March 22, 2005

Learn to Stop Worrying and Love Shelley v. Kraemer

by PG

Justice Scalia's majority opinion in Bray v. Alexandria Women's Health Clinic withers Souter's dissenting citation of Shelley v. Kraemer by saying, "Any argument driven to reliance upon an extension of that volatile case is obviously in serious trouble." Shelley's reasoning that a racially discriminatory private agreement does not violate the 14th Amendment , but a state's enforcement of it would, has fallen into disuse if not disrepute, particularly once federal fair housing legislation rendered it unnecessary.

However, after I commented on Armen's Schiavo post that the state --

is not a party to the case except insofar as the Schindlers are challenging the state courts' disposition of the case. Unlike the state's role in a criminal prosecution, Florida would love to have the dispute just go away through a sudden convergence of parental and spousal preference
-- it occurred to me that if the Schindlers could dig up some invidious reason why Mr. Schiavo wants his wife to die, such as gender or disability, they could claim that Shelley prohibits state action to enforce Mr. Schiavo's preference, even if there is no Constitutional prohibition on wanting your wife to be taken off life support because she is female or unable to speak. (Though I couldn't get my professor to clarify whether today's discussion applied to the ADA or ADEA.)

Constitutional law is making me sillier by the day.

March 22, 2005 06:06 PM | TrackBack

Is this the same Shelley's Case that I was supposed to study in law school back in the 1950s? (I know it isn't.) Will the new Shelley achieve the same fame as the old so that reference can be made to Shelley I and Shelley II?

Posted by: Shag from Brookline at March 24, 2005 07:21 AM

Legislatures that decide to change their states' rules for wills & estates from the common law rule of Shelley's case (such as MS and MO) feel the need to actually say, "Rule in Shelley's Case abolished."

Courts, on the other hand, don't seem to feel much need to advert to their running roughshod over Shelley v. Kraemer's state action doctrine, so I don't think a "Shelley II" reference even would be necessary.

Posted by: PG at March 24, 2005 10:59 AM
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