Moore's Potential

16 Pages Posted: 30 Mar 2017 Last revised: 18 May 2017

See all articles by June Carbone

June Carbone

University of Minnesota - Twin Cities - School of Law

Naomi Cahn

University of Virginia School of Law

Date Written: 2017

Abstract

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.

Keywords: Children; Zoning; Family Privacy; Poverty

JEL Classification: K19; K36

Suggested Citation

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

June Carbone

University of Minnesota - Twin Cities - School of Law ( email )

229-19th Avenue South
Minneapolis, MN 55455
United States

Naomi R. Cahn (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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