I agree with Michael that courts may be reluctant to adopt my view of the law of running covenants as a type of zoning regime (actually it is not mine, I have heard others make a similar argument as a better way to understand Shelley).
But again, once you distinguish between the private covenants themselves and the body of law that permits enforcement against non-covenanting parties, it is difficult to reject the conclusion that the law of covenants is state action and is a kind of zoning scheme. Although judicial enforcement between the original covenanting parties of the promises they actually made to each other may not be state action, legal enforcement against third parties looks very much like a regulatory program.
Rick
Michael MASINTER <[EMAIL PROTECTED]> wrote:
Michael MASINTER <[EMAIL PROTECTED]> wrote:
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 se! e 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:
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
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.
