Securing Gay Rights through Constitutional Litigation


Thank you. Prior to the Burger Court, most constitutional litigation in the civil liberties area was pursued in the federal courts. That is where favorable decisions were most likely to be obtained, especially during the Warren Court years. With the Burger Court’s increasing limitation on civil liberties and its narrow interpretation of procedural safeguards in criminal matters, however, litigators began to re-evaluate the receptivity of the federal courts to civil liberties issues.

About two years ago, Justice Brennan made a speech to the New Jersey Bar Association in which he recited a list of twenty or more cases cited by various state supreme courts since the Burger Court had been on the bench. In every instance, those state supreme court cases explicitly discussed a particular criminal procedural ruling, or some similar ruling by the Burger Court, and rejected it on the grounds that they could go further under their own state constitutions in protecting individual rights, and were willing to do so. It is possible that the Burger Court actually wants to encourage this revitalization of the state court forum. Many of the things it does are perceived as an attempt to encourage a resurgence of federalism and to instill new life into the state judicial systems that, at least in the criminal procedure and civil liberties areas, had been overshadowed by the federal courts during the period of the Warren Court. And so, to a certain degree, the Burger Court’s encouragement of state courts to start thinking about what they can do in the individual rights area is a constructive phenomenon. Whereas state courts had to a large extent simply taken whatever the United States Supreme Court had said on a particular issue arising under the federal bill of rights, looked at their own state constitutional analogue to the federal provision, and given the state provision virtually the same scope and effect as the Supreme Court had given the federal provision, the Burger Court altered the approach. As the Burger Court began to assign a narrower scope to the federal provisions, some of the state courts that had become more liberal in this area began to look for alternatives to the federal line.

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