con law: april 29 2010 class notes

coersion test, under establishment clause.

state action doctrine.


privately, you can discriminate.
but state action requirement ...

marsh v. AL -- this is private property. if someone were to leaflet in your bathroom, you have a trespass action, not a con law issue. but what is it about this case that bridges the issue for expression in this case, when the leafleting is happening on private property belonging to gulf? gulf has created a mini-government in someways (policing, public space maintenance, etc)... do they perform enough gov't like activity to become a government? j.black says that the more that gulf opens their property for public realm, the more it becomes public realm. how would that affect the leafletter in your bathroom? if you're trying to make a customer stream out of your bathroom, you may open yourself to con law issues because you've become a public forum.

if race consciousness is a bad thing, why let people have it?
why assign

state requirement is a "hydrolic check"

shelly v. kramer - racial covenant between HOA
if the shelleys had refused to sell to the shelleys, no con law issue (private)
they sell - no con law issue
animosity of the neighbors -- no con law issue
the neighbors go to court for an injunction -- now, a con law issue under 14th amd't

the potential is overbroadness from shelley v. kramer -- cause the parties can always call the cops...

pre-civil rights cases, lunch counter issues were trespass
bell v. MD: pre civil rights... is this the same as shelley v. kramer? no, because shelley is changing private ordering, and bell is supporting the private desires of the diner owner (though, after 1965, the diner owner would have statutory problems in discriminating sales)

you can find a gov't actor in the storyline in these kind of cases.

congressional power.
shurbert v. verner -- religious limits act is passed (sherbert test)

14th amd't, s. 5:
n.b. -- when US quotes marbury, they are really kickin their supremacy