Two cheers for state constitutional law.

• Author: Chemerinsky, Erwin
• Position: Symposium: State Constitutions

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. (15)

Yet, as someone who cares about civil liberties and civil rights, as a lawyer as well as an academic, I am left with a somewhat ambivalent feeling about state constitutional law. In every area where I would like to see state constitutional rights develop, I would much prefer to see it accomplished under the United States Constitution if possible. If it cannot be done that way, then I am happy to see it done via state constitutions. Even then, I am aware of the tremendous limits on state constitutional law as a way of advancing individual liberties and civil rights.

My point in this Essay is thus straightforward: the ability to protect individual rights through state constitutions is inherently limited. If the goal cannot be accomplished via the United States Constitution, then state constitutional law is a great back-up plan. But discussions of state constitutional law must include this reality; state constitutional law is a second best way to advance individual liberties and civil rights.

I divide this Essay into two parts. In Part I, I describe the inherent limits of state constitutions as a way to protect individual liberties and civil rights. In Part II, I apply this to explain why I believe that Ted Olsen and David Boles made the right choice to bring a challenge to California's Proposition 8 in federal court as violating the United States Constitution.

To be clear, nothing in this essay is at all critical of lawyers who turn to state courts or to state court judges to develop rights under state constitutions. I was thrilled by the decisions of the Massachusetts, California, and Iowa Supreme Courts recognizing state constitutional rights to marriage equality. Sometimes the development of rights under state constitutions is an important step to ultimately achieving national protection. I hope that is true with regard to marriage equality. But I write this Essay to urge caution in generalizing too much from a few pathbreaking decisions about the role of state constitutional law in advancing freedom and equality.

1. THE LIMITS OF STATE CONSTITUTIONAL LAW

   Some of the limits of state constitutional law are obvious, others less so. But it is important to keep them in mind in any discussion of the potential for using state constitutionalism as a way of achieving social change.

   First, it must be remembered that states are limited by Supreme Court decisions which impose constitutional limits on government actions. To take an older example, during the first third of the twentieth century, the Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to protect freedom of contract and struck down state laws that protected employees and consumers, such as minimum wage and maximum hours laws. (16) During this so-called Lochner era, the Court declared almost 200 laws unconstitutional. (17) There is nothing that state courts and state constitutionalism could have done about this. Even a right to set a minimum wage under a state constitution would have been struck down.

   A more recent example would be constitutional limits the Supreme Court has imposed on race-conscious remedies. In Parents Involved in Community Schools v. Seattle School District No. 1, the Court held that school districts may not use race as a factor in assigning students to schools to achieve desegregation unless they meet strict scrutiny. (18) There is nothing any state in its constitution can do to get around this requirement which limits the ability to desegregate public schools.

   In January 2010, the Supreme Court held that corporations have the First Amendment right to spend unlimited amounts of money in election campaigns. (19) There is nothing that can be done to change this via state constitutions because obviously they cannot limit what the Supreme Court deems to be a First Amendment right.

   The point is an important one: state constitutionalism has the ability to protect rights where the Court says that none exist, but no ability to overcome decisions that restrict what governments can do.

   Second, relying on state constitutions never will provide more than partial success in advancing liberties and equality because the chance of succeeding in all states, or even most states, is small. This point is illustrated powerfully by a single example: at most, how many state supreme courts across the country are likely to recognize a constitutional right to marriage equality? Even if there had been no amendments to state constitutions precluding this, it is difficult to imagine it being more than a relative handful of states. When even the New York Court of Appeals refused to recognize such a right, (20) would it be realistic to imagine the South Carolina Supreme Court or the Mississippi Supreme Court or the Oklahoma Supreme Court doing so?

   There are structural reasons to believe that significant advancement of individual liberties is unlikely to occur in most states. In thirty-eight states, state court judges face some form of electoral accountability. (21) In some states, state supreme court justices run in partisan elections. In other states, justices face retention elections. The last two decades have seen a number of state supreme court justices losing their seats because of particular rulings, such as Rose Bird, Joseph Grodin, and Cruz Reynoso in California, Penny White in Tennessee, and David Lanphier in Nebraska. (22) Professor Devins, in an Article m' this" issue, points out that none of the seven states that have recognized. (23) some. form of marriage equality make use of contested judicial elections. Certainly this suggests that states with such systems are very unlikely to recognize such controversial new rights.

   Unquestionably, many...