 Shelly versus Kramer. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Kelly Robinson in Birmingham, Alabama. Shelly versus Kramer. An opinion of the United States Supreme Court. Decided on May 3, 1948. Please note, this is a reading of the opinion of the court only. For ease of listening, this reading omits legal citations and footnotes found within the text of the court's opinion. Mr. Chief Justice Vinson delivered the opinion of the court. These cases present for our consideration questions relating to the validity of court enforcement of private agreements. Generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the basic constitutional issues of obvious importance have been raised. The first of these cases comes to this court on certiorari to the Supreme Court of Missouri. On February 16, 1911, 30, out of a total of 39 owners of property, fronting both sides of Labedi Avenue between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an agreement which was subsequently recorded, providing in part, the said property is hereby restricted to the use and occupancy for the term of 50 years from this date, so that it shall be a condition all the time and whether recited and referred to as not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be for said term of 50 years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian race. The entire district described in the agreement included 57 parcels of land. The 30 owners who signed the agreement held title to 47 parcels, including the particular parcel involved in this case. At the time the agreement was signed, 5 of the parcels in the district were owned by Negroes. One of those had been occupied by Negro families since 1882, nearly 30 years before the restrictive agreement was executed. The trial court found that owners of 7 out of 9 homes on the south side of Labete Avenue within the restricted district and in the immediate vicinity of the premises in question had failed to sign the restrictive agreement in 1911. At the time this action was brought, 4 of the premises were occupied by Negroes and had been so occupied for periods ranging from 23 to 63 years. A fifth parcel had been occupied by Negroes until a year before this suit was instituted. On August 11, 1945 pursuant to a contract of sale, petitioners Shelley, who are Negroes for valuable consideration received from one Fitzgerald a warranted deed to the parcel in question, the trial court found that petitioners had no actual knowledge of the restrictive agreement at the time of the purchase. On October 9, 1945, respondents as owners of other properties subject to the terms of the restrictive covenant brought suit in circuit court of the city of St. Louis, praying that petitioners Shelley be restrained from taking possession of the property and that judgment be entered divesting title out of petitioners Shelley and revesting title in the immediate grand tour or in such other person as the court should direct. The trial court denied the requested relief on the ground that the restrictive agreement upon which respondents based their action had never become final and complete because it was the intention of the parties to that agreement that it was not to become effective until signed by all party owners in the district and signatures of all the owners had never been obtained. The Supreme Court of Missouri sitting unbunked, reversed and directed the trial court to grant the relief for which respondents had prayed. That court held the agreement effective and concluded that enforcement of its provisions violated no rights guaranteed to petitioners by the federal constitution. At the time the court rendered its decision, petitioners were occupying the property in question. The second of the cases under consideration comes to the court from the Supreme Court of Michigan. The circumstances presented do not differ materially from the Missouri case. In June 1934, one Ferguson and his wife, who then owned the property located in the city of Detroit, which is involved in this case, executed a contract providing in part, this property shall not be used or occupied by any person or persons except those of the Caucasian race. It is further agreed that this restriction shall not be effective unless at least 80% of the property fronting on both sides of the street in the block where our land is located is subjected to this or a similar restriction. The agreement provided that the restrictions were to remain in effect until January 1st, 1960. The contract was subsequently recorded and similar agreements were executed with respect to 80% of the lots in the block in which the property in question is situated. By D dated November 30th, 1944, petitioners who were found by the trial court to be Negros acquired title to the property and thereupon entered into its occupancy. On January 30th, 1945, respondents as owners of the property subject to the terms of the restrictive agreement brought suit against petitioners in the Circuit Court of Wayne County. After a hearing, the court entered a decree directing petitioners to move from the property within 90 days. Petitioners were further enjoined and restrained from using or occupying the premises in the future. On appeal, the Supreme Court of Michigan affirmed deciding adversely to petitioners' contention that they had been denied rights protected by the 14th Amendment. Petitioners have placed primary reliance on their contention first raised in the state courts that judicial enforcement of the restrictive agreements in these cases has violated rights guaranteed to petitioners by the 14th Amendment of the federal constitution and acts of Congress passed pursuant to that amendment. Specifically, petitioners urged that they had been denied the equal protection of the laws deprived of property without due process of law and have been denied privileges and immunities of citizens of the United States. We pass to a consideration of those issues. Whether the Equal Protection Clause of the 14th Amendment inhibits judicial enforcement by state courts of restrictive covenants based on race or color is a question which this court has not here to fore been called upon to consider. Only two cases have been decided by this court, which in any way have involved the enforcement of such agreements. The first of these was the case of Corrigan v. Buckley. There suit was brought in the courts of the District of Columbia to enjoin a threatened violation of certain restrictive covenants relating to land situated in the city of Washington. Relief was granted and the case was brought here on appeal. It is apparent that that case, which had originated in the federal courts and involved the enforcement of covenants on land located in the District of Columbia could present no issues under the 14th Amendment. For that amendment by its terms applies only to the states. Nor was the question of the validity of court enforcement of the restrictive covenants under the 5th Amendment properly before the court, as the opinion of this court specifically recognizes. The only constitutional issue which the appellants had raised in the lower courts and hence the only constitutional issue before this court on appeal was the validity of the covenant agreements as such. This court concluded that since the inhibitions of the constitutional provisions invoked apply only to governmental action as contrasted to action of private individuals there was no showing that the covenants which were simply agreements between private property owners were invalid. Accordingly the appeal was dismissed for want of a substantial question. Nothing in the opinion of this court therefore may properly be regarded as an adjudication on the merits of the constitutional issues presented by these cases which raised the question of the validity not of the private agreements as such but of the judicial enforcement of those agreements. The second of the cases involving racial restrictive covenants was Handsbury v. Lee. In that case petitioners, white property owners, were enjoined by the state courts from violating the terms of a restrictive agreement. The state supreme court had held petitioners bound by an earlier judicial determination in litigation in which petitioners were not parties upholding the validity of the restrictive agreement although in fact the agreement had not been signed by the number of owners necessary to make it effective under state law. This court reversed the judgment of the state supreme court upon the ground that petitioners had been denied due process of law in being held estopped to challenge the validity of the agreement on the theory accepted by the state court that the earlier litigation in which petitioners did not participate was in the nature of class suit and arriving at its result this court did not reach the issues presented by the cases now under consideration. It is well at the outset to scrutinize the terms of the restrictive agreements involved in these cases. In the Missouri case the covenant declares that no part of the affected property shall be occupied by any person not of the Caucasian race. It being intended hereby to restrict the use of said property against the occupancy as owners or tenants of any portion of said property resident or other purpose by people of the Negro or Mongolian race. Not only does the restriction seek to prescribe use and occupancy of the affected properties by members of the excluded class but as construed by the Missouri courts the agreement requires that title of any person who uses his property in violation of the restriction shall be divested. The restriction of the covenant in the Michigan case seeks to bar occupancy by persons of the excluded class. It provides that this property shall not be used or occupied by any person or persons except those of the Caucasian race. It should be observed that these covenants do not seek to prescribe any particular use of the affected properties. Use of the properties for residential occupancy as such is not forbidden. The restrictions of these agreements rather are directed toward a designated class of persons and seek to determine who may and who may not own or make use of the properties for residential purposes. The excluded class is defined wholly in terms of race or color. Simply that and nothing more. It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the 14th amendment are the rights to acquire, enjoy, own, and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that amendment as an essential precondition to the realization of other basic civil rights and liberties which the amendment was intended to guarantee. Thus section 1978 of the revised statutes derived from section 1 of the Civil Rights Act of 1866 which was enacted by Congress while the 14th amendment was also under consideration provides All citizens of the United States shall have the same right in every state and territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. This court has given specific recognition to the same principle. It is likewise clear that restrictions on the right of occupancy of the sort sought to be created by the private agreements in these cases could not be squared with the requirements of the 14th amendment if imposed by state statute or local ordinance. We do not understand respondents to urge the contrary. In the case of Buchanan v. Warley, a unanimous court declared unconstitutional the provisions of a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons. During the course of the opinion in that case the court stated the 14th amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color. In Harman v. Tyler, a unanimous court on the authority of Buchanan v. Warley declared invalid an ordinance which forbade any Negro to establish a home on any property in a white community or any white person to establish a home in a Negro community except on the written consent of a majority of the persons of the opposite race inhabiting such community or portion of the city to be affected. The precise question before this court in both the Buchanan and Harman cases involved the rights of white sellers to dispose of their properties free from restrictions as to potential purchasers based on considerations of race or color but that such legislation is also offensive to the rights of those desiring to acquire and occupy property and barred on grounds of race or color is clear not only from the language of the opinion in Buchanan v. Warley but from this court's disposition of the case of City of Richmond v. Deans. There a Negro barred from the occupancy of certain property by the terms of an ordinance similar to that in the Buchanan case sought injunctive relief in the federal courts to enjoin the enforcement of the ordinance on the grounds that its provisions violated the terms of the 14th amendment. Such relief was granted and this court affirmed finding the citation of Buchanan v. Warley and Harman v. Tyler sufficient to support its judgment but the present cases unlike those just discussed do not involve action by state legislatures or city councils. Here the particular patterns of discrimination in the areas in which the restrictions are to operate are determined in the first instance by the terms of agreements among private individuals. Participation of the state consists in the enforcement of the restrictions so defined. The crucial issue with which we are here confronted is whether this distinction removes these cases from the operation of the prohibitory provisions of the 14th amendment. Since the decision of this court in the civil rights cases, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the 14th amendment is only such action as may fairly be said to be that of the states. That amendment erects no shield against merely private conduct, however discriminatory or wrongful. We conclude therefore that the restrictive agreements standing alone cannot be regarded as a violation of any rights guaranteed to petitioners by the 14th amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the state and the provisions of the amendment have not been violated. But here there was more. These are cases in which the purposes of the agreements are secured only by judicial enforcement by state courts of the restrictive terms of the agreements. The respondents urged that judicial enforcement of private agreements does not amount to state action or in any event the participation of the state is so attenuated in character as not to amount to state action within the meaning of the 14th amendment. Finally it is suggested even if the states in these cases may be deemed to have acted in the constitutional sense, their action did not deprive petitioners of rights guaranteed by the 14th amendment. We move to a consideration of these matters that the action of state courts and of judicial officers in their official capacities is to be regarded as action of the state within the meaning of the 14th amendment is a proposition which has long been established by decisions of this court. That principle was given expression in the earliest cases involving the construction of the terms of the 14th amendment. Thus in commonwealth of Virginia versus Rives this court stated it is doubtless true that a state may act through different agencies either by its legislative, its executive, or its judicial authorities and the prohibitions of the amendment extend to all action of the state denying equal protection of the laws whether it be action by one of these agencies or by another. In ex parte commonwealth of Virginia the court observed a state acts by its legislative, its executive or its judicial authorities. It can act in no other way. In the civil rights cases this court pointed out that the amendment makes void state action of every kind which is inconsistent with the guarantees therein contained and extends to manifestations of state authority in the shape of laws, customs, or judicial or executive proceedings. Language to like effect is employed no less than 18 times during the course of that opinion. Similar expressions giving specific recognition to the fact that judicial action is to be regarded as action on the state for the purposes of the 14th amendment are to be found in numerous cases which have been more recently decided. In Twining versus New Jersey the court said the judicial act of the highest court of the state in authoritatively construing and enforcing its laws is the act of the state. In Brinkerhoff Ferris Trust and Savings Company versus Hill the court through Mr. Justice Brandeis stated the federal guarantee of due process extends to state action through its judicial as well as through its legislative, executive, or administrative branch of government. Further examples of such declarations in the opinions of this court are not lacking. One of the earliest applications of the prohibitions contained in the 14th amendment to action of state judicial officials occurred in cases in which Negroes had been excluded from jury service in criminal prosecutions by reason of their race or color. These cases demonstrate also the early recognition by this court that state action and violation of the amendment's provisions is equally repugnant to the constitutional commands whether directed by state statute or taken by a judicial official in the absence of a statute. Thus in Strouder versus West Virginia this court declared invalid a state statute restricting jury service to white persons as amounting to a denial of the equal protection of the laws to the color defendant in that case. In the notice an opportunity to defend has ex parte Virginia held that a similar discrimination imposed by the action of a state judge denied rights protected by the amendment despite the fact that the language of the state statute relating to jury service contained no such restrictions. The action of state courts and imposing penalties or depriving parties of other substantive rights without providing adequate notice and opportunity to defend has of course long been regarded as a denial of the due process of law guaranteed by the 14th amendment. In numerous cases this court has reversed criminal convictions in state courts for failure of those courts to provide the essential ingredients of a fair hearing. Thus it has been held that convictions obtained in state courts under the domination of a mob are void. Convictions obtained by coerced confessions by the use of perjured testimony known by the prosecution to be such or without the effective assistance of counsel have also been held to be exertions of state authority in conflict with the fundamental rights protected by the 14th amendment. But the examples of state judicial action which have been held by this court to violate the amendment's commands are not restricted to situations in which the judicial proceedings were found in some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a substantive common law rule formulated by those courts may result in the denial of rights guaranteed by the 14th amendment even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process. Thus in American federation of labor versus swing enforcement by state courts of the common law policy of the state which resulted in the restraining of peaceful picketing was held to be state action of the sort prohibited by the amendment's guarantees of freedom of discussion. In Cantwell versus Connecticut a conviction in the state court of the common law crime of breach of the peace was under the circumstances of the case found to be a violation of the amendment's commands relating to freedom of religion. In Bridges versus California enforcement of the state's common law rule relating to contempt by publication was held to be state action inconsistent with the prohibitions of the 14th amendment. The short of the matter is that from the time of the adoption of the 14th amendment until the present has been the consistent ruling of this court the action of the states to which the amendment has reference includes action of state courts and state judicial officials. Although in construing the terms of the 14th amendment differences have from time to time been expressed as to whether particular types of state action may be said to offend the amendment's prohibitory provisions. It has never been suggested that state court action is immunized from the operation of those provisions simply because the act is that of the judicial branch of the state government. Against this background of judicial construction extending over a period of some three quarters of a century we are called upon to consider whether enforcement by state courts of the restrictive agreements in these cases may be deemed to be the acts of those states and if so whether that action has denied these petitioners the equal protection of the laws which the amendment was intended to ensure. We have no doubt that there has been state action in these cases in the full and complete sense of the phrase the undisputed facts disclose that petitioners were willing purchasers of property upon which they desired to establish homes the owners of the properties were willing sellers and contracts of sale were accordingly consummated. It is clear that but for the active intervention of state courts supported by the full panoply of state power petitioners would have been free to occupy the properties in question without restraint. These are not cases as has been suggested in which the states have merely abstained from action leaving private individuals free to impose such discriminations as they see fit rather these are cases in which the states have made available to such individuals the full coercive power of government to deny to petitioners on the grounds of race or color the enjoyment of property rights in premises which petitioners are willing and financially able to acquire in which the grand tours are willing to sell. The difference between judicial enforcement and non enforcement of the restrictive covenant is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common law policy of the states as formulated by those courts in earlier decisions. In the Missouri case enforcement of the covenant was directed in the first instance by the highest court of the state after the trial court had determined the agreement to be invalid for one of the requisite number of signatures. In the Michigan case the order of enforcement by the trial court was affirmed by the highest state court. The judicial action in each case bears the clear and unmistakable imprimatur of the state. We have noted that previous decisions of this court have established the proposition that judicial action is not immunized from the operation of the 14th amendment simply because it is taken pursuant to the state's common law policy nor is the amendment ineffective simply because the particular pattern of discrimination which the state has enforced was defined initially by the terms of a private agreement. State action as that phrase is understood for the purposes of the 14th amendment refers to exertions of state power in all forms and when the effect of that action is to deny rights subject to the protection of the 14th amendment it is the obligation of this court to enforce the constitutional commands. We hold that in granting judicial enforcement of the restrictive agreements in these cases the states have denied petitioners the equal protection of the laws and that therefore the action of the state courts cannot stand. We have noted that freedom from discrimination by the states in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the 14th amendment. That such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or color. The 14th amendment declares that all persons whether colored or white shall stand equal before the laws of the states and in regard to the colored race for whose protection the amendment was primarily designed that no discrimination shall be made against them by law because of their color. Only recently this court has had occasion to declare that a state law which denied equal enjoyment of property rights to a designated class of citizens of specified race and ancestry was not a legitimate exercise of the states police power but violated the guarantee of the equal protection of the laws nor made the discriminations imposed by the state courts in these cases be justified as proper exertions of state police power. Respondents urge however that since the state court stand ready to enforce restrictive covenants excluding white persons from the ownership or occupancy of property covered by such agreements enforcement of covenants excluding colored persons may not be deemed a denial of equal protection of the laws to the colored persons who are thereby affected. This contention does not bear scrutiny. The parties have directed our attention to no case in which a court, state, or federal has been called upon to enforce a covenant excluding members of the white majority from ownership or occupancy of real property on grounds of race or color but there are more fundamental considerations. The rights created by the first section of the 14th amendment are by its terms guaranteed to the individual. The rights established are personal rights. It is therefore no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved. They're indiscriminate imposition of inequalities. Nor do we find merit in the suggestion that property owners who are parties to these agreements are denied equal protection of the laws if denied access to the courts to enforce the terms of restrictive covenants and to assert property rights which the state courts have held to be created by such agreements. The Constitution confers upon no individual the right to demand action by the state which results in the denial of equal protection of the laws to other individuals. And it would appear beyond question that the power of the state to create and enforce property interests must be exercised within the boundaries defined by the 14th amendment. The problem of defining the scope of the restrictions which the federal constitution imposes upon exertions of power by the states has given rise to many of the most persistent and fundamental issues which this court has been called upon to consider. That problem was foremost in the minds of the framers of the Constitution and since that early day has arisen in a multitude of forms the task of determining whether the action of a state offends constitutional provisions is one which may not be undertaken lightly. Where, however, it is clear the action of the state violates the terms of the fundamental charter it is the obligation of this court so to declare. The historical context in which the 14th amendment became a part of the Constitution should not be forgotten whatever else the framers sought to achieve it is clear that the matter of primary concern was the establishment of equality and the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the states based on considerations of race or color. 75 years ago this court announced that the provisions of the amendment are to be construed with this fundamental purpose in mind. Upon full consideration we have concluded that in these cases the states have acted to deny petitioners the equal protection of the laws guaranteed by the 14th amendment. Having so decided we find it unnecessary to consider whether petitioners have also been deprived property without due process of law or denied privileges and immunities of citizens of the United States. For the reasons stated the judgment of the Supreme Court of Missouri and the judgment of the Supreme Court of Michigan must be reversed. Reversed. End of Shelley versus Kramer a decision of the United States Supreme Court.