Shelley v. Kraemer's Fiftieth Anniversary: 'A Time for Keeping; a Time for Throwing Away'?

Abstract

In 1948, the United States Supreme Court in Shelley v. Kraemer refused to evict two families from their homes by enforcing racially restrictive private covenants. The Shelley decision was long overdue in the battle against racial discrimination in this country. The Court held that enforcement of the private covenant violated the Equal Protection Clause under the Fourteenth Amendment, concluding that judicial enforcement constituted state action subject to constitutional restrictions. Shelley ended the use of private restrictive covenants to overtly exclude racial and ethnic minorities from certain neighborhoods. By finding state action based on a court's involvement in enforcing private action, however, the Court blurred the line between state action, which is subject to constitutional restrictions, and private action, which is not subject to constitutional restrictions. Although it is with great trepidation that this author recommends the dismantling of the state action theory developed in Shelley, it is time to recognize that much of the country's difficulties with private racial discrimination can now be addressed using alternatives other than the state action doctrine. Alternatives such as public policy, balancing of conflicting rights, and legislative enactments are available to achieve the same, if not a better result, without clouding the difference between state and private action. In contrast, retaining Shelley's state action theory can potentially subject other individual liberties and freedoms of private action to offensive, but constitutionally protected, private action. Extracting the Shelley principle from the state action doctrine will help ensure that in the context of competing constitutional private rights, the balancing of these rights will occur as part of the underlying substantive law analysis, rather than as a constitutional evaluation performed by state courts.

Keywords: Shelley v. Kraemer, Racial Discrimination, Private Covenant, Equal Protection, Fourteenth Amendment, State Action, Private Action