“Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.”
–Moore v. East Cleveland
Another activist legislature is flagrantly ignoring a clear Supreme Court precedent:
[A] zoning ordinance adopted this month by the city of Manassas [Virginia] redefines family, essentially restricting households to immediate relatives, even when the total is below the occupancy limit.The rule, which has alarmed civil libertarians and housing activists, is among a series of attempts by municipalities across the nation to use zoning powers to deal with problems they associate with immigrants, often illegal, who have settled in suburbs, typically in shared housing to help with the rent or mortgage.
…
Kent Willis, executive director of the American Civil Liberties Union of Virginia, said the new rule is “constitutionally questionable” and pointed to a 1977 Supreme Court ruling that struck down a similar law defining family passed by the city of East Cleveland, Ohio.
The 1977 case is Moore v. East Cleveland, 431 U.S. 494 (1977). The facts were, as far as I can tell, identical to the Manassas ordinance: a city passed an ordinance, nominally to curb overcrowding, limiting the size of households. The ordinance exempted large families, however, and then promptly set about defining what “family” meant.
The Supreme Court struck down the East Cleveland law, holding that even if “curbing overcrowding” is a legitimate government interest, it was not legitimate enough to justify discrimination based on family status. The Court’s dictate is unambiguous: Either limit how many people can live in the house or not. (That libertarians would reflexively say “not” is a whole other blogpost.) As Justice Brennan noted in his concurrence:
“[T]he zoning power is not a license for local communities to enact senseless and arbitrary restrictions which cut deeply into private areas of protected family life.”
No libertarian could have said it any better.
But I guess legislative memories fade after almost 30 years. In the new insolence expressed toward precedent and the worship of unbridled majoritarianism (i.e., mob rule), binding precedent ceases to be binding and that which ignores “the will of the majority” is summarily ignored as invalid.
In any case, isn’t it amazing how the activists who seek to “defend marriage” and “protect the traditional family” are often the same activists who will try to keep such traditional families out of their neighborhood when they get too big (or just happen to be immigrants or Hispanics or some form of “others”)?
Hat tip to Hit & Run. Here’s a Manassas blogger’s take on the ordinance.
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6 responses so far ↓
Link Power2thePeople // Dec 29, 2005 at 8:49 am
So let me see if I understand the definition of 'family' - one individual = family; two individuals maybe = family; three individuals probably doesn't = family. Hmmm….
If this goes successfully unchecked, what's to stop some other city (mine) from redefining family so that two adults who are not blood relatives cannot live together (stare decisis be damned)? While I suppose that landlords and maybe some real estate professionals might oppose this, taken a few steps further, it's an easy way to go after same gender couples (not just immigrants), no?
And what's with the definition of "living *and* cooking together?" What if we eat out every night? Do we then not qualify under the rule? Growing up, my family (mom, dad, etc.) and I ate out every night, including Thanksgiving and Christmas - we wouldn't be "family" because of that? What if it's only sticking pre-made items in the microwave? Is that cooking? Making coffee? Opening up the cat food? Unreal.
Link doinkicarus // Dec 29, 2005 at 10:07 am
Where I went to college, certain parts of the city were "zoned" so as to prohibit more than two un-related individuals from living together. The incentive was to prevent people like me (and my two roommates) from living in the "non-college" side of town.
But they had no way of enforcing it, and it never became problem for us.
Link dolphin // Dec 29, 2005 at 11:35 am
One of the apartment complexs (I think it was the apartment policy versus the cities, but I'm not sure) I looked at around here had a policy that required one bedroom per non-related male and female (ie a non-married straight couple couldn't move into a one bedroom apartment). It was one of the few policies of this sort that actually (though unintentially) favored gay people.
Link Craig // Dec 29, 2005 at 3:12 pm
Not to rain on your parade too much because I too vehemently disagree with this proposed ordinance, but Manassas may be able to sustain the proposed ordinance on the basis of Belle Terre v Boraas, 416 U.S. 1 (1974), which had a similiar fact pattern to the situation the article above describes. The Court there sustained the law limiting a dwelling to one family, which was defined to be "[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family." Marshall dissented from the Court's 7-member majority based on the rights to association and privacy. A particularly good quote from Marshall:
Brennan also dissented on procedural grounds as in his view the case no longer met the constitutional threshold of being an actual controversy as the six students in the case were no longer leasing the house. Moore also was plurality court. It is probably better viewed like a case like Board of Regents v Bakke since there was a 4-(2)-1-4 split with Brennan's two vote concurrence and Stevens' concurrence serving as the middle. Stevens' view was that the ordinance constituted a taking since the ordinance did not have a "substantial relation to the public health, safety, morals, or general welfare."
In this Manassas instance, Stevens' comment that "Th[e] basic ['owner's right to decide how best to use his own property'] has always been limited by the law of nuisance which proscribes uses that impair the enjoyment of other property in the vicinity" may limit Moore's reach to allow this stupid law.
Link KipEsquire // Dec 29, 2005 at 6:14 pm
Craig, WADR your comment makes no sense. Plurality opinions are still binding precedent, Moore expressly distinguished Boraas, and the Manassas fact pattern mirrors Moore almost identically; Boraas, which concerned totally unrelated individuals, is simply not on point here.
Link Craig // Dec 29, 2005 at 10:16 pm
Yes, I know pluralities are still binding, but one must consider all opinions that form the plurality to determine the affect. Bakke was a classic example of a 4-1-4 where both the 4-person opinions are of little importance except to the extent that middle opinion agreed with them. Stevens' concurrence is a limiting factor on the main opinion. That was my point with that respect. Stevens opinion indicates that even close familial household the main opinion would protect could constitute a nuisance to the "public health, safety, morals, or general welfare" of the community and be banned by ordinance.
I disagree that the Manassas fact pattern mirrors Moore identically. The downstairs rentor and his girlfriend are not related and, insofar as the Manassas ordinance is concerned, neither is the nephew. Moore would control, IMO, with respect to the nephew, but not the rentor or his girlfriend. There Belle Terre would control given the distinction between the two controlling cases. Moore invalidates part B of the ordinance and perhaps extends part D beyond just dependent children to include a nephew, but the Chavez household still doesn't qualify under parts A, C or an extended D.
I disagree with this law as I believe family relations, even if they are not formalized by marriage, blood, adoption, etc, are among the most important of rights protected by the rights of association and privacy. Brennan's reasoning of such in Part II-A of his opinion in Roberts v US Jaycees is probably one of the best statements of this:
That said, if I'm a lower court judge, I'm bound to apply both Moore and Belle Terre leaving the Chavez's still afoul of the law. As a lawmaker I'd definitely be voting against the law or for its repeal and as an appellate judge to strike down the law as unconstitutional (though a higher court could certainly reverse if they uphold the extent of the current precedents).
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