Jones v. Alfred H. Mayer: Refusal to Make Estate Transaction Due to Skin Color (06/17/1968)

Keys and lock the door on the background of solar garden

Jones v. Alfred H. Mayer

Did the defendant violate 42 U.S.C. Section 1982 which guarantees equal rights to all citizens making real estate transactions?

Argued: 03/31/1968; 04/01/1968

Decision Date: 06/17/1968

Decision Record: 7-2; yes

Justices Majority: Earl Warren, Hugo Black, William Douglas, William Brennan, Potter Stewart, Abe Fortas, Thurgood Marshall

Justices Dissenting: John Harlan, Byron White

Effect of the Decision

This case upheld clarified that one cannot be discriminated against for their race when making real estate transactions.

In Favor

On the side of Jones, attorney Samuel H. Liberman said, “This case arises on a petition for certiorari to the Eighth Circuit Court of Appeals on a judgment which simply affirmed a holding by the United States District Court for the Eastern District of Missouri dismissing the amended complaint in these actions for failure to state the cause of action upon which relief can be granted.

Therefore, the facts which are well pleaded in the First Amendment complaints set out in the appendix are the facts which we are dealing with.

These facts alleged that the respondents, a group of related corporations and one individual or developers of a subdivision known Paddock Woods in St. Louis County, Missouri.

They also are developers of adjacent subdivisions known as Paddock Estates, Paddock Meadows, Paddock Hills, and Wedgwood and perhaps some others.

They received permission from various estate agencies to build these divisions including Paddock Woods.

They layout the streets and the sewers and the recreation facilities and various other facilities and then they plot out certain lots and they sell houses and lots to the public.

The method of selling is by buildings and display houses of different types on the — at the location of the subdivision.

And then the public looks at the display house and the buyer, if he likes one of the houses, will enter into a contract by which the respondents will build a certain house according to the choice of the buyer on a certain lot.

And when it’s completed, the transfer of the property is then made.

It’s further alleged that the estate in the various governmental subdivisions of the estate are involved with the building of the subdivision both in the approval and the assistance which they give to the builder and from the standpoint of the function — community functions which they delegate to the builder with respect to the government of this community.

The facts out of this case in particular arose from Mr. and Mrs. Joseph Jones, the petitioners went out to the subdivision and saw a house which they wanted to buy and attempted buy it, and it is alleged that the respondents refused to deal with them or to sell them a house solely because Mr. Jones is a Negro.

The question presented has led to certain refusal solely because of the raise of the prospective buyer is in violation of the law of the United States.

In our brief, this question took two forms, firstly, whether the conduct is prohibited by Section 1978 of the revised statutes 42 U.S.C., Section 1982.

Secondly, whether regardless of the statute on the particular facts of the case due to the nature of the subdivision, the developer would be barred from discriminating in excluding Negroes even without a statute because of the amount of state action which would be involved in the building of the subdivision.

Also in our brief, we broke down the question concerning the statute into its interpretation and as to whether if interpreted as barring this kind of conduct by developer whether that would be a constitutional — constitutionally valid statute.

Actually, it has been conceded by the respondents that such interpretation would be constitutional and in fact the court below, the Court of Appeals, Judge Blackmun held in his opinion there was a matter of interpretation of the statute rather than a constitutional question.

So, addressing my first — myself first to the statutory question rather than the constitutional question, we think that the statute by its plain terms bars a builder of a private subdivision from excluding persons from buying and living in that subdivision because of their race.”


Then in opposition, Mayer is represented by attorney Israel Treiman, who says, “The Court has already touched through its questioning on what I believe are some of the most sensitive areas in this entire case especially the questions directed by Mr. Justice White at the very end which I think clearly indicate the profound complications and the very troublesome problems and difficulties that will arise inevitably if this Court should construe Section 1982 as the petitioners and the government and the amici wanted to.

I, speaking of the amici, may it please the Court in the few minutes that I have left, I should like to make few general observations as Your Honors have probably observed.

There are great many amici briefs that have been filed in this case in support of the petitioners and I must confess that when these briefs started coming to my office I was not a little shaken.

And it wasn’t — it wasn’t because — I was disturbed over the fact that with all these many organizations and fine lawyers on one side, I was being left in a somewhat friendless position in this courtroom.

I’ve become sort of accustomed to that back home where even some of my good friends were beginning to look upon me as if I had suddenly become afflicted with leprosy.

What disturbed me, may it please the Court, what gave me real concern was how I was suppose to deal with all of these good briefs and they are excellent briefs especially the two that have been mentioned here.

The — I’m talking now but the amici briefs, one by the government and the other by group of national organizations headed by one that calls itself the National Committee against Discrimination in Housing, which I shall refer to as I have in my brief as the NCADH brief.

And speaking of that brief, may it please the Court, with reference to the statements made by the honorable Attorney General, in regard to the effect that segregation, racial segregation has had upon the life of our country, I want to say here and now, personally I bow to nobody when it comes to concern over the plight of the disadvantaged Negro family.

And may I have this, I have read many articles and books on this subject, but as I told the person who I believe was the principal writer of the NCADH brief, I have now seen anywhere a more powerful, a more eloquent description of the terrible — the terrible condition in plight in which not only the children but the adults of the Negro families find themselves by reason of their difficulty in obtaining decent housing.

So that as to that part of the Attorney General’s argument, as far as that part is concern, I assure the Court that I do not quarrel either with the Attorney General or with any of these good friends of the Court who come into this case.

What disturbs me, Your Honors, is the way in which they think this problem should be solved.

And I must say, since I will have only a minute, as I came into the courtroom this morning for the first time, I saw the words that are inscribed over the portals of this courthouse “equal justice under law.”

I must confess my ignorance, I did not know those words were there.

And it struck me that this perhaps goes to the very heart of this case surely nobody would deny equal justice under the Equal Protection Clause of the Fourteenth Amendment or under Section 1982.

But the other two words are just as important, it seems to me.

It must be under law.

I happen to be a practicing lawyer back home and not a lawyer who assure you, Your Honors, professors to have any great knowledge about constitutional law.

I happen to be what people referred to as the bread and butter type of practicing lawyer.

And while I have that deep sympathy for the conditions that have been described caused by the acute problems of housing, I am also a practicing lawyer.

I have an equal reverence for the orderliness of the law.

And I believe Your Honors that if we are to meet this problem, let us meet it in a way that it’s provided for under our Constitution and under our philosophy of the meaning of law.”


The majority opinion slip was written by Justice Potter Stewart, “Those who opposed passage of the Civil Rights Act of 1866 argued, in effect that the Thirteenth Amendment merely authorized Congress to dissolve the legal bond by which the Negro slave was held to his master. Yet many had earlier opposed the Thirteenth Amendment on the very ground that it would give Congress virtually unlimited power to enact laws for the protection of Negroes in every State. And the majority leaders in Congress — who were, after all, the authors of the Thirteenth Amendment — had no doubt that its Enabling Clause contemplated the sort of positive legislation that was embodied in the 1866 Civil Rights Act. Their chief spokesman, Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then

the trumpet of freedom that we have been blowing throughout the land has given an “uncertain sound,” and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that, under this provision . . . , we may destroy all these discriminations in civil rights against the black man, and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States, and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.

Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one. For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery — its “burdens and disabilities” — included restraints upon

those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.

Civil Rights Cases. Just as the Black Codes, enacted after the Civil War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.

Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom — freedom to “go and come at pleasure” and to “buy and sell when they please” would be left with “a mere paper guarantee”if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.

Representative Wilson of Iowa was the floor manager in the House for the Civil Rights Act of 1866. In urging that Congress had ample authority to pass the pending bill, he recalled the celebrated words of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

‘The end is legitimate,’ the Congressman said,

because it is defined by the Constitution itself. The end is the maintenance of freedom. . . . A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. . . . This settles the appropriateness of this measure, and that settles its constitutionality.”

 Then in dissent, Justice John Harlan wrote, “I am not dissuaded from my view by the circumstance that the 1968 Act was enacted after oral argument in this case, at a time when the parties and amici curiae had invested time and money in anticipation of a decision on the merits, or by the fact that the 1968 Act apparently will not entitle these petitioners to the relief which they seek. For the certiorari jurisdiction was not conferred upon this Court ‘merely to give the defeated party in the . . . Court of Appeals another hearing,’ Magnum Co. v. Coty, or “for the benefit of the particular litigants,” Rice v. Sioux City Cemetery, but to decide issues “the settlement of which is of importance to the public, as distinguished from . . . the parties,” Layne & Bowler Corp. v. Western Well Works, Inc., I deem it far more important that this Court should avoid, if possible, the decision of constitutional and unusually difficult statutory questions than that we fulfill the expectations of every litigant who appears before us.

One prior decision of this Court especially suggests dismissal of the writ as the proper course in these unusual circumstances. In Rice v. Sioux City Cemetery, supra, the issue was whether a privately owned cemetery might defend a suit for breach of a contract to bury on the ground that the decedent was a Winnebago Indian and the contract restricted burial privileges to Caucasians. In considering a petition for rehearing following an initial affirmance by an equally divided Court, there came to the Court’s attention for the first time an Iowa statute which prohibited cemeteries from discriminating on account of race, but which would not have benefited the Rice petitioner because of an exception for “pending litigation.” Mr. Justice Frankfurter, speaking for a majority of the Court, held that the writ should be dismissed. He pointed out that the case presented “evident difficulties,” 349 U.S. at 77, and noted that,

[h]ad the statute been properly brought to our attention . . . , the case would have assumed such an isolated significance that it would hardly have been brought here in the first instance.

This case certainly presents difficulties as substantial as those in Rice. Compare what has been said in this opinion with 349 U.S. at 72-73; see also Bell v. Maryland. And if the petition for a writ of certiorari in this case had been filed a few months after, rather than a few months before, the passage of the 1968 Civil Rights Act, I venture to say that the case would have been deemed to possess such “isolated significance,” in comparison with its difficulties, that the petition would not have been granted.

My Opinion:

In this case, I agree with the majority opinion. Mayer’s refusal to make an estate transaction was a complete violation of the constitution, 42 U.S.C. Section 1982, because he did it as a result of Jones’s skin color. 42 U.S.C. Section 1982 clearly guarantees equal rights to all citizens making real estate transactions. This includes people similar to Jones. There are no exceptions, for the Thirteenth Amendment changed that. Therefore, Mayer was wrong to refuse an estate transaction with Jones merely because of his skin color, for it infringes upon the 42 U.S.C. Section 1982 of the Thirteenth Amendment.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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