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 His cousin Bradford, with another puritan youth, would have initiated him into the practice of drinking healths. He paid his shot, but left the company; spent a night in religious exercises, and felt a divine call to forsake all his existing associations. This call he obeyed on 9 Sept. 1643. Turning his face southward, he disappeared for nine months, dividing his time between Lutterworth, Northampton, and Newport Pagnel, shunning society and declining religious fellowship. In June 1644 he moved on to Barnet; here he doubted whether he had done right in leaving home, and his religious melancholy deepened towards despair. After a stay at Barnet, he took a lodging in London, and visited his uncle Pickering, a baptist. Hearing that his relatives were troubled at his absence, he at length returned to Drayton.

From that return he dates (Epistles, p. 2) the beginning of his religious community (1644). This, however, is a retrospective judgment. His course was still far from clear. His relatives wished him to marry. Others proposed his joining the ‘auxiliary band’ among the parliamentary forces; this he refused, being ‘tender,’ a word which in his phraseology means religiously affected. He was attracted to Coventry, a puritan stronghold, and found sympathisers there. Returning to Drayton in 1645, he spent something like a year in fruitless resorts to neighbouring clergy. The curate of Drayton, Nathaniel Stephens (rector from 1659), a studious and kindly man, paid much attention to him, but Fox disliked his bringing the subjects of their conversations into the pulpit. He describes Stephens as subsequently his ‘great persecutor,’ an unwarranted expression. The old vicar of Mancetter, Richard Abell, advised him to ‘take tobacco, and sing psalms.’ John Machin, afterwards lecturer at Atherstone, prescribed physic and bleeding; the bleeding was tried without success. He got more satisfaction from his visits of charity among the poor; he had some independent means, whence derived he does not say; he reports without comment the remark of his relatives, ‘When hee went from us hee had a greate deale of gould and sillver about him’ (original manuscript of Journal, p. 17).

During a Sunday morning's walk, early in 1646, the new idea presented itself to him that a minister must be more than a scholar. Henceforward he gave up attendance at church; going rather to the orchard or the fields, with his Bible. For more than a year he wandered about in the midland counties, mixing with separatists of all sorts, but ‘never joined in profession of religion with any.’ The rumour of a ‘fasting woman’ drew him to Lancashire, but his curiosity was soon satisfied. On his way back he visited Dukinfield, a Cheshire village, where, according to Edwards (Gangræna, iii. 164), the earliest independent church in England was organised. Among its members, who had lately (1646) been troubled by a supernatural drum, Fox in 1647 ‘declared truth.’ Sewel marks this as ‘the first beginning of George Fox's preaching.’ It was continued at Manchester, and consisted of ‘few, but powerful and piercing words.’ A conference of baptists and others at Broughton, Leicestershire (probably Broughton-Astley), gave him an opportunity of addressing a large concourse of people. From this time he was much sought after; ‘one Brown’ prophesied great things of him; and when Brown died, Fox lay in a trance, which was a fourteen days' wonder. He attended the religious meetings and discussions which then abounded, usually taking some part. The first mention of his speaking in a ‘steeple-house’ is at a great disputation in Leicester (1648), when ‘presbyterians, independents, baptists, and common-prayer-men’ all took part; the debate came to an abrupt conclusion, but was resumed at an inn. In the same year he first mentions ‘a meeting of Friends,’ at Little Eaton, near Derby.

At this period the mysticism of Fox was not confined to matters of spiritual insight. He claimed to have received direct knowledge of the occult qualities of nature, so that he was ‘at a stand’ in his mind, whether he should ‘practise physick for the good of mankind.’ In this respect, as in some others, he reminds us of Jacob Boehme, whose writings, a contemporary affirms, were ‘the chief books’ bought by Fox's followers (, Looking Glass for G. Fox, 2nd ed. 1756, p. 10). But this phase passed away, and he devoted himself to a spiritual reform. Fox's idealism was not that of the visionary; his mind was strongly set on realities. It was a sore trial to him to reach by degrees the conclusion that the religious disputes of his day, even that between protestant and papist, turned upon trivial matters. With much modesty of conviction, but a daring thoroughness of sincerity, he strove to get at the core of things. Unconventional ways, which he now adopted, his retention of the hat, and disuse of complimentary phrases, were dictated by a manly simplicity. Too much has been made of his peculiarities of dress. He rejected ornaments. His ‘leathern breeches’ are first mentioned by him in his journal under date 1651. Croese makes his whole dress of leather, and Sewel appears to cor-


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 roborate this, denying, however, that it had any connection with ‘his former leather-work.’ For Carlyle's rhapsody (Sartor Resartus iii. 1) on the leathern suit stitched by Fox's own hands there is no foundation.

His first incarceration was at Nottingham in 1649, for the offence of brawling in church. He was described in the charge-sheet as ‘a youth,’ though now in his twenty-fifth year. Though he complains of the foulness of his cell, the action of the authorities was gentle as compared with the fury of the villagers of Mansfield Woodhouse on a similar occasion shortly after. By this time Fox had fairly entered upon a course of aggressive action as an itinerant preacher. He sought an interview (1649) with Samuel Oates and other general baptist preachers, at Barrow-upon-Soar, Leicestershire. Barclay is probably right in inferring (Inner Life, p. 256) that there was enough in common between his objects and their free methods and Arminian views to make him think an approximation possible; but ‘their baptism in water’ stopped the way. It does not appear that Fox's society was recruited from the baptists more largely than from other sects, though it exhibits the influence of baptist ideas. The earliest documentary name for the new society is ‘Children of Light,’ which Barclay traces to a baptist source (ib. p. 262). It was soon, however, superseded by the happy designation of ‘Truth's Friends,’ or ‘Friends of Truth,’ abbreviated into ‘Friends.’ Their popular nickname was given to them at Derby on 30 Oct. 1650 by the wit of Gervase Bennet, a hard-headed oracle of the local bench (, Acts of the Witnesses, 1699, p. 94 sq.) Fox had bidden the magistrates ‘tremble at the word of the Lord,’ whereupon Bennet retorted upon Fox and Fretwell the name of ‘quakers.’ The term got into the House of Commons' journals as early as 1654.

The rise of this body synchronises with the parliamentary attempt to regulate the affairs of the church of England on the Scottish model; the new society was a collective protest against the presbyterian system, as inefficient for purposes of evangelisation. Fox's earliest recorded convert was a middle-aged widow at Nottingham, Elizabeth Hooton [q. v.] (mentioned 1647), who became the first woman preacher in the society. His adherents were soon numbered by thousands. They came for the most part from the lower middle class, drawn not merely from the puritan folds, but from the fringes of all the sects, from ranters, shakers, seekers, and visionaries of all sorts, who brought with them an exuberant emotional piety tending to pantheism, and a marvellous unrestraint of speech. The community exhibited all the signs, mental and physical, of strong religious enthusiasm. Their symbolic acts, grotesque and sometimes gross, were regarded as fanaticism gone mad. With the early characteristics of his society Fox has been often reproached. It is more to the point to observe how by degrees his calmer spirit prevailed over those whom his fervour had attracted, while his genius for organisation reduced to order an otherwise unmanageable mass. His discipline of religious silence had a sobering influence, and the growth of a systematic network of meetings, dependent on each other, induced a sense of corporate responsibility. Barclay notices (Inner Life, p. 11) that, with all its freedom, the society from the first was not ‘independent’ but ‘connexional’ in its character. There is shrewdness in Baxter's remark that the quakers were ‘the ranters revers'd,’ turned from wild extravagances to ‘extream austerity’ (, Abridgement, 1713, p. 102). Baxter ascribes the change to Penn. But the ranter spirit reached its climax and its fall in the Bristol ride (1656) of James Nayler [q. v.], who died in 1660, many years before the adhesion of either Robert Barclay (1667) or William Penn (1668). By this time the Perrot schism (1661–3) had removed the remaining elements of insubordination, and Fox had given final shape to his rules for the management of ‘meetings for discipline’ (printed as ‘Friends Fellowship,’ &c., 1668; reprinted, but not by a quaker, as ‘Canons and Institutions,’ &c., 1669; given in Beck and Ball). The system was completed by the institution of the yearly meeting, first held on 6 Jan. 1669.

In the organisation of his mission Fox had the valuable help of a remarkable woman, whom he afterwards married, Margaret Fell [q. v.], named by Barclay ‘the Lady Huntingdon of the new society’ (Inner Life, p. 259). She had been carried away by the teaching of William Lampett, who then held the perpetual curacy of Ulverston; he is explicitly described by Fox as ‘a ranter’ (original manuscript of Journal, p. 61). It was by degrees that Fox's teaching exerted a regulative influence over her mind. Her first letter to him in 1652 (facsimile in, Quakerism Examined, 1836) has the ranter swell which inflates the well-known letter of John Audland, printed by Leslie (Snake in the Grass, 1698, p. 369). Her husband's residence, Swarthmoor Hall, Lancashire, became the headquarters of the movement, the travelling preachers, of whom Fox had thirty in 1653, sixty in the following year (they usually went out in pairs), sending in their reports to her. At his own expense Fox built and endowed

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 the meeting-house at Swarthmoor, which bears the inscription ‘Ex Dono: G: F. 1688;’ his ‘tryacle’ bible (1541) is here preserved.

The quaker organisation was thus gaining in cohesion and stability during a period of repressive legislation which was fatal to the continuity of corporate life in the other nonconformist sects. Fox waited for no indulgence, and regarded no conventicle act. ‘Now is the time,’ said Fox, ‘for you to stand … go into your meeting-houses as at other times.’ Throughout the interval between the restoration of 1660 and the toleration of 1689 the Friends kept up regular meetings, and their numbers increased. When the preachers were carried to prison, the people met in silence; the lawyers were puzzled to prove such meetings illegal. The meeting-places were nailed up or demolished; they assembled outside or amid the ruins. At Reading (1664) and Bristol (1682) nearly all the adult members were thrown into gaol; the meetings were punctually kept by the children. Equal firmness was shown in the matter of oaths and marriages. Fox's admirable system for the registration of births, marriages, and burials began in 1652, and was probably suggested by the practice of the baptist churches. There was no indiscriminate almsgiving, but a constant effort to improve the condition of the poorer members.

The persistent fidelity of Fox's personal labours can hardly be exaggerated. On his missionary journeys, continued from year to year until his death, he visited nearly every corner in England and Wales. He travelled to Scotland in 1657, to Ireland in 1669, to the West Indies and North America in 1671–1672, to Holland in 1677, and again in 1684. Eight times he suffered imprisonment, the longest period of his incarceration being at Lancaster and Scarborough (1663–6), and the latest at Worcester for nearly fourteen months (1673–4). Among the many public services rendered by the early Friends, that of compelling attention to the hideous condition of the common gaols must not be forgotten. In addition to his work as a preacher Fox found time for a constant stream of publications, sometimes all his own, sometimes produced in conjunction with others. He early perceived (or, as seems probable, Margaret Fell perceived for him) the power of the press as a missionary agency. On 18 Feb. 1653 Margaret writes to her husband begging him to see after the printing of tracts by Fox, Nayler, and John Lawson, which she encloses (, Fells, 2nd edit., 1867, p. 41). In an age of pamphlet-writers the quakers were the most prolific, and in some respects the most virulent, in others the most impressive of pamphleteers. Admitting no weapon but the tongue, they used it unsparingly. In Fox's own pamphlets, though his emotion sometimes renders him inarticulate, there is often a surprising elevation of thought, and an unstudied dignity of expression.

Fox died at the house of Henry Gouldney, in White Hart Court, Gracechurch Street, on Tuesday, 13 Jan. 1691. He was interred on 16 Jan. in Whitecross Street (or Chequer Alley) burying-ground (present entrance in Roscoe Street), near Bunhill Row ( and, London Friends' Meetings, 1869, p. 329). Eleven Friends took part in the funeral service at the meeting-house; four delivered testimonies at the graveside, amid a concourse of four thousand people. A headstone was placed over the grave, but this was removed about 1757, when the body was reinterred in order to facilitate the enlargement of the burial-ground. A stone about six inches square, bearing the initials ‘G. F.,’ was then built into the wall. This also became displaced, and was knocked to pieces as ‘nehushtan’ by Robert Howard (d. January 1812) (ib. p. 331;, Fells, p. 322). When the old graveyard was laid out as a garden (1881) an inscribed headstone, about two feet high, was placed on the supposed site of Fox's grave. In 1872 a small obelisk, with an incorrect inscription, was erected at Drayton, by C. H. Bracebridge of Atherstone Hall.

Fox had no issue of his marriage on 18 Oct. 1669 to Margaret Fell; she was ten years his senior, and had been eleven years a widow. Her ‘testimony’ to him draws a vivid picture of his character. Fox's will (dated October 1688, proved 30 Dec. 1697) disposes of little more than papers and keepsakes. This ‘will’ consists of three distinct autograph papers of direction; in the Spence collection are other signed papers, giving orders for the disposal not only of a thousand acres in Pennsylvania, assigned to Fox by William Penn, but of ‘land and sheep’ (to his brother John Fox of Polesworth), and of money laid out ‘in ships and trade.’ In 1767 his heirs-at-law were the descendants, in Pennsylvania, of his brother John (, Fells, p. 321). Of his ‘bulky person,’ his abstemious ways and little need of sleep, his manners, ‘civil beyond all forms of breeding,’ his ‘awful, living, reverent frame’ in prayer, we have glimpses in Penn's preface to the ‘Journal.’ Leslie speaks of his ‘long, straight hair, like rats' tails’ (Theol. Works, 1721, ii. 357). A painting ascribed to William Honthorst, 1654 (engraved by Holmes), is said to represent Fox at the age of thirty; the face is too young for that age (yet compare the


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 Nottingham description in 1649), the hair curls, and it seems a fancy picture. When lent to the National Portraits Exhibition in 1866, it was in the possession of Mrs. Watkins. A small and rude woodcut without date (reissued by Joseph Smith) is probably an authentic contemporary likeness of Fox in middle age; the visage is homely, massive and dignified. It is evidently the source of later portraits, such as the neat engraving published by W. Darton (1822), of which there is an enlarged reproduction in lithography by Thomas Fairland [q. v.] about 1835. An engraving by Samuel Allen, from a painting by S. Chinn, was published in 1838 (Notes and Queries, 1st ser. vi. 156).

The bibliography of Fox's writings fills fifty-three pages of Smith's ‘Catalogue.’ Most modern readers will be contented with 1. ‘A Journal, or Historical Account of the Life … of … George Fox,’ &c., 1694, fol., a work of the highest interest. A shorter journal, preserved among the manuscripts at Devonshire Square, is described by Barclay (Inner Life, p. 277 sq.). The published journal was revised by a committee, under the superintendence of Penn, and transcribed for the press by Thomas Ellwood [q. v.] Fox had himself (in a paper dated 24 June 1685) named a committee for this purpose, including Ellwood; he says, ‘And ye great jornall of my Life, Sufferings, Travills, and Imprisonments, they may bee put together, they Lye in papers; and ye Little Jornall Books, they may bee printed together in a Book’ (autograph in Spence Collection). The original manuscript (wanting sixteen folios at the beginning) is in the possession of Robert Spence, esq., North Shields; it is not in autograph, but has been dictated to successive amanuenses. After publication, a further revision (24 Sept. 1694) substituted a new leaf for pp. 309–10 (story of Justice Clark); copies with the uncancelled leaf are very scarce. Wilson Armistead's edition, 1852, 2 vols. 8vo, with notes, and divided into chapters, is handy for reference; but it has ‘improvements’ (some of them from Phipps's ‘third edition,’ 1765, fol.) which sometimes miss the sense. An abridgment, by Henry Stanley Newman, ‘Autobiography of George Fox,’ &c. (n.d., preface dated Buckfield, Leominster, 1886), is rather a partisan selection. 2. ‘A Collection of … Epistles,’ &c., 1698, fol. (called ‘the second volume,’ the ‘Journal’ being considered the first). 3. ‘Gospel-Truth … a Collection of Doctrinal Books,’ &c., 1706, fol. This forms a third volume, though it is not so designated. In this and the preceding Fox's principal works will be found, the most important omission being 4. ‘The Great Mistery,’ &c., 1659, fol. There is no complete collection of Fox's writings, the fullest being the Philadelphia edition of the ‘Works,’ 1831, 8 vols. 8vo.

Macaulay's epigram on Fox, as ‘too much disordered for liberty, and not sufficiently disordered for Bedlam,’ is well known. De Morgan admits (Budget of Paradoxes) that, though not a ‘rational,’ Fox was certainly a ‘national’ man. Marsden has done more justice to the intellectual merit of Fox's doctrine of the inner light, which ‘rested upon one idea, the greatest that can penetrate the mind of man: God is a spirit, and they that worship him must worship him in spirit and truth’ (Hist. of the Later Puritans, 1872, p. 240). There can be no question of the healthiness and strength of his moral fibre. It is remarkable that Wesley, who was acquainted with Barclay's ‘Apology,’ never mentions Fox. Yet the early quakerism anticipated methodism in many important points, as well as in the curious detail of conducting the business of meetings by means of answers to queries. The literary skill of the ‘Apology’ has drawn readers to it rather than to Fox's amorphous writings; but for pure quakerism, not yet fixed (1676) in scholastic forms, it is necessary to go to Fox; and the student will be rewarded, as Professor Huxley observed (Nineteenth Century, April 1889), by passages of great beauty and power.

, called for distinction ‘the younger,’ not in years, but ‘the younger in the truth,’ was of Charsfield, Suffolk. He reached independently (about 1651) similar views to those of his namesake, and joined his society, in which he was a preacher. He began to write in 1656. He died at Hurst, Sussex, on 7 July 1661, and was buried at Twineham. His works were collected in a small volume, 1662, 8vo; 2nd edition, enlarged, 1665, 8vo.

[For the facts of Fox's life the great authority is the Journal. Gerard Croese's Historia Quakeriana, 1695; 2nd edit. 1696; English translation, 1696, is based on materials supplied by William Sewel. Sewel's own History, 1722, embodies some few fresh particulars from a paper by Fox, ‘in his lifetime drawn up by his order, at my request, and sent to me.’ Besse's Collection of the Sufferings, 1753; Gough's History, 1789. Among the numerous biographies may be mentioned those of Henry Tuke (1813), William and Thomas Evans (1837), Josiah Marsh (1847) from an Anglican point of view, Samuel M. Janney (1853) a Hicksite friend, John Selby Watson (1860), and A. C. Bickley (1884), with a facsimile letter (2 Oct. 1680) from Fox to Barclay. The Swarthmoor MSS. were first employed by Maria Webb in The Fells of Swarthmoor


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  Hall, 1865, with plates and facsimiles. An able essay on George Fox: his Character, Doctrine, and Work, 1873, by a member of the Society of Friends [Edward Ash, M.D.], deals with the limitations of Fox's mind; a reply, Immediate Revelation True, 1873, was published by George Pitt. In the Inner Life of the Religious Societies of the Commonwealth, 1876, by Robert Barclay (1833–1876) [q. v.], much new light was thrown on Fox's aims and methods, and the genesis of his movement; the writer somewhat over-estimates the direct influence of the ideas of the Mennonite baptists. Joseph Smith's Descriptive Catalogue of Friends' Books, 1867, 2 vols.; Biographical Catalogue, 1888, by Beck, Wells, and Chalkley. Articles by the present writer: Theological Review, January 1874, July 1877. The exact date of Fox's birth is not recoverable: the early registers of Fenny Drayton are lost, and there is no transcript for 1624 in the records of the archdeaconry; the first entry relating to the family is the baptism of Fox's sister Dorothy on 9 April 1626. Use has been made of the Swarthmoor MSS., of the original manuscript of the printed Journal, and of a large number of manuscripts from Swarthmoor in the Spence collection; also of Southey's manuscript Life of Fox (unfinished) in the same collection; and of a contemporary manuscript account of Fox's funeral per C. Elcock; works cited above.]  FOX, GEORGE (1802?–1871), topographer, a native of Pontefract, Yorkshire, carried on the business of a bookseller and stationer, in partnership with his father, John Fox, in Market Place in that town, and was for some years a member of the corporation. He died at his residence, Friar Wood House, on 23 Aug. 1871, aged 69. He compiled an excellent and now scarce ‘History of Pontefract,’ 8vo, Pontefract, 1827, illustrated with plates from his own drawings.

[Pontefract Advertiser, 26 Aug. 1871; Pontefract Telegraph, 26 Aug. 1871; Boyne's Yorkshire Library, pp. 147–8; Pigot's Directories.]  FOX, HENRY, first (1705–1774), younger son of Sir Stephen Fox [q. v.], by his second wife, Christian, daughter of the Rev. Francis Hopes, rector of Haceby, and afterwards of Aswarby, Lincolnshire, was born at Chiswick on 28 Sept. 1705, and was educated at Eton, where he was the contemporary of Pitt, Fielding, and Sir Charles Hanbury Williams. It has been generally asserted that Fox went up to Oxford University, but there is no record of his matriculation in ‘Alumni Oxonienses 1715–1886.’ Indulging recklessly in gambling and other extravagances, he soon squandered the greater part of his private fortune, and went abroad to extricate himself from his pecuniary embarrassments. Upon his return to England Fox was elected to parliament for the borough of Hindon in Wiltshire in February 1735. Being by profession a whig he attached himself to Sir Robert Walpole, whom he served with unswerving fidelity, and was quickly rewarded for his services with the post of surveyor-general of works, to which he was appointed on 17 June 1737. At the general election in 1741 Fox was returned for the borough of Windsor, for which he continued to sit until the dissolution in March 1761. Upon the fall of Walpole in 1742 Fox resigned office, but was appointed a lord of the treasury in the Pelham administration on 25 Aug. 1743. After holding this post nearly three years he was appointed secretary at war in May 1746, and was admitted a member of the privy council on 23 July following. During the debate on the Regency Bill in 1751, Fox repelled with great warmth an attack made on his patron, the Duke of Cumberland, by Pitt. So incensed was Fox with his colleague's speech that he left the house without voting. When Pelham, remonstrating with him afterwards, told him that he had not spoken like himself, Fox spiritedly replied, ‘Had I indeed spoken like myself I should have said ten times more against the bill.’ In 1753 he attacked Lord Hardwicke, whom he had never forgiven for deserting Sir Robert Walpole. When the lord chancellor's Marriage Bill appeared in the commons, Fox vehemently opposed it, and neither spared the bill nor the author of it (Parl. Hist. xv. 67–74). Upon the death of Pelham in March 1754, the Duke of Newcastle opened negotiations with Fox, through the Marquis of Hartington. It was proposed that Fox should be secretary of state with the lead of the House of Commons, but that the disposal of the secret service money should be left in the hands of the first lord of the treasury, who should keep Fox informed of the way in which the fund was employed. In his interview with Fox, however, the duke declared that he should not disclose to any one how he employed the secret service money. Fox refused to accept these altered terms, but promised to remain in the administration as secretary at war. But though Fox continued in office it can hardly be said that he continued to support the ministry. Reconciled by a common enmity, Fox and Pitt combined in seizing every opportunity which arose during the debate for the purpose of making Sir Thomas Robinson, the newly appointed secretary of state, ridiculous. The covert sarcasms of Fox and the open denunciations of Pitt quickly rendered Newcastle's position intolerable, and in


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Moore v. City of East Cleveland

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. 498-506; 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. 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. 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. 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 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, 501 (Harlan, J., concurring). The history and tradition of this Nation compel a larger conception of the family. Pp. 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. 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. Stevens, J., filed an opinion concurring in the judgment. Burger, C. J., filed a dissenting opinion. Stewart, J., filed a dissenting opinion, in which Rehnquist, J., joined. White, J., filed a dissenting opinion.

Edward R. Stege, Jr., argued the cause for appellant. With him on the brief were Francis D. Murtaugh, Jr., and Lloyd B. Snyder.

Leonard Young argued the cause for appellee. With him on the brief was Henry B. Fischer.

title: Moore v. City of East Cleveland


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Moore v. City of East Cleveland/Opinion of the Court

Mr. Justice Powell announced the judgment of the Court, and delivered an opinion in which Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Blackmun joined.

East Cleveland's housing ordinance, like many throughout the country, limits occupancy of a dwelling unit to members of a single family. § 1351.02. But the ordinance contains an unusual and complicated definitional section that recognizes as a "family" only a few categories of related individuals. § 1341.08. 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.

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 came to live with his grandmother and with the elder and younger Dale Moores after his mother's death.

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

When thus examined, this ordinance cannot survive. The city seeks to justify it as a means of preventing overcrowding, 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. 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 of parents to the custody and companionship of their own children, Stanley v. Illinois, supra, or with traditional parental authority in matters of child rearing 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,F 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. No formula could serve as a substitute, in this area, for judgment and restraint.

"...[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 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. 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.

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." Griswold v. Connecticut, 381 U.S., at 501 (Harlan, J., concurring). See generally Ingraham v. Wright, 430 U.S. 651, 672-674, and nn. 41, 42 (1977); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-163 (1951) (Frankfurter, J., concurring); Lochner v. New York, 198 U.S. 45, 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. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.

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. Over the years millions 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 child rearing, 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. 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.

Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree 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 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.


text:
Moore v. City of East Cleveland/Concurrence Brennan

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 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. I do not question that a municipality may constitutionally zone to 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. 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, 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 504. The line drawn by this ordinance 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, 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.

The "extended" form is especially familiar among black families. 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. Even in husband and wife households, 13% of black families compared with 3% of white families include relatives under 18 years old, in addition to the couple's own children. 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.

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. 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 relationships. For the "private realm of family life which the state cannot enter," recognized as protected in Prince v. Massachusetts, 321 U.S. 158, 166 (1944), was the relationship of aunt and niece. And in Pierce v. Society of Sisters, 268 U.S. 510, 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, 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 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 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 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 life-style 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), 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 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, 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, 647-649 (1972); Staub v. City of Baxley, 355 U.S. 313, 319 (1958).


text:
Moore v. City of East Cleveland/Concurrence Stevens

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 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, morals, or general welfare." Id., at 395 (emphasis added). This principle was applied in Nectow v. Cambridge, 277 U.S. 183; on the basis of a specific finding made by the state trial court that "the health, safety, convenience and general welfare of the inhabitants of the part of the city affected" would not be promoted by prohibiting the landowner's contemplated use, this Court held that the zoning ordinance as applied was unconstitutional. Id., at 188.

With one minor exception, 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 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, they contain three principal types of restrictions. First, they define the kind of structure that may be erected on vacant land. Second, they require that a single-family home be occupied only by a "single housekeeping unit." Third, they often 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, 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. Nevertheless, in well-reasoned opinions, the courts of Illinois, New York, New Jersey, California, Connecticut, Wisconsin, and other jurisdictions, have permitted unrelated persons to occupy single-family residences notwithstanding an ordinance prohibiting, either expressly or implicitly, such occupancy.

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 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.

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. 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 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.


text:
Moore v. City of East Cleveland/Dissent Burger

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 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. 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." 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, 50-51 (1938), as

"the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or 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.

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. 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 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, 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, 539-540 (1958); Allen v. Grand Central Aircraft Co., 347 U.S. 535, 553 (1954); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 766-767 (1947); Natural Gas Co. v. Slattery, 302 U.S. 300, 309-311 (1937); Fuchs, Prerequisites to Judicial Review of Administrative Agency Action, 51 Ind. L. J. 817, 883 (1976).

Of course, if administrative authority fails to afford relief, further exhaustion is pointless and judicial relief may be available. See Weinberger v. Salfi, 422 U.S. 749 (1975). 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 773.

But there is every reason to require resort to administrative remedies "where the individual charged is to be deprived of nothing until the completion of [the administrative] proceeding." Gibson v. Berryhill, 411 U.S. 564, 574-575 (1973); see Natural Gas Co., supra, at 309-311; Schlesinger v. Councilman, 420 U.S. 738 (1975); Aircraft & Diesel Equipment Corp., supra, at 773-774. The focus must be on the adequacy of the administrative remedy. If the desired relief may be obtained without undue burdens, and if substantial rights are protected as the process moves forward, no harm is done by requiring the litigant to pursue and exhaust those remedies before calling on the Constitution of the United States. To do otherwise trivializes constitutional adjudication.

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 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, 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. 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 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. 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, 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. 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 603; cf. Younger v. Harris, 401 U.S. 37, 41 (1971). A proper respect for state integrity is manifested by and, in part, dependent on, our reluctance to disrupt state 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.


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Moore v. City of East Cleveland/Dissent Stewart

Mr.Justice Stewart, with whom Mr. Justice Rehnquist joins, dissenting.

In Village of Belle Terre v. Boraas, 416 U.S. 1, the Court considered a New York village ordinance that restricted land use within the village to single-family dwellings. That ordinance defined "family" to include all persons related by blood, adoption, or marriage who lived and cooked together as a single-housekeeping unit; it forbade occupancy by any group of three or more persons who were not so related. We held that the ordinance was a valid effort by the village government to promote the general community welfare, and that it did not violate the Fourteenth Amendment or infringe any other rights or freedoms protected by the Constitution.

The present case brings before us a similar ordinance of East Cleveland, Ohio, one that also limits the occupancy of any dwelling unit to a single family, but that defines "family" to include only certain combinations of blood relatives. The question presented, as I view it, is whether the decision in Belle Terre is controlling, or whether the Constitution compels a different result because East Cleveland's definition of "family" is more restrictive than that before us in the Belle Terre case.

The city of East Cleveland is a residential suburb of Cleveland, Ohio. It has enacted a comprehensive Housing Code, one section of which prescribes that "[t]he occupancy of any dwelling unit shall be limited to one, and only one, family...." The Code defines the term "family" as follows:

"'Family' means a number of individuals related to the nominal head of the household or to the spouse of the nominal head of the household living as a single house-keeping unit in a single dwelling unit, but limited to the following:

"(a) Husband or wife of the nominal head of the household.

"(b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household, provided, however, that such unmarried children have no children residing with them.

"(c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household.

"(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child. For the purpose of this subsection, a dependent person is one who has more than fifty percent of his total support furnished for him by the nominal head of the household and the spouse of the nominal head of the household.

"(e) A family may consist of one individual."

The appellant, Inez Moore, owns a 2 1/2-story frame house in East Cleveland. The building contains two "dwelling units." At the time this litigation began Mrs. Moore occupied one of these dwelling units with her two sons, John Moore, Sr., and Dale Moore, Sr., and their two sons, John, Jr., and Dale, Jr. These five persons constituted more than one family under the ordinance.

In January 1973, a city housing inspector cited Mrs. Moore for occupation of the premises by more than one family. She received a notice of violation directing her to correct the situation, which she did not do. Sixteen months passed, during which the city repeatedly complained about the violation. Mrs. Moore did not request relief from the Board of Building Code Appeals, although the Code gives the Board the explicit power to grant a variance "where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of any ordinance...." Finally, in May 1974, a municipal court found Mrs. Moore guilty of violating the single-family occupancy ordinance. The court overruled her motion to dismiss the charge, rejecting her claim that the ordinance's definition of "family" is invalid on its face under the United States Constitution. The Ohio Court of Appeals affirmed on the authority of Village of Belle Terre v. Boraas, and the Ohio Supreme Court dismissed Mrs. Moore's appeal.

In my view, the appellant's claim that the ordinance in question invades constitutionally protected rights of association and privacy is in large part answered by the Belle Terre decision. The argument was made there that a municipality could not zone its land exclusively for single-family occupancy because to do so would interfere with protected rights of privacy or association. We rejected this contention, and held that the ordinance at issue "involve[d] no 'fundamental' right guaranteed by the Constitution, such as...the right of association, NAACP v. Alabama, 357 U.S. 449;...or any rights of privacy, cf. Griswold v. Connecticut, 381 U.S. 479; Eisenstadt v. Baird, 405 U.S. 438, 453-454." 416 U.S., at 7-8.

The Belle Terre decision thus disposes of the appellant's contentions to the extent they focus not on her blood relationships with her sons and grandsons but on more general notions about the "privacy of the home." Her suggestion that every person has a constitutional right permanently to share his residence with whomever he pleases, and that such choices are "beyond the province of legitimate governmental intrusion," amounts to the same argument that was made and found unpersuasive in Belle Terre.

To be sure, the ordinance involved in Belle Terre did not prevent blood relatives from occupying the same dwelling, and the Court's decision in that case does not, therefore, foreclose the appellant's arguments based specifically on the ties of kinship present in this case. Nonetheless, I would hold, for the reasons that follow, that the existence of those ties does not elevate either the appellant's claim of associational freedom or her claim of privacy to a level invoking constitutional protection.

To suggest that the biological fact of common ancestry necessarily gives related persons constitutional rights of association superior to those of unrelated persons is to misunderstand the nature of the associational freedoms that the Constitution has been understood to protect. Freedom of association has been constitutionally recognized because it is often indispensable to effectuation of explicit First Amendment guarantees. See ''NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461; Bates v. Little Rock, 361 U.S. 516, 523; Shelton v. Tucker, 364 U.S. 479; NAACP v. Button, 371 U.S. 415, 430-431; Railroad Trainmen v. Virginia Bar, 377 U.S. 1; Kusper v. Pontikes'', 414 U.S. 51, 56-61; cf. Edwards v. South Carolina, 372 U.S. 229. But the scope of the associational right, until now, at least, has been limited to the constitutional need that created it; obviously not every "association" is for First Amendment purposes or serves to promote the ideological freedom that the First Amendment was designed to protect.

The "association" in this case is not for any purpose relating to the promotion of speech, assembly, the press, or religion. And wherever the outer boundaries of constitutional protection of freedom of association may eventually turn out to be, they surely do not extend to those who assert no interest other than the gratification, convenience, and economy of sharing the same residence.

The appellant is considerably closer to the constitutional mark in asserting that the East Cleveland ordinance intrudes upon "the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166. Several decisions of the Court have identified specific aspects of what might broadly be termed "private family life" that are constitutionally protected against state interference. See, e. g., Roe v. Wade, 410 U.S. 113, 152-154 (woman's right to decide whether to terminate pregnancy); Loving v. Virginia, 388 U.S. 1, 12 (freedom to marry person of another race); Griswold v. Connecticut, 381 U.S. 479; Eisenstadt v. Baird, 405 U.S. 438 (right to use contraceptives); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (parents' right to send children to private schools); Meyer v. Nebraska, 262 U.S. 390 (parents' right to have children instructed in foreign language).

Although the appellant's desire to share a single-dwelling unit also involves "private family life" in a sense, that desire can hardly be equated with any of the interests protected in the cases just cited. The ordinance about which the appellant complains did not impede her choice to have or not to have children, and it did not dictate to her how her own children were to be nurtured and reared. The ordinance clearly does not prevent parents from living together or living with their unemancipated offspring.

But even though the Court's previous cases are not directly in point, the appellant contends that the importance of the "extended family" in American society requires us to hold that her decision to share her residence with her grandsons may not be interfered with by the State. This decision, like the decisions involved in bearing and raising children, is said to be an aspect of "family life" also entitled to substantive protection under the Constitution. Without pausing to inquire how far under this argument an "extended family" might extend, I cannot agree. When the Court has found that the Fourteenth Amendment placed a substantive limitation on a State's power to regulate, it has been in those rare cases in which the personal interests at issue have been deemed "'implicit in the concept of ordered liberty.'" See Roe v. Wade, supra, at 152, quoting Palko v. Connecticut, 302 U.S. 319, 325. The interest that the appellant may have in permanently sharing a single kitchen and a suite of contiguous rooms with some of her relatives simply does not rise to that level. To equate this interest with the fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Due Process Clause beyond recognition.

The appellant also challenges the single-family occupancy ordinance on equal protection grounds. Her claim is that the city has drawn an arbitrary and irrational distinction between groups of people who may live together as a "family" and those who may not. While acknowledging the city's right to preclude more than one family from occupying a single-dwelling unit, the appellant argues that the purposes of the single-family occupancy law would be equally served by an ordinance that did not prevent her from sharing her residence with her two sons and their sons.

This argument misconceives the nature of the constitutional inquiry. In a case such as this one, where the challenged ordinance intrudes upon no substantively protected constitutional right, it is not the Court's business to decide whether its application in a particular case seems inequitable, or even absurd. The question is not whether some other ordinance, drafted more broadly, might have served the city's ends as well or almost as well. The task, rather, is to determine if East Cleveland's ordinance violates the Equal Protection Clause of the United States Constitution. And in performing that task, it must be borne in mind that "[w]e deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be '"reasonable, not arbitrary"' (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415) and bears 'a rational relationship to a [permissible] state objective.' Reed v. Reed, 404 U.S. 71, 76." Village of Belle Terre v. Boraas, 416 U.S. at 8. "[E]very line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function." Ibid. (footnote omitted).

Viewed in the light of these principles, I do not think East Cleveland's definition of "family" offends the Constitution. The city has undisputed power to ordain single-family residential occupancy. Village of Belle Terre v. Boraas, supra; Euclid v. Ambler Realty Co., 272 U.S. 365. And that power plainly carries with it the power to say what a "family" is. Here the city has defined "family" to include not only father, mother, and dependent children, but several other close relatives as well. The definition is rationally designed to carry out the legitimate governmental purposes identified in the Belle Terre opinion: "The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." 416 U.S., at 9.

Obviously, East Cleveland might have as easily and perhaps as effectively hit upon a different definition of "family." But a line could hardly be drawn that would not sooner or later become the target of a challenge like the appellant's. If "family" included all of the householder's grandchildren there would doubtless be the hard case of an orphaned niece or nephew. If, as the appellant suggests, a "family" must include all blood relatives, what of longtime friends? The point is that any definition would produce hardships in some cases without materially advancing the legislative purpose. That this ordinance also does so is no reason to hold it unconstitutional, unless we are to use our power to interpret the United States Constitution as a sort of generalized authority to correct seeming inequity wherever it surfaces. It is not for us to rewrite the ordinance, or substitute our judgment for the discretion of the prosecutor who elected to initiate this litigation.

In this connection the variance provisions of East Cleveland's Building Code assume special significance, for they show that the city recognized the difficult problems its ordinances were bound to create in particular cases, and provided a means to solve at least some of them. Section 1311.01 of the Code establishes a Board of Building Code Appeals. Section 1311.02 then provides, in pertinent part:

"The Board of Building Code Appeals shall determine all matters properly presented to it and where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of any ordinance for which it is designated as the Board of Appeals, such Board shall have the power to grant variances in harmony with the general intent of such ordinance and to secure the general welfare and substantial justice in the promotion of the public health, comfort, convenience, morals, safety and general welfare of the City."

The appellant did not request a variance under this section, although she could have done so. While it is impossible to know whether such a request would have been granted, her situation appears to present precisely the kind of "practical difficulties" and "unnecessary hardships" that the variance provisions were designed to accommodate.

his is not to say that the appellant was obligated to exhaust her administrative remedy before defending this prosecution on the ground that the single-family occupancy ordinance violates the Equal Protection Clause. In assessing her claim that the ordinance is "arbitrary" and "irrational," however, I think the existence of the variance provisions is particularly persuasive evidence to the contrary. The variance procedure, a traditional part of American land-use law, bends the straight lines of East Cleveland's ordinances, shaping their contours to respond more flexibly to the hard cases that are the inevitable byproduct of legislative linedrawing.

For these reasons, I think the Ohio courts did not err in rejecting the appellant's constitutional claims. Accordingly, I respectfully dissent.