Many local governments use single-family zoning ordinances to restrict occupancy in residential areas to households whose members are all related to one another by blood, marriage, or adoption. The Supreme Court upheld such ordinances in the 1974 case of Belle Terre v. Boraas, and they have been used to prevent all sorts of groups from living together—from unmarried couples who are raising children to college students. This Article contends that Belle Terre is wholly incompatible with the Court’s modern jurisprudence on privacy and the right of intimate association. The case appears to have survived this long because of a reflexive deference paid to the “police power,” which gives local governments wide latitude to pass laws to promote the general welfare of the community. This Article disputes that the police power can stretch so far, and asserts that Constitutional protection should attach to the choice of household companions. If such protection is accorded, the reasons traditionally given for such ordinances—reduction of overcrowding, protection of children—fail to stand up to heightened scrutiny. This Article also takes issue with so-called “functional family” reforms, which allow groups who resemble or operate like families to live in single family zoned areas. While these reforms do expand the class of people who can choose their household companions, they leave untouched the assumption that governments can regulate this decision absent a compelling reason. Moreover, they allow government actors to decide, based on largely subjective criteria and after an often-invasive inquiry, whether groups of people are sufficiently “family-like” to live together. If the right of intimate association within the home is to have any force, it must be available to everyone, regardless of their identities, motivations, or characteristics.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person