So, May of 2008 marked the 50th anniversary of the Supreme Court case Hurd v. Hodge, originating right here in Washington, DC, which found the enforcement of racial and religious covenants were unconstitutional. I recently researched the actual location of the house in question, 116 Bryant Street, NW (left) for the current owners, who had bought the house history at a
Bloomingdale Civic Association neighborhood fund raiser that we had donated it to.
What struck me was the arguments used to overturn racial and religious covenants and why they aren't used in gay civil rights cases today. It was important to note that the black lawyers and black homeowners of the day were fighting to overturn
all restrictive real estate covenants, not just those targeted at preventing a sale to black homeowners.
Today, the
Washington Blade ran a commentary piece I composed on the subject that you can read
here.
I'll post the unedited version below for your reading pleasure.
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The similarity between historic black civil rights and contemporary gay civil rights being fought in today’s courts cannot be overlooked. One old but significant civil rights argument is missing from legal cases being filed on behalf of gay rights today, however. Fifty years ago, in May of 1948, an argument was used by local lawyers to win the eventual Supreme Court case Hurd v. Hodge that found that the enforcement of racially restrictive covenants on real estate deeds was unconstitutional. The unusual argument used that year was the United States membership pledge to uphold the Charter of the newly formed United Nations.
By joining the UN, the United States had pledged on June 26, 1945 to “Universal respect for, and observance of, human rights and fundamental freedoms for all, without distinctions as to race, sex, language or religion.” Used successfully fifty years ago to ensure the equal rights of black property owners, this precedent seems to have all but been forgotten in today’s gay rights legal cases. Combined with additional arguments used in the 1948 case, the resulting Supreme Court opinion, and with a few word substitutions, one might begin to imagine that they are reading about the results of today’s gay marriage cases.
Most importantly, perhaps, is that the black leadership behind the successful Hurd v. Hodge case resulted in the lifting of all racial and religious deed covenants in place at the time, not just those targeting African-Americans.
Hurd v. Hodge originated along a picturesque row of three-story townhouses on the 100 block of Bryant Street, NW, nestled between the LeDroit Park and Bloomingdale neighborhoods. The houses between 114 and 130 Bryant St., were built in 1905 by the Middaugh and Shannon Company to the designs of architect Joseph Bohn, Jr. They cost $3,500 each and were sold with a new deed that included a restrictive covenant “prohibiting the sale of the house to anyone of the Negro race.” It also contained a $2,000 penalty if that were to occur, but it did not specify who would pay or benefit from the fee.
The house at 116 Bryant St., was sold to a white man by the name of Thomas P. Rooney on Dec. 5, 1905, who accepted the covenant. His family would reside there until 1942, when the property was sold to several different real estate agents over the course of the next several years. Covenants were aimed to keep blocks all white, and all did not specifically target African-Americans; others in Washington specifically prevented the sale to people of the Jewish faith, or those with Mexican, Native-American, Persian, Armenian and even targeted Syrian ancestry in some cases.
Unscrupulous white real estate agents were known to sell covenanted houses to black families at a higher price than they could to white families, if they both concealed the racial covenant on the deed. The hope was that enforcement would become moot when a number of black families purchased on the same block, and their white neighbors would sell their own homes to the very same agents at a deep discount, rather than challenge the earlier sales.
The house at 116 Bryant St., was sold on May 9, 1944 to a couple named James M. and Mary A. Hurd, the first black couple to own and occupy a house in the 100 block of Bryant Street with a covenant in place. Their white neighbors at 136 Bryant St., Frederic E. and Lena M. Hodge, initiated a District Court lawsuit to prevent them from owning or residing at 116 Bryant St., with their argument simply being the preservation of their housing value. As a sign of the times, the court ruled in their favor, and ordered the Hurds and other recently located black families on the street out of their homes.
Charles Hamilton Houston, then an aspiring black lawyer that would later rise to prominence, and others appealed the case, and argued that the “racial covenants [were] condemned alike by the great charters of our political life and by the leaders of moral and religious thought.” Somewhat ironically, only six Supreme Court Justices were set to hear the case because two of them, Rutledge and Jackson, had restrictive covenants on their own property, while Reed abstained.
New York attorney Thurgood Marshall stated on the second day of hearings that covenants “shove millions of Americans down to the level of second class citizens.” Houston said, “he and his clients were not out to change anybody’s private prejudices. But when those prejudices violate the constitutional rights of others, he said, the courts must not back them up with the force of law…Racism must go.” Fifty years later, in a gay rights case, he could have easily said “discrimination against sexual orientation must go.”
On May 3, 1948, the Supreme Court delivered a unanimous opinion with Chief Justice Fred M. Vinson stating “that judicial enforcement of restrictive covenants by the courts…is improper,” and cited the first Civil Rights Act of 1866 that states “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell hold, and convey real and personal property…and that the Negro petitioners have been denied that right by virtue of the action of the federal courts of the District is clear.” Fifty years later, in a gay civil rights case, Vinson could have easily substituted ‘heterosexual’ for ‘white.’
Opinions from those on the 100 block of Bryant Street varied, as may be expected, with disappointment reported from white owners, and relief amongst blacks, who had been overpaying for their homes, afraid their prior sales would be voided, or they would be fined $2,000. Local reactions seemed to focus only on the 100 block of Bryant St., and few were likely aware of the nationwide implications that the decision would have on millions of homeowners across the country.
After forty-three years of ownership and occupancy of 116 Bryant St., the Hurds sold their beloved house on May 8, 1987. Their courageous fight to challenge restrictive covenants that affected a multitude of races and religious backgrounds beyond their own race should be seen today as an inspirational message for black leaders weary of supporting gay rights, and as a significant historical legal precedent for those fighting the contemporary gay civil rights in today’s courts.
