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Justice Kennedy's Use of International Law in Lawrence v. Texas

Friday, June 27, 2003

  • By: Cynthia Soohoo
  • Organization: Human Rights Institute
Writing the opinion of the court in Lawrence v. Texas, Justice Kennedy uses international law and standards to respond to a statement in Justice Burger's Bowers concurrence that condemnation of homosexual conduct is "firmly rooted in Judeao-Christian moral and ethical standards" and that such conduct has been subject to state intervention "throughout the history of Western civilization." Kennedy notes that prior to Bowers, the British Parliament repealed laws punishing homosexual conduct and the European Court of Human Rights held that laws prohibiting consensual homosexual conduct violated the European Convention on Human Rights. Kennedy noted that the European Court's decision, Dudgeon v. United Kingdom, is authoritative in all 45 countries that are part of the Council of Europe.

Later in the decision, Kennedy writes:

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. [citations omitted] Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct." [citation omitted] The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

Criticizing the use of international law, Scalia's dissent states:

Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization." [citation omitted], but rather rejected the claimed right to sodomy on the ground that such a right was not "'deeply rooted in this Nation's history and tradition.'" [citation omitted]. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court . . . should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U.S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).

The decision and dissent is available at:

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