Clr
CHAMBERS DRAFT
SUPREME COURT OF THE UNITED STATES
No. 75-6289
Inez Moore, Appellant,
.
v.
.
C1ty of East Cleveland, Oh1o.
I
A
f
h S
0 n ppea1 rom t e upreme
Court of Ohio.
[May -, 1977]
MR. JusTICE PowELL announced the judgment of the Court.
East Cleveland's housing ordinance, like many throughout
the country, limits occupancy of a dwelling unit to members
of a single family. § 1351.02. 1 But the ordinance contains
an unusual and complicated definitional section that recognizes
as a "family" only a few categories of related individuals.
'§ 1341.08,2 Because her family, living together in her home,
"1 All citations by section number refer to the Codified Ordinances of
the City of East Cleveland, Ohio.
2 Section 1341.08 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 un it, buL limited
to the following:
"(a) Husband or wife of the nominal hea.d of t he household.
11
(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 t hem.
11
(c) Father or mother of the nominal head of the household or of t he
spouse of the nominal head of the household .
11
(d) Notwithstanding the provisions of subsection (b) hereo f, 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
75-6289-0PINION
2
MOORE v. EAST CLEVELAND
fits none of those categories, appellant stands convicted of a
criminal offense. The question in this ca.se is whether the
ordinance violates the Due Process Clause of the Fourteenth
Amendment. 8
I
Appellant, Mrs. Inez Moore, lives in her Ea.st 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
came to live with his grandmother and with the elder and
younger bale Moores after his mother's death. 4
In early 1973, Mrs. Moore received a notice of violation from
't he city, stating that John wa,s an "illegal occupant" and
directing her to comply with the ordinance. When she failed
to correct the situation, the city filed a criminal charge. Mrs.
Moore moved to dismiss, claiming tha.t the ordinance's definition of family was constitutionally invalid on its fa.ce. 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, and the Ohio Supreme Court denied review. We
· noted probable jurisdiction of her appeal, 425 U . S. 949 (1976).
has more than fifty percent of his total support furnished for him by the
.. non\inal head of the household and the spouse of the nominal head of the
household.
" (e) A family may consist of one individual."
s Appellant also claims that the ordinance contravenes the Equal Pro'tectlon Clause, but it is not necessary for us to reach that contention.
4 Brief for Appellant 4, 25. John's father, John Moore, Sr., haa 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
v'i'olation of the ordinance.
75-6289-0PINION,
MOORE v. EAST CLEVELAND
( .. L.J
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3
II
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 th~
cou d occupy a single
~ Applying the constitutional standard announced in this Court's leading land-use case, Euclid v. Ambler Realty Co., 272 U.S. 365 (1927), 5 we sustained the Belle
Terre ordmance==l:We heW. that it bore a rational relations ·
to permissible state objective
e city of East Cleveland
advances some of these same objectives in support of its
ordinanc , mcluding a re uctwn in crowding and tra c.
:;,(16 U. S., at 9.
~~d traffic; we emph~sized
QS
well that
-
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lished zones addressed to "family needs" and "fam1ly values."
416 U. S., at 9. East Cleveland, in contrast, has chosen to
regulate the occupancy of its housing by slicing deeply into
5 Euclid held that land-use regulations violate the Due Process Clause
if they are "clearly arbitrary and unreasonable, having no &1.tbstantial relations to the public health, safety, morals, or general welfare." 272 U. S.,
at 395. See Nectow v. City of Cambridge, 277 U. S. 183, 188 (1928).
Later cases have emphasized that the general welfare is not to be narrowly tmderstood; 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 legitink'tte state purpose.
75-6289-0PINION
4
MOORE v. EAST CLEVELAND
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the. family
This .is no more incidental result of the
ordmance. On Its face It chooses c~a~t~o~ela/
tivos who may live together and declares thatotllers rnay not/
When a city undertakes such intrusive regulation of the
family, neither Belle T erre nor Euclid governs; the usual
judicial deference to the legislature is wholly 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 Duo 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, 1613 (1944). See, e. g., Roe v. Wade,
410 U. S. 133, 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 Y ark, 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, 549553 (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, 316 U. S. 535, 541 (1942). Of course,
the family is not beyond regulation. See Prince v. Massachusetts, supra, at 166. But if the Government is to intrude
on choices concerning family living arrangements, it may do
so only upon a substantial showing that its regulation is
needed to serve important governmental purposes.
The showing here falls far short of that standard. The
'c ity seeks to justify its ordinance as a means of preventing
overcrowding, minimizing traffic and parking congestion, and
avoiding an undue financial burden on East Cleveland's
school system. Although these are legitimate goals, the
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75-6289-0PINION
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MOORE v. EAST CLEVELAND
5
ordinance before us serves them marginally, at best. 6 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. The relation betwen § 1341.08 and alleviation of the conditions mentioned by the city is little better tha~
III
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, at
18, and suggests that any constitutional right to live together
as a family extends only to the nuclear family-essentially a
couple and its own 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
of parents to the custody and companionship of their own
children, Stanley v. Illinois, supra, or with traditional parental
It is significant that East Cleveland has another ordinance specifically
addressed to the problem of overcrowding. See Department 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. Other "family" groupings permitted by § 1341.08
mill:ht easily exceed the density allowance.
6
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7
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75-6289-0PINION
6
MOORE v. EAST CLEVELAND
authority in matters of child rearing and education. Yoder,
Ginsberg, Pierce, Meyer, supra. But unless we close our eyes
to the basic reasons why family rights 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
th.e liberty, of the individual, has struck between that
liberty and tpe demands of organized society. If the supplying of co'iltent 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
specqlation might take th~m. .The balance of which I
speak is the bala~ce struck by this country, having regard
to what history teaches are the traditions from which it
d~veloped : as well as the traditions from which it broke.
That tradition js a living thing. A decision of this Court
wnich radically departs from it could not long survive,
while a decision which builds on what has survived is
likely, to be sound.c7l No formula could serve as a substitute, in this area, for judgment and restraint.
" . . . [T]he full scope of the liberty guaranteed by
the Due Process Clause cannot be found in or limited
7 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 authored, as were Meyer
and Pierce, by Mr. Justice McReynolds.
75-6289-0PINION
MOORE v. EAST CLEVELAND
7
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 fre edom 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, 367 U. S., at 542- 543 (Harlan, J.,
dissenting).
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 tho13e who
happen at the time to be Members of this Court. 8 That
history counsels caustion and restraint. But it does not counsel adbandonment, nor does it require what the city urges
here: cutting off a recognized protection of family rights at
the first convenient, if arbitrary boundary-the boundary of
the nuclear family.
Appropriate limits on substantive due process come not
from drawing arbitrary lines but rather from careful "respect
8 Lochner v. N ew York, 198 U. S. 45 ( 1905).
See North Dakota State
Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U. S. 156, 164-167
(1973); Griswold v. Connecticut, 381 U. S., at 514-527 (Black, J., dissenting); Ferguson v. Skrupa, 372 U. S. 726 (1963); Baldwin v. Missouri,
281 U. S. 586, 595 (1930) (Holmes, J. , dissenting); Gunther, Cases and
Materials on Constitutional Law 550-596 (9th ed. 1975).
75-6289-0PINION ,
MOORE v. EAST CLEVELAND
8
for the teachings of history [and] solid recognition of the basic
values that underlie our society." 9 Griswold v. Connecticut/ 0
381 U. S., at 501 (Harlan, J., concurring). See generally
)
Ingraham v. Wright,- U. S. (1977) (Part IV-ALSlip
op., at 21-22, and nn. 41, 42; Joint Anti-Fascist Refugee Com(;mittee v. McGrath, 341 U.S. 123, 162-163 (1951) (FranJurter,
J., concurring); Lochner v. New York, 198 U.S. 45, 76 ~
(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. 11 It is through the family that
A similar restraint marks our approach to the qur ·tions 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 Indep endent School Dist. v. Rod1iguez,
411 U. ·s. 1, 33-34 (1973), and whether or to what extent a procedural
. guarantee in the Bill of Rights should be "incorporated" in the Due
Process Clause· becau;;e 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, 366 (1972) (PowELL, J .,
· concurring).
1 °For a recent suggestion that the holding in Griswold is best under,. stood in this fashion, see"'Pollak, Comment, 84 Yale L. J. 638, 650--653
(1975). "[I]n due course we will see Grisw old as a reaffirmation of the
Court's continuing 'obligation to test the justifications offered by the state
for state-imposed constraints whlch significantly hamper those modes of
individual fulfi'llment which are at the heart of a free society." !d., at
653.
11 In Wisconsin v. Yoder 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" foundrd on "the history and cu lture of Western
civilization," and because the parental role "is now establislwd beyond debate as an enduring American tradition." 406 U. S., at 232. In Ginsberg
v. New York, supra, the Court spoke of the same right as "ba:;ic in the
structure of our society." 390 U.S., al 639. Griswold v. Connecticut, supra, struck down Connecticut's anticontraception statute. Three concurring Justices, resting on both the Ninth and Fourteenth Amt'ndmen1s, emphasized that "the t.raditional relation of the family" is "a relation as old
9
\
75-6289-0PINION '
MOORE v. EAST CLEVELAND
9
we inculcate and pass down many of our most cherished
values, moral and cultural. 12
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. 13 Over the years millions
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
and as fundamental as our entire. civilization." 381 U. S., at 496 (Goldberg, J., concurring). Sf)eaking of the same statute as that involved in
Griswold, Mr. Justice. HarlaB wrote, dissenting in Poe v. Ullman, supra:
"[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." 367 U. S., at 551-552.
12 See generally Wilkinson & White, Consti1 utional Protection for Personal Lifestyles, 62 Cornell L. Rev. 563, 623-624 (1977).
13 See generally B. Yorburg, The Changing Family (1973).
Roughly
10% of all households in this country contained a third or fourth adult
in 1950, although the number has dropped since then, a trend many
find disturbing. See Bronfenbrenner, The Calamitous Decline of the
American Family, The Washington Post, Jan. 2, 1977, at Cl, C3.
Even so, these figures no doubt. do not tell the full story. Many times
a grandparent, uncle, or aunt, for example, joins the home only for a
few years-perhaps simply to help the family weather particular storms.
Such families clearly share in the tradition of which we speak, even if they
appear as nuclear family households in the statistics only for a given census
date.
75-6289-0PINION
10
MOORE v. EAST CLEVELAND
together and participate in the duties and the satisfactions of
a common home. Decisions as to child rearing, 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 householdindeed who may take on major responsibility for the rearing
pf the children.H 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.u
Whether or not such a household is established because
of personal tragedy, the choice of relatives in this degree
of kinship to live together may not lightly be denied by
the Government. 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 534-535. 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. Mrs.
Moore's conviction cannot stand.
Reversed.
14 Cf. Prince v. Massachusetts, supra, 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.
15 We are told that the mother of John Moore, Jr., died when he was
less than one year old. He and his father, 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.
......,.;.
APR 2 8 1977
t.JlE C'O P'(
I
PLEAS£ RETURH;e-;
·:··10 FILE
1st DRAFT
SUPREME COURT OF THE UNITED STATES
No. 75-6289
Inez Moore, Appellant,
v.
City of East Cleveland, Ohio·.
l
.
t h e 8 upreme
0 n Appea1 f rom
Court of Ohio.
[May -,. 1977]
MR.
PowELL announced the judgment of the Court.
East Cleveland's housing ordinance, like many throughout
the country, limits occupancy of a dwelling unit to members
of a single family. § 1351,02. 1 But the ordinance contains
an unusual and complicated definitional section that recognizes
as a "family" only a few categories of related individuals.
§' 1341.08.2 Because her family, living together in her home,
1
JusTICE
All citations by section number refer to the Codified Ordinances of
the City of Ea:>t Cleveland, Ohio.
2 Section 1341.08 provides:
"'Family' mean a number of individuals related to the nominal head
of the household or to the spouse of the nominal head of the hou ·chold
living as a. single housekeeping unit in a single dwelling unit, but limitrd
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
f'tlrh unmarried children have no children residing with them.
"(c) Fatht>r or mother of the nominal head of the household or of the
;,pou ~t> of tho nominal head of the household.
" (d) Notwithstanding the provisions of subsection (b) hert>of, a family
ma~· include not more than ont> rlcprndent married or unmarrird child of
lw nominal head of the hou;;;chold or of the spouse of the nominal head
of thr housrhold and the spouse and dependent children of such dependent
child. For the purpo::;e of thi::; Rubsection, a drpendt>nt person is one who
75-6289-0PINION
2
MOORE v. EAST CLEVELAND
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. 3
I
Appella.nt, 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
came to live with his grandmother and with the elder and
younger Dale Moores after his mother's death. 4
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,
and the Ohio Supreme Court denied review. We noted
probable jurisdiction of her appeal, 425 U. S. 949 ( 1976).
hn:; mort• than fift~· percent of his total support furnished for him by the
nominal bend of the hou~ehold and the ~pouse of the nominal head of tho
hou:;ehold .
"(e) A famil~· may eon:::i:-;t of one individual."
8 Appellant abo claimK thnt the ordinance contravene:; the Equal Pro1Prtiou Clau:;e, but it i~ not nece::;;;ar~· for us to reach that contention.
4 Brirf for Apprllant 4, 25.
John's father, John Moore, Sr., has apparently beeu living with the famil~· at lea:;t since the time of triaL
Whrther he wa~ living thrrr when the citation wa:; issued is in dispute ..
Under the ordinance, hi:-t preKencP too probably would be a violatiou.
Hut we take the c•a:-;e a" the cit~· has framrd it. The citation that .led'
to pro,;ecution rer1trd only that John Moore, Jr., wa ~ in the home inc
violation ()f the ordinunce.
75-6289-0PINION
MOORE v. EAST CLEVELAND
3
II
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
tlwelling unit. Applying the constitutional standard announced in this Court's leading land-use case, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)/ 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
1'erre. The ordinance there affected only unrelated individuals. It expressly allowed all who were related by "blood,
adoption, or marriage" to live together. In sustaining the
11rdinance we were careful to note that it promoted "family
tleeds'' 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
mcidental result of the ordinance. On its face it selects certain 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 circumtances like those presented here.
When a city undertakes such intrusive regulation of the
family, neither Belle Terre nor Euclid govems; the usual
judicial deference to the legislature is inappropriate. "This
n Euclid held that land-u;;e regulations violate the Due Proce;;;; Clau::;e
if they are ''clear!~· nrbitrary and unreasonable, having no ;;ubstantial relntion to the public health . .;afeiy, mornli:! , or genernl welfare." 272 U.S.,
tt 395. Sec Nectow v. City of Cambridge, 277 U. S. 183, 188 (1928).
Latrr case;; have emphmmed that tiH' general welfare is not to be narrowly undrrstood; it embrnrrs a. broarl range of governmental purposes.
""f:'r Berman v. Parke1·, 34~ U. S. 26 (1954) . But our case:> have not
•leparted from the reqturem<'ut that the Govrrnment';; cho;;en means mu;;t
_,,tionn lly further ~ome legitimate state purpose.
75-6289-0PINION
MOORE v. EAST CLEVELAND
4
Court has long recognized that freedom of personal choice
lu 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
( H)23), 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
"C. S. 205, 231-233 ( 1972) ; Stanley v. Ill·inois, 405 U. S.
()45, 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,
.T .. concurring); Poe v. Ullman, 367 U.S. 497, 542-544, 549-553
( 1961) (Harlan. J., dissenting); cf. Loving v. Virginia, 388
lT. S. 1, 12 ( 1967); May v. Anderson, 345 U.S. 528,533 (1953);
qkinner v. Oklahoma, 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
tn ust examine carefully tht- importance of the governmental
intt-rests advanced and the extent to which they are served by
the challenged regulation. See Poe v. Ullman, supra, at 554
( Harlan, J., disseuting).
When thus examined , this ordinance cannot survive. The
eity seeks to justify lt as a means of preventing overcrowding, minimizing traffic and parking congestion, and
u,voiding an undue financial burden on East Cleveland's
-;chool system. Although these are legitimate goals, the
ordinance before us serves them marginally, at best.G For
that Ea~t l'kveland has another ordinance specifically
to 1hr probh'm of overerowcling. See Department of Agri·ultul'e v, Moreno , 413 U. S, 528, 536-537 (1973). Section 1351.03
" It
~~ ~1gnificant
• tdclre~~rd
75-62c 9-0PINION
MOORE v. EAST CLEVELAND
5
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
1:341.08 has but a tenuous relation to alleviation of the conditions mentioned by the city.
III
The city would distinguish the cases based on Meyer and
Pierce. It points out that none of them ''gives grandmothers
·wy fundamental rights with respect to grandsons," Brief, at
18, and suggests that any constitutional right to live together
as a family extends only to the nuclear family---€ssentially a
couple and its 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
of parents to the custody and companionship of their own
children, Stanley v. Illinois, supra, or with traditional parental
authority in matters of child rearing and education. Yoder,
Ginsberg, Pierce, Meyer, supra. But unless we close our eyes
to the basic reasons why certain rights associated with the
ramily have been accorded shelter under the Fourteenth
llrmts population density dirrc·tly, tying the maximum petmissible occu-
pan<'y of a dwelling to the habitable floor area. Even if Jolm, Jr., and
his father both remain in Mrs. Moore's household, the family stays well
, i1hm thP~P lirnit;;,
75-6289-0PINION
6
MOORE v. EAST CLEVELAND
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 tra.ditions 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. (7] No formula could serve as a substitute, in this area. for judgment and restraint.
" . . . [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
7 This li'xplain;; why Meyer and Pierce havli' survived and enjoyli'd frequt'nt rcaffirmance, while other substantive due process cases of the same
•·ra have bli'li'n rcpudialli'd-including a number authored, as were Meyer·
111d. fit>1'Ce, b~r M{ ..JusHce McRrynold.s.
75-6289-0PINION
MOORE v. EAST CLEVELAND
7
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, 367 U. S., at 542-543 (Harlan, J.,
dissenting).
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. 8 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.
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." 9 Griswold v. Connecticut/ 0
'Lochner\' . Ne!c York, 198 U.S. 45 (1905). See North Dakota State
Board of Pharmacy v. Suyder's Drug Stores, Inc., 414 U. S. 156, 164--167
t197:3): Griswold v. Conuecticut, 381 U. S., at 514--527 (Black, J., dis~enting); Perguson v. Skrupa, 372 U.S. 726 (1963); Baldwin v. Missouri,
Jl·d ll . S. 58fi, 595 (19:30) (Ilolrnc~, .T., dissenting) ; Gunther, Cases and
\latrnab on Con::;titutional Law 550-596 (9th ed. 1975) .
0 A ~imilar rc·~traint marks our approach to the questions whether an
a.~scrtC'd sub::;tantivc right is entitled to heightened solicitude under the
[Footnote 10 is on p. 8]
'T5-fi2b!J-OPINTON
MOORE v. EAST CLEVELAND
S81 F. S., at 501 (Harlan, J., concurring). See generally lngra.,
ham v. Wright , - - U .• '. (1977) (Part IV- A, Slip op. , at
~1-22, and nn. 41, 42); Joint Anti-Fascist Refugee Commit~
tee v. M cGrath, 341 U. S. 123, 162-163 (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
0;'ation's history and tradition.•i It is through the family that
Equal Protection Clause because it is "explicitly or implicitly guaranteed
hy the Constitution," San Antonio Independent School Dist. v. Rodriguez,
-tll l·. 8. 1. 3:3-:3-t (1973), and whether or to what extent a guarantee
111 I he Bill of Hi~ht ~ should be " In corporated " in thP Dur Process C ia usC:'
lH'(':ltt~r it i~ "nrc·r~,;nr~· to an Anglo-American regimr of ordered librrty.' 1
Dwu·an v. Louisiana , :391 U. 8. i45 , 149-150, n. 14 (1968) ; srr Johnson v.
f_,o uisicma, 40(i 0. S. 356. :372 n . 9 (1972) (PowELL, .J., concurrin~).
H• For a rerrnt suggestion that the holding in Gr-iswold is b~t under..;tood in this fa . hion , see Pollak, Comment, 84 Yale L. J. 63 , 650-653
(1975). '' llln du E' cour,;r we will S<'E' Grisw "ld as a reafJirmntion of the
Court's continuing obligation to test the justifications offered by the state
for state-imposrd cono; traints which significantly hamper thosr modE's of
mdiv1dual fulfillment which are at tl1e heart of a free society." !d., at
t15~.
11
In Wisconsin v. J'odeT th r Court restrd its holding in part on the con-<t ttutionnl right of p:trent~ to a~c:umr the primary rolP in derision,; eoncprnnt~ thr ren ring of th eir children. That right i;,; recognizrct hrcnuse i't
rr fl pct~ a ";;t rong trndition " founded on "tlw history and culturr of Western
cJ vilizntion," and brrau~r t lw parrntnl role '' i::; now ro;tablil'lwd bPyond dehate as an rnduring AmC'rica n tradition." -+06 U.S., at 2:32. In Ginsberg
\. l'v'ew York, supra, tlw Court ~pokr of the same right ns "ba~ic in thr
~il'll ('tUrr• of our sor irty." :~90 U.S., nt 6:39. Orisu•o/d v. Cormecticut, supra, ;;I ruck down C'onne('t icut ·~ nnt ieontrareption statui<' . ThrC:'e concurrmg .Jn stic~. n·l~·in!!; on both thP Xinth and Fomtrmth Amendmrnts. rmphasized that "the tradttJOnal relat ion of the family" is "a relntion ns old
and as fundamental as our entire civilization." 381 U. S., at 496 (Goldlwrg, .T., coneurnn g). Spra k!llg of the .same statute as that involved in
Oris wold, Mr. J u~ticr Harlan wrote, dissenting in Poe v. Ullman, supra:
''I H]ere we have not an mtmsion into the home so much as on the
life which charaetcristirally has its place in the home. . . . The home
!rrin~ it~ pn·-rminrn<'t' :ts tlw sf:'a t of f11mily lifP. And thr intrgrit~· o(
75-ti:2~9-0P IN IO:N
MOORE v. EAST CLEVELAND
9
wr inculcate aml pass down many of our most cherished
values, moral and cultural.'~
Ours is by no means a tradition limited to respect
for thr 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.1:1 Over the years millions
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 aud honored
throughout our history, that supports a larger conception of
the family. Out of choice, necessity. or a sense of family r<.'sponsibility, it has been common for close relatives to draw
togPthcr and participate in the duties and the satisfactions of a
common horne. Decisions concerning child rearing, which }·oder, Meyer, Pierce and other cases have recognized as cntitlrd
to COilstitutional protection, long have been shared with grandparrnts or other relatives who occupy the same householdinclerd who may take on major responsibility for the rearing
that hfe is somrthing ·o fundamental that it has been found to draw
to its protection the principles of more than one explicitly gruntrd
Constitutional right." 367 U. S., at 551-552.
' " RPr grnrrally Wilkin,;on t\: Wbitr, Con:>titut ional Protection for Per-ona! Lifrst~· b. f\2 Cornell L. Rrv. 56:3, f\2:j-fi24 (1977).
1 " Rre grnrrall~· B. Yorbmg. T lw ChHnging Family (1973); Bronfrnhrennrr. Thr Calamitou~ Decline of thr Anwrican Family, Tbl' Wn:-<hinp;ton Pn:>t , Jan. 2, 1977. nt CJ. Rrrent ren~u~ rrport ,; bear out thr impor1•\nrP of fHmil~· patlrrn~ othrr than thr prototypical nuclrar famil~·.
In
1970, 26.5% of all fHmilir.; contninrd one or morr membrrs ovrr 1~ yrarli
1f agr, other than thr brad of hou,;rhold nnd ,;pou;;r. F. S. Drpartmrnt
of C'ommrrcr, 1970 Crnsus of Population, vol. 1, pt . 1, Table 208. In
1960 thr comparablr figurr wa~ 26.1%. U.S. Departmrnt of CommNrc ,
1-'loO Crnsus of Popnla tion , vol. 1. pt. 1, TnbJc 187. Earlier data ~~ r<' nut
·'' niJnhlt:
"15-6289-0PINION
10
MOORE
'IJ .
EAST CLEVELAND
pf the children.14 Especially in times of adversity. ~uch as th~
death of a spouse or economic need, the broacler family has
tended to come together for mutual sustenance and to main,.,
tain or rebuild a secure home life. This is apparently what
happened here? 5
Whether or not such a household is established because
of personal tragedy, the choice of relatives in this degree
of kinship to live together may not lightly be denied by
~he Government. 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. Ey
the same token the Constitution prevents East Cleveland
from standardizing its children-and its adults-by forcing
ull to live in certain narrowly defined family patterns.
Reversed,
14 Cf. Prince v. Massachusetts, sup?·a, 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.
l 5 We are told that. the mother of .John Moore, Jr. , died when he was
l&s than one year old. He and his father, like nncounted 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.
t.'· morr normal hqme environment. Brief for Appellant 25,