Column One:
Eye on Unmarried America

May 22,  2006  



Cities have opposing views on definition of 'family'

By Thomas F. Coleman

Two American cities passed laws this month defining which groups of people constitute a "family" and which don't.  These new laws will impact who can live in residential areas zoned for "single family" use.

Elkin, Illinois and Black Jack, Missouri used very different approaches in setting up their new definitions.  Elkin used a functional method which takes into account how the group actually lives, while Black Jack imposed a traditional definition which focuses on whether the individuals are related by blood, marriage, or adoption.

Officials in Elkin wanted to prevent a landlord from renting rooms to a large number of unrelated individuals while at the same time recognizing and respecting the rights of unmarried adults to live together as a family unit.  The city could get rid of the abuse of some owners while at the same time not becoming abusive to households which are causing no harm to their neighbors. 

So Elkin amended its zoning law to include "alternate families" which it defined as "four or more persons not related by blood, marriage, or legal adoption, not including foster children or domestic employees, living together as a traditional family or the functional equivalent of a traditional family."

This "functional equivalent" approach has been approved by the highest courts in California, New York, and New Jersey.  These courts concluded that prohibiting alternate families from living together in residential areas violated their rights to liberty and privacy under their state constitutions.

But town officials in Black Jack will have none of that progressive stuff.  They are holding the line at blood-marriage-adoption even if it means evicting unmarried couples who have formed a stepfamily with their children from previous relationships.

Black Jack council members voted 5 to 3 last week to keep their current definition of "family" which prohibits more than 3 people from living in a residential "single family" area unless they are related. 

Unmarried stepfamilies in Black Jack may face fines of up for $500 per day if they remain living in the homes they own.

It's a toss up as to whether courts will require Black Jack to allow unmarried adults to live in "single family" residential zones if they are the "functional equivalent" of more traditionally defined families. 

The United States Supreme Court upheld a zoning law like that in Black Jack, but that precedent dates back to 1974.  The composition of the Court and its opinions on the rights of unmarried adults has changed significantly since then.

For example, in 1986, Justice Stevens issued an opinion in which he stated: "[I]ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons."

In 2003, in the case of Lawrence v. Texas, a majority of Supreme Court justices indicated they agreed with this opinion of Stevens. 

A majority of justices in Lawrence also quoted with approval a statement made by the Court in the 1972 case of Eisenstadt v. Baird when it declared that if the right of privacy means anything, "it is the right of the individual, married or single, to be free from unwarranted governmental intrusion . . ."

The Fourteenth Amendment of the United States Constitution prohibits state and local governments from depriving individuals of liberty without due process of law.  Many precedents of the U.S. Supreme Court have concluded that the concept of "liberty" includes highly personal decisions such as those involving marriage, family, and child rearing.

Under Black Jack's definition of "family," the "Brady Bunch" would not be allowed to live in a single family residence if Mike Brady and Carol Martin had decided not to marry but instead created an unmarried stepfamily with the three Brady boys and the three Martin girls.  Television's famous "Golden Girls" would be unwelcome in Black Jack as well even though they lived quite harmoniously as a family unit.

It seems arbitrary, and downright cruel, for a town such as Black Jack to allow a blood-related group of 10 people to live in a four bedroom house, but to fine or evict unmarried equivalents of the Brady Bunch or real life counterparts to the Golden Girls when they share a similar sized home.

The current situation in Black Jack does not involve an absentee landlord turning a single family home into a boarding house filled with several renters who are strangers and have no commitments or connections to each other.  What is at stake is the right of a homeowner to create a nonmarital family without government interference with this personal decision.

The American Civil Liberties Union has threatened to sue Black Jack for violating the constitutional rights of its unmarried residents.  One would hope that the Stepfamily Association of America and the AARP will sign onto this brief and lend their clout to the lawsuit. 

Unmarried America 2006

Thomas F. Coleman, Executive Director of Unmarried America, is an attorney with 33 years of experience in singles' rights, family diversity, domestic partner benefits, and marital status discrimination.  Each week he adds a new commentary to Column One: Eye on Unmarried America. E-mail: Unmarried America is a nonprofit information service for unmarried employees, consumers, taxpayers, and voters.