[rock jock]

WASHINGTON -- The Supreme Court's reference to foreign law in a ruling last month that overturned state anti-sodomy statutes stood out as if it were in bold print and capital letters.

Writing for the majority in a landmark decision supporting gay civil rights, Justice Anthony Kennedy noted that the European Court of Human Rights and other foreign courts have affirmed the ''rights of homosexual adults to engage in intimate, consensual conduct.''

Never before had the Supreme Court's majority cited a foreign legal precedent in such a big case. Kennedy's opinion in Lawrence vs. Texas, which was signed by four other justices, has ignited a debate among analysts over whether it was a signal that the justices will adopt foreign courts' views of individual liberties.

In theory, that could mean the currently conservative court someday might be influenced by other countries' opposition to the death penalty, their emphasis on foreign prisoners' rights and even their acceptance of same-sex marriages. (Last month, a court in Canada lifted a ban on such unions.)

But it is far from clear that the U.S. high court routinely will turn to foreign law, and the practice has its critics -- notably Justice Antonin Scalia. When the court interprets the Constitution, he has written, U.S. attitudes about what is decent and right -- not foreign ones -- are what should matter.

In Lawrence vs. Texas, the court relied most fundamentally on the U.S. Constitution's right of privacy to strike down laws prohibiting oral and anal sex between consenting adults of the same sex. But it also emphasized the ''values we share with a wider civilization'' and how privacy for gay men and lesbians ''has been accepted as an integral part of human freedom in many other countries.''

''It surprised me to see it in a majority opinion because there has been a debate among the justices over whether foreign law is relevant'' to rulings on U.S. law, says Yale law professor Drew Days, a former U.S. solicitor general.

Days is among those who saw the reference as a step forward. ''The justices are gaining the benefit of very sophisticated thinking by other foreign courts about privacy and equality,'' he says. ''Those terms are not unique to our Constitution and our society.''

Last year, Justice John Paul Stevens cited foreign law in a footnote when the majority banned executions of mentally retarded convicts. Stevens noted that ''within the world community, the . . . death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.''

That drew a rebuke from Scalia, who said, ''The views of other nations, however enlightened the justices of this court may think them to be, cannot be imposed upon Americans through the Constitution.'' Chief Justice William Rehnquist and Justice Clarence Thomas joined Scalia in his dissent.

In the Texas case, Scalia -- joined once again by Rehnquist and Thomas -- wrote that ''the court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court should not impose foreign moods, fads, or fashions on Americans.'' (Justice Sandra Day O'Connor voted with the Kennedy majority in the case but wrote a separate opinion.)

Ruth Bader Ginsburg and Stephen Breyer have been the most enthusiastic justices in giving consideration to foreign legal trends. In voting last month to uphold an affirmative action policy at the University of Michigan, Ginsburg, joined by Breyer, highlighted an international treaty that endorsed the use of race-conscious programs to help minorities.

But it was Kennedy's opinion striking down the anti-sodomy laws that set off debate among close observers of the court.

His opinion referred to a ''friend of the court'' brief that described liberty as a global concept and detailed how other countries protect the privacy of gay men and lesbians. It was submitted by Mary Robinson, former United Nations high commissioner for human rights, and others. Kennedy said there was no evidence that the USA has a ''more legitimate or urgent'' reason than other countries to ban homosexual sex.

The ruling in the Texas case came June 26, on the last day of the high court's annual term. Several justices were leaving for conferences overseas that also serve as reminders of how the justices increasingly are in touch with foreign legal issues.

This week, five of the nine justices -- O'Connor, Kennedy, Thomas, Ginsburg and Breyer -- will be in Florence, Italy, for a forum with foreign judges on a proposed new European constitution.


In theory, that could mean the currently conservative court someday might be influenced by other countries' opposition to the death penalty, their emphasis on foreign prisoners' rights and even their acceptance of same-sex marriages.
Not to mention greater gun control. This is futher evidence that this recent ruling had no basis under the Constitution. But, then again, it's all for a good cause. :rolleyes:

[agricola]

Not to mention greater gun control. This is futher evidence that this recent ruling had no basis under the Constitution. But, then again, it's all for a good cause.

so the Constitution does not guarantee the right to a private life?

[Marko Kloos]

This is futher evidence that this recent ruling had no basis under the Constitution.

It's the "sodomy laws" that had no basis under the Constitution, and SCOTUS merely acknowledged that. Remember that the Constitution is a limitation on government, not citizens.

[Pendragon]

My understanding is that they basically said the government has no compelling interest in such affairs and that laws should "have a good reason" for existing.

Lots of people bent out of shape because (horrors!) homosexuals can now practice.... HOMO SEX UALITY! ew! its so yucky, lets lock them all up! :what:

[Waitone]

Writing for the majority in a landmark decision supporting gay civil rights, Justice Anthony Kennedy noted that the European Court of Human Rights and other foreign courts have affirmed the ''rights of homosexual adults to engage in intimate, consensual conduct.''

Never before had the Supreme Court's majority cited a foreign legal precedent in such a big case. Kennedy's opinion in Lawrence vs. Texas, which was signed by four other justices, has ignited a debate among analysts over whether it was a signal that the justices will adopt foreign courts' views of individual liberties. and This week, five of the nine justices -- O'Connor, Kennedy, Thomas, Ginsburg and Breyer -- will be in Florence, Italy, for a forum with foreign judges on a proposed new European constitution. I was of the opinion that the 2004 election would turn on the economy. It may still, but at this point I think the court will end up being the issue.

The US has fought 2 civil wars in our brief history. The first was what is called the American Revoluionary War. The second has a number of names such as the Civil War or the Troubles or the War of Northern Aggression. The fight I think we'll see over the court wil qualify as a third civil war

Spooky as all get out!

[themic]

technically the constitution doesn't protect a private life. merely unwarranted search and seizure, which is related but isn't really the same thing.

i gues the theory is, it would still be wrong to, say, kill someone in a forest, even if no one heard it. or to speed on a deserted highway. or to have oral sex with your spouse in your bedroom. etc. etc. you get the point.

[El Tejon]

I don't know who wrote that, but there is at least one glaring error. The Supreme Court has cited foreign law many, many times before. Of course, they were consistent with the original intent, not with what a majority of the Court wishes the Constitution to be.

[Wildalaska]

Agree many Supreme Court decisions have more 'Blackstone" in them thatn a quarry...


WildonlyhomophobesdontlikethedecisionAlaska

[tiberius]

Lots of people bent out of shape because (horrors!) homosexuals can now practice.... HOMO SEX UALITY! ew! its so yucky, lets lock them all up!

Lock who up? The Texas law that was in dispute could only result in a $500 fine.

While I think that the Texas legislature should have overturned the law themseves because it is a stupuid law, Texas has the right to pass the law per the 10th amendament.

Of course, this is the same court that upheld racial discrimination.....

[jsalcedo]

I think its hilarious that some of the most learned and respected minds
in our country are relegated to deciding where you can put your genitals.

I wonder if they will have a SCOTUS case regarding laws against
bestiality next.


As long as our goverment is pre-occupied with silly garbage they will have less time to infringe upon our rights.

[Graystar]

My understanding is that they basically said the government has no compelling interest in such affairs and that laws should "have a good reason" for existing. What is it about this concept that is so hard to understand? US sovereignty? This is an important decision for *individual* sovereignty!

[cuchulainn]

Question for the "no privacy in the constitution" crowd:

Many states banned various forms of sex -- such as oral stimulation -- even between married heterosexual couples. If the case had involved a married heterosexual couple being fined, would you be as upset?

technically the constitution doesn't protect a private life. merely unwarranted search and seizure, which is related but isn't really the same thing. Re-read the 9th Amendment.

And BTW: that's like saying, "technically the constitution doesn't protect reading books. merely printing them, which is related but isn't really the same thing.While I think that the Texas legislature should have overturned the law themseves because it is a stupuid law, Texas has the right to pass the law per the 10th amendament. Re-read the 9th Amendment, and familiarize yourself with the concept of "incorporation" via the 14th Amendment

[tyme]

I don't understand why people are getting all riled up over this.

So what if the justices cite foreign courts' opinions? They can just as easily reach a poor decision without them. If they used foreign opinions to abrogate Constitutional guarantees or if they cited foreign decisions in every case -- "our decisions must have a precendent somewhere" -- then we would have a problem.

Justice Breyer gave a presentation about this very issue. I think it was the 2003-04-19 c-span "america and the courts" program if you can find it... cspan might have removed it from the archives by now.

[Jim March]

As long as foreign decisions are being used to support INCREASING personal freedom, I'm all for it.

The moment they want to limit the BoR based of overseas ideas, it's revolution time.

[tyme]

But gutting the BoR without pointing to foreign precedent is fine by you? The justices would never adopt a policy of having U.S. decisions guided by other courts. That would be self-imposed power reduction, and I'm jaded enough to believe that even people as -hopefully- wise as the justices on the U.S. S.C. would never willingly give up their power. That's both good and bad.

[tiberius]

Re-read the 9th Amendment, and familiarize yourself with the concept of "incorporation" via the 14th Amendment

Are you suggesting that since the bill of rights is defined by the 9th amendment as not being an all encompassing list of rights that the states have NO authority to legislate actions?


Edited for typos - d'oh

[tyme]

The states have no authority to infringe upon rights. They can do anything they want with regard to actions that are not protected rights and over which the Federal Government holds no jurisdiction.

[Sergeant Bob]

Re-read the 9th Amendment, and familiarize yourself with the concept of "incorporation" via the 14th Amendment
I don't think the 9th Amendment is posted on the cafeteria wall.;)

[tyme]

The way some of these recent decisions have gone, I don't think a single clause from the Constitution is to be found in the cafeteria.

[Jim March]

Tyme: don't be silly.

My record defending the BoR isn't half bad, for somebody operating on a shoestring anyways.

[cuchulainn]

Are you suggesting that since the bill of rights is defined by the 9th amendment as not being an all encompassing list of rights that the states have NO authority to legislate actions? The 9th says there are rights beyond the BoR (as you said).

The 14th says that states cannot infringe citizens’ rights (it uses the phrase "privileges and immunities.”)

Thus, if an action can be defined as an individual right – and privacy certainly can be – then states cannot infringe that action under the 9th/14th. The Constitution does protect privacy via the 9th/14th. (read next comment)The states have no authority to infringe upon rights. They can do anything they want with regard to actions that are not protected rights and over which the Federal Government holds no jurisdiction. Correct, though I'd point out that all rights are protected rights under the 9th/14th, even if not mentioned (enumerated) in the Constitution -- though they're not always protected in practice, unfortunately.

State's can regulate non-right actions, like murder.
I don't think the 9th Amendment is posted on the cafeteria wall. Well it should be ;)

[tiberius]

cuchulainn,

Good, then we are at least in a greement as to the meaning of the amendments.

Personally, I have have libertarian (note the small "l") tendencies and think that everyone should be able to anything that doesn't infringe on the rights of others. However this just isn't the case in law. It is silly when we are having a discussion of rights to bring up murder when this obviously infringes on another's rights, but if your assertion were true then the courts would have already found many things unconstitutionally infringed - prostitution, adult incest, drugs, etc. Somehow I don't see these prohibitions being ruled unconstitutional anytime soon.

I agree that "privacy" is and should be a right, but in what way do you think that the Texas sodomy law was a violation of privacy? Just because it is something that is done in privacy? What about drug use? It seems to me that the courts play the privacy card whenever they "feel" that a decision just needs to go a certain way for moral reasons (eg. Roe V. Wade ).

[cuchulainn]

tiberius but if your assertion were true then the courts would have already found many things unconstitutionally infringed - prostitution, adult incest, drugs, etc. Somehow I don't see these prohibitions being ruled unconstitutional anytime soon. The distinction is that between "protected" and "protectable."

Just because courts haven't used the constitution to protect an act, doesn't mean it is not a protectable act -- see my comment from my last post: "though they're not always protected in practice, unfortunately." tiberius but in what way do you think that the Texas sodomy law was a violation of privacy? Just because it is something that is done in privacy? Consensual sexual activity, even if offensive to some, is a private act.

In any event, the burden of proof -- in a free society -- is on the government to prove that something is not a right (as opposed to people having to prove an activity is a right in order to be allowed to do the activity).

Prove it is not a right.tiberius It is silly when we are having a discussion of rights to bring up murder when this obviously infringes on another's rights, I used it because it is the most obvious non-right that state's have the power to regulate.tiberiusIt seems to me that the courts play the privacy card whenever they "feel" that a decision just needs to go a certain way for moral reasons (eg. Roe V. Wade ). The difference here is that no one can argue that another human's rights(*) are being infringed by a consensual sex act. RvW hinges on whether you believe a fetus has rights that trump a woman's right to privacy in medical care.

(*) There is no right to be unoffended.

[Jim March]

One of the classic "we have more rights than just what's in the BoR" cases is, oddly enough, Dred Scott (1856). In reciting a litany of personal civil rights that blacks DON'T have :rolleyes: they listed a "right to free travel without papers or passport".

While that's not found in the BoR, labeling it a personal right is perfectly proper. I consider a "right to privacy" just as reasonable and support the recent sodomy-law decision.

One of the main arguments against ever having a BoR circa 1789/90ish was Anti-Federalist fears that once you codified rights on paper, future idiots might mistakenly think those were the ONLY rights we have. Recent events (hell, recent THR postings!) show this fear have been 100% on target.

The 9th and 10th Amendments were the bones thrown to the people with those fears - they were supposed to be "catch alls" for personal rights.

They've been sadly neglected of late. But in so far as they preserve specific rights of the people, they should definately be considered incorporated against the states (forcing the states to honor their principles) via the 14th Amendment of 1868.

[OF]

Your rights are not some ever-changing collection of temporary privileges that depend on case law for their existance.

All the case law and SCOTUS decisions have to say about your rights are how far the gov't is willing to go in either protecting them or oppressing you.Lock who up? The Texas law that was in dispute could only result in a $500 fine.Yeah, that ain't so bad, huh? I guess we should be thankful that our masters have offered us the pleasure of paying the fine instead of being incarcerated...which of course is what will happen if we don't pay the fine...but we should be thankful then too for being corrected and prevented from engaging in evil behavior. Good thing there's no sodomy in prision! We can all be protected from the evil behavior in there...

- Gabe

[rock jock]

In any event, the burden of proof -- in a free society -- is on the government to prove that something is not a right
It is not possible to prove a negative. Example: prove that I have no right to molest children, or beat my wife. You can't, because I can assert that I have that right. You must use a standard of permissable actions to decide what is allowable, or rather, what can be defined as a right.

The difference here is that no one can argue that another human's rights(*) are being infringed by a consensual sex act.
But, one can argue that certain behaviors are detrimental to society and therefore should be prohibited. In fact ,we already do this on a state-by-state basis with regard to prostitution. I don't know if the SCOTUS has ever ruled on a prostitution case, but I would interested in seeing the ruling in such as case.

Thus, if an action can be defined as an individual right – and privacy certainly can be – then states cannot infringe that action under the 9th/14th.
Privacy is not an action and just because an act is performed in private does not mean that the act itself is protected.

RvW hinges on whether you believe a fetus has rights that trump a woman's right to privacy in medical care.
Technically, RvW depends on the definition of "person". Currently, a fetus does not meet this definition. At another time in history, black people did not meet that definition either. Had privacy been used as a legal right in 1861, the Civil War might not have occurred and slavery may have lasted for several more decades.

Correct, though I'd point out that all rights are protected rights under the 9th/14th, even if not mentioned (enumerated) in the Constitution -- though they're not always protected in practice, unfortunately.
"All rights"???? Huh? What do you define as "all rights"? Is your list a personal one based on your own philosophy or a legal one?

[Tamara]

Example: prove that I have no right to molest children, or beat my wife.

Easy: Children have the right not to be molested and your wife has the right not to be beaten. Out of curiousity, where does one derive the right to tell one's neighbours how they may and may not make nookie when one isn't even present?

[rock jock]

where does one derive the right to tell one's neighbours how they may and may not make nookie when one isn't even present
Easy, a community has the right to set standards of decency. BTW, one may not be present when a prostitute is selling her wares next door, but one certainly has the right to object, and along with other members of the comminuty, prohibit such activity. Like I said, just because an act is committed in private does not make the act itself private.

[OF]

Easy, a community has the right to set standards of decency.Uhhh...no. Individuals have rights, communities (through their government) have powers. A communities governments powers are derived from the authority that the community allows it's government, through the vehicle of the Constitution. The Constitution does not offer the community, via it's government, the power to regulate anything other than that which it has been empowered to regulate.

Show where the gov't, through the constitution, has been given the power to regulate how adults have sex in their own private homes.

You can't, because it's not there.

- Gabe

[cuchulainn]

It is not possible to prove a negative. Not true. You are confusing a debate rule with logic.

You prove a negative by proving that something incompatible is posititive. For example, you can prove -- with your birthdate -- that you did not shoot Abraham Lincoln. See next comment for how this applies to rights.You must use a standard of permissable actions to decide what is allowable, or rather, what can be defined as a right. No -- in a free society -- the limitation is a standard of permissible areas for state restrictions. Everything else is a right by default. The state must prove that the action is something is within its legitimate powers to restrict. With that proof, it has proven the negative: the action is not a right. Privacy is not an action and just because an act is performed in private does not mean that the act itself is protected. No, privacy is actually a state of being. States of being are protected by the Constitution; for example: "The right of the People to be secure in their persons, houses, papers and effects against unreasonable searches and seizures..." (Amendment III).

Re: "just because an act is performed in private": To break the veil of privacy to stop an act, the state must show that the prohibited act (say murder or rape) rises to the level that triggers use of its legitimate powers.

However, you do not have the "right" to be given that state of being. You have the right to wellbeing, but the government (or others) do no owe you wellbeing. Welfare is wrong because it makes this mistake. The difference is that between "not taking away" and "giving." But, one can argue that certain behaviors are detrimental to society and therefore should be prohibited. Prove that consensual sex hurts society to a degree that legitmizes state power to break the veil of privacy and stop it."All rights"???? Huh? What do you define as "all rights"? Is your list a personal one based on your own philosophy or a legal one? It is based on the 9th Amendment's assertion that there are rights beyond those enumerated.

I recognize that society has a claim to debating whether XYZ is a right -- I just allign with the side that says the burden of proof is on the state.

Perhaps getting a hummer hurts society to a degree that the state must break the veil of privacy to stop it. Prove it.Technically, RvW depends on the definition of "person". Currently, a fetus does not meet this definition. Yes. Thus, whether you think it is a person will govern whether you think it has rights that trump the mother's right to medical privacy. Sometimes rights trump other rights. You have the right to gather wealth, but another's right to life means you can't exercise that right by killing another to take his money.

[rock jock]

The Constitution does not offer the community, via it's government, the power to regulate anything other than that which it has been empowered to regulate.
Wrong. The Constitution does not stipulate what a community may regulate, only that which it may not regulate. Even then, "regulate" is somewhat ambiguous since the Constitution only uses terms like "shall not abridge, infringe, prohibit".

Show where the gov't, through the constitution, has been given the power to regulate how adults have sex in their own private homes.
See the comment above. Also, show where the govt has the right to regulate speed limits, or incestuous relationships, or drinking water standards, or..........you get the point.

[cuchulainn]

Wrong. The Constitution does not stipulate what a community may regulate, only that which it may not regulate. Not true, but in any event, the Constitution does stipulate that the community may not regulate the unenumerated rights "retained by the People" (9th Amendment) -- this restriction on government power was applied to the states via the 14th Amendment.

(edited text for clarity)

[cuchulainn]

Also, show where the govt has the right to regulate speed limits, or incestuous relationships, or drinking water standards. Who here claimed it does? ;)

It might have those powers, but the burden is on those who claim it does.

[OF]

The Constitution does not stipulate what a community may regulate, only that which it may not regulate.With all due respect, RJ, this is simply not correct. The government derives its authority from the people via the Constitution. The Constitution, very obviously, is the design for a gov't: it lays out how the gov't functions and what it may do. The body of the Constitution does not say anything about what gov't cannot do because the purpose of the Constitution is to give a gov't specific powers, a gov't that starts with zero powers - due to the fact that power rests with the people.

Then there is the Bill of Rights, which is not a list of your rights in total, it is a final safeguard against just the kind of thought you are proposing - that the gov't, which in the body of the Constitution was given specific powers by the people, is free to do as it pleases unless specifically prohibited from an action. This is opposite of how our gov't works (or rather, is supposed to work). Originally, there was debate that the BoR should not be included into the Constitution due to the fact that it may be eventually misunderstood to be a list of the only rights the people had.

All of your other examples (with the exception of speed limits, which are debatable) can be said to be fair game for gov't intervention solely because that gov't has within it's authority (it's charge) the power to protect the rights of the citizens. Some people who know a little bit about this have said that it is 'for this purpose that governments are instituted among men.' If someone is being done harm, the gov't can intervene on their behalf to secure their rights and punish those who violated them.

To say that gov't is all-powerful except for a few restrictions on a piece of paper is incorrect.

- Gabe

[cuchulainn]

Easy, a community has the right to set standards of decency. That would be standards of public decency. This was an act done in private. Copulating in your front lawn violates public decency. Doing it in the kitchen does not.

BTW, are anti-prostitution laws based on decency?

[tyme]

And the backlash...

http://www.usatoday.com/news/washington/2003-07-28-poll_x.htm

48% for allowing same-sex relations, 46% against. Lowest support since 1996.

[Sean Smith]

It is amazing the logical contortions some allegedly pro-liberty conservatives will go through just to keep those damn dirty queers under their thumb. :rolleyes:

[longeyes]

More freedom from government interference is good for all of us.
The intellectual source that the Court uses for ensuring our individual
freedoms isn't the issue, it's what they rule. On this one they
were right.

[Robert inOregon]

The majority opinion specifically stated "individual right" instead of the liberal opinion of "right to privacy" for the first time since the New Deal. Randy E. Barnett wrote an article about Lawrence vs. Texas. Conclusion is that this case was ultimately a benefit to gun rights. If I had to choose between Randy E. Barnett or the inflammatory comments of some fringe group, I choose Barnett!

[Glock Glockler]

Before anyone starts using the 14th Amendment as the springboard for their arguement, I'd very much like to know the details of it's ratification. It is amazing the logical contortions some allegedly pro-liberty conservatives will go through to justify the legality of a decision using a law that was illegally passed.

If there is a defect in a state's laws, it should be corrected within that state, not running to Big Daddy Fed to tell us what to do.

Jim, you bailed on me in our 14th debate on the other thread, you won't bail here will you?:)