The First State Constitutions A few early state constitutions contained language similar to the classic language of equality in the Declaration of Independence. Section 1 of the Virginia Bill of Rights, written by George Mason and adopted a month before the Declaration of Independence, provided: That all men are by nature equally free and Although only Pennsylvania and Massachusetts initially included broad provisions, like that of Virginia, many states now have similarly worded provisions. 10 Notions of equality, however, permeated the first state constitutions with respect to governmental structure, even if not with respect to individual rights.11 Pennsylvania's "liberal" constitution of 1776 probably pushed equality of consent as far as any of the first state constitutions by providing for a unicameral legislature, with no executive veto.12 Of course, most states still denied the franchise to blacks, women, and those who did not own property. Several of the early state constitutions contained another type of general equality provision intended to prohibit grants similar to royal privileges. Section IV of the 1776 Virginia Bill of Rights, for example, provides that "no man, or set of men, is entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services."13 It is important to remember the historical context in which the first state constitutions were written. Contrary to the view prevailing today-that constitutional protections exist to be enforced by the courts14-concepts of judicial review were still in their infancy in the late 18th century.15 In other words, judicial enforcement of bill of rights provisions was probably far from their framers' minds. Thus, in many ways, these early provisions, sometimes referred to only as "principles of government,"18 can be viewed as descriptive rather than normative. Moreover, one must question the drafters' overall commitment to equality because slavery and formal inequality in political participation were allowed to continue, as they were under the U.S. Constitution as well. Despite these early beginnings, much of the modern judicial doctrine of equality under state constitutions has its textual basis17 in such state constitutional provisions as Section 1 of the Virginia Bill of Rights. Even though many of these provisions seem only to declare political truths, they have been interpreted to limit state actions. 18 At the same time, general provisions that do not expressly mandate equality, such as New Jersey's Article I, paragraph I, have been interpreted to guarantee equal protection of the law generally. 19 The New Jersey provision, for example, served as the basis for the state Supreme Court's decision rejecting the U.S. Supreme Court's equal protection analysis in Harris v. McRae20 and invalidating state restrictions on Medicaid funding for abortion.21 Most state courts, however, have not developed doctrine independent of the federal equal protection clause under these kinds of equality provisions.22 Instead, they seem content not to read into such provisions anything other than what the U.S. Supreme Court has read into the equal protection clause of the Fourteenth Amendment. Other Generally Applicable Equality Provisions in State Constitutions Jacksonian Equality Provisions The wave of constitutional revision in the 1820s did not focus on the generally applicable equality provisions contained in the first state constitutions.23 Instead, equality issues centered around extending the right to vote to blacks and nonfreeholders and reapportioning legislative representation.24 Later in the century, many states amended their constitutions to curb the granting of "special" or "exclusive" privileges. In doing so, voters were reacting to a series of abuses by the relatively unfettered state legislatures, many of which were granting special privileges to powerful economic interests.25 These provisions were modeled after provisions adopted earlier in other states, such as Section IV of the Virginia Bill of Rights.26 For example, Article I, Section 20 of the 1859 Oregon Constitution, which was patterned after Indiana's 1851 Constitution,27 provides: "No law shall be passed granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens."28 These provisions commonly are found in state bills of rights-not in the legislative articles. They reflect the Jacksonian opposition to favoritism and special treatment for the powerful.29 Although these provisions may overlap somewhat with federal equal protection doctrine, closer scrutiny reveals significant differences. As Justice Hans Linde of the Oregon Supreme Court has noted, Oregon's Article I, Section 20 and the federal equal protection clause "were placed in different constitutions at different times by different men to enact different historic concerns into constitutional policy."30 Justice Betty Roberts of the same court has noted further: Article I, Section 20, of the Oregon Constitution has been said to be the "antithesis" of the equal protection clause of the fourteenth amendment. . . . While the fourteenth amendment forbids curtailment of rights belonging to a particular group or individual, Article I, Section 20, prevents the enlargement of rights.... There is an historical basis for this distinction. The Reconstruction Congress, which adopted the fourteenth amendment in 1868, was concerned with discrimination against disfavored groups or individuals, specifically, former slaves. . . . When Article I, Section 20, was adopted as a part of the Oregon Constitution nine years earlier, in 1859, the concern of its drafters was with favoritism and the granting of special privileges for a select few.31 A provision like Oregon's, then, does not seek equal protection of the laws at all. Instead, it prohibits legislative discrimination in favor of a minority. These provisions may differ in other ways from the federal equal protection clause. Justice Linde suggests that Oregon's provision can cover individuals in addition to classes of people,32 and that it may not apply to corporations or nonresidents.33 Moreover, the specific reference to the "passage of laws" may preclude its application to executive action. A similar provision prohibiting grants of "exclusive privileges" was instrumental in the North Carolina Supreme Court's decision invalidating that state's hospital certificate-of-need statute.34 Prohibitions on Special and Local Laws Closely related to the provisions prohibiting grants of special or exclusive privileges are prohibitions on "special" and "local" laws.35 These provisions, found in the legislative articles of state constitutions, contain either general or detailed limits on the objects of legislation.36 Special laws are those that apply to specified persons or a limited number of persons-for example an act granting a divorce or a corporate charter. Local laws are those that apply to specified or a limited number of localities-for example an act providing criminal penalties for conduct in only one county.37 One variety of local law is the "population act" or law which classifies cities according to population. Many states permit this sort of legislation if the basis for the classification can be regarded as rational. In addition, notice requirements usually are included for those subjects that may be dealt with by local laws, giving residents of localities to be affected at least constructive notice of the legislature's intended action. Though intended in part to curb legislative abuses, these proscriptions on special and local laws reflect a concern for equal treatment under the law. In 1972 the Illinois Supreme Court held that the state's no-fault automobile insurance act violated Ar ticle IV, Section 13 of the Illinois Constitution, which provides that "[t]he General Assembly shall pass no special or local law when a general law is or can be made applicable."38 The statute required only owners of "private passenger automobiles" to purchase no-fault insurance, but imposed substantial limitations on tort recoveries of persons injured by any type of motor vehicle. In distinguishing Illinois' "equal protection" clause,39 which had been added in 1970,40 Justice Walter V. Schaefer observed: While these two provisions of the 1970 con- He concluded that Article IV, Section 13 imposed a clear constitutional duty on the courts to determine whether a general law "is or can be made applicable, and that "in this case that question must receive an affirmative answer." The constitutionally infirm portions of the statute were therefore invalidated. Prohibitions on special and local laws have broad application, but they do appear limited to the legislatures, and therefore not to cover executive action. As with other state equality provisions, many state courts interpret special laws provisions by applying federal equal protection analysis. Discrimination in the Exercise of Civil Rights In the mid-20th century, a number of state constitutions were amended to include provisions prohibiting discrimination in the exercise of civil rights. Pennsylvania, for example, added a provision in 1967 which directs that "[n]either the Commonwealth nor any political subdivisions thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right."42 Similar provisions in other states typically limit the proscription to discrimination on the basis of race, color, or national origin.43 These antidiscrimination provisions are products of the civil rights movement of the late 1950s and the 1960s. In this respect, they are a good example of state constitutional amendments that “did not direct, but merely recorded, the currents of social change."44 So far, they have not been treated by the state courts as proclaiming any important new constitutional principle. The express proscription of discrimination against persons in the exercise of their civil rights, in addition to prohibiting the denial of rights, provides a strong textual basis for extending such protection beyond federal equal protection doctrine. For example, in Harris v. McRae,45 the U.S. Supreme Court held that restrictions on Medicaid funding for abortions did not violate the federal equal protection clause.46 The Court concluded that a mere failure to fund the exercise of the federal constitutional right to choose abortion did not unconstitutionally burden or limit the exercise of that right.47 Failure to fund was held neither to deny the right, nor to impose an “unconstitutional condition"48 on its exercise. A state provision, such as Pennsylvania's, however, provides a different argument concerning such policies. For example, the right to choose to have an abortion is a clearly established constitutional, or "civil" right based on the U.S. Supreme Court's 1973 decision.49 So too is the right to bear children, under Supreme Court decisions.50 It has been argued, therefore, that a state legislature in a state with a provision such as Pennsylvania's that provides funding only for child-birth, while excluding abortion from the Medicaid program, violates the state constitution.51 State constitutional provisions prohibiting discrimination in the exercise of civil rights may become increasingly important as state governments expand from regulation into the provision of services.52 When state governments primarily regulated conduct, prohibiting them from denying persons' civil rights was, if adequately enforced,53 an effective limit. States did not have the leverage of attaching "unconstitutional conditions" to the provision of services; therefore, they could not as easily favor one right over another. When the state acts as a service provider, however, as it does in such programs as Medicaid, it has the opportunity, in Laurence Tribe's words, "to achieve with carrots what [it] is forbidden to achieve with sticks."54 Thus, to prevent states from illicitly discouraging citizens' exercise of their rights, states have adopted provisions prohibiting discrimination against persons in the exercise of their civil rights. Specific and Limited Equality Provisions Although many states have interpreted generally applicable bill of rights provisions so as to guarantee equality under the law, other provisions, not usually found in bills of rights, expressly require equality in specific and limited instances. When applicable, these provisions offer state courts sound textual bases for invalidating state actions. At the same time, these provisions warrant extending equality guarantees beyond those of federal equal protection doctrine. These provisions also allow courts to avoid some of the problems of basing decisions on generally applicable equality provisions. In Robinson v. Cahill,55 for example, the New Jersey Supreme Court held unconstitutional the state's school financing scheme under a provision in the New Jersey Constitution requiring a "thorough and efficient" education.56 The provision was added to New Jersey's Constitution in 1875, partly to reflect public concern over equality in education.57 After criticizing the U.S. Supreme Court's approach to federal equal protection cases,58 the New Jersey court explained why it chose not to base its decision on state "equal protection" doctrine: We hesitate to turn this case upon the State equal protection clause. The reason is that the equal protection clause may be unmanageable if it is called to supply categorical answers in the vast area of human needs, choosing those which must be met and a single basis upon which the State must act. . . . [W]e stress how difficult it would be to find an objective basis to say the equal protection clause selects education and demands inflexible statewide uniformity in expenditure. Surely no need is more basic than food and lodging.... Essential also are police and fire protection, as to which the sums spent per resident vary with local decision. Nor are water and sundry public health services available throughout the State on a uniform dollar basis.59 Thus, the New Jersey court used the state's thorough and efficient education provision as a more "specific and limited" basis for its equality decision, justifying its limitation to the field of education and ensuring that its holding could not be expanded beyond education. In addition to the education provisions, most states have uniformity in taxation provisions that provide specific grounds for enforcing equality.60 Tax uniformity provisions require that once a legislative decision is made to tax a type of property or income, everything subject to the tax must be treated uniformly. The legislature may, however, make a decision not to tax a type of property, thereby exempting it.61 It is important to note, though, that while these provisions may be limited in focus, they can be farreaching in effect. The primary effect of tax uniformity provisions is to mandate equality in property taxation.62 Such provisions go well beyond the restrictions of the federal equal protection clause.63 Moreover, not all jurisdictions limit their uniformity provision to property taxes. As the Pennsylvania Supreme Court noted: [T]he constitutional standard of uniformity Case Study: Gender Equality in the States During the 1960s, gender equality emerged as a salient political issue, prompting responses from both the states and federal government.65 For the states, this involvement was nothing new: historically, it had been state law-constitutional, statutory, and common law-that defined the political and civil rights and the legal capacities of women. State law had, for instance, governed contractual relations, regulating the capacity of married women to enter into contracts without their husbands' consent. It had defined property rights, including the right of married women to hold property in their own name. It had regulated domestic relations, including such matters as divorce, alimony, child support, and child custody. It had also established police power regulations that affected women's opportunities to seek and obtain employment.66 Although federal law and judicial rulings have assumed an increasing importance, state law continues to play a major role in defining the legal status of women. However, constitutional changes have dramatically altered the substance of that law. This section documents some of those changes in order to show how state law can contribute-and has contributed-to promoting equality. State Constitutional Guarantees Today, in some fashion or another, 19 state constitutions expressly bar gender discrimination.67 Some state guarantees long antedated federal involvement in securing women's rights. As early as the 1890s, for example, the Wyoming and Utah Constitutions mandated equal enjoyment of civil, political, and religious rights and privileges for all men and women. In its 1947 constitution, New Jersey modified its traditional recognition of natural rights, inserting gender-neutral language in order to ensure gender equality.68 Most states, however, adopted their constitutional bans on gender discrimination between 1968 and 1976, a period roughly coincident with the proposal of the federal Equal Rights Amendment (ERA) and its submission to the states for ratification. Given the timing of their adoption, it is not surprising that many of the "little ERAS," as they are sometimes called, resemble the proposed federal model. However, several have distinctive elements. Montana's, for example, extends broader protection, expressly barring gender discrimination by private parties as well as by government. Several others omit a "state action" requirement, although the guarantees usually have been interpreted to apply only against governmental infringements on equality.69 California's guarantee is more focused than was the proposed federal ERA, mandating merely that the right to engage in a profession shall not be denied on the basis of gender. Louisiana's ERA is more tolerant of gender classifications, prohibiting gender distinctions only if they are arbitrary, capricious, or unreasonable. In interpreting state guarantees of gender equality, state courts have generally looked for direction to the U.S. Supreme Court's interpretations of the equal protection clause and to commentaries on the (unratified) federal Equal Rights Amendment. However, instead of promoting doctrinal uniformity among the states, this practice has merely duplicated on an interstate basis the complexities of the U.S. Supreme Court's equal protection jurisprudence. Thus, the Illinois Supreme Court, among others, has interpreted its constitution to require "strict scrutiny" of gender classifications, the same standard used by federal courts in determining the validity of racial classifications.70 Some state courts, however, have adopted a less rigorous standard. The Utah Supreme Court, for instance, has endorsed the U.S. Supreme Court's "rational relationship" test, upholding gender distinctions as long as they are reasonably related to the achievement of a valid state aim.71 In contrast, some courts-among them, the Washington, Maryland, and Pennsylvania supreme courts-have read their constitutions as imposing the same absolute ban on gender discrimination that was sought in the federal ERA.72 Although the level and focus of litigation under these provisions have varied from state to state, some general patterns have emerged. First, a number of constitutional challenges have come from male litigants who insisted that state laws or judicial rulings imposed unequal burdens on them. The conflict over child support has been particularly intense. In addressing this issue, courts in Washington, Texas, and Pennsylvania have concluded that child support is a responsibility of both parents. However, mathematically equal contributions from both parents have not been required, and in considering child support judges have recognized that nonmonetary as well as monetary contributions may be relevant.73 Second, men have challenged state laws and practices that allegedly penalize them or deny them benefits solely on the basis of their sex. Illustrative of such challenges are the constitutional attacks on the "tender years doctrine," under which wives are granted a preference in contested custody cases involving young children.74 Third, defendants have asked courts to strike down criminal statutes, such as rape laws, that have used gender-based language in defining crimes. State courts, however, have generally refused to allow defendants to use state ERAS as a shield from criminal liability.75 Fourth, in several instances, women have invoked state constitutional guarantees successfully against outmoded common-law rules, such as the prohibition on wives' recovering damages for negligent loss of consortium.76 Finally, women have invoked state constitutional guarantees to challenge denials of access or opportunities, most notably in several cases involving restrictions on their participation on athletic teams.77 What is most striking about the litigation under state ERAS, however, is its infrequency. Whereas one might have expected that the adoption of new state constitutional guarantees during the 1970s would have produced a flurry of challenges to state laws and practices, in fact, during the decade no state supreme court heard as many gender equality cases as did the U.S. Supreme Court. In part, the paucity of litigation under state constitutional provisions reflects the preference of litigants for federal forums and federal law, particularly in such areas as job discrimination. In part, however, it also testifies to the efforts of other branches of state government to vindicate the constitutional commitment to equal rights. State attorneys general have issued numerous opinions providing guidance on the meaning of these constitutional guarantees, thus reducing the need for recourse to the courts.78 Even more important, state legislatures have taken the initiative in reforming state law to conform to constitutional requirements. Legislative Implementation When 14 states adopted "little ERAS" between 1968 and 1976, they committed themselves to eradicating gender discrimination and securing increased opportunities for women. In some states-for example, Connecticut-this constitutional commitment was reflected in an impressive body of legislation promoting gender justice.79 In others, adoption of the "little ERA" provided the impetus for state legislatures and state attorneys general to eliminate gender discrimination. New Mexico's experience in implementing its ERA illustrates the crucial role that state legislatures have played in conforming state law to constitutional mandates.80 After ratification of the amendment in November 1972, the New Mexico legislature appointed an Equal Rights Committee to oversee its implementation. This committee, with the assistance of special committees established by the New Mexico state bar association, reviewed the entire New Mexico code to identify provisions inconsistent with the amendment and recommended statutory reforms needed to eliminate gender bias from New Mexico law. The New Mexico legislature acted quickly on most of these recommendations, approving changes in 26 statutes and two amendments during its first session following ratification of the constitutional ban on gender discrimination. What occurred in New Mexico has occurred in other states as well. Several states-among them, Alaska, Texas, and Washington-have undertaken a comprehensive review and revision of their codes to bring them into conformity with constitutional requirements. Some, such as Connecticut, have established permanent commissions to monitor compliance with constitutional mandates. Others, such as Hawaii, have sought to ensure gender equality through piecemeal reform of their law. Even states, such as Virginia, that have not mounted a comprehensive reform effort have modified their law to eliminate glaring inequities.81 In sum, then, the legislative, executive, and judicial branches of state gov ernments have all played an important role in promoting and safeguarding gender equality. Conclusion The states, through provisions included in their constitutional texts and through statutes, attorney general opinions and judicial decisions, have addressed a range of equality concerns over the years since 1776. State law, in fact, contains a much broader range of provisions concerning equality than is found in federal law. A combination, however, of the states' earlier unwillingness to enforce these provisions aggressively and the highly visible initiatives under federal law since the 1950s, has led to an almost instinctive tendency to look to the federal government to deal with equality issues. As James Madison warned, threats to equality may be more likely to arise within the states, justifying a renewed interest in, and concern with the enforcement of, state law provisions on equality. NOTES 1 For a particularly noteworthy exception, see Susan P. Fino, The Role of State Supreme Courts in the New Judicial Federalism (Westport, Connecticut: Greenwood Press, 1987). 2See generally Note, "A Madisonian Interpretation of Equal Protection Doctrine,” Yale Law Journal 91 (1982): 1403 (contending that federal equal protection doctrine should be enforced more strictly against states than the federal government); see also Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969), pp. 504-506 (suggesting that Madison saw Congress as less likely to succumb to the majoritarian democratic “excesses" exhibited by state legislatures). 3 The Federalist No. 10, p. 135 (J. Madison) (B. Wright, Ed. 1961). Madison added in The Federalist No. 51: “In the extended republic of the United States and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good," p. 359. 4 Sidney Z. Karasik, "Equal Protection of the Law under the Federal and Illinois Constitutions," DePaul Law Review 30 (1981): 270 n.33 (“Illinois was only the eighth state to include an equal protection clause in its constitution.") 5 New Jersey's "equal protection" doctrine, for example, is based on a provision that states: "All persons are by nature free and independent, and have natural and unalienable rights, among which are those enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." New Jersey Constitution, Art. I, para. I (1947); see, for example, Right to Choose v. Byrne, 91 N.J. 287, 303-05, 450 A.2d 925, 933-34 (1982). 6 Virginia Constitution, Bill of Rights 1 (1776). 7 Pennsylvania Constitution, Art. I, 1 (1776). 8 Massachusetts Constitution, Pt. I, Art. I (1780). 9 See Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980), p. 176. |