § 26, unconstitutionally involves the State in racial discrimination, and is therefore invalid under the Equal Protection Clause of the Fourteenth Amendment.

Held: The California Supreme Court believes that Art. I, § 26, which does not merely repeal existing law forbidding private racial discrimination, but authorizes racial discrimination in the housing market and establishes the right to discriminate as a basic state policy, will significantly encourage and involve the State in private discriminations. No persuasive considerations indicating that the judgments herein should be overturned have been presented, and they are affirmed. Pp. 387 U. S. 373-381.

64 Cal.2d 529, 877, 413 P.2d 825, 847, affirmed.

Page 387 U. S. 370

Primary Holding

State action happens when a state rejects a policy against discrimination and takes a neutral position that would permit discrimination to occur in the sale and rental of private property.


Under Proposition 14, initiated by a statewide ballot in California in 1964, the state was prohibited from denying or limiting the right to sell, lease, or rent property to anyone whom the property owner wishes in his or her absolute discretion. Reitman refused to rent an apartment to the Mulkeys on the sole basis of their race. This happened before Proposition 14 was passed, but the Mulkeys later sought an injunction and damages under Section 51 and 52 of the California Civil Code, which prohibited discrimination in accommodations in business establishments. Reitman argued that Proposition 14, which was passed after the complaint was filed, had essentially invalidated these provisions, so the action was moot. The trial court agreed and dismissed the claim.

However, the California Supreme Court ruled on review that Proposition 14 (now part of the California Constitution) was unconstitutional under the U.S. Constitution because it violated the Equal Protection Clause of the Fourteenth Amendment. Reitman responded that Proposition 14 merely put the state in a neutral position, neither encouraging nor discouraging discrimination but instead simply tolerating the actions of private individuals.



  • Byron Raymond White (Author)
  • Earl Warren
  • William Orville Douglas
  • William Joseph Brennan, Jr.
  • Abe Fortas

States are not allowed to implicitly foster discrimination, although they do not need to forbid it. The California Supreme Court should receive substantial deference in its decision to strike down Proposition 14. It was used, through its position in the state constitution, as a mechanism to invalidate statutes that prohibited racial discrimination in the sale or rental of real estate. This shift from an anti-discriminatory to an allegedly neutral position constitutes state action, as established by the Potter Stewart concurrence in Burton v. Wilmington Parking Authority (1961). While maintaining a previously neutral position that Proposition 14 codified would have been neutral, moving from anti-discrimination to neutral because of Proposition 14 effectively equates to encouraging private discrimination.


  • John Marshall Harlan II (Author)
  • Hugo Lafayette Black
  • Tom C. Clark
  • Potter Stewart

No facts in the record suggested that Proposition 14 actually did further discrimination through state action. States are allowed to adopt a neutral position in the area of private discrimination. The Fourteenth Amendment prohibits only affirmative and deliberate conduct by the state that expressly promotes discrimination.

Case Commentary

If a regulation allows discrimination, the state can be seen as collaborating in any action by a private party that uses the regulation as the basis for discrimination.

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