Sunday, September 27, 2020

The racist origins of "grandfathering"

A footnote in the Massachusetts case of Comstock v. Gloucester Zoning Board of Appeals made local news for its discussion of how the zoning term "grandfathering," often used to refer to non-conforming uses, had racist origins.  I just learned of the case, though, and thought I'd post that footnote here in case others had not come across the decision or its discussion, which I found interest.  Here is the footnote:

Providing such protection commonly is known -- in the case law and otherwise -- as "grandfathering." We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase "grandfather clause" originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867. See Webster's Third New International Dictionary 987 (2002) (definition of "grandfather clause"); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).

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