ON PETITION FOR REHEARING.
Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton; Harlan took no part in the decision or consideration of this case.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is an action for damages brought by plaintiff, petitioner here, in the District Court of Woodbury County, Iowa, to compensate her for mental suffering claimed to flow from defendant cemetery's refusal to bury her husband, a Winnebago Indian, after services had been conducted at the grave site and the burial party had disbanded. Plaintiff founded her action, so far as here relevant, on breach of a contract whereby defendant had undertaken to afford plaintiff "Right of Sepulture" in a specified lot of its cemetery. The contract of sale of the burial lot also provided that
"burial privileges accrue only to members of the Caucasian race."
Plaintiff asserted that this provision was void under both the Iowa and the United States Constitutions and that recognition of its validity would violate the Fourteenth Amendment. By an amendment to the complaint, plaintiff also claimed a violation of the United Nations Charter. The defense was anchored in the validity of the clause as a bar to this action.
After an abortive attempt to remove the case to the federal courts, 102 F.Supp. 658, defendants moved to dismiss the amended petition in the state court. This motion was denied, except that insofar as the amendment to the petition had relied on the United Nations Charter, the amendment was dismissed. Following Iowa procedure, the trial court entertained motions by both parties requesting it to adjudicate prior to trial points of law relating to the effect of the restrictive covenant. The Iowa court ruled that the clause was not void but was unenforceable as a violation of the Constitutions and public policy of Iowa and the United States. Nevertheless,
it held that the clause "may be relied upon as a defense" and that "the action of a State or Federal court in permitting a defendant to stand upon the terms of its contract and to defend this action in court would not constitute state or federal action" contrary to the Fifth and Fourteenth Amendments. It again ruled that the United Nations Charter was irrelevant, and the case was finally dismissed.
The Supreme Court of Iowa affirmed, reasoning that the decision of this Court in Shelley v. Kraemer, 334 U.S. 1, when considered in conjunction with the Civil Rights Cases, 109 U.S. 3, did not require a state court to ignore such a provision in a contract when raised as a defense and in effect to reform the contract by enforcing it without regard to the clause. The court further ruled that the provisions of the United Nations Charter "have no bearing on the case" and that none of the grounds based on local law sustained the action. 245 Iowa 147, 60 N. W. 2d 110. We granted certiorari, 347 U.S. 942.
The basis for petitioner's resort to this Court was primarily the Fourteenth Amendment, through the Due Process and Equal Protection Clauses. Only if a State deprives any person or denies him enforcement of a right guaranteed by the Fourteenth Amendment can its protection be invoked. Such a claim involves the threshold problem whether, in the circumstances of this case, what Iowa, through its courts, did amounted to "state action." This is a complicated problem which for long has divided opinion in this Court. See, e. g., Raymond v. Chicago Traction Co., 207 U.S. 20; Snowden v. Hughes, 321 U.S. 1; Terry v. Adams, 345 U.S. 461. See also, Barrows v. Jackson, 346 U.S. 249. Were this hurdle cleared, the ultimate substantive question, whether in the circumstances of this case the action complained of was condemned by the Fourteenth Amendment, would in turn present no easy constitutional problem.
The case was argued here and the stark fact is that the Court was evenly divided. 348 U.S. 880. In accordance with undeviating practice, no indication was given regarding the grounds of this division.
In addition to the familiar though vexing problems of constitutional law, there was reference in the opinions of the Iowa courts and in the briefs of counsel to the United Nations Charter. The Iowa courts dismissed summarily the claim that some of the general and hortatory language of this Treaty, which so far as the United States is concerned is itself an exercise of the treaty-making power under the Constitution, constituted a limitation on the rights of the States and of persons otherwise reserved to them under the Constitution. It is a redundancy to ...