In Shelley v. Kraemer (1948), the Supreme Court found that enforcing a racially-restrictive covenant in court was state action for purposes of the 14th Amendment, and violated the guarantees of equal protection of the law. However, the Court found that private parties drafting a racially-restrictive covenant–if privately enforced–would not be state action, and would not violate the 14th Amendment. As a result, an unquantifiable number of deeds to this day still have racially-restrictive covenants on them, even if they are not enforced. Inded, in Shelley v. Kramer, Justices Reed, Jackson, and Rutledge, recused because their homes had racially-restrictive covenants in them (Justice Stevens reported this in his autobiography). During the confirmation hearing for Chief Justice Rehnquist, Chairman of the Senate Judiciary Committee Joe Biden revealed that WHR owned two homes with racially restrictive covenants.
During four days of committee hearings last week, Rehnquist was questioned repeatedly about deeds to a former home in Phoenix, Ariz., that barred ownership by nonwhites and a vacation home in Vermont that barred ownership by Jews.
Rehnquist said the restrictions, though offensive, are unenforceable. He said on Monday he was taking steps to eliminate the clause in the deed to his Vermont home.
However, in one of the more delicious twists of irony, former Reagan Administration official James McClellan drove straight to Dover, Delaware, and discovered that Biden too had skeletons in his closet.
A Republican supporter of William H. Rehnquist’s nomination to be chief justice of the Supreme Court disclosed records yesterday showing that a house Sen. Joseph R. Biden Jr. (D., Del.) lived in for three years had a deed barring ownership by blacks.
The house was owned by Biden’s parents and was his legal Delaware residence from August 1971 to October 1974, said James McClellan, head of the Center for Judicial Studies in Cumberland, Va.
McClellan said that “it suggests perhaps an element of hypocrisy” for Biden and other Democratic senators to question similar restrictive deeds on property owned by Rehnquist.
But Biden, a member of the Senate Judiciary Committee, which has been scrutinizing Rehnquist’s nomination, said his parents never signed the deed with the restrictive covenant and have taken legal action to disclaim it.
He said the language prohibiting ownership or occupancy by blacks was contained in a 1940 deed that transferred to his parents’ property when they bought the house in 1969.
He said they had not known about the language in the old deed.
McClellan told a news conference he was revealing the restrictive deed on the Biden home in hopes of quelling challenges to Rehnquist’s nomination. ”The American people are sick and tired of these character assassinations,” he said.
The restrictive covenants on the Biden home and the Rehnquist properties do not indicate that either man is a racist, McClellan said. …
The restriction on the deed to the Biden home said the property may not be ”owned or occupied by any Negro or person of Negro extraction.”
Records show that the house, on Woods Road in Faulkland, Del., was purchased in 1969 by Biden’s father, Joseph Sr., and mother, Jean.
A few years later, Biden would attack Robert Bork for his critical comments of the decision of Shelley v. Kraemer.
The New York Times reports on a property story that is almost too surreal to be true. In the 1930, the town of Yaphank in Long Island was a German-stronghold. Streets were named after Adolf Hitler and Joseph Goebbels, and parades were held flying both the American and Nazi flags. Today, the parades and swastikas are gone, but the covenants remain.
The original owners of this tract of land kept a clause in its bylaws requiring the homeowners to be primarily “of German extraction.” That has kept this community of 45 families almost entirely white.
That a property has a racially restrictive covenant in the deed is unremarkable. Many properties have them from long before Shelley v. Kraemer, and were never removed. What is remarkable is that the organization that owns the land, the German American Settlement League, is trying to enforce the covenant!
It has also left one family frustrated and headed to court to challenge the bylaws. Philip Kneer and Patricia Flynn-Kneer, a couple who lived in a two bedroom, ranch-style home along the main road, are suing the community organization that owns the land under their house, the German American Settlement League, alleging that the league’s housing practices are discriminatory and violate the Fair Housing Act. The complaint was filed on Monday in Federal District Court in Central Islip.
The couple, both of German descent, originally agreed in 1999 to enter the community under its rules. But in subsequent years, a mix of both moral and practical concerns came to trouble them.
The family wanted to sell their home. But the league’s covenants kept residents from advertising their homes on the open market. Even a for-sale sign was banned. Only members of the league, along with their friends, are told. The consequence: A white neighborhood that stays that way, the Kneers said.
Suit was brought under the Fair Housing Act, and not the 14th Amendment, because the FHA prohibits the existence of the covenants, and restrictions on advertising based on race. The 14th Amendment only kicks in if a party seeks to block a sale, by enforcing the covenant in court. That constitutes state action.