THE RECORD - New York City Bar Association

F R E D E R I C K A. O. S C H W A R Z, J R.
national level. But it should not be thought that these national changes
put an end to state innovations in the area of rights.
For example, during this period, New York City continued to be a
trailblazer. New York City passed its first housing discrimination law in
1939. In 1957, the New York City Council—generally derided in those
days and not as good as it is today—passed the first law in the nation
prohibiting discrimination in privately-owned housing.
Today, a renewed vigor of reform is thriving in states and localities.
The value of state innovation has reasserted itself increasingly in recent
decades. For example, California, the first state to adopt motor vehicle
emission standards, led the way long before federal statutes regulating air
pollution. National work on the environment remains vital, but an editorial
just today in the New York Times shows that states and cities are
again leading the way in pressing for even greater environmental improvements.
Cities and states—again, particularly New York City—likewise have
been standard bearers in the area of gay rights, although, as you know,
this issue is one that has proven that state experiments can go in both
directions. In 1986, this city passed a landmark gay rights law under then-
Mayor Koch, and just this past June New York City enacted a domestic
partnership law, providing an opportunity to experience such a law in
action. As of 1998, ten states and the District of Columbia have enacted
civil rights protections for people who are gay, far outstripping the provisions
made by the federal government.
It is not only the legislative and executive branches of state and local
governments that have made strides in recent years. Since Justice William
Brennan’s influential speech on state constitutions and individual rights, 9
the state courts have assumed the role of guardians of individual freedoms
even as the United States Supreme Court has begun to pull back
from the landmark decisions of the Warren Era. Our own Chief Judge
Kaye, speaking in this bar association in one of the Cardozo Lectures, has
asserted the importance of the state courts as trailblazers in protecting
individual freedoms. 10
Thus, from the genesis of the Bill of Rights to the ongoing invention
of new rights today, state experiments have contributed to the good of
9. William J. Brennan, Jr., State Constitutionalism and the Protection of Individual Rights, 90
Harv. L. Rev. 489 (1977).
10. Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 3 The Benjamin N.
Cardozo Memorial Lectures 1941-1995, at 1397 (1995).
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