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
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
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
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. …