European Legal Brief Threatened Trouble for US Over Texas Sodomy Law

As debate continues on the significance of the US Supreme Court’s decision to overturn Texas’ law against sodomy, it has gone largely unnoticed that the majority’s decision relied on judicial rulings made in Europe and at the United Nations. The pivotal role of international law in the Supreme Court decision seems to confirm the concerns of conservative legal scholars, who have long warned that laws developed in Europe and at the UN could be imposed on the US. The majority opinion was guided, specifically, by the pro-homosexual rulings of the European Court of Human Rights.

In the majority opinion, Justice Anthony Kennedy also refers to a  “Friends of the Court” brief submitted by Mary Robinson, former UN High Commissioner for Human Rights, which asserts, “This Court should not decide in a vacuum whether criminalization of same-sex sodomy between consenting adults violates constitutional guarantees of privacy and equal protection. Other nations with similar histories, legal systems, and political cultures have already answered these questions in the affirmative..This Court should pay due respect to these opinions of humankind.”

Robinson’s brief also says, “Legal concepts like ‘privacy,’ ‘liberty,’ and ‘equality’ are not US property, but have global meaning.” Robinson argues that the United States should be “construing these terms in light of foreign interpretations,” even warning the Supreme Court that “To ignore these precedents virtually ensures that this Court’s ruling will generate controversies with the United State’s closest global allies.”

The brief seeks to isolate the Texas law, noting, “.the fifteen member states of the European Union included sexual orientation as an impermissible ground of discrimination in two international instruments. Similarly, five of the six major UN human rights treaties have been interpreted by their respective supervisory organs to cover sexual orientation discrimination.” This last point also troubles conservative scholars, since none of the UN treaties now interpreted as pro-homosexual explicitly mentions sexual orientation.

If the Supreme Court continues to be guided by the decisions of the UN and the EU, US recognition of same-sex marriage could eventually follow suit. The Robinson brief cites a number of cases in the United Kingdom, Canada and Israel, which appear to create a foundation for same-sex marriage. In one decision, Israeli Chief Justice Barak wondered how “living together for persons of the same sex [was] different, with regard to the relationship of sharing and harmony and running the social unit, from this life of sharing for heterosexual couples?” According to members of the UK House of Lords, “the concept of ‘family’ is now to be regarded as extending to a homosexual partnership.”

Writing in dissent, Justice Scalia condemned the importation of foreign laws into US judicial deliberations: “Constitutional elements do not spring into existence.as the Court seems to believe, because foreign nations decriminalize conduct.. ‘this Court.should not impose foreign moods, fads, or fashions on Americans.'”

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