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Copyright (c) 1999 Constitutional Commentary
Constitutional Commentary


Winter, 1999

16 Const. Commentary 599


William B. Rubenstein *


Get a group of civil rights lawyers together and there is at least one thing they would agree upon - they prefer to litigate in federal, not state, court. 1 Writing in 1977 from his decade-long experience as a civil liberties litigator, Burt Neuborne codified this sacred tenet in the pages of the Harvard Law Review. 2 In The Myth of Parity, Neuborne opined that federal courts were systematically preferable to state courts as a forum for the protection of federal constitutional rights. Neuborne's claim exceeded the simple proposition that federal judges were more politically liberal during this time period. Rather, he set forth an argument that federal courts were "institutionally preferable to state appellate courts as forums in which to raise federal constitutional claims." 3

The experience of gay rights litigators in the twenty-two years since Neuborne's thesis was published challenge his assumptions in several interesting ways. 4 Put simply, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. That statement poses two challenges to Neuborne's thesis. First, it implies that the federal courts were never institutionally better situated to protect disfavored claimants and that all Neuborne really experienced in his time as a litigator was a greater representation of liberal judges in the federal courts. This point has intuitive appeal because during much of the succeeding two decades, the federal courts have largely been dominated by conservative Republican appointees. 5
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