CHAMBERS DRAFT
SUPREME COURT OF THE UNITED STATES
No. 75-6289
Inez Moore, Appellant,
fE
Cvl.
d Oh'
.
C1ty o ast eve1an , 10.
l
On Appeal from the Supreme
Court of Ohio.
[January -, 1977]
MR. JusTICE PowELL, dissenting.
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
a complicated definitional section-one may hope it is
unique-that recognizes as a "family" only a few erratically
patterned categories of related individuals. § 1341.08. Petitioner's family, living together in her home, fits none of them.
Specifically, the city considers her in violation of the ordinance because she permitted her young grandson, John Moore,
Jr., to live with her, while at the same time his first cousin,
Dale Moore, Jr., and uncle, Dale, Sr., remained in the same
household. 2 She was cited for a violation of the ordinance,
and when she failed to correct the violation, the city brought
criminal charges. Her defense was that § 1341.08 violates
the equal protection and due process guaranties of the
Fourteenth Amendment. The Ohio courts disagreed, and
she was sentenced to five days in jail and a $25 fine.
1 All citations solely by section number refer to the Codified Ordinances of the city of East Cleveland, Ohio.
2 The boy'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 would be a violation. But I 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. Mrs. Moore's
failure to have the boy leave was what led to her conviction.
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2
MOORE v. EAST CLEVELAND
I
There is no preserved legislative history in the form of
council minutes or committee reports to which we can turn
for guidance as to the purpose of § 1341.08. The statement
of purposes in the city's housing code, of which the challenged
provision is a part, is likewise of little help. It merely
recites the customary broad police power objectives, including "mak[ing] all dwelling structures safe, sanitary, free from
fire and health hazards, and fit for human habitation and
beneficial to the public welfare," and also "protect[ing]
property values and [maintaining] the character and appearance of the community . . . . " § 1343.02. These are legitimate purposes, but how § 1341.08, selecting only a limited
group of family patterns to the exclusion of others like Mrs.
Moore's, would further these ends is not apparent. The city,
in its brief and oral argument, has tried to be more specific.
It contends that the ordinance benefits the community in
three ways: it prevents overcrowding, it minimizes traffic
and parking congestion, and it helps avoid an undue financial burden on East Cleveland's school system.
If in fact these are the purposes of § 1341.08, it serves
them so marginally, if at all, that the ordinance must be
regarded as arbitrary. For example, the ordinance permits
any nuclear family 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
from sharing 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 John , Jr., simply because of the
presence of his uncle and cousin. I need not labor the point.
There is nothing but an accidental, fortuitous relation between
§ 1341.08 and the alleviation of crowding-whether it be
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MOORE v. EAST CLEVELAND
3
crowding of dwellings, of schools, or of traffic facilities.3 Clas.sifying family patterns in this eccentric way is hot a rational
means for achieving the ends the city claims for § 1341.08.
II
This conclusion affords adequate grounds for reversing petitioner's con,y}ction. But I am constrained to say more, for
I perceive no ·basis for treating this ordinance as a mere exercise in land use or zoning line-drawing comparable, say;
to a ,legislative decision to make 150 rather than l'OO square
feet per occupant the minimum required under a density
ordinance. E-ast Cleveland has chosen :t o regulate the occupancy of. its housing by slicing deeply into the core social
institution of' our Nation, the family. This is no mere incidental result of· the ordinance-. On its face it chooses certail'l
categories of relatives who may live together and' declares
that others may not. The usual judicial deference to the
legislature is not appropriate- when a city undertakes such
intrusive regulation of the family.
. Although no constitutional · provision expressly extends
protection, many of our cases, traci11g their lineage to M eyer
v. Nebraska, 262 U. S. 390, 399-401 (1923) , and Pierce v.
Society of Sisters, 268 U.S. 510, 534-535 (1925) , acknowledge
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. 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 York, 390 U. S.
a It is significant , see Department of Agriculture v. Moreno, 413 U. S.
528, 536-537 (1973) , t'hat East Cleveland has another ordinance specifica lly addressed to the problem of overcrowding. 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 l)y § 1341.08
might easily exceed the density allowance..
·
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4
MOORE v. EAST CLEVELAND
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 (Harlan, J. , dissenting); cf. Loving
v . Virginia, 388 U.S. 1, 12 (1967); May v. Anderson, 345 U.S.
528, 533 (1953); Skinn er v. Oklahoma, 316 U. S. 535, 541
(1942). Quite recently, in an opinion by MR. JusTICE
STEWART; the Court held squarely 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). One would think that Mrs.
Moore's decision to take her sons and grandsons into her
household is entitled to recognition as an exercise of that
"freedom of personal choice in matters of ... family life."
Nevertheless, the Court today holds otherwise. In doing
so , it does not repudiate the cases stemming from M eyer and
Pierce; it distinguishes them. The Court docs not deny that
the right to live together as a family is central to the liberty
recognized in LaFleur. Rather it suggests that the right
extends only to the nuclear family-essentially a couple and
its own children.
I agree that the cases mentioned above, read narrowly,
are distinguishable. They are 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 parental authority in matters of childbearing and education. Yoder, Ginsberg, Pierce,
Meyer, supra.. But the cases address the rights of parentsmembers of the nuclear family-only because their particular
facts required no more. Until today one would not have
found in our cases any suggestion that the protection afforded
the family halts abruptly at the boundaries of the parentchild family unit. The 111ajority succeeds in limiting that
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MOORE v. EAST CLEVELAND
5
protection so narrowly only by glossing over the rea~ons
why the Court acknowledged these "substantive due process"
rights in the first place.
Substantive due process has been a highly sensitive subject for years. Once the Court embarks on a course of
protecting substantive liberties that do not rest straightforwardly on the more specific provisions of the Bill of Rights,
there is reason for uneasiness lest the only limits to judicial
intervention become the predilections of those who happen
at the time to be Members of this Court. This is by no
means a frivolous concern. The unhappy history of the
L,ochner. era cases counsels caution and restraint. 4 But it
does not counsel abandonment, nor. does it require what the
Q:ourt does today: cutting off a recognized protection of
family rights at the first convenient, if arbitrary .b oundarythe boundary of the nuclear family.
" The limits on substantive d~e process come not from
drawing arbitrary lines .b).it rath!=}~ ·from careful "respect for
the teachingf' of history: [and] solid recognition of the basic.
values that .;underlie our society." 0 . Griswold v. .Connecticut,''
381 U. S.; at 501 (HarlaiJ., J., cori'~urring); 6 Gregg v. GearI
''I
Lochner v. New York, 1M ·u. S. 45 (1905) ., See North Dakota State
13oard of Pharm-acy v. Snydei-"s Drug Stores, Inc. , 414 U. S. 156, 164-167
(1973); Ji'el'guson v. Skrupa, 372 U. S. 726 (1963); Baldwin v. Missouri,
281 U. S. 586, 595 (1930) (Holme:;, J., dissenting). See also Griswold v.
Connecticut, 381 U. S., at 514-527 (Black, J., dissenting).
5 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, 11 San Antonio Independent School Dist, v. Rodriguez,
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 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, 366 (1972) (PowELL, J.,
concurring).
6 For a recent suggestion that the holding in Griswold is best under4
75.:..6289-DISSENT
(I -
MOORE v. EAST CLEVELAND
gia, 96 S. Ct. 2909, 2925-2926 (1976) (opinion of
STEWART,
PowELL, and STEVENS, JJ.).
"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 a.re 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,
which a decision which builds on what has survived is
likely to be sound." 7 Poe v. Ullman, 367 U. S., at 542
(Harlan, J., dissenting).
Our decisions established that the Constitution protects
the sanctity of the family not because the Justices felt
moved by the situation of the particular family members
who happened to be before the Court but because the institution of the family is deeply rooted in this Nation's tradition;
stood in this fashion , see Polla1,, CommPnt, 84 Ya'lc L. J. ()38, 650--653
(1975): "[I]n due course we will see Griswold as a reaffirmation of the
Court's continuing obligation to tPRt the ju8t ifirations offered by the state
for state-impo,;ed constraints whiC'11 significantly hamper those modes of
individual fulfillment whicl1 are at the 11eart of a free society." !d., at
653.
7 This explains why Meyers and Pierce have survived and enjoyed frequent reaffirmance, while other substantive due process cases of the same
era have brcn repudiated-including a number authored, as were Meyer
and Pierce, by Mr. Justice McReynolds.
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MOORE v. EAST CLEVELAND
7
indeed, it is the means by which we inculcate and pass
down many of our most cherished values, moral and cultural.
A number of our cases, including those as recent as Wisconsin v. Yoder, make explicit that this tradition is the basis
for constitutional protection. 8
But ours is hardly a tradition narrowly limited to the
confines of the nuclear family, even if in some sense that is
the elemental unit. The tradition of uncles, aunts, counsins,
and especia1ly grandparents sharing a household along with
parents and children has roots equally venerable and eq1;1ally
deserving in many situations of this Court's respect. 9 Over
In Yoder the Court rested its holding in part on the constitutional
right of parents to assume the primary role in decisions as to the rearing
of their children, That right is recognized becau ·e it ~eflects a "'strong
tradition" founded on "the history and culture of Western civilization,"
:.:.nd because the parental role "is now established 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 "basic in the structure
of our .society." 390 U. S., at 639. Griswold v. Connecticut, supra,
struck down Connecticut's anticontraception statute. Three concurr ing
Justices; resting on both the Ninth and Fourteenth Amendments, em~
phasized that "the traditional relation of the family" is ' 1a relation as old
and as fundamental as our entire civilization ." 381 U. S., at 496 (Gold. berg, J., concurring). Speaking of the same .statute as that involved in
Griswold, Mr. Justice Harlan wrote, dissenting in Poe v. Ullman, supra:·
''[H]erc 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 principlrs of more than one' explicitly granted
Constitutional right." 367 U. S., at 551-552:
0 Roughly 10% of all households in this cot!ntry contained a third or
fourth adu lt in 1950, although the number has dropped since then, a
trend many find disturbing. See Bronfcnbrenner, The Calamitous Decline
of the Ametican Family, The Washington Post, Jan. 2, 1977, at CL C3.
Even so, tl;e.Se figures no doubi do not tell the full story. Many times
a grandparent, uncle, or aunt, for example, shares the home only for a
few years-perhaps simply to help the family weather particula.r storms.
Sttch families clearly share in the tradition of which I speak, even if they
. 8
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8
MOORE v. EAST CLEVELAND
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 tradition of civilization, gained over thousands of years, supporting a larger conception of the family.
Out of choice, necessity or a sense of family responsibility,
it has been traditional for close relatives to draw together
to share the duties and the satisfactions of a common home.
Decisions as to 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. 10
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. We are told that
the mother of John Moore, Jr., died when he was less than
one year old. John , Sr., a.nd John, Jr., like uncounted others
who have suffered a similar tragedy, then came to live with
the grandmother to provide the boy with a substitute for
his mother's care and to establish a more normal home
environment.
Whether or not such a household is established because
of personal tragedy, the choice of relatives in this degree
of kinship to live together should 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
appear as nuclear family households in the statistics for a given census
date.
1 ° 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 heJ; aunt, not her natural parents.
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MOORE v. EAST CLEVELAND
9
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 I would have thought the Constitution forbids
a city from standardizing its children by decreeing that all
shall live in nuclear families-at least without some stronger
showing than East Cleveland has offered that the regulation
is needed to serve legitimate state purposes. In expressing
this view, I do not suggest that the family is beyond regulation. See Prince v. Massachusetts, 321 U. S., at 166. But
if the State is to intrude on choices concerning family livingarrangements, it should be on the basis of legitimate state
interests that are served far more substantially than appearS"
in this case.
III
It is suggested that this view of what the Constitution:
requires will disable cities throughout the country from
maintaining residential areas devoted· to single-family resi~
dences. Belle Terre v. Boraas, 416 U. S. 1 (1974) , makes
abundantly clear that the maintenance of such zones is a:
valid legislative aim. See Young v. American Mini Theatres,
- U: S . - (Slip op. , at 8) (1976) (PowELL, J. , concurring).
Belle Terre also makes clear that in pursuit of that goal a
municipality may bar unrelated individuals from living together in its single-family areas. But a legitimate concern
for maintaining single-family zones cannot explain East
Cleveland's ordinance or its application to Mrs. Moore's
household. Few would regard the sharing of a home between
a grandmother and her sons and· grandsons as destructive of
the single-family character of a neighborhood. In view of
the honored role of grandparents and· their relationship with
children and grandchildren , few indeed would think that Mrs.
Moore's household was anything but a si'ngle family.
The city has ample means at its disposal, short of intrudi_ng on close family relationships, for limiting the kinds of
; ,:'7'5--6289~DISSENT
10
MOORE v. EAST CLEVELAND
living arrangements that might be destructive of a familycentered ne1gnoorhood. 'l 'he::.e mcmde, 01 course, tue oan on
housenolds 01 unre1ated. llldlV1UUa1s taat.. we SW:Mt.weu w De~ie
l'erre. .tlut tney m1gnt a1so memae regu1atWHS lHclUeHvaHy
impmgmg on tne nvmg arral}gements 01 reHttlVts, m 111e uuhkely event tnat sucn arraugements were tauUgtlli w vvse
some wd.epeudent prot.Hem lor tue eonunumty. l'wtllwg prevents tne c1ty, lor examp1e, nom emorcwg a reasvmw1t: uenSlty 01dmance like tue one bast '--'1evemau aH·e~:~,uy 11~," '
. thereby restrwtwg the nmuuers 01 re1at1ves wuo 1u..g11li JVlll
, togetner under tue same root. 1~ or 1s tne c1ty d1Sa1.Heu 11 vm
emoremg tuat patt or S 1041.U1:S wnH.m Hlllw:> 1awme:s to
relatea wmvwua1s •·nvwg as a swg1e nouseKeep111g U111t 111
a smg>e uwe11mg umt."
'l'ue exawpw vi DeHe Terre is instructive. Belle Terre was
a VIllage oo vlOUSlY. coucerneu au out ma111tawwg we swg1efam11y cnaraeter 01 1ts conHu u1u ty. l et 1t IO w1u aueq uate
protectwn tor these purposes m an orumauce tuat auuwed
au wno are re1ated oy · · ~:Hood, aaopt,wu ot 111arnge to 11ve
togetner, so 1o11g as tuey were "11 vwg and cooK111g togetHer
as a swg1e houseKeepmg umt.'' :::lmee tnese and swma1· proVlSlOlls remam ava11aJJ1e, t11ere 1s no reason to tear tue
den11se ot smgle-tam11y zonmg if lVIrs. lVIoore's conv1ct10n
is reversed.
IV
There is no warrant in the Constitution for considering
what Mrs. Moore has done a crime. I respectfully d1sscnt.
11
See n. 3, supra.