Shelley vs Kraemer

[John Flynn]

In 1945, a black family by the name of Shelley purchased a house in St. Louis, Missouri. At the time of purchase, they were unaware that a restrictive covenant had been in place on the property since 1911. The restrictive covenant barred "people of the Negro or Mongolian Race" from owning the property. Louis Kraemer, who lived ten blocks away from the purchased house, sued to restrain the Shelleys from taking possession of the property they had purchased. The Supreme Court of Missouri held that the covenant was enforceable against the purchasers because the covenant was a purely private agreement between the original parties thereto, which "ran with the land" and was enforceable against subsequent owners. A materially similar scenario took place in the companion case McGhee v. Sipes from Detroit, Michigan, where the McGhees purchased land subject to a similar restrictive covenant. The Supreme Court consolidated the two cases for oral arguments.

Legal questions

The Court considered two questions. First, are racially-based restrictive covenants legal under the Fourteenth Amendment of the United States Constitution? Secondly, can they be enforced by a court of law?

Decision of the court

The United States Supreme Court held that racially-based restrictive covenants are, on their face, not invalid under the Fourteenth Amendment. Private parties may voluntarily abide by the terms of a restrictive covenant, but they may not seek judicial enforcement of such a covenant, because enforcement by the courts would constitute state action. Since such state action would necessarily be discriminatory, the enforcement of a racially-based restrictive covenant in a state court would violate the Equal Protection Clause of the Fourteenth Amendment.

The court rejected an argument that since state courts would enforce a restrictive covenant against white persons, judicial enforcement of restrictive covenants would not be a violation of the Equal Protection Clause. The court noted that the Fourteenth Amendment guaranteed individual rights, and that equal protection of the law is not achieved with the imposition of inequalities.

The attorneys who argued the case for the McGhees were Thurgood Marshall and Loren Miller. The United States Solicitor General Philip Perlman, who had argued in this case that the restrictive covenants were unconstitutional, had previously in 1925 as the city solicitor of Baltimore acted to support the city government's segregation efforts.[1]

The Solicitor General's Brief

There is an interesting story regarding the brief filed on behalf of the United States government. It was written by four Jewish lawyers: Philip Elman, Oscar Davis, Hilbert Zarky, and Stanley Silverberg. However, the Solicitor General’s office chose to omit their names from the brief. The principal assistant to the Solicitor General, Arnold Raum, who was also Jewish, stated that it was “bad enough that Perlman’s name has to be there, to have one Jew’s name on it, but you have also put four more Jewish names on. That makes it look as if a bunch of Jewish lawyers in the Department of Justice put this out.” [2]

References

^ Mitchell, Juanita Jackson (2004). "Meade v. Dennistone: The NAACP's Test Case to "... Sue Jim Crow Out of Maryland with the Fourteenth Amendment". Maryland Law Review (Baltimore, Maryland: University of Maryland School of Law) 63: 807.
^ .Philip Elman & Norman Silber, The Solicitor General’s Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 HARV. L. REV. 817, 819 (1987), as quoted in Waxman, Seth, "Twins at Birth: Civil Rights and the Role of the Solicitor General," Indiana Law Journal, 75:1297, 1306 n. 53.
See also
List of United States Supreme Court cases, volume 334
Shelley House (St. Louis, Missouri), National Historic Landmark
Further reading
Darden, Joe T. (1995). "Black Residential Segregation Since the 1948 Shelley v. Kraemer Decision". Journal of Black Studies 25 (6): 680–691. doi:10.1177/002193479502500603.
Henkin, Louis (1962). "Shelley v. Kraemer: Notes for a Revised Opinion". University of Pennsylvania Law Review 110 (4): 473–505. doi:10.2307/3310675.
Higginbotham, A. Leon (1989). "Race, sex, education and Missouri jurisprudence: Shelley v. Kraemer in a historical perspective". Washington University Law Quarterly 67: 673–708. ISSN 00430862.
Brian Gilmore, Esq., "Not In My Backyard", TheRoot.com- http://www.theroot.com/views/not-my-backyard

http://www.thefullwiki.org/Shelley_v._K ... ite_note-1