The Massachusetts Appeals Court has jettisoned the term ‘grandfathering’ from its lexicon, explaining in a recent case that is being phased out because ‘it has racist origins.’
Judge James R. Milkey wrote about the decision on Monday in a footnote from a dispute between two neighbors about zoning laws in Gloucester.
In this case, the term has been used to explain why new laws don’t apply to older structures or buildings that are protected due to their history.
‘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,’ Milkey wrote on Monday.
‘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.’
The term was created as a euphemism for what was a means to further suppress African Americans in the South during the brief Reconstruction era when the right to vote was only given to the literate or people whose descendants had the right to vote before 1867.
As Black people were prohibited from reading and writing during slavery and punished if they did so anyway, ‘grandfathering’ allowed white people to circumvent literacy tests and poll taxes.
The judge from the state’s second highest court cited Webster’s Third New International Dictionary 987 (2002).
Webster calls it ‘a clause creating an exemption based on circumstances previously existing. Especially: a provision in several southern state constitutions designed to enfranchise poor whites and disenfranchise blacks by waiving high voting requirements for descendants of men voting before 1867.’
The judge also cited a 1982 Columbia Law School Review study by former president of Yale, Benno C. Schmidt Jr., titled Principle and Prejudice: The Supreme Court and Race in the Progressive Era when explaining how the term helped white people maintain superiority.
In lieu of the euphemism, the judge explained that the owners of a waterfront property could replace their dilapidated garage with a fresh structure that is three feet taller than the original as long as it doesn’t further encroach on the new zoning rules.
‘Generally speaking, preexisting nonconforming structures lose the protection provided by the statute when the structures are extended or structural changes are made to them,’ the judge explained.
‘However, if the structure in question is a single or two-family residence, the statute provides an additional layer of protection.
‘Such structures can be modified, extended, or reconstructed as of right ‘so long as the ‘extended or altered’ structure ‘does not increase’ its “nonconforming nature.”‘