It is often said that federalism operates as a sort of pendulum, swinging back and forth between the federal and state governments. This is true with judicial protection of fundamental rights.

After the progressive days of the Warren Court, President Nixon campaigned against it and appointed more conservative justices. In reaction, and with the encouragement of Justices Brennan and Marshall, lawyers turned to state courts and constitutions for protection. This was called the New Judicial Federalism (NJF) and New Jersey was a leader. State court victories were not the same as a SCOTUS national victory, but were important and, in the case of marriage equality, helped achieve a national victory.