Friday, May 19, 2006

Unmarried Couple Families -- Not Allowed to Live Together? (Part One)

From Ash:

Earlier this week, the City Council of Black Jack, Missouri voted not to change its housing code. That wouldn't usually be the subject of national news, but, in this instance, it is making headlines around the country. Here's what is going on: the city's current housing code makes it illegal for Olivia Shelltrack and Fondray Loving, an unmarried couple, to live in a house with their three children. The reason being that they do not constitute a "single family" under the city's legal definition, and, therefore, they cannot live in a "single family dwelling." If they do live in such a dwelling, they can be fined hundreds of dollars a day or be evicted -- even if it is from a house they own.

The ACLU is now saying it will file suit on the couple's behalf.

When she heard the decision, Ms. Shelltrack said, "I'm just shocked." A Salon columnist describes local residents' comments in support of the existing code as "silly." And her readers have since written enlightened, thoughtful comments like: "Stupig Fucking Yahoos Live in Missouri" (that's "Jeffrey's" typo -- not mine.)

I'm not saying that I agree with the City Council. But reactions like those are at best naive, and further, may show a profound misapprehension of current American law.

Because, even if it ultimately is proven illegal or unconstitutional, Black Jack's zoning law isn't an exceptionally horrendous discriminatory law that could only happen in a town near the "Buckle of the Bible Belt."

Which brings me to offer Ms. Shelltrack and Mr. Loving a little friendly advice.

Black Jack's Mayor has said that other areas around St. Louis have even more restrictive housing codes -- you couldn't live in those areas, either -- and I believe him -- so you should probably check with your new lawyers if you decide to move anywhere else in the area.

If you decide to leave Missouri -- understandable, given all the publicity -- you should cross Atlanta, Georgia off your list of places to move to. At least, the parts of it that are in Gwinnett County. Oh, and you probably can't live Chesterfield, Virginia or Fairbanks, Alaska or Gerrish Township, Michigan or Salem, Massachusetts, either. They all have housing codes that are very similar to the ones in Black Jack -- so there's a chance that you wouldn't be able to live in a single-family residence in any of those areas either.

And those are just a couple of the ones I found in a quick Yahoo! search (not to be confused with the Yahoos Jeffrey complained about.). It's certainly not a comprehensive list. Again, just check with your lawyers.

For the rest of you -- especially those so quick to condemn Black Jack (Kudos, by the way, to USA Today, who acknowledged that the situation is a little more complex than it seems at first glance.) -- did you notice I mentioned Salem in the "No Go" list?

If you just discounted that as a new sort of witch trial, let's make sure that really sinks in before we continue on.

Read this slowly:

An unmarried couple-family like the Shelltrack-Lovings probably cannot live in Salem -- a city in Massachusetts -- the state that the legalized gay marriage.

So much for dismissing this as a Bible Belt radicalism.

Now, there are a several interesting twists and tensions in zoning and how do we define families that I want to address -- but I'm going to do that in another post.

For now, however, I just want us to first consider the reality is that our nation's laws are filled with preferences for married couples and biological families.

As far as I know, there are still states that won't recognize an unmarried man as the father of his children. Only the mother is legally recognized -- the man will have to actively petition to be acknowledged as the father -- and not every state even allows that.

(Off the top of my head, I don't know current Missouri law on this -- if you do, send me an email -- but depending on Missouri's laws on parentage, it could mean that even the pure argument of Loving being the father as the kids doesn't change the outcome, because there may be no legal recognition that he is their father. Which would mean he had to submit a DNA test to the agency handing out housing permits before he could claim even the biological-family basis for single-family residency.)

That's just for starters. Another quick example, some states have different laws on domestic violence -- if it's a husband who beats up a wife compared to a live-in-boyfriend who hits a girlfriend may be the difference between prison terms. A wife gets a marital privilege in court; a live-in partner does not. A husband and wife may be automatically responsible for each other's debts; a boyfriend and girlfriend are not.

From the day someone gets married to his death, different rules apply to that married relationship.

There may be legitimate reasons for those legal differences. Some that benefit the married couple, some the unmarried. Is that a form of discrimination? Perhaps. Hell, I will even, for now cede the point, and say "Yes." Is it morals-based? Sure, I'll give you that one, too.

But the cold, hard truth of the matter is that stopping an unmarried couple from living in a particular bedroom community just isn't the sort of invidious discrimination that we usually worry about.

The courts step in when a person is discriminated against because of his fundamental traits -- e.g., his race, religion, or physical handicap. The things that are, for the most part, completely out of his control. That's how it has been since birth, and there's nothing anyone can do to change it. We don't step in because of a particular choice he's made.

This is far different than the laws at work in the historic case about another unmarried couple. In a seemingly poetic coincidence, the plaintiff in that case also named "Loving," and they were also an interracial couple. But that's where the similarity ends. In Loving, the U.S. Supreme Court overturned a law that barred an interracial couple from getting married. Because of their race, they couldn't begin a family.

Now, if Shelltrack-Loving couple were making some sort of a "It's against my religion to get married," claim -- now, that would make an interesting argument I'd love to hear at the Supreme Court. Because then maybe the ordinance would be unfairly burdening their free exercise of their religion -- a fundamental right -- an aspect of their very being.

But that's not what is going on here. There's no disputing the fact the Shelltrack-Loving couple has made a voluntary decision not to get married. They could if they wanted to; they just don't want to.

That decision is not protected. Sorry, Kids. It just isn't.

Next up -- the morass of zoning "families."


Anonymous Anonymous said...

Interesting read.

I always wondered if unmarried couples were allowed to buy a house together.

My reasoning is if an unmarried couple bought a house, then I wonder if they have a joint bank account or what? I am not sure how the finances work for unmarried couples.

I have heard of restricted housing in terms of race or religion. I remember a Gregory Peck movie where his Jewish friend and his wife could not buy a house because there was a weird law saying something like "Do not sell a house to Jewish people". I am not sure if that was the exact wording.

And unfortunately, that has really happened. In the 1950s Richard Nixon and his friends in Holmby Hills, California came up with a law or code decreeing that Jews cannot live in Holmby Hills. Apparently, that has changed because now Aaron Spelling, who is Jewish, owns a mansion in Holmby Hills.

7:44 AM  
Blogger Ashley Merryman said...

Well, as far as who pays for the house, an unmarried couple could jointly sign a mortgage. It's just a business arrangement between adults. In the eyes of the law, that they live together is irrelevant.

Unfortunately, there are "restricted neighborhoods," in the way that people will limit whom they rent to (stopping those who are of a certain race, religion, etc) but these restrictions are not based on city codes. That would be illegal. Instead, those are based on informal agreements within the community. They're still reprehensible. But what is at issue in this case is quite different from those circumstance -- this is about zoning law, which I'll get into in my next post.

9:37 AM  

Post a Comment

<< Home