PEEK, J. Plaintiffs appeal from a summary judgment entered upon the granting of a motion therefor in an action for relief under sections 51 and 52 of the Civil Code.1
In the trial court proceedings allegations of the complaint [532]were not factually challenged, no evidence was introduced, and the only matter placed in issue was the legal sufficiency of the allegations. The motion for judgment, therefore, properly should be designated as one for judgment on the pleadings and will be so treated on appeal. In any event the allegations of the complaint stand as admitted for our purposes. (See Davis v. City of Santa Ana, 108 Cal.App.2d 669, 685 [239 P.2d 656].)
Plaintiffs’ complaint sets forth that they are husband and wife, citizens of the United States and residents of the County of Orange, that they are Negroes; that defendants are the owners and managers of a certain apartment building in Orange County; that in May 1963 at least one apartment therein was unoccupied and was being offered by defendants for rent to the general public; that plaintiffs offered to rent any one of available apartments and were willing and able to do so; that defendants refused to rent any of the available apartments to plaintiffs solely on the ground that plaintiffs were Negroes; that because of such refusal plaintiffs were unable to rent a suitable place to live; that they suffered humiliation and disappointment and endured mental pain and suffering; that defendants will continue to refuse to rent to plaintiffs and other members of their race solely on the ground of such race unless restrained by order of the court; that plaintiffs have no adequate remedy at law because the discrimination practiced by defendants is also practiced by other real estate brokers, and home and apartment landlords and owners in Orange County.
The motion for judgment was made and granted solely on the ground, as stated by the trial court, “that the passage of Proposition 14 had rendered Civil Code Sections 51 and 52 upon which this action is based null and void. ’ ’ The reference is to the initiative measure which appeared as Proposition 14 upon the statewide ballot in the general election of 1964. Following its approval by the voters it was incorporated into the California Constitution as article I, section 26.
Plaintiffs unsuccessfully opposed the motion on the ground that article I, section 26, is void for constitutional reasons under both the state and federal Constitutions. This contention presents the sole question on appeal.
Proposition 14, as now incorporated into the California Constitution, provides in full as follows:
“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 [533]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.
“ ‘Person’ includes individuals, partnerships, corporations and other legal entities and their agents or representatives but does not include the State or any subdivision thereof with respect to the sale, lease or rental of property owned by it.
“ ‘Real property’ consists of any interest in real property of any kind or quality, present or future, irrespective of how obtained or financed, which is used, designed, constructed, zoned or otherwise devoted to or limited for residential purposes whether as a single family dwelling or as a dwelling for two or more persons or families living together or independently of each other.
“This Article shall not apply to the obtaining of property by eminent domain pursuant to Article I, Sections 14 and 14½ of this Constitution, nor to the renting or providing of any accommodations for lodging purpose by a hotel, motel or other similar public place engaged in furnishing lodging to transient guests.
“If any part or provision of this Article, or the application thereof to any person or circumstance, is held invalid, the remainder of the Article, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in force and effect. To this end the provisions of this Article are severable.” (Cal. Const., art. I, § 26.)
For reasons which hereafter appear we do not find it necessary to discuss claims of the unconstitutionality of article I, section 26, based on California constitutional provisions and law. Our resolution of the question of constitutionality is confined solely to federal constitutional considerations. We note preliminarily that although we are examining a provision which, by its enactment by ballot, has been accorded state constitutional stature, the supremacy clause of the United States Constitution nevertheless compels that section 26, like any other state law, conform to federal constitutional standards before it may be enforced against persons who are entitled to protection under that Constitution. (See Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 736-737 [84 S.Ct. 1472, 12 L.Ed.2d 632].)
A state enactment cannot be construed for purposes of constitutional analysis without concern for its immediate objective (In re Petraeus (1939) 12 Cal.2d 579, 583 [86 P.2d 343] ; [534]see Griffin v. County School Board, 377 U.S. 218, 231 [84 S.Ct. 1226, 12 L.Ed.2d 256]), and for its ultimate effect (Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 880 [31 Cal.Rptr. 606, 382 P.2d 878] ; Gomillion v. Lightfoot (1960) 364 U.S. 339, 341-343 [81 S.Ct. 125, 5 L.Ed.2d 110] ; Avery v. Georgia (1953) 345 U.S. 559, 562 [73 S.Ct. 891, 97 L.Ed. 1244] ; Near v. Minnesota (1931) 283 U.S. 697, 708-709 [51 S.Ct. 625, 75 L.Ed. 1357]). To determine the validity of the enactment in this respect it must be viewed in light of its historical context and the conditions existing prior to its enactment. (Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 645 [335 P.2d 672]; Evans v. Selma Union High School Dist. (1924) 193 Cal. 54, 57-58 [222 P. 801, 31 A.L.R. 1121] ; see Snowden v. Hughes (1944) 321 U.S. 1, 8-9 [64 S.Ct. 397, 88 L.Ed. 497].)
In 1959, the State Legislature took the first major steps toward eliminating racial discrimination in housing. The Un-ruh Civil Rights Act (Civ. Code, §§ 51, 52) prohibited discrimination on grounds of “race, color, religion, ancestry, or natural origin” by “business establishments of every kind.” On its face, this measure encompassed the activities of real estate brokers and all businesses selling or leasing residential housing. (See Lee v. O’Hara (1962) 57 Cal.2d 476 [20 Cal.Rptr. 617, 370 P.2d 231] ; Burks v. Poppy Constr. Co. (1962) 57 Cal.2d 463 [20 Cal.Rptr. 609, 370 P.2d 313].)
At the same session the Legislature passed the Hawkins Act (formerly Health & Saf. Code, §§ 35700-35741) that prohibited racial discrimination in publicly assisted housing accommodations. In 1961 the Legislature broadened its attempt to discourage segregated housing by enacting proscriptions against discriminatory restrictive covenants affecting real property interests (Civ. Code, § 53) and racially restrictive conditions in deeds of real property (Civ. Code, § 782).
Finally in 1963 the State Legislature superseded the Hawkins Act by passing the Rumford Fair Housing Act. (Health & Saf. Code, §§ 35700-35744.) The Rumford Act provided that “The practice of discrimination because of race, color, religion, natural origin, or ancestry is declared to be against public policy” and prohibited such discrimination in the sale or rental of any private dwelling containing more than four units. The State Fair Employment Practice Commission was empowered to prevent violations.
Proposition 14 was enacted against the foregoing historical background with the clear intent to overturn state laws that bore on the right of private sellers and lessors to discrimi[535]nate, and to forestall future state action that might circumscribe this right. In short, Proposition 14 generally nullifies both the Rumford and Unruh Acts as they apply to the housing market.
Prior to its enactment the unconstitutionality of Proposition 14 was urged to this court in Lewis v. Jordan, Sac. 7549 (June 3, 1964). In rejecting the petition for mandamus to keep that proposition off the ballot we stated in our minute order ‘ ‘ that it would be more appropriate to pass on those questions after the election . . . than to interfere with the power of the people to propose laws and amendments to the Constitution and to adopt or reject the same at the polls. ...” But we further noted in the order that “there are grave questions whether the proposed amendment to the California Constitution is valid under the Fourteenth Amendment to the United States Constitution. . . .” We are now confronted with those questions.
Plaintiffs’ basic contention is that the foregoing provision cannot constitutionally withstand the mandate contained in section 1 of the Fourteenth Amendment to the United States Constitution that no state shall ‘ ‘ deny to any person within its jurisdiction the equal protection of the laws.” Thus, the constitutional proscription invoked is twofold. First, it is a limitation on state, as distinguished from private action and, second, it directs that such state action, where undertaken, meet certain minimum standards. If we assume for the moment that the state has undertaken to act in these circumstances, then the pertinent issue becomes whether such action accords equal protection of the laws to plaintiffs. We consider such issue initially.
It is now beyond dispute that “. . . among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.” (Shelley v. Kraemer, 334 U.S. 1, 10 [68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441] ; see also Buchanan v. Warley (1917) 245 U.S. 60 [38 S.Ct. 16, 62 L.Ed. 149] ; Brown v. Board of Education (1954) 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180] ; Barrows v. Jackson (1953) 346 U.S. 249 [73 S.Ct. 1031, 97 L.Ed. 1586] ; Jackson v. Pasadena City School Dist. (1963) supra, 59 Cal.2d [536876] ; Sei Fujii v. State of California (1952) 38 Cal.2d 718 [242 P.2d 617].)
The question of the fact of discrimination, by whatever hand, should give us little pause. The very nature of the instant action and the specific contentions urged by the defendants must be deemed to constitute concessions on their part that article I, section 26, provides for nothing more than a purported constitutional right to privately discriminate on grounds which admittedly would be unavailable under the Fourteenth Amendment should state action be involved. Thus, as a complete and only answer to plaintiffs’ allegations which irrefutably establish a discriminatory act, defendants urge that section 26 accords them the right as private citizens to so discriminate. The only real question thus remaining is whether the discrimination results solely from the claimed private action or instead results at least in part from state action which is sufficiently involved to bring the matter within the proscription of the Fourteenth Amendment. For the reasons stated below we have concluded that state action is sufficiently involved to fall within the reach of the constitutional prohibition.
The parties generally concede that in an organized and regulated society the state or its subdivisions play some part in most, if not all, so-called private transactions, and it must be acknowledged, without specifically enumerating them, that many of the rights and duties arising out of the transfer of an interest in real property are related to or dependent upon the state or local governments. But it is not the mere fact that in some manner the state is involved, however remotely, with which we are concerned. It is only where the state is significantly involved that the prohibitions of the equal protection clause are invoked. The Supreme Court in Burton v. Wilmington Parking Authority (1961) 365 U.S. 715, stated the proposition in the following language at page 722 [81 S.Ct. 856, 6 L.Ed.2d 45] : . . private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have been involved in it.” That proscribed state involvement is not to be limited to direct conduct on the part of its employees, agents and representatives is made apparent by the court’s further statement at page 722: “Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” More recently the Supreme Court has stated: “Conduct that is formally ‘private’ may [537]become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.” (Evans v. Newton (1966) 382 U.S. 296 [86 S.Ct. 486, 15 L.Ed.2d 373].)
However subtle may be the state conduct which is deemed “significant,” it must nevertheless constitute action rather than inaction. The equal protection clause and, in fact, the whole of the Fourteenth Amendment, is prohibitory in nature and we are not prepared to hold, as has been urged, that it has been or should be construed to impose upon the state an obligation to take positive action in an area where it is not otherwise committed to act. Urged in support of such proposition is James v. Marinship Corporation, 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900], But the prior state commitment in that case is clear. We held that a so-called private labor union could not racially discriminate against those who wished to become members, but we first concluded that the union, because it had obtained a monopoly on the labor supply, was like a public service business which, under the law of the state, was precluded from discriminating on the basis of race. Likewise, in Jackson v. Pasadena City School Dist., supra, 59 Cal.2d 876, the state, because it had undertaken through school districts to provide educational facilities to the youth of the state, was required to do so in a manner which avoided segregation and unreasonable racial imbalance in its schools.
The problem thus becomes one of ascertaining positive state action of a degree sufficient to be deemed significant in the accomplishment of the recognized and admitted discrimination.
To conclude that there is state action in the instant circumstances we are not limited to action by one who, cloaked with the authority of the state, acts as its designated representative. In the broad sense, state action has been consistently found •where the state, in any meaningful way, has lent its processes to the achievement of discrimination even though that goal was not within the state’s purpose. Thus, state conduct has been found in the action of a trial court in enforcing a privately created restrictive covenant which prevented a sale of real property to a Negro buyer. (Shelley v. Kraemer, supra, 334 U.S. 1.) In that case the court stated at page 14: “. . . [T]he Amendment makes void ‘State action of every kind’ which is inconsistent with the guaranties therein contained, and extends to manifestations of ‘State authority in the shape [538]of laws, customs, or judicial or executive proceedings.’ ” In applying the Shelley reasoning that the processes of the court cannot be utilized to accomplish a private discrimination, it has been held reversible error to exclude evidence that the plaintiff landlord in an eviction proceeding was motivated purely by racial considerations, although the defendant tenant was admittedly in default. (Abstract Investment Co. v. Hutchinson, 204 Cal.App.2d 242 [22 Cal.Rptr. 309].)
Shelley, and the cases which follow it, stand for the proposition that when one who seeks to discriminate solicits and obtains the aid of the court in the accomplishment of that discrimination, significant state action, within the proscription of the equal protection clause, is involved. The instant case may be distinguished from the Shelley and the Abstract cases only in that those who would discriminate here are not seeking the aid of the court to that end. Instead they are in court only because they have been summoned there by those against whom they seek to discriminate. The court is not asked to enforce a covenant nor to eject a tenant, but only to render judgment denying the relief sought in accordance with the law of the state. Thus, it is contended by defendants that the isolated act of rendering such a judgment does not significantly involve the state in the prior act of discrimination.
It must be recognized that the application of Shelley is not limited to state involvement only through court proceedings. In the broader sense the prohibition extends to any racially discriminatory act accomplished through the significant aid of any state agency, even where the actor is a private citizen motivated by purely personal interests. (See Burton v. Wilmington Parking Authority, supra, 365 U.S. 715, 722.) Thus, in Marsh v. Alabama, 326 U.S. 501 [66 S.Ct. 276, 90 L.Ed. 265], an entire town was owned by a purely private company, the agents of which caused the arrest for trespass of persons engaged in exercising their constitutional freedom of speech. Although no governmental officials or agents were involved, the Supreme Court found sufficient state action to invoke the Fourteenth Amendment. This was based on the view that the company managers were performing a governmental function of managing and controlling a town wherein persons resided who were entitled to Fourteenth Amendment protections: “. . . In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, where held by others than the public, is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental [539]liberties. ...” (Marsh v. Alabama, supra, at p. 509.) There, as contended by defendants in the instant case, the state did not participate except to condone private action.
Even more applicable in the instant circumstances are the so-called ‘‘white primary cases.” (Smith v. Allwright, 321 U.S. 649 [64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110] ; Terry v. Adams, 345 U.S. 461 [73 S.Ct. 809, 97 L.Ed. 1152] ; Nixon v. Condon, 286 U.S. 73 [52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458] ; Baskin v. Brown, 174 F.2d 391; Rice v. Elmore, 165 F.2d 387.) In those cases private action infringing the right to vote was held to be the equivalent of state action where accomplished with the culpable permission of the state. In Nixon v. Condon, supra, 286 U.S. 73, for instance, a state statute which forbade voting by Negroes in primaries was declared to be unconstitutional. It was thereupon repealed and a substitute measure enacted which was wholly permissive, that is, political parties were allowed to prescribe the qualifications for membership and voting rights in the party’s primaries. A local political party thereafter barred Negroes from voting in its primaries and it was held that the permissive private action was chargeable as state action. (See also Baskin v. Brown, supra, 174 F.2d 391, 394.)
A similar abdication of a traditional governmental function for the obvious purpose of condoning its performance under color of private action has recently been struck down by the Supreme Court in Evans v. Newton, supra, 382 U.S. 296. There, a park for the enjoyment of white persons was owned, managed and maintained by the City of Macon, Georgia, as trustee under the 1911 will of Senator August Bacon. When a question was raised whether the city could continue to maintain the segregated park consistent with the equal protection clause, it purported to transfer the park to private trustees with the intent that it would continue to be maintained for the enjoyment of white persons only. The foregoing conduct on the part of the municipality was held to be proscribed by the Fourteenth Amendment.
It is contended by defendants, however, that the foregoing cases, in the main, involved some recognized governmental function which, although undertaken by private persons, nevertheless was required to be performed in the same nondiscriminatory manner as would be required in the case of performance by the state. Such contention fails to recognize the basic issue involved.. Those cases are concerned not so much with the nature of the function involved as they are with who [540]is responsible for conduct in performance of that function. If the function is traditionally governmental in nature unquestionably the state is responsible. But this cannot be the only instance wherein the state assumes responsibility—it is also responsible when, as we have stated, it becomes significantly involved in any discriminatory conduct. (See Burton v. Wilmington Parking Authority, supra, 365 U.S. 715, 722.)
Going to the question of what constitutes significant involvement, it is established that even where the state can be charged with only encouraging discriminatory conduct, the color of state action nevertheless attaches. Justice Black, in writing for the majority in Robinson v. Florida, 378 U.S. 153, 156 [84 S.Ct. 1693, 12 L.Ed.2d 771], and for the dissenters in Bell v. Maryland, 378 U.S. 226, 334 [84 S.Ct. 1814, 12 L.Ed.2d 822], asserted that private racial discrimination violates the Fourteenth Amendment once the state in any way discourages integration or instigates or encourages segregation. In Barrows v. Jackson, supra, 346 U.S. 249, in holding that a racially restrictive covenant could not constitutionally support a suit for damages, the court explained at page 254: ‘ ‘ The result of that sanction by the State would be to encourage the use of restrictive covenants. To that extent, the State would act to put its sanction behind the covenants. If the State may thus punish respondent for her failure to carry out her covenant, she is coerced to continue to use her property in a discriminatory manner, which in essence is the purpose of the covenant. Thus, it becomes not respondent’s voluntary choice but the State’s choice that she observe her covenant or suffer damages. ’ ’
Proscribed governmental encouragement of private discrimination has not been confined to the courts. Anderson v. Martin, 375 U.S. 399 [84 S.Ct. 454, 11 L.Ed.2d 430], involved racial labeling of candidates on ballots. Although the state practice did not require discrimination on the part of individual voters, it was struck down because it encouraged and assisted in discrimination. (See also Baldwin v. Morgan, 287 F.2d 750.) Similarly, as early as 1914, in McCabe v. Atchison T. & S.F. Ry., 235 U.S. 151, it was stated at page 162 [35 S.Ct. 69, 59 L.Ed. 169] that the denial of equal railroad facilities to Negroes by a private railroad was unconstitutional state action on the ground that the right to discriminate was authorized by a local statute and that should the carrier perpetrate such discrimination it would be acting under “the authority of a state law.” The court reasoned that state, authorization to discriminate was no less state action than state imposed dis[541]crimination. (See also Boman v. Birmingham Transit Co., 280 F.2d 531.)
The Supreme Court has recently spoken out against state action which only authorizes “private” discrimination. In Burton v. Wilmington Parking Authority, supra, 365 U.S. 715, the court had before it the question of whether the State of Delaware discriminated against a Negro who was excluded from a privately-operated restaurant leased from a public agency of that state. The court stated at page 725 that the state “not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination. The State has so far insinuated itself into a position of interdependence . . . that it must be recognized as a joint participant in the challenged activity. . . . ” In a concurring opinion Justice Stewart, concluding that the state enactment involved, as construed by the state court, authorized discrimination, stated at page 727; “I think, therefore, that the appeal was properly taken, and that the statute, as authoritatively construed by the Supreme Court of Delaware, is constitutional^ invalid.” Even the dissenting justices agreed that if the state court had construed the state enactment as authorizing racial discrimination, there was a denial by the state of equal protection of the laws, Justice Frankfurter stating at page 727: ‘For a State to place its authority behind discriminatory treatment based solely on color is indubitably a denial by a State of the equal protection of the laws, in violation of the Fourteenth Amendment. ’ ’
In a case involving a fact situation similar to Burton, and clearly pertinent to our present inquiry, a Tennessee statute renounced the state’s common law cause of action for exclusion from hotels and other public places and declared that operators of such establishments were free to exclude persons for . any reason whatever. In the particular circumstances of that case the statute was deemed to bear on the issues “only insofar as” it “expressed an affirmative state policy fostering segregation. ’ ’ The court stated that: ‘1 our decisions have foreclosed any possible contention that such a statute . . . may stand consistently with the Fourteenth Amendment.” (Turner v. City of Memphis (1962) 369 U.S. 350, 353 [82 S.Ct. 805, 7 L.Ed.2d 762].)
The instant ease presents an undeniably analogous situation wherein the state, recognizing that it could not perform a direct act of discrimination, nevertheless has taken affirmative action of a legislative nature designed to make possible private discriminatory practices which previously were legally restric[542]ted. We cannot realistically conclude that, because the final act of discrimination is undertaken by a private party motivated only by personal economic or social considerations, we must close our eyes and ears to the events which purport to make the final act legally possible. Here the state has affirmatively acted to change its existing laws from a situation wherein the discrimination practiced was legally restricted to one wherein it is encouraged, within the meaning of the cited decisions. Certainly the act of which complaint is made is as much, if not more, the legislative action which authorized private discrimination as it is the final, private act of discrimination itself. Where the state can be said to act, as it does of course, through the laws approved by legislators elected by the popular vote, it must also be held to act through a law adopted directly by the popular vote. When the electorate assumes to exercise the law-making function, then the electorate is as much a state agency as any of its elected officials. It is thus apparent that, while state action may take many forms, the test is not the novelty of the form but rather the ultimate result which is achieved through the aid of state processes. And if discrimination is thus accomplished, the nature of proscribed state action must not be limited by the ingenuity of those who would seek to conceal it by subtleties and claims of neutrality.
Contrary to defendants’ claims, the state’s abstinence from making the decision to discriminate in a particular instance does not confer upon it the status of neutrality in these circumstances. Justice Byron R. White’s view of the facts in Evans v. Newton, supra, 382 U.S. 296, poses an almost identical issue to that here presented. In his view the majority in Evans were not justified on the record in concluding that the City of Macon was continuing to operate and maintain the park there involved after transfer to private trustees, and he grounded his conclusion of proscribed state action on 1905 legislation which did not compel but would nevertheless make it possible for the maintenance of segregated private parks for either white or colored persons. His reasoning and resolution of the issue are stated at page 306 [15 L.Ed.2d at p. 381] in the following language: “ As this legislation does not compel a trust settlor to condition his grant upon use only by a racially designated class, the State cannot be said to have directly coerced private discrimination. Nevertheless, if the validity of the racial condition in Senator Bacon’s trust would have been in doubt but for the 1905 statute and if the statute removed such doubt only for racial restrictions, leaving the validity of [543]nonracial restrictions still in question, the absence of coercive language in the legislation would not prevent application of the Fourteenth Amendment. For such a statute would depart from a policy of strict neutrality in matters of private discrimination by enlisting the State’s assistance only in aid of racial discrimination and would so involve the State in the private choice as to convert the infected private discrimination into state action subject to the Fourteenth Amendment. ”
From the foregoing it is apparent that the state is at least a partner in the instant act of discrimination and that its conduct is not beyond the reach of the Fourteenth Amendment.
The question remains whether section 26 in whole or in part must be struck down. It is argued, and with merit, that in many applications no unconstitutional discrimination will result and, as noted, it is specifically provided in the amendment that “If any part or provision of this Article, or the application thereof to any person or circumstance, is held invalid, the remainder of the Article, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end the provisions of this Article are sever-able. ” Does such severability clause save the amendment for piecemeal judicial scrutiny as specific instances of its application arise Í
We have recognized that a statute which has unconstitutional. applications may nevertheless be effective in those instances where the Constitution is not offended. (See Franklin Life Ins. Co. v. State of California (1965) 63 Cal.2d 222 [45 Cal.Rptr. 869, 404 P.2d 477].) In the Franklin case a taxing, statute was held to have been properly applied despite the “possibility of hypothesizing an unconstitutional application of the statute.” (P. 227.) But in refusing to declare the statute unconstitutional on its face, we stated at pages 227-228': “. . . [W]hen the application of the statute is invalid in certain situations we cannot enforce it in other situations if such enforcement entails the danger of an uncertain or vague future application of the statute [citations]. We have been particularly aware of fomenting such danger of uncertainty in the application of a statute which would inhibit the exercise of a constitutional right (In re Blaney, supra) or impose criminal liability. . . . As the United States Supreme Court has said in rejecting an argument that a statute violative of the Fifth Amendment could be constitutionally applied to the case before it, such a ‘course would not be proper, or desirable, in [544]dealing with a section which so severely curtails personal liberty.’ [Citations.]” (See also Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093] ; Carlson v. California, 310 U.S. 106 [60 S.Ct. 746, 84 L.Ed. 1104] ; Jones v. Opelika, 319 U.S. 103 [83 S.Ct. 890, 87 L.Ed. 1290].)
The instant case, of course, relates directly to the personal liberties distinguished in Franklin. This was also true in the case of In re Blaney (1947) 30 Cal.2d 643 [184 P.2d 892], referred to in Franklin. In the Blaney case the “Hot Cargo Act,” which declared secondary boycotts unlawful, was struck down on the ground that in some instances sympathetic strikes and other labor coercion could not be constitutionally restrained, although it was recognized that in other instances the statute could be lawfully applied. The court held that the provisions of the statute did not differentiate between the constitutional and unconstitutional applications, stating that “The only way in which such segregation could be made would be by judicial interpretation, first holding that the act as it stands is wholly unconstitutional, but then determining that, by inserting qualifications and exceptions in the statutory language, a judicially reformed statute might be given some effect.” (In re Blaney, supra, 30 Cal.2d 643, 655.) We further held in Blaney that a severability clause is ineffective to sustain valid portions or applications of a statute unless “. . . the language of the statute is mechanically severable, that is, where the valid and invalid parts can be separated by paragraph, sentence, clause, phrase, or even single words,” and that where the statute is not so severable “. . . then the void part taints the remainder and the whole becomes a nullity.” (P. 655.)
It is immediately apparent from the operative portion of the instant constitutional amendment that it is mechanically impossible to differentiate between those portions or applications of the amendment which would preserve the right to discriminate on the basis of race, color or creed, as distinguished from a proper basis for discrimination. The purported preservation of the right to discriminate on whatever basis is fully integrated and, under the rule of Blaney, not severable. Moreover, while we can conceive of no other purpose for an application of section 26 aside from authorizing the perpetration of a purported private discrimination where such authorization or right to discriminate does not otherwise exist, any such other purpose clearly ‘ ‘ entails the danger of an uncertain or vague future application of the [enactment]” and would thus require that it be struck down. (Franklin Life Ins. Co. v. [545]State of California (1965) 63 Cal.2d 222, 227 [45 Cal.Rptr. 869, 404 P.2d 477].)
For the foregoing reasons the severability clause is ineffective in the instant case, and the whole of the constitutional amendment must be struck down.
Article I, section 26, of the California Constitution thus denied to plaintiffs and all those similarly situated the equal protection of the laws as guaranteed by the Fourteenth Amendment to the federal Constitution, and is void in its general application.
The judgment is reversed.
Traynor, C. J., Peters, J., Tohriner, J., and Burke, J., concurred.
Civil Code, section 51, provides as follows:
“All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
Civil Code, section 52, provides as follows:
“Whoever denies, or who aides, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of color, race, religion, ancestry, or national origin, contrary to the provisions of Section 51 of this code, is- liable for each and every such offense for the actual damages, and two hundred fifty dollars ($250) in addition thereto, suffered by any person denied the rights provided in Section 51 of this code. ’ ’