By Brian Doherty H awaii recently panicked the nation when a state judge there declared that prohibiting same-sex marriages violated the Hawaii constitution's equal protection clause. The decision is being appealed to Hawaii's Supreme Court, which previously sent the case back to the circuit court, demanding that the state must meet a strict burden of proof for the necessity of denying same-sex marriage rights. When you think Constitution, you probably imagine the Supremes, those nine contentious, berobed guys and gals in their august Washington halls. Every state has its own set, interpreting its own constitution. While the federal Constitution guarantees a certain minimum protection of citizens' rights, that's just a floor.
States can set a higher ceiling.
Hawaii's Supreme Court caused a ruckus, but its decision to expand a right beyond the federal standard is as American as outrageous tort lawsuits. Hawaii isn't the only state thumbing its nose at federal courts. After a half century of moribundity, in which federal courts were the arena for most fights over citizens' rights, state courts are more and more establishing higher ceilings for what they see as citizens' rights. As state courts are changing the lives of specific litigants and developing new legal biospheres for their states, they also face charges of playing politics instead of the disinterested judge. People in Kentucky, Michigan, and Texas can engage in oral or anal sex in the privacy of their home, without fearing jail time.