Family: How this Term Can be Used to Exclude
Family is one of those words that sparks emotion. The word ushers in feelings of joy, loss, anger, gratitude, nostalgia. It holds an intensity because, for many of us, family is our smallest, most intimate unit of community.
It is no surprise, then, that the term has found its way into public policy. Family is applied to insurance benefits, custody of minors, and, of course, zoning. In many if not most zoning ordinances across America, you will find it saddled into terms like “single-family dwelling” or “multi-family dwelling”. While the image of a family lovingly living together in a detached house may not seem nefarious, the application of the term in practice is far less idyllic.
Family, as a defined legal term, has been and continues to be used by governments as a tool to keep certain people from living in certain neighborhoods. The 1974 Supreme Court case Village of Belle Terre v. Boraas upheld the exclusion of a group of Stony Brook graduate students from a single-family zoning district because they did not constitute a family as defined in the Belle Terre code: one or more persons related by blood, adoption, or marriage, living, and cooking together as a single housekeeping unit, or two people unrelated by blood or marriage.
In the mid-2000s in Black Jack, Missouri, an unmarried couple and their three kids (two of their own and one from a previous relationship of one of the adults) purchased a house but were denied an occupancy permit as they exceeded the number of unrelated people that could, by Black Jack law, constitute a family, which was three.1 In another case, the City of Hartford, Connecticut, brought suit against the “Scarborough 11”, where eight adults and three children lived together in a nine-bedroom mansion, for violating the single-family zoning standards. In Hartford’s code, family was defined as any number of individuals related to each other by blood, marriage, adoption, custodianship, or guardianship, but only two adults who were not so related.2 The list goes on.
Shown above: Photo of the Scarborough 11, photo credit: Hartford Courant
As you can imagine, such limited definition of family, often limited to two or three unrelated people, does not reflect the diversity of family structures and living habits of Americans today or, arguably, ever. A 2015 US Census Bureau Newsroom article reported that nearly half of American adults are unmarried and unmarried people represent 47% of all households. Among unmarried, heterosexual cohabitating couples in 2014, nearly 40% were raising at least one biological child of either partner. And, in 2013, there were 7 million unmarried-partner households.3 One in eight homes in 2010 contained one or more people not related to the householder.4 A Pew Research study found that more adults ages 18 to 44 have lived with an unmarried partner at some point in their lives than have ever been married, and 69% of Americans say that cohabitation is acceptable even if a couple doesn’t plan to get married.5
Defining family using a short list of relationship types—such as blood or marriage--burdens the local government with the responsibility of investigating and interpreting the private associations between individuals. Such investigations and interpretations are impossible to universally enforce given constraints on municipal human resources. Therefore, enforcement can be reactionary to neighbor complaints, leading to irregular and likely discriminatory application of the law.
Defining the relationship between cohabitants by marriage is particularly problematic because marriage, it turns out, has become an institution that favors the wealthy. A Brookings Institution report shows that, in 2018 for adults between the ages of 33 and 44, 80 percent of the upper class, 66 percent of the middle class, and only 38 percent of lower-income adults were married.6 A Pew Research Center study found that about half of cohabiting adults who are not engaged but say they would like to get married someday cite their partner’s or their own lack of financial readiness as a reason why they are not engaged or married to their current partner.7 By requiring persons to be married to achieve the status of family, and by limiting access to housing by family status, zoning codes promote the residential freedoms of upper-class citizens to a higher degree than those of lower-income individuals and households. This preference is even more problematic considering the historic and systemic blockages on wealth creation for people of color.
Some state courts have taken the lead and recognized the inappropriateness of discriminatorily applying a universal definition to this intimate term. For example, the New York Court of Appeals decided that the Town of Brookhaven’s definition of family was unconstitutional in that it limited the number of unrelated persons residing together to four but imposed no such restriction on the number of related persons.8 The Supreme Court of California similarly found that, in City of Santa Barbara v. Adamson, there was not a compelling public interest in limiting the number of members of a single housekeeping unit to five persons not related by blood, marriage, or legal adoption.
In conclusion, people across America choose to live with partners, exes, friends, acquaintances, unrelated children, and strangers for many reasons--whether by preference or necessity. Some consider their roommates to be family, related or not, while others consider their cohabitants to be just that, people to share a space and help pay the bills. As planners, elected officials, and citizens, let’s take the lead and legalize the way Americans live, ensure that our laws uphold freedoms of association, and protect—not exclude—our diversity.
1: Redburn, Kate. 2019. Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn. The Yale Law Journal, 128; 2412.
2: Bronin, Sara. 2020. Zoning For Families. Indiana Law Journal 95 (1).
3: US Census Bureau: Newsroom. 2015. Unmarried and Single Americans Week Sept. 20-26, 2015. Unmarried and Single Americans Week Sept. 20-26, 2015 (census.gov)
4: US Census Bureau. 2012. Households and Families: 2010. Households and Families: 2010 (census.gov)
5: Graf, Nikki. 2019. Key findings on marriage and cohabitation in the U.S. Pew Research Center: FactTank, News in the Numbers. Key findings on marriage and cohabitation in the U.S. | Pew Research Center
6: Reeves, R., and C Pulliam. 2020. Middle class marriage is declining, and likely deepening inequality. The Brookings Institution. March 11, 2020. Middle class marriage is declining, and likely deepening inequality (brookings.edu)
7: Graf, Nikki. 2019. Key findings on marriage and cohabitation in the U.S. Pew Research Center: FactTank, News in the Numbers. Key findings on marriage and cohabitation in the U.S. | Pew Research Center
Nolan Nicaise is an Urban and Environmental Planner with ZoneCo in Cincinnati, Ohio. Nolan is an urban planning, environmental science, and policy professional with experience in planning, zoning, environmental science, and stormwater and floodplain management. A native of Covington, he most recently served as an Associate Planner for Planning and Development Services of Kenton County, Kentucky, and immediately prior to that as an environmental scientist for global engineering firm Parsons Corporation in Chicago, Illinois.
Jocelyn Gibson is a Senior Consultant with ZoneCo in Cincinnati. She is an experienced and knowledgeable city planner with extensive public and private sector planning, zoning and commercial real estate experience. She also leads the Midwest Chapter of the Congress for the New Urbanism (CNU), which she co-founded, and serves as a Chair of a zoning board of appeals. Jocelyn is also active in her community and serves as a Trustee on her Community Council and a Board member for her local Community Development Corporation.