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State constitutional provisions often have similarities to the US Constitution. Many state courts outsource the interpretation of these provisions through lock stepping with federal courts. However, there are signs that momentum is changing. In recent cases in Connecticut, Texas and Pennsylvania, judges urged courts to accept the constitutional interpretation of independent states. Cases that span the ideological spectrum highlight both the breadth of issues the constitution addresses, and the obstacles to achieving more robust state constitutional law.
An example is: Statev. HaynesConnecticut Supreme Court has permitted prosecutors to use statements obtained in violation of defendant Miranda’s rights to demonstrate conflict in his testimony. (This is known as evidence of each ammo.) In a ruling of 5–1, the court rejected an appeal to reconsider the existing precedents adopted in the footnotes of an existing precedent – a single sentence.
The ruling prompted a long opposition from Justice Stephen Ecker, who argued for a more “subtle” approach to the evidence of each. The majority and opponents had a fierce difference on policy issues in play, but what hit me was the extent to which the previous court decisions created route dependence. The majority explained that there must be a “inevitable” reason to revisit previous judgments under the principle of staring decisions (i.e., respect for precedents). This led to a more “funny” analysis, as Ecker noted, if the issue was being considered in the first example than the court issued.
Given the frequency with which courts mandated state provisions in lockstep with the federal constitution, staring decisions are a regular challenge for litigation and judges seeking to graph a more independent path. It is worth considering whether different principles should be applied in these circumstances. In fact, the Ohio Supreme Court recently announced that “it would be appropriate to reconsider the irrational precedent” if it had previously adopted a federal approach without analysis.
The recent Texas Supreme Court decision created another set of challenges. Southern Methodist University v. United Methodist Church South Central Jurisdiction Conference. In this case, the court ruled on statutory basis that the Methodist Conference had the right to sue the University for breach of contract. In agreement, the four Justice emphasized that the court never decided to determine how much the Texas Constitution protects the autonomy of religious groups that seem broad, unlike the original amendment.
The judge argued that there was important reason the court never analysed the constitutional issues in the state. In this case, the litigator “advanced as if federal and state laws were identical in the possibility of protecting the conference’s religious autonomy from interference.” That’s a concern I’ve heard from many judges. State constitutional claims are often not independently raised or discussed in briefs filed in court. In agreement, Texas Justice explicitly invited Amichi, Barr, the public, lawsuits, litigation and underclass judges to help map the “clear outlines” of Texas religious protection.
It ends in the Pennsylvania case. Ferguson v. Department of Transport. It doesn’t fit in the same pattern at all as the other two, but that raises the point I find really interesting. In this case, those facing a driver’s license suspension following a DUI conviction provided protection against “arbitrary and unjust laws” that challenged the suspension under the Pennsylvania Constitution (protection against “arbitrary and unjust laws”). The court ultimately rejected the request, but applied the state precedent to use rigorous standards of examination standards that apply under the federal constitutional argument when considering the state’s constitutional arguments.
In his consent, Judge David Wecht argued that he opposed the enhanced standards of review based on his own independent review of the state constitution. Therefore, the argument was not about whether or not the Pennsylvania Constitution should be interpreted independently, but rather how. Wecht pointed out that the Pennsylvania Constitution actually does not have due process clauses. Instead, state protections against unfair or arbitrary laws are rooted in two other provisions. Guarantees of certain “individual essential rights” including the pursuit of life, freedom, and happiness (the versions of which appear in many national constitutions), and provisions that guarantee “relief by course of law.”
By using federal constitutional principles as a framework, such as a substantial due process, the court ultimately suggested that state constitutions are treating them as more than the “weak, my many companion” of the US Constitution. His argument points to the pull of gravity, such as a substantive due process in state law, even when state constitutional texts differ and courts independently evaluate state constitutional claims. We will see if this type of conceptual lockstep debate becomes more common as state courts become more involved in the state’s constitutional interpretations.
Alicia Bannon is Editor-in-Chief State Court Report. She is also the director of the Brennan Judicial Center’s Judicial Program.
Suggested Quote: Alicia Bannon, Recent state judicial opinions criticize lock steppingsᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (August 4, 2025), https://statecourtreport.org/our-work/analysis-opinion/recent-state-judicial-opinions-critique-lockstepping
