Appellees, who are eligible for low-cost public housing,
challenged the requirement of Art. XXXIV of the California
Constitution that no low-rent housing project be developed,
constructed, or acquired by any state public body without the
approval of a majority of those voting at a community election, as
violative of the Supremacy, Privileges and Immunities, and Equal
Protection Clauses of the United States Constitution. A three-judge
District Court enjoined the enforcement of the referendum provision
on the ground that it denied appellees equal protection of the
laws, relying chiefly on Hunter v. Erickson, 393 U.
The California procedure for mandatory
referendums, which is not limited to proposals involving low-cost
public housing, ensures democratic decisionmaking, and does not
violate the Equal Protection Clause. Hunter v. Erickson,
distinguished. Pp. 404 U. S.
313 F. Supp.
, reversed and remanded.
BLACK, J., delivered the opinion of the Court, in which BURGER,
C.J., and HARLAN, STEWART, and WHITE, JJ., joined. MARSHALL, J.,
filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ.,
p. 404 U. S. 143
DOUGLAS, J., took no part in the consideration or decision of the
Page 404 U. S. 138
MR. JUSTICE BLACK delivered the opinion of the Court.
These cases raise but a single issue. It grows out of the United
States Housing Act of 1937, 50 Stat. 888, as amended, 42 U.S.C. §
1401 et seq.,
which established a federal housing agency
authorized to make loans and grants to state agencies for slum
clearance and low-rent housing projects. In response, the
California Legislature created in each county and city a public
housing authority to take advantage of the financing made available
by the federal Housing Act. See
Cal.Health & Safety
Code § 34240. At the time the federal legislation was passed, the
California Constitution had for many years reserved to the State's
people the power to initiate legislation and to reject or approve
by referendum any Act passed by the state legislature. Cal.Const.,
Art. IV, § 1. The same section reserved to the electors of counties
and cities the power of initiative and referendum over acts of
local government bodies. In 1950, however, the State Supreme Court
held that local authorities' decisions on seeking federal aid for
public housing projects were "executive" and "administrative," not
"legislative," and therefore the state constitution's referendum
provisions did not apply to these actions. [Footnote 1
] Within six months of
Page 402 U. S. 139
that decision, the California voters adopted Article XXXIV of
the state constitution to bring public housing decisions under the
State's referendum policy. The Article provided that no low-rent
housing project should be developed, constructed, or acquired in
any manner by a state public body until the project was approved by
a majority of those voting at a community election. [Footnote 2
The present suits were brought by citizens of San Jose,
California, and San Mateo County, localities where housing
authorities could not apply for federal funds because low-cost
housing proposals had been defeated in referendums. The plaintiffs,
who are eligible for low-cost public housing, sought a declaration
that Article XXXIV was unconstitutional because its referendum
requirement violated: (1) the Supremacy Clause of the United States
Constitution; (2) the Privileges and Immunities Clause; and (3) the
Equal Protection Clause. A three-judge court held that Article
XXXIV denied the plaintiffs
Page 402 U. S. 140
equal protection of the laws, and it enjoined its enforcement.
313 F. Supp.
(ND Cal.1970). Two appeals were taken from the judgment, one
by the San Jose City Council and the other by a single member of
the council. We noted probable jurisdiction of both appeals. 398
U.S. 949 (1970); 399 U.S. 925 (1970). For the reasons that follow,
The three-judge court found the Supremacy Clause argument
unpersuasive, and we agree. By the Housing Act of 1937, the Federal
Government has offered aid to state and local governments for the
creation of low-rent public housing. However, the federal
legislation does not purport to require that local governments
accept this or to outlaw local referendums on whether the aid
should be accepted. We also find the privileges and immunities
argument without merit.
While the District Court cited several cases of this Court, its
chief reliance plainly rested on Hunter v. Erickson,
393 U. S. 385
(1969). The first paragraph in the District Court's decision stated
simply: "We hold Article XXXIV to be unconstitutional. See
Hunter v. Erickson.
. . ." The court below erred in relying on
to invalidate Article XXXIV. Unlike the case before
rested on the conclusion that Akron's
referendum law denied equal protection by placing "special burdens
on racial minorities within the governmental process." Id.
at 393 U. S. 391
the citizens of Akron had amended the city
charter to require that any ordinance regulating real estate on the
basis of race, color, religion, or national origin could not take
effect without approval by a majority of those voting in a city
election. The Court held that the amendment created a
classification based upon race because it required that laws
dealing with racial housing matters could take effect only if they
survived a mandatory referendum, while
Page 402 U. S. 141
other housing ordinances took effect without any such special
election. The opinion noted:
"Because the core of the Fourteenth Amendment is the prevention
of meaningful and unjustified official distinctions based on race,
[citing a group of racial discrimination cases] racial
classifications are 'constitutionally suspect,' . . . and subject
to the 'most rigid scrutiny.'. . . They 'bear a far heavier burden
of justification' than other classifications."
at 393 U. S.
-392. The Court concluded that Akron had advanced no
sufficient reasons to justify this racial classification, and hence
that it was unconstitutional under the Fourteenth Amendment.
Unlike the Akron referendum provision, it cannot be said that
California's Article XXXIV rests on "distinctions based on race."
at 393 U. S. 391
The Article requires referendum approval for any low-rent public
housing project, not only for projects which will be occupied by a
racial minority. And the record here would not support any claim
that a law seemingly neutral on its face is in fact, aimed at a
racial minority. Cf. Gomillion v. Lightfoot, 364 U.
(1960). The present case could be affirmed only
by extending Hunter,
and this we decline to do.
California's entire history demonstrates the repeated use of
referendums to give citizens a voice on questions of public policy.
A referendum provision was included in the first state
constitution, Cal.Const. of 1849, Art. VIII, and referendums have
been a commonplace occurrence in the State's active political life.
] Provisions for
referendums demonstrate devotion to democracy, not to bias,
discrimination, or prejudice. Nonetheless, appellees
Page 402 U. S. 142
contend that Article XXXIV denies them equal protection because
it demands a mandatory referendum, while many other referendums
only take place upon citizen initiative. They suggest that the
mandatory nature of the Article XXXIV referendum constitutes
unconstitutional discrimination, because it hampers persons
desiring public housing from achieving their objective when no such
roadblock faces other groups seeking to influence other public
decisions to their advantage. But, of course, a lawmaking procedure
that "disadvantages" a particular group does not always deny equal
protection. Under any such holding, presumably a State would not be
able to require referendums on any subject unless referendums were
required on all, because they would always disadvantage some group.
And this Court would be required to analyze governmental structures
to determine whether a gubernatorial veto provision or a filibuster
rule is likely to "disadvantage" any of the diverse and shifting
groups that make up the American people.
Furthermore, an examination of California law reveals that
persons advocating low income housing have not been singled out for
mandatory referendums while no other group must face that obstacle.
Mandatory referendums are required for approval of state
constitutional amendments, for the issuance of general obligation
long-term bonds by local governments, and for certain municipal
territorial annexations. See
Cal.Const., Art. XVIII; Art.
XIII, § 40; Art. XI, § 2(b). California statute books contain much
legislation first enacted by voter initiative, and no such law can
be repealed or amended except by referendum. Cal.Const., Art. IV, §
24(c). Some California cities have wisely provided that their
public parks may not be alienated without mandatory referendums,
San Jose Charter § 1700.
The people of California have also decided by their
Page 402 U. S. 143
own vote to require referendum approval of low-rent public
housing projects. This procedure ensures that all the people of a
community will have a voice in a decision which may lead to large
expenditures of local governmental funds for increased public
services and to lower tax revenues. [Footnote 4
] It gives them a voice in decisions that will
affect the future development of their own community. This
procedure for democratic decisionmaking does not violate the
constitutional command that no State shall deny to any person "the
equal protection of the laws."
The judgment of the three-judge court is reversed, and the cases
are remanded for dismissal of the complaint.
Reversed and remanded.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of these cases.
Housing Authority v. Superior Court, 35 Cal. 2d
, 557-558, 219 P.2d 457, 460-461 (1950).
"Section l. No low rent housing project shall hereafter be
developed, constructed, or acquired in any manner by any state
public body until a majority of the qualified electors of the city,
town or county, as the case may be, in which it is proposed to
develop, construct, or acquire the same, voting upon such issue,
approve such project by voting in favor thereof at an election to
be held for that purpose, or at any general or special
"For the purposes of this article the term 'low rent housing
project' shall mean any development composed of urban or rural
dwellings, apartments or other living accommodations for persons of
low income, financed in whole or in part by the Federal Government
or a state public body or to which the Federal Government or a
state public body extends assistance by supplying all or part of
the labor, by guaranteeing the payment of liens, or otherwise. . .
"For the purposes of this article only 'persons of low income'
shall mean persons or families who lack the amount of income which
is necessary (as determined by the state public body developing,
constructing, or acquiring the housing project) to enable them,
without financial assistance, to live in decent, safe and sanitary
dwellings, without overcrowding."
W. Crouch, The Initiative and Referendum in
Public low-rent housing projects are financed through bonds
issued by the local housing authority. To be sure, the Federal
Government contracts to make contributions sufficient to cover
interest and principal, but the local government body must agree to
provide all municipal services for the units and to waive all taxes
on the property. The local services to be provided include schools,
police, and fire protection, sewers, streets, drains, and lighting.
Some of the cost is defrayed by the local governing body's receipt
of 10% of the housing project rentals, but of course the rentals
are set artificially low. Both appellants and appellees agree that
the building of federally financed low-cost housing entails costs
to the local community. Appellant Shaffer's Brief 34-35. Appellees'
Brief 47. See also
42 U.S.C. §§ 1401-1430.
MR. JUSTICE MARSHALL, whom MR. JUSTICE BRENNAN and MR. JUSTICE
BLACKMUN join, dissenting.
By its very terms, the mandatory prior referendum provision of
Art. XXXIV applies solely to
"any development composed of urban or rural dwellings,
apartments or other living accommodations for
Page 402 U. S. 144
persons of low income, financed in whole or in part by the
Federal Government or a state public body or to which the Federal
Government or a state public body extends assistance by supplying
all or part of the labor, by guaranteeing the payment of liens, or
Persons of low income are defined as
"persons or families who lack the amount of income which is
necessary . . . to enable them, without financial assistance, to
live in decent, safe and sanitary dwellings, without
The article explicitly singles out low income persons to bear
its burden. Publicly assisted housing developments designed to
accommodate the aged, veterans, state employees, persons of
moderate income, or any class of citizens other than the poor, need
not be approved by prior referenda. *
In my view, Art. XXXIV, on its face, constitutes invidious
discrimination which the Equal Protection Clause of the Fourteenth
Amendment plainly prohibits.
"The States, of course, are prohibited by the Equal Protection
Clause from discriminating between 'rich' and 'poor' as such in the
formulation and application of their laws."
Douglas v. California, 372 U.
, 372 U. S. 361
(1963) (HARLAN, J., dissenting). Article XXXIV is neither "a law of
general applicability that may affect the poor more harshly than it
does the rich," ibid.,
nor an "effort to redress economic
It is rather an explicit
Page 402 U. S. 145
classification on the basis of poverty -- a suspect
classification which demands exacting judicial scrutiny, see
McDonald v. Board of Election, 394 U.
, 394 U. S. 807
(1969); Harper v. Virginia Board of Elections,
383 U. S. 663
(1966); Douglas v. California, supra.
The Court, however, chooses to subject the article to no
scrutiny whatsoever and treats the provision as if it contained a
totally benign, technical economic classification. Both the
appellees and the Solicitor General of the United States as
have strenuously argued, and the court below
found, that Art. XXXIV, by imposing a substantial burden solely on
the poor, violates the Fourteenth Amendment. Yet after observing
that the article does not discriminate on the basis of race, the
Court's only response to the real question in these cases is the
unresponsive assertion that "referendums demonstrate devotion to
democracy, not to bias, discrimination, or prejudice." It is far
too late in the day to contend that the Fourteenth Amendment
prohibits only racial discrimination; and to me, singling out the
poor to bear a burden not placed on any other class of citizens
tramples the values that the Fourteenth Amendment was designed to
I respectfully dissent.
* California law authorizes the formation of Renewal Area
Agencies whose purposes include the construction of "low income,
middle income and normal market housing," Cal.Health & Safety
Code § 33701 et seq.
Only low income housing programs are
subject to the mandatory referendum provision of Art. XXXIV even
though all of the agencies' programs may receive substantial