GPO-CONAN-2017-10-15.pdf

Individual justices did elaborate however compare

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form of state action and reversing all convictions. Individual Justices did elaborate, however. Compare Bell v. Maryland, 378 U.S. 226, 255–60 (1964) (opinion of Justice Douglas), with id. at 326 (Justices Black, Harlan, and White dissenting). 1366 In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and progeny, defa- mation actions based on common-law rules were found to implicate First Amend- ment rights and Court imposed varying limitations on such rules. See id. at 265 (finding state action). Similarly, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), a civil lawsuit between private parties, the application of state common-law rules to assess damages for actions in a boycott and picketing was found to consti- tute state action. Id. at 916 n.51. 1367 396 U.S. 435 (1970). The matter had previously been before the Court in Evans v. Newton, 382 U.S. 296 (1966). 1368 396 U.S. at 445. Note the use of the same rationale in another context in Palmer v. Thompson, 403 U.S. 217, 226 (1971). On a different result in the “Girard College” will case, see Pennsylvania v. Board of Trustees, 353 U.S. 230 (1957), dis- cussed infra . 2084 AMENDMENT 14—RIGHTS GUARANTEED
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The case of Reitman v. Mulkey 1369 was similar to Shelley in both its controversy and the uncertainty of its rationale. In Reitman , the Court struck down an amendment to the California Constitution that prohibited the state and its subdivisions and agencies from for- bidding racial discrimination in private housing. The Court, find- ing the provision to deny equal protection of the laws, appeared to ground its decision on either of two lines of reasoning. First was that the provision constituted state action to impermissibly encour- age private racial discrimination. Second was that the provision made discriminatory racial practices immune from the ordinary legisla- tive process, and thus impermissibly burdened minorities in the achievement of legitimate aims. 1370 In a subsequent case, Hunter v. Erickson , 1371 the latter rationale was used in a unanimous decision voiding an Akron ordinance, which suspended an “open housing” or- dinance and provided that any future ordinance regulating transac- tions in real property “on the basis of race, color, religion, national origin or ancestry” must be submitted to a vote of the people before it could become effective. 1372 Two later decisions involving state referenda on busing for inte- gration confirm that the condemning factor of Mulkey and Hunter was the imposition of barriers to racial amelioration legislation. 1373 Both cases agree that “the simple repeal or modification of desegre- gation or antidiscrimination laws, without more, never has been viewed 1369 387 U.S. 369 (1967). The decision was 5-to-4, Justices Harlan, Black, Clark, and Stewart dissenting. Id. at 387. 1370 See , e.g. , 387 U.S. at 377 (language suggesting both lines of reasoning). But see City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188 (2003) (ministerial acts associated with a referendum repealing a low-income hous- ing ordinance did not constitute state action, as the referendum process was facially neutral, and the potentially discriminatory repeal was never enforced).
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