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Reasoning behind sodomy-law ruling bears on zoning laws
Mark Reutter,
Business & Law Editor
217-333-0568; mreutter@illinois.edu
11/1/05
CHAMPAIGN, Ill. —
At first glance, a Texas sodomy law would seem to have little in common
with neighborhood zoning ordinances, but a U.S. Supreme Court ruling
on the former could have a strong impact on the latter, a University
of Illinois legal scholar argues.
In 2003, the high court struck down Texas’ “homosexual conduct”
statute, which made it a crime for homosexual couples to engage in consensual
sex in their home, ruling that it violated gays’ right to privacy
and the Constitution’s equal protection clause.
The 6-3 ruling in Lawrence vs. Texas has since been cited in challenges
to a host of state and federal laws regarding obscenity, homosexual
marriage, adoption and sex crimes. But one area where the court’s
reasoning has yet to be applied is municipal zoning ordinances that
relate to family composition.
Sara L. Dunski argues in the University of Illinois Law
Review that the reasoning behind the Lawrence decision has direct
implications for municipal zoning laws. A typical ordinance regulates
the number of unrelated people who can occupy a house zoned single-family
residential. The practical effect is to exclude non-traditional families,
ranging from homes with foster children to homes for same-sex couples.
Such ordinances pry into the lifestyle of the inhabitants, interfering
with their privacy and due-process rights, much like the struck-down
Texas sodomy law. “Familial ordinances cause more harm than good,”
wrote Dunski, a former journal editor who now works at a Chicago law
firm. “They are highly exclusive and highly intrusive. There are
other more appropriate ways to achieve the intended goals.”
In her article, Dunski traces the history of zoning ordinances. Municipal
laws governing the use of land became popular after 1915 as a way to
control overcrowding and protect residential neighborhoods from commercial
or industrial encroachment.
A controlling decision on the constitutionality of such laws came in
Village of Euclid v. Ambler Reality Co. in 1926. Before a zoning ordinance
could be declared unconstitutional, the Supreme Court ruled that its
provisions had to be “clearly arbitrary and unreasonable, having
no substantial relation to the public health, safety, morals or general
welfare.”
The Euclid case established the presumption that zoning ordinances were
lawful. Partly as a result, zoning boards began to expand their power
from regulating land use (for example, placing property into industrial,
commercial and residential districts), to regulating the number and
type of inhabitants who could reside in single-family neighborhoods.
In Village of Belle Terre v. Boraas (1974), for instance, the court
upheld an ordinance that defined a single-family dwelling as limited
to no more than two persons not related by blood, marriage or adoption,
thereby barring six college students from leasing a house.
The court reasoned that non-conventional living arrangements put stress
on neighborhoods by increasing population density, traffic and noise,
thus depriving other homeowners of “the blessings of quiet seclusion
and clean air.” (In 1948, the court outlawed the practice of neighborhood
restrictive covenants, or private land deeds that forbid the sale of
houses to blacks, Jews and others.)
The 2003 Lawrence decision has changed the ground rules, Dinski argued,
and mandates “a newfound acceptance for alternative lifestyles
that should be applied to all areas of the law, including zoning.”
She continued, “It should be impermissible for municipalities
to use zoning to control the identity of residents,” and to prohibit
such arrangements as same-sex partners with independently adopted children
living in a single-family dwelling.
The Illinois scholar said there are alternatives for towns to regulate
population density, noise and other issues in residential communities.
For example, density could be handled by tying occupancy to the number
of bedrooms or bathrooms in a house.
Her article is titled, “Make Way for the New Kid on the Block:
The Possible Zoning Implications of Lawrence v. Texas.”
