Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS April 6, 2026 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court HOMEROOM, INC.; VAL FRENCH,
Plaintiffs - Appellants,
v. No. 23-3168 (D.C. No. 2:23-CV-02209-HLT-GEB) CITY OF SHAWNEE, KANSAS; (D. Kan.) DOUGLAS GERBER; KEVIN MESSICK,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before CARSON, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________
This appeal arises out of Appellee City of Shawnee’s Ordinance
No. 3419, which limits the number of unrelated people who can live together
in Shawnee, Kansas. Appellants HomeRoom, Inc., a property management
company, and Val French, a private citizen, sued the City under 42 U.S.C.
§ 1983 alleging the Ordinance violates their Fourteenth Amendment rights
to intimate association and equal protection. The City moved to dismiss the
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 2
complaint under Federal Rule of Civil Procedure 12(b)(6). The district court
granted the motion. 1 Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I2
In April 2022, the City adopted Ordinance No. 3419. The Ordinance
defines “Co-Living Group” as “a group of four (4) or more unrelated persons age
eighteen (18) or older living together in a dwelling unit, provided that if any
one (1) of the adult persons is unrelated to another adult person in the group,
the entire group shall be classified as unrelated.” RI.10, ¶ 26 (internal
quotation marks omitted). According to the Ordinance, “related persons”
means “(A) Persons related by blood, marriage, adoption, or guardianship; or
(B) A person having legal custody of a minor or the designee of a parent or
other person having legal custody of a minor.” RI.10, ¶ 27 (internal quotation
marks omitted). The Ordinance prohibits Co-Living Groups in every
1 The complaint also named two City employees as individual defendants. The district court dismissed the claims against those defendants as duplicative of the claims against the City. Appellants do not challenge that portion of the district court’s decision.
2 Because the appeal before us concerns a motion to dismiss, we take
these facts from Appellants’ complaint. See, e.g., Matney v. Barrick Gold of N. Am., 80 F.4th 1136, 1141 & n.1 (10th Cir. 2023) (relying on facts in the complaint to describe the background when appeal involves challenge to a district court’s order granting a motion to dismiss).
2 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 3
residential-use zone in the City. It applies whether the residence is rented or
owner-occupied. The City has established a pattern and practice of enforcing
the Ordinance. The Ordinance imposes no occupancy limit for related
individuals.
When the City adopted the Ordinance, Ms. French lived in a house that
she owned along with her husband, their two adult sons, and the girlfriend of
one of the sons. 3 The girlfriend was not related to anyone in the house by blood,
marriage, or adoption. The entire household was “unrelated” under the
Ordinance and thus exceeded the dwelling limit, which prohibits four or more
unrelated persons from living together. Because of the Ordinance, Ms. French’s
son and his girlfriend had to move out of her house, and Ms. French could not
rent the spare room to any other tenant.
HomeRoom is a property management startup company. It helps connect
property owners to residential renters and facilitates low-cost housing
searches for those looking for co-living situations. HomeRoom manages two
3 The complaint does not allege Ms. French lives in Shawnee; rather,
it simply states she is a “private citizen,” RI.7, ¶ 9, who “lives in a home that she owns,” RI.12, ¶ 36. But because she alleges the Ordinance prevents her from having additional unrelated people living with her, see, e.g., RI.8, ¶ 16, we draw the reasonable inference that she lives in Shawnee. See Matney v. Barrick Gold of N. Am., 80 F.4th 1136, 1144 (10th Cir. 2023) (explaining when reviewing the dismissal of a complaint under Rule 12(b)(6), “we accept the well-pleaded facts alleged as true and view them in the light most favorable to the plaintiff”). 3 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 4
residential properties in Shawnee owned by investors. HomeRoom is the
“master tenant” for each property. RI.11, ¶ 30. Before the City enacted the
Ordinance, HomeRoom would sublet the homes to unrelated roommates. At
the February 28, 2022, meeting of the Shawnee City Council, where the
Ordinance was formally discussed, the Community Development Director
stated, “that HomeRoom model that’s a new phenomenon, from the new
economy I guess, we need to decide if . . . it’s something that you even want to
consider in our single-family zones.” RI.10–11, ¶ 28 (internal quotation marks
omitted). Since the Ordinance was enacted, HomeRoom has been forced to evict
its unrelated tenants, and it now sublets the properties only to blood-related
families.
HomeRoom and Ms. French challenged the Ordinance in federal district
court. On May 9, 2023, they filed a complaint under 42 U.S.C. § 1983 alleging
facial violations of substantive due process and equal protection under the
Fourteenth Amendment. “The Ordinance invades the intimate associations of
Shawnee residents,” Appellants alleged, “by regulating their household
composition in a manner bearing no relation to any legitimate police power
aim.” RI.13, ¶ 44. They also claimed the Ordinance “creates a facially
discriminatory classification” by distinguishing between those who are “related
to all members of their household” and those who are “not so related to all
members of their household.” RI.14, ¶ 52. The complaint also alleged a state
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claim under the Kansas Zoning Enabling Act. And it sought declaratory and
injunctive relief.
The City moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6). HomeRoom’s “claim fails at the outset because
HomeRoom is a corporate entity, and has no constitutionally protected right
to enter or maintain intimate human relationships in the first place,” the
City argued, “[n]or can HomeRoom assert a constitutional claim on behalf
of any putative Co-Living Group of its sublessees.” RI.85. Regarding Ms.
French, the City asserted “no relationship protected by the Fourteenth
Amendment is implicated by [Ms.] French’s claims regarding the
Ordinance’s impact on her relationship with either her son’s girlfriend or
any other unrelated tenant she ma[y] desire to rent a room to.” RI.87.
Even assuming either plaintiff “could establish that their claim
implicated a constitutionally protected relationship,” RI.87, the City argued
“the Ordinance does not place a direct and substantial burden on the right
to intimate familial association and is subject to rational basis scrutiny,”
RI.88. The City principally relied on Village of Belle Terre v. Boraas,
416 U.S. 1 (1974), and argued that case dictated the outcome here. RI.89.
Under Belle Terre, the City argued “maintaining the single-family character
of neighborhoods—the obvious underlying purpose of the Ordinance—is a
legitimate public interest that survives rational basis scrutiny.” RI.90.
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Because the Ordinance survives rational basis scrutiny, the City
maintained that the due-process and equal-protection claims failed as a
matter of law. The claim for declaratory relief under the Kansas Enabling
Act also failed, the City explained, because the City had the authority to
enact the Ordinance.
The district court granted the motion to dismiss in a written order.
The district court agreed with the City that HomeRoom is a corporate entity
with no constitutionally protected right of intimate association. To the
extent HomeRoom is separately asserting the rights of its would-be
unrelated tenants, prudential limitations on standing required dismissal of
HomeRoom’s constitutional claims. The district court then reached the
merits of Ms. French’s constitutional claims and dismissed them, agreeing
with the City that the Ordinance “does not violate substantive due process
or the Equal Protection clause based on the authority of Belle Terre.”
RI.126. Given its disposition on the federal claims, the district court
declined to exercise supplemental jurisdiction over the remaining state-law
claim.
This timely appeal followed.
II
We review de novo a district court’s decision to dismiss a complaint under
Rule 12(b)(6). StreetMediaGroup, LLC v. Stockinger, 79 F.4th 1243, 1248 (10th
6 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 7
Cir. 2023). “In reviewing an order granting a motion to dismiss, our role is like
the district court’s: we accept the well-pleaded facts alleged as true and view
them in the light most favorable to the plaintiff.” Matney v. Barrick Gold of N.
Am., 80 F.4th 1136, 1144 (10th Cir. 2023) (internal quotation marks and
ellipsis omitted).
Appellants urge reversal, reprising their arguments that the Ordinance
is facially unconstitutional. Appellants also challenge the district court’s
conclusion that HomeRoom lacks prudential standing. We discern no error in
the district court’s decision to dismiss the complaint. We begin by discussing
standing and then turn to the merits of the appellate arguments.
A
“The doctrine of standing asks whether a litigant is entitled to have a
federal court resolve his grievance. This inquiry involves both constitutional
limitations on federal-court jurisdiction and prudential limitations on its
exercise.” Kowalski v. Tesmer, 543 U.S. 125, 128 (2004) (internal quotation
marks omitted). “In its constitutional dimension, standing imports
justiciability: whether the plaintiff has made out a ‘case or controversy’
between himself and the defendant within the meaning of Art. III.” Warth
v. Seldin, 422 U.S. 490, 498 (1975). Article III standing has three elements:
1) an injury in fact, which is “an invasion of a legally protected interest”; 2)
a causal connection between the injury and the challenged action of the
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defendant; and 3) a likelihood that the injury will be redressed by a
favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
But “even when the plaintiff has alleged injury sufficient to meet the
‘case or controversy’ requirement,” the Supreme Court has explained, “the
plaintiff generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of third
parties.” Warth, 422 U.S. at 499. “This rule assumes that the party with the
right has the appropriate incentive to challenge (or not challenge)
governmental action and to do so with the necessary zeal and appropriate
presentation.” Kowalski, 543 U.S. at 129. There are some limited exceptions
to this rule. “[I]n several cases [the Supreme Court] has allowed standing
to litigate the rights of third parties when enforcement of the challenged
restriction against the litigant would result indirectly in the violation of
third parties’ rights.” Id. at 130 (quotation omitted). “[T]he prudential rules
of standing . . . serve to limit the role of the courts in resolving public
disputes.” Warth, 422 U.S. at 500.
When plaintiffs assert standing based on the rights of third parties,
the court may “assume [the plaintiffs] have satisfied Article III and address
the alternative threshold question whether [the plaintiffs] have standing to
raise the rights of others.” Kowalski, 543 U.S. at 129. Relatedly, if there are
multiple plaintiffs, a court “need not decide whether the circumstances of
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[the] case would justify departure from [the] prudential limitation” on
asserting third parties’ rights, if there is “at least one individual plaintiff
who has demonstrated standing to assert [the] rights as his own.” Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263, 264 (1977)
(MHDC). In that situation, the court can address the merits of the claims
based on the individual plaintiff with standing, and “need not consider
whether the other . . . plaintiffs have standing to maintain the suit.” Id. at
264 & n.9.
B
With these guiding principles in mind, we turn to the circumstances
in this case. Recall, the district court ruled HomeRoom, a corporate entity,
has no constitutionally protected right of intimate association. And as to
HomeRoom’s claims asserting the rights of its would-be tenants, the district
court held “prudential limitations on standing” required dismissal. 4 RI.122.
On appeal, Appellants do not contest the district court’s conclusion
that HomeRoom has no constitutionally protected right of intimate
association because of its corporate nature. They focus their argument on
HomeRoom’s standing to assert the rights of third parties. Appellants
4 The City did not challenge Ms. French’s standing in district court, and the district court addressed the merits of her constitutional claims, as do we.
9 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 10
contend HomeRoom meets an exception to the prudential concern against
permitting a party to assert the rights of others. Op. Br. at 9–10. The City
disputes HomeRoom’s contention.
We need not decide, however, if HomeRoom has prudential standing
because this case involves multiple plaintiffs, and one of the plaintiffs—
Ms. French—undisputedly has standing to assert her claims. See MHDC,
429 U.S. at 263, 264. Appellants acknowledge as much, stating, “as in
MHDC, HomeRoom brings this suit with a co-plaintiff[, Ms. French,] who
unquestionably has standing to assert the claims involved.” Reply Br. at 7.
When asked about standing at oral argument, Appellants’ counsel
reiterated Ms. French had standing, and conceded the court did not need to
go further than Ms. French on the question of standing. 5
Accordingly, we proceed to consider the merits of Ms. French’s
constitutional claims. 6
5 Appellants’ counsel explained: “Out of a duty of advocacy for my client HomeRoom, these kind of issues come up in other jurisdictions, they may try to advance these rights in other circuits and so you know we’d like a decision that confirms they do have standing to bring these sorts of claims. But . . . the case can proceed to the merits without HomeRoom’s standing.” Recording of Oral Argument, September 26, 2024, at 2:17–2:35.
6 We note that Appellants’ complaint brought a facial challenge to the
constitutionality of the Ordinance, not an as-applied challenge. “A facial challenge considers the [ordinance’s] application to all conceivable parties, while an as-applied challenge tests the application of that [ordinance] to the facts of a plaintiff’s concrete case.” StreetMediaGroup, LLC, 79 F.4th at 10 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 11
III
In the district court, Ms. French alleged the Ordinance was facially
unconstitutional because it violated her substantive due-process right to
intimate association and her right to equal protection. Recall, the Ordinance
limits to three the number of unrelated people who can live together. The
district court rejected Ms. French’s constitutional challenges and dismissed
her claims, concluding the Ordinance “does not violate substantive due process
or the Equal Protection clause based on the authority of Belle Terre.” 7 RI.126.
We discern no error.
1248 (internal quotation marks omitted). Appellants’ request for relief is a judgment declaring the Ordinance is unconstitutional, and a permanent injunction prohibiting the City from enforcing it. Given these circumstances, as a practical matter, were Ms. French to prevail in this litigation, HomeRoom would receive the benefit of the Ordinance being declared unconstitutional.
7 In response to the motion to dismiss, Ms. French stated that “[t]he
substantive thrust of [her] claims under Due Process of Law and Equal Protection are closely related,” so she presented analysis “pertaining to both claims together.” RI.96 & n.2. Consistent with the presentation of Ms. French’s claims in her response, the district court analyzed the claims together. See RI.123–126. Likewise, Ms. French addressed the claims together in her appellate briefing. See Op. Br. at 25–32; Reply Br. at 9–19. Because she presented her constitutional claims in this way, we will not disaggregate them for her.
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Belle Terre is central to the district court’s analysis and our disposition,
so we begin by describing that opinion in detail. In Belle Terre, 416 U.S. at 2–
3, the Supreme Court considered a challenge to a zoning ordinance that
restricted land use to single-family dwellings, defined family as one or more
persons related by blood, adoption or marriage, and limited the number of
unrelated people who could live together to two. The plaintiffs—six unrelated
students at a nearby university who were living together—were served with a
notice that they violated the ordinance. Id. They sued seeking “an injunction
and a judgment declaring the ordinance unconstitutional.” Id. at 3.
Discussing its prior zoning cases, the Court emphasized a degree of
deference is generally owed to governing bodies on zoning legislation. “If the
validity of the legislative classification for zoning purposes [is] fairly
debatable,” the Supreme Court explained, “the legislative judgment must be
allowed to control.” Id. at 4 (internal quotation marks omitted); id. at 5–6
(explaining it is within the power of the legislature to determine whether the
public welfare may be enhanced by zoning regulations).
The Court then turned to the ordinance before it, recognizing the
argument “that if two unmarried people can constitute a ‘family,’ there is no
reason why three or four may not.” Id. at 8. But it explained, “every line drawn
by a legislature leaves some out that might well have been included.” Id. There,
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the line drawing was not based on a suspect classification like race, involved
no fundamental right guaranteed by the Constitution—such as “the right of
association” or “any rights of privacy,” and involved no procedural disparity
inflicted on some but not others. Id. at 6-7. “A quiet place where yards are wide,
people few, and motor vehicles restricted are legitimate guidelines in a land-
use project addressed to family needs.” Id. at 9. Such a goal is a permissible
one within the police power of the state, the Court held. Id.; see also id. at 8
(observing “that exercise of discretion . . . is a legislative, not a judicial
function”).
Justice Marshall dissented because in his view “the disputed
classification [between households of related and unrelated individuals]
burdens the students’ fundamental rights of association and privacy
guaranteed by the First and Fourteenth Amendments.” 8 Belle Terre, 416 U.S.
at 13 (Marshall, J. dissenting). According to Justice Marshall, the Court’s
decisions “establish[ed] that the First and Fourteenth Amendments protect the
freedom to choose one’s associates” and “[c]onstitutional protection is extended,
not only to modes of association that are political in the usual sense, but also
8 Justice Brennan also dissented but for a different reason. In his view, there was no longer an active case or controversy because “[t]he constitutional challenge . . . [was] premised solely on alleged infringement of associational and other constitutional rights of tenants,” but the named tenant appellees no longer lived in the house. Belle Terre, 416 U.S. at 10 (Brennan, J. dissenting). 13 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 14
to those that pertain to the social and economic benefit of the members.” Id. at
15. “The selection of one’s living companions involves similar choices as to the
emotional, social, or economic benefits to be derived from alternative living
arrangements,” he explained. Id. And he further observed “[t]he freedom of
association is often inextricably entwined with the constitutionally guaranteed
right of privacy.” Id. He therefore concluded “[t]he choice of household
companions . . . involves deeply personal considerations as to the kind and
quality of intimate relationships within the home. That decision surely falls
within the ambit of the right to privacy protected by the Constitution.” Id. at
16.
On appeal, Ms. French challenges the district court’s decision to dismiss
her constitutional claims under Belle Terre. She acknowledges the Supreme
Court in Belle Terre “considered an ordinance, which like the Ordinance at
issue here, restricted the number of unrelated persons who may live together
in a single residence.” Op. Br. at 12. But she seeks distance from that case,
contending it does not control the outcome here. She argues “subsequent
developments in the law have cast serious doubt on the continuing viability of
Belle Terre,” Op. Br. at 12, and “Belle Terre did not consider the right of
intimate association,” Op. Br. at 17. Neither argument is availing, as we
explain.
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Ms. French argues “Belle Terre’s authority has been greatly diminished
by subsequent jurisprudence.” Op. Br. at 13 (boldface omitted). In support, she
first relies on state-court decisions. See Op. Br. at 13. (citing cases from state
courts in New Jersey, California, and Michigan). But these authorities are not
helpful to her position. As the City correctly argues, “Belle Terre is not binding
on state courts, which are free to interpret state constitutions and statutes
more stringently than the Supreme Court.” Resp. Br. at 28–29.
Ms. French also points to federal case law, suggesting these authorities
show a jurisprudential shift away from Belle Terre, but those cases are likewise
unhelpful. She first cites Moore v. City of East Cleveland, 431 U.S. 494 (1977),
which involved the constitutionality of an ordinance limiting occupancy of a
dwelling unit to members of a single family, but containing a definition of
family that recognized “only a few categories of related individuals.” Id. at 495–
96. Although the City of East Cleveland argued Belle Terre required the Court
to sustain the ordinance, the Supreme Court rejected that argument. The
Court explained, “one overriding factor sets this case apart from Belle Terre”—
“[t]he ordinance there affected only unrelated individuals.” Id. at 498. In
contrast, the ordinance in Moore “selects certain categories of relatives who
may live together and declares that others may not.” Id. at 498–99. The Court
determined, “[w]hen a City undertakes such intrusive regulation of the family,
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neither Belle Terre nor Euclid [v. Ambler Realty Co., 272 U.S. 365 (1926),]
governs.” Id. at 499.
Ms. French seems to suggest Moore diminishes the authority of
Belle Terre because “the Court highlighted the weakness of the same
government rationale it had validated in Belle Terre, observing that the
ordinance had only a ‘marginal’ and ‘tenuous’ relationship with the expressed
goals of maintaining a quiet residential neighborhood.” Op. Br. at 14 (quoting
Moore, 431 U.S. at 499–500). We are not persuaded. Moore involved an
ordinance that limited the types of related people who could live together by
narrowly defining family; it does not impact the analysis here, where the
Ordinance restricts the number of unrelated people who may live together.
Moore distinguished rather than diminished Belle Terre.
Ms. French next cites City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985). She argues “[t]he reasoning of Belle Terre was further
subverted—and, indeed, replaced wholesale—in Cleburne.” Op. Br. at 14.
Again, we cannot agree.
In Cleburne, the Supreme Court considered a challenge to an ordinance
that required a special-use permit to develop a group home for “the mentally
retarded,” but did not require special-use permits for other types of group
homes. 473 U.S. at 447–48. The question in Cleburne was “whether it [was]
rational to treat the mentally retarded differently.” Id. at 449. The Court
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reasoned that “requiring the permit in this case appears to us to rest on an
irrational prejudice against the mentally retarded” because the “record does
not clarify how . . . the characteristics of the intended occupants of the [group]
home rationally justify denying to those occupants what would be permitted to
groups occupying the same site for different purposes.” Id. at 450.
Ms. French contends Cleburne “stands for the proposition that zoning
ordinances which discriminate based on the status or identity of land users call
for a more searching review than the one applied in Belle Terre.” Op. Br. at 16.
The City responds “Cleburne is factually inapposite to the situation at hand,”
see Resp. Br. at 24, and Cleburne did not announce “a more exacting standard
of rational basis review,” Resp. Br. at 25. We agree with the City.
First, we reject Ms. French’s assertion that Cleburne calls for a more
“searching form of rational basis review,” Op. Br. at 28. As the City correctly
observes, the Supreme Court has never stated that Cleburne employed a
different type of rational-basis review. See Resp. Br. at 25 (citing Powers v.
Harris, 379 F.3d 1208, 1224 (10th Cir. 2004)). In Powers, we explained “no
majority of the Court has stated that the rational-basis review found in
Cleburne . . . differs from the traditional variety.” 379 F.3d at 1223–24.
Next, the City emphasizes the critical factor in Cleburne, not present in
Belle Terre or in this case, was the zoning regulation differentiated between
different types of unrelated people. We agree with the City that Cleburne is
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factually inapposite to the situation here because the Ordinance does not treat
different types of unrelated people differently.
Finally, the Supreme Court mentioned Belle Terre only once in Cleburne
in a footnote, and it made clear Belle Terre remained controlling where zoning
regulations distinguish between families and unrelated people. See 473 U.S. at
439 n.8. Federal courts post-Cleburne continue to recognize Belle Terre as
governing authority on ordinances that place occupancy limits on the number
of unrelated people living together. See, e.g., Doe v. City of Butler, 892 F.2d 315,
320–21 (3d Cir. 1989) (citing Belle Terre, applying rational-basis review to a
due-process challenge to a zoning regulation limiting transitional dwellings to
six unrelated people, and upholding the regulation); Jones v. Wildgen,
320 F. Supp. 2d 1116, 1131–32 (D. Kan. 2004) (citing Belle Terre, applying
rational-basis review to an equal-protection challenge to a zoning ordinance
limiting occupancy of a rental dwelling to three unrelated persons, and
upholding the ordinance).
Ms. French next contends the district court erred in relying on
Belle Terre because that case did not consider the right of intimate association.
She asserts “[t]he most important development undermining Belle Terre, for
the purposes of this case, is the explicit recognition of the right of intimate
association first announced in Roberts [v. U.S. Jaycees, 468 U.S. 609 (1984)].”
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Op. Br. at 17. According to Ms. French, Roberts “establishes that certain
associations are so intimate as to receive ‘fundamental’ constitutional
protection.” Op. Br. at 19. She therefore asserts “zoning ordinances which
burden the right of intimate association are subject to the strict scrutiny
reserved for fundamental rights.” 9 Op. Br. at 19. She also reprises her
argument—which the district court rejected—that Fair Housing Council of
San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012),
overruled in part on other grounds by FDA v. Alliance for Hippocratic Medicine,
602 U.S. 367 (2024), is instructive because it recognized the constitutional
significance of the roommate relationship. We disagree.
Roberts did not alter the legal framework for analyzing zoning
ordinances as established in Belle Terre. In Roberts, the Court was considering
“a conflict between a State’s efforts to eliminate gender-based discrimination
against its citizens and the constitutional freedom of association asserted by
members of a private organization.” 468 U.S. at 612. The Court outlined factors
that might be relevant when “[d]etermining the limits of state authority over
9 Ms. French includes a citation to Petrella v. Brownback, 787 F.3d
1242, 1261 (10th Cir. 2015). See Op. Br. at 19. But Petrella did not involve a challenge to a zoning ordinance; the citation to Petrella appears to be for the general proposition that “[w]hen a plaintiff demonstrates that a challenged law burdens a fundamental right, courts apply strict scrutiny in assessing the validity of the law.” 787 F.3d at 1261. 19 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 20
an individual’s freedom to enter into a particular association.” Id. at 620. These
factors help assess where a “relationship’s objective characteristics locate it on
a spectrum from the most intimate to the most attenuated of personal
attachments” and include “size, purpose, policies, selectivity, congeniality, and
other characteristics that in a particular case may be pertinent.” Id. The Court
ultimately declined to extend constitutional protection to the U.S. Jaycees—a
non-profit educational company that wanted to exclude women from
membership, reasoning that large and unselective groups are not the sort of
private intimate associations warranting protection. See id. at 620–21.
Roberts, therefore, does not inform our constitutional analysis of the Ordinance
here. 10
Ms. French insists Roberts “vindicated” Justice Marshall’s dissent in
Belle Terre. Op. Br. at 18. But Roberts did not mention Belle Terre.
Justice Marshall’s dissenting view was the ordinance in Belle Terre
“unnecessarily burden[ed]” the petitioners’ constitutional rights of “freedom of
association and . . . right to privacy,” 416 U.S. at 15 (Marshall, J. dissenting).
10 Although Ms. French wants us to apply the factors outlined in Roberts, see Op. Br. at 22–23, there is no federal court that has done so in the context of a zoning ordinance. We also note the Supreme Court issued Cleburne after Roberts. The Court therefore had the opportunity in Cleburne to say Belle Terre no longer controls or to apply Roberts to a zoning ordinance case involving the rights of unrelated people to live together, but it did not do so.
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Although Roberts explicitly recognized the right of intimate association for the
first time, it relied on preexisting Supreme Court precedent to do so. 11 Notably,
the Third Circuit, when considering the right of association in the context of a
zoning ordinance after Roberts, explained “[n]othing in Roberts suggests that
the Court’s prior opinion in Belle Terre, which explicitly rejected a right of
association claim in a zoning context, see 416 U.S. at 7, . . . is no longer
governing authority.” Doe, 892 F.2d at 323.
Ms. French also asserts the Ninth Circuit’s decision in Roommate.com,
is “instructive,” Op. Br. at 23, and argues the Ninth Circuit recognized in that
case “the right to freely associate with household living companions,” “is an
obvious candidate for a fundamental associational right,” Reply Br. at 10. But
11Ms. French has not meaningfully explained why parsing between expressive and intimate association is necessary when these rights are analyzed the same doctrinally. As we have previously discussed:
We believe that freedom of expressive association provides the most appropriate analogy for freedom of intimate association. As the Court noted in [Roberts v. U.S.] Jaycees, ‘[t]he intrinsic and instrumental features of constitutionally protected association may, of course, coincide.’ 104 S. Ct. at 3249. These common features and values may best be safeguarded by similar doctrinal analysis. Despite different constitutional roots, both interests protect interpersonal relationships from unwarranted intrusion by the state.
Trujillo v. Bd. of Cnty. Comm’rs, 768 F.2d 1186, 1189–90 (10th Cir. 1985). 21 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 22
the City responds “Roommate.com does not discuss, much less recognize, that
the right to intimate association encompasses a right to reside with any
number of unrelated adults.” Resp. Br. at 19. And the City further asserts, “as
the district court recognized, the issues in Roommate.com differ materially
from the ones in this case.” Resp. Br. at 19. We again agree with the City.
Roommate.com speaks to the heightened importance of relationships
between unrelated individuals in the roommate context, 12 but it is not useful
to the constitutional inquiry before us. There, the Ninth Circuit considered
whether “[Roommate.com’s] questions requiring disclosure of sex, sexual
orientation and familial status, and its sorting, steering and matching of users
based on those characteristics, violate the Fair Housing Act (FHA).” 666 F.3d
at 1218. Relying on the doctrine of constitutional avoidance, the Ninth Circuit
declined to read the FHA as applying to shared living units because doing so
would “raise[] substantial constitutional concerns” and “would be a serious
invasion of privacy, autonomy and security.” Id. at 1221–22. The court of
appeals instead “adopt[ed] the narrower construction that exclude[d]
12 The Ninth Circuit observed: “Aside from immediate family or a romantic partner, it’s hard to imagine a relationship more intimate than that between roommates, who share living rooms, dining rooms, kitchens, bathrooms, even bedrooms. Because of a roommate’s unfettered access to the home, choosing a roommate implicates significant privacy and safety considerations.” 666 F.3d at 1221. 22 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 23
roommate selection from the reach of the FHA.” Id. at 1222. Notably,
Roommate.com never discussed Belle Terre.
The district court appropriately rejected Ms. French’s reliance on
Roommate.com, explaining “the issue in Roommate.com (whether the FHA
should be read to interfere with relationships inside a home) was different than
the issue here and in Belle Terre (whether municipalities can limit unrelated
people living in a residence under zoning authority).” RI.126. Ms. French fails
to explain why the district court’s reasoning is wrong.
In sum, Belle Terre remains dispositive precedent on the issue in this
appeal: the constitutionality of a zoning ordinance that places occupancy limits
on unrelated people living together. Ms. French has presented no contrary
persuasive argument. As the district court acknowledged, Ms. French certainly
has “a right to argue for a change in the law, but Belle Terre remains good law
and is binding authority” on the district court and this court. RI.125; Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (instructive
that “[i]f a precedent of this Court has direct application in a case, yet appears
to rest on reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.”).
23 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 24
IV
Finally, Ms. French argues “[e]ven if the Ordinance were not subject to
strict scrutiny as a violation of the fundamental right of intimate association,
it would still fail under the searching form of rational basis review outlined in
Cleburne.” Op. Br. at 28. But as discussed, Cleburne did not disturb the
traditional rational-basis standard.
Following the reasoning in Belle Terre, the Ordinance does not involve a
fundamental right nor does it categorize people based on a suspect
classification. See Belle Terre, 416 U.S. at 6, 7–8. We therefore apply
rational-basis review, like the Supreme Court did in Belle Terre. See id. at 8.
As the district court aptly summarized, the ordinance in Belle Terre “involved
no fundamental rights guaranteed by the Constitution,” so the Supreme Court
“applied rational basis scrutiny,” found “that limiting the number of unrelated
people to two was a proper exercise of legislative discretion,” and “deemed the
ordinance constitutional.” RI.123. So too here. Appellants have presented no
availing argument that the Ordinance here, which is almost identical to the
one the Supreme Court upheld in Belle Terre, does not survive rational-basis
review. See Seegmiller v. LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008)
(“Our rational basis review is highly deferential toward the government’s
actions.”); see also Copelin-Brown v. N.M. State Pers. Off., 399 F.3d 1248, 1255
(10th Cir. 2005) (explaining a court will uphold a policy under rational-basis
24 Appellate Case: 23-3168 Document: 61-1 Date Filed: 04/06/2026 Page: 25
review “if there is any reasonably conceivable state of facts that could provide
a rational basis for the classification” (internal quotation marks omitted)).
V
We affirm the district court’s judgment. 13
Entered for the Court
Veronica S. Rossman Circuit Judge
13 Because we affirm the dismissal of Ms. French’s federal claims, we
also affirm the district court’s decision to decline to exercise supplemental jurisdiction over her state-law claim. See Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1172 (10th Cir. 2009) (“Under 28 U.S.C. § 1367(c), a district court may decline to exercise supplemental jurisdiction if . . . the district court has dismissed all claims over which it has original jurisdiction . . . .”). 25