Jan 282007
Authors: Student Legal Services

Government investigation into who we are living with has begun! Investigations are triggered by complaints, and the city reports 17 complaints have been filed since enforcement of the “Three Unrelated Rule” began less than a month ago. If you’re still living with more than two other people and you’re not in a residence specifically approved for more than three, check the advice in our last column. (collegian.com – search for “ready or not here they come”)

As promised, this column explores whether a constitutional attack on the ordinance could win. If you haven’t been to law school or been taught the mind gyrations of constitutional interpretation, you will probably jump to the wrong answer. The list of constitutional protections this ordinance seems to violate is long: Right to privacy; freedom of association; equal protection; due process; sanctity of the family; freedom to contract – just for starters. Plainly speaking, it doesn’t seem like it’s any of the government’s business who we live with.

I began research for this column hoping I’d find support for this. I found the opposite. Entrenched in our system is the concept that individual freedoms are counterbalanced by government “police power” – and I don’t mean a police officer’s power. A government’s police power is the ability to place restrictions on private rights in the name of promoting the “health, safety, morals, and general welfare of the public.” These are pretty broad words, and they support a host of government regulations. A few examples are zoning laws that restrict use of our own property, underage drinking laws that restrict our personal choices and licensing laws that control our professions.

When a government regulation is challenged, courts apply two different tests to decide whether the individual right or the government’s police power wins. If the court thinks the government regulation restricts a “fundamental right” (such as freedom of speech) or impacts a “protected category” (such as race), the court “strictly scrutinizes” the regulation and looks to see if there is an overriding “compelling” governmental interest. If the court does not find a fundamental right or protected category, it merely looks to see if there is a rational relationship between the regulation and the goal sought to be achieved by the regulation. In short, you fare much better if you get the “compelling interest” test rather than the “rational relationship test.”

Now, the first question: Does the Fort Collins ordinance impact a protected category? It gives unequal treatment to those who are unrelated, but “being unrelated” is not a protected category recognized in the law, like race, color, or religion would be.

Second question: Is there a fundamental right involved? It sure seems like there is, but the United States Supreme Court has ruled otherwise. In the landmark case of Village of Belle Terre v. Boraas, the Court ruled that a similar ordinance did not involve a fundamental right. From there, the challenge was doomed. The Court applied the “rational relationship” test and concluded that the ordinance bore a rational relationship to the government’s goal of promoting community values and a certain quality of living. The challengers even pleaded that the ordinance was “antithetical to the Nation’s experience, ideology, and self-perception as an open, egalitarian, and integrated society.” The Court disagreed and explained that even when the line drawn by the government seems arbitrary, when a line must be drawn (to protect the quality of neighborhoods), the legislature’s decision as to where the line is drawn must be accepted unless it is very wide of any reasonable mark.

Don’t count on beating the “Three Unrelated Rule” by challenging its constitutionality. We think our nation is founded on principles of individual freedom and privacy and that everyone enjoys the same rights, whether you’re married, unmarried, related or unrelated. The truth is, most every aspect of our lives is regulated. The freedoms we think we have are certainly not absolute. We need to know this when making our cohabitation choices, as well as many other choices in life. We can’t forget, however, history’s many examples of bad laws once supported by governments and judges that were ultimately overturned – it wasn’t so long ago segregated drinking fountains were legal. While it is smart to comply with the ordinance given the current state of the law, that doesn’t mean we give up advocating for what is right.

This column is provided by Student Legal Services. It appears every other Monday in the Collegian. To learn more about the services offered by SLS or to make an appointment, visit their office in Room 182, Lory Student Center, and visit their website at www.sls.colostate.edu.

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