Village of Belle Terre v. Boraas – Oral Argument – February 20, 1974

Media for Village of Belle Terre v. Boraas

Audio Transcription for Opinion Announcement – April 01, 1974 in Village of Belle Terre v. Boraas
Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Warren E. Burger:

Thank you, Mr. Justice Brennan.

We’ll resume arguments in Village of Belle Terre against Boraas.

Mr. Gegan, I think you have about 10 minutes remaining all together.

Bernard E. Gegan:

Mr. Chief Justice and may it please the Court.

Yesterday, I had tried to make two basic points.

First, the general proposition that the village has a legitimate interest, being zoned as a one-family community, a legitimate interest in imposing some kind of limit on a number of unrelated people who may aggregate together under the roof of one private residence.

William O. Douglas:

That is two, as I understand it.

Bernard E. Gegan:

That is the particular figure set by the village, Your Honor, and yet, at the same time, an equally legitimate interest in not imposing the same kind of numerical limit on the occupancy of a traditional family.

That’s the basic principle, but as Mr. Justice Douglas said, our village has a limit of two.

Additional public purposes are particularly relevant to the number two.

The legitimate interest of the village in equalizing the competitive position of families seeking to rent a residence with an aggregation of unrelated individuals seeking to rent a residence.

Families have usually one income, perhaps two incomes.

Whereas, a group of unrelated individuals, each eating separate — leading separate lives can have a pooling of far greater financial resources and could easily bid a family out of any market to occupy a residence.

The case of Dandridge against Williams turned in part on a similar consideration.

The ceiling in that case, put on aid to families with dependent children, was justified by a parity between what a welfare family would be earning and what a wage-earning family would be earning.

Indeed, this is an easier case than Dandridge, because in Dandridge the classification placed at a disadvantage the under-privileged group whereas in our case the classification seeks to benefit and give a break and a parity to the entity that would otherwise be at a disadvantage, namely the family.

This seems obvious to us, yet the plaintiffs have suggested that this is not a real concern of the village, that it’s a fictitious, a spurious concern.

I don’t know where they get their crystal ball to make such an assertion, but I’m here to tell you that the village has a legitimate and real governmental concern with this problem.

We are 15 minutes from the State University at Stony Brook which has a potential of thousands of unrelated people.

The exact figure at Stony Brook is not in the record, but it’s a matter of public record so it could be judicially noticed, over 12,000 students are at Stony Brook.

Several — a few houses in the immediate neighborhood of the Dickman house have already been rented at about $350 a month.

The Dickman house, which is rented to the group of students, rents at $500 a month.

The disparity is there, and under the law of supply and demand, houses that are not presently on the rental market can come on the rental market once it is seen that we have an abundant demand on the part of unrelated people who are willing to pay plenty to occupy a one-family residence.

The last major public purpose underlying this ordinance is the community’s legitimate interest in stability.

If it may reasonably be thought that groups of unrelated people tend to be more transient and provide a less stable community, then it seems to us that a one-family zone limited primarily to families and small twosomes of unrelated people promote this additional legitimate interest.

Indeed, on the point of stability, one need only look at the record in this case, appendix page 11.

The plaintiffs’ own allegations were that it was never planned that these students would be permanent residents.

Two of them were on the lease.

Four of them were not on the lease, and it was contemplated that they would come and go.

The only constant thing was that the total would remain at six.

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Bernard E. Gegan:

So, this is clearly a more transient situation than family occupancy.

The plaintiffs say that we live in a mobile society and even families move, and they cite some figures, but those are gross figures.

They don’t give a breakdown as between families, non-families, people who rent, people who own.

Your Honor, I’d like to reserve a few minutes.

If may, thank you.

Warren E. Burger:

Very well.

Mr. Sager.

Lawrence G. Sager:

Mr. Chief Justice and may it please the Court.

The Belle Terre Ordinance which is challenged here and which was invalidated by the Second Circuit Court of Appeals below is, in many respects, an extraordinary piece of municipal legislation.

It’s important at the outset, I think, to recognize what the Belle Terre Ordinance is not.

It is not an ordinance of the kind which this Court validated in its sweeping decision in Euclid versus Ambler, and it is not in like fashion an ordinance of the character which has received widespread acceptance a tradition of comprehensive local zoning as taken hold in this country as a result of this Court’s Euclid decision.

It is different because it in no sense, purports to segregate incompatible physical uses of land or to encourage the productive use of land.

What this ordinance does in its substantial purpose, in its operative criterion, and in its effect is to exclude persons who are regarded as uncongenial from a community, and exclude them not merely on the basis of a random criterion of uncongeniality, but on the basis of a criterion of deeply personal choice, namely a person’s choice of household associates.

In justification of its ordinance —

Potter Stewart:

Oh, would you — under your view, would — could somebody open rooming house and this constitute — would have the constitutional right in spite this zoning ordinance to open a rooming house?

Lawrence G. Sager:

No, Your Honor, I don’t think —

Potter Stewart:

Why not?

Lawrence G. Sager:

— that is our view.

Potter Stewart:

Why not under your argument?

Lawrence G. Sager:

Under our argument, essentially, the village has proffered two characters of legitimating interests.

On the one hand, they’ve proffered an interest and they acknowledge this candidly, Your Honor, in social and in creating a socially homogeneous community and, on the other hand they’ve proffered the more orthodox interest which they’ve expressed an oral argument before you.

Our argument, Your Honor, is simply, first, that the creation of socially homogeneous enclaves is not a legitimate interest of government and, second —

Potter Stewart:

Well, I don’t —

Lawrence G. Sager:

If this ordinance bears no rational relationship whatsoever to the interest which have been discussed before this Court.

Now to get — and I’m sorry that I deferred your question.

In the situation involving a boarding house, it’s entirely possible in most communities that there would be substantial legitimate governmental interests justifying the prohibition of a boarding house.

This is not such a situation in the instant case.

William O. Douglas:

Now, say, there’s fencing out socially undesirable people.

Lawrence G. Sager:

That’s correct, Your Honor.

William O. Douglas:

But I understand that two socially undesirable people could —

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Lawrence G. Sager:

Yes, Your Honor.

This was the point made by Justice Rehnquist in argument yesterday.

It’s interesting to note, however, if you refer to the appellants’ brief in this case at page 30, the appellants give their explanation for permitting an unrelated household of two persons, and that explanation makes it perfectly plain that they regard this as a grudging exception which violates their basic policy of excluding unrelated persons.

Their rationale expressed on page 30, in essence, runs as follows.

We recognize that, says the village, that there may be some single persons who own a house in Belle Terre by themselves and we think it would be unjust to make them move, and we’re concerned that they may be lonely and so we permit them to have one associate.

Now, I don’t criticize the policy, let me make clear, of allowing two unrelated persons, but I do want to make it perfectly plain that the village by its own description, of its reason for this exception to the exclusion of single families, does not purport to be saying “yes, we in fact like single — a traditional — untraditional household groups, but we want to regulate their size,” rather, it says “we want to keep unrelated persons who form households of such persons out of this community, but we realize the equities become so great in some situations that we make an exception.”

That’s the village’s own characterization of that, accepting, Your Honor, not mine.

Warren E. Burger:

Mr. Sager, I’m not sure I attract your response to Mr. Justice Stewart’s question, but let me try another one that might be somewhat like it.

What about a fraternity house?

Lawrence G. Sager:

Again, Your Honor, I think that the question in each instance would be at a minimum as in any governmental classification which deprives a given group of people of a substantial benefit.

Is there a legitimate interest which substantiates or supports or justifies this classification?

I think in the case of a fraternity house, in many communities there might indeed be such legitimate interests.

There might be serious concerns about the supply of parking, for example.

There might be other legitimate concerns.

Where those concerns existed, our quarrel with such legislation would largely cease.

William H. Rehnquist:

But why wouldn’t there be serious concerns about parking here, where you have six individuals in a house and, very likely, each of the six might have their own car?

Lawrence G. Sager:

In this instance, Your Honor, there are several important reasons, I think, for believing that this ordinance does not rationally advance.

First, that this ordinance does not advance any such concern and, secondly, that the village has no such concern.

If I can start with the second half of that argument, this village has 220 homes distributed over an area of more than a square-mile.

The present density of population in the village of Belle Terre is 1.1 persons per Acre, an extraordinary low density.

Parking by the village ordinance, which we cite to this Court, I believe at page 53 of our brief, parking by virtue of the village ordinance is prevented on any street of the village.

At this time, there are no cars parked on the streets of the village.

For these 220 homes and 700 people, there are 4 municipal parking lots provided.

There is absolutely no showing that this village has or has ever had any concern with a parking problem of any kind, nor is there any reason to believe that where we confronted with a village which had a parking concern that this ordinance would in any way rationally advance that interest.

The parking argument, among other things, is tied of course to the argument which Mr. Gegan made yesterday concerning the density of population, and I’d like to examine that argument briefly for a moment.

William H. Rehnquist:

How about the parking argument or is this going to be an —

Lawrence G. Sager:

I think — well, let me say that I think that if there is a relationship between parking and the relationship with the people who live in a house, it must turn on one of two suppositions, neither of which I think is accurate.

Either that more people will live in Belle Terre if this ordinance is invalidated or if this ordinance did not exist, or that more people who drive cars will live in Belle Terre.

I don’t think either supposition can be sustained.

On the first question of whether more people will live in the village, let me make perfectly plain what this ordinance permits and what it prohibits.

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Lawrence G. Sager:

It permits any number of persons related by blood or adoption or marriage to live in a household unit.

They may be related by any remote degree of consanguinity as in — as the — in their own brief the appellants admit they may be brothers, sisters, cousins, grandfathers, or uncles.

Moreover, under this ordinance, they may have, living in their household, any number of household servants whatsoever.

They may have, in other words, more household servants that may live under an unrelated household independently in the village.

So, an extraordinarily large number of people may live in a house of any size in the Village of Belle Terre if they bear the magical relationship of familial ties.

If they do not, three persons violate this ordinance, three spinsters, as was suggested yesterday, three school teachers or, as the Court of Appeals below noted, three judges violate this ordinance.

Lewis F. Powell, Jr.:

Mr. Sager, I’d like to understand at the outset whether you are attacking the concept of single-family residential zoning wherever it may be.

I would suppose that most cities in the United States have single-family residential zones.

Are you saying that all of those are invalid?

Lawrence G. Sager:

Not at all, Your Honor.

Lewis F. Powell, Jr.:

Well, what —

Lawrence G. Sager:

If by single-family zone, what one means is detached residential dwellings on individual parcels of land.

Nothing in the attack which we have successfully mounted below on this ordinance and press here, nothing whatsoever speaks to the invalidity of detached single-family dwellings.

We challenge merely the notion that a community can say who will occupy those houses and moreover, that they can select a criterion of household association in Soats against Osang (ph).

That’s solely the attack we make on this ordinance, and we don’t intend and I don’t believe our attack has any implications which speak to the invalidity of single-family dwellings in residential communities.

Potter Stewart:

But you do say that the village cannot define the family.

That you can define it any way you want so long as you live in a detached house, isn’t that correct?

Lawrence G. Sager:

That is correct.

Potter Stewart:

And so, to that extent, it is a general attack of the kind that suggested in the question of my brother Powell?

Lawrence G. Sager:

If by single-family zone one means to characterize the household unit in terms of the kind, the quality of the relationship which exists between those people, and particularly to draw on a delicate choice like that of living or not living with one to whom one is related by familial ties, to that extent, necessarily, we attack the single-family residence zone only if that’s what one means by that.

Potter Stewart:

And you say the village, in this case at least, has no constitutional power to define the family the way, at least, the way they did.

Lawrence G. Sager:

I think that’s right.

Potter Stewart:

You cannot confine it to, I think, what sociologists now call a nuclear family, is that right?

Lawrence G. Sager:

Yes, although I — just to be perfectly accurate about what this ordinance does, Your Honor, it is not restricted to what I think sociologists would characterize as a nuclear family because the familial bond which satisfies this test can be a good deal more remote than the nuclear family.

It can be, for example, a remote pleasant unrelated grandfather.

Potter Stewart:

Well, tribal — they can’t just define it in tribal terms.

Lawrence G. Sager:

Tribal terms, may be more accurate, Your Honor.

Thurgood Marshall:

Your clients do not form a family, do they?

Potter Stewart:

By your definition, they do, don’t they?

Lawrence G. Sager:

They do not.

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Lawrence G. Sager:

I think we would have to ask whose definition was being drawn on, Your Honor.

By sociologists’ definitions, I’m not sure.

By the village of Belle Terre, certainly not, by mine, they certainly formed a single-housekeeping unit.

As a practical matter, they —

Thurgood Marshall:

My question was these are family?

Lawrence G. Sager:

They are not what I would call a family, Your Honor.

Thurgood Marshall:

So they wouldn’t qualify under the regular ordinances, they’re restricted to single-family dwellings.

Lawrence G. Sager:

Well, many of those ordinances —

Thurgood Marshall:

Isn’t that right?

Lawrence G. Sager:

It depends very much on how those ordinances are read.

Ordinances —

Thurgood Marshall:

Well, the ordinance says not more one family may live in any dwelling in this village.

Lawrence G. Sager:

Many State Courts confronted with ordinances like that have said that groups like these students may live in such a community.

It depends —

Thurgood Marshall:

You mean it’s a family?

Lawrence G. Sager:

Many State Courts have held so, Your Honor.

Thurgood Marshall:

Many?

Lawrence G. Sager:

A substantial number.

Thurgood Marshall:

Over two?

Lawrence G. Sager:

Over two.

I can’t give you the exact number.[Laughter]

Thurgood Marshall:

How —

Warren E. Burger:

What’s the limit on the numbers?

We have six in this case, haven’t we?

Lawrence G. Sager:

Yes.

Warren E. Burger:

What about 12, would you make the same arguments with respect to 12?

Lawrence G. Sager:

I wouldn’t quarrel and the appellees would not quarrel, Your Honor, with any ordinance that imposed reasonable occupancy standards in terms of numbers on household residencies, and did so not merely to people who are unrelated by blood, adoption, or marriage, but across the board.

Many communities in the United States, for example, have addressed the problem which we don’t believe the village possess or was addressing here of density by – by stipulating density of occupancy on the basis either of the square feet of dwellings or on the basis of the number of bedrooms in a household unit.

Such a neutral standard, we spoke not to the kind of person who lived in a community, but to the extent to which they adequately or used or surcharged the residential facilities in that community, we would and could have no quarrel with it.

Warren E. Burger:

Then I take it, your answer is that if the house is large enough, you’d be making these same arguments with the community group of 12, is it not?

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Lawrence G. Sager:

Well except, Your Honor, I think that if this village or another community wanted to, it could also regulate the size of its houses.

I mean, the community has at its disposal simple constitutional and socially unobjectionable ways of securing the end of regulating density.

Potter Stewart:

Well, the village might find it very socially unobjectionable to penalize an impoverished large family by saying that you couldn’t be — have more than one child in a room or something like that.

The village might find that intolerable as a matter of social policy?

Lawrence G. Sager:

I think they would, Your Honor.

Potter Stewart:

So, I don’t — I think you’re quite wrong in indicating this would be very easy for one to do as an alternatives?

Lawrence G. Sager:

I think – I think Your Honor, that if density were a serious concern of a community, it could certainly impose standards which would secure a maximum density in the community in this way, it could permit very large structures for families or other groups in so doing.

Let me say that, and make perfectly clear because I think the argument of the appellants here has been a little misleading.

This ordinance has been justified below and justified in the brief by the appellants here on two very different kinds of grounds.

And, it’s critical I think to separate out those grounds and to delineate the two different positions that, as appellees, we take to each of those grounds.

On the one hand, the village has candidly acknowledged that it intended, as it clearly must have when it passed this ordinance, to project into law the social preferences of the residents of the village of Belle Terre for a socially homogeneous community, for a community in which neighboring households would be exclude — would be comprised exclusively of traditional families, and on the other hand, the community has argued that very much more orthodox interests such as density of population, transiency of population, and red level support this ordinance.

Now, as to the former we claim, and I believe that this is the crux of the case, that it is simply not a legitimate interest of government to divide this society into socially homogeneous residential enclaves.

Lewis F. Powell, Jr.:

Mr. Sager, how do you define socially homogeneous families?

Lawrence G. Sager:

Socially homogeneous families?

Lewis F. Powell, Jr.:

Yes, you keep referring to the purpose of the ordinance being to create a community of 220 houses all containing socially homogeneous families.

How would you define such a family?

Lawrence G. Sager:

Your Honor —

Lewis F. Powell, Jr.:

There’s no restrictions on what types of families may enter this community, are there?

Lawrence G. Sager:

There are no restrictions on what kinds of families may enter this community.

Lewis F. Powell, Jr.:

How can you say they’re socially homogeneous then?

Lawrence G. Sager:

I don’t think I can, Your Honor.

The village clearly, by its own statements, hopes that the kinds of people who share these ties of blood, marriage, or adoption will in some way comprise households which are more congenial to the present residents of the village.

Lewis F. Powell, Jr.:

There’s no difference really what you consider family and what I consider family, what [Inaudible]

Lawrence G. Sager:

I’m not sure, Your Honor, because I think the question may — one may have to ask a question which precedes the discussion of what a family is, namely whether community should be allowed to divide themselves into enclaves for families however divided, into enclaves for single people.

Village, since the establishment of comprehensive municipal land use regulation in this country, there have been a variety of attempts which sound of the quality of the Belle Terre ordinance.

As we suggest in our brief, communities have attempted to exclude the physically or psychologically infirmed, communities have attempted to exclude the old, communities have attempted to exclude the young, communities have attempted to exclude families with children, communities have attempted to exclude families without children, and the Village of Belle Terre and some other communities have attempted to exclude those people who form a household whose ties do not enjoy the familial blood, marriage, or adoption part.

Potter Stewart:

That’s a quite different case.

It’s a very interesting case, but quite different ones, the ones you just talked about.

Belle Terre hasn’t presumed to exclude children or old people or young people.

Lawrence G. Sager:

Just unrelated people.

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Potter Stewart:

Or people of any particular race or anything else.

This is quite a different case, is it not?

Lawrence G. Sager:

I think, Your Honor, it is not a very different case from the ones I —

Potter Stewart:

Are you suggesting that government has no interest in the preservation of the nuclear family?

Lawrence G. Sager:

I think, Your Honor, as this Court has made clear as recently as its decision in Weber versus Edna, the government clearly does have a legitimate interest in the preservation of the nuclear family.

Potter Stewart:

Certainly, that’s what all their laws of — civil laws about marriage and divorce and child dependency and all domestic relation law is all about.

Lawrence G. Sager:

Absolutely.

Potter Stewart:

It’s been a — for centuries, it’s been considered a legitimate interest of government, has it not?

Lawrence G. Sager:

It has, Your Honor.

I think the question is whether the village’s ordinance in any way speaks to the preservation of the nuclear family.

All that the village has argued that this does, vice versa the nuclear family, is to provide the nuclear family with residential neighbors who are similar to it in being nuclear families.

How this speaks to the preservation of the institution of the family is not something which I think is clear or defensible —

Potter Stewart:

The argument is that you’re pricing families out of the market in Belle Terre.

You’re familiar with your brother’s argument.

You can’t disregard it.

Lawrence G. Sager:

No, and we certainly don’t, Your Honor.

As regards the argument which has been advanced by the village in terms of pricing the families out of the market, there are several propositions which I’d like to make very clear because I think the village has failed entirely to demonstrate either that this possibility exists in Belle Terre or that this ordinance in any way would address such a possibility.

Let me make clear the state of the record on this matter.

First of all, there’s no indication whatsoever that in this small middle class suburban community that there are any substantial number of rental units available at all.

In their canvas of the Belle Terre community, in their one affidavit speaking to this question, the village was able to come up with only two other houses available for rental other than the Dickman house which was the original subject of this litigation below.

So, this is a village which, in all probability, does not today and will not in the future have any substantial number of rental units available at all.

William H. Rehnquist:

But of course, that itself, is a matter of supply and demand, isn’t it?

If, in fact, you succeed in invalidating the ordinance and owners find that they can get two or three times as much as they now could by renting to groups of six students, maybe there’ll be a lot more rental available.

Lawrence G. Sager:

Your Honor, there’s no indication in the record and I think that — and no intuitive justification for the proposition that six students occupying a house are going to be willing or able to spend any more than the middle class families that live in Belle Terre today.

William H. Rehnquist:

Well, but the – the question is whether the Belle Terre Village Board could reasonably have thought that might be the case?

Lawrence G. Sager:

Your Honor, if there was a shred of ev —

Byron R. White:

Might three judges or five judges think this record important?

Lawrence G. Sager:

Three judges or five judges might, Your Honor, although it’s – it’s significant to note that by the village’s own definition of its perception of the problem, it was a student population that it was concerned with and not a set of wage earners that it was concerned with in this instance.

Your Honor, in — Mr. Justice Rehnquist, in response to your question, I think that if it were the case that the village could have shown itself to have in any sense perceived, examined, analyzed the existence of a problem, namely that there was an inadequate supply in the village or in the region in which it’s a part of single-family homes for single families, in that situation and in the situation where there was some coordinated effort on the part of the village and other communities to adjust to this need, I would say that this was entirely the kind of governmental judgment which could be made.

There is, however, in the record absolutely no indication that the village had this in mind when it passed the ordinance, that it examined the situation, or that it set out to adjust this need.

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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William H. Rehnquist:

That isn’t the test.

As I understand under economic equal protection, the test is whether the legislative body under any hypothesis could have rationally conceived this to be the case.

I don’t believe, at least as I read the cases, they have to come in Court and prove that they in fact considered it or that they did research and here’s what they’ve come up with?

Potter Stewart:

Well, you know that would overrule Euclid against Ambler, wouldn’t it?

Lawrence G. Sager:

I don’t —

Potter Stewart:

The whole doctrine of the presumption of the validity of zoning laws.

There is a presumption of their validity, right?

Lawrence G. Sager:

There is a strong presumption and a justifiable presumption of their validity, Your Honor.

I do not believe that to hold that in this case would in any sense threaten that presumption because, again, I want to make very clear that you have here a situation where an ordinance by its operative criterion addresses itself to the kind of person who lives in a community and where the village, by its own admission, has as a primary interest the exclusion of uncongenial households.

In this situation, it seems —

Byron R. White:

That’s one way of — that may be one way of putting it, but wouldn’t you make the same argument if they just came at it by — from the way of density?

Lawrence G. Sager:

No, then I think one could address density very much more on the merits if one had an ordinance which was — which by its terms, was rationally adopted to addressing the density problem.

I think one would have a totally different case here.

What I think we have here is a case that is very much like this Court’s decision in Department of Agriculture versus Moreno and very much like this Court’s decision in its — in the recent LaFleur case and, in particular, Mr. Justice Powell’s concurring opinion in the LaFleur case.

In this important respect, you have here an obvious, and also I should say this Court’s decision I think in Eisenstadt versus Baird, you have here a case where the obvious primary and dominant motivation of the community was one which is either patently invalid or highly suspect, and you have here what I think we must agree or really, to use Mr. Justice Powell’s term, after the fact rationalizations for this ordinance.

Now, if this Court adopts literally the language of McGowan or the Lindsley case, long before McGowan, in addressing these after the fact rationalizations, then what — what really happens is that an ordinance motivated and admittedly motivated by what I think this Court must conclude as a legitimate — as an illegitimate interest of government will necessarily pass constitutional ordinance.

Potter Stewart:

What is this illegitimate interest?

Lawrence G. Sager:

The illegitimate interest is that in creating a socially homogeneous community by–

Potter Stewart:

Well, there’s no restriction on good families or bad families or law abiding families or criminal families or poor families or rich families.

There’s nothing — I don’t understand your brother even implicitly to concede that that was the motivation behind this ordinance and, demonstratively, it isn’t.

There’s nothing about the families having to be compatible or homogeneous or all upper middle class or all lower middle class or anything else?

Lawrence G. Sager:

No, but what they must be, Your Honor, is, in every case, families. On page 25 —

Potter Stewart:

That’s right.

Lawrence G. Sager:

— of the appellants’ brief, they lead out in describing the motivation of this ordinance with the conclusion that what is involved here is a social preference in favor of promoting and supporting family organization through residential proximity.

It —

Potter Stewart:

Excuse me.

Lawrence G. Sager:

Excuse me, Your Honor.

Potter Stewart:

Well, never mind.

Lawrence G. Sager:

I just wanted to go on to say that is, I think, significant to note, and I have not yet said it, that the District Court found as a matter of fact this ordinance was not rationally related to any of these orthodox interests, be they density, transiency, or rent level.

And, the Court of Appeals concurred in that judgment.

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Lawrence G. Sager:

There is a — there is a substantial analytical disparity between the position of the District Judge and the majority below, but the one thing they had in common was a complete and comfortable rejection of the view that these more orthodox interests of government could be the basis for justifying this ordinance.

Their discrepancy was in the District Judge’s perception that the interest in having families and in having family organization was a justifiable interest, and the Court of Appeals concluding that that had no place in a – in a unit or subdivision of government and that, I think, is the crux of this case.

I think it’s critical to examine the more orthodox or traditional interests which are proffered, but critical to examine them only to realize that they are indeed after the fact rationalizations of an ordinance which should rise or fall on very different constitutional grounds, I think.

I think with the aid of your questioning, I addressed two of the governmental interests which the village has advanced, namely density, where I’ve tried to show that the community has no density problem.

It’s a fully developed community.

It could regulate over crowding of its facilities comfortably if it wished, and it presently enjoys or suffers a density of population of 1.1 persons per acre.

There’s no demonstration whatsoever that in 1971, when this ordinance was adopted late in 1971, there was any reason that this community feared or could have feared a sudden influx or change in population and, more importantly, even if it could, I hope that I’ve demonstrated that this is an utterly hopelessly crude and arbitrary way of achieving it.

The one fact which I did not mention in this connection is that census data indicates that far from the intuitive proposition that somehow families are self-regulating and unrelated households are not, that the average size of families is considerably larger than the average size of unrelated households and that —

Warren E. Burger:

In this community?

Lawrence G. Sager:

Throughout the country.

Warren E. Burger:

Well, I were —

Lawrence G. Sager:

The census data, Your Honor, is not broken down by community that we have.

However, it is broken down by kind of community and it’s very plain that these figures hold for suburban communities on the urban fringe like Belle Terre, as well as for the city, as well as for the rural areas.

Warren E. Burger:

Suppose the City Council then or the Zoning Board, the governments, in laying out their plan for this kind of a city said “our objective is to try to maintain not more than an average of three per household acre and that while we may not be able to achieve it perfectly, that’s our objective.”

That being articulated, do you say that their density now is 1.5?

Lawrence G. Sager:

1.1.

Warren E. Burger:

1.1 per acre, so they’ve come well under the three that I postulate.

Then, you say that’s not a legitimate governmental interest to say that one way to keep that in control is to eliminate boarding houses or fraternity houses and households of unrelated people more than two?

Lawrence G. Sager:

I think that it may be very sensible to eliminate certain patent high density uses under certain circumstances where reasonable densities are at stake.

The actual numbers as involved, I think I’d have to consider much more closely.

I don’t think, however, that unlike the boarding house and the fraternity house that, in any way, one rationally addresses density of population by speaking to the familial tie that exists between the residents of a household in letting in any number of household servants on the one hand, any number of people related by this tie on the other hand, and then choosing the number like two on the other hand.

I think it’s also important to note that the number “two” not merely is unusually low in this regard and, therefore, makes the ordinance in some sense less rational.

It seems to me, it supports strongly the view that his ordinance was not designed in any sense to regulate density of population.

The choice of the number “two” I’ve already described to you.

Harry A. Blackmun:

If the number were five, would you still be here?

Lawrence G. Sager:

I think I would, Your Honor, yes.

Potter Stewart:

What provision, specifically of the constitution, are you relying on?

Lawrence G. Sager:

We’re relying, Your Honor, primarily on the first section of the Fourteenth Amendment.

Let met make clear —

Potter Stewart:

Due Process Clause.

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Lawrence G. Sager:

Well, the Due Process and Equal Protection Clauses.

The reason I’m so guarded in that statement is in addressing, as Your Honor knows, in addressing the issue of whether this is a legitimate governmental interest, we – we make substantial reference and rely heavily on the rights of privacy and the right of travel and while this Court has indicated a strong tendency to found those very explicit — now explicitly recognized and well-articulated rights in the Fourteenth Amendment, I think that this Court has avoided ever firmly concluding the debate as to precisely where the right of travel and right of privacy derived their force from in the constitution, and I certainly would be hesitant to reading more explicit than this Court has been on that subject.

Potter Stewart:

I don’t think the Courts have said that the right of interstate commerce was not derived from the Fourteenth Amendment, hasn’t the Court said that?

Lawrence G. Sager:

I don’t think it has.

Potter Stewart:

In Olmstead against United States.

Lawrence G. Sager:

I think, however, in Shapiro versus Thompson this Court specifically has skewed finding a specific location for the right of travel at all.

My time is up.

Thank you very much.

Warren E. Burger:

Thank you, Mr. Sager.

Do you have anything further?

You have five minutes left.

Bernard E. Gegan:

Yes, Mr. Chief Justice.

Well, certainly, we don’t believe that this zoning law, which is the most local of matters, interferes with the right to travel.

Potter Stewart:

In that argument, I suppose, any law would interfere a right to travel.

You’d say I — it impairs my right to travel to this place because they have a law here that I don’t like?

Bernard E. Gegan:

Anything would, Your Honor.

Potter Stewart:

Isn’t that correct?

Bernard E. Gegan:

I only pause to note that there’s no allegation in this case by these plaintiffs that they engaged in interstate travel to get where they are.

The census data which seeks to indicate that families are on the average, larger than unrelated households is — could be misleading.

The Bureau of the Census, which incidentally defines family in terms of blood, marriage, and adoption, defines household to include single people living alone.

So, of course, the average household being weighted with single people will be low.

So, it’s not fair to compare it with families which begin with two.

I again wish to say that, to the extent that the one family-zoning ordinance embodies both the physical benefits and the social well-being of family organization.

I’ll stand by that principle and don’t consider it an illegitimate purpose.

It is not the same as saying that this is some kind of a morals law to keep out undesirables.

The recent Wisconsin District Court case furnished in the appellants — in the appellees’ green supplemental brief, two families occupying a one-family residence, they would — in following the Belle Terre case, the district judge said they can’t be kept out under the Zoning Law.

Well, if that’s not the end of one-family zoning, I don’t know what is, and it certainly has nothing to do with keeping out undesirables.

And, my last point is that while some families may be larger, some families may even have a servant, whereas, a group of three spinsters may be small.

Euclid against Ambler itself said that uses, whether it’s a boarding house, a fraternity house, or a private residence occupied by a group of individuals, uses tend to fade into each other by imperceptible gradations, and that does not put the stamp of invalidity on a zoning ordinance which seeks to draw some reasonable line based on the average family.

Thurgood Marshall:

You could draw the ordinance and prevent fraternity houses and boarding houses, you wouldn’t have any trouble, wouldn’t you?

Audio Transcription for Oral Argument – February 19, 1974 in Village of Belle Terre v. Boraas

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Thurgood Marshall:

You could do that.

Bernard E. Gegan:

We would risk the possibility that the Court might interpret six students living in a private residence as not being a fraternity house.

This seeks to duck the eye and cross the case, so to speak.

Thurgood Marshall:

Well, I think it’d be in much better shape.

Do you admit that this is aid with those students?

Bernard E. Gegan:

The primary source of the influx into Belle Terre, should it ever happen, I anticipate would be students, but the ordinance, itself, covers any, as I say, two families that move in —

Thurgood Marshall:

Who else around there would engage on privacy other than students?

Bernard E. Gegan:

The practical source of unrelated individuals in the case of Belle Terre is students, but the ordinance is not limited to students.

It’s not —

Potter Stewart:

Then there’s nothing in your ordinance that prevents two students from coming in and renting a house?

Bernard E. Gegan:

Exactly so, Your Honor, and I would only conclude by saying that zoning has traditionally been – been considered a matter of local responsibility and this Court has wisely refrained from becoming a National Board of Standards and Appeals to hear applications — bearings has been zoned.

I thank the Court.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.