“Turn to the states.” That has been the battle cry among many who seek to preserve the right to abortion since the Supreme Court’s shameful decision overturning Roe v. Wade. In the immediate aftermath of Dobbs v. Jackson Women’s Health Organization, the ACLU, with our affiliates and allies (especially Planned Parenthood and the Center for Reproductive Rights) won preliminary victories under state constitutions allowing abortion services to continue or resume, at least temporarily, in Kentucky and Utah, and are litigating similar claims in a number of state courts including Georgia, Florida, and Ohio.

At the ACLU, we have long been litigating for civil liberties and civil rights in state courts — on abortion and so much else. In “Our New Federalism,” an ACLU report released today, we review a wide range of state constitutional victories over the past several years, a testament to our commitment to using state courts to protect and expand civil rights and civil liberties.

American Civil Liberties Union

Our New Federalism

As the federal judiciary has become increasingly hostile to rights protections, the ACLU has turned to state courts to advance civil liberties.

State courts hold promise in the face of a hostile federal judiciary for three reasons. First, although state constitutions cannot be less protective than the federal Constitution, state courts can interpret their own constitutions and laws to be more protective. Second, state supreme courts have the final say on state law, so a civil rights victory under state law generally cannot be appealed to the U.S. Supreme Court. And third, because so much of the day-to-day regulation of our lives is carried out by the states, the lion’s share of civil rights and civil liberties issues arise in the context of state enforcement; and that means state constitutional limitations apply as well as federal ones. Roughly 90 percent of all criminal laws are state-based, for example, rather than federal.

In 2022 alone, the ACLU has won several important state court civil rights victories. The ACLU and its Ohio affiliate won state supreme court rulings that Ohio’s redistricting maps violate a state constitution provision that bans partisan gerrymandering. The U.S. Supreme Court has ruled that partisan gerrymandering is beyond the reach of the federal courts, so this result would not have been possible under federal law.

In January, the New Jersey Supreme Court limited lengthy prison sentences for juvenile offenders in State v. Comer, an ACLU of New Jersey case. This ruling likewised relied on a provision in the New Jersey Constitution that does not appear in the U.S. Constitution.

February, the ACLU of Montana, together with the Center for Reproductive Rights, blocked a state law that prevented qualified clinicians, including nurse practitioners and nurse midwives, from providing early abortion services. In anticipation of the Supreme Court’s ruling in Dobbs, we went to state court in Michigan, and together with Planned Parenthood, won a preliminary injunction in May barring the enforcement of Michigan’s 1931 felony abortion law under the Michigan Constitution. Because both of these rulings rest on state law grounds, they are undisturbed by Dobbs

In March and July, the ACLU and its Texas affiliate, together with allies Lambda Legal and PFLAG, turned to state court to challenge Gov. Greg Abbott’s directive that providing gender-affirming care should be investigated as child abuse. In Doe v. Abbott and PFLAG v. Abbott, the state court blocked investigations of our clients under the directive until all issues in the lawsuits are fully resolved.

At the ACLU, this is nothing new. We have defended civil liberties in state courts since our founding over 100 years ago.

In 1925, the ACLU argued in the trial of John T. Scopes (known as the Scopes “Monkey Trial”) that a Tennessee law banning the teaching of evolution violated the Tennessee Constitution. Although Scopes was convicted, the media coverage of the case reached millions, and in just the next two years, bills prohibiting the teaching of evolution were defeated in 22 states.

In 1969, we filed an amicus brief supporting the very first challenge to the constitutionality of an anti-abortion statute in the Supreme Court of California. In People v. Belous, the court invalidated California’s abortion restriction on state constitutional grounds. And since then, we sued in various state courts to establish independent state law protections for abortion, to extend Medicaid coverage to abortion, and to protect teens seeking abortions (including in New Jersey and Alaska).

In the first two decades of this century, the ACLU partnered with our allies to argue in state court that the right to marry should extend to same-sex couples. That claim had been summarily rejected in federal court, but marriage equality wins in Vermont, Massachusetts, Connecticut, California, Iowa, New Mexico, and New Jersey laid the groundwork for the U.S. Supreme Court’s recognition of the federal right to marriage equality in Obergefell v. Hodges.

State laws have also made it possible to challenge racial discrimination in the administration of the death penalty, in circumstances that federal law does not reach. The ACLU and its North Carolina affiliate successfully advocated for passage of a state Racial Justice Act, which allowed individuals facing capital punishment to have their sentence commuted to life imprisonment without parole if they could show that racial bias had affected their trial — a pivotal state law protection, given a prior U.S. Supreme Court ruling that such racial disparities did not violate the federal constitution. We then brought the first case under this law, and showed that racial discrimination tainted the trial of Marcus Robinson, a Black man, the youngest person ever sentenced to death in North Carolina, for a crime committed when he was 18. In 2015, the state court commuted Mr. Robinson’s sentence to life imprisonment.

These are just some of the many victories we have obtained in state courts. In “Our New Federalism,” we detail more more than 125 civil liberties and civil rights cases that we have filed in the last five years or so that advance arguments, most often in state courts, based on state constitutional and statutory civil rights provisions, seeking protections above and beyond what federal law provides. They span 24 states, and the whole range of issues that matter most to our members, including reproductive freedom, voting rights, workers’ rights, educational equity, free speech, privacy, freedom from discrimination, criminal defense, and the rights of incarcerated persons.

There are limits to what can be accomplished on the state level. Some actions, including those of federal officials, often can be challenged only in federal court. The states that are most likely to infringe on our rights often — though not always — have less hospitable state courts as well. And even when we secure a favorable decision, state court decisions directly affect only that state.

Politics can also complicate matters. Some state court judges must run for re-election, and to that extent may be less likely to protect civil rights and civil liberties where those claims are not likely to be popular. Some state legislatures exercise control over state courts. And many states make it fairly easy to amend their state constitutions through ballot measures, which have at times been used to overturn constitutional decisions. (For example, California voters approved Proposition 8 in 2008, which reversed a prior marriage equality victory in the California Supreme Court.)

We still need to pursue litigation in federal courts. But in the face of a U.S. Supreme Court that is increasingly hostile to rights protections, state court litigation has never been more important. As these examples and the many others in our report illustrate, state courts can provide meaningful protection for civil rights and civil liberties when federal courts fail us. We’ve been doing this work for a century. We won’t stop now.

Special thanks to Duncan Hosie, Eva Stevenson, Cal Barnett-Mayotte, and Farzana Ali for their assistance on this blog and accompanying report.

Help us win pivotal court battles across the country by donating now.

Every few years, the United Nations Committee on the Elimination of Racial Discrimination convenes to review the United States’ adherence to the similarly named racial justice treaty ratified by the U.S. in 1994.

Given that the last U.S. review took place under the Obama administration in 2014, this year’s review was a first for the Biden administration. As expected, the Biden administration claimed significant progress on racial justice in its report and presentation to the committee. However, more than a year into his term, few of President Biden’s commitments on racial justice and human rights have been realized.

When President Biden took office, he promised to reverse years of Trump-era disengagement on the international stage and center racial justice and equality at home and abroad. One of his first acts as president was to sign an executive order aimed at achieving racial equity in the U.S. In announcing the order, Biden called systemic racism “corrosive,” “destructive,” and “costly.”

We agree — but these remarks do not excuse the meager progress that the U.S. has made toward realizing the promise of the treaty: to eliminate all forms of racial discrimination.

In a joint submission ahead of the review, the ACLU and Human Rights Watch characterized U.S. progress toward compliance to the convention as “elusive — indeed, grossly inadequate” in various areas, including reparative justice, discrimination in the criminal legal system, use of force by law enforcement, discrimination in immigration enforcement, and racial discrimination in public services and social protection. Additionally, the report offers the Biden administration a roadmap to implementing measures to correct stark racial disparities without having to confront the U.S. Congress.

Posturing itself as a moral leader in defending human rights, the U.S. has intentionally exempted itself from human rights demands that it has pressed on other countries while permitting structural racism and xenophobia to operate as pervasive, unbridled forces in American society.

U.S. civil society groups, including the ACLU, our state affiliates, and partners like Human Rights Watch and the Leadership Conference on Civil and Human Rights have been on the ground in Geneva to show the committee the substandard progress on human rights and racial justice, and what steps our government can take now to turn the tide.

As international pressure has frequently contributed to domestic victories on racial justice issues throughout history, U.S. civil organizations are maximizing international mechanisms to enrich their advocacy efforts.

Jamil Dakwar, director of ACLU’s Human Rights Program, and Stephanie Amiotte, legal director of the ACLU North Dakota, South Dakota, and Wyoming, testified before the committee to underscore systemic police violence and the lack of U.S. education on Native American history in schools, respectively.

After six hours of failing to provide adequate answers and leaving many questions unanswered to the frustration of the committee, it became abundantly clear that the U.S. has much more to do at the local, tribal, state, and federal levels to claim global leadership on racial justice.

The committee pressed the U.S. delegation on various significant issues previously raised by U.S. civil society: racial disparities in sentencing, health, and reproductive rights; impunity for police violence; anti-Black racism in immigration enforcement; housing segregation; education inequities; discriminatory child welfare system; environmental racism; and the lack of progress on respecting treaty and sovereignty rights of Indigenous Peoples.

Echoing the demands of U.S. civil society, the committee also urged the Biden administration to issue an executive order to establish a federal commission to study reparations for slavery.

The U.S. delegation has 48 hours to submit additional information and responses to the committee, which will issue its final report and recommendations on August 30.

This process offers the Biden administration another opportunity to transcend the limits of the U.S. civil rights framework and dismantle structural racism in the U.S. through a robust, universal international human rights lens. It is also an opportunity to uplift the voices of directly impacted communities and address the way in which the legacies of the transatlantic slave trade and colonialism inform our contemporary world, a shortcoming of the U.S. identified by the committee.

The committee held the United States to account with its strong questioning. We urge our leaders to embrace the committee’s recommendations and comprehensively tackle systemic racism in the U.S.

President Biden can act today – including by establishing a federal commission to explore the creation of a National Human Rights Institution and the creation of a federal coordination body with a mandate to implement a national plan of action to fulfill international human rights obligations.

In her closing remarks, committee member Faith Pansy Tlakula quoted Nelson Mandela, “The very fact that racism degrades both the perpetrator and the victim commands that, if we are true to our commitment to protect human dignity, we fight on until victory is achieved. We should lay the scourge of racism to rest.”

It is time for the U.S. to reckon with its racist history.

Following a radical Supreme Court term that has had a devastating impact on abortion access, the separation of church and state, immigrants’ rights, privacy, and more, it’s easy to feel powerless. But we can still fight for our rights — starting in our communities, at the ballot box. We have the power to send a message to elected officials about what we value and what we want them to prioritize. Your vote can send a clear message to lawmakers and elected officials that they need to take bold action to stem the tide of attacks on abortion, and protect access to essential care — just as Kansas voters recently did when they defeated a measure that would have stripped the right to abortion from their state constitution.

Trust in American institutions has dramatically decreased in recent years, according to recent polling. Americans are losing confidence in the Supreme Court, politicians, and the media. But people still trust their family, friends, and neighbors.

That’s why your vote is so important this year, and why the ACLU wants to arm you with the knowledge you need to talk to your friends and family about the issues that matter. With just a conversation, you can use your existing networks to mobilize and activate your community.

Here, we break down some of the elected offices you may see on your ballot, so you can better understand how these officials wield the power to protect civil liberties and civil rights. Whether it’s for a district attorney election in your county or a supreme court judge race in your state, you have the power to change this country. This November, let’s remind our elected officials that they don’t have the final say when it comes to our rights — we do.

American Civil Liberties Union

Vote Your Values | American Civil Liberties Union

This election, join us by pledging to vote for your values, and fight for your rights by encouraging your friends and family to do the same.

State attorneys general are the top legal officers of their state. They have the ability to issue legal guidance or formal opinions to state agencies, including opinions on the constitutionality of abortion bans, restrictions on the right to learn, as well as choosing to not enforce education gag orders that restrict teachers and students from being able to learn and discuss issues related to race and gender in the classroom. They can advise their legislature and state agencies on ways to protect LGBTQ people from discrimination and ensure equal access to services, and can also join or initiate lawsuits challenging anti-LGBTQ laws or policies.

In many states, the secretary of state is the state’s chief elections officer with responsibility for oversight and administration of elections. The secretary of state can expand voting access by implementing measures such as automatic voter registration and universal mail-in voting, as well as advocating for a legislative agenda that pushes for greater access.

State supreme courts — often elected or retained by the people in statewide elections — can and often do find that state constitutions protect more rights than the U.S. Constitution, making them a powerful backstop protecting our rights against the attacks they face. They decide cases related to abortion, voting rights, the rights of LGBTQ people, free speech, and more. Now that the U.S. Supreme Court has overturned Roe v. Wade, state courts will likely be the final arbiters to decide whether reproductive freedoms are protected in the states, making this role especially crucial.

Also referred to as County Attorney, Prosecuting Attorney, or Commonwealth Attorney in some states, elected prosecutors are the most influential actors in the criminal justice system. They have the power to decide who should be charged with a crime, and can decline to press charges — including declining to prosecute a person accused of violating an abortion ban. Prosecutors’ decisions and their influence over local and state criminal justice laws have been one of the primary drivers of incarceration and racial disparities throughout the justice system. District attorneys can exercise prosecutorial discretion to not bring charges against those accused of violating classroom censorship laws and education gag orders that restrict teachers and students from being able to learn about issues related to race and gender in the classroom. They can also decline to prosecute crimes related to HIV status, sex work, and other criminalization that disproportionately affects LGBTQ people; train staff to respectfully manage cases involving hate crimes and domestic violence; and establish data collection to track treatment of LGBTQ victims and defendants.

In many states, county clerks act as the local election administrator and run the day-to-day operations of registration and voting. They may be responsible for recruiting and training election officials, mailing absentee ballots, and counting and canvassing election results. County clerks may be also responsible for issuing permits for LGBTQ parades or events, recruiting or training poll workers to ensure they are LGBTQ-friendly, or ensuring that same-sex couples can access marriage licenses.

School Board representatives can pass important policies to protect LGBTQ students from harassment, discrimination, and bullying, including ensuring students in their district have the right to access restrooms and play sports in accordance with their gender. They can also either endorse or fight back against attempts to restrict school curriculums limiting how race, sexual orientation, and gender identity may be talked about in school, and push back against attempts to remove books by and about LGBTQ people from school libraries.

The Board of Regents or Board of Governors are elected and approve curricula in some states, determining what students are allowed to learn or required to learn. They may be responsible for enforcing classroom censorship policies and education gag orders that restrict teachers and students from being able to learn about issues related to race and gender in the classroom. These officials have the power to protect the right to learn in higher education.

From limiting how and when we vote, to removing books by LGTBQ authors from library shelves, to criminalizing access to basic health care, politicians are attacking our fundamental rights. The midterm elections are a chance for all of us to say enough is enough.

Join us as we talk to our family and friends about why this election matters and pledge to vote our values.

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