# Moore v. City of East Cleveland/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Brennan Stevens
* Dissenting Opinions Burger Stewart White
Mr.Justice Stewart, with whom Mr. Justice Rehnquist joins, dissenting.
In Village of Belle Terre v. Boraas, 416 U.S. 1, the Court considered a New York village ordinance that restricted land use within the village to single-family dwellings. That ordinance defined "family" to include all persons related by blood, adoption, or marriage who lived and cooked together as a single-housekeeping unit; it forbade occupancy by any group of three or more persons who were not so related. We held that the ordinance was a valid effort by the village government to promote the general community welfare, and that it did not violate the Fourteenth Amendment or infringe any other rights or freedoms protected by the Constitution.
The present case brings before us a similar ordinance of East Cleveland, Ohio, one that also limits the occupancy of any dwelling unit to a single family, but that defines "family" to include only certain combinations of blood relatives. The question presented, as I view it, is whether the decision in Belle Terre is controlling, or whether the Constitution compels a different result because East Cleveland's definition of "family" is more restrictive than that before us in the Belle Terre case.
The city of East Cleveland is a residential suburb of Cleveland, Ohio. It has enacted a comprehensive Housing Code, one section of which prescribes that "[t]he occupancy of any dwelling unit shall be limited to one, and only one, family...." The Code defines the term "family" as follows:
"'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 house-keeping 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."
The appellant, Inez Moore, owns a 2 1/2-story frame house in East Cleveland. The building contains two "dwelling units." At the time this litigation began Mrs. Moore occupied one of these dwelling units with her two sons, John Moore, Sr., and Dale Moore, Sr., and their two sons, John, Jr., and Dale, Jr. These five persons constituted more than one family under the ordinance.
In January 1973, a city housing inspector cited Mrs. Moore for occupation of the premises by more than one family. She received a notice of violation directing her to correct the situation, which she did not do. Sixteen months passed, during which the city repeatedly complained about the violation. Mrs. Moore did not request relief from the Board of Building Code Appeals, although the Code gives the Board the explicit power to grant a variance "where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of any ordinance...." Finally, in May 1974, a municipal court found Mrs. Moore guilty of violating the single-family occupancy ordinance. The court overruled her motion to dismiss the charge, rejecting her claim that the ordinance's definition of "family" is invalid on its face under the United States Constitution. The Ohio Court of Appeals affirmed on the authority of Village of Belle Terre v. Boraas, and the Ohio Supreme Court dismissed Mrs. Moore's appeal.
In my view, the appellant's claim that the ordinance in question invades constitutionally protected rights of association and privacy is in large part answered by the Belle Terre decision. The argument was made there that a municipality could not zone its land exclusively for single-family occupancy because to do so would interfere with protected rights of privacy or association. We rejected this contention, and held that the ordinance at issue "involve[d] no 'fundamental' right guaranteed by the Constitution, such as...the right of association, NAACP v. Alabama, 357 U.S. 449;...or any rights of privacy, cf. Griswold v. Connecticut, 381 U.S. 479; Eisenstadt v. Baird, 405 U.S. 438, 453-454." 416 U.S., at 7-8.
The Belle Terre decision thus disposes of the appellant's contentions to the extent they focus not on her blood relationships with her sons and grandsons but on more general notions about the "privacy of the home." Her suggestion that every person has a constitutional right permanently to share his residence with whomever he pleases, and that such choices are "beyond the province of legitimate governmental intrusion," amounts to the same argument that was made and found unpersuasive in Belle Terre.
To be sure, the ordinance involved in Belle Terre did not prevent blood relatives from occupying the same dwelling, and the Court's decision in that case does not, therefore, foreclose the appellant's arguments based specifically on the ties of kinship present in this case. Nonetheless, I would hold, for the reasons that follow, that the existence of those ties does not elevate either the appellant's claim of associational freedom or her claim of privacy to a level invoking constitutional protection.
To suggest that the biological fact of common ancestry necessarily gives related persons constitutional rights of association superior to those of unrelated persons is to misunderstand the nature of the associational freedoms that the Constitution has been understood to protect. Freedom of association has been constitutionally recognized because it is often indispensable to effectuation of explicit First Amendment guarantees. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461; Bates v. Little Rock, 361 U.S. 516, 523; Shelton v. Tucker, 364 U.S. 479; NAACP v. Button, 371 U.S. 415, 430-431; Railroad Trainmen v. Virginia Bar, 377 U.S. 1; Kusper v. Pontikes, 414 U.S. 51, 56-61; cf. Edwards v. South Carolina, 372 U.S. 229. But the scope of the associational right, until now, at least, has been limited to the constitutional need that created it; obviously not every "association" is for First Amendment purposes or serves to promote the ideological freedom that the First Amendment was designed to protect.
The "association" in this case is not for any purpose relating to the promotion of speech, assembly, the press, or religion. And wherever the outer boundaries of constitutional protection of freedom of association may eventually turn out to be, they surely do not extend to those who assert no interest other than the gratification, convenience, and economy of sharing the same residence.
The appellant is considerably closer to the constitutional mark in asserting that the East Cleveland ordinance intrudes upon "the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166. Several decisions of the Court have identified specific aspects of what might broadly be termed "private family life" that are constitutionally protected against state interference. See, e. g., Roe v. Wade, 410 U.S. 113, 152-154 (woman's right to decide whether to terminate pregnancy); Loving v. Virginia, 388 U.S. 1, 12 (freedom to marry person of another race); Griswold v. Connecticut, 381 U.S. 479; Eisenstadt v. Baird, 405 U.S. 438 (right to use contraceptives); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (parents' right to send children to private schools); Meyer v. Nebraska, 262 U.S. 390 (parents' right to have children instructed in foreign language).
Although the appellant's desire to share a single-dwelling unit also involves "private family life" in a sense, that desire can hardly be equated with any of the interests protected in the cases just cited. The ordinance about which the appellant complains did not impede her choice to have or not to have children, and it did not dictate to her how her own children were to be nurtured and reared. The ordinance clearly does not prevent parents from living together or living with their unemancipated offspring.
But even though the Court's previous cases are not directly in point, the appellant contends that the importance of the "extended family" in American society requires us to hold that her decision to share her residence with her grandsons may not be interfered with by the State. This decision, like the decisions involved in bearing and raising children, is said to be an aspect of "family life" also entitled to substantive protection under the Constitution. Without pausing to inquire how far under this argument an "extended family" might extend, I cannot agree. When the Court has found that the Fourteenth Amendment placed a substantive limitation on a State's power to regulate, it has been in those rare cases in which the personal interests at issue have been deemed "'implicit in the concept of ordered liberty.'" See Roe v. Wade, supra, at 152, quoting Palko v. Connecticut, 302 U.S. 319, 325. The interest that the appellant may have in permanently sharing a single kitchen and a suite of contiguous rooms with some of her relatives simply does not rise to that level. To equate this interest with the fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Due Process Clause beyond recognition.
The appellant also challenges the single-family occupancy ordinance on equal protection grounds. Her claim is that the city has drawn an arbitrary and irrational distinction between groups of people who may live together as a "family" and those who may not. While acknowledging the city's right to preclude more than one family from occupying a single-dwelling unit, the appellant argues that the purposes of the single-family occupancy law would be equally served by an ordinance that did not prevent her from sharing her residence with her two sons and their sons.
This argument misconceives the nature of the constitutional inquiry. In a case such as this one, where the challenged ordinance intrudes upon no substantively protected constitutional right, it is not the Court's business to decide whether its application in a particular case seems inequitable, or even absurd. The question is not whether some other ordinance, drafted more broadly, might have served the city's ends as well or almost as well. The task, rather, is to determine if East Cleveland's ordinance violates the Equal Protection Clause of the United States Constitution. And in performing that task, it must be borne in mind that "[w]e deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be '"reasonable, not arbitrary"' (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415) and bears 'a rational relationship to a [permissible] state objective.' Reed v. Reed, 404 U.S. 71, 76." Village of Belle Terre v. Boraas, 416 U.S. at 8. "[E]very line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function." Ibid. (footnote omitted).
Viewed in the light of these principles, I do not think East Cleveland's definition of "family" offends the Constitution. The city has undisputed power to ordain single-family residential occupancy. Village of Belle Terre v. Boraas, supra; Euclid v. Ambler Realty Co., 272 U.S. 365. And that power plainly carries with it the power to say what a "family" is. Here the city has defined "family" to include not only father, mother, and dependent children, but several other close relatives as well. The definition is rationally designed to carry out the legitimate governmental purposes identified in the Belle Terre opinion: "The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." 416 U.S., at 9.
Obviously, East Cleveland might have as easily and perhaps as effectively hit upon a different definition of "family." But a line could hardly be drawn that would not sooner or later become the target of a challenge like the appellant's. If "family" included all of the householder's grandchildren there would doubtless be the hard case of an orphaned niece or nephew. If, as the appellant suggests, a "family" must include all blood relatives, what of longtime friends? The point is that any definition would produce hardships in some cases without materially advancing the legislative purpose. That this ordinance also does so is no reason to hold it unconstitutional, unless we are to use our power to interpret the United States Constitution as a sort of generalized authority to correct seeming inequity wherever it surfaces. It is not for us to rewrite the ordinance, or substitute our judgment for the discretion of the prosecutor who elected to initiate this litigation.
In this connection the variance provisions of East Cleveland's Building Code assume special significance, for they show that the city recognized the difficult problems its ordinances were bound to create in particular cases, and provided a means to solve at least some of them. Section 1311.01 of the Code establishes a Board of Building Code Appeals. Section 1311.02 then provides, in pertinent part:
"The Board of Building Code Appeals shall determine all matters properly presented to it and where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of any ordinance for which it is designated as the Board of Appeals, such Board shall have the power to grant variances in harmony with the general intent of such ordinance and to secure the general welfare and substantial justice in the promotion of the public health, comfort, convenience, morals, safety and general welfare of the City."
The appellant did not request a variance under this section, although she could have done so. While it is impossible to know whether such a request would have been granted, her situation appears to present precisely the kind of "practical difficulties" and "unnecessary hardships" that the variance provisions were designed to accommodate.
his is not to say that the appellant was obligated to exhaust her administrative remedy before defending this prosecution on the ground that the single-family occupancy ordinance violates the Equal Protection Clause. In assessing her claim that the ordinance is "arbitrary" and "irrational," however, I think the existence of the variance provisions is particularly persuasive evidence to the contrary. The variance procedure, a traditional part of American land-use law, bends the straight lines of East Cleveland's ordinances, shaping their contours to respond more flexibly to the hard cases that are the inevitable byproduct of legislative linedrawing.
For these reasons, I think the Ohio courts did not err in rejecting the appellant's constitutional claims. Accordingly, I respectfully dissent.

#### Notes

* ↑ . East Cleveland Housing Code § 1351.02 (1964).
* ↑ . East Cleveland Housing Code § 1341.08 (1966).
* ↑ . The Housing Code defines a "dwelling unit" as "a group of rooms arranged, maintained or designed to be occupied by a single family and consisting of a complete bathroom with toilet, lavatory and tub or shower facilities; one, and one only, complete kitchen or kitchenette with approved cooking, refrigeration and sink facilities; approved living and sleeping facilities. All of such facilities shall be in contiguous rooms and used exclusively by such family and by any authorized persons occupying such dwelling unit with the family." § 1341.07.
* ↑ . There is some suggestion in the record that the other dwelling unit in the appellant's house was also occupied by relatives of Mrs. Moore. A notice of violation dated January 16, 1973, refers to "Ms. Carol Moore and her son, Derik," as illegal occupants in the other unit, and at some point the illegal occupancy in one of the units allegedly was corrected by transferring one occupant over to the other unit.
* ↑ . Mrs. Moore, as the owner of the house, was responsible for compliance with the Housing Code. East Cleveland Housing Code § 1343.04 (1966). The illegal occupant, however, was identified by the city as John Moore, Jr., Mrs. Moore's grandson. The record suggests no reason why he was named, rather than Dale Moore, Jr. The occupancy might have been legal but for one of the two grandsons. One of Mrs. Moore's sons, together with his son, could have lived with Mrs. Moore under § 1341.08 (d) of the Code if they were dependent on her. The other son, provided he was "unmarried," could have been included under § 1341.08 (b).
* ↑ . East Cleveland Building Code § 1311.02 (1965).
* ↑ . The opinion of Mr. Justice Powell and Mr. Justice Brennan's concurring opinion both emphasize the traditional importance of the extended family in American life. But I fail to understand why it follows that the residents of East Cleveland are constitutionally prevented from following what Mr. Justice Brennan calls the "pattern" of "white suburbia," even though that choice may reflect "cultural myopia." In point of fact, East Cleveland is a predominantly Negro community, with a Negro City Manager and City Commission.
* ↑ . The observation of Mr. Justice Holmes quoted in the Belle Terre opinion, 416 U.S., at 8 n. 5, bears repeating here.
* ↑ . The appellant makes much of East Cleveland Housing Code § 1351.03 (1966), which prescribes a minimum habitable floor area per person; she argues that because the municipality has chosen to establish a specific density control the single-family ordinance can have no role to play. It is obvious, however, that § 1351.03 is directed not at preserving the character of a residential area but at establishing minimum health and safety standards.
* ↑ . Mr. Justice Stevens, in his opinion concurring in the judgment, frames the issue in terms of the "appellant's right to use her own property as she sees fit." Ante, at 513. Focusing on the householder's property rights does not substantially change the constitutional analysis. If the ordinance is invalid under the Equal Protection Clause as to those classes of people whose occupancy it forbids, I should suppose it is also invalid as an arbitrary intrusion upon the property owner's rights to have them live with her. On the other hand, if the ordinance is a rational attempt to promote "the city's interest in preserving the character of its neighborhoods," Young v. American Mini Theaters, 427 U.S. 50, 71 (opinion of Stevens, J.), it is consistent with the Equal Protection Clause and a permissible restriction on the use of private property under Euclid v. Ambler Realty Co., 272 U.S. 365, and Nectow v. Cambridge, 277 U.S. 183.
The state cases that Mr. Justice Stevens discusses do not answer this federal constitutional issue. For the most part, they deal with state-law issues concerning the proper statutory construction of the term "family," and they indicate only that state courts have been reluctant to extend ambiguous single-family zoning ordinances to nontransient, single-housekeeping units. By no means do they establish that narrow definitions of the term "family" are unconstitutional.
Finally, Mr. Justice Stevens calls the city to task for failing "to explain the need" for enacting this particular ordinance. Ante, at 520. This places the burden on the wrong party.