Justice Kennedy's Use of International Law in Lawrence v. Texas
Friday, June 27, 2003
- Organization: Human Rights Institute
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:
Human Rights In the United States (Human Rights Watch)
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