July 15, 2022
In a 1977 article in the Harvard Law Review, U.S. Supreme Court Justice William Brennan issued a call to state courts to embrace a new role. During the first decades of Brennan’s service, the court had issued a series of expansive interpretations of constitutional provisions related to criminal law, civil rights, etc. In the 1970s, the court’s composition had changed, and at the time Brennan was writing his article, it seemed that the era of an activist court was coming to an end.
Brennan thus applauded, as the summary of the article put it, “new state court activism” that would interpret state constitutions to provide “greater protections than the Supreme Court has held are applicable under the federal Bill of Rights.” What advocates could not convince the U.S. Supreme Court to do, Brennan hoped the state courts would.
Brennan’s call has been criticized as a transparent attempt to secure certain results that were proving difficult to accomplish as the U.S. Supreme Court was shifting. Although Brennan used the language of federalism, he appeared to be more interested in achieving certain policy outcomes using state courts than in the federalism principle of respecting the unique provisions and history of state constitutions.
Brennan’s idea received a practical test in the 1990s and 2000s in the well-known same-sex marriage episode.
Some details of the matter are not as well known, particularly its genesis. Same-sex marriage was first addressed by the Supreme Court, albeit briefly, 50 years ago. (At the time, the law required the court to address many appeals that it can now decline.) The court rejected the claim of a constitutional right to same-sex marriage in a one-sentence opinion.
Following the decision, the federal courts were essentially removed from same-sex marriage debates.
Eventually, as Brennan might have envisioned, advocates of same-sex marriage turned to state courts. They argued that though the federal Constitution had been interpreted not to require recognition of same-sex marriage, state constitutions could be interpreted otherwise.
In a development that did not seem to follow the trajectory of ever-expanding rights, only some of the state high courts followed this legal reasoning. California was one that did, but the people of the state subsequently adopted a constitutional amendment defining marriage as the union of a husband and wife.
With the state strategy falling short in delivering same-sex marriage, the issue returned to the federal courts. In 2015 the Supreme Court revisited its 1972 decision and held that the federal Constitution did require same-sex marriage.
This example helps us understand an ongoing Utah lawsuit.
The U.S. Supreme Court recently ruled that the U.S. Constitution does not prevent states from restricting abortions. Advocates who believe abortion should be considered a constitutional right are turning to state courts in the hopes that these will interpret their state constitutions to invalidate abortion limits.
In Utah, Planned Parenthood of Utah has sued the state. Their argument is that the Utah Constitution should be interpreted to require the state to allow abortions for any reason. Without such a ruling, the law would not allow abortions except in limited circumstances – rape, incest, and the health of the mother – and the only recourse for advocates would be to convince legislators to repeal current protections for unborn children.
In the Utah case, the district court judge has enjoined Utah’s law to preserve the status quo from before the Supreme Court’s Dobbs ruling. The Utah Supreme Court will have to resolve the question of what the state’s constitution requires.
As California’s experience demonstrates, though, this may not be the final word on the issue. The Utah Constitution is much easier to amend than the federal Constitution, and voters and their elected representatives may want to preserve the current protective laws.
Whatever Brennan’s motivation was in encouraging state courts to play a more significant role, their doing so is consistent with our federalist Constitution. It’s a positive development to have more people paying serious attention to the unique language and history of Utah’s state constitution.
Curtis’ remarks highlight a crucial insight for finding workable policy solutions in a time of significant partisan division: build discussions on a foundation of what you can agree on.
At a Sutherland Institute Congressional Series event this week, Rep. Chris Stewart said that if people lose confidence in elections, “you have lost the foundation … for a government and society to survive.” Fortunately, Utahns trust in elections is high.
Speaking at a Sutherland Institute Congressional Series event this week, Rep. Chris Stewart said he believes that federalism is the only way for America to overcome its divisions.