U.S. Supreme Court Moore v. City of East Cleveland, 431
U.S. 494 (1977) Moore v. City of East
Cleveland No. 75-6289 Argued November 2,
1976 Decided May 31, 1977 431
U.S. 494 APPEAL FROM THE COURT OF APPEALS OF
OHIO, CUYAHOGA COUNTY Syllabus Appellant lives in her East Cleveland, Ohio, home with her son
and two grandsons (who are first cousins). An East Cleveland
housing ordinance limits occupancy of a dwelling unit to members of
a single family, but defines "family" in such a way that
appellant's household does not qualify. Appellant was convicted of
a criminal violation of the ordinance. Her conviction was upheld on
appeal over her claim that the ordinance is unconstitutional.
Appellee city contends that the ordinance should be sustained under Village of Belle Terre v. Boraas, 416 U. S.
1 , which upheld an ordinance imposing limits on the
types of groups that could occupy a single dwelling unit. Held: The judgment is reversed. Pp. 431 U. S.
498 -506; 431 U. S.
513 -521. Reversed. MR. JUSTICE POWELL, joined by MR JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE BLACKMUN, concluded that the ordinance
deprived appellant of her liberty in violation of the Due Process
Clause of the Fourteenth Amendment.

															(a) This case is distinguishable from Belle Terre,
supra, where the ordinance affected only unrelated
individuals. The ordinance here expressly selects certain
categories of relatives who may live together, and declares that
others may not, in this instance making it a crime for a
grandmother to live with her grandson. Pp. 431 U. S.
498 -499.

															(b) When the government intrudes on choices concerning family
living arrangements, the usual deference to the legislature is
inappropriate, and the Court must examine carefully the importance
of the governmental interests advanced and the extent to which they
are served by the challenged regulation. P. 431 U. S.
499 .

															(c) The ordinance, at best, has but a tenuous relationship to
the objectives cited by the city: avoiding overcrowding, traffic
congestion, and an undue financial burden on the school system. Pp. 431 U. S.
499 -500.

															(d) The strong constitutional protection of the sanctity of the
family established in numerous decisions of this Court extends to
the family choice involved in this case, and is not confined within
an arbitrary boundary drawn at the limits of the nuclear family
(essentially a couple Page 431 U. S. 495 and their dependent children). Appropriate limits on substantive
due process come not from drawing arbitrary lines, but from careful
"respect for the teachings of history [and] solid recognition of
the basic values that underlie our society." Griswold v.
Connecticut, 381 U. S. 479 , 381 U. S. 501 (Harlan, J., concurring). The history and tradition of this Nation
compel a larger conception of the family. Pp. 431 U. S.
500 -506.

															MR. JUSTICE STEVENS concluded that, under the limited standard
of review preserved in Euclid v. Ambler Realty Co., 272 U. S. 365 , and Nectow v. Cambridge, 277 U. S. 183 ,
before a zoning ordinance can be declared unconstitutional, it must
be shown to be clearly arbitrary and unreasonable as having no
substantial relation to the public health, safety, morals, or
general welfare; that appellee city has failed totally to explain
the need for a rule that would allow a homeowner to have
grandchildren live with her if they are brothers, but not if they
are cousins; and that, under that standard, appellee city's
unprecedented ordinance constitutes a taking of property without
due process and without just compensation. Pp. 431 U. S.
513 -521.

															POWELL, J., announced the judgment of the Court and delivered an
opinion in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined.
BRENNAN, J., filed a concurring opinion, in which MARSHALL, J.,
joined, post, p. 431 U. S. 506 .
STEVENS, J., filed an opinion concurring in the judgment, post, p. 431 U. S. 513 .
BURGER, C.J., filed a dissenting opinion, post, p. 431 U. S. 521 .
STEWART, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined, post, p. 431 U. S. 531 .
WHITE, J., filed a dissenting opinion, post, p. 431 U. S.
541 .

															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 may throughout the
country, limits occupancy of a dwelling unit to members Page 431 U. S. 496 of a single family. § 1351.02. [ Footnote 1 ] But the ordinance contains an unusual and
complicated definitional section that recognizes as a "family" only
a few categories of related individuals. § 1341.08. [ Footnote 2 ] Because her family, living
together in her home, fits none of those categories, appellant
stands convicted of a criminal offense. The question in this case
is whether the ordinance violates the Due Process Clause of the
Fourteenth Amendment. [ Footnote
3 ] 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 Page 431 U. S. 497 came to live with his grandmother and with the elder and younger
Dale Moores after his mother's death. [ Footnote 4 ]

															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, [ Footnote 5 ] Page 431 U. S. 498 and the Ohio Supreme Court denied review. We noted probable
jurisdiction of her appeal, 425 U.S. 949 (1976). 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), [ Footnote
6 ] we sustained the Belle Terre ordinance on the ground that it
bore a rational relationship to permissible state objectives.

															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 416 U. S. 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 Page 431 U. S. 499 categories of relatives who may live together and declares that
others may not. In particular, it makes a crime of a grandmother's
choice to live with her grandson in circumstances like those
presented here.

															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 , 414 U. S.
639 -640 (1974). A host of cases, tracing their lineage
to Meyer v. Nebraska, 262 U. S. 390 , 262 U. S.
399 -401 (1923), and Pierce v. Society of
Sisters, 268 U. S. 510 , 268 U. S.
534 -535 (1925), have consistently acknowledged a
"private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 166 (1944). See, e.g., Roe v. Wade, 410 U.
S. 113 , 410 U. S.
152 -153 (1973); Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S.
231 -233 (1972); Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 651 (1972); Ginsberg v. New York, 390 U.
S. 629 , 390 U. S. 639 (1968); Griswold v. Connecticut, 381 U.
S. 479 (1965); id. at 381 U. S.
495 -496 (Goldberg, J., concurring); id. at 381 U. S.
502 -503 (WHITE, J., concurring); Poe v. Ullman, 367 U. S. 497 , 367 U. S.
542 -544, 367 U. S.
549 -553 (1961) (Harlan, J., dissenting); cf. Loving
v. Virginia, 388 U. S. 1 , 388 U. S. 12 (1967); May v. Anderson, 345 U. S. 528 , 345 U. S. 533 (1953); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 316 U. S. 541 (1942). Of course, the family is not beyond regulation. See
Prince v. Massachusetts, supra at 321 U. S. 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 367 U. S. 554 (Harlan, J., dissenting).

															When thus examined, this ordinance cannot survive. The city
seeks to justify it as a means of preventing overcrowding, Page 431 U. S. 500 minimizing traffic and parking congestion, and avoiding an undue
financial burden on East Cleveland's school system. Although these
are legitimate goals, the ordinance before us serves them
marginally, at best. [ Footnote
7 ] For example, the ordinance permits any family consisting
only of husband, wife, and unmarried children to live together,
even if the family contains a half dozen licensed drivers, each
with his or her own car. At the same time, it forbids an adult
brother and sister to share a household, even if both faithfully
use public transportation. The ordinance would permit a grandmother
to live with a single dependent son and children, even if his
school-age children number a dozen, yet it forces Mrs. Moore to
find another dwelling for her grandson John, simply because of the
presence of his uncle and cousin in the same household. We need not
labor the point. Section 1341.08 has but a tenuous relation to
alleviation of the conditions mentioned by the city. 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 Page 431 U. S. 501 of parents to the custody and companionship of their own
children, Stanley v. Illinois, supra, or with traditional
parental authority in matters of childrearing and education. Yoder, Ginsberg, Pierce, Meyer, supra. But unless we close
our eyes to the basic reasons why certain rights associated with
the family have been accorded shelter under the Fourteenth
Amendment's Due Process Clause, we cannot avoid applying the force
and rationale of these precedents to the family choice involved in
this case.

															Understanding those reasons requires careful attention to this
Court's function under the Due Process Clause. Mr. Justice Harlan
described it eloquently:

															"Due process has not been reduced to any formula; its content
cannot be determined by reference to any code. The best that can be
said is that through the course of this Court's decisions it has
represented the balance which our Nation, built upon postulates of
respect for the liberty of the individual, has struck between that
liberty and the demands of organized society. If the supplying of
content to this Constitutional concept has of necessity been a
rational process, it certainly has not been one where judges have
felt free to roam where unguided speculation might take them. The
balance of which I speak is the balance struck by this country,
having regard to what history teaches are the traditions from which
it developed, as well as the traditions from which it broke. That
tradition is a living thing. A decision of this Court which
radically departs from it could not long survive, while a decision
which builds on what has survived is likely to be sound. [ Footnote 8 ] No formula could serve as a
substitute, in this area, for judgment and restraint. " Page 431 U. S. 502 ". . . [T]he full scope of the liberty guaranteed by the Due
Process Clause cannot be found in or limited by the precise terms
of the specific guarantees elsewhere provided in the Constitution.
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, . . .
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." Poe v. Ullman, supra at 367 U. S.
542 -543 (dissenting opinion).

															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. [ Footnote 9 ] That history counsels caution and restraint.
But it does not counsel abandonment, nor does it require what the
city urges here: cutting off any protection of family rights at the
first convenient, if arbitrary boundary -- the boundary of the
nuclear family. Page 431 U. S. 503 Appropriate limits on substantive due process come not from
drawing arbitrary lines, but rather from careful "respect for the
teachings of history [and] solid recognition of the basic values
that underlie our society." [ Footnote 10 ] Griswold v. Connecticut, 381 U. at 381 U. S. 501 (Harlan, J., concurring). [ Footnote 11 ] See generally Ingraham v. Wright, 430 U. S. 651 , 430 U. S.
672 -674, and nn. 41, 42 (1977); Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.
S. 123 , 341 U. S.
162 -163 (1951) (Frankfurter, J., concurring); Lochner v. New York, 198 U. S. 45 , 198 U. S. 76 (1905) (Holmes, J., dissenting). Our decisions establish that the
Constitution protects the sanctity of the family precisely because
the institution of the family is deeply rooted in this Nation's
history and tradition. [ Footnote
12 ] It is through the family that we inculcate and Page 431 U. S. 504 pass down many of our most cherished values, moral and cultural.
[ Footnote 13 ]

															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. [ Footnote 14 ] Over the years, millions Page 431 U. S. 505 of our citizens have grown up in just such an environment, and
most, surely, have profited from it. Even if conditions of modern
society have brought about a decline in extended family households,
they have not erased the accumulated wisdom of civilization, gained
over the centuries and honored throughout our history, that
supports a larger conception of the family. Out of choice,
necessity, or a sense of family responsibility, it has been common
for close relatives to draw together and participate in the duties
and the satisfactions of a common home. Decisions concerning
childrearing, which Yoder, Meyer, Pierce and other cases
have recognized as entitled to constitutional protection, long have
been shared with grandparents or other relatives who occupy the
same household -- indeed who may take on major responsibility for
the rearing of the children. [ Footnote 15 ] Especially in times of adversity, such as
the death of a spouse or economic need, the broader family has
tended to come together for mutual sustenance and to maintain or
rebuild a secure home life. This is apparently what happened here.
[ Footnote 16 ]

															Whether or not such a household is established because of
personal tragedy, the choice of relatives in this degree Page 431 U. S. 506 of kinship to live together may not lightly be denied by the
State. Pierce struck down an Oregon law requiring all
children to attend the State's public schools, holding that the
Constitution "excludes any general power of the State to
standardize its children by forcing them to accept instruction from
public teachers only." 268 U.S. at 268 U. S. 535 .
By the same token, the Constitution prevents East Cleveland from
standardizing its children -- and its adults -- by forcing all to
live in certain narrowly defined family patterns. Reversed. [ Footnote 1 ]

															All citations by section number refer to the Housing Code of the
city of East Cleveland, Ohio.

															[ Footnote 2 ]

															Section 1341.0 (1966) provides:

															"'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."

															[ Footnote 3 ]

															Appellant also claims that the ordinance contravenes the Equal
Protection Clause, but it is not necessary for us to reach that
contention.

															[ Footnote 4 ]

															Brief for Appellant 4, 25. John's father, John Moore, Sr., has
apparently been living with the family at least since the time of
trial. Whether he was living there when the citation was issued is
in dispute. Under the ordinance, his presence too probably would be
a violation. But we take the case as the city has framed it. The
citation that led to prosecution recited only that John Moore, Jr.,
was in the home in violation of the ordinance.

															[ Footnote 5 ]

															The dissenting opinion of THE CHIEF JUSTICE suggests that Mrs.
Moore should be denied a hearing in this Court because she failed
to seek discretionary administrative relief in the form of a
variance, relief that is no longer available. There are sound
reasons for requiring exhaustion of administrative remedies in some
situations, but such a requirement is wholly inappropriate where
the party is a criminal defendant in circumstances like
those present here. See generally McKart v. United States, 395 U. S. 185 (1969). Mrs. Moore defends against the State's prosecution on the
ground that the ordinance is facially invalid, an issue that the
zoning review board lacks competency to resolve. In any event, this
Court has never held that a general principle of exhaustion could
foreclose a criminal defendant from asserting constitutional
invalidity of the statute under which she is being prosecuted. See, e.g., Yakus v. United States, 321 U.
S. 414 , 321 U. S.
446 -447 (1944).

															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.

															[ Footnote 6 ]

															Euclid held that land use regulations violate the Due Process
Clause if they are "clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or
general welfare." 272 U.S. at 272 U. S. 395 . See Nectow v. Cambridge, 277 U. S. 183 , 277 U. S. 188 (1928). Later cases have emphasized that the general welfare is not
to be narrowly understood; it embraces a broad range of
governmental purposes. See Berman v. Parker, 348 U. S.
26 (1954). But our cases have not departed from the
requirement that the government's chosen means must rationally
further some legitimate state purpose.

															[ Footnote 7 ]

															It is significant that East Cleveland has another ordinance
specifically addressed to the problem of overcrowding. See
United States Dept. of Agriculture v. Moreno, 413 U.
S. 528 , 413 U. S.
536 -537 (1973). Section 1351.03 limits population
density directly, tying the maximum permissible occupancy of a
dwelling to the habitable floor area. Even if John, Jr., and his
father both remain in Mrs. Moore's household, the family stays well
within these limits.

															[ Footnote 8 ]

															This explains why Meyer and Pierce have
survived and enjoyed frequent reaffirmance, while other substantive
due process cases of the same era have been repudiated -- including
a number written, as were Meyer and Pierce, by
Mr. Justice McReynolds.

															[ Footnote 9 ] Lochner v. New York, 198 U. S. 45 (1905). See North Dakota Pharmacy Bd. v. Snyder's Drug Stores,
Inc., 414 U. S. 156 , 414 U. S.
164 -167 (1973); Griswold v. Connecticut, 381 U. S. 479 , 381 U. S.
514 -527 (1965) (Black, J., dissenting); Ferguson v.
Skrupa, 372 U. S. 726 (1963); Baldwin v. Missouri, 281 U.
S. 586 , 281 U. S. 595 (1930) (Holmes, J., dissenting); G. Gunther, Cases and Materials on
Constitutional Law 550-596 (9th ed.1975).

															[ Footnote 10 ]

															A similar restraint marks our approach to the questions whether
an asserted substantive right is entitled to heightened solicitude
under the Equal Protection Clause because it is "explicitly or
implicitly guaranteed by the Constitution," San Antonio
Independent School Dist. v. Rodriguez, 411 U. S.
1 , 411 U. S. 33 -34
(1973), and whether or to what extent a guarantee in the Bill of
Rights should be "incorporated" in the Due Process Clause because
it is "necessary to an Anglo-American regime of ordered liberty." Duncan v. Louisiana, 391 U. S. 145 , 391 U. S.
149 -150, n. 14 (1968); see Johnson v.
Louisiana, 406 U. S. 356 , 406 U. S. 372 n. 9 (1972) (opinion of POWELL, J.).

															[ Footnote 11 ]

															For a recent suggestion that the holding in Griswold is
best understood in this fashion, see Pollak, Comment, 84
Yale L.J. 638, 650-653 (1975).

															"[I]n due course, we will see Griswold as a
reaffirmation of the Court's continuing obligation to test the
justifications offered by the state for state-imposed constraints
which significantly hamper those modes of individual fulfillment
which are at the heart of a free society." Id. at 653.

															[ Footnote 12 ]

															In Wisconsin v. Yoder, 406 U.
S. 205 (1972), the Court rested its holding in part on
the constitutional right of parents to assume the primary role in
decisions concerning the rearing of their children. That right is
recognized because it reflects a "strong tradition" founded on "the
history and culture of Western civilization," and because the
parental role "is now established beyond debate as an enduring
American tradition." Id. at 406 U. S. 232 .
In Ginsberg v. New York, 390 U. S. 629 (1968), the Court spoke of the same right as "basic in the
structure of our society." Id. at 390 U. S. 639 . Griswold v. Connecticut, supra, struck down Connecticut's
anti-contraception statute. Three concurring Justices, relying on
both the Ninth and Fourteenth Amendments, emphasized that "the
traditional relation of the family" is "a relation as old and as
fundamental as our entire civilization." 381 U.S. at 381 U. S. 496 (Goldberg, J., joined by Warren, C.J., and BRENNAN, J.,
concurring). Speaking of the same statute as that involved in Griswold, Mr. Justice Harlan wrote, dissenting in Poe
v. Ullman, 367 U. S. 497 , 367 U. S.
551 -552 (1961):

															"[H]ere we have not an intrusion into the home so much as on the
life which characteristically has its place in the home. . . . The
home derives its preeminence as the seat of family life. And the
integrity of that life is something so fundamental that it has been
found to draw to its protection the principles of more than one
explicitly granted Constitutional right."

															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 431 U. S.
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 391 U. S.
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 431 U. S. 545 ,
expressly points to history and tradition as the source for
"supplying . . . content to this Constitutional concept." Poe
v. Ullman, supra at 367 U. S. 542 (Harlan, J., dissenting).

															[ Footnote 13 ] See generally Wilkinson & White, Constitutional
Protection for Personal Lifestyles, 62 Cornell L.Rev. 563, 623-624
(1977).

															[ Footnote 14 ] See generally B. Yorburg, The Changing Family (1973);
Bronfenbrenner, The Calamitous Decline of the American Family,
Washington Post, Jan. 2, 1977, p. C1. Recent census reports bear
out the importance of family patterns other than the prototypical
nuclear family. In 1970, 26.5% of all families contained one or
more members over 18 years of age, other than the head of household
and spouse. U.S. Department of Commerce, 1970 Census of Population,
vol. 1, pt. 1, Table 208. In 1960, the comparable figure was 26.1%.
U.S. Department of Commerce, 1960 Census of Population, vol. 1, pt.
1, Table 187. Earlier data are not available.

															[ Footnote 15 ] Cf. Prince v. Massachusetts, 321 U.
S. 158 (1944), which spoke broadly of family authority
as against the State, in a case where the child was being reared by
her aunt, not her natural parents.

															[ Footnote 16 ]

															We are told that the mother of John Moore, Jr., died when he was
less than one year old. He, like uncounted others who have suffered
a similar tragedy, then came to live with the grandmother to
provide the infant with a substitute for his mother's care and to
establish a more normal home environment. Brief for Appellant
25.

															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 [ Footnote 2/1 ]
a 63-year-old grandmother for refusing to expel from her home her
now 10-year-old grandson who has lived with her and been brought up
by her since his mother's death when he was less than a year old.
[ Footnote 2/2 ] I do not question
that a municipality may constitutionally zone to Page 431 U. S. 507 alleviate noise and traffic congestion and to prevent
overcrowded and unsafe living conditions, in short, to enact
reasonable land use restrictions in furtherance of the legitimate
objectives East Cleveland claims for its ordinance. But the zoning
power is not a license for local communities to enact senseless and
arbitrary restrictions which cut deeply into private areas of
protected family life. East Cleveland may not constitutionally
define "family" as essentially confined to parents and the parents'
own children. [ Footnote 2/3 ] The
plurality's opinion conclusively demonstrates that classifying
family patterns in this eccentric way is not a rational means of
achieving the ends East Cleveland claims for its ordinance, and
further that the ordinance unconstitutionally abridges the

															"freedom of personal choice in matters of . . . family life
[that] 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 , 414 U. S.
639 -640 (1974). I write only to underscore the cultural
myopia of the arbitrary boundary drawn by the East Cleveland
ordinance in the light of the tradition of the American home that
has been a feature of our society since our beginning as a Nation
-- the "tradition" in the plurality's words, "of uncles, aunts,
cousins, and especially grandparents sharing a household along with
parents and children. . . ." Ante at 431 U. S. 504 .
The line drawn by this ordinance Page 431 U. S. 508 displays a depressing insensitivity toward the economic and
emotional needs of a very large part of our society.

															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, [ Footnote 2/4 ] remains not merely still a pervasive
living pattern, but, under the goad of brutal economic necessity, a
prominent pattern -- virtually a means of survival -- for large
numbers of the poor and deprived minorities of our society. For
them, compelled pooling of scant resources requires compelled
sharing of a household. [ Footnote
2/5 ] Page 431 U. S. 509 The "extended" form is especially familiar among black families.
[ Footnote 2/6 ] We may suppose that
this reflects the truism that black citizens, like generations of
white immigrants before them, have been victims of economic and
other disadvantages that would worsen if they were compelled to
abandon extended, for nuclear, living patterns. [ Footnote 2/7 ] Even in husband and wife households,
13% of black families compared with 3% of white families include
relatives under 18 years old, in addition Page 431 U. S. 510 to the couple's own children. [ Footnote 2/8 ] In black households whose head is an
elderly woman, as in this case, the contrast is even more striking:
48% of such black households, compared with 10% of counterpart
white households, include related minor children not offspring of
the head of the household. [ Footnote
2/9 ]

															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. [ Footnote 2/10 ] It suffices that, in prohibiting this
pattern of family living as a means of achieving its objectives,
appellee city has chosen a device that deeply intrudes into family
associational rights that historically have been central, and today
remain central, to a large proportion of our population.

															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 Page 431 U. S. 511 relationships. For the "private realm of family life which the
state cannot enter," recognized as protected in Prince v.
Massachusetts, 321 U. S. 158 , 321 U. S. 166 (1944), was the relationship of aunt and niece. And in Pierce
v. Society of Sisters, 268 U. S. 510 , 268 U. S.
534 -535 (1925), the protection held to have been
unconstitutionally abridged was "the liberty of parents and guardians to direct the upbringing and education of
children under their control" (emphasis added). See also
Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S.
232 -233 (1972). Indeed, Village of Belle Terre v.
Boraas, 416 U. S. 1 (1974),
the case primarily relied upon by the appellee, actually supports
the Court's decision. The Belle Terre ordinance barred only
unrelated individuals from constituting a family in a single-family
zone. The village took special care in its brief to emphasize that
its ordinance did not in any manner inhibit the choice of related individuals to constitute a family, whether in the
"nuclear" or "extended" form. This was because the village
perceived that choice as one it was constitutionally powerless to
inhibit. Its brief stated:

															"Whether it be the extended family of a more leisurely age or
the nuclear family of today, the role of the family in raising and
training successive generations of the species makes it more
important, we dare say, than any other social or legal institution.
. . . If any freedom not specifically mentioned in the Bill of
Rights enjoys a 'preferred position' in the law, it is most
certainly the family. "

															(Emphasis supplied.) Brief for Appellants in No. 73-191, O.T.
1973, p. 26. The cited decisions recognized, as the plurality
recognizes today, that the choice of the "extended family" pattern
is within the

															"freedom of personal choice in matters of . . . family life
[that] is one of the liberties protected by the Due Process Clause
of the Fourteenth Amendment."

															414 U.S. at 414 U. S.
639 -640.

															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 Page 431 U. S. 512 was not obligated to exhaust her administrative remedy before
defending this prosecution on the ground that the single-family
occupancy ordinance violates the Equal Protection Clause. Euclid v. Ambler Realty Co., 272 U.
S. 365 (1926), the leading case in the zoning field,
expressly held that one attacking the constitutionality of a
building or zoning code need not first seek a variance. Id. at 272 U. S. 386 .
Rather, the matter of a variance is irrelevant also because the
municipality is constitutionally powerless to abridge, as East
Cleveland has done, the freedom of personal choice of related
members of a family to live together. Thus, the existence of the
variance procedure serves to lessen neither the irrationality of
the definition of "family" nor the extent of its intrusion into
family lifestyle decisions.

															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), Page 431 U. S. 513 is instructive. There, Texas argued that, despite a rigid and
narrow statute prohibiting abortions except for the purpose of
saving the mother's life, prosecuting authorities routinely
tolerated elective abortion procedures in certain cases, such as
nonconsensual pregnancies resulting from rape or incest. The Court
was not persuaded that this saved the statute, THE CHIEF JUSTICE
commenting that "no one in these circumstances should be placed in
a posture of dependence on a prosecutorial policy or prosecutorial
discretion." Id. at 410 U. S. 208 (concurring opinion). Similarly, this grandmother cannot be denied
the opportunity to defend against this criminal prosecution because
of a variance procedure that holds her family hostage to the
vagaries of discretionary administrative decisions. Smith v.
Cahoon, 283 U. S. 553 , 283 U. S. 562 (1931). We have now passed well beyond the day when illusory escape
hatches could justify the imposition of burdens on fundamental
rights. Stanley v. Illinois, 405 U.
S. 645 , 405 U. S.
647 -649 (1972); Staub v. City of Baxley, 355 U. S. 313 , 355 U. S. 319 (1958).

															[ Footnote 2/1 ]

															This is a criminal prosecution which resulted in the
grandmother's conviction and sentence to prison and a fine. Section
1345.99 permits imprisonment of up to six months, and a fine of up
to $1,000, for violation of any provision of the Housing Code. Each
day such violation continues may, by the terms of this section,
constitute a separate offense.

															[ Footnote 2/2 ]

															Brief for Appellant 4. In addition, we were informed by
appellant's counsel at oral argument that

															"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.

															[ Footnote 2/3 ]

															The East Cleveland ordinance defines "family" to include, in
addition to the spouse of the "nominal head of the household," the
couple's childless unmarried children, but only one dependent child
(married or unmarried) having dependent children, and one parent of
the nominal head of the household or of his or her spouse. Thus, an
"extended family" is authorized in only the most limited sense, and
"family" is essentially confined to parents and their own children.
Appellant grandmother was charged with violating the ordinance
because John, Jr., lived with her at the same time her other
grandson, Dale, Jr., was also living in the home; the latter is
classified as an "unlicensed roomer" authorized by the ordinance to
live in the house.

															[ Footnote 2/4 ] See Report of the National Advisory Commission on Civil
Disorders 278-281 (1968); Kosa & Nash, Social Ascent of
Catholics, 8 Social Order 98-103 (1958); M. Novak, The Rise of the
Unmeltable Ethnics 209-210 (1972); B. Yorburg, The Changing Family
106-109 (1973); Kosa, Rachiele, & Schommer, Sharing the Home
with Relatives, 22 Marriage and Family Living 129 (1960).

															[ Footnote 2/5 ] See, e.g., H. Gans, The Urban Villagers 45-73, 245-249
(1962).

															"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).

															[ Footnote 2/6 ]

															Yorburg, supra, 431
U.S. 494 fn2/4|>n. 4, at 108.

															"Within the black lower-class, it has been quite common for
several generations, or parts of the kin, to live together under
one roof. Often a maternal grandmother is the acknowledged head of
this type of household, which has given rise to the term
'matrifocal' to describe lower-class black family patterns." See J. Scanzoni, The Black Family in Modern Society 134
(1971); see also Anderson, The Pains and Pleasures of Old
Black Folks, Ebony 123, 128-130 (Mar.1973). See generally E. Frazier, The Negro Family in the United States (1939); Lewis,
The Changing Negro Family, in E. Ginzberg, ed., The Nation's
Children 108 (1960).

															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).

															[ Footnote 2/7 ]

															The extended family has many strengths not shared by the nuclear
family.

															"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, 431
U.S. 494 fn2/4|>n. 4, at 194.

															[ Footnote 2/8 ]

															R. Hill, The Strengths of Black Families 5 (1972).

															[ Footnote 2/9 ] Id. at 5-6. It is estimated that at least 26% of black
children live in other than husband-wife families,

															"including foster parents, the presence of other male or female
relatives (grandfather or grandmother, older brother or sister,
uncle or aunt), male or female nonrelatives, [or with] only one
adult (usually mother) present. . . ."

															Scanzoni, supra, 431
U.S. 494 fn2/6|>n. 6, at 44.

															[ Footnote 2/10 ]

															Novak, supra, 431
U.S. 494 fn2/4|>n. 4; Hill, supra at 5-6; N. Glazer
& D. Moynihan, Beyond the Melting Pot 50-53 (2d ed.1970); L.
Rainwater & W. Yancey, The Moynihan Report and the Politics of
Controversy 51-60 (1967).

															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 Page 431 U. S. 514 of land in the community, vastly diminished the rights of
individual property owners. It did not, however, totally extinguish
those rights. On the contrary, that case expressly recognized that
the broad zoning power must be exercised within constitutional
limits.

															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,
moral, or general welfare. " Id. at 272 U. S. 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 277 U. S. 188 .
[ Footnote 3/1 ]

															With one minor exception, [ Footnote
3/2 ] between the Nectow decision in 1928 and the 1974
decision in Village of Belle Terre v. Boraas, 416 U. S.
1 , this Court did not review the substance of any zoning
ordinances. The case-by-case development of the constitutional
limits on the zoning power has not, therefore, taken place in this
Court. On the other hand, during Page 431 U. S. 515 the past half century the broad formulations found in Euclid and Nectow have been applied in countless
situations by the state courts. Those cases shed a revelatory light
on the character of the single-family zoning ordinance challenged
in this case.

															Litigation involving single-family zoning ordinances is common.
Although there appear to be almost endless differences in the
language used in these ordinances, [ Footnote 3/3 ] they contain three principal types of
restrictions. First, they define the kind of structure that may be
erected on vacant land. [ Footnote
3/4 ] Second, they require that a single-family home be occupied
only by a "single housekeeping unit." [ Footnote 3/5 ] Third, they often Page 431 U. S. 516 require that the housekeeping unit be made up of persons related
by blood, adoption, or marriage, with certain limited
exceptions.

															Although the legitimacy of the first two types of restrictions
is well settled, [ Footnote 3/6 ]
attempts to limit occupancy to related persons have not been
successful. The state courts have recognized a valid community
interest in preserving the stable character of residential
neighborhoods which justifies a prohibition against transient
occupancy. [ Footnote 3/7 ]
Nevertheless, in well reasoned opinions, the Courts of Illinois,
[ Footnote 3/8 ] New York, [ Footnote 3/9 ] New Jersey, [ Footnote 3/10 ] Page 431 U. S. 517 California, [ Footnote 3/11 ]
Connecticut, [ Footnote 3/12 ]
Wisconsin, [ Footnote 3/13 ] and
other jurisdictions, [ Footnote
3/14 ] have permitted unrelated persons to occupy single-family
residences notwithstanding an ordinance prohibiting, either
expressly or implicitly, such occupancy. Page 431 U. S. 518 These cases delineate the extent to which the state courts have
allowed zoning ordinances to interfere with the right of a property
owner to determine the internal composition of his Page 431 U. S. 519 household. The intrusion on that basic property right has not
previously gone beyond the point where the ordinance defines a
family to include only persons related by blood, marriage, or
adoption. Indeed, as the cases in the margin demonstrate, state
courts have not always allowed the intrusion to penetrate that far.
The state decisions have upheld zoning ordinances which regulated
the identity, as opposed to the number, of persons who may compose
a household only to the extent that the ordinances require such
households to remain nontransient, single-housekeeping units.
[ Footnote 3/15 ] Page 431 U. S. 520 There appears to be no precedent for an ordinance which excludes
any of an owner's relatives from the group of persons who may
occupy his residence on a permanent basis. Nor does there appear to
be any Justification for such a restriction on an owner's use of
his property. [ Footnote 3/16 ] The
city has failed totally to explain the need for a rule which would
allow a homeowner to have two grandchildren live with her if they
are brothers, but not if they are cousins. Since this ordinance has
not been shown to have any "substantial relation to the public
health, safety, morals, or general welfare" of the city of East
Cleveland, and since it cuts so deeply into a fundamental right
normally associated with the ownership of residential property --
that of an owner to decide who may reside on his or her property --
it must fall under the limited standard of review of zoning
decisions which this Court preserved in Page 431 U. S. 521 Euclid and Nectow. Under that standard, East
Cleveland's unprecedented ordinance constitutes a taking of
property without due process and without just compensation.

															For these reasons, I concur in the Court's judgment.

															[ Footnote 3/1 ]

															The Court cited Zahn v. Board of Public Works, 274 U. S. 325 . The
statement of the rule in Zahn remains viable today:

															"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 274 U. S. 328 .

															[ Footnote 3/2 ] Goldblatt v. Town of Hempstead, 369 U.
S. 590 .

															[ Footnote 3/3 ] See, for example, the various provisions quoted or
paraphrased in Brady v. Superior Court, 200 Cal. App. 2d
69 , 80-81, n. 3, 19 Cal. Rptr. 242, 249 n. 3 (1962).

															[ Footnote 3/4 ]

															As this Court recognized in Euclid, even residential
apartments can have a negative impact on an area of single-family
homes.

															"[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 272 U. S.
394 -395.

															[ Footnote 3/5 ]

															Limiting use to single-housekeeping units, like limitations on
the number of occupants, protects the community's interest in
minimizing overcrowding, avoiding the excessive use of municipal
services, traffic control, and other aspects of an attractive
physical environment. See Village of Belle Terre v.
Boraas, 416 U. S. 1 , 416 U. S. 9 .

															[ Footnote 3/6 ] See nn. 431
U.S. 494 fn3/4|>4 and 431
U.S. 494 fn3/5|>5, supra, and also Professor N.
Williams' discussion of the subject in his excellent treatise on
zoning law, 2 American Land Planning Law 349-361 (1974).

															[ Footnote 3/7 ]

															Types of group living which have not fared well under
single-family ordinances include fraternities, Schenectady v.
Alumni Assn., 5 App.Div.2d 14, 168 N.Y.S.2d 754 (1957);
sororities, Cassidy v. Triebel, 337 Ill.App. 117, 85
N.E.2d 461 (1948); a retirement home designed for over 20 people, Kello v. Joint Council of Women's Auxiliaries Welfare
Assn., 265 S.W.2d
374 (Mo.1954); and a commercial therapeutic home for
emotionally disturbed children, Browndale International v.
Board of Adjustment, 60 Wis.2d 182, 208 N.W.2d
121 (1973). These institutional uses are not only inconsistent
with the "single housekeeping unit" concept, but include many more
people than would normally inhabit a single-family dwelling.

															[ Footnote 3/8 ]

															In City of Des Plaines v. Trottner, 34 Ill. 2d
432 , 216 N.E.2d
116 (1966), the Illinois Supreme Court faced a challenge to a
single-family zoning ordinance by a group of four unrelated young
men who occupied a dwelling in violation of the ordinance which
provided that a " family' consists of one or more persons each
related to the other by blood (or adoption or marriage). . . ." Id. at 433, 216 N.E.2d at 117. In his opinion for the
court, Justice Schaefer wrote: "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.

															[ Footnote 3/9 ]

															In White Plains v. Ferraioli, 34 N.Y.2d 300, 313 N.E.2d
756 (1974), the Court of Appeals of New York refused to apply an
ordinance limiting occupancy of single-family dwellings to related
individuals to a "group home" licensed by the State to care for
abandoned and neglected children. The court wrote:

															"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.

															[ Footnote 3/10 ]

															In Kirsch Holding Co. v. Borough of Manasquan, 59 N.J.
241, 252, 281 A.2d
513 , 518 (1971), the Supreme Court of New Jersey reviewed a
complex single-family zoning ordinance designed to meet what the
court recognized to be a pressing community problem. The community,
a seaside resort, had been inundated during recent summers by
unruly groups of summer visitors renting seaside cottages. To solve
the problems of excessive noise, overcrowding, intoxication, wild
parties, and immorality that resulted from these group rentals, the
community passed a zoning ordinance which prohibited seasonal
rentals of cottages by most groups other than "families" related by
blood or marriage. The court found that even though the problems
were severe, the ordinance "preclude[d] so many harmless dwelling
uses" that it became "sweepingly excessive, and therefore legally
unreasonable." Ibid. The court quoted, id. at
252, 281 A.2d at 519, the following language from Gabe Collins
Realty, Inc. v. Margate City, 112 N.J.Super. 341, 349, 271 A.2d 430 , 434 (1970), in a similar case as "equally
applicable here":

															"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."

															[ Footnote 3/11 ]

															A California appellate court, in Brady v. Superior
Court, 200 Cal. App. 2d at 81, 19 Cal. Rptr. at 250, allowed
use of a single-family dwelling by two unrelated students,
noting:

															"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."

															[ Footnote 3/12 ]

															The Supreme Court of Connecticut allowed occupancy of a large
summer home by four related families because the families did "not
occupy separate quarters within the house, [but used] the lodging,
cooking and eating facilities [as] common to all." Neptune Park
Assn. v. Steinberg, 138 Conn.357, 360, 84 A.2d 687, 689
(1951).

															[ Footnote 3/13 ]

															The Supreme Court of Wisconsin, noting that "the letter killeth
but the spirit giveth life," 2 Corinthians 3:6, held that six
priests and two lay brothers constituted a "family," and that their
use, for purely residential purposes of a single-family dwelling
did not violate a single-family zoning ordinance. Missionaries
of Our Lady of LaSalette v. Whitefish Bay, 267 Wis. 609, 66
N.W.2d 627 (1954).

															[ Footnote 3/14 ] Carroll v. Miami Beach, 198 So. 2d 643 (Fla.App. 1967); Robertson v. Western Baptist Hospital, 267
S.W.2d 395 (Ky.App. 1954); Women's Kansas City St. Andrew
Soc. v. Kansas City, 58 F.2d 593 (CA8 1932); University
Heights v. Cleveland Jewish Orphans' Home, 20 F.2d 743 (CA6
1927).

															[ Footnote 3/15 ] Village of Belle Terre v. Boraas, 416 U. S.
1 , is consistent with this line of state authority.
Chief Judge Breitel, in White Plains v. Ferraioli, supra at 304-305, 313 N.E.2d at 758, cogently characterized the Belle
Terre decision upholding a single-family ordinance as one
primarily concerned with the prevention of transiency in a small,
quiet suburban community. He wrote:

															"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."

															[ Footnote 3/16 ]

															Of course, a community has other legitimate concerns in zoning
an area for single-family use, including prevention of overcrowding
in residences and prevention of traffic congestion. A community
which attacks these problems by restricting the composition of a
household is using a means not reasonably related to the ends it
seeks to achieve. See Des Plaines v. Trottner, 34 Ill. 2d
at 435-436, 216 N.E.2d at 118. To prevent overcrowding, a community
can certainly place a limit on the number of occupants in a
household, either in absolute terms or in relation to the available
floor space. Indeed, the city of East Cleveland had on its books an
ordinance requiring a minimum amount of floor space per occupant in
every dwelling. See Nolden v. East Cleveland City Comm'n, 12 Ohio Misc. 205, 232 N.E.2d 421 (Com.Pl.Ct., Cuyahoga Cty.1966).
Similarly, traffic congestion can be reduced by prohibiting
on-street parking. To attack these problems through use of a
restrictive definition of family is, as one court noted, like
"burn[ing] the house to roast the pig." Larson v. Mayor, 99 N.J.Super. 365, 374, 240 A.2d 31 , 36 (1968). More narrowly, a limitation on which of
the owner's grandchildren may reside with her obviously has no
relevance to these problems.

															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 Page 431 U. S. 522 any City official made in the enforcement of any [zoning]
ordinance," so long as appeal is made to the Board within 10 days
of notice of the decision appealed from. § 1311.03.

															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. [ Footnote
4/1 ] Indeed, appellant's counsel makes no claim that the
failure to seek a variance was due to anything other than a
deliberate decision to forgo the administrative process in favor of
a judicial forum. (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." Page 431 U. S. 523 Department of Justice Committee on Revision of the Federal
Judicial System, Report on the Needs of the Federal Courts 1
(1977). The same committee went on to describe the disastrous
effects an exploding caseload has had on the administration of
justice:

															"Overloaded courts . . . mean long delays in obtaining a final
decision and additional expense as court procedures become more
complex in the effort to handle the rush of business. . . . [T]he
quality of justice must necessarily suffer. Overloaded courts,
seeking to deliver justice on time insofar as they can, necessarily
begin to adjust their processes, sometimes in ways that threaten
the integrity of the law and of the decisional process."

															"District courts have delegated more and more of their tasks to
magistrates. . . . Time for oral argument is steadily cut back. . .
. [T]he practice of delivering written opinions is declining."

															" * * * *" ". . . Courts are forced to add more clerks, more administrative
personnel, to move cases faster and faster. They are losing . . .
time for reflection, time for the deliberate maturation of
principles." Id. at 3-4 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 , 303 U. S. 50 -51
(1938), as

															"the long settled rule of judicial administration that no one is
entitled to judicial relief for a supposed or Page 431 U. S. 524 threatened injury until the prescribed administrative remedy has
been exhausted."

															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. [ Footnote 4/2 ]

															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. Page 431 U. S. 525 Indeed, judicial review may be seriously hampered if the
appropriate agency has no chance to apply its experience, exercise
its discretion, or make a factual record reflecting all aspects of
the problem.

															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 Page 431 U. S. 526 on an issue capable of being resolved on a less elevated plane.
Indeed, few concepts have had more faithful adherence in this Court
than the imperative of avoiding constitutional resolution of issues
capable of being disposed of otherwise. Mr. Justice Brandeis put it
well in a related context, arguing for judicial restraint in Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (concurring opinion):

															"[This] Court will not pass upon a constitutional question
although properly presented by the record, if there is also present
some other ground upon which the case may be disposed of. . . .
Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only
the latter."

															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 , 355 U. S.
539 -540 (1958); Allen v. Grand Central Aircraft
Co., 347 U. S. 535 , 347 U. S. 553 (1954); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752 , 331 U. S.
766 -767 (1947); Natural Gas Co. v. Slattery, 302 U. S. 300 , 302 U. S.
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). Page 431 U. S. 527 But so long as favorable administrative action is still
possible, the policies favoring exhaustion are not mitigated in the
slightest by the presence of a constitutional issue. See Christian, supra. To the extent that a nonconstitutional
decision is possible only at the administrative level, those
policies are reinforced. Plainly we have here precisely such a
case. Appearance before the local city Board would have provided an
opportunity for complete relief without forcing a constitutional
ruling. The posture of the constitutional issues in this case thus
provides an additional reason supporting the exhaustion
requirement. 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 331 U. S.
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 , 411 U. S.
574 -575 (1973); see Natural Gas Co., supra at 302 U. S.
309 -311; Schlesinger v. Councilman, 420 U. S. 738 (1975); Aircraft & Diesel Equipment Corp., supra at 331 U. S.
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 Page 431 U. S. 528 the United States. To do otherwise trivializes constitutional
adjudication. [ Footnote 4/3 ]

															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 Page 431 U. S. 529 of administrative relief either as justification for the
original failure to seek it, or as a reason why accountability for
that failure is unreasonable. See Huffman v. Pursue, Ltd., 420 U. S. 592 , 420 U. S. 611 n. 22 (1975). Any other rule would make a mockery of the exhaustion
doctrine by placing no penalty on its violation. 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. [ Footnote 4/4 ] Nor is it
dispositive that the case involves criminal, rather than civil,
penalties. The applicability of the exhaustion principle to bar
challenges to the legality of prosecutions is established even
where, unlike the present case, substantial felony penalties are at
stake. McGee v. United States, 402 U.
S. 479 (1971); Yakus v. United States, 321 U. S. 414 (1944); Falbo v. United States, 320 U.
S. 549 (1944); see McKart v. United States, 395 U. S. 185 (1969). There is far less reason to take into account the criminal
nature of the proceedings when only misdemeanor penalties are
involved. (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 Page 431 U. S. 530 judicial review of an administrative determination by a
subdivision of the State of Ohio. When the question before a
federal court is whether to enforce exhaustion of state
administrative remedies, interests of federalism and comity make
the analysis strikingly similar to that appropriate when the
question is whether federal courts should abstain from interference
with ongoing state judicial proceedings. [ Footnote 4/5 ] In both situations, federal courts are
being requested to act in ways lacking deference to, and perhaps
harmful to, important state interests in order to vindicate rights
which can be protected in the state system, as well as in the
federal. Cf. Wisconsin v. Constantineau, 400 U.
S. 433 , 400 U.S.
439 (1971) (BURGER, C.J., dissenting). The policies
underlying this Court's refusals to jeopardize important state
objectives needlessly in Huffman v. Pursue, Ltd., supra;
Juidice v. Vail, 430 U. S. 327 (1977); and Trainor v. Hernandez, ante p. 431 U. S. 434 ,
argue strongly against action which encourages evasion and
undermining of other important state interests embodied in
regulatory procedures.

															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 420 U. S. 603 ; cf. Younger v. Harris, 401 U. S. 37 , 401 U. S. 41 (1971). A proper respect for state integrity is manifested by and,
in part, dependent on, our reluctance to disrupt state Page 431 U. S. 531 proceedings even when important federal rights are asserted as a
reason for doing so. Where, as here, state law affords an
appropriate "doorstep" vehicle for vindication of the claims
underlying those rights, federal courts should not be called upon
unless those remedies have been utilized. No litigant has a right
to force a constitutional adjudication by eschewing the only forum
in which adequate nonconstitutional relief is possible. Appellant
seeks to invoke federal judicial relief. We should now make clear
that the finite resources of this Court are not available unless
the litigant has first pursued all adequate and available
administrative remedies.

															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.

															[ Footnote 4/1 ]

															Counsel for appellant candidly admitted at oral argument that
"Mrs. Moore did not seek a variance in this case," but argued that
her failure to do so is constitutionally irrelevant. Tr. of Oral
Arg. 20. Thus, this was not an unpublicized administrative remedy
of which appellant remained unaware until after it became
unavailable. Such a case would, of course, present materially
different considerations. Cf. Lambert v. California, 355 U. S. 225 (1957).

															[ Footnote 4/2 ]

															Exhaustion does not deny or limit litigants' rights to a federal
forum

															"because state administrative agency determinations do not
create res judicata or collateral estoppel effects. The
exhaustion of state administrative remedies postpones, rather than
precludes, the assertion of federal jurisdiction."

															Comment, Exhaustion of State Administrative Remedies in Section
1983 Cases, 41 U.Chi.L.Rev. 537, 551 (1974).

															[ Footnote 4/3 ]

															This analysis explains those cases in which this Court has
allowed persons subject to claimed unconstitutional restrictions on
their freedom of expression to challenge that restriction without
first applying for a permit which, if granted, would moot their
claim. E.g., Hynes v. Mayor of Oradell, 425 U.
S. 610 (1976); Shuttlesworth v. Birmingham, 394 U. S. 147 (1969); Staub v. City of Baxley, 355 U.
S. 313 (1958). In each instance, the permit procedure
was itself an unconstitutional infringement on First Amendment
rights. Thus, in those cases irreparable injury -- the loss or
postponement of precious First Amendment rights -- was a
concomitant of the available administrative procedure.

															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 , 355 U. S. 540 (1958). But see Christian v. New York Dept. of Labor, 414 U. S. 614 , 414 U. S. 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.

															[ Footnote 4/4 ]

															To be adequate for exhaustion purposes, an administrative remedy
need not guarantee the litigant sue on the merits in advance. What
is required is a forum with the power to grant relief, capable of
hearing the case with objectivity and dispatch. There is no reason
to doubt that appellant would have received a fair hearing before
the Board.

															[ Footnote 4/5 ] See Parisi v. Davidson, 405 U. S.
34 , 405 U. S. 37 , 40
n. 6 (1972); Public Utilities Comm'n v. United Fuel Co., 317 U. S. 456 (1943); Natural Gas Co. v. Slattery, 302 U.
S. 300 , 302 U. S. 311 (1937); Prentis v. Atlantic Coast Line, 211 U.
S. 210 , 211 U. S. 229 (1908); First Nat. Bank v. Board of County Comm'rs, 264 U. S. 450 (1924); cf. Schlesinger v. Councilman, 420 U.
S. 738 , 420 U. S.
756 -757 (1975). See generally L. Jaffe,
Judicial Control of Administrative Action 437-438 (1965); Fuchs,
Prerequisites to Judicial Review of Administrative Agency Action,
51 Ind. L.J. 817, 861-862 (1976); Comment, Exhaustion of State
Administrative Remedies Under the Civil Rights Act, 8 Ind.L.Rev.
565 (1975).

															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 Page 431 U. S. 532 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 Bell 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. . . ." [ Footnote 5/1 ] 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 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 Page 431 U. S. 533 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. [ Footnote 5/2 ]"

															The appellant, Inez Moore, owns a 2 1/2-story frame house in
East Cleveland. The building contains two "dwelling units."
[ Footnote 5/3 ] 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. [ Footnote 5/4 ] 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. [ Footnote 5/5 ] She received a notice of
violation directing her to Page 431 U. S. 534 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. . . . [ Footnote 5/6 ]"

															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 , 405 U. S. 453 -454."

															416 U.S. at 416 U. S. 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 Page 431 U. S. 535 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 , 357 U. S.
460 -461; Bates v. Little Rock, 361 U.
S. 516 , 361 U. S. 523 ; Shelton v. Tucker, 364 U. S. 479 ; NAACP v. Button, 371 U. S. 415 , 371 U. S.
430 -431; Railroad Trainmen v. Virginia Bar, 377 U. S. 1 ; Kusper v. Pontikes, 414 U. S. 51 , 414 U. S. 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 Page 431 U. S. 536 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 , 321 U. S. 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 , 410 U. S.
152 -154 (woman's right to decide whether to terminate
pregnancy); Loving v. Virginia, 388 U. S.
1 , 388 U. S. 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 , 268 U. S.
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 Page 431 U. S. 537 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. [ Footnote 5/7 ] 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 410 U. S. 152 , quoting Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 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 Page 431 U. S. 538 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 , 253 U. S. 415 )
and bears "a rational relationship to a [permissible] state
objective." Reed v. Reed, 404 U. S.
71 , 404 U. S.
76 ." Village of Belle Terre v. Boraas, 416 U.S. at 416 U. S. 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). [ Footnote 5/8 ]

															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 Page 431 U. S. 539 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 416 U. S. 9 .
[ Footnote 5/9 ]

															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 Page 431 U. S. 540 the discretion of the prosecutor who elected to initiate this
litigation. [ Footnote 5/10 ]

															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 Page 431 U. S. 541 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.

															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.

															[ Footnote 5/1 ]

															East Cleveland Housing Code § 1351.02 (1964).

															[ Footnote 5/2 ]

															East Cleveland Housing Code § 1341.08 (1966).

															[ Footnote 5/3 ]

															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.

															[ Footnote 5/4 ]

															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.

															[ Footnote 5/5 ]

															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).

															[ Footnote 5/6 ]

															East Cleveland Building Code § 1311.02 (1965).

															[ Footnote 5/7 ]

															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.

															[ Footnote 5/8 ]

															The observation of Mr. Justice Holmes quoted in the Belle
Terre opinion, 416 U.S. at 416 U. S. 8 n. 5,
bears repeating here.

															"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 , 277 U. S. 41 (dissenting opinion).

															[ Footnote 5/9 ]

															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.

															[ Footnote 5/10 ]

															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 431 U. S. 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
Theatres, 427 U. S. 50 , 427 U. S. 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 431 U. S. 520 .
This places the burden on the wrong party.

															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. Page 431 U. S. 542 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 , 367 U. S. 540 (1961) (dissenting opinion). These arguments had seemed
"persuasive" to Justices Brandeis and Holmes, Whitney v.
California, 274 U. S. 357 , 274 U. S. 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 , 96 U. S. 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 274 U. S.
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 , 332 U. S. 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 , 381 U. S. 507 (1965) (Black, J., dissenting), and id. at 381 U. S. 499 (Harlan, J., concurring in judgment). Writing at length in dissent
in Poe v. Ullman, supra at 367 U. S. 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; Page 431 U. S. 543 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 , 316 U. S. 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; 347 U.
S. 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 410 U. S.
152 -153, with Eisenstadt v. Baird, supra at 405 U. S.
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 Page 431 U. S. 544 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 381 U. S. 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 preempts 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 Page 431 U. S. 545 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 262 U. S. 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.
Parrish, 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," Page 431 U. S. 546 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 , 408 U. S.
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 , 347 U. S.
499 -500; Stanley v. Illinois, 405 U. S.
645 ." Id. at 408 U. S.
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 431 U. S. 537 . Palko v. Connecticut, 302 U. S. 319 (1937), from which this much-quoted phrase is taken, id. at 302 U. S. 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 410 U. S. 152 ,
and Paul v. Davis, 424 U. S. 693 , 424 U. S. 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 367 U. S. 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." Page 431 U. S. 547 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 262 U. S.
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 Page 431 U. S. 548 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. Parrish, 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 367 U. S. 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 , 94 U. S. 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 Page 431 U. S. 549 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 431 U. S. 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 302 U. S.
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 Page 431 U. S. 550 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 Page 431 U. S. 551 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 (1977), Reed v. Reed, 404 U. S.
71 (1971), and Royster Guano Co. v. Virginia, 253 U. S. 412 , 253 U. S. 415 (1920). Rather, it is the generally applicable standard of McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 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. Page 431 U. S. 552 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.