[00:00:11] Speaker 00:
Okay, to those of you who weren't in here for the last argument, welcome.

[00:00:16] Speaker 00:
We're glad to have you, and welcome back to the people who were.

[00:00:20] Speaker 00:
And we'll now call the case 23-3168, Homeroom, Inc.

[00:00:28] Speaker 00:
versus City of Shawnee, Kansas.

[00:00:30] Speaker 00:
Counsel?

[00:00:39] Speaker 01:
Thank you, your honor.

[00:00:40] Speaker 01:
May it please the court.

[00:00:40] Speaker 01:
I'm going to do my best to reserve two or three minutes for rebuttal.

[00:00:44] Speaker 01:
I understand that's on my responsibility.

[00:00:47] Speaker 01:
This case is about your right to choose the people that you live with.

[00:00:52] Speaker 01:
Shawnee's ordinance was actually enacted with a targeted animus against my client, Homeroom.

[00:00:58] Speaker 01:
But they used a cudgel to accomplish

[00:01:02] Speaker 01:
that goal in their ordinance has a much broader reach such that it injures people and families like my client Val French's family.

[00:01:10] Speaker 01:
She lived in her home with her husband and their two adult sons and she invited one of the son's girlfriends in to live with the home with them.

[00:01:19] Speaker 00:
The idea that this was targeted at homeroom, that's not relevant for the issues you bring in this appeal, is it?

[00:01:26] Speaker 01:
Well, it is relevant to standing.

[00:01:28] Speaker 01:
I don't want to focus on standing.

[00:01:30] Speaker 01:
I'll discuss it towards the end.

[00:01:32] Speaker 01:
And I think it's also relevant to the extent that we're in a rational basis territory.

[00:01:38] Speaker 01:
I don't think that a targeted animus against a specific business is a rational basis for interfering with the associational rights of others.

[00:01:46] Speaker 00:
OK.

[00:01:46] Speaker 00:
Let's do this.

[00:01:47] Speaker 00:
Start with standing, just so we're all sure that we've got someone before us who's able to make the argument.

[00:01:54] Speaker 01:
Sure, Your Honor.

[00:01:55] Speaker 01:
There was no question below that Val French has standing.

[00:02:00] Speaker 01:
Right.

[00:02:01] Speaker 01:
And there shouldn't be a question about Homeroom standing.

[00:02:04] Speaker 01:
There's really no daylight between this case and Craig versus Boren at the United States Supreme Court.

[00:02:10] Speaker 04:
Assuming we disagree with you, do we need to go further than this French?

[00:02:14] Speaker 01:
No, you don't.

[00:02:15] Speaker 01:
The case will proceed without her.

[00:02:16] Speaker 01:
Out of a duty of advocacy for my client, Homeroom, these kind of issues come up in other jurisdictions.

[00:02:21] Speaker 01:
They may try to advance these rights in other circuits.

[00:02:24] Speaker 01:
And so we'd like a decision that confirms that they do have standing to bring these sorts of claims.

[00:02:31] Speaker 01:
But no, the case can proceed to the merits without Homeroom standing.

[00:02:38] Speaker 00:
Well, go ahead and give us your Craig V. Boran argument.

[00:02:42] Speaker 01:
OK.

[00:02:44] Speaker 01:
You know, there's two different issues when it comes to standing.

[00:02:49] Speaker 01:
First, you ask about the constitutional Article 3 standing, and all you need there is an injury that was caused by the challenge policy, and which could be redressable by a favorable decision.

[00:02:59] Speaker 01:
We've got that here.

[00:03:00] Speaker 01:
Homeroom's had to change its entire business model.

[00:03:04] Speaker 01:
an economic injury.

[00:03:05] Speaker 01:
It's the same one that was found in the MHDC case that's cited in our briefs.

[00:03:11] Speaker 01:
The second question is, are there prudential limits to homeroom standing?

[00:03:15] Speaker 01:
And the prudential limit that the district court found was that they're trying to assert the constitutional rights of third parties.

[00:03:23] Speaker 01:
But just as in Craig, the enforcement of the ordinance against them

[00:03:28] Speaker 01:
would indirectly result in the violation of third party rights.

[00:03:32] Speaker 01:
And just as Craig was providing a service to its customers who had certain rights not to be treated in a discriminatory manner, so too here, Homeroom is providing a service to tenants and residents who have a right to choose with whom they live in their home.

[00:03:48] Speaker 00:
So tell me your position on how the ordinance reaches directly to Homeroom.

[00:03:56] Speaker 00:
Well, the... Tell me, give me a textual basis for that.

[00:04:00] Speaker 00:
Give you a textual basis?

[00:04:01] Speaker 01:
Yes.

[00:04:01] Speaker 01:
Yes, your honor.

[00:04:01] Speaker 01:
The way that the Shawnee code is written is that any owner or lessee or person who maintains property in violation of the code can be liable, even criminally liable.

[00:04:16] Speaker 01:
So that would certainly apply to Homeroom as a master tenant who leases, you know, who subleases to its other tenants.

[00:04:25] Speaker 01:
So it's certainly directly enforceable against them.

[00:04:28] Speaker 01:
And in fact, as we allege in the complaint, it's actually designed to target their operations.

[00:04:34] Speaker 02:
Well, counsel, on the merits, you brought a facial challenge.

[00:04:37] Speaker 02:
And so, of course, that puts us beyond just looking at the French family and their circumstances or homeroom.

[00:04:44] Speaker 02:
And I'm wondering how we can base a review of a facial challenge

[00:04:50] Speaker 02:
on your tying all of this in the due process claim to the right of intimate association, which then leads to hypotheticals about how much depth of intimacy there may be in certain relationships.

[00:05:03] Speaker 02:
And Val French's family may be one scenario, but what about a different scenario that's not predicated on this sort of close family with one other person?

[00:05:13] Speaker 02:
What about a scenario where it's a housing unit, where it's largely a business transaction of who is living in the unit, where there may be very little to no interactions at all between roommates?

[00:05:22] Speaker 02:
How can we find a constitutional due process right to an intimate association in that type of scenario?

[00:05:28] Speaker 01:
Well, Your Honor, the Ninth Circuit found in basically considering similar scenarios that

[00:05:34] Speaker 01:
the right of people to live together.

[00:05:36] Speaker 01:
I mean, we call it co-residence.

[00:05:38] Speaker 01:
The Ninth Circuit was talking about roommates, which I think is the scenario here.

[00:05:41] Speaker 02:
Well, but in Judge Kozinski's opinion on roommates, you know, he goes to great pains to talk about even, you know, unwashed dishes and all the sort of intimate interaction you have between roommates.

[00:05:50] Speaker 02:
But again, on a facial challenge, I'm looking beyond that.

[00:05:52] Speaker 02:
And I'm seeing, again, a housing structure where it doesn't fit the sort of maybe a house with an extra room or an apartment where there's one kitchen.

[00:06:02] Speaker 02:
I'm looking at different types of structures.

[00:06:04] Speaker 02:
And so how do we fashion a constitutional rule under a facial challenge of an intimate association without having to get into such factual depth as the intimacy

[00:06:13] Speaker 02:
of different type of roommate scenarios.

[00:06:15] Speaker 01:
Well, Your Honor, you fashion the rule by applying the test from cases like Roberts and cases like Guartain.

[00:06:21] Speaker 04:
What about Village of Belterre?

[00:06:23] Speaker 04:
It seems to me that you're in the wrong court.

[00:06:25] Speaker 04:
I mean, we're happy to have you.

[00:06:26] Speaker 04:
But that the arguments that you're making are echoing Justice Marshall's righteous dissent in that case.

[00:06:38] Speaker 04:
But that's not the law.

[00:06:40] Speaker 04:
The law is what is in Belterre.

[00:06:42] Speaker 04:
And how are we to rule for you and apply that law here?

[00:06:47] Speaker 01:
Well, the Belterre case, Your Honor, did not consider the right of intimate association.

[00:06:52] Speaker 01:
formally recognized for about another decade.

[00:06:55] Speaker 04:
Well, it considered the right of association, and it seems that your argument depends on us parsing that right as consisting of the right of intimate association, that's one thing, the right of expressive association, that's something else altogether.

[00:07:08] Speaker 04:
But haven't we understood this as the right as the right of association?

[00:07:13] Speaker 04:
So it was squarely considered in Belterre, and the court there, the Supreme Court said that none of

[00:07:21] Speaker 04:
A list of fundamental rights, including that one, were implicated.

[00:07:25] Speaker 01:
That's right.

[00:07:25] Speaker 01:
And the court cited to the NAACP case, which is an expressive association case.

[00:07:30] Speaker 01:
And when you get to the intimate association cases, there the court does explicitly distinguish between the two different doctrines.

[00:07:38] Speaker 01:
And we're not arguing that there's some kind of expressive activity going on here.

[00:07:43] Speaker 01:
that entitles them to constitutional protection.

[00:07:45] Speaker 01:
Rather, it's their right to choose with whom they live in their home.

[00:07:51] Speaker 01:
Those expressive association cases, neither those cases nor Belterre applied the test, which looks at size, selectivity, purpose, and exclusivity.

[00:08:02] Speaker 01:
And when you apply that test as the Ninth Circuit did in the roommate case, not only did it find that the roommate relationship qualified it, it found that it easily qualified.

[00:08:11] Speaker 04:
But the roommate's case didn't talk at all about Valterra.

[00:08:13] Speaker 04:
It didn't distinguish it in the way that you're asking us to, which may be a principled distinction.

[00:08:17] Speaker 04:
Do you have any cases that have made the distinction you're asking us to make here between these sort of various facets of the right of association?

[00:08:28] Speaker 01:
I don't know of cases distinguishing Belterre on the issue of the right of intimate association.

[00:08:34] Speaker 01:
This may be the first one.

[00:08:35] Speaker 01:
Of course, we do argue that in the other context, if this court does not find that the right of intimate association is so easily findable here as the Ninth Circuit did and applies rational basis, then we argue that actually Cleburne is the most recent pronouncement

[00:08:51] Speaker 01:
from the United States Supreme Court on how to look at a zoning ordinance that distinguishes among the users of land based on their status and identity.

[00:09:02] Speaker 04:
Is that your rational basis with bite argument?

[00:09:05] Speaker 01:
Yes, Your Honor.

[00:09:06] Speaker 01:
I think the best way to look at it is that in that scenario where a zoning ordinance is discriminating against the users of land on the basis of their status and identity, the kind of rational basis scrutiny that you apply

[00:09:22] Speaker 01:
is a searching one.

[00:09:23] Speaker 01:
It's one that actually looks to the record.

[00:09:25] Speaker 01:
It's one that actually considers the justifications proffered by the defendant, not merely justifications that may have been conceived of.

[00:09:35] Speaker 04:
Has there ever been a case where the majority of the Supreme Court understood rational basis review to be somehow more exacting than traditional rational basis review?

[00:09:47] Speaker 01:
Well, Your Honor, I think the way that the Supreme Court looked at this in Cleburne is that it is rational basis review as it applies to this sort of situation where the zoning ordinance is not regulating the use of land.

[00:10:00] Speaker 01:
It's not regulating the intensity of use.

[00:10:03] Speaker 01:
It's not even an occupancy limit.

[00:10:05] Speaker 01:
Just like in Cleburne where they said if the people occupying the home were not mentally handicapped, but in all other all other respects, the use of the property was the same.

[00:10:16] Speaker 01:
they would come out differently under the law and they couldn't find a rational basis to justify that.

[00:10:21] Speaker 01:
They considered the bases offered by the defendants and they didn't buy them.

[00:10:25] Speaker 01:
And I think it's the same thing here where if a family is making the exact same use of a property, they're sharing the joys and the burdens of residential life, they're cooking together, they're sleeping next to one another.

[00:10:39] Speaker 01:
If they're making the exact same use in all other respects, but their relational status is different,

[00:10:45] Speaker 01:
it comes out differently under the law.

[00:10:48] Speaker 01:
And I don't know of a rational basis that could justify that kind of treatment on a Cleburne-like test.

[00:10:54] Speaker 01:
What the, your honor?

[00:10:55] Speaker 00:
I should probably ask your opposing counsel this, but can you come up with any scenario in which this ordinance would be valid?

[00:11:08] Speaker 00:
I'm thinking, for example, a hospital rinse a house,

[00:11:12] Speaker 00:
and gives a key to four traveling nurses that come and go as they wish, don't know each other, never met before, and basically incident to employment, they come in and out of the house, share the house, share the kitchen.

[00:11:28] Speaker 01:
Well, there may be some kind of, you know, it seems in that case,

[00:11:32] Speaker 01:
The issue there is not whether the nurses are related.

[00:11:35] Speaker 01:
I mean, presumably the concerns you're pointing at would be the same.

[00:11:38] Speaker 00:
Assume they're not related.

[00:11:40] Speaker 01:
Well, that's right.

[00:11:41] Speaker 01:
That's right.

[00:11:41] Speaker 01:
But if they, you know, the concerns you're pointing at don't have to do with whether or not they're related.

[00:11:46] Speaker 01:
So if the city wanted to regulate, I don't know, the amount of time that residents spend in their home or

[00:11:53] Speaker 01:
the length of leases, that might be one thing, but whether those nurses are related to one another or not doesn't seem to make much of a difference.

[00:12:03] Speaker 01:
What the city points to as their rational basis, what they say is obvious, is that they're trying to maintain the single-family character of a neighborhood.

[00:12:12] Speaker 01:
But it's hard to square that with the fact that this ordinance applies everywhere in the city.

[00:12:17] Speaker 01:
So for Ms.

[00:12:18] Speaker 01:
French's family, as they choose to constitute themselves, maybe it's not

[00:12:22] Speaker 01:
how the city would define a family, but as Miss French's family chooses to constitute itself, there's nowhere in the city of Shawnee that they can live together.

[00:12:31] Speaker 02:
Well, that may be a good as applied argument, but what I'm struggling with is the fact that both claims here are facial challenges to the ordinance.

[00:12:40] Speaker 02:
And so as we go into different areas of the city of Shawnee or different living scenarios, how do we fashion, again, a constitutional rule of application here

[00:12:50] Speaker 02:
when we're looking at it facially to decide if there's any scenario within the city limits where this ordinance could be constitutional.

[00:12:57] Speaker 01:
Your honor, I think the answer is because the fact that this ordinance hinges on, which is the fact of the identity and the status, the relational status of the residential users of land is simply not an appropriate fact for the government to be

[00:13:14] Speaker 01:
to be regulating.

[00:13:16] Speaker 01:
It's simply not within their police power, which may be ample to lay out zones where yards are wide and motor vehicles few, but is not ample to say that all throughout the city, nobody can choose with whom they live if those people are not related to one another.

[00:13:33] Speaker 02:
Did you abandon the equal protection argument in this appeal?

[00:13:37] Speaker 01:
No, Your Honor.

[00:13:38] Speaker 02:
And so you would consider it adequately brief so that it's before us?

[00:13:41] Speaker 01:
I think that the equal protection works out similarly to the due process analysis.

[00:13:47] Speaker 01:
Well, similarly, but it may not be the same.

[00:13:50] Speaker 01:
Well, I think that either you've got a fundamental right, in which case you have to apply strict scrutiny.

[00:13:56] Speaker 01:
There's no suspect class, or you're looking at rational basis.

[00:13:59] Speaker 01:
And I think that it's essentially the same as we treated them in the district court below, that we think the tests come out the same way, depending on if you find that the right of intimate association

[00:14:11] Speaker 01:
is infringed upon as we say it is and as the Ninth Circuit found it easily and clearly was.

[00:14:19] Speaker 01:
What the Ninth Circuit said is that choosing a person to live with implicates significant privacy and safety considerations.

[00:14:26] Speaker 01:
Restricting our ability to select our living companions would be a serious invasion

[00:14:30] Speaker 01:
of privacy, autonomy, and security.

[00:14:32] Speaker 01:
And aside from immediate family or romantic partner, it's hard to imagine a more intimate relationship.

[00:14:38] Speaker 01:
And that's what the Roberts case asks you to do.

[00:14:41] Speaker 01:
It says these relationships are on a spectrum.

[00:14:44] Speaker 01:
On one end, you've got the family.

[00:14:45] Speaker 01:
On the other end, you've got large, non-exclusive business enterprises.

[00:14:49] Speaker 01:
And if you try to locate people who live together in the same home, somewhere on that spectrum, they're going to be right there next to the family.

[00:14:57] Speaker 01:
I'm going to save my last minute for rebuttal.

[00:14:59] Speaker 00:
Thank you, counsel.

[00:15:08] Speaker 03:
Good morning, may it please the court, Andrew Holder on behalf of the city of Shawnee and its officials.

[00:15:15] Speaker 03:
Your honor, it's the city's position that the Supreme Court resolved the issue that is before this court in 1974 in the village of Belterre case.

[00:15:23] Speaker 03:
I think that Judge Rossman hit the nail on the head when she asked, what about Belterre?

[00:15:30] Speaker 03:
Factually, the ordinance, that issue in that case is very close to the ordinance that we're talking about here.

[00:15:37] Speaker 04:
Is the governmental interest the same?

[00:15:41] Speaker 03:
I think that the governmental interest is the same, yes.

[00:15:44] Speaker 04:
How is the governmental interest presented in the record before us, your interest?

[00:15:49] Speaker 03:
I think that, well, we're deciding this on a motion to dismiss standard, and I don't think that when the court is reviewing for rational basis, it doesn't have to look for a stated governmental interest in the record.

[00:16:03] Speaker 03:
The court's job is to see if it can conceive of any rational basis for it.

[00:16:07] Speaker 04:
Right, and the one that you're relying on from your, at least I got the sense in your briefing, was the one that was asserted and, and approved in Belterre.

[00:16:14] Speaker 03:
Yes, that's right, Your Honor.

[00:16:16] Speaker 03:
So with respect to Belter, I think the other point worth making is that to my knowledge, there is no appellate court that has said Belter does not apply because it did not explicitly consider the right to intimate association.

[00:16:35] Speaker 03:
As protected under the 14th Amendment, I agree that the court doesn't explicitly say that in there, but what the court does say is that

[00:16:41] Speaker 03:
a zoning regulation that limits the number of unrelated people that can live together does not impinge upon any fundamental right.

[00:16:48] Speaker 04:
Can you point us to any cases that sort of clarify that we should be understanding the right of association as including both the right of intimate association and expressive association?

[00:17:02] Speaker 03:
I think that I believe it's in the Moore versus City of East Cleveland case they analyze

[00:17:10] Speaker 03:
separately.

[00:17:12] Speaker 03:
If I'm tracking your question, Your Honor.

[00:17:13] Speaker 04:
No, my, my question's actually the opposite.

[00:17:15] Speaker 04:
I mean, I think that your position depends on Belter says right of association.

[00:17:19] Speaker 04:
And if your case is to be controlled by Belter, then you would ask us to reject the parsing that the, your friend on the other side is trying to do between the, the right of intimate and the right of expressive.

[00:17:29] Speaker 04:
That there is just a right of association, Belter controls.

[00:17:32] Speaker 04:
And I'm asking if there's a case that you can point us to that maybe says, you know, even though the right of intimate association and the right of expressive association maybe have different, you know, origins or roots, they're ultimately coextensive.

[00:17:48] Speaker 03:
I'm not sure that's exactly my position, Your Honor.

[00:17:50] Speaker 03:
Okay.

[00:17:51] Speaker 03:
My position is that in Belterre, the court, I mean,

[00:17:56] Speaker 03:
The court analyzed the rights under the substantive due process clause and it analyzed a whole host of different ones there.

[00:18:02] Speaker 03:
And ultimately what it says is there wasn't any right that was, that was identified there.

[00:18:06] Speaker 03:
The court has had the opportunity both in the Moore case and in the city of Cleveland case after that to say, hey, since we decided Velter, we've clarified or, or.

[00:18:20] Speaker 03:
Clarified our jurisprudence about what the right to intimate an association under the 14th amendment says and

[00:18:26] Speaker 03:
In light of that, Belterre doesn't control anymore.

[00:18:28] Speaker 03:
They didn't do that in either of those cases.

[00:18:31] Speaker 03:
Had they done that, the analysis would have been a lot more straightforward.

[00:18:34] Speaker 03:
What they did is they said, Belterre is good law if you are differentiating between families and unrelated people.

[00:18:42] Speaker 03:
If you are zoning more restrictively than just saying blood, marriage, adoption, which is the more case, then the right to intimate association might cause a problem.

[00:18:57] Speaker 03:
But as long as you're evaluating under those terms, bell-tear controls.

[00:19:01] Speaker 02:
Well, counsel, in terms of bell, well, I like to call it bell-a-tere, so I might be your bell-tear.

[00:19:07] Speaker 02:
But under bell-a-tere,

[00:19:11] Speaker 02:
It says it involves no fundamental rights, and as Judge Rossman pointed out, there it cites a case for expressive association.

[00:19:18] Speaker 02:
So it seems that in order for us to say that that case, now 50 years old, still controls, even looking at the distinctions made in Moore and in Cleburne,

[00:19:27] Speaker 02:
is to also then have to ignore other Supreme Court cases that came about after Bellotere, such as Roberts and Durarte.

[00:19:37] Speaker 02:
So I think I'll at least say I'm trying to struggle with how do these two sort of line of cases merge together, if at all.

[00:19:43] Speaker 02:
I'm understanding you to say they don't merge together at all.

[00:19:46] Speaker 02:
Is that right?

[00:19:48] Speaker 03:
I think that cases such as Robert's identify what I would call the formula for evaluating whether a given relationship qualifies for constitutional protection or not.

[00:19:59] Speaker 03:
My position is that even though Robert's may have clarified the formula that we use to evaluate, the Supreme Court is at ample opportunity to say,

[00:20:08] Speaker 03:
Well now that we've cleared the answer that we reached in Belterre was wrong and I'm not going to use an Italian accent.

[00:20:15] Speaker 02:
But I'm not sure the questions before the Supreme Court subsequent to Belterre such as Amor and Cleburne really gave them the opportunity to do what you're suggesting.

[00:20:25] Speaker 02:
to say, well, let's clarify, even though this question isn't before us, our holding in Bellaterre and its broadest applications.

[00:20:32] Speaker 02:
And so, again, as we're here trying to figure out, you know, if we look at these different bodies of law and how they may come together, it's a struggle.

[00:20:41] Speaker 02:
And particularly, let's go to Roberts.

[00:20:44] Speaker 02:
Would you agree that this case is, as that opinion describes, it's between the poles, right, in terms of the right to intimate association?

[00:20:52] Speaker 02:
It's not clearly established such as the right to marriage that's been expressly declared by the Supreme Court, but your opposing counsel has referenced the Ninth Circuit opinion that does go into more detailed analysis as to what does it mean to have roommates in the context of constitutional right to intimate association.

[00:21:09] Speaker 02:
So if this case is between the Poles and Roberts, and I'll tell you, I think it is, how do we square that analysis again with the Belatere holding that doesn't really address that at all?

[00:21:20] Speaker 03:
Well, I guess to begin with, I do agree that it is between the polls.

[00:21:24] Speaker 03:
I think that the way the court identified the polls are, you know, you've got sort of marriage, childbirth, you know, educating children on the one side, and then on the other, you've got sort of, I think the language that they use in there is, you know, maybe you're employees at a large employer that you don't really have a constitutional right to intimate association with.

[00:21:40] Speaker 03:
So I totally agree that it's between those polls.

[00:21:43] Speaker 03:
I think that the way Bellateria has been interpreted says that

[00:21:51] Speaker 03:
one side of that spectrum is family, as it was defined in that ordinance, and then on the other side of this spectrum is unrelated people.

[00:22:01] Speaker 03:
So although I agree it's between kind of the larger polls that were defined in Roberts, I think that there is no Supreme Court case that says, yes, it's between those polls, but you do have a constitutionally protected right to live with

[00:22:17] Speaker 03:
two or three or four or any number of unrelated people that you get to choose.

[00:22:21] Speaker 03:
I think that the Ninth Circuit in the roommate.com case doesn't explicitly address that.

[00:22:28] Speaker 03:
They don't talk about voluntary at all in that case.

[00:22:32] Speaker 03:
What happened in that case was the court was called upon to interpret the Fair Housing Act and in an effort to avoid a potential constitutional issue, the court opted to interpret the Fair Housing Act in a manner that

[00:22:48] Speaker 03:
that would avoid a potential constitutional problem.

[00:22:50] Speaker 03:
But there's no case law out there that says there is a clear constitutional problem in this situation for totally unrelated people, sort of in the hypothetical that you described where it's more of a business transaction.

[00:23:02] Speaker 04:
But don't you think that case bolsters the heightened importance of relationships between unrelated individuals?

[00:23:09] Speaker 03:
I believe that

[00:23:11] Speaker 03:
I mean, I think I agree that there's a heightened relationship as compared to a co-worker in a large corporation, sure, but I don't think that that case or any other case says that it's heightened enough that you're entitled to constitutional protections from zoning ordinances, because I think the military controls that.

[00:23:28] Speaker 02:
But it did give us factors, right?

[00:23:30] Speaker 02:
I mean, Roberts and Enderate,

[00:23:32] Speaker 02:
sets forth, I think, five factors.

[00:23:34] Speaker 02:
And as you apply those to determine sort of the depths of intimacy of the association, do any of those factors weigh in favor of your argument here, particularly as I think of the individual plaintiffs like Val French and her family?

[00:23:48] Speaker 02:
I mean, don't all of those factors sort of weigh in favor of the court finding that she does have a fundamental right of an intimate association, even given that one of the persons living under her roof was not related by blood?

[00:24:00] Speaker 03:
I don't think that the court can even get into those factors because Bellater controls it.

[00:24:05] Speaker 03:
To the extent that there's any sort of uncertainty at this court's level about how we square Bellater with Roberts or with Moore or with the City of Cleveland, that's something only the Supreme Court can answer for us.

[00:24:19] Speaker 03:
But I would say

[00:24:21] Speaker 03:
I again I think that the court has had ample opportunity to say hey we've established the Roberts factors now and in light of those for example in the city of Cleveland case which was decided after Roberts the court continued to cite

[00:24:37] Speaker 03:
in that case as an example differentiating its situation from the one in that case.

[00:24:44] Speaker 03:
And it talks about it in the believe it's footnote eight talks about a zoning ordinance in Georgia that distinguished between.

[00:24:52] Speaker 03:
related people and unrelated people.

[00:24:56] Speaker 03:
And that case relied on Bellaterre.

[00:24:58] Speaker 03:
And in the city of Cleveland case, the court pointed out that unlike the Georgia case and unlike Bellaterre, its case involved a

[00:25:09] Speaker 03:
a distinction between people, group housing for people with intellectual disabilities and other unrelated people.

[00:25:15] Speaker 03:
And so that's where I think you get into potentially, although it's an unresolved issue, the correct level of review that applies in a case where there's a distinction among potentially historically disfavored groups.

[00:25:28] Speaker 03:
I think what the 10th Circuit says about that is that no majority of the Supreme Court has ever formally recognized a rational basis with bite approach.

[00:25:37] Speaker 03:
And even if they did, it would only apply in the context of a historically unfavorable group, which I don't think we have here.

[00:25:44] Speaker 03:
So I think when you look at Cleveland, decided post Roberts, it says Bellater is still good law and Bellater still controls.

[00:25:50] Speaker 03:
And if you're just the only distinction is between families and unrelated persons.

[00:25:55] Speaker 04:
Should we hesitate at all to rely on the governmental interest in Belteras being the one that, that, that you rely on when the appellant tells us that the ordinance here applies citywide?

[00:26:10] Speaker 03:
I think that number one, when you're applying rational basis review, you're not required to determine whether the ordinance addresses its intended goal with razor sharp precision.

[00:26:21] Speaker 03:
And I think that part of the goal of the ordinance really is twofold.

[00:26:25] Speaker 03:
Number one, maintaining the family characteristics, sort of like what we're talking about in Belatier, and then number two.

[00:26:31] Speaker 03:
Of the whole city?

[00:26:33] Speaker 03:
The residential areas of the city.

[00:26:34] Speaker 04:
But does the ordinance apply citywide?

[00:26:36] Speaker 03:
Yes, it does.

[00:26:38] Speaker 03:
So, I mean, I think that city-wide, the other issue is making sure that it operates as a limit for the number of people that can live in a house to address overcrowding.

[00:26:46] Speaker 04:
How do we, how should we be thinking about the animus component that is alleged in the complaint?

[00:26:51] Speaker 03:
I think that, and to make sure I understand, are you talking about animus towards homeroom?

[00:26:56] Speaker 04:
Towards homeroom, yeah, their allegation.

[00:26:58] Speaker 03:
I don't think that that has any base, any relation to what we're talking about here because

[00:27:05] Speaker 03:
Homeroom, number one, has no right to form or maintain intimate human relationships as a corporation.

[00:27:12] Speaker 03:
And so I don't think animus towards homeroom plays any role in this.

[00:27:17] Speaker 02:
Council, when we're looking at whether or not the basis put forward here in Reliance Upon Beletere, this idea of like maintaining sort of family zones for residences, if that's rational, how would you respond to a critique that really this ordinance and ordinances like this

[00:27:34] Speaker 02:
tends to disproportionately affect lower income, racial minorities, so really it's just a matter of affecting segregation based upon class and race.

[00:27:44] Speaker 03:
I think that number one, the ordinance on its face applies to all unrelated people.

[00:27:50] Speaker 03:
And number two, I would say that under rational basis review, it's not the court's role to determine whether

[00:27:56] Speaker 03:
a different type of zoning would better achieve the result or more fairly achieve the result or the goals that the city is, is after here.

[00:28:10] Speaker 03:
I want to, I believe I've covered sort of, the one other area I want to make sure that I hit on is factual distinctions between this case and Belleterre.

[00:28:20] Speaker 03:
I believe in the reply brief.

[00:28:23] Speaker 03:
there's a difference in the size of the, of the city in the Bellater case versus the city of Shawnee.

[00:28:31] Speaker 03:
In fact, I completely agree that's true, but there's nothing within that decision anywhere that says that the size of the location played any role in the court's decision.

[00:28:41] Speaker 03:
This, the other distinction that they attempt to make is the fact that

[00:28:47] Speaker 03:
the ordinance here would apply to owner-occupied properties, but even they acknowledge that as far as, as we can tell from the record in the Bellicare case, that was true there, even though it happened to be the case that.

[00:28:58] Speaker 03:
the plaintiffs in that case leased it out to college students.

[00:29:00] Speaker 03:
So I don't think either of those factual discrepancies changes the outcome in any way, shape, or form.

[00:29:08] Speaker 03:
My basic position would be that Bellater has been on the books since 1974, has never been overruled, and to the extent that there is debate about whether the justifications proffered in that case satisfy rational basis review in light of cases like Cleveland, for example, that's something that only the Supreme Court can resolve.

[00:29:29] Speaker 00:
Thank you, counsel.

[00:29:30] Speaker 00:
Thank you.

[00:29:35] Speaker 00:
I believe we have a little bit of time left over.

[00:29:37] Speaker 01:
Thank you, counsel, and thank you, your honors.

[00:29:41] Speaker 01:
As far as the rational basis test not requiring the government to have any interest in the record, that's not how Kleburn worked.

[00:29:49] Speaker 01:
Kleburn looked to the interests that were proffered in the record.

[00:29:53] Speaker 01:
And I'm glad that Judge Federico asked the question about, you know, potential

[00:29:58] Speaker 01:
stereotypes.

[00:30:00] Speaker 01:
I think these kinds of laws tend to have a stereotypical view of the sorts of people who live together who can't live with family.

[00:30:11] Speaker 01:
That's what underlies the proffer justification that we have to keep these a safe place for families.

[00:30:18] Speaker 01:
Unrelated people were talking often about

[00:30:21] Speaker 01:
students, about people who can't afford to live on their own, about people who are immigrants, people who are newcomers.

[00:30:26] Speaker 01:
And the other thing that Cleburne says is that those kinds of stereotypes are not a justification, are not a rational basis.

[00:30:32] Speaker 01:
The last thing we'd ask for the court is to please apply the test as it's outlined in Roberts and Duarte.

[00:30:38] Speaker 00:
Thank you, counsel.

[00:30:39] Speaker 00:
You're out of time.

[00:30:41] Speaker 00:
We're going to take a quick break, five minutes, then we'll come back and finish the last two cases.

[00:30:50] Speaker ?:
Part of recess.