Making new law takes vision, courage, and stamina; especially so when the law relates to civil rights. Our late member Paul R. Silverstein (1905-1965) was such an attorney. He was the driving force behind Kemp v. Rubin, 188 Misc. 310, 69 N.Y.S. 2d 680 (Queens County Sup. Ct. 1946), affd 273 A.D. 798, 75 N.Y.S. 2d 768 (2d Dept. 1947), revd. 298 N.Y. 590 (1948).
In Kemp v. Rubin, New York State’s Court of Appeals struck down restrictive covenants in housing in New York on July 16, 1948. The United States Supreme Court reached a similar conclusion in Shelley v. Kramer, 68 S. Ct. 836 on May 3, 1948, only two months earlier.
But Paul Silverstein started this uphill struggle to change our society two years before, in 1946. Why? To find out, I spoke at length with his daughter, Susan Sandler; his son Dr. Samuel Silverstein; and his law partners, Herb Balin and Lou Soloway.
For most of his life, Paul R. Silverstein maintained a law practice in downtown Jamaica specializing in real estate law. He represented housing and shopping mall developers, and engaged in some home building himself. He was not a political or civil rights activist. But he believed in the American dream – that anyone and everyone should be able to succeed through hard work.
In 1946, their service in World War II, and the nation’s recognition of the horrors of the Holocaust not withstanding, African-Americans were left out of this dream. A housing boom was ongoing to serve returning United States service personnel. Most housing in Queens County, as in the rest of the United States, still was segregated by race. Covenants restricting sales of new houses to African-Americans were routine even in federally sponsored housing projects.
Paul Silverstein commenced building houses for the African-American market in St. Albans. He was threatened by officers of local banks. They promised to “put him out of business” if he continued to try to expand the African-American population of Queens County in this way.
His daughter Susan, his son Sam, and his former law partners Herb Balin and Lou Soloway all agreed that the late Paul Silverstein was not a religious man. However, Paul, the eldest son of first generation immigrants, had a deep respect for the law, and the precepts of our Constitution. As an attorney whose practice centered on real estate, he was all-too-well aware of the way restrictive covenants in housing thwarted the Constitution’s promise of equal rights for all. To Paul Silverstein, restrictive covenants were just wrong, wrong, wrong as a matter of “straight forward principle.”
What drove Paul Silverstein to challenge New York law concerning restrictive covenants in housing? Neither his children nor his law partners can say for sure. They believe the most likely reasons were his deeply ingrained sense of fairness, his respect for the spirit of the law, and his early life experiences. As a teenager, he caddied at golf courses with boys of many racial, religious, and ethnic origins. He was a good pianist, and played with musicians from diverse backgrounds in Brooklyn, first in silent movies and later in social clubs.
As a lawyer in Jamaica, when he was the first Jewish person invited to join a previously restricted businessmen’s club, he made his joining conditional on the club’s removing its membership restrictions. He refused to join a Long Island golf club that restricted its membership on racial and religious grounds. (Note – Paul was an excellent golfer and won the first Queens County Bar Association golf trophy.)
Paul first met Sophie Rubin in 1946. Rubin had contracted to sell her St. Albans house to Samuel Richardson, an African-American. Her neighbor, Harold Kemp, sued to enforce the restrictive covenant in all the local deeds.
Paul took Rubin’s case. Together with his then-associate, Irving Schuh, he lined up a remarkable coalition of non-sectarian (The American Civil Liberties Union, The National Lawyers Guild, The Greater New York Council of Industrial Organizations, The City Wide Citizens Committee on Harlem, and The Social Action Committee of New York City), and sectarian organizations (The American Jewish Congress, the Anti-Defamation League of B’nai B’rith, The Congregational Church Association, Inc., The Methodist Federation for Social Services), as amici curiae. This was a major achievement, and evidence of Paul’s commitment to end restrictive covenants in housing in New York State. In later years, many of these organizations were among the Civil Rights Movement’s strongest supporters.
Due to the then prevailing legal precedents, he lost in the Queens County Supreme Court even though presiding Justice Livingston’s opinion quoted Supreme Court Justice Murphy in Hirabayahsi v. United States, noting: “Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war….. Nothing is written more firmly into our law than the compact of the Plymouth voyagers to have just and equal laws.” Justice Livingston went on to add, “At the same time, however, and regardless of what its sentiments may be, this court is constrained to follow precedent and govern itself in accordance with what it considers to be the prevailing law.”
Undeterred, Paul appealed the case, but lost again in the Appellate Division, Second Department in 1947. Finally in May, 1948, the U.S. Supreme Court reversed itself, finding restrictive covenants unconstitutional (Shelley vs. Kraemer 334 U.S. 1, 68 Sup. Ct. 836, 92, L. Ed. 568 (1796). Two months later, he prevailed in the New York State Court of Appeals (Kemp v. Rubin, revd. 298 N.Y. 590 (1948).
The Shelley and Kemp cases were dispositive. Throughout the nation, state courts cited both Shelley and Kemp in refusing to enforce racially based restrictive covenants. In the decade that followed, New York enacted the nation’s first state-sponsored Human Rights Act. Its housing section was based directly on Kemp v. Rubin. But it took another twenty years before the Civil Rights Act of 1968 declared it unlawful “to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.”
We in the Queens County Bar Association are proud of our association with the New York State Court of Appeals decision in Kemp v. Rubin, 298 N.Y. 590 (1948), a testament to the decency, humanity, bravery and courage of our late member, Paul R. Silverstein.