Marital Zoning

June 7, 2006 | 43 comments
By

Ross Douthat–

What I’m Thinking Right Now: That the pro- family movement might be better served defending laws like this one – and the broader right of local housing codes to discriminate based on marital status where children are involved

I’m not sure that I see what the advantages are. I assume Douthat’s talking about zoning laws that severely limit the number of people that can live in a house who aren’t related (through blood or marriage). Now, I agree that children do better with married parents. But I don’t see how one can think these sorts of zoning laws are a big blow in favor of the family unless you think that

(1) children and marriages do worse when in neighborhoods where some are shacking up. But while I think this might be true to some extent, given the power of example, media portrayals are more worrisome and less tractable;

(2) zoning laws that discriminate in favor of families in certain areas lower the cost of having a family. But while probably true, there are less roundabout ways to subsidize family. An expanded child credit or even a direct housing subsidy is probably a better idea, unless the concern is that politically it would be hard to limit such a program to married families;

(3) zoning laws that discriminate in favor of families will discourage shacking up and encourage marriage. But this is unlikely. Most people don’t know diddly about the zoning laws and most zoning laws of this sort aren’t enforced until 8 college students move into a house.

Where Douthat is right is that the pro-family movement has a real interest in defending the legality of these kinds of zoning laws. If courts decide that distinctions between married and non-married are indefensible and irrational, we’re in trouble.

43 Responses to Marital Zoning

  1. Wacky Hermit on June 7, 2006 at 1:16 pm

    I’ve seen laws like this before in Logan, UT, but they were for preventing houses full of noisy college students renting out rooms in a house in a family residential area. To some extent they also restricted the renting out of basement apartments (many of which, in Logan, are relatively squalid) and older houses that have been carved up into one and two bedroom apartments. I’m curious how a law like this would affect foster families. Would we want to kick out of a “family” community a family who took in several foster children?

    I have a solution to this problem of allowing only people related by “marriage”. Define a common law marriage as two adults meeting any three of these four criteria: (1) using the same primary residence at the same time for more than one month in the last year; (2) having consummated their relationship; (3) having children in the household, biological or adopted (existence of a biological child of both parties is considered proof of consummation); (4) having a shared bank account, utilities in both names, or other shared financial arrangement. Then those two people who are deluding themselves that they can shack up and do everything married people do but not be married would be automatically married without the ceremony. If two people want to live together, say a sister and brother, they can keep their finances separate and not be considered married.

  2. Adam Greenwood on June 7, 2006 at 1:34 pm

    “I’ve seen laws like this before in Logan, UT, but they were for preventing houses full of noisy college students renting out rooms in a house in a family residential area.”

    That’s what these laws are always for. The marriage effect is a side-effect, which is another reason I’m sceptical that this is some kind of pro-family bandwagon. But I suppose Douthat would argue that we should start making the side effect the desired effect.

  3. MikeInWeHo on June 7, 2006 at 1:38 pm

    Can’t read the link to the law without registering. Is there a way around that? Thanks.

  4. Adam Greenwood on June 7, 2006 at 1:44 pm

    Dunno. Have you tried following the link from Douthat’s site?

  5. DHofmann on June 7, 2006 at 1:45 pm

    “Where Douthat is right is that the pro-family movement has a real interest in defending the legality of these kinds of zoning laws. If courts decide that distinctions between married and non-married are indefensible and irrational, we’re in trouble.”

    Are you saying that if an unmarried man and woman have children, they aren’t a family?

  6. Adam Greenwood on June 7, 2006 at 1:50 pm

    Huh? Your question is irrelevant to anything I’ve written.

    Are you saying that seeing any difference between a man and a woman who have kids but refuse to get married, and a man and a woman who get married and have kids, is irrational and indefensible?

  7. DHofmann on June 7, 2006 at 2:13 pm

    Yes, and also immoral. It isn’t the fault of the children if the parents refuse to get married.

  8. Michael on June 7, 2006 at 2:15 pm

    You guys,

    We have these restrictions in many of the homeowner and condo associations here in Florida. I was president of my townhome association for five years. The restrictions are meant to stop a number of unrelated people from sharing the same house – college students or non-college students. This primarily happens when a bunch of young people (late teens and early 20s) try and rent a house or condo and use it as a party hang-out. It also prevents the illegal immigrants (of which there are many in Florida) from renting a house with 20 unrelated people.

    BUT, the defining part of the restriction is that they must be unrelated (it does not use the word \’married\’). If you have a couple shacking up and they have kids then it does not apply. The kids are related. The same goes for your aging mother or father. The relationship does not have to be solidified through marriage.

  9. Adam Greenwood on June 7, 2006 at 2:19 pm

    So the church’s idea that we *should* get married is irrational, indefensible, and immoral? Kids are now sealed to their parents whether the parents get sealed or not, because, hey, its not the kids’ fault.

  10. Frank McIntyre on June 7, 2006 at 2:29 pm

    DHofmann,

    Adam’s “Seeing a difference” is most emphatically not an attempt to blame the children.

  11. Last Lemming on June 7, 2006 at 2:34 pm

    That’s what these laws are always for. The marriage effect is a side-effect,

    The marriage thing is indeed a side-effect, but the overcrowding/noise control aspect may just be an excuse. In Manassas, VA, a similar ordinance was clearly aimed at discouraging Latinos from settling in the city and enforcement was suspended under threat of a lawsuit.

  12. Adam Greenwood on June 7, 2006 at 2:42 pm

    Actually, I do blame the children, Frank M. If the little buggers were just more lovable, maybe their parents would care enough about them to make some sort of commitment to the family.

  13. Frank McIntyre on June 7, 2006 at 2:46 pm

    duly noted.

    of course this creates an awful problem in research, since now one can claim that dual parent families aren’t making children better, rather better children make dual parent homes.

  14. JohnnyRotten on June 7, 2006 at 2:47 pm

    I am not an attorney, but it seems to me that the way in which this law is being applied would certainly violate the familial status provisions of the Fair Housing Act.

  15. DHofmann on June 7, 2006 at 2:54 pm

    “So the church’s idea that we *should* get married is irrational, indefensible, and immoral?”

    I’m talking about the courts making a distinction between married and unmarried when children are present, not about the church’s opinion of the value of one over the other.

    “Kids are now sealed to their parents whether the parents get sealed or not, because, hey, its not the kids’ fault.”

    Sure, why not? If there are blessings that come from being sealed, and if the withholding of blessings is a form of punishment, then the children are being punished for their parents’ transgression.

  16. John Mansfield on June 7, 2006 at 3:35 pm

    Well, the Church does encourage unmarried pregnant women to give their children up for adoption by parents to whom they can be sealed.

  17. MikeInWeHo on June 7, 2006 at 4:42 pm

    Finally got through to the link. Seems pretty clear that Black Jack, MO is trying to enforce a particular moral standard via force of law, nothing else. They come right out and say “Our community believes that this is the appropriate way to raise a family…” If the couple in question went out and got a marriage certificate, they’d be A-OK to stay.

    I’m continuously amazed at how many Americans fall into this. I mean, why not just bring back Prohibition, sodomy laws, divorce restrictions, etc? That’ll put all those moral reprobates back in their place!

    It’s particularly amazing when a Peculiar People with such a history of persecution begin to think along these lines.

    This is all just so much bluster and frustration from the (currently) losing side of the culture war. They can’t stop cohabitation, can’t stop the practice of homosexuality, can’t stop divorce….so they clutch at straws like trying to use zoning laws to expell fornicators.

  18. Adam Greenwood on June 7, 2006 at 4:53 pm

    “why not just bring back Prohibition, sodomy laws, divorce restrictions?”

    Yes, that would be horrible, especially the last.

  19. John Mansfield on June 7, 2006 at 6:55 pm

    Dry counties never went away. A tenth of the country live in them. I live in a dry town. It’s not so awful.

    Black Jack isn’t Zion, but this does bring to mind Section 45. “And the glory of the Lord shall be there, and the terror of the Lord also shall be there, insomuch that the wicked will not come unto it, and it shall be called Zion.” Even without battles, there would be no lack of people complaining that “the inhabitants of Zion are terrible; wherefore we cannot stand [them].”

  20. aletheia on June 7, 2006 at 6:55 pm

    I’d hate to be halled into court or have my local neighborhood administrator come by and see if my wife and I were really married. We have no kids and keep separate accounts by which we pay bills separately and collectively. There have even been times when one or the other has been away for extended periods for work and study. Will there be some kind of witnessed test of “consummation”, then?

    BTW, Doesn’t common law marriage already exist in Utah, based on a set number of years of cohabitation, as I understand there is in California?

  21. MikeInWeHo on June 7, 2006 at 7:13 pm

    re: 18

    Is that sarcasm? Given your previous posts, I think so, but I’m not sure. Why not just say it then? There’s nothing wrong with yearning for the good ol’ days as you imagine they were.

  22. Adam Greenwood on June 7, 2006 at 8:01 pm

    Aletheia,

    presumably you have a marriage license? Or are you trying to make a point about the difficulties with common law marriage.

  23. aletheia on June 7, 2006 at 8:38 pm

    Adam,

    I have paper in spades. You might even say I’m overmarried. I have a marriage license, certificates by two separate churches, consulate registration and the subsequent proliferation in documents that happens after marriage and name changes. Stamped and sealed and married time and again, I would still fall through with the criteria.

    So, yes, my point is about the difficulties of establishing meaningful criteria for common law marriage and the pitfall of holding one marriage model up as a norm in doing so. Wacky Hermitt’s criteria are well-meaning and good as far as they go. But, (2) is unverifiable except by (3) (and then imperfectly). (3) is not a marker of a large swath of “married” couples (the intentionally childless, the infertile, newlyweds). (4) is one way of arranging marital finances (and, for some, a bit of a holdover). (1) provides close to a minimum amount of time for a calendar year of cohabitation. For me, it’s more of a minimum test for that than a determiner of marital relationship (in ovo or not), though.

    It seems to me that the closest you can come to a functioning common law marriage statute is to prescribe a number of years of continuous or near-continuous cohabitation after which you’re deemed married without ceremony. Perhaps, there are other effective setups.

    As for barring people from housing because they cohabitate rather than live in marital bliss, I think it’s moralistic and discriminatory. I hope the attempt goes down in flames.

  24. Stenar on June 7, 2006 at 8:41 pm

  25. Adam Greenwood on June 8, 2006 at 12:24 pm

    Everything that makes distinctions is discriminatory. And all morals are moralistic. It would be the death of law and the church if we decided that we couldn’t do either.

  26. aletheia on June 8, 2006 at 3:45 pm

    Adam, There are distinctions that are so prejuditional that they deserve the specific label of discriminatory. This is one of them for me. I don’t think that landlords should be in the business of regulating marital or sub-marital relationships. They are not the proper party to do so and, besides, our secular arrangements tend towards disallowing them and others from doing so for good reason (That’s why, as a landlord, I shouldn’t and wouldn’t be allowed to discriminate against Mormons or Catholics because, well, they just have too many kids and these will wreck my investment).

    And, there is an operational difference between being morally upstanding and being moralistic. When someone from the outside sets up to preach and enforce a moral code where his or her authority is dubious and purposes murky, I would call it moralistic. These landlords are being moralistic and overweaning.

  27. Adam Greenwood on June 8, 2006 at 5:05 pm

    Aletheia,
    you are making circular arguments. You say its prejudicial for landlords (or, really, its the towns) to care about the marital status of their tenants, because its none of their business. Also, that its moralistic because its none of their business. But earlier, you said in effect that its none of their business because its moralistic and prejudicial. You probably have more to your ideas than what you’ve expressed and I’m interested in what it is.

  28. aletheia on June 8, 2006 at 7:19 pm

    Adam,

    First off, sorry for the “prejuditional” neologism in my last post. I must have been caught between words.

    I don’t think I’m being circular but here’s another, provisional go at describing my feeling. I assume that landlords are working as the primary agents of enforcement through pinpointing violations and calling in the local sheriff to enforce evictions. If anyone has any additional info on the practical workings of the laws in the state, I’d welcome it (especially on enforcement and the presence or absence of built-in judicial oversight of proposed evictions). In the meantime, I’ll proceed with the assumption. It seems, because of the prominence of the current case, that not all landlords choose to have the local ordinance enforced. Those that do seem to me to be peculiar and strike me as being overly inquisitive into the lives of their tenants (“shacking up” does not of itself cause any “problems” in the day-to-day running of a property) and to be using a point of law to impose their particular holding on the marriage institution. Is their attitude moralistic? I think it is because a landlord as landlord has no place providing guidance or correction in the moral lives of others. thus, he has overstepped his role and authority. As a friend to the couple or recognized religious authority for them, he’d be fine in encouraging and admonishing them to marry. As a landlord, he’s abrogating roles that don’t apply and violating what should be the minimal ethics of his position: providing secure shelter to tenants in exchange for a pre-established sum of cash or a pre-determined amount of labor service. Additionally, as a functional morality, the landlord is being shortsighted. A marriage certificate is not a certificate of moral good health and cohabitation is not the hallmark of depravity. [As for the city's role in passing the law and enabling landlords: I think it overstepped by trying to legislate a particular religious morality and marital form. Besides, it serves no public policy purpose of note].

    In what way is the ordinance prejudicial? It hurts tenants in their presumption that, barring property damage or default in payment, they will have lodging for a set amount of time. It hurts them in their expectation of privacy and it damages them in their ability to make informed moral choices for themselves in consultation with whatever faith, belief or conviction they choose (along with its representatives).

  29. Adam Greenwood on June 8, 2006 at 7:45 pm

    “I think it is because a landlord as landlord has no place providing guidance or correction in the moral lives of others. thus, he has overstepped his role and authority”

    -And the lawyer said unto him, Who then is my neighbor?
    -He who has been warned, let him warn.

    In essence, I think its discriminatory to treat things that are fundamentally the same as different (i.e., humans of different colored skin). It is not discriminatory to treat thing that are different as different. I believe social science evidence and our religion both teach that cohabitation is different from and inferior to, marriage. Therefore I don’t think its discrimination for a city to make distinctions between married households and all other households, especially because these ordinances are usually designed to keep out students or roommates from the neighborhoods, and as you pointed out earlier, its very difficult to tell roommates and cohabiters apart. I don’t see any compelling reason for cities to do this (that’s why I’m puzzled by Douthat’s post), but its not wrong either, and it should certainly be legal.

  30. aletheia on June 8, 2006 at 8:01 pm

    Our religious traditions teach that cohabitation is wrong and then they go looking for the social science. I disagree on the legality of these ordinances and on their “rightness” for ideological reasons. I think that government should be as unobtrusive in matters of Church and moral choice as possible. For me this holds especially with local governments because, at least with the city councils that I’ve sat in on and follow in the news, they are parochial and underrepresentative. They have no business legislating a moral consensus on such an issue as cohabitaters. For me, it’s “wrong” for them to try because it’s outside the scope of good government.

    But, hey, I’m in California and, as far as I know, these sort of ordinances have passed like the dodo bird here. Part of it is surely my own parochialism.

  31. Adam Greenwood on June 8, 2006 at 8:09 pm

    ” think that government should be as unobtrusive in matters of . . . moral choice as possible.”

    OK. I don’t, especially at the local level. I think that takes one vision of the good life (that morals and faith are primarily private concerns) and tries to impose it on everyone.

    “Our religious traditions teach that cohabitation is wrong and then they go looking for the social science.”

    So what? Our religious traditions are true and the social science is valid, far as I can tell. In fact, the original neo-cons in the 70s were social science types who migrated to conservatism because of what their research showed them.

  32. aletheia on June 8, 2006 at 8:59 pm

    As a religious minority in this country, secularism seems to me to be far less onerous in its “impositions” than government moved by faith. I’m an advocate of it from the national level on down. That said, I think it’s an exaggeration to put forth that secularism relegates faith and morals to some kind of dungeon of the private. In the States, it does put some strong blocks on the powerful imposition of faith-based morality on others. Again, I think that’s a good thing for the polity and for churches. Christian churches have historically made the mistake of dumping the concepts of being set apart and called to a be a peculiar people for the sake of political power with the right to command. I’d rather do without symphonia and the One True Church in my political life.

    That said, there are certainly real and troubling conflicts between people of faith and a secular morality (which can be prescriptive as well). I’d be more comfortable with local expressions of shared values if our local institutions were more transparent and representative. Then visions of the good life – and not just Secular vs. Religious in all capitals – could really compete in defining our local communities. When people on my schoolboard don’t even bother to provide a platform for the electoral information sheet, the county district attorney runs unopposed, my city council members don’t campaign and control public input with a stranglehold around procedure (while being so open to the concerns of developers), etc., you’ll forgive me if I question their representativeness and moral compass. It’s a problem of democracy as well.

    That’s a largish so what. The motivation behind your social science – whether it subtends the methodology or is simply reflected in which bits of social science are marshalled in argument – matters. This is why those in dissent remain so often in dissent. They suspect that we’re really gathering up anything and anything that might support a religious position that is for us unquestionable and doing some deceitful backending with it. And, quite frankly, there is a lot of dishonest use of social science in the service of faith.

  33. Kristine Haglund Harris on June 8, 2006 at 9:20 pm

    Adam, would it be OK for a community to enshrine its belief that children are entitled to being raised by a mother and a father by prohibiting single parents from renting?

  34. MikeInWeHo on June 9, 2006 at 1:44 am

    “It is not discriminatory to treat thing that are different as different.” True, but you seem more concerned with the appearance of difference, Adam G. With our Black Jack, MO family, all they need to do is go and get a piece of paper and suddenly they’re OK. NOTHING else may have changed. Does the marriage certificate ensure they’re any more faithful, loving, or even monogamous? Therein lies the dilemma with trying to legislate, zone, or enforce morality even at the local level. All you do is create more hypocrites and hidden misery. My vote is for maximum honesty and freedom. If that leads to an approval of FLDS polygamy, so be it. If my neighbor marries a cow, well that’s gross but as long as the mooing doesn’t wake me up I can tolerate it. They might be great neighbors for all I know.

    This has the added benefit of creating a true, open market for moral viewpoints. Maybe in the end, we’d all wind up Mormons.

  35. Adam Greenwood on June 9, 2006 at 12:18 pm

    “You’ll forgive me if I question their representativeness and moral compass”

    No, I won’t. By asking for political perfection before religion and moral truths can find a place in a polity, but not otherwise, you are once again showinga bias towards liberal, secular conclusions.

    KHH,

    I think it should be constitutional, yes. I don’t think its a good idea, but so what?

    “all they need to do is go and get a piece of paper and suddenly they’re OK. NOTHING else may have changed”

    I think its very rare that NOTHING else will have changed. I am not one of those who think that the difference between shacking up and marriage is just a piece of paper and no Mormon should be.

  36. aletheia on June 9, 2006 at 12:47 pm

    Adam, I’m not asking for political “perfection”. I’m asking for political representation and ethical political conduct before I’ll consider my local politicians as authorized to police issues as particular as cohabitation. And, I take issue with your characterization that I am “showing my bias towards liberal, secular conclusions”. I have already declared that I generally support a secular public sphere for a variety of reasons, of which the inadequacy of my local politicians as regards this issue forms a part. This is not equivalent to saying that religion or religious conviction should have no part in public life. For example, my church doesn’t have a just war theory per se. In fact, the exercise of violence forms an especially grave category of sin (This is why, for example, any man who has killed another human being, intentionally or accidentally, is barred from becoming a priest). This means that, for me, the case for war, any war, has to be especially urgent. Iraq never made the grade for me on those grounds and I have been vocal about it with my Senators, local congressman and the President. But, since we’re talking about moral turth and religion as they legislate themselves, how about you join with me in getting a law passed in which we renounce violence altogether, pull out of Iraq, disband the military, destroy our guns, make our swords into plowshares? It would be a very Christian thing to do. [I await your explanation on how this would be too dangerous, too hard, too religious and particular a thing to do to the polity]

  37. Adam Greenwood on June 9, 2006 at 1:22 pm

    ” I’m asking for political representation and ethical political conduct before I’ll consider my local politicians as authorized to police issues as particular as cohabitation.”

    Exactly. You are willing to accept liberal, secular results from a flawed political process but not ones based on truths and rights and wrong that find their basis in religion.

    My objections to your pacifist program aren’t that you’ve derived it from your religious teachings.

  38. aletheia on June 9, 2006 at 1:34 pm

    My guess is that you are rather happy that our secular, democratic system insulates you from the imposition of my pacifist program. We could go on to particular and unusual applications of religious doctrine from my faith to the polity. I’d hope you’d be willing to admit your unwillingness to conform your life to the eternal principles and moral truths of Eastern Orthodoxy before then.

    Secularism works well with a flawed political process because it aspires to guarantee a fundamental freedom – the right to be free from government interference in matters of religion. I don’t feel fundamentally hampered, gagged, or injured in my morality or politics by that and if the U.S. looks a little less like Mount Athos for it, so be it.

  39. MikeInWeHo on June 9, 2006 at 1:44 pm

    re: 35. I agree completely, but presumably the people in Black Jack aren’t Mormons. My point actually reinforces yours, I think. Marriage should and must mean something very significant. But forcing it on people via zoning laws like this one just diminishes it. If that couple wants to live there but does not want to be married, so be it. The neighbors are completely unaffected whether they are married or not. Zoning laws like this are just like trying to encourage WoW compliance by attempting to ban alcohol sales. It does not work.

  40. Adam Greenwood on June 9, 2006 at 1:47 pm

    “My guess is that you are rather happy that our secular, democratic system insulates you from the imposition of my pacifist program.”

    No, I’m happy that our rugged common sense insulates me from the imposition of your pacifist program. Plenty of secular types are pacifist, for whatever reason, and they’re making no headway.

  41. Adam Greenwood on June 9, 2006 at 1:50 pm

    “Secularism works well with a flawed political process because it aspires to guarantee a fundamental freedom – the right to be free from government interference in matters of religion”

    Religious freedom, not secularism, is what guarantees the right to be free from government interference in matters of religion.

    What works particularly well with a flawed political process is a sense of limits. Which is why local zoning laws are a lot less worrisome than national ones.

  42. aletheia on June 9, 2006 at 4:45 pm

    The guarantor of our freedom to practice religion as we choose is the commitment to a public space that favors no one religion. I’d call that secular public space. If you want to give a more expansive definition of the

    Oh, “common sense” dictates against pacifism. I was wondering when that old spectre would make his appearance again. Point is that you don’t like the very serious moral dictates of a religious tradition because you’re unwilling to take on the risks involved. You’re going to ignore that moral imperative from that religious tradition. Fine. I think you should be free to do so. But don’t tell me that I am unwilling to follow the clear dictates of the moral and religious – or that I want to sanitize the public sphere of religion – because cohabitation laws strike me as misplaced.

  43. Adam Greenwood on June 12, 2006 at 7:33 pm

    “But don’t tell me that I am unwilling to follow the clear dictates of the moral and religious – or that I want to sanitize the public sphere of religion – because cohabitation laws strike me as misplaced.”

    No, but I will tell you that you are unwilling to follow the clear dictates of the moral and religious and that you want to sanitize the public sphere when, as in this thread, your objection to distinguishing between cohabitation and marriage is that its a religious idea.

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