Restrictive Covenants in the "Modern" Era

Those who live in communities with Homeowner's Associations know that there are all sorts of restrictions on what you can do with your property. Those who study property law know that there are all sorts of "covenants" that run with the land at the time of purchase and possession--e.g., things you just have to do, no matter who owns the land. Covenants are a nonpossessory interest in land in the form of an agreement between adjoining landowners to do or not do something with relation to the land that they respectively occupy, like keeping the front lawn well cared for, maintaining fences, or refraining from certain destructive behavior. The covenants "run with the land," and are thus effective even if the land changes owners. But when is a covenant unconstitutional?

In Shelly v. Kraemer, a black family purchased a house in St. Louis, Missouri. At the time of purchase, they were not aware that there was a restrictive covenant barring blacks and Asians from owning the property. Their friendly neighbors sued to restrain the Shelleys from taking possession of the property, and 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, which "ran with the land" and was enforceable against subsequent owners. The problem was that in order to enforce the terms of the covenant--the ejectment of the Shelleys, the resolution of the proper ownership (because the Shellys could not be owners) of the land, the powers of the state had to be invoked. The police power to evict the Shellys, and the court power to interpret and adjudicate the terms of the covenant. Thus, in 1948, the Supreme Court held that it is unconstitutional under the Fourteenth Amendment for the government to enforce such a restrictive covenant--judicial action is sufficient state action to invoke the protections of the 14th Amendment.

This is the "state action " doctrine, the protection against the "slippery slope," that is the center of so many 1L Con Law exams. There is no constitutional protection against private discrimination. You can hate me as much as you want and refuse to give me cookies, the time of day, or a kind word (but stop at actually hitting me, because that's a separate tort and a possible hate crime). But the government can't lawfully discriminate against me on the basis of the following: race, national origin, religion, or sex. The first three "suspect classes" are analyzed under the "strict scrutiny" test, which is also used when a "fundamental constitutional right" is infringed (like free speech). That is, if the government or agent of the government denies me a job or admission to a public school on the basis of race, national origin, or religion, they better have a really, really good reason for it--a "compelling governmental interest" to be exact. And to serve this interest, the rule discriminating against a person must be "narrowly tailored" to achieve that goal, and the rule must use the least restrictive means to achieve that goal. Thus, certain restrictions on national origin (for example, certain jobs are restricted to naturally born Americans, jand obs that have certain religious requirements (for example, Episcopalian priest job listings) are OK. Most horribly, the internment of the Japanese was held to be OK to serve the compelling governmental interest of national security, a matter which the court defers its judgement to the Executive. (history repeats itself) But this is the strict scrutiny test. For gender discrimination, the test is "intermediate scrutiny," where the governmental interest must only be "important," and furthered by "substantially related" means. This test has less bite, but makes important allowances and distinctions--females should accepted into formerly all-male military academies, but certain height/weight/strength requirements excluding most women (e.g., for prison guards) are constitutionally permissable. For all other forms of discrimination, e.g. laws that treat people differently based on any other classification (including homosexuality), the test is whether the law is rationally a means to an end that may be legitimately pursued by government.

Which brings me to the question of the day. Is a restrictive covenant barring ownership by more than three unmarried persons (i.e., parents living in sin makin' babies) unconstitutional? Via Broadsheet:

Remember the Shelltrack-Lovings? They're the Missouri family -- a loaded word in this context -- who were denied a home occupancy permit because the parents, partners of 13 years, are not married. Why the denial? Because the city of Black Jack, where they'd found a dream home for their three kids, has -- and enforces -- a city ordinance prohibiting more than three unrelated people from living together. As Broadsheet reported last March, the Planning and Zoning Commission was reviewingthe ordinance and would make a recommendation to the City Council for a subsequent vote.

Well, vote the council did, just last night. Despite enormous public outcry, pressure by the ACLU, a possible investigation by the Department of Housing and Urban Development -- and the zoning commission's recommendation that "two unrelated individuals having a child or children related by blood, adoption or foster care relationship to both such individuals" be allowed to live together -- the City Council voted 5-3 against adjusting the ordinance to make room for the family.

"I'm just shocked," Olivia Shelltrack told the St. Louis Post-Dispatch. "I really thought this would all be over, and we could go on with our lives. She added: "It's a shame that ... people can sit up there and judge you." (Not that it should matter, but the couple is engaged; they chose to save for their home in Black Jack before saving for a wedding.) City residents interviewed said assorted silly things, such as: "As a woman, I'm not going to let a man have babies by me and not marry me. I think it was a fair decision" and (to USA Today) "They've gotten into a situation and it doesn't fit them. So their solution is, change the situation. That's not an adult approach."

Black Jack Mayor Norman McCourt issued the following statement: "The purpose of these occupancy permit laws generally is to avoid overcrowding by non-related parties, assure the lifelong maintenance of the city's housing stock, prevent new buyers from being obligated to repair residences that were not kept up to code, preserve the character of the neighborhoods and the city, and to protect the general safety and welfare of the city's residents." Mm-hmm. Also, did we mention that it appears that Shelltrack is white and Loving is black? I don't know how common mixed-race families are in Black Jack. If they're not common, I'm guessing -- honestly, just guessing -- that that didn't help the couple's case either. No word yet on whether the family, and I do mean family, will be evicted from their home.

Either way, what is the legitimate governmental purpose here? And really, what's the point--to enforce some archaic moral code of "thou shalt marry and not live in sin even though we're in the 21st century?" Protecting the "character of the neighborhoods"--sounds awful lot like the language used to prevent Blacks, Latinos and Asians from moving in. It's like that "there goes the neighborhood" joke. I mean, we're not talking about a house full of 10 druggies operating a meth lab. We're talking about a family with two parents and three kids. And what about the disparate impact on homosexuals, who cannot legally marry and are hopefully unrelated to their partner and have adopted a baby? This justfication for this law is full of holes and disparately impacts racial and sexual orientation minorities. It just isn't right.

Absent a showing of discriminatory enforcement (were white unmarried couples allowed to move in?) or racially disparate impact (but don't rely on that), or unless this is preempted under Federal housing laws (why HUD is investigating?), does this fall under the rational basis test? Discriminating between married and unmarried persons happens all the time--just check the tax code. But wait--didn't Loving v. Virginia proclaim the right to marry, and choose who you marry a fundamental constitutional right? But does that then follow for the converse, the right not to marry? Marriage is a hotbed of controversy these days--who is allowed to get married, the marriage tax penalty, the tax benefit of filing joint claims, how stay at home moms are penalized by said tax code--but what of the right not to marry? Is there similarly a constitutionally protected right? If Skinner v. Oklahoma held that there was a right to procreate (holding unconstitutional a law that compelled sterilization of felons), and Griswold v. Connecticut held that there was conversely a right not to procreate (holding unconstitutional, under the theory of "privacy" laws banning the use of contraception)--is there a similar argument for the converse here? Is the argument that this covenant is unconstitutional best argued under Loving or Shelly--maybe both? Is there a fundamental right at issue (the right not to marry)or is it a case of a classifcation (between married and unmarried persons) that should be analyzed under at least intermediate scrutiny? Is the argument that this is unconstitutional because it disparately impacts racial and sexual orientation minorities weak or strong? I honestly don't know, but I do think that this law can and should be challenged--and if so challenged, I believe that under any of the above theories (or all of them) the covenant should be held to be unconstitutional. Note to professors: this is a good Con Law hypo or seminar paper topic.

Interesting that one of the parents is named Loving--reminds me of Loving v. Virginia. You know, that Supreme Court case from 1967 that held that "anti-miscegenation laws," or laws banning interracial marriage, were unconstitutional. Yes, states used to ban that kind of race pollution and dilution. Not too long ago too. in fact, all the way into the second half of the 20th century. How times have changed though--it seems so long ago that bizarre restrictive covenants based on suspect and archaic moral justifications existed. Welcome to the Modern Era.