Moore v. City of East Cleveland


No. 75-6289 Argued: November 2, 1976 --- Decided: May 31, 1977
MR. JUSTICE POWELL announced the judgment of the Court, and delivered an opinion in which MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN joined.

East Cleveland's housing ordinance, like may throughout the country, limits occupancy of a dwelling unit to members [p*496] of a single family. § 1351.02. [n1] But the ordinance contains an unusual and complicated definitional section that recognizes as a "family" only a few categories of related individuals. § 1341.08. [n2] Because her family, living together in her home, fits none of those categories, appellant stands convicted of a criminal offense. The question in this case is whether the ordinance violates the Due Process Clause of the Fourteenth Amendment. [n3]


Appellant, Mrs. Inez Moore, lives in her East Cleveland home together with her son, Dale Moore, Sr., and her two grandsons, Dale, Jr., and John Moore, Jr. The two boys are first cousins, rather than brothers; we are told that John [p497] came to live with his grandmother and with the elder and younger Dale Moores after his mother's death. [n4]

In early 1973, Mrs. Moore received a notice of violation from the city, stating that John was an "illegal occupant" and directing her to comply with the ordinance. When she failed to remove him from her home, the city filed a criminal charge. Mrs. Moore moved to dismiss, claiming that the ordinance was constitutionally invalid on its face. Her motion was overruled, and, upon conviction, she was sentenced to five days in jail and a $25 fine. The Ohio Court of Appeals affirmed after giving full consideration to her constitutional claims, [n5] [p498] and the Ohio Supreme Court denied review. We noted probable jurisdiction of her appeal, 425 U.S. 949 (1976).


The city argues that our decision in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), requires us to sustain the ordinance attacked here. Belle Terre, like East Cleveland, imposed limits on the types of groups that could occupy a single dwelling unit. Applying the constitutional standard announced in this Court's leading land use case, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), [n6] we sustained the Belle Terre ordinance on the ground that it bore a rational relationship to permissible state objectives.

But one overriding factor sets this case apart from Belle Terre. The ordinance there affected only unrelated individuals. It expressly allowed all who were related by "blood, adoption, or marriage" to live together, and, in sustaining the ordinance, we were careful to note that it promoted "family needs" and "family values." 416 U.S. at 9. East Cleveland, in contrast, has chosen to regulate the occupancy of its housing by slicing deeply into the family itself. This is no mere incidental result of the ordinance. On its face, it selects certain [p499] categories of relatives who may live together and declares that others may not. In particular, it makes a crime of a grandmother's choice to live with her grandson in circumstances like those presented here.

When a city undertakes such intrusive regulation of the family, neither Belle Terre nor Euclid governs; the usual judicial deference to the legislature is inappropriate.

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.

Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974). A host of cases, tracing their lineage to Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923), and Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), have consistently acknowledged a "private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). See, e.g., Roe v. Wade, 410 U.S. 113, 152-153 (1973); Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Ginsberg v. New York, 390 U.S. 629, 639 (1968); Griswold v. Connecticut, 381 U.S. 479 (1965); id. at 495-496 (Goldberg, J., concurring); id. at 502-503 (WHITE, J., concurring); Poe v. Ullman, 367 U.S. 497, 542-544, 549-553 (1961) (Harlan, J., dissenting); cf. Loving v. Virginia, 388 U.S. 1, 12 (1967); May v. Anderson, 345 U.S. 528, 533 (1953); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra at 166. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. See Poe v. Ullman, supra at 554 (Harlan, J., dissenting).

When thus examined, this ordinance cannot survive. The city seeks to justify it as a means of preventing overcrowding, [p500] minimizing traffic and parking congestion, and avoiding an undue financial burden on East Cleveland's school system. Although these are legitimate goals, the ordinance before us serves them marginally, at best. [n7] For example, the ordinance permits any family consisting only of husband, wife, and unmarried children to live together, even if the family contains a half dozen licensed drivers, each with his or her own car. At the same time, it forbids an adult brother and sister to share a household, even if both faithfully use public transportation. The ordinance would permit a grandmother to live with a single dependent son and children, even if his school-age children number a dozen, yet it forces Mrs. Moore to find another dwelling for her grandson John, simply because of the presence of his uncle and cousin in the same household. We need not labor the point. Section 1341.08 has but a tenuous relation to alleviation of the conditions mentioned by the city.


The city would distinguish the cases based on Meyer and Pierce. It points out that none of them "gives grandmothers any fundamental rights with respect to grandsons," Brief for Appellee 18, and suggests that any constitutional right to live together as a family extends only to the nuclear family -- essentially a couple and their dependent children.

To be sure, these cases did not expressly consider the family relationship presented here. They were immediately concerned with freedom of choice with respect to childbearing, e.g., LaFleur, Roe v. Wade, Griswold, supra, or with the rights [p501] of parents to the custody and companionship of their own children, Stanley v. Illinois, supra, or with traditional parental authority in matters of childrearing and education. Yoder, Ginsberg, Pierce, Meyer, supra. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case.

Understanding those reasons requires careful attention to this Court's function under the Due Process Clause. Mr. Justice Harlan described it eloquently:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed, as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. [n8] No formula could serve as a substitute, in this area, for judgment and restraint. [p502]

. . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

Poe v. Ullman, supra at 542-543 (dissenting opinion).

Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court. [n9] That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary -- the boundary of the nuclear family. [p503]

Appropriate limits on substantive due process come not from drawing arbitrary lines, but rather from careful "respect for the teachings of history [and] solid recognition of the basic values that underlie our society." [n10] Griswold v. Connecticut, 381 U. at 501 (Harlan, J., concurring). [n11] See generally Ingraham v. Wright, 430 U.S. 651, 672-674, and nn. 41, 42 (1977); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 16163 (1951) (Frankfurter, J., concurring); Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. [n12] It is through the family that we inculcate and [p504] pass down many of our most cherished values, moral and cultural. [n13]

Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. [n14] Over the years, millions [p505] of our citizens have grown up in just such an environment, and most, surely, have profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family. Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. Decisions concerning childrearing, which Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household -- indeed who may take on major responsibility for the rearing of the children. [n15] Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life. This is apparently what happened here. [n16]

Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree [p506] of kinship to live together may not lightly be denied by the State. Pierce struck down an Oregon law requiring all children to attend the State's public schools, holding that the Constitution "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." 268 U.S. at 535. By the same token, the Constitution prevents East Cleveland from standardizing its children -- and its adults -- by forcing all to live in certain narrowly defined family patterns.


1. All citations by section number refer to the Housing Code of the city of East Cleveland, Ohio.

2. Section 1341.0 (1966) provides:

"Family" means a number of individuals related to the nominal head of the household or to the spouse of the nominal head of the household living as a single housekeeping unit in a single dwelling unit, but limited to the following:

(a) Husband or wife of the nominal head of the household.

(b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household, provided, however, that such unmarried children have no children residing with them.

(c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household.

(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child. For the purpose of this subsection, a dependent person is one who has more than fifty percent of his total support furnished for him by the nominal head of the household and the spouse of the nominal head of the household.

(e) A family may consist of one individual.

3. Appellant also claims that the ordinance contravenes the Equal Protection Clause, but it is not necessary for us to reach that contention.

4. Brief for Appellant 4, 25. John's father, John Moore, Sr., has apparently been living with the family at least since the time of trial. Whether he was living there when the citation was issued is in dispute. Under the ordinance, his presence too probably would be a violation. But we take the case as the city has framed it. The citation that led to prosecution recited only that John Moore, Jr., was in the home in violation of the ordinance.

5. The dissenting opinion of THE CHIEF JUSTICE suggests that Mrs. Moore should be denied a hearing in this Court because she failed to seek discretionary administrative relief in the form of a variance, relief that is no longer available. There are sound reasons for requiring exhaustion of administrative remedies in some situations, but such a requirement is wholly inappropriate where the party is a criminal defendant in circumstances like those present here. See generally McKart v. United States, 395 U.S. 185 (1969). Mrs. Moore defends against the State's prosecution on the ground that the ordinance is facially invalid, an issue that the zoning review board lacks competency to resolve. In any event, this Court has never held that a general principle of exhaustion could foreclose a criminal defendant from asserting constitutional invalidity of the statute under which she is being prosecuted. See, e.g., Yakus v. United States, 321 U.S. 414, 446-447 (1944).

Moreover, those cases that have denied certain nonconstitutional defenses to criminal defendants for failure to exhaust remedies did so pursuant to statutes that implicitly or explicitly mandated such a holding. See, e.g., Falbo v. United States, 320 U.S. 549 (1944); Yakus v. United States, supra; McGee v. United States, 402 U.S. 479 (1971). Because of the statutes, the defendants were on notice that failure to pursue available administrative relief might result in forfeiture of a defense in an enforcement proceeding. But here no Ohio statute or ordinance required exhaustion or gave Mrs. Moore any such warning. Indeed, the Ohio courts entertained all her claims, perceiving no denigration of state administrative process in according full judicial review.

6. Euclid held that land use regulations violate the Due Process Clause if they are "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." 272 U.S. at 395. See Nectow v. Cambridge, 277 U.S. 183, 188 (1928). Later cases have emphasized that the general welfare is not to be narrowly understood; it embraces a broad range of governmental purposes. See Berman v. Parker, 348 U.S. 26 (1954). But our cases have not departed from the requirement that the government's chosen means must rationally further some legitimate state purpose.

7. It is significant that East Cleveland has another ordinance specifically addressed to the problem of overcrowding. See United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 536-537 (1973). Section 1351.03 limits population density directly, tying the maximum permissible occupancy of a dwelling to the habitable floor area. Even if John, Jr., and his father both remain in Mrs. Moore's household, the family stays well within these limits.

8. This explains why Meyer and Pierce have survived and enjoyed frequent reaffirmance, while other substantive due process cases of the same era have been repudiated -- including a number written, as were Meyer and Pierce, by Mr. Justice McReynolds.

9. Lochner v. New York, 198 U.S. 45 (1905). See North Dakota Pharmacy Bd. v. Snyder's Drug Stores, Inc., 414 U.S. 156, 164-167 (1973); Griswold v. Connecticut, 381 U.S. 479, 514-527 (1965) (Black, J., dissenting); Ferguson v. Skrupa, 372 U.S. 726 (1963); Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting); G. Gunther, Cases and Materials on Constitutional Law 550-596 (9th ed.1975).

10. A similar restraint marks our approach to the questions whether an asserted substantive right is entitled to heightened solicitude under the Equal Protection Clause because it is "explicitly or implicitly guaranteed by the Constitution," San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973), and whether or to what extent a guarantee in the Bill of Rights should be "incorporated" in the Due Process Clause because it is "necessary to an Anglo-American regime of ordered liberty." Duncan v. Louisiana, 391 U.S. 145, 149-150, n. 14 (1968); see Johnson v. Louisiana, 406 U.S. 356, 372 n. 9 (1972) (opinion of POWELL, J.).

11. For a recent suggestion that the holding in Griswold is best understood in this fashion, see Pollak, Comment, 84 Yale L.J. 638, 650-653 (1975).

[I]n due course, we will see Griswold as a reaffirmation of the Court's continuing obligation to test the justifications offered by the state for state-imposed constraints which significantly hamper those modes of individual fulfillment which are at the heart of a free society.

Id. at 653.

12. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court rested its holding in part on the constitutional right of parents to assume the primary role in decisions concerning the rearing of their children. That right is recognized because it reflects a "strong tradition" founded on "the history and culture of Western civilization," and because the parental role "is now established beyond debate as an enduring American tradition." Id. at 232. In Ginsberg v. New York, 390 U.S. 629 (1968), the Court spoke of the same right as "basic in the structure of our society." Id. at 639. Griswold v. Connecticut, supra, struck down Connecticut's anti-contraception statute. Three concurring Justices, relying on both the Ninth and Fourteenth Amendments, emphasized that "the traditional relation of the family" is "a relation as old and as fundamental as our entire civilization." 381 U.S. at 496 (Goldberg, J., joined by Warren, C.J., and BRENNAN, J., concurring). Speaking of the same statute as that involved in Griswold, Mr. Justice Harlan wrote, dissenting in Poe v. Ullman, 367 U.S. 497, 551-552 (1961):

[H]ere we have not an intrusion into the home so much as on the life which characteristically has its place in the home. . . . The home derives its preeminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right.

Although he agrees that the Due Process Clause has substantive content, MR. JUSTICE WHITE, in dissent, expresses the fear that our recourse to history and tradition will "broaden enormously the horizons of the Clause." Post at 549-550. To the contrary, an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on the abstract formula taken from Palko v. Connecticut, 302 U.S. 319 (1937), and apparently suggested as an alternative. Cf. Duncan v. Louisiana, supra at 149-150, n. 14 (rejecting the Palko formula as the basis for deciding what procedural protections are required of a State, in favor of a historical approach based on the Anglo-American legal tradition). Indeed, the passage cited in MR. JUSTICE WHITE's dissent as "most accurately reflect[ing] the thrust of prior decisions" on substantive due process, post at 545, expressly points to history and tradition as the source for "supplying . . . content to this Constitutional concept." Poe v. Ullman, supra at 542 (Harlan, J., dissenting).

13. See generally Wilkinson & White, Constitutional Protection for Personal Lifestyles, 62 Cornell L.Rev. 563, 623-624 (1977).

14. See generally B. Yorburg, The Changing Family (1973); Bronfenbrenner, The Calamitous Decline of the American Family, Washington Post, Jan. 2, 1977, p. C1. Recent census reports bear out the importance of family patterns other than the prototypical nuclear family. In 1970, 26.5% of all families contained one or more members over 18 years of age, other than the head of household and spouse. U.S. Department of Commerce, 1970 Census of Population, vol. 1, pt. 1, Table 208. In 1960, the comparable figure was 26.1%. U.S. Department of Commerce, 1960 Census of Population, vol. 1, pt. 1, Table 187. Earlier data are not available.

15. Cf. Prince v. Massachusetts, 321 U.S. 158 (1944), which spoke broadly of family authority as against the State, in a case where the child was being reared by her aunt, not her natural parents.

16. We are told that the mother of John Moore, Jr., died when he was less than one year old. He, like uncounted others who have suffered a similar tragedy, then came to live with the grandmother to provide the infant with a substitute for his mother's care and to establish a more normal home environment. Brief for Appellant 25.