In Shelley v. Kraemer, 334 U.S. 1 (1948), the Supreme Court unanimously ruled that state courts cannot enforce racially restrictive covenants in property deeds because doing so is state action that violates the Fourteenth Amendment’s Equal Protection Clause. The Court did not declare the covenants themselves illegal. It did something more precise: it stripped away the courts as a tool for enforcing them, leaving the discriminatory language on paper but powerless.1Justia Law. Shelley v. Kraemer, 334 U.S. 1 (1948)
The Family and the Covenant
On February 16, 1911, thirty of thirty-nine property owners along Labadie Avenue in St. Louis signed an agreement barring occupancy of their homes by anyone “not of the Caucasian race” for fifty years. The covenant specifically targeted people of “the Negro or Mongolian Race” and was written to attach to the land itself, binding every future buyer whether or not the restriction appeared in later deeds. It was recorded with the local land records office and embedded in the chain of title for each affected parcel.2UMKC School of Law. Shelley v. Kraemer
In 1945, J.D. and Ethel Lee Shelley, a Black family who had recently moved from Mississippi, bought the home at 4600 Labadie Avenue. They did not know the covenant existed.3KSDK. How the Shelley House in North St. Louis Helped End Racist Real Estate Practices Soon after they moved in, neighbors Louis and Fern Kraemer sued in state court to strip the Shelleys of ownership and remove them from the home. The Missouri Supreme Court ruled for the Kraemers. The Shelleys appealed.
Why Covenants Had Been Enforceable Before 1948
The Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”4Legal Information Institute. U.S. Constitution – Fourteenth Amendment For decades, courts read that language as reaching only government conduct. Private people could discriminate in their contracts however they liked, because the Constitution constrained the state, not the citizen.
The Supreme Court reinforced that view in Corrigan v. Buckley, 271 U.S. 323 (1926), holding that neither the Fifth, Thirteenth, nor Fourteenth Amendment prohibited private property owners from entering covenants restricting sales by race. The Court said “none of these amendments prohibited private individuals from entering into contracts respecting the control and disposition of their own property.”5Justia Law. Corrigan v. Buckley, 271 U.S. 323 (1926) That produced a workable loophole for segregation. A legislature could not bar Black families from certain neighborhoods, but homeowners could accomplish the same result by contract, and judges would sign the orders to make it stick.
The question no case had squarely put to the Court was whether the act of judicial enforcement itself crossed the line. When a judge signed an order evicting a family from their home solely because of their race, was that still “private”?
The Court’s Reasoning
The Court decided the case on May 3, 1948, in a 6-0 opinion by Chief Justice Fred Vinson. Justices Reed, Jackson, and Rutledge recused themselves.1Justia Law. Shelley v. Kraemer, 334 U.S. 1 (1948)
Vinson began with what he called settled law: the covenants, as private agreements between willing parties, did not by themselves violate the Fourteenth Amendment. The Constitution does not reach purely private conduct. But he drew a sharp line between signing a covenant and asking a judge to enforce one.6Legal Information Institute. Shelley v. Kraemer (1948)
The core move was to treat the judiciary as part of the state. Actions of state courts and judicial officers in their official capacities are actions of the state. This was not new; the opinion traced the principle through precedent going back to 1880. “A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way.” When a Missouri court ordered the Shelleys removed from their home on account of their race, that was Missouri denying them equal protection.
The most powerful passage described what the Shelleys’ case actually involved. They were willing buyers. The sellers were willing to sell. The contract was executed at fair value. “But for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.” The courts were not passive bystanders. They were the mechanism that made the discrimination effective.
What the Ruling Did, and What It Did Not Do
The distinction the Court drew matters for anyone trying to understand the decision’s reach. Private homeowners could still sign racial covenants. The Constitution cannot stop people from writing offensive language into a contract. What no court in the country could do was enforce one. No injunctions to block a sale. No orders to evict a family. No judicial machinery of any kind to give the covenant practical force.6Legal Information Institute. Shelley v. Kraemer (1948)
Social enforcement, pressure from neighbors, threats, and ostracism kept many covenants effective in practice for another two decades. Shelley defanged the courts; it did not defang the culture around them.
The Companion and Follow-On Cases
Hurd v. Hodge and Federal Courts
The same day it decided Shelley, the Court ruled in Hurd v. Hodge, 334 U.S. 24 (1948), on racial covenants in the District of Columbia. Because D.C. is not a state, the Fourteenth Amendment did not directly apply. The Court instead relied on a federal statute now codified at 42 U.S.C. § 1982, originally part of the Civil Rights Act of 1866, which guarantees all citizens “the same right” as white citizens “to inherit, purchase, lease, sell, hold, and convey real and personal property.”7Office of the Law Revision Counsel. 42 USC 1982 – Property Rights of Citizens The Court held it was “not consistent with the public policy of the United States to permit federal courts in the Nation’s capital” to enforce the covenants.8Justia Law. Hurd v. Hodge, 334 U.S. 24 (1948) Together, the two cases closed both state and federal courthouses to covenant enforcement.
Barrows v. Jackson and Damage Awards
One gap remained. Could a covenant signer sue a neighbor who broke the agreement by selling to a Black buyer, not to reverse the sale but to collect money damages? The Court answered in Barrows v. Jackson, 346 U.S. 249 (1953). The answer was no. Awarding damages for breaching a racial covenant “would constitute state action as surely as it was state action to enforce such covenants in equity.”9Legal Information Institute. Barrows v. Jackson, 346 U.S. 249 (1953) Damage awards would punish homeowners for refusing to discriminate, coercing them into maintaining segregation on threat of financial liability. After Barrows, racial covenants had no judicial remedy of any kind.
From Unenforceable to Illegal
Two developments in 1968 finished what Shelley started. The Fair Housing Act made it unlawful to refuse to sell or rent a dwelling, or to discriminate in the terms of sale, because of race, color, religion, sex, familial status, or national origin.10Office of the Law Revision Counsel. 42 USC 3604 – Discrimination in Sale or Rental of Housing The same year, the Supreme Court decided Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), holding that 42 U.S.C. § 1982, the Reconstruction-era statute used in Hurd, “bars all racial discrimination, private as well as public, in the sale or rental of property.” Where Shelley had reached only government enforcement of private discrimination, Jones reached the private discrimination itself. Racial covenants were no longer merely unenforceable. They were illegal.
Shelley’s Legacy for State Action Doctrine
Shelley expanded the concept of state action, but later courts have been cautious about how far to press its logic. If judicial enforcement of any private agreement counted as state action, every private contract would face constitutional scrutiny the moment someone filed a lawsuit, and the line between public and private conduct would collapse.
The modern test asks whether there is a “sufficiently close nexus between the State and the challenged action” so that the private party’s conduct can fairly be treated as the state’s own. A state is responsible for a private decision only where it has “exercised coercive power or has provided such significant encouragement” that the choice becomes the government’s.11Legal Information Institute. State Action Doctrine Being regulated by the state, receiving government benefits, or performing a public-facing function does not automatically convert private action into state action.
The practical result: homeowners associations enforcing routine covenants are generally treated as private actors, not state ones, even when their decisions heavily affect residents. But an HOA that sought judicial enforcement of an overtly racial restriction would run directly into Shelley. The Fair Housing Act would also prohibit the underlying discrimination, which makes the constitutional question largely academic in housing today.
Discriminatory Language Still in Deeds
Racial covenants remain embedded in deeds and title records across the country. They have no legal force, but homeowners are often startled to find language in their chain of title restricting occupancy to “the Caucasian race” or similar terms. The language does not bind anyone, and it does not affect title, but it can create confusion during transactions and cause real distress to the families who encounter it.
A growing number of states have enacted laws letting property owners formally strike this language from their records. The Uniform Law Commission drafted a model statute, the Uniform Unlawful Restrictions in Land Records Act, that gives an individual owner the right to file an amendment with the county recorder removing the restriction without needing consent from other property owners. The recorder adds the amendment to the index and cross-references it to the original document.12Uniform Law Commission. Uniform Unlawful Restrictions in Land Records Act The amendment typically identifies the property, points to the document containing the restriction, and states that the restriction is unlawful and being removed.
Modern title insurance policies have also adjusted. Standard policy language now omits racial covenants from the list of exceptions to coverage. If a recorded restriction contains only racial or similar provisions, underwriting guidelines direct that the policy should not except to the instrument at all. If the restriction mixes enforceable terms, such as setback requirements, with discriminatory ones, the policy omits only the discriminatory provisions from the exception.