Massachusetts Court Bans Legal Term ‘Grandfathering’ Due to Racist Past

The Massachusetts Appeals Court banned the legal term “grandfathering” on Monday due to its origins in the racist history of the South, where “grandfather clauses” were used to deny black people the right to vote in the post-Civil War era.

In common parlance, to be “grandfathered” means being able to exercise a right or power that was granted by government in a previous era, before some new restriction was enacted. For example, many older skyscrapers in New York City today are able to evade new building codes because they are “grandfathered” out of having to obey many of the newer rules. In Massachusetts, 18-year-olds were recently “grandfathered” out of restrictions banning cigarette and vape sales to those under 21 if they had already turned 18 — the previous minimum age — by the date of the new regulation’s enactment.

However, the term has a specific origin in the post-Civil War South, where several states wrote “grandfather clauses” that restricted the right to vote after the adoption of the Fifteenth Amendment to the U.S. Constitution, which banned racial discrimination in voting rights. The states required black voters to pass certain tests to determine their eligibility to vote, but exempted those who had held the right to vote before the Civil War, and their descendants. These “grandfather clauses” allowed white Southerners to vote but limited the voting rights of black Southerners until the civil rights era.

The Boston Globe reported that in a decision about a local zoning dispute in the town of Gloucester, Massachusetts, the Appeals Court declared that the term “grandfathered in” would no longer be acceptable in the court due to its history:

A three-judge panel of the Massachusetts Appeals Court declared its disdain for the word, which has been used countless number of times by lawyers, judges, local governments to summarily explain why new zoning rules, for example, do not apply to existing buildings or home lots.

“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,’’ Judge James R. Milkey wrote in a footnote for the unanimous court, the state’s second highest.

Black’s Law Dictionary actually includes several definition of the term “grandfather clause,” including both the reference to the post-Civil War legislation, and the reference to the term as it is commonly used in ordinary codes and contracts.

Slavery was abolished in Massachusetts in 1783, and the state became a hotbed of abolitionist politics, though there has recently been an effort to ban words that might share some connotation with slavery. Last month, Breitbart News reported that left-wing alumni of Harvard University are attempting to change the name of the institution’s “Board of Overseers” because the term “overseer,” they say, was used during slavery to refer to someone who managed the work of slaves.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.