Plus: Universal injunctions in state courts, disability rights, and more ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

[link removed]

State constitutional provisions often have analogues in the U.S. Constitution. Many state courts have outsourced interpretation of these provisions by lockstepping with federal courts. But there are signs that momentum is shifting. In recent cases in Connecticut

[link removed]

, Texas

[link removed]

, and Pennsylvania

[link removed]

, justices have called on their courts to embrace independent state constitutional interpretations. The cases — which span the ideological spectrum — highlight both the breadth of issues that state constitutions address and the obstacles to realizing a more robust state constitutional law.

One example is State v. Haynes

[link removed]

, in which the Connecticut Supreme Court allowed prosecutors to use statements obtained in violation of a defendant’s Miranda rights in order to show contradictions in his testimony. (This is known as impeachment evidence.) In a 5–1 ruling, the court rejected a call to reconsider its existing precedent — adopted in a single-sentence footnote — which accepted the U.S. Supreme Court’s rule on admissibility.

The ruling prompted a lengthy dissent from Justice Steven Ecker, who argued for a more “nuanced” approach to impeachment evidence. The majority and dissent had sharp differences about the policy issues at play, but what struck me was the extent to which the court’s earlier ruling created a path dependence. The majority explained that under principles of stare decisis (i.e., respect for precedent), there must be “inescapable” reasons to revisit a prior ruling. This led, as Ecker noted, to an analysis that was more “perfunctory” than the court would have put forth had it been considering the issue in the first instance.

Given how often courts have defaulted to interpreting state provisions in lockstep with the federal Constitution, stare decisis is a regular challenge for litigants and judges seeking to chart a more independent path. It’s worth considering whether different principles should apply in these circumstances. Indeed, the Ohio Supreme Court recently announced

[link removed]

that in instances wherein it had previously adopted a federal approach without any analysis, “it is appropriate to revisit unreasoned prior precedent.”

Another set of challenges came up in a recent Texas Supreme Court ruling, Southern Methodist University v. South Central Jurisdictional Conference of the United Methodist Church

[link removed]

. In this case, the court ruled on statutory grounds that the Methodist Conference had the right to sue the university for breach of contract. In a concurrence, four justices highlighted that the court has never determined the extent to which the Texas Constitution protects the autonomy of religious organizations, despite the fact that the state constitution’s language is different — and seemingly broader — than the First Amendment.

The justices argued that there was a key reason why the court had never analyzed this state constitutional issue: In this and other cases, litigants “have proceeded as though federal law and state law are identical in their potential to protect the Conference’s religious autonomy from interference.” It’s a concern I’ve heard from many judges — state constitutional claims often aren’t raised or argued independently in the briefs submitted to courts, which makes it both procedurally and practically difficult for judges to develop potential state constitutional arguments. In their concurrence, the Texas justices explicitly invited amici, the bar, the public, litigating parties, and lower court judges to help map the “distinct contours” of Texas’s religious protections.

I’ll end with a case from Pennsylvania, Ferguson v. Department of Transportation

[link removed]

. It doesn’t quite fit the same pattern as the other two, but it raises a point I find really interesting. In this case, a person facing a driver’s license suspension after a DUI conviction brought a substantive due process claim — a protection against “arbitrary and unjust legislation” — challenging the suspension under the Pennsylvania Constitution. The court ultimately rejected the claim but, in considering the state constitutional argument, applied state precedent to use a more rigorous standard of review

[link removed]

than what is applied under the federal Constitution.

In a concurrence, Justice David Wecht argued against the heightened standard of review, based on his own independent review of the state constitution. Thus, the debate was not over whether the Pennsylvania Constitution should be interpreted independently, but how. Wecht pointed out that the Pennsylvania Constitution doesn’t actually have a due process clause. The state’s protections against unjust or arbitrary laws are instead rooted in two other provisions: a guarantee of certain “inherent and indefeasible rights,” including life, liberty, and the pursuit of happiness (a version of which appears in numerous state constitutions

[link removed]

), and a provision guaranteeing a “remedy by due course of law.”

Wecht suggested that by using a federal constitutional principle like substantive due process as a framework, the court is ultimately treating the state constitution as little more than “a weak, me-too sidekick” to the U.S. Constitution. His argument points to the gravitational pull that federal legal concepts like substantive due process place on state law, even when state constitutional texts are different and courts are evaluating state constitutional claims independently. I’ll be watching to see if debates over this kind of conceptual lockstepping become more common as state courts engage more deeply in state constitutional interpretation.

Michigan Supreme Court Justice Richard Bernstein Discusses Disability Rights

Justice Richard Bernstein, the Michigan Supreme Court’s first blind justice, has spent his career advocating for disability rights. State Court Report spoke to him about representing the plaintiffs in a landmark public transportation case, the opinion he authored regarding the water crisis in Flint, Michigan, and his international work pushing for laws that allow people with disabilities to live full and equal lives. Read more

[link removed]

Disability Rights Under State Constitutions

“As federal civil rights enforcement faces growing uncertainty, state constitutions offer flexible, often-overlooked pathways for disability advocates to fight for progress and justice,” writes Brennan Center counsel Michael Milov-Cordoba and Brennan Center interns Ankita Joshi, Mohamed Nur, Rachel Seplow, and Michael Weinrib. Read more

[link removed]

Universal Injunctions in State Courts

The U.S. Supreme Court recently barred universal injunctions. State court litigants have also begun to contest injunctions benefiting non-parties. But “vigorous constitutional enforcement by state courts is both more constitutionally permissible and less dangerous,” writes University of Montana law professor Constance Van Kley. Read more

[link removed]

How State Courts Pushed Back on an Infamous U.S. Supreme Court Case

In the years after the U.S. Supreme Court’s 1857 Dred Scott decision holding that Black people could not be citizens, several state courts ruled directly in opposition. It’s a historical example of how “questions about the limits of the U.S. Supreme Court’s power have been present for centuries,” writes Marcelius Braxton, director of the Center for Social Change and Belonging at Penn State University. Read more

[link removed]

Battles over Medicaid Funding for Abortion

With Roe v. Wade overturned and more states amending their constitutions to protect abortion rights, “there is new urgency surrounding questions about whether and how state constitutions protect Medicaid patients seeking abortion,” writes Mary Ziegler of the University of California, Davis School of Law in her analysis of recent state litigation. Read more

[link removed]

A New Tool Makes Comparing State Constitutions Easier

An online resource from American Juris Link is simplifying the task of comparing and researching state constitutional provisions. The tool highlights similar language across constitutions by topic “so users can instantly spot similarities and differences,” writes Carrie Ann Donnell, the organization’s founder. Read more

[link removed]

You May Have Missed

A Kentucky appeals court ruled that a plaintiff who canceled a procedure related to in vitro fertilization because she was uncertain about its legality has standing

[link removed]

to challenge Kentucky’s abortion ban as unconstitutionally vague and violative of her religious freedom. State Court Report previously covered

[link removed]

religious freedom challenges to abortion bans.

A New York county clerk refused

[link removed]

, for the second time, the Texas attorney general’s attempt to file for enforcement of a $100,000 default judgment against a New York doctor accused of sending abortion-inducing drugs to Texas. A similar case

[link removed]

was recently filed in federal court by a Texas man accusing a California doctor of providing his girlfriend with abortion-inducing drugs. State Court Report has covered

[link removed]

this new direction of abortion litigation

[link removed]

.

A Washington appeals court ruled

[link removed]

that a group of counties has standing to pursue its challenge that the state’s system for indigent defense violates the state and federal right to counsel and equal protection because it doesn’t provide adequate money to meet constitutional defense standards and allows for “gross disparities” among counties. State Court Report previously wrote

[link removed]

about continued challenges in indigent defense funding.

Notable Cases

Black Voters Matter v. Byrd

[link removed]

, Florida Supreme Court

Upheld the state’s current congressional map, ruling against voting rights groups who argued that the map violates a 2010 state constitutional redistricting amendment that prohibits diminishing minority voters’ ability to elect candidates of their choice. The court found that the alternative north Florida map put forward by the plaintiffs violated the federal Equal Protection Clause. // Politico

[link removed]

Englewood Hospital and Medical Center v. State

[link removed]

, New Jersey Supreme Court

Unanimously rejected claims by a group of hospitals that the state’s “charity care program” — which prevents them from turning away people unable to pay and from billing qualified patients — constitutes an illegal taking under the state and federal constitutions. // Bergen Record

[link removed]

Robust Missouri Dispensary 3 v. St. Louis County

[link removed]

, Missouri Supreme Court

Held that the plain language of a 2022 amendment legalizing recreational marijuana use prevents both counties and cities from imposing sales tax on the same marijuana products. The amendment authorizes local governments to impose a sales tax of up to 3 percent. // Missouri Independent

[link removed]

State v. Evans

[link removed]

, Washington Supreme Court

Unanimously held that a county’s administrative booking process — which involves patting down, handcuffing, and detaining pretrial releasees inside a jail to take their fingerprints and identifying information — violates the state constitution’s protection against intrusions into “private affairs” without authority of law.

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

[link removed]

.









[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support Brennan Center

[link removed]



Did you get this message forwarded from a friend? Sign up here

[link removed]

.

View Online

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]