In the wake of the Supreme Court’s edict allowing enforcement of parts of President Trump’s revised travel ban, the State Department issued guidelines effective Thursday night covering those foreign visitors who are allowed to enter the U.S., and those who can be excluded. The Court said the ban could not be enforced against anyone who had a “bona fide relationship” with a person or entity in the U.S. The new guidelines from the State Department define such relationships as covering “close family” members, which includes parents, spouses, children, siblings, sons and daughters-in-law, and step relationships. However, the guidelines exclude from “close family” relationships grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers and sisters-in-law, and other “extended” family members.
By creating these arbitrary categories of family relationships, the guidelines are likely unconstitutional as violating due process. For over a century the Supreme Court has protected close family relationships from arbitrary interference by government. Several landmark decisions protected under due process the fundamental right of parents to raise and educate their children; the right of persons to marry regardless of race or gender; and the right of person to live together as a family that transcends the tradition of the limited “nuclear” family. The Court has recognized that the conception of “family” over the years has changed dramatically. Conditions of modern society have also broadened definition of families so that today millions of Americans live in and have grown up in families that go beyond the nuclear family and include grandparents, uncles, aunts, and cousins.
The Court has often observed that the “extended” family, especially grandparents sharing the household with parents and children, has roots in American society as deep and venerable as the nuclear family. Moreover, especially in times of adversity such as the death of a parent, these surrogate parents often assume the major responsibility in the rearing of children. The extended family thus has been formed explicitly for mutual sustenance and to rebuild and preserve a secure and productive home life.
By slicing into this broader conception of the family, the State Department’s guidelines appear to have arbitrarily cut off protections of family rights at the boundary of the nuclear family. Importantly, the guidelines do not explain why the government has selected certain categories of family relationships for protection and excluded others. For example, the guidelines on their face make categorical distinctions: a son-in-law is protected but a grandparent is not. A step-son is protected but an aunt or uncle is not. Even under a court’s most deferential test of constitutionality, it is difficult to discern any rational basis for the State Department’s classifications.
The constitution’s recognition of the liberty of close relatives to draw together and share the same household found its most articulate and eloquent expression in a 1977 decision by the Supreme Court, Moore v. City of East Cleveland. A housing ordinance regulated who was allowed to live in a single-family dwelling that limited the occupancy to members of a “family.” However, the ordinance defined the family narrowly to include only a few categories of related individuals such as parents and children but excluded from the definition grandparents and grandchildren. Inez Moore was caring for her grandson after his mother was killed. The city served notice that Ms. Moore was an “illegal occupant.” She was convicted and sentenced to five days in jail and a $25 fine.
The Supreme Court reversed the conviction. In an opinion by Justice Lewis Powell, the Court recognized the existence of a “private realm of family life which the state cannot enter.” The Court observed that one of the postulates on which this country was built was the protection of the sanctity of the family precisely because the institution of the family is so deeply rooted in this nation’s history and tradition. Indeed, the Court said, “it is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.”
The Court rejected Cleveland’s argument that the ordinance was necessary to prevent overcrowding, minimize traffic and parking congestion, and avoid undue burdens on the school system. Although these interests are legitimate, they only marginally serve these interests. Indeed, a single family of two parents with a dozen children would impose far greater burdens on the city than would Ms. Moore and her grandson. Notably, the State Department’s guidelines provide no explanation or justification for its classifications.
The powerful concurring opinion of Justice William Brennan, joined by Justice Thurgood Marshall, described the nuclear family as the pattern so often found in much of white suburbia, while the extended family has become a beachhead for successive waves of immigrants seeking shelter and a new life. The extended family in Justice Brennan’s view provided generations of immigrants with social services and economic support in times of hardship, particularly in times of brutal economic necessity when the extended family becomes a prominent pattern virtually as a means of survival for large numbers of poor and deprived minorities in our society. For them, compelled pooling of scant resources requires compelled sharing of a household.
Given the Supreme Courts’ recognition that the extended family, defined to include specifically grandparents, and most likely uncles, and aunts, deserves constitutional protection, it follows that the State Department cannot rely on the guidelines as written to enforce the Travel Ban and needs to carefully explain why these persons are excluded from its definition of “close family.” Otherwise, the government’s classification is arbitrary and violates due process.