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January 06, 2015


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I agree WAPO should certainly have mentioned their (relatively recent) legal unenforceability, but I'm also not sure Mr. Cohen's statement is necessarily incorrect in the broader sense.

What I mean is, given we only have a 1-liner quote in WAPO, it's possible Cohen meant it in the broader sense (socially impossible for him to live in Spring Valley at that time), rather than making an exaggeratedly narrow legal statement about the legal effect of the covenant.

(Or maybe I'm grasping at straws... been known to happen.)

Al Brophy

Yes, I think that's exactly right. Though the covenants were clearly unenforceable at law post Shelley and Hurd v. Hodge for DC, there may have been some shadow effect of the covenants. Social pressure may very well have kept owners from selling to members of the prohibited races and religions. Thus, this may be one of the many instances of the Jim Crow era where social practices contributed to segregation. And it reminds us that in the era when the covenants were enforceable that there was probably enormous social pressure against sale even without the threat of a lawsuit. As happens often, law may have been less relevant than ideology.

Al Brophy

One more thing, the Post article links to the Johnsons' affidavit. Here's a link to it:


Thanks, and thanks for directing attention to the link. Neat piece of history even if the gesture was largely symbolic in nature; it would still take a certain amount of moral courage for your average person to have done the same.

Serious question about the WAPO's failure to mention such covenants' prior unenforceability. Do you reckon the author was ignorant of this aspect? Or knew, but found it more in line with the telling of the story to omit this fact and go with the "Cohen could not have bought the house" angle?

Al Brophy

I'm certain that Karen Tumulty knew all about Shelley, but the article was fairly short and to tell the nuances of that part of the story would have required leaving other important pieces of it out. The law/norms distinction means a ton to us lawyers, but I think this reflects the general approach of even sophisticated lay readers. Whether prohibited by a contract (as is the case with racially restrictive covenants) or norms, African Americans could still not purchase property in that section of DC. This says a lot about the mindset leading into the Civil Rights Act of 1964, don't you think? And the Fair Housing Act as well.


:-) You're just too nice.

I would agree that at that time in DC, the norms prohibited not just African Americans but of course also the broad prohibition on "Semitic" peoples. If you think about what the drafters of that portion of such clauses were after (religious homogeneity - at least, that's what I think they were after), you have to wonder if it ever occurred to them there are large Christian populations in Iran, Syria, not to mention the vast majority of Armenians.

If you google these phrases from that clause you'll get some interesting hits:

"racial description shall" "Armenians, Jews, Hebrews, Persians"

One of them (linked below) describes a 1952 article about then Senator (and VP candidate) Nixon's 1951 purchase of a house in the same neighborhood, which noted the restrictive covenants and also remarked on their legal unenforceability.

Johnson of course was in the Senate at the time. I have to wonder if he didn't take note of the hubbub and keep it in mind as against the opportunity to eyepoke such covenants in the future.


(Hi, I responded a bit earlier but unthinkingly put a link in the comment, so it may be hung in the filter...)

Al Brophy

Concerned_Citizen, all really good points. I didn't know about the Nixon case.

Going back to his time in the Senate, Johnson refused to sign the Southern Manifesto. Perhaps that was a sign he had national political aspirations; perhaps also it was the right thing morally to do. Wouldn't surprise me if it was a combination of rationales.

I recall my judge telling a story about Johnson leaning on a Congressman, I think from Virginia, who'd signed the Southern Manifesto, right before Johnson nominated Marshall to the Supreme Court. The upshot was that Johnson told the Congressman he owed Johnson and Marshall support.

To expand on my Civil Rights Act of 1964 point a little -- I think that reflected the understanding that just outlawing government discrimination was not enough and that helped erase a lot of the boundaries between public and private discrimination. The covenants, though not legally enforceable, reflected those values of segregation and discrimination. I guess that's why the Fair Housing Act of 1968 was necessary.


Thanks Al.

I don't know much of the legislative history / floor talk (which is a sorry way of admitting I know nothing of it), but I have to think that legislators' knowledge of the existence of outdated (but still prevalent, even in D.C.!) social pressures preserving segregation motivated Acts like the FHA.

Simply making [written] covenants unenforceable would not have solved the problem of the [unwritten, social] covenants or constructs; at least, not so quickly without instruments like CRA and FHA. I'm one of those who thinks we've come a long way, Baby, in an historically short period of time. More to go? Sure. But progress is progress and I'll take it where I can.

As an aside, on my last househunting trip a few years ago I pulled covenants from the few neighborhoods I was considering, and one of them had restrictions that made me wonder about potential FHA claims. We ended up elsewhere for other reasons, so I just forgot the matter until this conversation.

Anyway, that neighborhood had a numeric occupancy restriction (e.g., not more than X persons per bedroom of the house) that did not seem tied to any local zoning or other restrictions. My suspicion at the time was that this restriction, while facially neutral, may have been sneakily intended to keep out certain groups stereotypically "known" for having multiple generations per household (take your pick).

Al Brophy

That's a really interesting question about the motivation behind those covenants. I take it they were put in in relatively recent years? I've seen those kinds of restrictions. But none that date to before the 1980s that I recall. There may have been some subtle, or maybe not so subtle, racially motivation behind them, but it might also be designed to discourage renters. As you suggest, this is a common zoning restriction.

Agreed on just how much change we've seen in the past fifty years.

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