concurring:
Appellants in this action are a group of District of Columbia residents representing the class of homeowners whose property is burdened by illegal1 racial covenants2 They instituted this suit in order to enjoin the Recorder of Deeds from accepting such covenants for filing in the future. Moreover, they seek certain corrective measures which would withdraw state approval from restrictive covenants already on file. Specifically, they ask for a declaration that their rights have been violated by the recording of racial covenants, for an order requiring the Recorder to affix a sticker on each liber volume stating that restrictive covenants found therein are null and void, and for an injunction preventing the Recorder from providing copies of instruments on file unless a similar notice is attached to the copies. When the District Court dismissed their complaint, appellants renewed their arguments in this court. A three-judge panel held that the District Court should be affirmed, whereupon a majority of the judges of this court voted to reconsider the case en banc. We reverse.
For decades, the Recorder’s office has accepted these covenants for filing and maintained them as public records.3 Appellants contend that this official legiti*632mization of racist agreements so deeply involves the state in private discrimination as to violate the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Cf. Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948). Moreover, appellants argue, even if the Recorder’s actions are constitutional, they entail the making and publication of a notice or statement of a racial preference with respect to the sale of a dwelling and, hence, are unlawful under Title VIII of the Fair Housing Act of 1968. See note 1 supra. Finally, appellants point to local statutes which permit the Recorder to accept only those documents “affecting the title or ownership of real estate,” 45 D.C. Code § 701(a) (1) (1967), and which forbid him from recording instruments “not * * * executed * * * agreeably to law.” 45 D.C.Code § 503 (1967). Since restrictive covenants have not affected “the title or ownership of real estate” since Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and have not been “agreeabl[e] to law” since passage of the Fair Housing Act of 1968, appellants argue, the Recorder exceeds his statutory mandate when he accepts these documents for filing.
In response, appellees decline to meet appellants’ constitutional argument. Instead, they contend that exclusion of restrictive covenants is not required by the Fair Housing Act, that such an exclusionary rule would be burdensome to administer and beyond the Recorder’s statutory authority, and that in any case appellants suffer no harm because of the void covenants. For the reasons stated below, we find each of appellees’ arguments unconvincing. Although they can be attacked separately on their respective merits, it is worth observing at the outset that in the aggregate they amount to no more than the sort of lame excuses for denial of racial justice which the Supreme Court rejected long ago. See, e. g., Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 234, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Barrows v. Jackson, 346 U.S. 249, 257-259, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).
The evils emanating from governmental acceptance of housing discrimination permeate our entire society. Generations of governmental participation in racial zoning have yielded a bitter harvest of racially segregated schools, unequal employment opportunity, deplorable overcrowding in our center cities, and virtually intractable racial polarization. See Hearings Before the Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency on S. 1358 etc., 90th Cong., 1st Sess., at 46-47 (1967); Report of the National Advisory Commission on Civil Disorders 204, 244-245 (N.Y. Times paperback ed. 1968). It is too late in the day to argue that it is burdensome to correct these historic wrongs, or that government officials lack statutory authority to do so. These are the sorts of arguments which “have no place in the jurisprudence of a nation striving to rejoin the human race,” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 449 n. 6, 88 S.Ct. 2186, 2208, 20 L.Ed.2d 1189 (1968) (Mr. Justice Douglas, concurring), and which we accept at the peril of incurring a racial holocaust.
I. Appellants’ Statutory Arguments
A. The Fair Housing Act of 1968
Title VIII of the Fair Housing Act of 1968, 42 U.S.C. § 3604(c) (1970), makes it unlawful, with certain exceptions, “[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, or national origin, or an inten*633tion to make any such preference, limitation, or discrimination.”
In its opinion accompanying dismissal of appellants’ complaint, the District Court found that the “plain import” of these words prohibited no more than conventional advertising indicating a racial preference. “[T]he language cannot reasonably be tortured to embrace anything more.” With due respect to Judge Corcoran, it seems clear to us that no “torturing” is required to extract more than this rigid result from the statutory language. On its face the Act prohibits making or publishing any “notice, statement, or advertisement” indicating a racial preference. (Emphasis added.) Unless the words “notice” and “statement” are to be treated as surplus-age, they must mean that the Act prohibits at least some communications which cannot be classified as advertisements. Although the legislative history r of this section is sparse, it indicates beyond doubt that, as the words themselves suggest, Congress intended to go beyond advertising to reach other sorts of “notices” and “statements” as well. See, e. g., Hearings Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. 3296 etc., 89th Cong., 2d Sess., at 1105 (1966). Of course, the main purpose of a restrictive covenant is to give notice of a racial preference. And even if the word “notice” is defined in its narrowest possible sense, the covenants surely fall within the broader category of “statements.”
Nor can it be doubted that when the Recorder files restrictive covenants he “make[s], print[s], [and] publishes]” these notices and statements. It might be argued that the Recorder prints the covenants when he causes them to be reproduced for purposes of preservation and inspection. But more broadly, he certainly publishes them by collecting them in a manner that facilitates access to them by prospective buyers. Black’s Law Dictionary at 1396 (4th ed. 1951) defines “publication” as “to exhibit, display, disclose or reveal.” The whole purpose of the Recorder’s office is to exhibit deeds in a convenient fashion so as to disclose or reveal possible clouds on the chain of title. To be sure, the Recorder does not “publish” the deeds in the sense that a newspaper publishes news copy. But we must, of course, presume that the statute was carefully drafted and that no part of it is redundant. If the framers had intended to limit the clause to publication of racial preferences in newspapers, the prohibition against “printing” notices and statements would have been sufficient to serve their purpose. The additional proscription against “publication” should therefore be read more broadly to bar all devices for making public racial preferences in the sale of real estate, whether or not they involve the printing process. Cf., e. g., In re Publishing Docket in Local Newspaper, 266 Mo. 48, 49, 187 S.W. 1174, 1175 (1913). And when the clause is so read, it can scarcely be doubted that the Recorder’s publication of racial covenants falls squarely within the statutory prohibition.
Finally, the statute’s effect is limited to making, printing and publishing notices, statements and advertisements “with respect to the sale or rental of a dwelling that indicates any [racial] preference.” Appellees argue that the statute is directed at the real estate industry, with which the Recorder has no connection. Real estate agents, they say, violate the statute by printing or publishing the racial convenants “with respect to the sale * * * of a dwelling,” whereas the Recorder merely records the racial covenants in the public record. But there is, of course, nothing in the statute which limits its effectiveness to real estate agents. “Unlike other sections of the Fair Housing title, § 3604 (c) does not provide any specific exemptions or designate the persons covered, but rather * * * applies on its face to ‘anyone’ printing or publishing illegal advertisements.” United States v. Hunter, 4 Cir., 459 F.2d 205, 210 (1972) (footnote omitted). The statute prohibits notices of racial preference in *634the transfer of real estate however published, including, presumably, publication in the public records of the District of Columbia. The “with respect” clause obviously modifies the words “notice, statement, or advertisement” immediately preceding it in the statute rather than the words “make, print, or publish.” It describes the type of notice prohibited, not the mode or the author of the publication. A contrary reading of the statute would mean that a homeowner could publish in a newspaper an advertisement offering to sell his house indicating a racial preference, since newspapers are no more an arm of the real estate industry than is the Recorder. Yet the courts have clearly held that newspaper advertisements indicating a racial preference fall within the central prohibitions of the Act. See, e. g., United States v. Hunter, supra, 459 F.2d at 210. Whatever one thinks of the relationship between the Recorder and the real estate industry, it surely cannot be doubted that racially restrictive covenants have the purpose and effect of indicating a racial preference “with respect to the sale * * * of a dwelling.” It follows that the Recorder’s actions with regard to these covenants are prohibited by the Act even if they do not themselves directly involve the “sale * * * of a dwelling.”
Moreover, assuming arguendo that the “with respect” clause was intended to modify the words “make, print, or publish,” we still think the clause describes the Recorder’s conduct. We think it beyond dispute that virtually all of the Recorder’s activities, including his publication of racially restrictive covenants, are undertaken “with respect to the sale * * * of * * * dwelling[s].” It blinks reality to suggest that the official functions of the Recorder are unrelated to the transfer and sale of real estate. The Recorder’s office is not a museum where scholars come to examine old deeds out of disinterested curiosity. It is, rather, a place where prospective buyers or their agents can quickly and easily determine the soundness of the title they are acquiring. We can take judicial notice of the fact that a visit to the Recorder’s office is an ingredient in virtually every real estate transaction in this city and that, conversely, virtually everyone who visits the Recorder’s office is involved in the real estate market. To say that the Recorder’s publication of deeds is unconnected with the “sale or rental of * * * dwelling [s]” is to overlook the fact that such a sale may be ineffective as against a bona fide purchaser unless the deed is recorded. See 45 D.C.Code § 501 (1967). More fundamentally, such a restriction on the statutory language would ignore the day-to-day responsibilities of the Recorder’s office and pointlessly limit the applicability of the Fair Housing Act.
Thus a careful textual examination of 42 U.S.C. § 3604(c) makes clear that the Recorder’s activity falls within its ambit. It is unnecessary to rest upon the words of the statute alone, however, since a purposive analysis of the provision yields precisely the same result. True, there is nothing in the legislative history tending either to support or to refute the inference arising from the language that the Act prohibits statements of racial preference emanating from the Recorder’s office. In all likelihood, few congressmen even addressed their thinking to this particular problem. But no court has ever held that Congress must specifically indicate how a statute should be applied in every case before the judiciary can go about the business of applying it. In Daniel v. Paul, 395 U.S. 298, 307, 89 S.Ct. 1697, 1702, 23 L.Ed.2d 318 (1969), for example, the Supreme Court recognized that “most of the discussion in Congress regarding the coverage of Title II [of the 1964 Civil Rights Act] focused on places of spectator entertainment rather than recreational areas.” Nonetheless, the Court held the Act applicable to a lake club with boating and dancing facilities, remarking that the Act’s coverage should not be “restricted to the primary objects of Congress’ concern” since the purpose of the law was “to remove the daily affront and *635humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.” Id. at 307-308, 89 S.Ct. at 1702.
Similarly, Congress has clearly stated that the purpose of the Fair Housing Act is “to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601 (1970). Reading Section 3604(c) to forbid the Recorder from frustrating this purpose by placing the authority of government behind illegal housing discrimination is at least consistent with, if not compelled by, ordinary canons of statutory construction. It is well established that civil rights statutes should be read expansively in order to fulfill their purpose. See Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Daniel v. Paul, supra. There is no reason why our reading of Section 3604(c) should not comport with this rule.4
Moreover, the contrary reading of the statute adopted by the District Court leads to anomalous results indeed. Such a reading authorizes governmental participation in what is now universally conceded to be an illegal endeavor — viz., maintenance of a segregated housing market. It need hardly be pointed out that the strongest sort of public policy considerations argue against a construction of the statute which would permit government to become a co-conspirator in this illegal scheme. See Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Cf. Tank Truck Rentals, Inc. v. Commissioner of Internal Revenue, 356 U.S. 30, 78 S.Ct. 507, 2 L.Ed.2d 562 (1958).
Furthermore, the District Court’s reading of the statute would carve out a narrow exception to the statutory provision for the benefit of government officials. If private individuals attempted to publish or circulate racial covenants, their activity would clearly violate Section 3604(e). See note 1 supra. Yet under the opinion of the District Court, because it is a government official who violates the statutory command his activity is somehow insulated from judicial control. This position turns the old “state action” controversy on its head. Ever since the Civil Rights Cases were decided almost a century ago, it has been thought necessary to show some degree of state involvement before private discriminatory decisions could be judicially controlled.5 See Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). It is simply too late in the day now to say that judicial control is impossible for the very reason that the state is involved. Whatever one thinks of state action as a viable limiting principle on the constitutional command of equality, it should at least be clear that the most outrageous deprivations of equal rights are those perpetrated by the state itself. Surely Congress must have been aware of this principle — sanctified by 100 years of “state action” litigation — when it voted to enact Section 3604(c). We are unwilling to believe that the legislators who voted for that Act intended to exempt the most serious offenses from its coverage.
B. Local Statutes
In reply to these contentions, appel-lees argue that, even if Section 3604(c) can be read as precluding registration of racial covenants, local legislation in the District of Columbia Code prevents the Recorder from instituting the relief requested. The Recorder, they point *636out, is a ministerial officer who is bound to accept all deeds tendered to him without exercising any independent discretion.
This argument is totally without merit. In the first place, even if we assume that the Recorder is acting under statutory compulsion when he records racial covenants, this fact alone does not insulate his conduct from judicial review. The local statute which sets out the powers of the Recorder of Deeds can hardly be supposed to preempt the Fair Housing Act of 1968. Indeed, the 1968 Act explicitly provides that “any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid.”6 42 U.S.C. § 3615 (1970). 42 U.S.C. § 3602(f) (1970), in turn, defines “ [discriminatory housing practice” to mean “an act that is unlawful under section 3604 * * * of this title.” And, as argued above, recordation of restrictive covenants is made unlawful by 42 U.S.C. § 3604(c). It follows that if a part of the District of Columbia Code really forces the Recorder to violate appellants’ Section 3604 rights, then that portion of the Code is pro tanto unlawful.
It is unnecessary for us to invalidate any provision of the District of Columbia Code, however, since we fail to perceive the statutory conflict which troubles appellees. On the contrary, as we read the local provisions, the Recorder has no choice but to reject deeds which indicate a racial preference. Thus, while it must be conceded that the Recorder is, for most purposes, a ministerial officer, 45 D.C.Code § 701(a) (1) makes clear that he is required to record only those instruments “affecting the title or ownership of real estate.” Of course, it is uncontested that after Shelley v. Kraemer, supra, a restrictive covenant can have no effect on title or ownership. Moreover, the Police Regulations of the District of Columbia, Article 45, Section 3(b), make it illegal to include restrictive covenants in deeds, see note 1 supra, and 45 D.C.Code § 503 forbids the Recorder from recording “any instrument which shall not be executed and acknowledged agreeably to law.” Since restrictive covenants are not executed “agreeably to law,” the Recorder exceeds his statutory mandate when he accepts them for filing.
It is true that the old case of Dancy v. Clark, 24 App.D.C. 487 (1905), states that “the recorder of deeds is in the category of ministerial officers, and has no jurisdiction to pass upon the validity of instruments of writing presented to him for record.” Id. at 499. But that case was decided years before it was imagined that inclusion of racial covenants in deeds would be made illegal or that state involvement with restrictive covenants was a wrong of constitutional magnitude. It stretches credulity to the breaking point to suppose that the Dancy court was able to foresee the 67 years of statutory and constitutional history which have transpired since its decision. Nor is there anything in Dancy to support the proposition that the Recorder is bound to accept a document when, by so doing, he exceeds his statutory powers and commits an injury of constitutional proportions. See pages 637-640 infra. Indeed, the Dancy court itself recognized that when a document is facially invalid the Recorder is justified in refusing it.7 Of course, restrictive covenants have been facially *637invalid since Shelley v. Kraemer, supra, was decided in 1948.
Thus, whether the Recorder’s duties are viewed as discretionary or ministerial, it should at least be clear that he has not been invested with authority to break the law. We refuse to accept the paradoxical proposition that the very restrictions on the Recorder’s powers which, for most purposes, make his action ministerial somehow enlarge his authority and permit him to exceed the statutory limits put on his jurisdiction. We think the statutes restricting the Recorder to the filing of instruments “affecting the title or ownership of real estate” and “executed * * * agreeably to law” mean what they say and they are not to be flouted on the sophistic theory that the limits placed on the Recorder restrict his power to obey those limi-i.
II. Appellants’ Constitutional Argument
It must be owned that the statutory arguments made above may not be entirely free from doubt. Under the circumstances, we think it appropriate to add a few words about another principle which influences our opinion. It is, of course, elementary that courts, where possible, construe a statute so as to avoid the necessity of declaring it unconstitutional. See, e. g., United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 97 L.Ed. 770 (1953); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932); Lucas v. Alexander, 279 U.S. 573, 577, 49 S.Ct. 426, 73 L.Ed. 851 (1929). Thus if a construction of the local statutes which authorized or required the Recorder to accept restrictive covenants would mandate state action denying black citizens equal protection of the laws, that construction should, if possible, be avoided.
A. State Action
Any discussion of state action and equal protection must begin with a delineation of the boundaries which have defined controversies like this since Reconstruction. On the one hand, Civil Rights Cases, supra, makes clear that “[i]ndividual invasion of individual rights is not the subject-matter of the [Fourteenth] amendment.” 109 U.S. at 11, 3 S.Ct. at 21. At the other extreme, cases like Virginia v. Rives, 100 U.S. (10 Otto) 313, 318, 25 L.Ed. 667 (1880), teach that “a State may act through different agencies, — either by its legislative, its executive, or its judicial authorities; and the prohibitions of the [Fourteenth] amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another.”
Of course, it is no easy matter to determine where “action of the State” leaves off and “[individual invasion of individual rights” begins. As governmental responsibility for racism was more clearly perceived, the old “state action” formulation ceased to provide a bright-line test for the limits of constitutional equality. See, e. g., Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), affirmed after remand, sub nom. Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970). Indeed, the Supreme Court itself has now conceded that “to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an ‘impossible task’ which ‘This Court has never attempted.’ ” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). This difficulty in formulating precise, principled rules for the limits *638of state action8 has led numerous commentators to suggest that the concept be jettisoned altogether, to be replaced by some test which balances individual interests in equality against competing interests in privacy. See, e. g., Black, The Supreme Court, 1966 Term, Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv.L.Rev. 69 (1967); Henkin, Shelley v. Kraemer: Notes for a Revised Opinion, 110 U.Pa.L.Rev. 473 (1962); Williams, The Twilight of State Action, 41 Tex. L.Rev. 348 (1963). “State action,” these commentators argue, fails to dictate decisions in close cases.
Fortunately, it is unnecessary to mediate this scholarly dispute, since this is not a close case. Whatever the vagaries of “state action” at the margin, the core concepts remain clear. When the state acts directly and unambiguously in a discriminatory manner, it violates the basic command of the Fourteenth Amendment. Cf. Commonwealth of Pennsylvania v. Brown, 3 Cir., 392 F.2d 120, 125, cert. denied, 391 U.S. 921, 88 S.Ct. 1811, 20 L.Ed.2d 657 (1968). We are not dealing here with a case where tangential state involvement is used to implicate otherwise private activity with “state action.” See, e. g., Burton v. Wilmington Parking Authority, supra; Simkins v. Moses H. Cone Memorial Hospital, 4 Cir., 323 F.2d 959 (1963); Green v. Kennedy, D.D.C., 309 F.Supp. 1127, appeal dismissed, sub nom. Cannon v. Green, 398 U.S. 956, 90 S.Ct. 2169, 26 L.Ed.2d 539 (1970). Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-177, 92 S.Ct. 1965, 1971-1974, 32 L.Ed.2d 627 (1972). Nor is it even a situation in which a facially neutral government statute or policy has the effect in certain situations of denying racial justice. See Hunter v. Erickson, supra; Reitman v. Mulkey, supra. The Recorder of Deeds is a state official, and the activities of the Recorder’s office are a state responsibility. The Recorder has made a policy decision to consider illegal, racist covenants as documents “affecting the title or ownership of real estate.” See 45 D.C.Code § 701(a) (1). If the concept of “state action” has any meaning at all, then that decision is a state decision for which the state is fully responsible.
B. Deprivation of Equal Rights
Of course, a mere showing of state action is insufficient to make out an equal protection clause claim. It must also be shown that the state action has the purpose and effect of discriminating against an identifiable class in an irrational or invidious manner. See, e. g., Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). In cases involving economic or social regulation not approaching sensitive and fundamental personal rights, government traditionally need show only that the state action serves some rational or legitimate purpose in order to defeat a claim of discrimination. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Compare Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 171, 92 S.Ct. 1400, 1405, 31 L.Ed. 2d 768 (1972). But cases such as this one, involving alleged discrimination along racial lines, are treated differently. They are “closely scrutinized,” see, e. g., Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), and this close scrutiny usually involves a careful balancing of a legitimate governmental purpose against the discriminatory effect of the state action.
Frequently this balancing is a difficult and delicate operation, trenching as it undeniably does upon the functions traditionally performed by legislatures. In this case, however, our scale need not be finely attuned, since there is nothing at all on one side of the balance. Simply *639put, there is no legitimate governmental interest which could possibly be served by accepting restrictive covenants for filing. These documents are analogous to forged instruments or correspondence containing threats for the purpose of extortion in that they are entirely outside the law. They are illegal to execute and illegal to enforce. Even if we assume that the Recorder’s office serves as no more than a repository or storage facility, the state has no legitimate interest in protecting and preserving these malignant instruments of persecution.9
But of course the Recorder’s office is more than a repository. It is designed not so much to store deeds for posterity as to give them some legal effect. Such a purpose with respect to restrictive covenants is violative of both the Fair Housing Act10 and the Fourteenth Amendment.11 If the courts cannot enforce racial covenants in the exercise of their general common law powers, Shelley v. Kraemer, supra, then surely the Recorder cannot effectuate them by administrative fiat.
The best that can be said for the Recorder is that his approval of these racial classifications serves no purpose— that his actions are no more than a thoughtless, noninvidious consequence of bureaucratic inertia. But bureaucratic inertia is hardly a compelling justification for preservation of this relic from an age which should have been long dead. The racism which continues to haunt this country is perpetuated by those who do not care as well as by those who hate. It provides scant comfort to blacks trapped in the slums of our inner cities to know that their jailers are thoughtless rather than heartless.12
The flimsy nature of the state’s asserted interest in recording restrictive covenants means that even a marginal showing of discriminatory effect would be sufficient to tip the balance in appellants’ favor. In truth, however, the discriminatory effect of the Recorder’s practices is quite substantial. The fact that private individuals initiate the discriminatory conduct neither explains the Recorder’s actions nor expiates his re*640sponsibility. Supreme Court “cases make clear that the impetus for the forbidden discrimination need not originate with the State if it is state action that enforces privately originated discrimination.” Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 172, 92 S.Ct. at 1971. The Recorder’s manifest encouragement of private discrimination is offensive to equal protection quite apart from the activity of private citizens who seize upon his actions to justify their illegal conduct. The state is not permitted to “[furnish] a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another.” Anderson v. Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 456, 11 L.Ed.2d 430 (1964). By accepting restrictive covenants for official filing, the Recorder puts government’s seal of approval on racist documents deeply offensive to black citizens and thereby “affect [s] their hearts and minds in a way unlikely ever to be undone.” Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). Moreover, this court can take judicial notice of the fact that official recording of these documents is likely to give them a legitimacy and effectiveness in the eyes of laymen which they do not have in law. It is certainly not beyond the realm of possibility that a black person might be reluctant to buy a home in a white neighborhood when government itself implicitly recognizes racially restrictive covenants as “affecting the title or ownership of real estate.” Indeed, the white character of that part of the District where recorded racist covenants abound stands as mute testimony to their continued effectiveness.
Finally, even if the subtle but real damage described above is considered too remote or speculative to receive judicial recognition, it still cannot be said that appellants have failed to make out a constitutional claim. “The vice lies not in the resulting injury but in the placing of the power of the State behind a racial classification that induces racial prejudice * * Anderson v. Martin, supra, 375 U.S. at 402, 84 S.Ct. at 456. Such classifications bear a “heavy burden of justification,” Loving v. Virginia, supra, 388 U.S. at 9, and it has never been thought necessary to prove that actual harm derives from them before they can be invalidated. See Bryant v. State Board of Assessment of N.C., E.D.N.C., 293 F.Supp. 1379 (1968); Hamm v. Virginia State Board of Elections, E.D.Va., 230 F.Supp. 156 (1964). Instead, the burden of proof is on government to demonstrate some strong reason which justifies the classification. See McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Lee v. Nyquist, W.D.N.Y., 318 F.Supp. 710, 719 (1970). Yet, as demonstrated above, appellees here have not even begun to make such a demonstration. Unless we are prepared, at this late date, to give up the battle for racial justice in the name of blind obeisance to the doctrine of judicial restraint, the Recorder’s practices cannot be permitted to continue.
III. Appellees’ Contentions
If we understand appellees’ position correctly, they wisely do not contest the validity of the constitutional arguments made above. But whereas one would think this concession would make an end of the case, appellees go on to raise a number of supposed practical and technical difficulties which, they contend, preclude the relief requested. Given the overwhelming constitutional and statutory imperatives which dictate a contrary result, it is hardly surprising that these arguments barely rise to the level of makeweight.
A. Standing
Appellees first argue that, whatever the constitutional injury suffered by blacks because of the Recorder’s actions, the white appellants in this ease are not harmed. Since the racial covenants are a legal nullity, it is contended, the Recorder’s publication of them in no *641way affects appellants’ titles and thus deprives them of no rights.
But while such an argument might have some validity in a different context, it ignores the Supreme Court’s willingness to relax rigid standing requirements when dealing with restrictive covenants. In Barrows v. Jackson, supra,, for example, the Supreme Court explicitly held that it would permit white homeowners whose land was burdened by racial covenants to assert the constitutional rights of prospective black buyers. “Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another’s rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained.” 346 U.S. at 257, 73 S.Ct. at 1035. See also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969).
Moreover, it is inaccurate to say that white homeowners suffer no injury caused by the recording of these covenants. A certain percentage of blacks no doubt refuse to buy property burdened with such recorded covenants either because they are under misapprehension as to the legal effect of the covenants or because they do not want to go where they appear to be unwanted, whatever their legal rights. To the extent these blacks decline to bid for title to appellants’ property, the marketability of that property suffers. Cf. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917). Nor is it relevant that this diminution of marketability is caused by extralegal factors. It has never been thought that a cloud upon one’s title had to constitute a valid legal claim before a court sitting in equity could remove it. Indeed, the whole purpose of a traditional action to quiet title was to clarify the status of putatively invalid claims. See, e. g., Barnes v. Boyd, S.D.W.Va., 8 F.Supp. 584, 597, affirmed, 4 Cir., 73 F.2d 910 (1934), cert. denied, 294 U.S. 723, 55 S.Ct. 550, 79 L.Ed. 1254 (1935). Surely if our courts possess the institutional competence to wrestle with contingent remainders and the Rule Against Perpetuities in such an action, they can also. vindicate basic constitutional and statutory, rights.
B. Administrative Burden
Next, appellees contend that it would be inconvenient and burdensome for them to implement the relief requested and that full implementation might require employment of some additional personnel. We can all join in sincerely regretting the fact that recognition of appellants’ rights may impose some additional burdens on the Recorder’s office. But surely appellees do not mean to contend that they can go on violating the constitutional and statutory rights of black citizens because such violations suit the Recorder’s administrative convenience. Cf. Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). Seventeen years of bitter and continuing struggle over school desegregation have made clear that vindication of constitutional rights is not always easy. But we do not have a constitutional system of government because that is the easiest or most efficient means of running a country. The guarantees of the Fifth and Fourteenth Amendments were written into the Constitution for the very purpose of preventing some future goverment official from ignoring the demands of equality for the sake of short term “convenience.” Cf. Cooper v. Aaron, supra, 358 U.S. at 16-17, 78 S.Ct. 1401; Buchanan v. Warley, supra, 245 U.S. at 81, 38 S.Ct. 16.
Moreover, it should be noted that the parade of horribles to which appellees point is largely imaginary. Appellants have scrupulously and conscientiously tailored their requested relief so as to minimize interference with the Recorder’s normal routine. Appellants are not asking the Recorder to go through the thousands of deeds presently on file in a search for restrictive covenants. Nor are they requesting that the tenor of any *642recorded deed be changed. Instead, they ask only that in the future the Recorder not accept deeds with restrictive covenants in them. With respect to deeds already on file, appellants wish the Recorder to attach a notice indicating restrictive covenants are void to the liber volumes in which such covenants might be found and to copies made of recorded deeds containing such covenants. So far as we can see, the latter elements of this relief could be effectuated by the purchase of a large rubber stamp — surely not too great a price to pay for vindication of constitutional rights.
It is true that, with respect to future deeds, someone in the Recorder’s office would have to read the documents to determine whether they contain any illegal covenants. But these deeds must be read in any event to ensure that they. are written in English, clearly identify the parties, .contain no obscenities,13 and are otherwise executed “agreeably to law.” 45 D.C.Code § 503. The vast majority of deeds filed today contain no racial agreements,14 and hence could be routinely approved for filing. Most deeds which do contain such covenants incorporate agreements drafted in an earlier era before it was fashionable or necessary for racism to be coy. These provisions are brutally and disgustingly frank,15 and could easily be filtered out by middle level personnel without extensive legal training. Cf. United States v. Hunter, supra, 459 F.2d at 213 (“a publisher can readily determine from the face of an advertisement whether it is intended to express a discriminatory preference”). Thus only a very few deeds with ambiguous or borderline provisions would have to be referred to a lawyer for a legal determination. In any case where really serious doubt arose, declaratory judgment procedures are available to secure a binding judicial determination of the document’s tenor. It is therefore difficult to escape the suspicion that the so-called burdens to which appellees point are in reality no more than feeble excuses invented as a post hoc justification for bureaucratic intransigence.
C. Deference to Legislative Action
Finally, appellees suggest that appellants should address their complaints of racial discrimination to the political branch of government and that attempting to wrench social reform from the judiciary disregards the principle of separation of powers. But while we must, of course, maintain proper respect for the jurisdiction of coordinate branches of government, under our law the judiciary too has the obligation of enforcing constitutional rights. As shown in Part II of this opinion, the due process clause of the Fifth Amendment prohibits official recording of restrictive covenants. It therefore becomes the duty of the judicial branch to enforce appellants’ constitutional rights by enjoining this practice. The fact that Congress also possesses the unquestioned power to enforce constitutional rights by appropriate legislation has never been thought to relieve the judiciary of its responsibility in this area. Indeed it was the Framers’ fear of majoritarian pressure on the political branch that has resulted in the judiciary becoming the primary guardian of the Bill of Rights. “The *643very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1942).
Moreover, the argument for awaiting congressional action overlooks the fact that Congress has acted in this field. It acted in 1866 when it passed sweeping civil rights legislation guaranteeing to all United States citizens the “same right * * * as is enjoyed by white citizens * * * to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982 (1970). It acted again in 1868 when it adopted the Fourteenth Amendment, thereby establishing universal citizenship and equal rights under law. And it acted most recently in 1968 when comprehensive fair housing legislation was written into law for the purpose of “provid[ing], within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601 (1970).
Now the time has come for the courts to act. We have already waited entirely too long to wipe out the last vestiges of the official discrimination which has tainted the housing market from time out of mind. The judgment of the District Court must therefore be reversed and the cause remanded.
. Almost 25 years ago Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), declared judicial enforcement of restrictive racial covenants in land deeds unconstitutional. Five years after Shelley Mr. Justice Minton, speaking for a majority of the Justices in Barrows v. Jackson, 346 U.S. 249, 259, 73 S.Ct. 1031, 1036, 97 L.Ed. 1586 (1953), thought he was dealing with “the unworthy covenant in its last stand” and “closfing] the gap to the use of this covenant, so universally condemned by the courts.” But while Shelley and Barrows outlawed judicial enforcement of restrictive covenants, it required legislative action to make the covenants themselves illegal. Thus Title VIII of the Fair Housing Act of 1968, 42 U.S.C. § 3604(c) (1970), makes it unlawful “[t]o make, print, or publish * * * any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, or national origin, or an intention to make any such preference, limitation, or discrimination.” Since a restrictive covenant is, by its very nature, a statement of racial preference with regard to the sale of a dwelling, it is now unlawful to include such covenants in deeds even if no effort is made to enforce them. Cf. United States v. Lake Lucerne Land Co., N.D.Ohio, Civil Action No. C69-885, Jan. 19, 1970 (consent order). Moreover, lest any doubt remain as to this proposition, Art. 45, § 3(b) of the Police Regulations of the District of Columbia makes it unlawful to “[i]nclude in the terms or conditions of a transfer of an interest in real property any clause, condition or restriction” on the basis of race, color, or national origin.
. One gets an impression of just how noxious these covenants are by perusing some of the examples provided in appellants’ complaint. One covenant provides that “no part of said land shall be sold to any negro or person of African descent or with negro or African blood in their veins.” Appellants’ complaint at 3. Another promises that “[n]o part of the land hereby conveyed shall ever be used, or occupied by, sold, demised, transferred, conveyed unto, or in trust for, leased, or rented, or given, to negroes, or any person or persons of negro blood or extraction, or to any person of the Semitic race, blood or origin, which racial description shall be deemed to include Armenians, Jews, Hebrews, Persians and Syrians, except that; this paragraph shall not be held to exclude partial occupancy of the premises by, domestic servants.” Ibid. These are not ancient documents unearthed from a now forgotten racist past. They are contained in modern deeds involving land transactions occurring today in this city.
. As an ironic sidelight to this case, we note that one of the early District of Columbia Recorders of Deeds was Frederick Douglass, the freed slave and renowned abolitionist leader. Although our research fails to disclose whether restrictive covenants were an issue during the post Civil War period, Douglass’ autobiography does make clear that he remained a staunch foe of racism throughout his official tenure. “The office [of Recorder] * * * neither fettered my pen nor silenced my voice in the cause of my people. * * * My cause first, midst, last, and always, whether in office or out of office, was and is that of the black man *632—not because he is black, but because he is a man, and a man subjected in this country to peculiar wrongs and hardships.” F. Douglass, Life and Times of Frederick Douglass 527 (Crowell-Collier ed. 1962).
. Thus it is not surprising that the few courts which have thus far dealt with § 3604(c) have construed it broadly in light of its purpose. See United States v. Hunter, 4 Cir., 459 F.2d 205 (1972); United States v. West Peachtree Tenth Corp., 5 Cir., 437 F.2d 221, 229 (1971). Cf. United States v. Bob Lawrence Realty, Inc., N.D.Ga., 313 F.Supp. 870 (1971); United States v. Mintzes, D.Md., 304 F.Supp. 1305 (1969).
. Of course, this generalization does not apply to legislative or judicial action to remove badges and incidents of slavery under the 13th Amendment. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).
. 42 U.S.C. § 3602(g) (1970) defines “State” to include the District of Columbia.
. Dancy v. Clark, 24 App.D.C. 487, 499 (1905). Moreover, “even if a paper on its face appears to have been regularly executed so as to entitle it to record, and the recorder had exceeded his authority in refusing to receive and record it, yet the court will not, by writ of mandamus, coerce his action, if it appears upon consideration of the contents of the paper that it is invalid under the law, for, in that event, to coerce his action and to command the receipt and record of the paper would be a nugatory thing in law.” Id. at 500. This position seems to be in ac*637cord with that of most other jurisdictions. See, e. g., Youngblood v. United States, 6 Cir., 141 F.2d 912, 913 (1944). Cf. Appliance Buyers Credit Corp. v. Crivello, 43 Wis.2d 241, 168 N.W.2d 892, 896-897 (1969).
. Compare, e. g., Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), and Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), with Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970), and Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971).
. Cases such as U. S. National Bank v. Snodgrass, 202 Or. 530, 275 P.2d 860 (1954) (en banc), and Gordon v. Gordon, 332 Mass. 197, 124 N.E.2d 228, cert. denied, 349 U.S. 947, 75 S.Ct. 875, 99 L.Ed. 1273 (1955), are totally irrelevant to the issue here. Those cases, decided almost 2 decades ago, uphold the power of the state to probate wills with discriminatory provisions over equal protection attack. Even if they can still be said to represent good law, they are limited to the situation in which the state is aiding conduct which is not itself illegal. Since no statute prevents a testator from devising his property in a discriminatory fashion, it could conceivably be argued that a state probate court has no legal basis for refusing to participate in this legal, private discrimination. The Supreme Court’s recent decision in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), wherein the Court vacated an injunction against the granting of a state liquor license to private clubs with discriminatory guests practices, may be similarly distinguished. The appellee in Moose Lodge “conced[ed] the right of private clubs to choose members upon a discriminatory basis.” 407 U.S. at 171, 92 S.Ct. at 1970. In contrast, our appellant makes no parallel concession as to the right of private homeowners to discriminate. Of course, private discrimination in the sale of housing has been illegal since Jones v. Alfred H. Mayer Co., supra note 5. Thus the only justification for the Recorder’s acceptance of racial covenants is to effectuate conduct which is wholly illegal. It goes without saying that this is in fact no justification at all.
. See 42 U.S.C.A. § 3604(a).
. See Shelley v. Kraemer, supra note 1.
. “Whatever the law was once, it is a testament to our maturing concept of equality that, with the help of Supreme Court decisions in the last decade, we now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous and unfair to private rights and the public interest as the perversity of a willful scheme.” Hobson v. Hansen, D.D.C., 269 E.Supp. 401, 497 (1967), affirmed, sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969) (en banc).
. Apparently the Recorder presently screens all deeds submitted to him to ensure that they meet these requirements. Appellants’ assertion to this effect before the trial court was not challenged by ap-pellees and, for purposes of summary judgment, must be assumed to be true. See Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Dismiss the Complaint at 6.
. At the request of the Justice Department, the major title companies have agreed not to report the existence of racial covenants appearing in the records of title on property for which they issue title insurance. See Exhibit A attached to Plaintiffs’ Memorandum of Points and Authorities, supra note 13. At oral argument, the panel which initially heard this case was informed that these companies are responsible for about 95% of the deeds presented to the Recorder for filing.
. See note 2 supra.