Is article I, section 26 of the Fourteenth Amendment an unconstitutional violation of the equal protection clause?

We have concluded in Mulkey v. Reitman, Cal., 50 Cal.Rptr. 881, 413 P.2d 825, that article I, section 26, is an unconstitutional infringement upon the equal protection clause of the Fourteenth Amendment, and for that reason defendant is not entitled to rely upon it as giving him a right to discriminate against plaintiff in the rental of defendant's property. It does not follow from such holding, however, that plaintiff stated a cause of action. To withstand defendant's demurrer he must allege facts which entitle him to relief as a matter of law. This he has failed to do.

The facts which plaintiff has alleged show only that defendant has discriminated and intends to further discriminate against plaintiff and Negroes generally in the rental of defendant's residential property. The Fourteenth Amendment does not impose upon the state the duty to take positive action to prohibit a private discrimination of the nature alleged here. (Mulkey v. Reitman, Cal., 50 Cal.Rptr. 881, 413 P.2d 825.)