Column One:
Eye on Unmarried America

February 27, 2006  



Mini-battle over definition of 'family' has national significance

by Thomas F. Coleman

Olivia Shelltrack and Fondray Loving and their three children were excited when they moved into their new home in Black Jack City, Missouri.  But their joy turned to shock when local bureaucrats denied them an occupancy permit because their household did not fit the city's definition of "family."

Black Jack is a small community with only 2,400 households.  The Census Bureau shows a slight hint of diversity in Black Jack, with 563 people living alone, 1261 married couple households, 528 households containing unmarried blood relatives, and 70 "non-family" households.

Apparently city officials want to rid the town of 'non-family" living arrangements.  A local ordinance forbids three or more individuals from living together if they are not related by "blood, marriage or adoption."

Although Shelltrack and Fondray are not married, they have lived together for 13 years.  Fondray is the father of two of the children, but not the oldest.  As a result, the city says their household composition violates the city ordinance and they should move out.

The couple recently appealed the denial of an occupancy permit at a hearing before Black Jack's board of adjustment. The board rejected the appeal and the case now goes before the municipal court.

This is likely to be a tough court battle, with few legal precedents siding with the unmarried family.  And unless an organization such as the American Civil Liberties Union steps in to help, the costs of litigation could bankrupt this modest-income family of five.

The couple have filed a complaint with the federal Department of Housing and Urban Development.  However, they are not likely to receive help from that agency since federal law does not prohibit marital status discrimination in housing. 

Although 23 states do have fair housing laws against marital status bias, Missouri is not one of them.  So that state's civil rights laws won't be of much help either.

Nor are prior judicial rulings in Missouri very promising. 

In 1985, the city of Ladue sued a couple for violating a city ordinance prohibiting an unmarried man and woman from living together if they were not "related by blood, marriage or adoption." A year later, the Missouri Court of Appeals upheld the ruling against the couple, who had lived in the home for four years.

So in order to prevail, Shelltrack and Loving may have to focus on their federal constitutional rights, arguing that an arbitrary and irrational local law is infringing on their liberty and violating their family's right to privacy.  Although appellate courts in California, New York, Michigan, and New Jersey have accepted such arguments, the Supreme Court of Missouri may prove to be more conservative.

If the couple can muster the resources for this litigation, the case may well end up in federal court, testing the ramifications of a United States Supreme Court decision that struck down a sodomy law in Texas a few years ago.  In that case, Lawrence v. Texas, the court ruled that all adults have a right to privacy regardless of their marital status.

If this case ever did get that far, it would also put newly appointed Supreme Court Justice Samuel Alito and Chief Justice John Roberts to the test.  At their confirmations hearings, both men testified that they considered it to be "settled precedent" that the Constitution protects the privacy rights of the unmarried as well as the married. 

Local officials in Black Jack seem to believe that Shelltrack and Loving have two families, with Shelltrack and her oldest child forming one, and the rest of the household forming another.  But public opinion polls suggest that most Americans would feel differently, defining "family" as a group of people who love and care for each other rather than limiting the definition to people who "are related by blood, marriage, or adoption."

The outcome of this case could have national ramifications, considering that there are more than six million unmarried couples in the United States and nearly 40 percent of them are raising children.

Olivia Shelltrack and Fondray Loving and their children know they are a family.  Most Americans would probably agree.  Too bad that local officials in Black Jack City won't take off their blinders so they can respect family diversity in their community.

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.