California State Constitutional Conundrums - State Constitutional Quirks Exposed by the Same-Sex Marriage Experience: The 21st Annual Rutgers Lecture in State Constitutional Law

While constitutional law professors and commentators tend to devote their energy primarily, if not exclusively, to analyzing the Constitution of the United States, state constitutions also provide many learning opportunities. Just as there is a so-called laboratory value of federalism with respect to state and local statutory and administrative policies, features of and innovations in state constitutionalism should be looked at by other states — and at times the federal government — for possible emulation.

California’s recent (and ongoing) state constitutional experience with gay marriage and the state initiative process provide cases in point. There are numerous respects in which California’s state constitutional treatment of the same-sex marriage question may be informed by, and would profit from, a deeper awareness of the federal constitutional landscape. This essay explores some of the lessons that California and other states could learn from the federal government and Constitution. It also discusses ways in which states, by operating as laboratories, can influence the federal government and courts.