In an otherwise routine ruling on a zoning dispute between two Gloucester neighbors over a proposed garage replacement, the Massachusetts Appeals Court announced today it will no longer use "grandfathering" or "grandfathered" in its decisions.
About halfway down in the ruling (over whether a couple could replace a decaying eyesore of a garage with a new one closer to the property line than allowed under town zoning) the state's highest court noted that "Section 6 of G. L. c. 40A provides a certain level of protection to all structures that predate applicable zoning restrictions," and then added a footnote to that, reading:
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).
Putting their judicial money where their mouths are: The Supreme Judicial Court and racial justice.