Gay Rights, Equal Protection, and the Possible Resurgence of the State Action Doctrine

With the Amendment 3 appeal looming on the horizon, one of the great questions on people’s minds is, “To what extent would a decision striking down Amendment 3 on the ground that it violated the right of equal protection affect the actions of private individuals or businesses?”

As always, the Constitution is the starting point.  The Bill of Rights protects only against congressional action (hence, the preface “Congress shall make no law . . . “).  Originally, neither individuals nor states were bound by any of the guaranties, except to the extent that state governments had adopted the same or similar provisions in their own constitutions.

With the adoption of the Fourteenth Amendment after the Civil War, the legal landscape changed significantly.  Not only did the Fourteenth Amendment confer a new constitutional right — the right to equal protection — it expressly provided protection of that right against action by the “state.”  Given the fact that the Fourteenth Amendment also contained language from the original bill of rights (most noticeably, the due process language from the 5th Amendment), courts have, over time, adopted the view that the Fourteenth Amendment incorporates most, if not all, of the Bill of Rights, thus extending the protections afforded by those rights against actions by the state as well.

You might think that there is little to no ambiguity in the phrase “state action.”  And that was true initially.  In the Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court drew a sharp distinction between affirmative actions of the state and its representatives and the actions of private persons and businesses:

In this connection it is proper to state that civil rights, such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress.

But with the advent of the Civil Rights Movement, the sharp public-private drawn by the Court in the Civil Rights Cases distinction began to erode.  While state action is usually obvious — such as when a state legislature passes a law, or a state agency takes an action (municipal legislative and executive bodies are also included) —  the Court has extended the state action doctrine to encompass additional situations involving private actors.  For example, in Shelley v. Kraemer, the court ruled that landowners could not execute racially discriminatory restrictive covenants that prohibited conveying real property to African-Americans on the grounds that it violated the Fourteenth Amendment.  In the Shelley case, a prior owner had executed a restrictive covenant against his property that prohibited the sale of the property to a black family.  The subsequent owner wanted to sell to a black family, but was prohibited from selling by the courts, which were duty-bound to enforce the restrictive covenant.  While the violation would be clear if it was the state executing the discriminatory covenant prior to conveying property, the fact that a private property owner executed the covenant would seem to remove it from the Fourteenth Amendment’s purview.

The Shelley court disagreed, reasoning as follows:

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 properties 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 the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.

. . .

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 Fourteenth 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.

Taken to its logical conclusion, the Shelley decision would seem to suggest that a racist, white homeowner could not call the police to remove a black man from his property who remained after being told to leave.  This extension of Shelley would obliterate the time-honored distinction between public and private action.  But the Court has largely left the Shelley decision where it was upon decision, and has not, to my knowledge, ever extended it (and only rarely invoked it, a case involving racist peremptory jury challenges being the one time I know) from its original context, i.e., restrictive covenants used to enforce racial discrimination.  In the years since Shelley, the Supreme Court has, in fact, expressly declined to find state action in similar situations (including in a racial trespassing case like the hypothetical set out above, see Bell v. Maryland, 378 U.S. 226 (1964).  Indeed, many legal commentators today view Shelley as something of an aberration, and suggest its rule is limited solely to situations involving judicial enforcement of racial discrimination, perhaps even in voluntary transaction situations where enforcement is sought by a third party.  Increasingly, Shelley is viewed as a relic.

One of the reasons for this could that state and federal laws (e.g., employment, housing, and public accommodation anti-discrimination acts) have largely filled the enforcement vacuum and there’s little need to resort to constitutional claims to vindicate constitutional rights.  Now, if you’re denied housing because of your race, you’ve got a clear claim under federal and state statutory law.  You don’t need to invoke the Constitution, and therefore don’t need to be concerned about whether there was state action.  Today, most state action cases arise under select state constitutions (such as in California) or in situations where the state has delegated functions, or you have private entities performing functions, that were traditionally the province of the state.  In these cases, the private actor gets sued and may want to claim antitrust benefits or the immunity/qualified immunity that would be available to the state and/or its employees in a similar situation. 

But the history of the Fourteenth Amendment with respect to state action is instructive, and the Supreme Court’s equal protection state action jurisprudence may yet again become relevant.  I suspect that the Shelley case was the result of the Court’s well-intended, though misguided, attempt to enforce constitutional norms in the absence of state anti-discrimination law.  Nowadays, state and federal laws protecting people from racial, ethnic, religious, gender, and age discrimination are ubiquitous.

But state and federal laws protecting people from discrimination on the basis of sexual orientation are not.

Thus, if the Supreme Court, in its decisions on Amendment 3 and other gay marriage cases begins to apply a heightened equal protection analysis to claims of discrimination on the basis of sexual orientation, until federal and state anti-discrimination laws catch up with the new constitutional guaranty, we may see an increasing number of equal protection state action cases, in which the court will have to confront the issues raised by its decision in Shelley nearly 60 years ago.

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