CHAPTER TWELVE: State Constitutions

Every state in the United States has its own state constitution that, like the United States Constitution, structures its government and contains provisions relating to individual rights.

Generally speaking, state constitutions can provide greater individual rights than the federal constitution. The metaphor often used is that while the federal constitution provides the floor, state constitutions can provide the ceiling.

When considering the ability of state constitutions to grant greater rights and employing the floor/ceiling metaphor, there are three important caveats grounded in the Supremacy Clause, Article VI.

First, the “ceiling” of the state constitutional right cannot infringe on a right guaranteed by the federal constitution. For example, if a state constitutional provision was interpreted to protect sexual minorities under a strict scrutiny standard, a person could challenge that protection based on a denial of their own equal protection rights or under a different constitutional right such as the First Amendment’s protection of free exercise of religion. Further, recall that a state constitutional provision itself can violate the United States Constitution, Romer v. Evans (1996).

Second, the “ceiling” of the state constitutional right applies only to infringements by the state and its subdivisions. In other words, a federal statute cannot infringe a state constitutional right.

Third, the state courts are ultimate arbiters of their state constitutional rights, but a decision granting greater rights as a matter of state constitutional law must make it clear that the state constitutional provision is an “independent” ground of the decision. There can be confusion if a state court cites both state constitutional cases and United States Supreme Court cases on a specific doctrine. If the state court makes it clear and unambiguous that it is resting its decision on the state grounds (and only using the Supreme Court cases as persuasive or illustrative), then the United States Supreme Court cannot review the state court’s decision.

Each state constitution is different. The text of state constitutional provisions relating to rights can be compared to the United States Constitution’s provisions in three ways:

• First, the text can be exactly the same. For example, many states have an equal protection clause and a due process clause for example. Even if the language is exactly the same, the state courts can interpret the meaning of the state clause to be more expansive than the federal, assuming the state courts make it clear that they are relying on their state constitution.
• Second, the text can be somewhat similar or analogous. For example, some states have enumerated the classifications protected in the equal protection clause and have included “sex.” (This can be known as a state-Equal Rights Amendment, or “little ERA”). State courts then most likely subject sex classifications to a version of strict scrutiny rather than intermediate scrutiny.
• Third, the text can be unique. For example, some states include a protection for “privacy” in their constitution or provide for public education to be widely available.

Again, no matter whether the state constitutional provision is the same, similar, or unique, the state courts can interpret the provision to grant greater rights than would be available under the United States Constitution, subject to the Supremacy Clause caveats.

Additionally, although the United States Constitution, with the exception of the Thirteenth Amendment, requires a threshold of “state action,” a state constitution can reach private action. For example, a 1970 amendment to the Illinois Constitution provides:

All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property. These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.

Art. I § 17, Illinois Constitution.

The following sections provide examples.

In Edgewood Independent Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989), the Supreme Court of Texas confronted the similar inequities that the United States Supreme Court found could not be constitutionally remedied in San Antonio Independent School District v. Rodriguez (1973). After discussing the financing disparities, the Texas Supreme Court linked spending to quality of education:

The amount of money spent on a student’s education has a real and meaningful impact on the educational opportunity offered that student. High-wealth districts are able to provide for their students broader educational experiences including more extensive curricula, more up-to-date technological equipment, better libraries and library personnel, teacher aides, counseling services, lower student-teacher ratios, better facilities, parental involvement programs, and drop-out prevention programs. They are also better able to attract and retain experienced teachers and administrators.

The differences in the quality of educational programs offered are dramatic. For example, San Elizario I.S.D. offers no foreign language, no pre-kindergarten program, no chemistry, no physics, no calculus, and no college preparatory or honors program. It also offers virtually no extra-curricular activities such as band, debate, or football. At the time of trial, one-third of Texas school districts did not even meet the state-mandated standards for maximum class size. The great majority of these are low-wealth districts. In many instances, wealthy and poor districts are found contiguous to one another within the same county.

The challenge was based on three Texas state constitutional provisions:

• Texas Constitution’s equal rights guarantee of article I, section 3 {“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”};
• Texas Constitution’s due course of law guarantee of article I, section 19 {“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”}; and
• Texas Constitution’s “efficiency” mandate of article VII, section 1 regarding public schools {“A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”}

The court concluded that the disparities in financing violated the “efficiency” mandate of article VII, § 1. The court noted that the Texas constitution

requires an “efficient,” not an “economical,” “inexpensive,” or “cheap” system. The language of the Constitution must be presumed to have been carefully selected. The framers used the term “economical” elsewhere and could have done so here had they so intended.

It continued that considering “the general spirit of the times and the prevailing sentiments of the people,” it is apparent “from the historical record that those who drafted and ratified article VII, section 1 never contemplated the possibility that such gross inequalities could exist within an “efficient” system.” Further, the court stated that “clearly that the purpose of an efficient system was to provide for a ‘general diffusion of knowledge.’”

The court acknowledged that courts in nine other states with similar school financing systems have ruled those systems to be unconstitutional for varying reasons, usually under their state constitutions. The court directed the legislature to take immediate action to remedy the constitutional defect.

Based on our development of New Mexico’s Equal Protection Clause, it is appropriate to apply intermediate scrutiny to classifications based on mental disability because such persons are a sensitive class. The historical discriminatory treatment of persons with mental disabilities shows that the courts should be sensitive to possible discrimination against persons with mental disabilities contained in legislation that purports to treat them differently based solely on the fact that they have a mental disability.

Finally, we are not basing our decision to consider persons with mental disabilities a sensitive class for purposes of equal protection on any notion that such persons cannot advocate for themselves in the political process. To the contrary, persons with mental disabilities and their political allies are active participants in the political process. However, their effective advocacy is seriously hindered by the need to overcome the already deep-rooted prejudice against their integration in society. The gains in societal acceptance and political advocacy made by the disability rights movement today could easily be reversed through discriminatory laws in the future.

The court found that the disparity between the compensation granted to workers who suffer physical injuries and those who suffer mental injuries was not substantially related to the important government interests such as preventing fraud and curtailing costs.

As the Court in Lawrence v. Texas noted, after Bowers v. Hardwick,

The courts of five different States have declined to follow it {Hardwick} in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S.E.2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992).

For example, the Arkansas constitutional provision in Jegley was Art. 2 § 2 entitled “Individual Liberty” which reads:

All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

The Arkansas Supreme Court interpreted this provision as including a “right to privacy,” noting that the court has “recognized protection of individual rights greater than the federal floor in a number of cases” and that “Arkansas has a rich and compelling tradition of protecting individual privacy.” The court held that there was a fundamental right to privacy meriting strict scrutiny and given that the state conceded there was no compelling governmental interest, the statute criminalizing sodomy was unconstitutional. The court also found the statute, which criminalized only acts between members of the “same sex,” violated the state constitution’s equal protection provision.

The dynamics between state legislatures, state courts, and state voters can be intense on controversial matters such as minors and abortions. In 1988, the Florida legislature passed a parental consent statute, § 390.001(4)(a), Florida Statutes (Supp. 1988), that provided that prior to undergoing an abortion, a minor must obtain parental consent or, alternatively, must convince a court that she is sufficiently mature to make the decision herself or that, if she is immature, the abortion nevertheless is in her best interests. This statute comported with the Fourteenth Amendment doctrine.

However, in In re T.W., 551 So.2d 1186 (Fla. 1989), the Florida Supreme Court declared this statute unconstitutional under the Florida constitution’s “right of privacy.” In 1980, pursuant to a voter referendum, Art. 1 § 23 was added to the constitution to provide:

Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

The court quoted a previous decision as stating:

The citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words “unreasonable” or “unwarranted” before the phrase “governmental intrusion” in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.

In construing the provision, the court stressed that “every natural person” included minors. The court applied strict scrutiny under the state constitution, essentially determining that a minor did not have lesser constitutional rights than an adult. It invalidated the statute.

The next year the legislature passed § 390.01115, Florida Statutes (1999), the Parental Notice of Abortion Act, which again provided that prior to undergoing an abortion, a minor must notify a parent of her decision or, alternatively, must convince a court that she is sufficiently mature to make the decision herself, or that, if she is immature, the abortion nevertheless is in her best interests.

In North Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612 (Fla. 2003), the Florida Supreme Court reaffirmed In re T.W. and reached the same conclusion, finding the statute unconstitutional.

The Florida Legislature then proposed, and the voters ratified, a constitutional amendment authorizing the Florida Legislature, notwithstanding a minor’s right to privacy under Florida law, to require notification to a parent or guardian before termination of a minor’s pregnancy. The amendment provides:

The legislature shall not limit or deny the privacy right guaranteed to a minor under the United States Constitution as interpreted by the United States Supreme Court. Notwithstanding a minor’s right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor’s pregnancy. The Legislature shall provide exception to such requirement for notification and shall create a process for judicial waiver of the notification.

Fla. Const. art. X, § 22.

Thereafter, in 2005, the legislature passed Florida’s Parental Notice of Abortion Act § 390.01114, Florida Statutes. The statute provides that actual notice, as defined, of an abortion shall be given to a parent or legal guardian of a minor by a physician at least 48 hours before the abortion. The statute provides exceptions in cases of medical emergency, waiver of notice, or where the minor has been married or has had the disability of nonage removed. It provides procedures for judicial waiver of notice.

As the appendices to Obergefell v. Hodges attest, there was much litigation before the United States Supreme Court decided the case. A fair amount of this litigation was under state constitutions, although at times this was complicated by state constitutional amendments passed by voter referendum which limited the definition of marriage as “one man and one woman.”

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.

The court stated,

The words of the Common Benefits Clause are revealing. While they do not, to be sure, set forth a fully-formed standard of analysis for determining the constitutionality of a given statute, they do express broad principles which usefully inform that analysis. Chief among these is the principle of inclusion. As explained more fully in the discussion that follows, the specific proscription against governmental favoritism toward not only groups or “set[s] of men,” but also toward any particular “family” or “single man,” underscores the framers’ resentment of political preference of any kind. The affirmative right to the “common benefits and protections” of government and the corollary proscription of favoritism in the distribution of public “emoluments and advantages” reflect the framers’ overarching objective “not only that everyone enjoy equality before the law or have an equal voice in government but also that everyone have an equal share in the fruits of the common enterprise.” W. Adams, The First American Constitutions 188 (1980) (emphasis added). Thus, at its core the Common Benefits Clause expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage.

The court eschewed “the rigid, multi-tiered analysis evolved by the federal courts under the Fourteenth Amendment,” in favor of an “inclusionary principle.” The court did conclude that the exclusion of same-sex couples from the “common benefits” accorded to marriage did violate this provision but retained jurisdiction to “permit the Legislature to consider and enact legislation consistent with the constitutional mandate.” The Vermont legislature ultimately adopted a civil partnership scheme.

Check Your Understanding

1. Having come to the end of LEDP, if you were drafting a state constitution, which rights would you include? How specific would you be?

2. If you could amend the United States Constitution in only one way, what would it be?