The high court struck down an occupational licensing law under the state Due Process Clause.

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For more than 80 years, federal courts have been inhospitable to claims rooted in “economic liberty” — the notion that the Due Process Clause of the 14th Amendment limits the government’s authority to interfere in a person’s employment or ability to enter into contracts. Last month, however, in Raffensperger v. Jackson

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, Georgia’s high court unanimously embraced heightened protections for economic liberty, striking down an occupational licensing law under the state’s Due Process Clause. The court explained that Georgians — in this case, lactation consultants — have the right “to pursue a lawful occupation of their choosing free from unreasonable government interference.”

In 2016, Georgia enacted a law requiring lactation consultants — who provide breastfeeding care and services for compensation — to secure a state license. Consultants had to pass a written exam (costing about $650), complete 14 courses in health sciences, including 8 college-level courses, and perform 300 supervised clinical hours. While less onerous and costly lactation accreditation and training regimes are common in Georgia, they could not be used to obtain a license.

Under the U.S. Constitution, these kinds of laws almost always survive challenges. Courts review them under a “rational basis” standard: as long as the regulation has a rational relationship to a legitimate government objective, it passes constitutional muster.

This is about as deferential a standard as you can get. In a 1955 case

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involving the regulation of opticians, the U.S. Supreme Court made clear that a law may be “needless” or “wasteful” without being unconstitutional. Making reference to the early 20th century’s Lochner

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era, when the Court regularly invalidated government regulations and worker protections, Justice William O. Douglas observed, “The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought.” It’s up to the legislature, not the courts, to evaluate such measures, the Court explained.

Georgia didn’t embrace Lochner 2.0 under its state constitution, but it did reject the “extraordinary deference” that the U.S. Constitution gives to economic regulations. Pointing to a “consistent and definitive” understanding that Georgians have a right to “engage in any honest employment [they] may choose, subject only to such restrictions as are necessary for the public good,” the court established a more rigorous review to determine any “arbitrary” burdens on people’s ability to pursue lawful work.

“Georgia’s Due Process Clause requires more than a talismanic recitation of an important public interest,” the court explained. Rather, the government has to put forward “a specific interest in health, safety, or public morals.” Protectionism or generic interests in quality or honesty in goods and services are not sufficient justifications. Here, there was no evidence that unlicensed lactation consultants were doing affirmative harm and plenty of evidence that alternative training regimes were also effective. Concerns that unlicensed consultants could pose a danger were, in the court’s view, purely speculative. For that reason, the government’s purported justification for the law wasn’t sufficient.

Georgia isn’t the only state to part ways with the federal courts in cases involving economic liberty. In 2015, the Texas Supreme Court ruled

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that Texas’s cosmetology laws and regulations couldn’t be applied to eyebrow threaders, because the 750 hours of required training for a cosmetology license — most of which does not relate to eyebrow threading — was “so oppressive” as applied to them that it violates due process under the Texas Constitution. Similar cases are also pending in Louisiana

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(hair braiding) and Oklahoma

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(eyelash extensions). At a moment when occupational licensing reform is gaining momentum

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in many states, state courts are poised to be important players.)

Looking to State Constitutions to Address Acquitted Conduct Sentencing

Under the U.S. Constitution, sentencing judges can consider conduct a defendant was previously found not guilty of. Kathrina Szymborski Wolfkot of the MacArthur Justice Center argues that “state courts may be our best hope for curbing a practice one federal district judge called ‘Kafka-esque.’” To date, state supreme courts in Hawaii, Michigan, New Hampshire, and New Jersey have barred this practice. Read more

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SCOTUS Raises Floor for Protection of Property Rights

In Tyler v. Hennepin County, the U.S. Supreme Court issued a Takings Clause ruling barring “home equity theft,” in which local governments seize the entire value of a property to pay off a smaller delinquent property tax debt. George Mason University law professor Ilya Somin analyzes the case and its implications for the relationship between state law and constitutional property rights. Federal judicial protection is “vital,” he argues, because “a variety of political pathologies often incentivize states and localities to under-protect constitutional rights.” Read more

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State Courts Grapple with Lookback Provisions in Child Sexual Abuse Cases

A Colorado law eliminating statutes of limitations for victims of childhood sexual abuse is being challenged in the state’s highest court by those who say it violates the due process rights of defendants. Emma Hetherington, a clinical associate professor at the University of Georgia School of Law, analyzes this case and offers national context. She argues that “lookback windows promote the public good by exposing hidden predators, punishing bad actors, and saving states and taxpayers money by shifting the burden of the social, psychological, and economic effects of abuse from victims to those bad actors.” Read more

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Georgia’s Social Status Clause Highlights Interpretation Questions

Anthony Sanders of the Institute for Justice discusses a recent Georgia Supreme Court case centered on the state constitution’s Social Status Clause, which was first adopted in 1868. Georgia has adopted four new constitutions since then, raising questions about how to interpret the provision. “The clause has never materially changed. But the meaning of ‘social status’ probably has,” Sanders writes. Read more

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EVENT

State High Courts in 2023: A Bicoastal LGBTQ Pride Month Conversation

On June 20 at 12:30 p.m. ET, New York Court of Appeals Judge Anthony Cannataro and California Supreme Court Justices Kelli Evans and Martin Jenkins will participate in a Pride Month conversation organized by the Richard C. Failla LGBTQ Commission and the Franklin H. Williams Judicial Commission of the New York Courts. Register

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to attend in person in New York City or watch via livestream

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. The Brennan Center is a cosponsor of this event.





What Else We’re Reading

Quinn Yeargain writes in the Yale Law & Policy Review

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about how state constitutions could serve a vital role in decarbonizing the American economy.

Mary Ziegler writes in Slate

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about the Oklahoma Supreme Court’s recent abortion ruling and carving a middle path for courts in red states on abortion rights.





Notable Cases

Oklahoma Call for Reproductive Justice v. State

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, Oklahoma Supreme Court

Applying recent precedent, held that two abortion laws violated the state constitution because they had inadequate protections for a pregnant person’s life. Read more in the Oklahoman

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Belton v. State

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, Maryland Supreme Court

Disavowed language in an opinion by a lower appellate court referring to a Black defendant and his mother with racially biased language, citing the defendant’s right to a fair and impartial judge. Read more in the Maryland Daily Record

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.

State v. Williams

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, New Jersey Supreme Court

Reversed the convictions of two defendants who were driving a borrowed vehicle and were stopped because the vehicle’s owner had a suspended license. The court concluded that it was reasonably apparent after the stop that the driver did not resemble the owner and that the defendants should have been free to go. Read more in the New Jersey Monitor

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