This article was written as a contribution to the Fordham Law Review Symposium entitled Moore Kinship. It examines the various Supreme Court opinions in Moore v. City of East Cleveland to show how they foreshadow the tension between the growing desire of individuals to define “family” in terms of their own choosing and the state’s power to define what constitutes a legitimate family form and, thus, to decide who is entitled to state support. As the article notes, Moore is a methodologically conservative opinion that celebrates the traditional institution of the family through the vehicle of a grandmother-headed extended family. In this sense, Moore has much in common with Obergefell v. Hodges, which reconciled an alternative family with mainstream institutions.
The various opinions in Moore saw the grandmother-headed family structure as a fallback option that served as a privatized form of insurance to provide for children in times of financial or other family stress. Thus, while crafting an opinion that does not challenge the deference due to land use decisions, the Justices also avoided laying a foundation for alternative families to claim state support in either practical or doctrinal terms.
On the other hand, writing only for himself, Justice Stevens issued what is probably the most far-reaching opinion, concurring only in the judgment. While his concurrence is viewed as idiosyncratic, Stevens may well have anticipated later judicial developments in his desire to avoid a publicly imposed definition of family. He framed the case in terms of the arbitrariness of the city’s ordinance. He accorded Moore constitutional protection as a homeowner, rather than on the basis of her family form.
Today, as much as in 1979, there is no agreement about whether the relationship between the constitution of family and the constitution of community should involve a red embrace of established values in the public square or a blue celebration of individual choice coupled with the construction of communities designed to support all of our children.
GW Paper Series
GWU Law School Public Law Research Paper No. 2017-19; GWU Legal Studies Research Paper 2017-19
Carbone, June and Cahn, Naomi R., Moore's Potential (2017). June Carbone & Naomi Cahn, Moore’s Potential, 85 Fordham L. Rev. 2589 (2017).; GWU Law School Public Law Research Paper No. 2017-19; GWU Legal Studies Research Paper No. 2017-19. Available at SSRN: https://ssrn.com/abstract=2942273 or http://dx.doi.org/10.2139/ssrn.2942273