FROM rights to housing in Indiana to abortion rights in Michigan, the effort to define and expand civil rights is moving out of the federal court system.As a conservative Supreme Court withdraws from the frontiers of civil rights and liberties - territory it opened and occupied during the middle of this century - civil libertarians are looking to state governments to carry their banner. Congress, in the meantime, is taking up defensive positions, seeking to hold ground that federal courts are vacating. On issues from the rights of accused criminals to religious freedom, Congress is trying to roll back Supreme Court decisions of the past few years. The American Civil Liberties Union, the leading liberal champion of defending and expanding minority rights, would now prefer to avoid the Supreme Court as an unfriendly forum. "We are finding it more difficult to prevail in the Supreme Court than we did even two years ago," says ACLU national associate legal director Steven Shapiro. The ACLU is now looking more to state courts and to legislatures - both the US Congress and in the states. It began a strategy group for state legislation a year ago, for example, and is training state lobbyists around the country in "a very deliberate preparation for what we see as a difficult next few years," says Loren Siegel, coordinator of the ACLU's state legislative work group. To some, this is as it should be. Controversial social issues should be argued in the political arena, not the courts, according to Chuck Donovan, staff director at the conservative Family Research Council. When the court stretches into territory far from the actual text of laws, as in finding constitutional rights to abortion, he says, it "thwarts popular will and politicizes the court." Mr. Donovan does not expect conservative values to triumph in the politics of issues such as abortion. Liberal court decisions have created social expectations for abortion rights over the past few decades. But, he adds, "I think states will become experiments in social legislation, and I don't think that's a bad thing." What is bad, according to ACLU chief legislative counsel Leslie Harris, is that protecting rights through legislatures requires majority support for rights that are sometimes unpopular. "Rights are not supposed to have popular constituencies," she says.
Religious Freedom Act One that has wide support is the right to the free exercise of religion as the federal courts have defined it in recent decades. The Religious Freedom Act is a direct effort to undo a Supreme Court decision of two years ago, Smith v. Oregon, that retrenched the constitutional protection of the free exercise of religion. The act withered last year under debate over its potential impact on abortion. But this debate appears very near resolution now, and groups from the liberal People for the American Way to the conservative Christian Life Commission of the Southern Baptist Convention are backing the bill. One of the most controversial court decisions last year was in Rust v. Sullivan, where the court allowed regulations that bar federally funded health clinics from mentioning abortion as an option for pregnant women. A bill to change those regulations at the federal level has passed both House and Senate and is now in conference committee, although the president plans a veto. Meanwhile, some states offer protection to government-funded abortion counseling that the federal courts do not. New Jersey established such a right over a decade ago. New York has a case in its courts now to do the same. In Michigan, the legislature and the public, through a referendum, have each voted against public funding of abortions, notes Mr. Donovan of the Family Research Council. But a lower state court has overturned such restrictions, and the case is headed for the state supreme court. The Civil Rights bill that President Bush vetoed last year was an attempt to roll back six Supreme Court decisions in 1989 that narrowed the uses of affirmative action and antidiscrimination law. Versions of the bill are back on the table this year, but no workable compromise has emerged.
Coerced confessions On the criminal law front, the rights of the accused usually have little popular support. The House Judiciary Committee, however, voted last month to reverse a Supreme Court decision last year holding that a coerced confession could be "harmless error" and did not necessarily require that a conviction be thrown out. On the state level, Maryland has already passed its own law reversing the court decision. Some states have more liberal guarantees of rights than the federal Constitution, says ACLU associate legal director Helen Hershkoff, and civil libertarians are beginning to turn to them more aggressively. The Indiana Civil Liberties Union, for example, recently won a right to housing for the homeless in state courts under a decades-old law. ACLU chapters are seeking to use for poor children state constitutions in Alabama and Connecticut that grant rights to education.