Does a municipal zoning ordinance that limits occupancy of a dwelling to members of a narrowly defined "family," and thereby criminalizes a grandmother's choice to live with her two grandsons who are first cousins, violate the Due Process Clause of the Fourteenth Amendment?

East Cleveland, Ohio, enacted a housing ordinance limiting occupancy of each dwelling unit to members of a single family. The ordinance defined "family" to include only specified categories of relatives of the head of the household: the spouse, unmarried children (provided those children had no children residing with them), a parent of the head or spouse, and one dependent child with that child's spouse and dependent children. Inez Moore lived in her East Cleveland home with her son, Dale Moore, Sr., and her two grandsons, Dale, Jr., and John Moore, Jr. The boys were first cousins rather than brothers. John came to live with his grandmother after his mother's death. Because the household included grandchildren who were not siblings, it did not fit within the ordinance's definition of "family." In early 1973, the city sent Mrs. Moore a notice of violation stating that John was an "illegal occupant." She refused to remove him from her home, and the city filed a criminal charge. Mrs. Moore did not seek a variance from the city's Board of Building Code Appeals. She was convicted and sentenced to five days in jail and a $25 fine.

The city filed a criminal charge against Mrs. Moore in municipal court for violating the housing ordinance. She moved to dismiss, claiming the ordinance was unconstitutional on its face, and the motion was overruled. She was convicted and sentenced to five days in jail and a $25 fine. The Ohio Court of Appeals affirmed the conviction after fully considering her constitutional claims, relying on Village of Belle Terre v. Boraas. The Ohio Supreme Court denied review. The United States Supreme Court noted probable jurisdiction of her appeal and reversed.

(Powell, J.)

Yes. The ordinance violates the Due Process Clause of the Fourteenth Amendment.

The city's reliance on Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), is misplaced. Belle Terre upheld an ordinance that restricted only unrelated individuals and expressly allowed all persons related by blood, adoption, or marriage to live together, and it applied deferential rational-basis review under Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). East Cleveland instead regulates by slicing deeply into the family itself, selecting which relatives may live together and criminalizing a grandmother's choice to live with her grandson. When a city intrudes on family living arrangements, usual judicial deference is inappropriate, and the Court must examine carefully the importance of the governmental interests advanced and the extent to which the regulation serves them.

The Constitution protects freedom of personal choice in matters of family life. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925). The city's asserted interests in preventing overcrowding, minimizing traffic and parking congestion, and avoiding burdens on the school system are legitimate, but the ordinance serves them only marginally. It permits a nuclear family with many drivers and cars but forbids a brother and sister from sharing a household, and it permits a dependent son's many children but bars the grandson here. East Cleveland also has a separate ordinance directly limiting density by floor area, which Mrs. Moore's household satisfies.

The city's argument that the protected family is confined to the nuclear family is rejected. Substantive due process is limited by respect for history and tradition, and the Nation's tradition of uncles, aunts, cousins, and especially grandparents sharing a household with parents and children is equally venerable and deserving of constitutional recognition. Just as Pierce held that a state may not standardize its children, the Constitution prevents East Cleveland from standardizing its children and its adults by forcing all to live in narrowly defined family patterns. The conviction is reversed.

Concurrence (Brennan, J.) The ordinance's arbitrary boundary reflects cultural myopia toward the American extended family tradition. The nuclear family is the pattern of white suburbia, and the Constitution cannot be read to impose that preference on everyone. The extended family remains a pervasive and often necessary living pattern, particularly among black and other minority families, for whom pooled resources require a shared household. Belle Terre actually supports the result, since it stressed that related individuals' choice to live together in nuclear or extended form could not be inhibited. The availability of a discretionary variance does not save the ordinance, because a municipality is constitutionally powerless to abridge related family members' choice to live together, and a variance procedure holds families hostage to administrative discretion.

Concurrence in the judgment (Stevens, J.) The critical question is whether the ordinance permissibly restricts an owner's right to use her property as she sees fit. Under Euclid and Nectow v. Cambridge, a zoning ordinance fails if it has no substantial relation to public health, safety, morals, or general welfare. State courts applying that standard have never sanctioned an ordinance excluding an owner's relatives from permanent occupancy of her residence. The city failed to explain why a homeowner may house two grandchildren who are brothers but not two who are cousins. The ordinance therefore effects a taking of property without due process and without just compensation.

Dissent (Burger, C.J.) The case should be disposed of without reaching the constitutional issue. Mrs. Moore deliberately bypassed the available variance procedure before the Board of Building Code Appeals, even though her hardship fit the procedure's purpose. The doctrine of exhaustion of administrative remedies, supported by federalism, comity, and the burden on overloaded federal courts, requires that the nearest and simplest remedy be pursued first. The presence of a constitutional claim does not excuse exhaustion where nonconstitutional relief is possible administratively. The plurality answered that exhaustion is wholly inappropriate against a criminal defendant raising facial invalidity, an issue the zoning board cannot resolve.

Dissent (Stewart, J.) Belle Terre largely controls. The right to share a residence with relatives is not a fundamental interest implicit in the concept of ordered liberty, and it is not comparable to decisions about bearing and raising children. The ordinance need only be rationally related to a legitimate objective, and its definition of family is rationally designed to preserve family residential areas. Any line will produce hard cases, and the variance procedure shows the city anticipated them. Drawing lines is a legislative, not judicial, function.

Dissent (White, J.) The Court has no license to invalidate legislation it deems merely arbitrary or unreasonable and should be extremely reluctant to add substantive content to the Due Process Clause. Mrs. Moore's interest in living with more than one set of grandchildren is a liberty interest, but it is not entitled to heightened protection. Rooting protection in deeply rooted national traditions is an expansive and unconfined standard. The plurality answered that an approach grounded in history imposes more meaningful limits on judges than the abstract Palko formula. The ordinance is not wholly lacking in purpose or utility, and she remains free to live with all her grandchildren elsewhere in the Cleveland area. The ordinance also passes rational-basis review under the Equal Protection Clause.