A grave threat to independent state constitutions, and a key impediment to the role of state courts in contributing to the dialogue of American constitutional law, is lockstepping.
– Jeffrey Sutton, 51 Imperfect Solutions
Introduction
Under the American Federalism system, 51 constitutions coexist. They often overlap and come into conflict with each other over a plethora of issues from governance to individual liberties. As state constitutional law continues to rise in political prominence—specifically after major federal cases like Dobbs v. Jackson Women’s Health Organization (2022), which left the decision to protect the right to abortion to the states—jurists across 50 jurisdictions will now have to resolve these issues under their state-building documents.[1] The Chief Judge of the United States Court of Appeals for the Sixth Circuit, Jeffrey Sutton, once referred to state judiciaries as 50 “constitutional laboratories.”[2] Over time, we can expect even a stronger construction of federalism as states experiment with the boundaries of their constitutions. However, there is one key condition: these constitutions must be constructed independently, free of any tethering to the ever-evolving doctrines of the federal courts.[3]
New Jersey, as a state, has never shied away from reading its Constitution differently from the federal government. Its courts serve as a powerful authority of constitutional interpretation, expanding protection of civil rights way further than the United States Supreme Court could have ever imagined within its realm of delegated and enumerated powers. The State’s first Constitution, written in 1776, predated that of the federal government. Ever since, in each new constitutional iteration until 1947, New Jersey courts have solidified their commitment to civil liberties and individual rights, affirmed in Article I, Paragraph 1 at the forefront of the State Constitution:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.[4]
Such expansive affirmative language and distinct textual differences from the U.S. Constitution gave the New Jersey courts a potential foundation for strong state judicial independence from federal courts in regard to constitutional interpretation. And yet, the New Jersey courts fell short of realizing the full potential of this vast language, limiting itself within the frameworks and tools created by the U.S. Supreme Court. Looking at both the right to die (In Re Quinlan, 1976) and same-sex civil unions (Lewis v. Harris, 2006), decided under Article I Paragraph 1, I argue that the New Jersey Supreme Court has inhibited the full strength of the state’s constitutional scheme by tethering its decisions to existing legal doctrines created by SCOTUS when interpreting the U.S. Constitution. Furthermore, even when the use of these federal rules leads to an expansion of civil protections, the NJ Supreme Court could have supported its decisions with a stronger jurisprudence grounded in the text of its own constitution. In other words, while federal and state courts can reach the same ends, they could and would reach those ends by different constitutional means. However, in reality, by exclusively using federal doctrinal tools when deciding state constitutional questions, state judges are simply re-interpreting the meaning of those federal provisions while using the state constitution as a proxy. That would only serve to misconstrue and impair the integrity of the State constitution.
Focusing on Paragraph 1 in this paper, I will first argue that textual differences in state constitutions are not only a justification but a duty for interpretative divergence. Then, I will discuss how the NJ Supreme Court recognized the inconsistency of federal doctrinal approaches to enumerating rights only to end up following these federal frameworks albeit with more flexibility. Then, through In re Quinlan, I will examine how the Court brought federal doctrines of substantive due process into Paragraph 1 to enumerate the right to die. Finally, using Lewis v. Harris as a case study, I will point out a missed opportunity for the New Jersey Supreme Court in recognizing the equal rights to marry of same-sex couples because it has latched itself onto the stringent federal due process analysis, arguably failing the constitutional guarantees of Article I, Paragraph 1 of the State Constitution.
I. Textual Difference: Not Only An Excuse For Divergence
Unlike the federal Bill of Rights, where civil protections were included as an addendum to the main text of the Constitution, the New Jersey Constitution asserted individual rights immediately in Article I. Front and center, the first paragraph of the text affirmatively states: “All persons are by nature free and independent.”[5] Compared to the Bill of Rights, which only protects individual liberties in forms of negations, i.e. “Congress shall make no law,”[6] it is clear that New Jersey’s Constitution was intended to be an expansive document protecting liberties so that they are “free and independent.” Contrary to the Fourteenth Amendment, nowhere in Article I can we find terms such as “privileges and immunities,” “due process,” or “equal protection” of the law. In fact, none of those terms are as strong of a declaration of freedom and independence. Privileges and immunities do not guarantee or equate to freedom or independence, nor does due process, or equal protection. With this vast language expressly written in the state constitutive document, the New Jersey courts arguably are expected to develop quite different jurisprudence from their federal counterparts. However, following the New Jersey Supreme Court’s history of decisions, this was not the case.
In Greenberg v. Kimmelman, the Court declared Article I, Paragraph 1, “like the fourteenth amendment, seeks to protect against injustice and against the unequal treatment of those who should be treated alike.”[7] They argued that the Paragraph “safeguards values like those encompassed by the principles of due process and equal protection” even when they are “[n]owhere in that paragraph.”[8] Because of these shared principles, the Court concluded that these ideas of due process and equal protection define Article I, Paragraph 1. This conclusion was a leap in reasoning. Just because these two constitutional provisions are similar in their goals of ascertaining liberty, they do not necessarily share the same scope and means of protection. To my point above, neither due process nor equal protection of the Fourteenth Amendment guarantees true freedom and independence protected by Paragraph 1. Maybe, the Fourteenth Amendment would be instructive for the Court to construe the meaning of the Paragraph, but letting those concepts define the scope and purpose of the state provision is a grave misstep.
Bringing this issue to the bigger picture of state courts diverging from federal constitutional interpretation, the New Jersey Supreme Court, in a concurrence by Justice Handler, in State v. Hunt (1982) enumerated a series of legal grounds for states to justify their departure from federal precedent, the first of which was the difference of textual language between the state and the federal documents. To begin with, according to Hunt, the New Jersey courts have to look for excuses to interpret their constitutions differently from federal courts. That is an unusual abrogation of power to another jurisdiction. Of course, the supremacy clause and incorporation over the years place certain restrictions on their independent constitutional interpretation. However, State v. Hunt sought to limit state constitutional interpretation even to questions of expanding protection even further than the standards set by SCOTUS. In those cases, New Jersey jurists need not find any reason to justify their divergence from the federal rule when fulfilling their constitutional duty of interpreting a clearly different document. After all, it is their State Constitution. Written at different times, during vastly different contextual circumstances, by different authors, there should be no reason for state courts to have to justify themselves in interpreting the text differently. In essence, having to list out criteria to serve as excuses for judicial deviation from federal rule “reflects the notion that interpretations of the federal Constitution can somehow authoritatively set the meaning for similar provisions of state constitutions.”[9]
This is truly a “misplaced sense of duty.”[10] Textual differences, in my opinion, point to a judicial responsibility of the state supreme courts to deviate from the federal interpretation. To have a robust system of federalism, all 51 constitutions should have independent jurisprudential growth, especially when their texts are so expressly distinct and unique. Only when state courts begin building their own legal doctrines without reliance on federal doctrines, can state courts be a reliable second avenue to vindicate individual rights without the fear of the disturbance of changing federal analysis.
In The Law of American State Constitution, Professor Robert Williams and Professor Lawrence Friedman argue that this practice of having to justify any judicial deviation from the federal ruling “should not be surprising given the prior domination of federal constitution law. In some sense, the conditioned response of lawyers and judges is to look at the federal Constitution first.”[11] However, given the instability of certain federal rules, especially surrounding the protection of individual rights, and also the rise of state constitutional claims in state courts, it is in the best interest of state judiciary to let go of everchanging federal doctrines and build their own independent doctrinal tools that are grounded in their constitutions. Of course, the state supreme courts cannot prevail when it comes into conflict with federal rulings from the U.S. Supreme Court due to the Supremacy Clause. All in all, deviating from federal doctrines when considering state constitutional questions should not be seen as so anomalous that state courts have to find grounds to justify their decisions. This is not to say that states cannot reference federal rulings or those of other states. In fact, decisions by state high courts usually contain robust comparative constitutional law across state lines. And, State courts should continue doing so, bringing in multiple points of reference to best inform their judgment. Nonetheless, no other jurisdiction should dictate or be seen as the sole authority of constitutional analysis, even the U.S. Supreme Court.
A possible concern for such a manner of state constitutional interpretation, also recognized by Justice Handler, is that there would be no constraints on state courts making policy rulings:
There is a danger, however, in state courts turning uncritically to their state constitutions for convenient solutions to problems not readily or obviously found elsewhere. The erosion or dilution of constitutional doctrine may be the eventual result of such an expedient approach.[12]
Without the federal decisions serving as an anchor or as a guiding principle for state courts to interpret their laws, courts could make broad decisions that go too far too fast, thereby eroding the legitimacy of the constitution and of the state supreme court. This fear is unfounded and arbitrary. Federal legal frameworks were rendered by an independent U.S. Supreme Court and refined over time through precedents. Hence, state courts should be afforded the same latitude of independence in reading their constitutions and delineating their legal doctrines. Moreover, some state supreme courts are even held accountable by the people through elections. Arguably, this may dissuade state judges from rendering radical decisions, making the question of legitimacy even more pertinent for state courts than federal ones. In cases like New Jersey where judges are not directly elected, there is still an interest in “institutional self-protection,” resulting in judicial restraint for the sake of comity between all three branches of government.[13] Finally and most importantly, state constitutions are considerably easier to amend: a highly objectionable judicial ruling can be overturned with the passage of an amendment. Therefore, I believe state courts reading their state constitutions and creating their independent legal doctrines are fully justified and are not grounds for concerns of judicial activism. Subsequently, state court judges, when reading their state constitutions, are inclined to be even more prudent and rigorous in upholding the integrity and protecting the longevity of the text.
Specifically, with respect to the New Jersey Supreme Court and Article I, Paragraph 1, the justices have yet to breathe meaning into so many textually powerful clauses. What does it mean to be “by nature free and independent” or “have certain natural and unalienable rights?”[14] The Court should change their approach to interpreting their own foundational document, especially with the urgency of unpredictable change in the U.S. Supreme Court.
II. A Futile Wake-up Call
In Greenberg v. Kimmelman (1985), Justice Pollock, while delivering the opinion of the Court, recognized the need for independence in developing state constitutional schemes and critiqued the inconsistent application of substantive due process and equal protection by the U.S. Supreme Court:
By developing an interpretation of the New Jersey Constitution that is not irrevocably bound by federal analysis, we meet that responsibility and avoid the necessity of adjusting our construction of the state constitution to accommodate every change in federal analysis of the United States Constitution.
The wisdom of that method is apparent upon considering the changing roles of due process and equal protection in federal analysis. Not only has the United States Supreme Court alternated between the due process and equal protection clauses over the past fifty years, but in some cases it has become entangled in their separate strands…[D]ue process and equal protection analyses, while proceeding along parallel lines, may overlap, or at least so it may seem.[15]
By affirming that state constitutional interpretation is not “bound by federal analysis,” Justice Pollock acknowledged the independence state judiciaries enjoy in reading and construing their own state-building documents. Moreover, Pollock further corroborated the State’s interest in constructing independent legal doctrines to avoid having to adjust and update the State constitutional rule whenever there is a change in legal analyses at the federal level. He went on to critique the inconsistency in the use of substantive due process and equal protection at the U.S. Supreme Court, which were all new legal concepts back in the 1980s, that only began rising to common use a few decades earlier. Substantive due process, specifically, as we now know it, was not a common avenue to protect individual rights until the 1960s, starting with Griswold v. Connecticut, marking the birth of the fundamental right to privacy.[16] Equal protection also only rose into frequent use by federal courts at the same time. From the right to abortion (Roe v. Wade) to racial desegregation (Brown v. Board), these two legal doctrines were used to rule on major, watershed decisions that were also highly controversial even to this day.
As the nine justices of the U.S. Supreme Court wrestled to figure out the meaning of these principles for themselves, it might be reasonably expected that the bench could have gotten it wrong—either at rendering final decisions or the means of reaching those decisions. An example of that could be that their decisions conflated these two legal concepts, “or at least so it may seem.”[17] Given such confusion and inconsistency at the federal courts, would it not be reasonable for the New Jersey courts to reject these federal ideas and seek out other, more concrete principles rooted in the State Constitution?
Indeed, after pointing out these concerns of overreliance on federal doctrines, the New Jersey high court affirmed its new, independent test of protecting individual rights under Paragraph 1, though still calling these concepts due process and equal protection:
The analysis of fundamental rights under the New Jersey Constitution differs from analysis of those rights under the United States Constitution…Starting with our decision in Robinson v. Cahill…we began to develop an independent analysis of rights under article 1, paragraph 1. Thereafter, we rejected two-tiered equal protection analysis…and employed a balancing test in analyzing claims under the state constitution…In striking a balance, we have considered the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction.[18]
For the New Jersey Supreme Court, setting a precedent for relaxed standards of due process and equal protection is enough to expand individual rights within the State. But even when they tried to distance themselves from these federal doctrines with the more flexible legal tests, they still have already tethered themselves to federal doctrines and possible changes in the U.S. Supreme Court’s approach to these concepts, using the same names even when they do not exist in Paragraph 1. I will discuss the specific reversion to locking steps with federal due process doctrine and the abandonment of the precedent in Lewis v. Harris (2006) as a case study.
In the end, for Greenberg, the Court dismissed all of the petitioner’s claims using rational basis—ironically one of the tiers in federal equal protection analysis. Although the Court’s expanded interpretation of equal protection and due process, it was not an attempt at formulating an independent state constitutional interpretation scheme. What the Court did was use the state constitution’s text as a proxy to re-interpret the U.S. Constitution, giving these provisions like due process and equal protection another chance at life while depriving Article I, Paragraph 1 of the ability to take on its full meaning. Latching on to these federal doctrines will only harm the State’s judicial independence in the long run, given how hostile the current U.S. Supreme Court’s 6–3 conservative majority is to precedents decided under the Fourteenth Amendment.[19] The New Jersey Supreme Court foresaw these dangerous consequences back in 1985 and yet has failed to act on its words.
III. Broad Decisions and Missed Opportunities
The New Jersey Supreme Court, since its inception in 1947, has not held back on making broad decisions under Article I, Paragraph 1. As the New Jersey high court tethers itself to the federal framework, however, we will see how missed opportunities of state constitutional interpretation manifest themselves in major state decisions, even those that expand protections of rights. From the right to die in In Re Quinlan to legalizing same-sex civil unions in Lewis v. Harris, the New Jersey Constitution could have taken a very different route to reach the same or even broader rulings.
1. In Re Quinlan: The First Misstep
In 1976, In Re Quinlan marked one of the first instances where the New Jersey Supreme Court incorporated a federal constitutional doctrine into a state constitutional provision, specifically Paragraph 1. The ruling was controversial because it enumerated a new right to die for Karen Ann Quinlan, a person who had been in a “persistent vegetative state, having irreversible brain damage with no cognitive or cerebral functioning.”[20] In this case, the Court found the right to die under the realm of the right of privacy, a newly created legal concept by the federal Supreme Court just a decade earlier in Griswold v. Connecticut (1965). Chief Justice Hughes, in delivering the majority opinion, analyzed this right exclusively under federal precedents. The connection between the state constitution and this novel right to privacy was swiftly summed up in a one-line paragraph:
The Court in Griswold found the unwritten constitutional right of privacy to exist in the penumbra of specific guarantees of the Bills of Rights…
Presumably, the right is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman’s decision to terminate a pregnancy under certain conditions. Roe v. Wade…
Nor is such right of privacy forgotten in the New Jersey Constitution. N.J. Const. (1947), Art. I, par.1.[21]
By exclusively making federal analysis, the one-liner shows how the Court was merging a state provision that textually resembles nothing like the federal Constitution to the federal rule. The Court’s analogy of a woman’s access to abortion (in Roe v. Wade) to Karen Quinlan’s right to end her medical treatment further underscores its view that the federal doctrine and Paragraph 1 are inseparable. Now, in 2024, the overturning of Roe and SCOTUS’s declaration that there exists no right to abortion under the right to privacy put In Re Quinlan in a peculiar situation. Although the right to die is still guaranteed under the State Constitution, it seems odd that this right is the direct product of the Court’s subscription to an antiquated and firmly rejected federal rule. Not answering why the right to privacy can be found in Article I, Paragraph 1, the Court made the first misstep for decades of state constitutional reliance on federal due process and equal protection doctrines.
Nonetheless, it would be wrong to assume that the one-line paragraph was proof of negligence on the justices’ part. Putting this decision into the context of 1976, state constitutions were “low-visibility constitutions” and “state constitutional discourse was impoverished.”[22] The rise of strong federalism from state courts making decisions and delineating new state doctrines was a novelty in the 70s. At the time, constitutional analysis was mostly, if not exclusively, done at the federal level. If anything, the one-line paragraph stands testament to the legal landscape in that period. According to Professors Williams and Friedman, the trend of litigation based on state constitutional laws only started in 1973 with school financing cases in California and New Jersey.[23] And then, it was the U.S. Supreme Court, in PruneYard Shopping Center v. Robins (1980), that opened up the discourse on state constitutional law:
…[A] state court is entirely free to read its own State’s constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee.[24]
Ironically, it was only when the federal high court signaled to states to begin advancing legal claims under state constitutional law that state courts began expanding the meaning of their state constitutions.
Nearly a decade later, Greenberg alluded to the danger of relying on federal doctrines. Given the facts, In Re Quinlan was ripe for a determination under either the “free and independent” clause or, more suitably, the “natural and unalienable rights” clause of Article I, Paragraph 1. But, in just one line, the precedent set in stone a continuance of overly dependent jurisprudence that ignores the true text of the State Constitution for decades to come.
2. Lewis v. Harris: Walking Back on a Promise
By subscribing to doctrinal principles created by federal courts, New Jersey courts can simply revert to lock-stepping with federal analysis even when precedents have committed themselves to a less stringent legal standard of due process and equal protection. Lewis v. Harris (2006), a landmark New Jersey case on same-sex civil unions, was a clear example of such reversion to the more searching federal standard of enumerating a fundamental right.
In Robinson v. Cahill (1973), the New Jersey Supreme Court found the federal approach to due process “[m]echanical…to the delicate problem of judicial intervention” and “may only divert a court from the meritorious issue or delay consideration of it.”[25] It reaffirmed the constitutional commitment in Greenberg, where the justices would balance all interests at stake when searching for a right. And yet, Lewis ended that promise:
In assessing [the same-sex couples’] liberty claim, we must determine whether the right of a person to marry someone of the same sex is so deeply rooted in the traditions and collective conscience of our people that it must be deemed fundamental under Article I, Paragraph 1…
In attempting to discern those substantive rights that are fundamental under Article I, Paragraph 1, we have adopted the general standard followed by the United States Supreme Court in construing the Due Process Clause of the Fourteenth Amendment of the Federal Constitution.[26]
By following the U.S. Supreme Court’s construction of the Due Process Clause of the Fourteenth Amendment, the New Jersey Supreme Court discontinued its precedent, walking back on the older Court’s attempt at establishing some sort of independence from federal doctrines. Searching for a fundamental “right of the people of the same sex to marry,” the Court employed the Glucksberg test, a SCOTUS precedent. As a result, the constitutional question in Lewis was no longer a balancing test between the victims and the State’s interest or scrutinizing “whether the State [action] is arbitrary.”[27] Instead, the Court followed its federal counterpart and examined only whether the right to same-sex marriage is “objectively and deeply rooted in the traditions, history, and conscience of the people of this State.”[28] Chief Justice Poritz wrote her dissenting opinion critiquing this severance of the Court’s precedent. Citing cases like Robinson and Greenberg, she pointed to the State’s former unique understanding of due process, separate from what the federal courts have construed.[29]
This change in the Court’s reading of due process from allowing for more judicial flexibility to strictly lock-stepping with the federal analysis displays the consequences of placing due process into the text of a provision that does not contain it. Only because the Court had deemed in the 80s that there exists due process in Paragraph 1, the Court in the 2000s would then be able to have the basis to follow the new evolutions of due process analysis developed by the U.S. Supreme Court without questioning the merits of this new manner of analysis on its face.
Once again, what does it mean to be independent and free under the NJ Constitution? I would argue that this affirmative phrasing in Paragraph 1 demands a less exacting standard to enumerate a new right protected by the State Supreme Court. Stepping away from using due process as a framework of constitutional analysis, does the Court need a fundamental right that is intrinsic to the State’s history and traditions to scrutinize arbitrary government actions? I believe not. Had the Court read into the affirmation of individual liberties, freedom, and independence in Paragraph 1, it would have arrived at finding a right to marry for same-sex couples that merits judicial protection. The only reason this right was not there was because the Court has construed Paragraph 1 to only contain due process and equal protection, relegating the text of the provision to a “mere row of shadows.”[30] In failing to realize the constitutional promise that NJ State courts are tasked to uphold, the Court needs to reassess the limitations that it has placed on Paragraph 1 because of its overreliance on the limiting doctrines created and shaped by an increasingly conservative U.S. Supreme Court.
The Court eventually decided that under Equal Protection the State must either certify same-sex unions as marriage or create a separate legal status for civil unions, where the couples could enjoy the same benefits as heterosexual couples. In reaching this decision, the Court referenced other states that have also ruled for same-sex unions, e.g.., Vermont and Massachusetts. Notably, the Vermont Supreme Court, in Baker v. State (1998), decided to protect same-sex civil unions solely using their “Common Benefits” clause. Unique to their state constitution, the common benefits clause functions on a different legal basis and puts different standards of burden on the state, contrary to the tiered system of equal protection at the federal level.[31] For Massachusetts, on the other hand, the state Supreme Judicial Court read their constitution’s declaration of rights to also include due process and equal protection analysis.[32] However, unlike New Jersey, this court did not rely on the federal analysis of due process but rather exercised its own read of the concept, which was broader than the federal version.[33] As a result, it concluded that there is a constitutional right for same-sex couples to get married, thereby changing the definition of marriage to a union between two individuals regardless of their sex.
After decades of precedents saying that Paragraph 1 contains substantive due process and equal protection, it is hard to imagine that the New Jersey Supreme Court could ever return to a clean slate and re-interpret what the provision specifically means. That would be turning stare decisis on its head and setting a bad precedent for future sweeping judicial decisions. Nonetheless, through incremental changes, this Court could use available language such as “free and independent,” “natural and unalienable rights,” and “safety” already in the Constitution as the means to relax the standards for the federal doctrines that they still currently use, especially substantive due process. Of course, this will be uncharted legal territories for the State courts and the State Constitution. In doing so, the Court needs to be extremely careful to maintain the integrity of the document, from the need to respect comity with other governmental branches to extreme prudence with broad decisions, for the people may be inclined to amend the Paragraph and dial back the strong, historical affirmation of individual freedoms. This is a daunting, but exciting, task as the New Jersey Constitution embarks on its independent path. Decades of refining jurisprudence through trial and error and referencing decisions from other jurisdictions will give the State of New Jersey a reliable and formidable source of protection for the people’s rights and liberties.
Conclusion
The New Jersey courts should leverage the State’s constitutional power to the fullest extent. Textual grounds for expansive readings abound. To fulfill their judicial duties, courts need to breathe meaning into these terms, enriching them with their independent jurisprudence. Although the current state judicial opinions are rendered independently from the federal judiciary, by using the tools laid out by federal jurists, New Jersey continues to endure the risk of losing those tools at the whim of a pen stroke from the federal bench. Constitutional independence does not only mean having a separate judiciary; true independence stems from the very origin of constitutional interpretation and the confident reliance on the State’s most fundamental document. Textual differences between the state and federal constitutions are not only a justification but an imperative for the divergence of interpretation, which does not preclude both courts from reaching the same ends, just different means to get there. The New Jersey Supreme Court should chart its own ways of interpreting its constitution, setting an audacious bet for the future freedoms and independence of the people of New Jersey.
NOTES
[1] See Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
[2] Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (New York: Oxford University Press, 2018).
[3] Ibid.
[4] The New Jersey Constitution, art. 1, par. 1.
[5] New Jersey Constitution, Art. 1, Para. 1.
[6] U.S. Constitution, amend. 1.
[7] Greenberg v. Kimmelman, 99 N.J. 552 (NJ 1985)
[8] Ibid.
[9] Robert F. Williams and Lawrence Friedman, The Law of American State Constitutions (New York: Oxford University Press, 2023), 200.
[10] Ibid, 200. Quoting Justice John Paul Stevens in his dissent in Delaware v. Van Arsdall, 475 U.S. 673, 699 (1986).
[11] Ibid, 172.
[12] State v. Hunt, 91 N.J. 338 (1982).
[13] Jack M. Sabatino, “Assertion and Self-Restraint: The Exercise of Governmental Powers Distributed Under the 1947 New Jersey Constitution,” Rutgers Law Journal 29 (Summer 1998): 18–19.
[14] New Jersey Constitution, art. 1, par. 1.
[15]Greenberg v. Kimmelman, 99 N.J. 552 (NJ 1985)
[16] Substantive due process was used even earlier than Griswold in the infamous case Lochner v. New York (one might even argue this concept dates back to Dred Scott v. Sanford in the Fifth Amendment). However, Lochner was about economic legislation and was overturned sub silentioin the 1930s. Whereas in contemporary legal understanding, substantive due process has evolved to become a tool to protect civil liberties and individual rights during the 1950s-60s, at the same time as equal protection was also used to vindicate disparate treatments of the law. This line of jurisprudence originates from the dicta section of Footnote 4 of United States v. Carolene Products Company, 304 US 144 (1938).
[17]Greenberg v. Kimmelman, 99 N.J. 552 (NJ 1985)
[18] Ibid. Robinson v. Cahill, 62 N.J. 473 (1973), also rejected the stringent federal doctrine of finding a fundamental right, calling it “mechanical” that may “divert a court from the meritorious issue or delay consideration of it.”
[19] Just in two years, the Court rejected all the claims made under substantive due process with the overturning of Roe v. Wade, a 50-year-old precedent guaranteeing women access to abortions. It also rejected equal protection claims through Grutter v. Bollinger, overturning race-conscious affirmative action.
[20] John Z. Jackson, “In the Matter of Karen Ann Quinlan After 40 Years: Some Personal Remembrance from the Sidelines of History,” MDAdvisor, 2016, 15.
[21] In Re Quinlan, 70 N.J. 10 (1976).
[22] Robert F. Williams and Lawrence Friedman, The Law of American State Constitutions, 2–5.
[23] Ibid, 144-153.
[24] PruneYard Shopping Center v. Robins, 447 US 74 (1980).
[25] Robinson v. Cahill, 62 N.J. 473 (1973).
[26] Lewis v. Harris, 188 N.J. 415 (N.J. 2006).
[27] Robinson v. Cahill, 62 N.J. 473 (1973).
[28] Lewis v. Harris, 188 N.J. 415 (N.J. 2006); Washington v. Glucksberg 521 US 702 (1997).
[29] Her argument on the fundamental right to marry to legalize same-sex marriage was the same argument that the U.S. Supreme Court used in deciding Obergefel v. Hodges, 576 US _ (2015).
[30] Robert F. Williams and Lawrence Friedman, The Law of American State Constitutions, 259. Quoting Justice David Souter when he was still a state judge in New Hampshire in State v. Bradberry, 522 A. 2d 1380, 1389 (N.H. 1986).
[31] Baker v. State, 170 Vt. 194 (VT 1998) (citations omitted). Vermont case law has consistently demanded in practice that statutory exclusions from publicly-conferred benefits and protections must be “premised on an appropriate and overriding public interest.” The rigid categories utilized by the federal courts under the Fourteenth Amendment find no support in our early case law and, while routinely cited, are often effectively ignored in our more recent decisions. As discussed more fully below, these decisions are consistent with the text and history of the Common Benefits Clause which, similarly, yield no rigid categories or formulas of analysis.
[32] Goodrich v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).
[33] Goodrich v. Department of Public Health (citations omitted). For due process claims, rationabl basis analysis requires that statutes “bear a real and substantial relation to public health, safety, morals, or some other phase of the general welfare”…For equal protection challenges, the rational basis test requires that “an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the menders of the disadvantaged class.”
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