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Another casualty of the SCOUTS decision on anti-sodomy law: US sovereignty
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.
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.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.
