|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."
"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.
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
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.
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
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.
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
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
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
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
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
email@example.com. Unmarried America is a nonprofit
information service for unmarried employees, consumers, taxpayers, and