Should everyone be able to move to the suburbs? Do people have a right to move anywhere? Housing and job markets say no. Many suburban communities around Boston lack housing at prices affordable to many families. Many Boston neighborhoods are also beyond financial reach. If this were only a matter of markets, one could criticize the economic system that promotes them and advocate for public subsidies. Does the conversation materially change if local zon­ing laws themselves, rather than an invisible hand, play a significant role in fostering exclusionary results?

That was the question facing the New Jersey Supreme Court 41 years ago in Southern Burlington County NAACP v. Township of Mount Laurel, which it answered by reading New Jersey’s state constitution to require that the suburbs relax their zoning to permit development of housing accommodating a fair share of the region’s lower-income needs. Thanks to this and subsequent rulings, according to housing advocates, more than 60,000 new units of affordable housing have been built in New Jersey’s suburbs.

Mount Laurel was something of a riposte to the United States Supreme Court’s earlier refusal to find a similar requirement in the federal constitution’s due process and equal protection clauses. In the years after Mount Laurel, no other state court has followed suit. At one level, this is not surprising. Legally, the New Jersey decision bound only actors in New Jersey, without binding precedential effect elsewhere. What’s curious, however, is that no other state court found the Mount Laurel invitation suffi­ciently compelling that they looked deeply into their own constitutions to see if there was a Mount Laurel opinion lurking therein.

The Massachusetts Supreme Judicial Court is one of the nation’s leading courts in finding rights in the state constitution before they are found in the federal constitution. One need only reference Goodridge v. Department of Health’s (2003) conclusion that barring an individual from the benefits of civil marriage solely based on sexual orientation violated the state constitution’s requirements of due process or equal protection. It is time for someone to put before the court the possibility that a suburb’s unwillingness to zone enough land for development of multifamily housing affordable to lower-income families is similarly problematic.

The idea that unelected judges should make decisions based on state and federal constitutions overriding majority decision making by legisla­-
tures is always controversial. Chapter 40B, the Massachusetts legislature’s thoughtful response to local exclusionary zoning, has made inroads in forcing local governments to expand housing oppor­tunities throughout the Boston region, although many believe it is not nearly enough. A judicial examination based on fundamental ideas of equal treatment may yield more. As US Supreme Court Justice William J. Brennan, Jr., once wrote, “State constitutions . . . are a font of individual liberties, their protections often extending beyond those required by the [US] Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law — for without it, the full realization of our liberties cannot be guaranteed.” Justice Brennan’s invitation continues to resonate.

Kyle Nelson is an illustrator and art director at Stoltze Design.