As I read Rick's argument, it has consequences that extend far beyond RLUIPA and home schooling. Treating restrictive covenants as zoning regulations and their enforcement as state action subjects them to the same first and fourteenth amendment limits that constrain local governments in enacting positive law. Many property owners associations routinely enforce restrictive covenants against non-covenanting parties that would, as positive law, violate the free speech provisions of the first amendment. Age restrictions prohibiting occupancy by children arguably would violate both the equal protection clause and the right of intimate association under the first amendment. POAs would become subject to the procedural requirements of the fourteenth amendment.
I am sympathetic to Rick's argument; POAs regularly behave more like authoritarian states than liberal democracies, but, save for Shelley, I don't see any indication in state action law that supports it, and, as Justice Scalia once wrote, "[a]ny argument driven to reliance upon an extension of that volatile case is obviously in serious trouble." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 282 n.14 (1993). Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University (954) 262-6151 (voice) Shepard Broad Law Center (954) 262-3835 (fax) [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel On Wed, 4 Jan 2006, Rick Duncan wrote: > Steve: The difference between a typical contract case and the law of > covenants running with the land is that in the latter case the law provides > authority to enable A & B to restrict the liberty of C, D, and E (future > landowners who did not agree to the covenant). > > If A agrees with B not to use Blackacre as a home school, there is > no major liberty issue when A breaches his agreement and B sues to > enforce the restriction that A agreed to. But under the law of > covenants, when A sells Blackacre to C, a non-covenanting party, the > covenant "runs with the land" and requires C to perform a promise > that C never made. > > The law of covenants allows A & B to attach their covenant to land > and enforce it against non-covenanting parties. Therefore, it is > really a kind of zoning law in which the state delegates to the > original covenanting parties the power to promulagte the zoning > restrictions that will govern future non-covenanting andowners. This > matters for purposes of RLUIPA, because I argue that the body of law > (the law of covenants) that allows enforcement of covenants against > non-covenanting parties is a land use regulation as defined in RLUIPA > (and state action for purposes of the Constitution). > > Cheers, Rick Duncan > > > Steven Jamar <[EMAIL PROTECTED]> wrote: > Rick, > > > Doesn't the same logic apply to contract law? Contracts are enforceable > under law, like restrictive covenants, but are essentially private matters. > Some covenants are illegal (no blacks allowed, for example), and so are some > contracts (slavery, for example). But this does not mean that they are the > same as legislation. > > > Steve > > > > > -- > Prof. Steven D. Jamar vox: 202-806-8017 > Howard University School of Law fax: 202-806-8567 > 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] > Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ > > > "The modern trouble is in a low capacity to believe in precepts which > restrict and restrain private interests and desires." > > > Walter Lippmann > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others. > > > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > > "When the Round Table is broken every man must follow either Galahad or > Mordred: middle things are gone." C.S.Lewis, Grand Miracle > > "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or > numbered." --The Prisoner > > > > --------------------------------- > Yahoo! DSL Something to write home about. Just $16.99/mo. or less _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
