Shelly

[Larry Tribe]

To Michael's question about sales to Jews or Catholics rather than Blacks, I
indicated in my first post on this subject my unease with drawing the line
precisely between race and religion, and I certainly wouldn't hide behind
the potentially racial, or at least ethnic or ancestral, definition some
might give of the Jewish people. I suppose that, for the very same reasons
that we treat religion no less than racial ancestry as a suspect
classification, cf. Carolene fn.4's treatment of the Catholics of Oregon in
its way of using Pierce v. Society of Sisters, at least where government is
not accommodating religion (note the apparent difference in that respect
between (a) strict scrutiny of benign no less than malign racial
classifications, and (b) less than strict scrutiny of benign religious
classifications, as in Amos v. Latter Day Saints), the spectacle of a
government inquisitioner seeking to ascertain who are the Jews in a given
population, or who are the Catholics, especially in circumstances where the
individuals involved have an incentive, however ugly, to deny their
religious identity, is not notably more comfortable than is the spectacle of
such an inquisitioner seeking to ascertain who are the Blacks. The process
of government's identification of each individual's religion would have to
focus upon some combination of that individual's ancestry and observations
made by others of the questioned individual's apparent religious
associations, overt religious prayers and practices, and covert (or at least
not intentionally public) religious utterances. The title of "inquisitioner"
would be entirely fitting for one charged with this task. Thus I should
probably not have said that race was unique in this setting -- rather, I
should have said that it was paradigmatic of suspect classifications that
typically cannot be applied to individuals in a given population without
repeatedly making problematic judgments that would entangle government in
matters from which we have equality-related reasons to exclude government
participation. -- Larry Tribe.

-----Original Message-----
From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
Sent: Thursday, November 02, 2000 4:16 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Shelly


Sorry to respond in parts, but I have had an additional thought about
Larry's new argument about Shelly (which distinguishes between racial
categories and other constitutional lines). Larry, do you mean to suggest
that Shelly should have come out differently if it had been a prohibition on
sales to Jews or Catholics rather than blacks?

Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112


> -----Original Message-----
> From: Larry Tribe [mailto:larry at TRIBELAW.COM]
> Sent: Thursday, November 02, 2000 1:57 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Shelly
>
>
> David Bernstein makes an interesting claim about refusals of courts in
> various states and localities to enforce non-racial
> restrictive covenants in
> states that would enforce racial restrictions. But must we
> not ask: What was
> the nature of the other restrictions that those courts
> refused to enforce?
> Did they not fit into particular subcategories (e.g.,
> restrictions naming
> particular persons, etc.) deemed ex ante to be contrary to
> public policy?
> Was there a general principle in those states, actually followed in
> practice, that restrictions on alienation were all presumed
> contrary to
> public policy unless the individual restrictions were
> affirmatively found to
> be otherwise? If that question can fairly be answered yes,
> then I'll be
> delighted, and I'll be able once again to defend Shelley on
> this far more
> straightforward ground -- as I did for years -- regardless of
> what the Court
> was thinking, a matter I find relatively unimportant in this
> instance. But
> if that question cannot be so answered, then Shelley remains
> a mystery but
> for the other explanation I have offered about government
> classification of
> buyers by race. -- Larry Tribe.
>
> -----Original Message-----
> From: DAVID E. BERNSTEIN [mailto:DBERNSTE at WPGATE.GMU.EDU]
> Sent: Thursday, November 02, 2000 3:28 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Shelly
>
>
> I agree that this theory would justify Shelley, and have said so in a
> Vand. l. Rev. article, pointing out that various states and localities
> that enforced racial covenants refused to enforce other
> restrictions on
> alienation that affected a far smaller percentage of the
> housing market
> than did racial restrictions.  However, I don't believe that this was
> actually argued to the Court, so is there any evidence that this was
> what the Court was thinking in Shelley?
>
> David E. Bernstein
> Associate Professor
> George Mason University
> School of Law
> 3401 N. Fairfax Drive
> Arlington, VA 22201
> (703) 993-8089
> dbernste at wpgate.gmu.edu
> <http://members.aol.com/deliotb/home.html>
>
> >>> Michael McConnell <mcconnellm at LAW.UTAH.EDU> 11/02/00 03:15PM >>>
> I think that Shelly is explicable on quite another ground. As I
> understand
> the common law regarding restrictions on alienation, they are
> disfavored,
> and are enforceable only when they accord with public policy. Thus, to
> enforce the racially restrictive covenants in Shelly is to
> declare that
> the
> covenants acccord with public policy. That is state action.
> (By the way,
> it
> is the same theory under which the proponents of the CRA of 1875
> defended
> the constitutionality of its prohibition of discrimination by common
> carriers.)
>
> Michael McConnell
>