Next Frontier for Civil Rights: The States ACLU, Congress Increasingly Turn Away from Federal Courts to Ensure Rights. SUPREME COURT

By Marshall Ingwerson, writer of The Christian Science Monitor | The Christian Science Monitor, October 23, 1991 | Go to article overview

Next Frontier for Civil Rights: The States ACLU, Congress Increasingly Turn Away from Federal Courts to Ensure Rights. SUPREME COURT


Marshall Ingwerson, writer of The Christian Science Monitor, The Christian Science Monitor


FROM rights to housing in Indiana to abortion rights in Michigan, the effort to define and expand civil rights is moving out of the federal court system.

As a conservative Supreme Court withdraws from the frontiers of civil rights and liberties - territory it opened and occupied during the middle of this century - civil libertarians are looking to state governments to carry their banner.

Congress, in the meantime, is taking up defensive positions, seeking to hold ground that federal courts are vacating. On issues from the rights of accused criminals to religious freedom, Congress is trying to roll back Supreme Court decisions of the past few years.

The American Civil Liberties Union, the leading liberal champion of defending and expanding minority rights, would now prefer to avoid the Supreme Court as an unfriendly forum.

"We are finding it more difficult to prevail in the Supreme Court than we did even two years ago," says ACLU national associate legal director Steven Shapiro.

The ACLU is now looking more to state courts and to legislatures - both the US Congress and in the states. It began a strategy group for state legislation a year ago, for example, and is training state lobbyists around the country in "a very deliberate preparation for what we see as a difficult next few years," says Loren Siegel, coordinator of the ACLU's state legislative work group.

To some, this is as it should be. Controversial social issues should be argued in the political arena, not the courts, according to Chuck Donovan, staff director at the conservative Family Research Council.

When the court stretches into territory far from the actual text of laws, as in finding constitutional rights to abortion, he says, it "thwarts popular will and politicizes the court."

Mr. Donovan does not expect conservative values to triumph in the politics of issues such as abortion. Liberal court decisions have created social expectations for abortion rights over the past few decades. But, he adds, "I think states will become experiments in social legislation, and I don't think that's a bad thing."

What is bad, according to ACLU chief legislative counsel Leslie Harris, is that protecting rights through legislatures requires majority support for rights that are sometimes unpopular. "Rights are not supposed to have popular constituencies," she says. Religious Freedom Act

One that has wide support is the right to the free exercise of religion as the federal courts have defined it in recent decades. The Religious Freedom Act is a direct effort to undo a Supreme Court decision of two years ago, Smith v.

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Next Frontier for Civil Rights: The States ACLU, Congress Increasingly Turn Away from Federal Courts to Ensure Rights. SUPREME COURT
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