The “Independent Protective Force” of State Constitutions, from Goodridge to Planned Parenthood South Atlantic: Recalling Justice Brennan’s Admonition

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Linda C. McClain

In 1977, Justice William Brennan published State Constitutions and the Protection of Individual Rights, reminding readers that state constituions were a “font of individual liberties,” with their protections often extending beyond the U.S. Supreme Court’s interpretation of federal constitutional law.  Observing that the Court was pulling back from the trend—in the 1960s—of protecting individual liberties, Justice Brennan found it significant that, “Of late, . . . more and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection that the federal provisions, even those identically phrased.” Brennan offered examples of the independent jurisprudence of state courts, and also opined that state courts interpreting their own constitutions could “breathe new life” into understandings of comparable federal clauses and could assert a “position of prominence in the struggle to protect the people of our nation from governmental intrusion on their freedoms.” Reflecting on constitutional theory today, as Balkinization turns twenty, I find Justice Brennan’s words timely and powerful.

In this post, I look back to a landmark state constitutional decision from twenty years ago, Goodridge v. Department of Public Health, in which Chief Justice Margaret Marshall, of the Supreme Judicial Court of Massachusetts, wove together important U.S. Supreme Court liberty and equality precedents with state constitutional guarantees to hold that to bar an individual from “the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same-sex violates the Massachusetts Constitution.” Chief Justice Marshall’s beautifully crafted opinion, in turn, provided a template for Justice Kennedy’s opinion in Obergefell v. Hodges, with a similar holding under the U.S. Constitution. I then look forward to the South Carolina’s recent decision, Planned Parenthood South Atlantic v. South Carolina, holding that the right to privacy guaranteed in South Carolina’s constitution includes the decision to terminate a pregnancy and that South Carolina’s Fetal Heartbeat and Protection from Abortion Act was an “unreasonable restriction” upon “a woman’s right to privacy.”  Writing for the majority, Justice Kaye G. Hearn pointedly noted that, because Dobbs v. Jackson Women’s Health Organization criticized Roe v. Wade for resting on a right to “privacy” that (Justice Alito wrote) nowhere appeared in the text of the U.S. Constitution, Dobbs “does not control, or even shed light on our decision today” because of the express inclusion of the right of privacy in the South Carolina Constitution.  I consider the convergence and divergence of federal and state constitutional protections in these two state cases and possible implications for the next two decades of constitutional theory and the pursuit of constitutional justice.

In Goodridge, Chief Justice Marshall  suggested the convergence of federal and state constitutional protection while also echoing Justice Brennan in speaking of the Massachusetts Constitution as a font of protection of individual liberty: “The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language.” That state constitutions could be “more protective of liberty interests” than the Federal Constitution, she added, was part of the fundamental “vigor” of a system in which state courts were “absolutely free to interpret state constitutional provisions to accord greater protections to individual rights than do similar provisions of the United States Constitution” (citing Arizona v. Evans (1995)). 

On the one hand, Chief Justice Marshall enlisted some of the classic U.S. Supreme Court cases on civil marriage as a fundamental right—Loving v. Virginia, Skinner v. Oklahoma, and Zablocki v. Redhail. But she also wove in rhetoric about the right to marry from then-recent state constitutional decisions in which same-sex couples had challenged restrictive marriage laws: Baehr v. Lewin (Hawai’i, 1993) and Baker v. State (Vermont, 1999). Marshall referred to the expansive scope of liberty and equality under the Massachusetts Constitution, explaining—pertinent to the right to marry—that it protected both “‘freedom from’ unwarranted government intrusion into protected spheres of life and ‘freedom to’ partake in benefits created by the State for the common good.”  But she then referred to landmark federal precedents, including not only right to marry cases but also reproductive rights cases (Roe v. Wade and Planned Parenthood v. Casey) and, notably, Lawrence v. Texas for the point that, “whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family” are “among the most basic of every individual’s liberty and due process rights” (emphasis added).

When I teach and write about Goodridge, I point out how Lawrence—decided earlier that same year—and Casey (on which Lawrence drew)  provided an important building block for Chief Justice Marshall’s opinion; in turn, both the rhetoric and reasoning of Goodridge provided a template for Justice Kennedy’s opinion in Obergefell. On the first direction of influence, Marshall begins Goodridge with a statement about the relationship between moral views and constitutional liberty similar to those made in the joint opinion in Casey and in Kennedy’s opinion in Lawrence. She notes, on the one hand, that “many people” hold “deep-seated religious, moral, and ethical convictions” that “marriage should be limited to the union of one man and one woman” and that “homosexual conduct is immoral,” while many hold “equally strong” convictions that same-sex couples “are entitled to be married” and gay and lesbian persons “should be treated no differently than their heterosexual neighbors.” However, she instructs, those views don’t answer the constitutional question before the court, for: “Our obligation is to define the liberty of all, not to mandate our own moral code” (quoting Lawrence, in turn, quoting Casey).

            Immediately after setting the stage in this way, Chief Justice Marshall returns to the theme of the independent protective force of state constitutions. She first notes that  Lawrence (which struck down Texas’s law banning only “same-sex” “deviate sexual intercourse”) “left open” as a matter of federal constitutional law whether the Fourteenth Amendment protected the right of same-sex couples to marry, even as it “affirmed the core concept of common human dignity” that the Amendment protected. Facing the question as one of first impression for a Massachusetts appellate court, Chief Justice Marshall emphasized that the Massachusetts Constitution is, “if anything, more protective of individual liberty and equality than the Federal Constitution” and “may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life.”

Obergefell, twelve years later, echoed the Goodridge opinion, several times quoting it directly. Perhaps most significantly, even as Goodridge approached arguments about history and tradition by stressing that, “[A]s a public institution and a right of fundamental importance, civil marriage is an evolving paradigm.” Compare Obergefell,  which stressed both marriage as a vital personal choice and a basic social institution: “The history of marriage is one of both continuity and change. That institution . . . has evolved over time.”  Similar to Goodridge, Obergefell wrote of significant changes to the institution of marriage (such as the demise of coverture’s gender hierarchy and antimiscegenation laws). Similarly, it spoke of same-sex couples seeking to partake of marriage rather than to “disrespect” or “destroy” it. Obergefell quoted Goodridge on the point that the “decision whether and whom to marry is among life’s momentous acts of self-definition,” and echoed its rhetoric about expressing “our common humanity.”

Crucially, both Goodridge and Obergefell took an approach to constitutional interpretation that stressed realization over time of a constitution’s broad commitments or (as James Fleming has expressed it) its “aspirational principles.” As Chief Justice Marshall put it (quoting Justice Ginsburg in United States v. Virginia): “The history of constitutional law ‘is the story of the extension of constitutional rights and protections to people once ignored or excluded.’” Ginsburg wrote of the Equal Protection Clause, but Justice Kennedy wrote similarly in Obergefell in observing that, “The nature of injustice is that we may not always see it in our own times,” and that the framers “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

Alas, as Dobbs painfully makes clear, this approach to constitutional interpretation is not that of the current Supreme Court majority. Thus, my point with this look back in time was to discuss Goodridge as an inspiring example of the independence of state constitutions. Turning now to the present, the majority opinion in Dobbs has raised various alarms (including on this blog) that its narrow approach to the scope of “liberty” under the Due Process clause—wrongly claiming that Washington v. Glucksberg has been the Court’s proper test and focusing obsessively on the state of things in 1868—threatens precedents beyond Roe and Casey, including Lawrence and Obergefell.  

Looking ahead, it is difficult to imagine a similar synergy of state and federal constitutional jurisprudence, in which, as did Chief Justice Marshall, a state supreme court justice could weave together a powerful opinion protecting individual liberty or equality whose fabric included federal and state constitutional law.

            In this context, as state and federal constitutional protections appear to be diverging, I will briefly discuss the post-Dobbs decision by the South Carolina Supreme Court, Planned Parenthood South Atlantic v. South Carolina. Justice Brennan’s exhortation about the independent protective force of state constitutions is powerfully manifest in this opinion. In particular, what is notable is how Justice Hearn emphasizes the differences between the federal constitution and that of South Carolina. To be sure, the opinion quotes certain federal “privacy” precedents, such as Eisenstadt v. Baird. But it also observes that, unlike the federal constitution, but like those of a number of its “sister states,” South Carolina’s Constitution expressly refers to a right to privacy, particularly: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and unreasonable invasions of privacy shall not be violated.” (Art. 1, § 10) Planned Parenthood and other plaintiffs argued that this constitutional provision included a pregnant person’s right to privacy with respect a decision to terminate a pregnancy, while South Carolina and other public defendants countered that the amendment only applied to criminal defendants in the context of search and seizure. Further, the latter argued that the amendment did not explicitly mention “a woman’s right to bodily autonomy.” 

Justice Hearn’s majority opinion rejected South Carolina’s “narrow interpretation.” The court found it instructive that in states with similar explicit constitutional guarantees of privacy, state courts that had considered the question of whether such privacy included abortion decisions had answered in the affirmative. The court also stated that because state courts were construing their own state constitutions, the “sea change” wrought by Dobbs in “federal abortion jurisprudence” did not invalidate these state court decisions. As noted earlier, Justice Hearn bluntly states that Dobbs is neither controlling or even relevant to the South Carolina court’s interpretation of its own constitution’s express protection of the right of privacy.

As another sign of independent jurisprudence, the court applied a strict scrutiny test (rather than Casey’s now-overruled undue burden test) to determine whether South Carolina’s restrictive abortion law violated the right to privacy, and concluded that it did. Applying that test to the state’s asserted interest in protecting “fetal health,” the court emphasized the historical significance of “quickening” at common law, and, under “since-overturned Supreme Court precedent”, viability as a relevant line.  South Carolina’s Act, which banned abortion as early as six weeks after conception, was contrary to the state’s former abortion jurisprudence. It also failed to advance “maternal health” by banning abortion at a point before pregnant persons could make an “informed choice.” To have such a choice, the court opined, the pregnant person must first know they are pregnant and then have “sufficient time” to weigh their options.  In stark contrast to Dobbs, the court further concluded that the “unborn fetus’s own interests,” while “important,” “cannot displace the pregnant woman’s at this early stage,” given the jurisprudence recognizing fetal interest much later in pregnancy.

For all of these reasons, the court concluded that the South Carolina Act was an unreasonable invasion of privacy and that while the state had authority to limit that right of privacy, the limitation “must be reasonable” and must afford sufficient time for a pregnant person to “take reasonable steps to terminate that pregnancy.” (The court noted Chief Justice Roberts’s concurring opinion in Dobbs, that would have ruled that a 15 week ban could survive constitutional scrutiny as providing an “adequate opportunity.”)  

            Finally, it warrants mention how the majority discounts certain “legislative” history about the adoption of the state’s constitutional right of privacy. It resonates with the Dobbs dissent’s powerful critique of the Dobbs majority’s reliance on 1868 as a relevant constitutional marker for whether or not abortion was protected by the 14^th Amendment, given women’s exclusion from full citizenship and the legislative process at the time. Justice Hearn rejects the argument by South Carolina that the “West Committee” (which considered adopting Article 1, the privacy provision) clearly was focused on electronic surveillance, not on women’s bodily autonomy. Instead, Hearn observes that to state that the West Committee’s interpretation must guide the court is to ignore “the societal landscape of the time” concerning the status of women:  when first formed in 1966, the Committee was composed exclusively of men. Further, South Carolina did not ratify the 19^th amendment (adopted in 1920) until 1969—and did not certify it until 1973. South Carolina, the court adds, was among the very last states to allow women to serve on juries (in 1967). (A notable biographical detail: when Justice Hearn was elected to the South Carolina Supreme Court in 2009, she became “only the second woman member in the court’s history”).

Similar to the Dobbs dissenters’ point that it is not surprising that the drafters of the Fourteenth Amendment did not refer to women’s reproductive rights (although Peggy Cooper Davis argues the deprivation of rights to enslaved persons should be considered as among the  important “motivating stories” for its adoption), Justice Hearn finds this history pertinent to the fact that the West committee did not consider abortion and concludes that the court cannot confine its review of Article 1 to what the West Committee “thought at the time.”   The court must take into account subsequent events, and not be (contrary to the Dobbs majority) frozen in time. Strikingly, given the court’s distancing itself from Dobbs, the court turns to a landmark federal case, Brown v. Board of Education, quoting its  language that it “cannot turn back the clock to 1868” or “even to 1896, when Plessy v. Ferguson was written.” The court cites to Loving as taking a similar approach.  The court argues that this same broader focus on reading constitutional provisions in the light of subsequent developments occurred in Griswold, Lawrence, and Obergefell.  In sum, rejecting a narrow approach to the meaning of a constitutional guarantee, the court instead concludes that it cannot “blind” itself to all that has transpired since an amendment was adopted. Thus, while stressing the independence of state constitutional interpretation, the South Carolina Supreme Court also enlists, when appropriate, crucial federal constitutional jurisprudence that supports its resistance of a static, frozen in time approach to interpretation that is rights-denying rather than rights-affirming.

Both Goodridge and Planned Parenthood South Atlantic, separated by two decades, affirm the importance of Justice Brennan’s words, nearly a half century ago, to look to state constitutions as a vital source of protecting individual liberties at a time when the U.S. Supreme Court is retrenching on protecting liberties. (And, as the 2022 November mid-terms demonstrate, with voters approving ballot initiatives to afford constitutional protection to reproductive rights in three states, amending state constitutions is also a vital path to such protections.) The first decision could stress some basic congruence between federal and state constitutional law, while rising to the challenge of interpreting the Massachusetts Constitution to afford protection that the U.S. Supreme Court had not yet recognized. The second decision reveals a state supreme court insisting that the independent power of state constitutions can afford independent protection of a fundamental right as an aspect of privacy despite the “sea change” caused by the U.S. Supreme Court, in Dobbs, taking away a right recognized for half a century.