It was evidently a fairly common practice in some states, notably Missouri (where the SCOTUS case was in reference to). Heinlein’s last novel To Sail Beyond the Sunset, though fictional, includes a description of racist restrictive covenants based on Heinlein’s own parents’ experience with it while he was growing up, as was detailed in some biographical data.
I know of a cemetery that has a clause baring blacks from being buried there. Its one of those small plots in a small town where only a few families are represented and everyone knows who ends up there. I’m sure here is another cemetery somewhere nearby where the non-white people get buried. I would bet that the restriction is carried on informally, as in , “I can see my ancestors didn’t want certain people to be buried beside them so I won’t sell plots to those people” (not my policy - just an example.)
When my parents bought their cemetery plots, in the mid-'60s, the cemetery was whites-only. I have no idea if they were aware of this or approved of it; I am certain they bought them in an emotional state because my mother was dying. I didn’t know about it till my father died in 1989 and I had to find the deed to bury him.
I just called the cemetery and asked if that policy was still in effect. The woman on the phone gasped with astonishment and said “No, no, no!”
Sure, but that’s the analysis for a restrictive covenant in a deed, which wasn’t the question posed in the OP. If a private club won’t take black members and simply refuses to give them membership, the club is not asking for the courts to enforce anything. There is no contract of membership, because they refused to enter into one with the black person, so the 14th Amendment would not come into play in that scenario. A black person refused membership couldn’t sue the club on the basis that the club infringed the 14th Amendment, could he?
A black person might be able to sue under a state anti-discrimination law, as was the case in Roberts, but that’s a different issue from the one I was responding to, from the OP and post # 2, which suggested that such a membership policy would be contrary to the 14th Amendment.
If I were the keeper or lawyer of such restrictive clubs and homeowners with such language that would be impossible to change, I’d just change it. I mean, somebody has to print out new copiers for prospective members/homebuyers to sign right? The document’s probably typed up in Word right? Just delete it, screw the 75% voting requirement
I think it would cause a bigger mess if somebody complained and tried to insert such discriminatory back into the document. My answer to them would be “I deleted the race clause. Try and stop me”
I think it would be a far bigger mess if someone were to claim in court that the title transfer was invalid because clauses were willfully omitted. That could cause some big time problems, and if financial losses are incurred could open you up to a lawsuit. IANAL, but I can see it happening.
Now, some states have passed laws that allow for the relatively simple removal of these provisions from titles since they have no legal force. I think either petitioning for such a removal if your state has such a law, or persuading your state to pass one, is a much better use of your time than screwing around with titles when you don’t know the ramifications of that action.
They could try to argue that, I suppose, but I doubt that they would be effective. Conveyance of a property is not rendered invalid just because you failed to give notice of a restrictive covenant. Moreover, since one of the requirements for the covenant to run is notice, it stands to reason (1) the covenant would cease to run, and (2) the law contemplates valid conveyances of property where notice is absent.
Thus, there is some reason to believe that simple redaction from the CC&R’s is the most efficient way of expunging unenforceable but still distasteful racially-restrictive covenants.
Oh great. Yeah, that’s really the appropriate way to handle it.
Please no one suggest this idea to our HOA president. She’s already rewritten the history of our area to describe the many happy salmon that used our ponds and creeks, even though the “ponds and creeks” consisted of man-made drainage ditches and retention ponds used for raising cattle, which were removed and made into new man-made drainage ditches and a decorative pond to go with the park and playground. She’s already in the process of declaring it a protected wetland (by simply putting up a sign saying so) and would quit happily have the county take it over so that we can’t keep using it as a park. If she thought she could rewrite CC&Rs to redact what she’d call offensive and out-dated anti-environmental policies, she would.
Frankly, even if I lived under a version of the Nuremberg laws, I’d rather see them changed through official, legal means than to see someone just step in to lend a hand.
Citation, please? 
I’d like one as well. Frankly if it were that simple I wouldn’t think that these would have hung around so long, or that states would pass legislation to address the matter.
First as for resturants and such employing only a certain “type” of people. This is accetable in some cases, usually it involves business with less a certain number of employees (it’s like five or ten). They are exempt from by and the courts have backed that up. Basically it’s because the business is not simply presenting a food service, but also an “ethnic experience.” This is why in Chinese resturants you are more apt to see Chinese waiters, whether or not they speak Chinese, or even in reality are Chinese. It’s like going to a play about Martin Luther King Jr and seeing a Korean playing his part. Maybe the Korean man IS the best actor, but as you can see it’s a little bit more than just being the best actor.
The second thing is the issue of “private” clubs. A club in order to not have to deal with the 14th amendment has to TRULY be private. And there are some guidelines the courts have issued through the years.
Almost without exception, the courts have rules if a group takes public funds, they are NOT a private company. This can range from a government backed loan to tax-exempt status. It complicates matters because these ruling vary from jurisdiction to jurisdiction. So one ruling in one state may not match a federal regulation or even a state regulation in another part of the state
This complicates when the issues of religion adds in because you are adding in consitutional isses as well as local and federal laws. As you know the religion factor would trump any local or federal law.
Also remember that a ruling by the high courts, they usually limit themselves to discussing the particular of why the law is wrong not the general method. For example if I say the "Acme Law.’ is unconstiutional because of the “Coyote Statute,” and the high court agrees the “Acme Law” is in fact wrong, but not because of the "Coyote Statute, but rather the “Road Runner Bill Rider,” often the court will not declare the law unconstitutional but simply rule the “coyote statute” didn’t apply and wait for someone to sue based on the “road runner bill rider,” and THEN declare it unconstitutional
Real Estate Lawyer to Client: This obnoxious clause has no legal effect, but technically we’re required by the terms of the previous deed to include it in this deed. So if we include it in the deed, we’ll be sure we’re passing good title, and it won’t actually mean anything.
Client: And if we don’t include it?
Real Estate Lawyer to Client: There is some reason to believe that we can still pass good title without the clause.
Client: “Some reason to believe?” but you’re not sure?
Real Estate Lawyer to Client: Uh, no, I’m not sure.
Client: And if you’re wrong?
Real Estate Lawyer to Client: The other party may be able to sue you for failure to pass good title, and if he’s successful in his action against you, you can sue me for negligence.
Client: I think I want you to include it in the deed.
This sort of thing is why making changes to the law generally is better done by the legislature, and also why lawyers take a cautious approach to deeds. Private citizens, no matter how well intentioned, shouldn’t have to be potentially on the hook legally for what is a larger legal problem.
You know the rules for covenants to run. Do you dispute that property can be validly conveyed even if grantee is not notified (by actual, inquiry, or record notice)? Do you dispute that if grantee is not notified, the covenant ceases to run?
What result do you contend would occur in the hypothetical (assume all sources of notice to the grantee are altered, but that it remains possible to prove the prior existence of this covenant in court)?
Section 33.05 of this link identifies two cardinal defenses to enforcement of a covenant as (1) abandonment, and (2) changed conditions. Whether you want to claim that the illegality of racially-restrictive covenants have caused their abandonment or that changed social conditions no longer make all-white neighborhoods a viable “benefit” for homeowners is up to you. A court would readily embrace either.
Although this scotches my hypothesis of no notice to grantee, I bet you dollars to doughnuts he takes good title even if he knows they just cut out the unenforceable racially-restrictive covenant.
But where does the pancake on the bunny’s head fit into that? 
If we’re in a pub, having a nice shop talk after work, I wouldn’t take that bet. 
But I don’t advise my clients to gamble on their legal rights when there is an aesthetically unpleasing but legally harmless way to protect their legal interests.
I see. “There is some reason to believe” means that you think that you have a valid legal analysis. I was thinking you actually had someone else having provided that argument, either in a decided case, or in some law review article. 
I know from caddying at one that there are Jewish-only country clubs in the U.S… At the club I worked at (just outside Chicago, when I was in high school (late 1990s)), members had to be Jewish, but guests weren’t restricted, I don’t think. I’m fairly sure that caddies had to be Jewish by policy, but, not being Jewish myself, I wasn’t about ask.
Given the historical discrimination that exclusively Jewish clubs came into existence in response to, I wouldn’t ever say that exclusivity is in any way unethical in this case, of course. I mention it only as anecdotal evidence that restriction by race/religion must still be legal in some places.
Many states still keep separation around in their matrimonial law. Separation is completely pointless; nevertheless, in clinic, I would have clients who were gun-shy above getting divorced and would ask for a separation. I would explain “No, separation is stupid, all it does is stop the accumulation of marital property, largely in contemplation of a future divorce. But you don’t have to wait, you could just divorce now. Or stay married, if that’s what you want.”
Then they would come around and realize that the separation was just some relic they heard about on teevee.
Why doesn’t the state just get rid of musty old separation? I don’t know. It sure can’t be to leave this option open to couples who want to stop accumulating marital property and start living apart but not, for whatever reason, to actually divorce each other. Have you ever encountered such a creature? No, you have not.
I guess it’s because people just think inertia, which is a pernicious trend in the law, just can’t be overcome. But every now and again, the law actually will countenance swift, bold action. In these instances, such as simply deleting the offending unenforceable racially-restrictive covenant, the correct approach is not, like the frogs and the stork, to ask for ever more elaborate covenant-terminating rituals from the state government but rather a judicious moment of derring-do is called for.
Kimmy:
If confronted by an actual client, would you advise your client to solve his restrictive covenant issue by this self-help method?