Barrows v. Jackson

No. 517. Argued April 28 and 29, 1953. Decided June 15, 1953. Certiorari to the District Court of Appeal of the State of California, Second Appellate District. Judgment affirmed (112 California Appellate 2d 534, 247 Pacific 2d 99, affirmed). Opinion of the Court by Mr. Justice Minton. Mr. Chief Justice Vinson dissented. Mr. Justice Reed and Mr. Justice Jackson took no part in the consideration or decision of the case.

Editorial note. Owners of parcels in a Los Angeles tract had covenanted with one another that no part of the property would be occupied by any person not of the Caucasian race. The petitioners, co-covenantors, sued the respondent, another party to the covenant, alleging that she had sold her parcel without exacting the restriction from her purchaser and that non-Caucasian persons had thereafter occupied it. They sought money damages for the resulting depreciation of their own parcels. No excluded purchaser or occupant was a party to the suit.

Editorial note. The trial court sustained a demurrer and the District Court of Appeal affirmed, holding that Shelley v. Kraemer forbade the award of damages. The Supreme Court granted certiorari and affirmed.

Editorial note. A state court's award of damages for breach of a racially restrictive covenant would be state action denying the equal protection of the laws to the persons excluded, and the Fourteenth Amendment therefore forbids it. The respondent, though asserting the rights of third persons, was permitted to raise the objection, because the excluded persons could not effectively protect their own interests in this litigation and the only way to give them the benefit of the Amendment was to permit the covenantor to invoke it in defence. The rule derived is that no state remedy, legal or equitable, may be lent to the enforcement of a racial occupancy covenant.

Editorial note. Mr. Justice Minton reasoned that if the State exacted a penalty in damages for failing to observe the covenant, the practical consequence would be to coerce covenantors into imposing the restriction on their purchasers, so that the State would be enforcing discrimination as surely as if it had enjoined the sale. The rule against a litigant asserting the rights of others was relaxed because the excluded persons were absent by the very nature of the action and would be irremediably injured by its outcome. The opinion emphasised that the covenant itself remained a private agreement which the parties were free to honour voluntarily; what the Constitution forbade was the State's participation in compelling its observance.

Editorial note. Barrows is the second half of the state-action holding in Shelley. Without it, the covenant would have survived as a self-enforcing instrument: a seller facing damages would decline to sell to an excluded purchaser, and no court order against the purchaser would ever be needed. The decision also remains a standing authority of general importance, because it explains when a defendant may litigate the constitutional rights of absent third persons. In the treatise it closes the chapter of judicially enforceable racial covenants and marks the point at which the problem of residential exclusion passes to legislation and to the Fair Housing Act.

Editorial note. Followed. Cited as settled law for the proposition that racially restrictive covenants are unenforceable by any state remedy, and relied on in later decisions as authority for the limited relaxation of the ordinary rule against asserting the rights of third parties.

Editorial note. Read with U.S. Const. amend. XIV, § 1, and the treatise chapters on covenants running with the land and on fair housing and civil rights.