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Reasoning behind sodomy-law ruling bears on zoning laws

Mark Reutter, Business & Law Editor
217-333-0568; mreutter@illinois.edu

11/1/2005


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.”