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 14th 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 19th
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.