European Legal Brief Threatened Trouble for US Over Texas Sodomy Law
Catholic Family & Human Rights Institute
> July 4, 2003
> Volume 6, Number 28
> 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
> 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
> 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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