policy considerations underpinning Atkisson, that irrebuttable presumptions may exclude many worthy recipients of public aid and that such presumptions may prevent natural parents from living with their children, are equally applicable in this case.
In addition to the foregoing, there are several other reasons why HACE's definition must be rejected. First, HUD has recognized that couples with children can often create a positive family situation when unmarried, and as Representative Boland stated in the floor debate surrounding the Stable Family Amendment: "It would be wrong to deny public housing to such couples." Second, it is clear that in some jurisdictions, such as New York and California, housing authorities now routinely allow couples who are cohabitating to participate in low-income housing. See James; Atkisson. Third, the defendants' definition is so restrictive it would even exclude common-law relationships that are recognized under state law as the equivalent of more traditional marriages. Finally, empirical evidence demonstrates that it would be unreasonable to exclude unmarried couples from subsidized housing. According to the affidavit of an expert sociologist, there were 2.2 million couples living together in 1986. Approximately 30% or 660,000 of these couples lived with children. Cohabitation is also slightly more likely among those in the lower to lower middle economic classes. Allowing PHAs to exclude such a large group of people from rental assistance would be unconscionable. It could not have been the intent of Congress to deny these individuals and their innocent children access to the safe and sanitary housing promised by USHA.
I hold today that the practice of categorically excluding unmarried couples from eligibility for low-income housing programs violates USHA. The defendants cannot arbitrarily exclude all applicants who are not related by blood, marriage or adoption from low-income housing. They are required to make individual determinations concerning whether applicants constitute a family unit.
With respect to the plaintiffs in this action, it is clear that they are entitled to family status. The plaintiffs are unmarried but have three natural children. Ms. Hann currently lives with Mr. Webster's mother and would move here with Mr. Webster if they could obtain housing. The only thing missing is a marriage certificate. The defendants assert that one of the policies of USHA was to support "families" in the traditional sense. Whatever force that policy has is strongly outweighed by the primary purpose of the Act which is to shelter the poor.
Defendants' moral vision of the world is hampered by their shortsightedness. While I, like the defendants, certainly endorse traditional concepts of marriage and family, the defendants have failed to consider the wider implications of their policy on the children of the poor. It would be a bizarre world where the refusal of the parents to get a marriage certificate condemns the children to a life of homelessness. Whether it is moral or immoral, wise or unwise, for the parents to spurn marriage, I cannot allow the sins of the parents to be visited upon their children.
AND NOW, this 28th day of March, 1989, in consideration of plaintiffs' application for a preliminary injunction, defendant's response thereto, the stipulated record, and the supplementary affidavits filed by the parties, since the parties have had a full and fair opportunity to present the evidence, and no purpose would be served by further proceedings, the hearing on the application for a preliminary injunction is hereby consolidated with trial on the merits pursuant to Fed.R.Civ.P. 65(a), and JUDGMENT IS ENTERED in favor of the plaintiffs and against the defendants. It is further ORDERED that, subject to plaintiffs meeting all other eligibility requirements, defendants are directed to issue the first available Certificate of Participation to the plaintiffs. The Clerk of Court is directed to the close the docket of this case for statistical purposes.