Two Cheers for State Constitutional Law

By Chemerinsky, Erwin | Stanford Law Review, June 2010 | Go to article overview

Two Cheers for State Constitutional Law


Chemerinsky, Erwin, Stanford Law Review


INTRODUCTION
I.  THE LIMITS OF STATE CONSTITUTIONAL LAW
II. SHOULD PROPOSITION 8 BE CHALLENGED AS VIOLATING THE UNITED
    STATES CONSTITUTION IN FEDERAL COURT?
CONCLUSION

INTRODUCTION

The story of marriage equality under state constitutions is quite mixed. The story begins when the Hawaii Supreme Court in Baehr v. Lewin indicated that strict scrutiny should be used for the prohibition of same-sex marriage on the ground it was gender discrimination. (1) The court explained that it was solely a person's sex that kept him or her from marrying someone of the same sex. (2) The Hawaii Court remanded the case to the lower court for the application of strict scrutiny under the Hawaii Constitution's use of this test for gender discrimination. Before this could occur, though, Hawaii voters amended their constitution to prevent marriage equality. (3)

The Vermont Supreme Court found a fight to same-sex civil unions, but not marriage for gay and lesbian couples. (4) The Massachusetts Supreme Judicial Court in a historic ruling interpreted its state constitution to create a constitutional right to marriage equality (5) It rejected that civil unions could substitute for the right of gays and lesbians to marry The New York Court of Appeals, though, rejected marriage equality under its constitution in a four-to-two decision. (6)

The California Supreme Court, by a four-three margin, invalidated that state's ban on same sex marriage only to have its decision overruled about six months later by an initiative, Proposition 8, to amend the state constitution. (7) The Iowa Supreme Court unanimously found that the prohibition of same sex marriage violated the Iowa Constitution. (8)

Meanwhile, over the course of the decade, voters in many states amended their state constitutions to declare that marriage had to be between a man and a woman and thus foreclose any chance of their state courts finding a right to marriage equality. (9) This limits the number of additional states where state supreme courts can interpret their state constitutions to create a right to marriage equality.

The conclusion which I draw from this quick review of history is that state constitutional law is a necessary, but inadequate second best to advancing individual liberties when that cannot be accomplished under the United States Constitution. Ever since the Supreme Court turned sharply to the right with the appointment of four justices by Richard Nixon early in his presidency, liberals have thought of state constitutional law as an alternative. Supreme Court Justice William Brennan in a famous article in the Harvard Law Review in 1977 urged this. (10) Brennan called upon state courts to '"step into the breach" left by the U.S. Supreme Court's retreat from its commitment to the protection of individual rights in the wake of the Nixon appointments to the Court. (11) A wave of scholarship exalting state constitutional law developed. The late Justice Stanley Mosk of the California Supreme Court observed that turning to state constitutions offered something for both liberals and conservatives: it is a way for liberals to have a continuation of the Warren Court's expansion of constitutional rights, while at the same time providing conservatives "the triumph of federalism." (12)

Of course, it is not just in the area of marriage equality that lawyers have turned to state courts and state constitutions to try and accomplish what could not be done under the United States Constitution. For example, after the Supreme Court in 1973 (with all four Nixon appointees in the majority) held in San Antonio Board of Education v. Rodriguez that inequalities in school funding do not violate the Constitution, (13) a number of states found such disparities to violate their state constitutions. (14) Another illustration of this is state courts recognizing a right under state constitutions to use private shopping centers for speech purposes, although the Supreme Court has rejected such a right under the United States Constitution. …

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