MOORE v. CITY OF EAST CLEVELAND 431 U.S. 494 (1977)

Although it produced no opinion of the court, Moore is a major modern Supreme Court precedent confirming the Constitution's protection of the family. A 5–4 Court held invalid a city ordinance limiting occupancy of certain residences to single families and defining "family" in a way that excluded a family composed of Inez Moore, her son, and two grandsons who were not brothers but cousins. Justice lewis f. powell, for a plurality of four Justices, concluded that "such an intrusive regulation of the family" required careful scrutiny of the regulation's justification. The city's asserted justifications—avoiding overcrowding, traffic and parking problems, and burdens on its schools—were served only marginally by the ordinance. The plurality thus concluded that the ordinance denied Mrs. Moore liberty without due process of law.

justice john paul stevens, concurring, characterized the ordinance as a taking of property without due process or compensation. Chief Justice warren e. burger, dissenting, would have required Moore to exhaust her state administrative remedies before suing in federal court. Three other Justices dissented on the merits, rejecting both due process and equal protection attacks on the ordinance and more generally opposing heightened judicial scrutiny of legislation merely on the basis of its effect on a family like the Moores.

the plurality opinion has become a standard citation for the reemergence of substantive due process, and more specifically for a constitutional right of an extended—but traditional—family to choose its own living arrangements. In a wider perspective the decision can be seen as part of the growth of a freedom of intimate association. The decision was not, however, a blow against covert racial discrimination. East Cleveland was a predominantly black city, with a black commission and city manager. The ordinance, like ordinances in many white communities, was designed to maintain middle-class nuclear family arrangements. In this perspective, the plurality opinion is seen to collide with Village of Belle Terre v. Boraas (1974), which had upheld an ordinance excluding "unrelated" groups from single-family residences. Justice Powell's distinction of Belle Terre amounted to this: families are different. But he offered no definition of "family" apart from a generalized bow to "a larger conception of the family," including an extended family of blood relatives, for which he found support in "the accumulated wisdom of civilization." Of such stuff is substantive due process made.

Kenneth L. Karst
(1986)

Bibliography

Burt, Robert A. 1979 The Constitution of the Family. Supreme Court Review 1979:329, 388–391.