Constitutional Limitations

Question 1

Racial Discrimination

• Shelley v. Kraemer – S. Ct. (1948)

Answer 1

o F: 50 yr covenant to only have white owners of property; Shelley is black person purchasing property; Kraeamer sues to enforce the covenant
o H: For D – racially restrictive covenants are a violation of equal protection
 14th Amend generally not meant to regulate private conduct; but its purpose is to eliminate discrimination against black people
 However – Ct says that judiciary enforcing such a covenant is state action
• Slippery slope for Constitutional scrutiny then (anything in court is state action)
• Civil Rights Act of 1968; Fair Housing Act – declares racial discrimination in housing illegal (as opposed to just unenforceable covenant)

Question 2

Religion

• West Hill Baptist Church v. Abbate – OH (1969)

Answer 2

o F: Restrictions on land for residential or agricultural use only; P sues because they want to construct religious buildings
o H: For P
 14th Amend incorporates 1st Amendment free exercise rights; this covenant burdens free exercise without a compelling relationship to health/safety/general welfare/morals
 Zoning forbidding a church here would certainly be unconstitutional
• West Hill is minority view – generally, as long as the covenant is not facially discriminatory against particular religions it will be honored

Question 3

Restrictions on Speech

• LeDoux –

Answer 3

S. Ct. case about ban on signs outside homes in town (municipal ordinance)
o Ct. says this is an infringement of 1st Amend right
o Town can limit signs for public safety – but must have some opportunity to express speech (esp. political speech)

Question 4

Restrictions on Speech

• Committee for Better Twin Rivers v. Twin Rivers Homeowners Association – NJ (2007)

Answer 4

o F: Private covenant limiting signage; P sues because want to post signs on property, around community, and in newsletter
o H: For D; These rules/regulations are not subject to free speech protection
 Neighborhood is not quasi-municipality like that in Marsh v. Alabama
 Applies Schmid factors:
• Nature, purpose, and primary use of such private property (its normal use)
• Extent and nature of public’s invitation to use that property (not open to public here really)
• Purpose of the expressional activity undertaken upon such property in relation to both private and public use of property
 Ct. says no serious burden here; could still have signs, was just limited by signs
 NJ Const. unique in that it recognizes speech right between private parties (unlike US const.)