# Moore v. City of East Cleveland/Dissent White

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* Opinion of the Court
* Concurring Opinions Brennan Stevens
* Dissenting Opinions Burger Stewart White
Mr.Justice White, dissenting.
The Fourteenth Amendment forbids any State to "deprive any person of life, liberty, or property, without due process of law," or to "deny to any person within its jurisdiction the equal protection of the laws." Both provisions are invoked in this case in an attempt to invalidate a city zoning ordinance.

#### I

The emphasis of the Due Process Clause is on "process." As Mr. Justice Harlan once observed, it has been "ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power," that the Due Process Clause should be limited "to a guarantee of procedural fairness." Poe v. Ullman, 367 U.S. 497, 540 (1961) (dissenting opinion). These arguments had seemed "persuasive" to Justice Brandeis and Holmes, Whitney v. California, 274 U.S. 357, 373 (1927), but they recognized that the Due Process Clause, by virtue of case-to-case "judicial inclusion and exclusion," Davidson v. New Orleans, 96 U.S. 97, 104 (1878), had been construed to proscribe matters of substance, as well as inadequate procedures, and to protect from invasion by the States "all fundamental rights comprised within the term liberty." Whitney v. California, supra, at 373.
Mr. Justice Black also recognized that the Fourteenth Amendment had substantive as well as procedural content. But believing that its reach should not extend beyond the specific provisions of the Bill of Rights, see Adamson v. California, 332 U.S. 46, 68 (1947) (dissenting opinion), he never embraced the idea that the Due Process Clause empowered the courts to strike down merely unreasonable or arbitrary legislation, nor did he accept Mr. Justice Harlan's consistent view. See Griswold v. Connecticut, 381 U.S. 479, 507 (1965) (Black, J., dissenting), and id., at 499 (Harlan, J., concurring in judgment). Writing at length in dissent in Poe v. Ullman, supra, at 543, Mr. Justice Harlan stated the essence of his position as follows:
"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, see Allgeyer v. Louisiana, 165 U.S. 578; Holden v. Hardy, 169 U.S. 366; Booth v. Illinois, 184 U.S. 425; Nebbia v. New York, 291 U.S. 502; Skinner v. Oklahoma, 316 U.S. 535, 544 (concurring opinion); Schware v. Board of Bar Examiners, 353 U.S. 232, 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. Cf. Skinner v. Oklahoma, supra; Bolling v. Sharpe, [ 347 U.S. 497 (1954)]."
This construction was far too open ended for Mr. Justice Black. For him, Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), as substantive due process cases, were as suspect as Lochner v. New York, 198 U.S. 45 (1905), Coppage v. Kansas, 236 U.S. 1 (1915), and Adkins v. Children's Hospital, 261 U.S. 525 (1923). In his view, Ferguson v. Skrupa, 372 U.S. 726 (1963), should have finally disposed of them all. But neither Meyer nor Pierce has been overruled, and recently there have been decisions of the same genre--Roe v. Wade, 410 U.S. 113 (1973); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, supra; and Eisenstadt v. Baird, 405 U.S. 438 (1972). Not all of these decisions purport to rest on substantive due process grounds, compare Roe v. Wade, supra, at 152-153, with Eisenstadt v. Baird, supra, at 453-454, but all represented substantial reinterpretations of the Constitution.
Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. This is not to suggest, at this point, that any of these cases should be overruled, or that the process by which they were decided was illegitimate or even unacceptable, but only to underline Mr. Justice Black's constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable. And no one was more sensitive than Mr. Justice Harlan to any suggestion that his approach to the Due Process Clause would lead to judges "roaming at large in the constitutional field." Griswold v. Connecticut, supra, at 502. No one proceeded with more caution than he did when the validity of state or federal legislation was challenged in the name of the Due Process Clause.
This is surely the preferred approach. That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will. The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930's and 1940's, the Court should be extremely reluctant to breathe still further substantive content into the Due Process clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority.

#### II

Accepting the cases as they are and the Due Process Clause as construed by them, however, I think it evident that the threshold question in any due process attack on legislation, whether the challenge is procedural or substantive, is whether there is a deprivation of life, liberty, or property. With respect to "liberty," the statement of Mr. Justice Harlan in Poe v. Ullman, quoted supra, at 504, most accurately reflects the thrust of prior decisions--that the Due Process Clause is triggered by a variety of interests, some much more important than others. These interests have included a wide range of freedoms in the purely commercial area such as the freedom to contract and the right to set one's own prices and wages. Meyer v. Nebraska, supra, at 399, took a characteristically broad view of "liberty":
"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
As I have said, Meyer has not been overruled nor its definition of liberty rejected. The results reached in some of the cases cited by Meyer have been discarded or undermined by later cases, but those cases did not cut back the definition of liberty espoused by earlier decisions. They disagreed only, but sharply, as to the protection that was "due" the particular liberty interests involved. See, for example, West Coast Hotel Co. v. Parish, 300 U.S. 379 (1937), overruling Adkins v. Children's Hospital, 261 U.S. 525 (1923).
Just a few years ago, we recognized that while "the range of interests protected by procedural due process is not infinite," and while we must look to the nature of the interest rather than its weight in determining whether a protected interest is at issue, the term "liberty" has been given broad meaning in our cases. Board of Regents v. Roth, 408 U.S. 564, 570-571 (1972). "In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed. See, e. g., Bolling v. Sharpe, 347 U.S. 497, 499-500; Stanley v. Illinois, 405 U.S. 645. Id., at 572.
It would not be consistent with prior cases to restrict the liberties protected by the Due Process Clause to those fundamental interests "implicit in the concept of ordered liberty." Ante, at 537. Palko v. Connecticut, 302 U.S. 319 (1937), from which this much-quoted phrase is taken, id., at 325, is not to the contrary. Palko was a criminal case, and the issue was thus not whether a protected liberty interest was at stake but what protective process was "due" that interest. The Court used the quoted standard to determine which of the protections of the Bill of Rights was due a criminal defendant in a state court within the meaning of the Fourteenth Amendment. Nor do I think the broader view of "liberty" is inconsistent with or foreclosed by the dicta in Roe v. Wade, 410 U.S., at 152, and Paul v. Davis, 424 U.S. 693, 713 (1976). These cases at most assert that only fundamental liberties will be given substantive protection; and they may be understood as merely identifying certain fundamental interests that the Court has deemed deserving of a heightened degree of protection under the Due Process Clause.
It seems to me that Mr. Justice Douglas was closest to the mark in Poe v. Ullman, 367 U.S., at 517, when he said that the trouble with the holdings of the "old Court" was not in its definition of liberty but in its definition of the protections guaranteed to that liberty—"not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did.
The term "liberty" is not, therefore, to be given a crabbed construction. I have no more difficulty than Mr. Justice Powell apparently does in concluding that appellant in this case properly asserts a liberty interest within the meaning of the Due Process Clause. The question is not one of liberty vel non. Rather, there being no procedural issue at stake, the issue is whether the precise interest involved--the interest in having more than one set of grandchildren live in her home--is entitled to such substantive protection under the Due Process Clause that this ordinance must be held invalid.

#### III

Looking at the doctrine of "substantive" due process as having to do with the possible invalidity of an official rule of conduct rather than of the procedures for enforcing that rule, I see the doctrine as taking several forms under the cases, each differing in the severity of review and the degree of protection offered to the individual. First, a court may merely assure itself that there is in fact a duly enacted law which proscribes the conduct sought to be prevented or sanctioned. In criminal cases, this approach is exemplified by the refusal of courts to enforce vague statutes that no reasonable person could understand as forbidding the challenged conduct. There is no such problem here.
Second is the general principle that "liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect." Meyer v. Nebraska, 262 U.S., at 399-400. This means-end test appears to require that any statute restrictive of liberty have an ascertainable purpose and represent a rational means to achieve that purpose, whatever the nature of the liberty interest involved. This approach was part of the substantive due process doctrine prevalent earlier in the century, and it made serious inroads on the presumption of constitutionality supposedly accorded to state and federal legislation. But with Nebbia v. New York, 291 U.S. 502 (1934), and other cases of the 1930's and 1940's such as West Coast Hotel Co. v. Parish, supra, the courts came to demand far less from and to accord far more deference to legislative judgments. This was particularly true with respect to legislation seeking to control or regulate the economic life of the State or Nation. Even so, "while the legislative judgment on economic and business matters is 'well-nigh conclusive'..., it is not beyond judicial inquiry." Poe v. Ullman, supra, at 518 (Douglas, J., dissenting). No case that I know of, including Ferguson v. Skrupa, 372 U.S. 726 (1963), has announced that there is some legislation with respect to which there no longer exists a means ends test as a matter of substantive due process law. This is not surprising, for otherwise a protected liberty could be infringed by a law having no purpose or utility whatsoever. Of course, the current approach is to deal more gingerly with a state statute and to insist that the challenger bear the burden of demonstrating its unconstitutionality; and there is a broad category of cases in which substantive review is indeed mild and very similar to the original thought of Munn v. Illinois, 94 U.S. 113, 132 (1877), that "if a state of facts could exist that would justify such legislation," it passes its initial test.
There are various "liberties," however, which require that infringing legislation be given closer judicial scrutiny, not only with respect to existence of a purpose and the means employed, but also with respect to the importance of the purpose itself relative to the invaded interest. Some interests would appear almost impregnable to invasion, such as the freedoms of speech, press, and religion, and the freedom from cruel and unusual punishments. Other interests, for example, the right of association, the right to vote, and various claims sometimes referred to under the general rubric of the right to privacy, also weigh very heavily against state claims of authority to regulate. It is this category of interests which, as I understand it, Mr. Justice Stewart refers to as "'implicit in the concept of ordered liberty.'" Ante, at 537. Because he would confine the reach of substantive due process protection to interests such as these and because he would not classify in this category the asserted right to share a house with the relatives involved here, he rejects the due process claim.
Given his premise, he is surely correct. Under our cases, the Due Process Clause extends substantial protection to various phases of family life, but none requires that the claim made here be sustained. I cannot believe that the interest in residing with more than one set of grandchildren is one that calls for any kind of heightened protection under the Due Process Clause. To say that one has a personal right to live with all, rather than some, of one's grandchildren and that this right is implicit in ordered liberty is, as my Brother Stewart says, "to extend the limited substantive contours of the Due Process Clause beyond recognition." Ibid. The present claim is hardly one of which it could be said that "neither liberty nor justice would exist if [it] were sacrificed." Palko v. Connecticut, 302 U.S., at 326.
Mr. Justice Powell would apparently construe the Due Process Clause to protect from all but quite important state regulatory interests any right or privilege that in his estimate is deeply rooted in the country's traditions. For me, this suggests a far too expansive charter for this Court and a far less meaningful and less confining guiding principle than Mr. Justice Stewart would use for serious substantive due process review. What the deeply rooted traditions of the country are is arguable; which of them deserve the protection of the Due Process Clause is even more debatable. The suggested view would broaden enormously the horizons of the Clause; and, if the interest involved here is any measure of what the States would be forbidden to regulate, the courts would be substantively weighing and very likely invalidating a wide range of measures that Congress and state legislatures think appropriate to respond to a changing economic and social order.
Mrs. Moore's interest in having the offspring of more than one dependent son live with her qualifies as a liberty protected by the Due Process Clause; but, because of the nature of that particular interest, the demands of the Clause are satisfied once the Court is assured that the challenged proscription is the product of a duly enacted or promulgated statute, ordinance, or regulation and that it is not wholly lacking in purpose or utility. That under this ordinance any number of unmarried children may reside with their mother and that this number might be as destructive of neighborhood values as one or more additional grandchildren is just another argument that children and grandchildren may not constitutionally be distinguished by a local zoning ordinance.
That argument remains unpersuasive to me. Here the head of the household may house himself or herself and spouse, their parents, and any number of their unmarried children. A fourth generation may be represented by only one set of grandchildren and then only if born to a dependent child. The ordinance challenged by appellant prevents her from living with both sets of grandchildren only in East Cleveland, an area with a radius of three miles and a population of 40,000. Brief for Appellee 16 n.1. The ordinance thus denies appellant the opportunity to live with all her grandchildren in this particular suburb; she is free to do so in other parts of the Cleveland metropolitan area. If there is power to maintain the character of a single-family neighborhood, as there surely is, some limit must be placed on the reach of the "family." Had it been our task to legislate, we might have approached the problem in a different manner than did the drafters of this ordinance; but I have no trouble in concluding that the normal goals of zoning regulation are present here and that the ordinance serves these goals by limiting, in identifiable circumstances, the number of people who can occupy a single household. The ordinance does not violate the Due Process Clause.

#### IV

For very similar reasons, the equal protection claim must fail, since it is not to be judged by the strict scrutiny standard employed when a fundamental interest or suspect classification is involved, see, e. g., Dunn v. Blumstein, 405 U.S. 330 (1972), and Korematsu v. United States, 323 U.S. 214 (1944), or by the somewhat less strict standard of Craig v. Boren, 429 U.S. 190 (1976), Califano v. Webster, 430 U.S. 313 Reed v. Reed, 404 U.S. 71 (1971), and Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). Rather, it is the generally applicable standard of McGowan v. Maryland, 366 U.S. 420, 425 (1961):
"The constitutional safeguard [of the Equal Protection Clause] is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."
See also Dandridge v. Williams, 397 U.S. 471 (1970); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976). Under this standard, it is not fatal if the purpose of the law is not articulated on its face, and there need be only a rational relation to the ascertained purpose.
On this basis, as already indicated, I have no trouble in discerning a rational justification for an ordinance that permits the head of a household to house one, but not two, dependent sons and their children.
Respectfully, therefore, I dissent and would affirm the judgment.