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U.S. Supreme Court,
Judges and Judiciary,
Constitutional Law,
Civil Rights

Dec. 5, 2017

Fighting housing discrimination in Orange County

In 1962, Dorothy and Lincoln Mulkey were living and working in Santa Ana in pursuit of the American Dream.


In 1962, Dorothy and Lincoln Mulkey were living and working in Santa Ana in pursuit of the American Dream. Like many veterans and workers from wartime industries, the Mulkeys, both U.S. Navy veterans, had moved to Orange County in pursuit of opportunities afforded by the prosperous post-war economy. But they soon learned that their American Dream would not be realized without a fight for their constitutional rights when, despite new antidiscrimination legislation in California, the Mulkeys were denied rental of an apartment solely because of their race.

California Anti-Discrimination Legislation

In the wake of the economic prosperity that followed World War II, the California Legislature passed several antidiscrimination laws. In 1959, the Legislature enacted the Fair Employment Practices Act prohibiting employment discrimination based on race, national origin or religion; the Unruh Civil Rights Act prohibiting discrimination by business establishments based on race, national origin, gender, religion, age, disability or sexual orientation; and the Hawkins Act prohibiting discrimination in "any public assisted housing accommodation."

Then, in 1963, the Legislature passed the Rumford Fair Housing Act, which prohibited discrimination based on race, religion and national origin in the sale or rental of any private residence having more than four units. The Fair Housing Act was one of the most significant laws protecting the rights of people of color to purchase housing without being subjected to discrimination during the post-World War II period. The legislation was introduced by State Assemblyman William Byron Rumford, the first African-American legislator from Northern California.

Proposition 14

These new laws were not passed without opposition. Ultimately, that opposition led to an organized campaign to repeal the Rumford Fair Housing Act and place a property rights voter initiative on the November 1964 ballot. Proposition 14 was intended to nullify both the Unruh and Rumford Acts as they applied to the housing market by amending the California Constitution (Art. I, section 26) to state: "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." It needed 480,000 signatures to make the ballot; it received over 1 million.

The campaign leading to the November 1964 election was heated. Those in favor of Prop. 14 included the John Birch Society and Arizona Sen. Barry Goldwater. The Los Angeles Times endorsed it stating: "One of man's most ancient rights in a free society is the privilege of using and disposing of his private property in whatever manner he deems appropriate. *** But we do feel, and strongly, that housing equality cannot safely be achieved at the expense of still another basic right." Those opposing Prop. 14 included then-California Gov. Edmund "Pat" Brown who made several statements about the initiative, including calling it "another hate binge which began more than 30 years ago in a Munich beer hall." On Nov. 3, 1964, Prop. 14 passed easily with 65.39 percent support.

Mulkey v. Reitman

During this time, the Mulkeys were enjoying their share of the prosperous post-war economy. After having served honorably in the United States Navy, they moved west from Kentucky coal country in search of new opportunities. They were newly married and expecting their first child, working and living in Orange County. Dorothy Mulkey was working at Bank of America in Santa Ana. Her husband, Lincoln, was serving as a United States postal worker. But they were living with Lincoln's parents, and wanted a residence of their own to start their family.

In May 1963, the Mulkeys attempted to rent an unoccupied apartment in Santa Ana from Neil Reitman. Initially, they were approved as renters over the telephone. But when he first saw the Mulkeys walking up the driveway, the landlord realized they were people of color and refused to rent them the apartment.

After a discussion in a beauty salon, Dorothy felt inspired. It was not long thereafter that, with the assistance of the American Civil Liberties Union and National Association for the Advancement of Colored People, the Mulkeys filed a lawsuit in Orange County Superior Court. Their lawsuit relied, in part, on the Unruh Civil Rights Act, which prohibited discrimination "by business establishments of any kind" based on race.

The case was heard before Orange County Superior Court Judge Raymond Thompson. Judge Thompson rejected the Mulkeys' argument that Prop. 14, which had passed while the lawsuit was pending, was unconstitutional under the state and federal Constitutions. Judge Thompson also granted summary judgment in favor of the landlord, Reitman, on the grounds that the Prop. 14 rendered the Unruh Act null and void. The Mulkeys appealed.

The case first went to the California Supreme Court which found that Prop. 14 violated the Mulkeys' equal protection rights under the U.S. Constitution. Mulkey v. Reitman, 64 Cal. 2d 529 (1966). In finding that the state action requirement was satisfied, the court relied on cases in which the state merely assisted in private discrimination, including Shelley v. Kraemer, 334 U.S. 1 (1948) (court enforcement of racially restrictive covenant), and Burton v. Wilmington Package Authority, 365 U.S. 715 (1961) (privately leased location in a state facility practicing discrimination). The court concluded that, "[w]here a state can be said to act, as it does of course, through the laws approved by legislators elected by popular vote, it must also be held to act through a law adopted directly by the popular vote." Reitman appealed.

Reitman v. Mulkey

The U.S. Supreme Court affirmed in a 5-to-4 decision. Reitman v. Mulkey, 387 U.S. 369 (1967). Writing for the majority, Justice Byron R. White agreed that state assistance, involvement and/or encouragement of discrimination by private individuals violated the equal protection clause. He explained that, through Prop. 14, "[t]he right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of state government." Justice White concluded that, "[t]he California Supreme Court believes that the section will significantly encourage and involve the state in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned." Justice William O. Douglas concurred: "Proposition 14 is a form of sophisticated discrimination whereby the people of California harness the energies of the private groups to do indirectly what they cannot under our decisions allow their government to do."

In dissent, Justice John M. Harlan wrote that "the state action required to bring the Fourteenth Amendment into operation must be affirmative and purposeful, actively fostering discrimination." He disagreed that Prop. 14 was "actively promoting racial discrimination," and also characterized the majority decision as "far-reaching" since "[u]nder this theory 'state action' in the form of laws that do nothing more than passively permit private discrimination could be said to tinge all private discrimination with the taint of unconstitutional state encouragement."

The Legacy of Reitman v. Mulkey

Despite its narrow majority, the Reitman v. Mulkey decision remains highly relevant and often cited (about 490 citations). Some notable decisions citing Reitman v. Mulkey include Parr v. Municipal Court, 3 Cal. 3d 861 (1971) (invalidating anti-hippie legislation); Citizens for Responsible Behavior v. Superior Court, 1 Cal. App. 4th 1013 (1991) (invalidating anti-gay legislation); Romer v. Evans, 517 U.S. 620 (1996) (invalidating anti-gay voter approved initiative); and Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, 2014 DJDAR 4875 (2014) (analyzing a Michigan initiative to eliminate racial considerations in college admissions).

Back Home in Santa Ana

The Mulkeys never had to appear in court during the years their case worked its way through the justice system. But they never lost sight of their goal. After all, they never wanted to end up in the U.S. Supreme Court. All they wanted was a decent place to live and start a family. They found it. While the case was pending, they moved into a different apartment near the Santa Ana residence they were denied. And once their fight was done and they had secured their constitutional rights, the Mulkeys were able to continue their pursuit of their American Dream working and living in a decent home in Orange County.


Ben Armistead

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