When it comes to racially restrictive covenants, Shelley v. Kramer (1948) saw the Supreme Court enforce a racial restrictive covenant, even though it was closer to an equitable servitude.

Here’s the simple facts of this case. A St. Louis, Missouri neighbourhood aka Louis Kramer and his white neighbours, brought suit to stop Shelley, an African American from buying a house in the neighbourhood. Kramer and the white neighborhood asked the courts to enforce the racial restrictive covenant.

Here’s the issue of this case: Do racially restrictive covenants violate the Equal Protection clause of the 14th Amendment?

Here’s the rule that the Supreme Court laid down in this case. The court said racially restrictive covenants are private action and that these covenants do not fall under state action; therefore, racial covenants violate the 14th Amendment, as a matter of state action.

Basically, this case said the creation of the racial covenant is not a constitutional violation. But the enforcement of a racial covenant is a constitutional violation due to state action.

According to some law professors, the Shelley racial restrictive covenant was not valid, but the Missouri Supreme Court looked past this fact and said there was a racial restrictive covenant. These law profs say the Shelley racial covenant was not valid because it didn’t meet the requirements at common-law. However, these law scholars point out that modern law would wipe away all these common-law requirements. 

Here’s why the Shelley racial covenant is closer to an equitable servitude: One, this racial covenant didn’t have the intent to bind everyone; about 10 people did not go along with it. Two, the racial covenant did not concern the land; that is, it was about who could live there and not about how the land was used. And three, this’ll racial restriction covenant would not qualify as notice as it is understood.

This case pointed out some disturbing facts about Supreme Court Justices. First, we learn Supreme Court Justice Wiley Rutledge, along with two other Supreme Court Justices, recused this case because they had racial covenants on their homes. Also, it pointed out the great Supreme Court Justice Jackson, who presided over the Nuremberg Nazi trials, and Supreme Court Justice Reed had racial restrictive covenants on their homes, too. As well, Supreme Court Chief Justice Rehnquist, a 1980s justice, had a vacation home with a racial restrictive covenant on it. Finally, we learn too, Ted Kennedy, the great liberal and democrat, had a racial restrictive covenant on his home.

This case points out that racial covenants are everywhere. Most people have racial covenants on their home deeds. As an example, Texas has lots of racial covenants on it’s home deeds.

As a bright line rule, the Supreme Court wanted to say you cannot have these racial covenants that can be enforced in the courts. But as a matter of contract law, states always enforce private contracts in the courts, so the court said in a one off just not in this case, which the court has never returned to.

Shockingly, the Supreme Court said Shelley had constructive notice in this case. The court said Shelley should of looked around the neighborhood in question and saw it was an all white neighborhood, which was enough to put him on notice. Also, the court said Shelley should of checked the county records to see if other homeowner deeds had racially restrictive covenants on them too.

In the past, courts have upheld restrictive covenants on deeds. The court will uphold restrictive covenants in regards to Home Owner Associations (HOA), payment of fees to HOAs, and subdivisions. Also, the court will uphold covenants saying no apartments in the neighbourhood or gas stations. As well, the courts will uphold restrictive covenants saying no building features on your property or so and so property must have so much frontage and square feet; that is, you must get permission from the HOA to add a feature to your home, for instance.

Shelley v. Kramer shows history repeats itself. If you remember the Dredd Scot case, it was a Missouri case where Missouri overturned it’s previous precedent to allow freed slaves freedom. The Shelley case, too, overturns a Missouri past precedent and allows the enforcement of private enforcement of racial covenants in this case. That being said, Missouri likes to overturn it’s past precedents, which is not consistent and does not lend to reliance.

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