U.S. Government Asks Supreme Court to Bar Restrictive Real Estate Covenants

The Supreme Court today opened oral arguments on our cases involving restrictive property covenants by hearing the testimony of elicitor General Phillip Perlman and with three Justices disqualified from the case.

As soon as the court met Justices Reed, Jackson and Rutledge left the bench, and their offices said later that they had disqualified themselves. Possible reasons for their action were that they either had participate in such a case in lower courts or that they own or occupy property affected by covenants.

Solicitor General Perlman represented the U.S. Government, which filed a ?rief as amicus curiae holding that restrictive covenants were "against the law, against the Constitution, and against the public policy of the United States." Perlman old the court that such covenants aimed against Negroes, Jews, Hawaiians, Indians, Puerto Ricans, Philipinos, Chinese, Japanese and Mexicans "have grown in numbers to such magnitude and encompass areas so great In size as to become detrimental to the general welfare and against the public policy of our country."

"The Executive Branch of the Government says that the Judicial Branch of Government, State and Federal, has no authority to enforce such covenants, and should no longer be permitted by this court to do so," Perlman said. He argued that under the provisions of the Fifth and Fourteenth Amendments the State cannot enact statutes which discriminate against one group of citizens on the basis of color, race, or religion and described a Supreme Court case of 30 years ago in which the court had ruled that racial residential segregation could not be imposed by state or municipal legislatures. Judicial enforcement of private agreements which discriminate against minorities constitutes no less an action of the state than legislative or executive action, Perlman said.James A. Crooks, one of the attorneys defending the covenants, argued that it was the duty of the court to enforce the contracts regardless of the motives behind the signing of the contract. Justice Frankfurter, who earlier had pointed out that many contracts are made that are not enforced because of public policy or public interest, asked Crooks if the state were to enforce a contract aimed at discrimination would not the state, in effect, be enforcing a policy which it was by law barred from initiating.