One Nation, Very Divisible

By PRISCILLA PAINTON

In the highly emotional controversy over an individual's right to die, the highest court in the land has taken a strict stand. Last June the U.S. Supreme Court declared that government has a legitimate interest in preserving life without regard to its quality. But citizens of Florida can largely ignore that ruling. Three weeks ago, that state's supreme court invoked the "privacy" provision of the Florida constitution to say the state should generally stay out of decisions to remove the feeding tubes of incompetent and incurable patients.

Almost a year earlier the Florida judges had sharply departed from the high court on another volatile issue. Only weeks after the U.S. Supreme Court gave states more power to limit access to abortion, the Florida court, again citing the state constitution, decided every woman has complete freedom to terminate her pregnancy during the first trimester and cannot be "significantly restricted" after the second.

Ask Americans who has the last word on their constitutional rights, and they will usually point to the U.S. Supreme Court. But last week, as David Souter appeared certain to win Senate confirmation of his seat on the nation's highest bench after a 13-to-1 vote by the Senate Judiciary Committee, some of the most important pitched battles of American jurisprudence were being fought far away from Washington, in the supreme court houses of the 50 states. Despite the success of the Reagan and Bush administrations at placing hundreds of conservative nominees on federal benches, a growing number of state supreme court decisions have created a patchwork of liberal exceptions to federal rulings on everything from drug testing to school busing to the public distribution of leaflets. And in an ironic reversal of the states' rights ideology upheld by conservatives during the era of the activist Warren Court, liberals now look to state constitutions as among the best guarantors of their freedoms.

Ronald Collins, a visiting associate law professor at Catholic University in Washington, has counted more than 600 cases in which the highest state courts have interpreted their states' constitutions to protect civil liberties more broadly than does the Supreme Court. About 60% of the decisions have come since 1980. What has made this movement possible is the long-standing legal principle that American states cannot provide less protection for individual $ rights than the U.S. Constitution, but they can provide more. And state decisions are immune from challenge at the federal level so long as they have an independent and adequate basis in the homegrown charter.

First in a trickle, now in an increasing stream, the state benches are using that prerogative. In New York, Connecticut, North Carolina and New Jersey, for example, the highest courts have refused to follow the U.S. Supreme Court in allowing prosecutors to use illegally seized evidence. The high court ruled in 1984 that such evidence was admissible so long as police obtained a warrant and were acting in "good faith." In California, Massachusetts and New Jersey, state supreme court judges have decided that their constitutions demand public financing of abortions for poor women, even though the U.S. Supreme Court has found no reason under the U.S. Constitution to require such spending. Oregon and Hawaii, respectively, going far beyond the U.S. Supreme Court, have used the free speech and privacy guarantees in their constitutions to strike down local antipornography laws.

Liberal lawyers are frank about the reasons behind their change in venue. "I came face to face with Reagan's federal appointees and got tired of being kicked around," says Jim Harrington, legal director of the Texas Civil Rights Project. Harrington has not filed a major civil rights case in federal courts in the past seven years. Two years ago, though, he convinced the Texas Supreme Court that the state's constitutional right to privacy precluded mandatory lie-detector tests for state employees. And in 1984 he won the right to workers' compensation for itinerant field hands under a state equal-rights amendment passed in 1972.

Several state courts have stepped into a social-engineering role in such areas as education and housing, where the Supreme Court has not ventured for decades. The high court decided in 1973, for example, that equal access to education is not a fundamental right under the federal Constitution. But 10 states, including New Jersey last June, have used their constitutions to order governments to bridge the gap between rich and poor school districts by overhauling their financing system.

Some state judges go so far as to argue that their high courts are better instruments of democracy than the federal bench because voters can remove state judges and can amend state constitutions more easily than they can change the federal charter. But even some liberals, including New York Governor Mario Cuomo, are uneasy about the revival of state judicial influence. They see it as a warning sign that the federal system as a whole has abdicated responsibility for setting national standards of justice. Declared Cuomo: "I do not believe the fundamental liberties and rights of members of our national community should vary, depending on what side of the state line one happens to be on at the moment." Still, if the U.S. Supreme Court becomes more entrenched in its conservatism, the Balkanization of American constitutional law could easily gather more momentum.

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CAPTION: JUSTICE JIGSAW