MR. JUSTICE POWELL announced the judgment of the Court, and delivered an opinion in which MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN joined.
East Cleveland's housing ordinance, like many throughout the country, limits occupancy of a dwelling unit to members
I
Appellant, Mrs. Inez Moore, lives in her East Cleveland home together with her son, Dale Moore, Sr., and her two grandsons, Dale, Jr., and John Moore, Jr. The two boys are first cousins rather than brothers; we are told that John
In early 1973, Mrs. Moore received a notice of violation from the city, stating that John was an "illegal occupant" and directing her to comply with the ordinance. When she failed to remove him from her home, the city filed a criminal charge. Mrs. Moore moved to dismiss, claiming that the ordinance was constitutionally invalid on its face. Her motion was overruled, and upon conviction she was sentenced to five days in jail and a $25 fine. The Ohio Court of Appeals affirmed after giving full consideration to her constitutional claims,
II
The city argues that our decision in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), requires us to sustain the ordinance attacked here. Belle Terre, like East Cleveland, imposed limits on the types of groups that could occupy a single dwelling unit. Applying the constitutional standard announced in this Court's leading land-use case, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926),
But one overriding factor sets this case apart from Belle Terre. The ordinance there affected only unrelated individuals. It expressly allowed all who were related by "blood, adoption, or marriage" to live together, and in sustaining the ordinance we were careful to note that it promoted "family needs" and "family values." 416 U. S., at 9. East Cleveland, in contrast, has chosen to regulate the occupancy of its housing by slicing deeply into the family itself. This is no mere incidental result of the ordinance. On its face it selects certain
When a city undertakes such intrusive regulation of the family, neither Belle Terre nor Euclid governs; the usual judicial deference to the legislature is inappropriate. "This Court has long recognized 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). A host of cases, tracing their lineage to Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923), and Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), have consistently acknowledged 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. 113, 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. 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 (1961) (Harlan, J., dissenting); cf. Loving v. Virginia, 388 U.S. 1, 12 (1967); May v. Anderson, 345 U.S. 528, 533 (1953); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra, at 166. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. See Poe v. Ullman, supra, at 554 (Harlan, J., dissenting).
When thus examined, this ordinance cannot survive. The city seeks to justify it as a means of preventing overcrowding,
III
The city would distinguish the cases based on Meyer and Pierce. It points out that none of them "gives grandmothers any fundamental rights with respect to grandsons," Brief for Appellee 18, and suggests that any constitutional right to live together as a family extends only to the nuclear family— essentially a couple and their dependent children.
To be sure, these cases did not expressly consider the family relationship presented here. They were immediately concerned with freedom of choice with respect to childbearing, e. g., LaFleur, Roe v. Wade, Griswold, supra, or with the rights
Understanding those reasons requires careful attention to this Court's function under the Due Process Clause. Mr. Justice Harlan described it eloquently:
Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court.
Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.
Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree
Reversed.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring.
I join the plurality's opinion. I agree that the Constitution is not powerless to prevent East Cleveland from prosecuting as a criminal and jailing
In today's America, the "nuclear family" is the pattern so often found in much of white suburbia. J. Vander Zanden, Sociology: A Systematic Approach 322 (3d ed. 1975). The Constitution cannot be interpreted, however, to tolerate the imposition by government upon the rest of us of white suburbia's preference in patterns of family living. The "extended family" that provided generations of early Americans with social services and economic and emotional support in times of hardship, and was the beachhead for successive waves of immigrants who populated our cities,
I do not wish to be understood as implying that East Cleveland's enforcement of its ordinance is motivated by a racially discriminatory purpose: The record of this case would not support that implication. But the prominence of other than nuclear families among ethnic and racial minority groups, including our black citizens, surely demonstrates that the "extended family" pattern remains a vital tenet of our society.
Moreover, to sanction the drawing of the family line at the arbitrary boundary chosen by East Cleveland would surely conflict with prior decisions that protected "extended" family
Any suggestion that the variance procedure of East Cleveland's Housing Code assumes special significance is without merit. This is not only because this grandmother
There is no basis for an inference—other than the city's self-serving statement that a hardship variance "possibly with some stipulation(s) would probably have been granted"—that this grandmother would have obtained a variance had she requested one. Indeed, a contrary inference is more supportable. In deciding to prosecute her in the first place, the city tipped its hand how discretion would have been exercised. In any event, § 1311.02 (1965), limits the discretion of the Board of Building Code Appeals to grant variances to those which are "in harmony with the general intent of such ordinance . . . ." If one of the legitimate objectives of the definition of "family" was to preserve the single (nuclear) family character of East Cleveland, then granting this grandmother a variance would be in excess of the Board's powers under the ordinance.
Furthermore, the very existence of the "escape hatch" of the variance procedure only heightens the irrationality of the restrictive definition, since application of the ordinance then depends upon which family units the zoning authorities permit to reside together and whom the prosecuting authorities choose to prosecute. The Court's disposition of the analogous situation in Roe v. Wade, 410 U.S. 113 (1973),
MR. JUSTICE STEVENS, concurring in the judgment.
In my judgment the critical question presented by this case is whether East Cleveland's housing ordinance is a permissible restriction on appellant's right to use her own property as she sees fit.
Long before the original States adopted the Constitution, the common law protected an owner's right to decide how best to use his own property. This basic right has always been limited by the law of nuisance which proscribes uses that impair the enjoyment of other property in the vicinity. But the question whether an individual owner's use could be further limited by a municipality's comprehensive zoning plan was not finally decided until this century.
The holding in Euclid v. Ambler Realty Co., 272 U.S. 365, that a city could use its police power, not just to abate a specific use of property which proved offensive, but also to create and implement a comprehensive plan for the use
In his opinion for the Court, Mr. Justice Sutherland fused the two express constitutional restrictions on any state interference with private property—that property shall not be taken without due process nor for a public purpose without just compensation—into a single standard: "[B]efore [a zoning] ordinance can be declared unconstitutional, [it must be shown to be] clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Id., at 395 (emphasis added). This principle was applied in Nectow v. Cambridge, 277 U.S. 183; on the basis of a specific finding made by the state trial court that "the health, safety, convenience and general welfare of the inhabitants of the part of the city affected" would not be promoted by prohibiting the landowner's contemplated use, this Court held that the zoning ordinance as applied was unconstitutional. Id., at 188.
With one minor exception,
Litigation involving single-family zoning ordinances is common. Although there appear to be almost endless differences in the language used in these ordinances,
Although the legitimacy of the first two types of restrictions is well settled,
For these reasons, I concur in the Court's judgment.
MR. CHIEF JUSTICE BURGER, dissenting.
It is unnecessary for me to reach the difficult constitutional issue this case presents. Appellant's deliberate refusal to use a plainly adequate administrative remedy provided by the city should foreclose her from pressing in this Court any constitutional objections to the city's zoning ordinance. Considerations of federalism and comity, as well as the finite capacity of federal courts, support this position. In courts, as in hospitals, two bodies cannot occupy the same space at the same time; when any case comes here which could have been disposed of long ago at the local level, it takes the place that might well have been given to some other case in which there was no alternative remedy.
(1)
The single-family zoning ordinances of the city of East Cleveland define the term "family" to include only the head of the household and his or her most intimate relatives, principally the spouse and unmarried and dependent children. Excluded from the definition of "family," and hence from cohabitation, are various persons related by blood or adoption to the head of the household. The obvious purpose of the city is the traditional one of preserving certain areas as family residential communities.
The city has established a Board of Building Code Appeals to consider variances from this facially stringent single-family limit when necessary to alleviate "practical difficulties and unnecessary hardships" and "to secure the general welfare and [do] substantial justice . . . ." East Cleveland Codified Ordinances § 1311.02 (1965). The Board has power to grant variances to "[a]ny person adversely affected by a decision of
After appellant's receipt of the notice of violation, her lawyers made no effort to apply to the Board for a variance to exempt her from the restrictions of the ordinance, even though her situation appears on its face to present precisely the kind of "practical difficulties and unnecessary hardships" the variance procedure was intended to accommodate. Appellant's counsel does not claim appellant was unaware of the right to go to the Board and seek a variance, or that any attempt was made to secure relief by an application to the Board.
(2)
In view of appellant's deliberate bypass of the variance procedure, the question arises whether she should now be permitted to complain of the unconstitutionality of the single-family ordinance as it applies to her. This Court has not yet required one in appellant's position to utilize available state administrative remedies as a prerequisite to obtaining federal relief; but experience has demonstrated that such a requirement is imperative if the critical overburdening of federal courts at all levels is to be alleviated. That burden has now become "a crisis of overload, a crisis so serious that it threatens the capacity of the federal system to function as it should."
The devastating impact overcrowded dockets have on the quality of justice received by all litigants makes it essential that courts be reserved for the resolution of disputes for which no other adequate forum is available.
A
The basis of the doctrine of exhaustion of administrative remedies was simply put in Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938), as
Exhaustion is simply one aspect of allocation of overtaxed judicial resources. Appellant wishes to use a residential property in a manner at variance with a municipal housing code. That claim could have been swiftly and inexpensively adjudicated in a municipal administrative tribunal, without engaging cumbersome federal judicial machinery at the highest level. Of course, had appellant utilized the local administrative remedies and state judicial remedies to no avail, resort to this Court would have been available.
The exhaustion principle asks simply that absent compelling circumstances—and none are claimed here—the avenues of relief nearest and simplest should be pursued first. This Court should now make unmistakably clear that when state or local governments provide administrative remedial procedures, no federal forum will be open unless the claimant can show either that the remedy is inadequate or that resort to those remedies is futile.
Utilization of available administrative processes is mandated for a complex of reasons. Statutes sometimes provide administrative procedures as the exclusive remedy. Even apart from a statutory command, it is common sense to permit the simple, speedy, and inexpensive processes of the administrative machinery to sift the facts and compile a complete record for the benefit of any reviewing courts. Exhaustion avoids interruption of the administrative process and allows application of an agency's specialized experience and the broad discretion granted to local entities, such as zoning boards.
Most important, if administrative remedies are pursued, the citizen may win complete relief without needlessly invoking judicial process. This permits the parties to resolve their disputes by relatively informal means far less costly and time consuming than litigation. By requiring exhaustion of administrative processes the courts are assured of reviewing only final agency decisions arrived at after considered judgment. It also permits agencies an opportunity to correct their own mistakes or give discretionary relief short of judicial review. Consistent failure by courts to mandate utilization of administrative remedies—under the growing insistence of lawyers demanding broad judicial remedies—inevitably undermines administrative effectiveness and defeats fundamental public policy by encouraging "end runs" around the administrative process.
It is apparent without discussion that resort to the local appeals board in this case would have furthered these policies, particularly since the exercise of informed discretion and experience by the proper agency is the essence of any housing code variance procedure. We ought not to encourage litigants to bypass simple, inexpensive, and expeditious remedies available at their doorstep in order to invoke expensive judicial machinery on matters capable of being resolved at local levels.
B
The suggestion is made that exhaustion of administrative remedies is not required on issues of constitutional law. In one sense this argument is correct, since administrative agencies have no power to decide questions of federal constitutional law. But no one has a right to a federal constitutional adjudication
This Court has frequently remanded cases for exhaustion "before a challenge can be made in a reviewing court of the constitutionality of the basic statute, on which the agency may not pass . . . ." K. Davis, Administrative Law Text 394 (3d ed. 1972). Indeed, exhaustion is often required precisely because there are constitutional issues present in a case, in order to avoid unnecessary adjudication of these delicate questions by giving the affected administrative agency an opportunity to resolve the matter on nonconstitutional grounds. See Christian v. New York Dept. of Labor, 414 U.S. 614 (1974); Public Utilities Comm'n of California v. United States, 355 U.S. 534, 539-540 (1958); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 553 (1954); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 766-767 (1947); Natural Gas Co. v. Slattery, 302 U.S. 300, 309-311 (1937); Fuchs, Prerequisites to Judicial Review of Administrative Agency Action, 51 Ind. L. J. 817, 883 (1976).
Of course, if administrative authority fails to afford relief, further exhaustion is pointless and judicial relief may be available. See Weinberger v. Salfi, 422 U.S. 749 (1975).
C
It is also said that exhaustion is not required when to do so would inflict irreparable injury on the litigant. In the present case, as in others in which a constitutional claim is asserted, injury is likely to include the "loss or destruction of substantive rights." In such a case, "the presence of constitutional questions, coupled with a sufficient showing of inadequacy of prescribed administrative relief and of threatened or impending irreparable injury flowing from delay . . . , has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention." Aircraft & Diesel Equipment Corp., supra, at 773.
But there is every reason to require resort to administrative remedies "where the individual charged is to be deprived of nothing until the completion of [the administrative] proceeding." Gibson v. Berryhill, 411 U.S. 564, 574-575 (1973); see Natural Gas Co., supra, at 309-311; Schlesinger v. Councilman, 420 U.S. 738 (1975); Aircraft & Diesel Equipment Corp., supra, at 773-774. The focus must be on the adequacy of the administrative remedy. If the desired relief may be obtained without undue burdens, and if substantial rights are protected as the process moves forward, no harm is done by requiring the litigant to pursue and exhaust those remedies before calling on the Constitution of
In this case appellant need have surrendered no asserted constitutional rights in order to pursue the local administrative remedy. No reason appears why appellant could not have sought a variance as soon as notice of a claimed violation was received, without altering the living arrangements in question. The notice of violation gave appellant 10 days within which to seek a variance; no criminal or civil sanctions could possibly have attached pending the outcome of that proceeding.
Though timely invocation of the administrative remedy would have had no effect on appellant's asserted rights, and would have inflicted no irreparable injury, the present availability of such relief under the city ordinance is less clear. But it is unrealistic to expect a municipality to hold open its administrative process for years after legal enforcement action has begun. Appellant cannot rely on the current absence
D
This is not a case where inadequate or unclear or costly remedies make exhaustion inappropriate, or where the Board's position relating to appellant's claims is so fixed that further administrative review would be fruitless. There is not the slightest indication of any fixed Board policy against variances, or that a prompt application for a variance would not have been granted.
(3)
Thus, the traditional justifications offered in support of the exhaustion principle point toward application of the doctrine. But there is a powerful additional reason why exhaustion should be enforced in this case. We deal here with federal
When the State asserts its sovereignty through the administrative process, no less than when it proceeds judicially, "federal courts . . . should abide by standards of restraint that go well beyond those of private equity jurisprudence." Huffman, supra, at 603; cf. Younger v. Harris, 401 U.S. 37, 41 (1971). A proper respect for state integrity is manifested by and, in part, dependent on, our reluctance to disrupt state
The doctrine of exhaustion of administrative remedies has a long history. Though its salutary effects are undisputed, they have often been casually neglected, due to the judicial penchant of honoring the doctrine more in the breach than in the observance. For my part, the time has come to insist on enforcement of the doctrine whenever the local or state remedy is adequate and where asserted rights can be protected and irreparable injury avoided within the administrative process. Only by so doing will this Court and other federal courts be available to deal with the myriad new problems clamoring for resolution.
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
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 appellant, Inez Moore, owns a 2 1/2-story frame house in East Cleveland. The building contains two "dwelling units."
In January 1973, a city housing inspector cited Mrs. Moore for occupation of the premises by more than one family.
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
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
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
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
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
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
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 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.
This 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.
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.
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 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
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
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,"
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."
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
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
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
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
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 (1977), 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):
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.
Respectfully, therefore, I dissent and would affirm the judgment.
FootNotes
" `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 housekeeping 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."
Moreover, those cases that have denied certain nonconstitutional defenses to criminal defendants for failure to exhaust remedies did so pursuant to statutes that implicitly or explicitly mandated such a holding. See, e. g., Falbo v. United States, 320 U.S. 549 (1944); Yakus v. United States, supra; McGee v. United States, 402 U.S. 479 (1971). Because of the statutes the defendants were on notice that failure to pursue available administrative relief might result in forfeiture of a defense in an enforcement proceeding. But here no Ohio statute or ordinance required exhaustion or gave Mrs. Moore any such warning. Indeed, the Ohio courts entertained all her claims, perceiving no denigration of state administrative process in according full judicial review.
Although he agrees that the Due Process Clause has substantive content, MR. JUSTICE WHITE in dissent expresses the fear that our recourse to history and tradition will "broaden enormously the horizons of the Clause." Post, at 549-550. To the contrary, an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on the abstract formula taken from Palko v. Connecticut, 302 U.S. 319 (1937), and apparently suggested as an alternative. Cf. Duncan v. Louisiana, supra, at 149-150, n. 14 (rejecting the Palko formula as the basis for deciding what procedural protections are required of a State, in favor of a historical approach based on the Anglo-American legal tradition). Indeed, the passage cited in MR. JUSTICE WHITE'S dissent as "most accurately reflect[ing] the thrust of prior decisions" on substantive due process, post, at 545, expressly points to history and tradition as the source for "supplying. . . content to this Constitutional concept." Poe v. Ullman, supra, at 542 (Harlan, J., dissenting).
"application of this ordinance here would not only sever and disrupt the relationship between Mrs. Moore and her own son, but it would disrupt the relationship that is established between young John and young Dale, which is in essence a sibling type relationship, and it would most importantly disrupt the relationship between young John and his grandmother, which is the only maternal influence that he has had during his entire life." Tr. of Oral Arg. 16.
The city did not dispute these representations, and it is clear that this case was argued from the outset as requiring decision in this context.
"Perhaps the most important—or at least the most visible—difference between the classes is one of family structure. The working class subculture is distinguished by the dominant role of the family circle. . . .
"The specific characteristics of the family circle may differ widely— from the collateral peer group form of the West Enders, to the hierarchical type of the Irish, or to the classical three-generation extended family. . . . What matters most—and distinguishes this subculture from others—is that there be a family circle which is wider than the nuclear family, and that all of the opportunities, temptations, and pressures of the larger society be evaluated in terms of how they affect the ongoing way of life that has been built around this circle." Id., at 244-245 (emphasis in original).
The extended family often plays an important role in the rearing of young black children whose parents must work. Many such children frequently "spend all of their growing-up years in the care of extended kin. . . . Often children are `given' to their grandparents, who rear them to adulthood. . . . Many children normally grow up in a three-generation household and they absorb the influences of grandmother and grandfather as well as mother and father." J. Ladner, Tomorrow's Tomorrow: The Black Woman 60 (1972).
"The case histories behind mounting rates of delinquency, addiction, crime, neurotic disabilities, mental illness, and senility in societies in which autonomous nuclear families prevail suggest that frequent failure to develop enduring family ties is a serious inadequacy for both individuals and societies." D. Blitsten, The World of the Family 256 (1963).
Extended families provide services and emotional support not always found in the nuclear family:
"The troubles of the nuclear family in industrial societies, generally, and in American society, particularly, stem largely from the inability of this type of family structure to provide certain of the services performed in the past by the extended family. Adequate health, education, and welfare provision, particularly for the two nonproductive generations in modern societies, the young and the old, is increasingly an insurmountable problem for the nuclear family. The unrelieved and sometimes unbearably intense parent-child relationship, where childrearing is not shared at least in part by others, and the loneliness of nuclear family units, increasingly turned in on themselves in contracted and relatively isolated settings, is another major problem." Yorburg, supra, n. 4, at 194.
"The most that can be said [of this zoning ordinance] is that whether that determination was an unreasonable, arbitrary or unequal exercise of power is fairly debatable. In such circumstances, the settled rule of this court is that it will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question." Id., at 328.
"[O]ften the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by [a single-family dwelling area] . . . . [T]he coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities,—until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances." 272 U. S., at 394-395.
"When other courts have been called upon to define the term `family' they have emphasized the single housekeeping unit aspect of the term, rather than the relationship of the occupants. [Citing cases.]
.....
"In terms of permissible zoning objectives, a group of persons bound together only by their common desire to operate a single housekeeping unit, might be thought to have a transient quality that would affect adversely the stability of the neighborhood, and so depreciate the value of other property. An ordinance requiring relationship by blood, marriage or adoption could be regarded as tending to limit the intensity of land use. And it might be considered that a group of unrelated persons would be more likely to generate traffic and parking problems than would an equal number of related persons.
"But none of these observations reflects a universal truth. Family groups are mobile today, and not all family units are internally stable and well-disciplined. Family groups with two or more cars are not unfamiliar. And so far as intensity of use is concerned, the definition in the present ordinance, with its reference to the `respective spouses' of persons related by blood, marriage or adoption, can hardly be regarded as an effective control upon the size of family units.
"The General Assembly has not specifically authorized the adoption of zoning ordinances that penetrate so deeply as this one does into the internal composition of a single housekeeping unit. Until it has done so, we are of the opinion that we should not read the general authority that it has delegated to extend so far." Id., at 436-438, 216 N. E. 2d, at 119-120.
"Zoning is intended to control types of housing and living and not the genetic or intimate internal family relations of human beings.
"Whether a family be organized along ties of blood or formal adoptions, or be a similarly structured group sponsored by the State, as is the group home, should not be consequential in meeting the test of the zoning ordinance. So long as the group home bears the generic character of a family unit as a relatively permanent household, and is not a framework for transients or transient living, it conforms to the purpose of the ordinance . . . ." Id., at 305-306, 313 N. E. 2d, at 758.
"Thus, even in the light of the legitimate concern of the municipality with the undesirable concomitants of group rentals experienced in Margate City, and of the presumption of validity of municipal ordinances, we are satisfied that the remedy here adopted constitutes a sweepingly excessive restriction of property rights as against the problem sought to be dealt with, and in legal contemplation deprives plaintiffs of their property without due process."
The court in Kirsch Holding Co., supra, at 251 n. 6, 281 A. 2d., at 518 n. 6, also quoted with approval the following statement from Marino v. Mayor & Council of Norwood, 77 N.J.Super. 587, 594, 187 A.2d 217, 221 (1963):
"Until compelled to do so by a New Jersey precedent squarely in point, this court will not conclude that persons who have economic or other personal reasons for living together as a bona fide single housekeeping unit and who have no other orientation, commit a zoning violation, with possible penal consequences, just because they are not related."
"The erection or construction of a `single family dwelling,' in itself, would imply that any building so constructed would contain a central kitchen, dining room, living room, bedrooms; that is, constitute a single housekeeping unit. Consequently, to qualify as a `single family dwelling' an erected structure need only be used as a single housekeeping unit."
"The group home [in White Plains] is not, for purposes of a zoning ordinance, a temporary living arrangement as would be a group of college students sharing a house and commuting to a nearby school (cf. Village of Belle Terre v. Boraas . . .). Every year or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes."
Similarly explicable are those cases in which challenge is made to the constitutionality of the administrative proceedings themselves. See Freedman v. Maryland, 380 U.S. 51 (1965); Public Utilities Comm'n of California v. United States, 355 U.S. 534, 540 (1958). But see Christian v. New York Dept. of Labor, 414 U.S. 614, 622 (1974), where appellants' constitutional due process challenge to administrative procedures was deferred pending agency action. Exhaustion in those situations would similarly risk infringement of a constitutional right by the administrative process itself.
"When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Louisville Gas Co. v. Coleman, 277 U.S. 32, 41 (dissenting opinion).
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.
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