Justice Scalia cites a foreign Judgement

[AK84]

@Bricker

Are you freakin’ kidding me?

Scalia doesn’t cite the House of Lords for their authority on some point of substantive law. He refers to their opinion to show that a particular rule of statutory construction has a widespread history and lineage. If you removed that citation and paragraph from his opinion, it would change nothing.

It would change everything. The majority of the Court held that you have to apply every word in a statute when interpreting it. Scalia states that that approach is wrong and unnecessary (and I agree FTR). He relies on a House of Lords judgment to support his claim. You remove that and the outcome of the case is totally different.

[Zebra]

Does that mean that Scalia’s ruling is void in the State Oklahoma?

[Bricker]

@AK84

It would change everything. The majority of the Court held that you have to apply every word in a statute when interpreting it. Scalia states that that approach is wrong and unnecessary (and I agree FTR). He relies on a House of Lords judgment to support his claim. You remove that and the outcome of the case is totally different.

Not in the slightest. He goes on to point out that in other sections of the same code, his approach is followed:

Elsewhere as well, the Code makes it very clear when prescribed deductions are limited to actual expenditures.Section 707(b)(2)(A)(ii)(I) itself authorizes deductions for a host of expenses—health and disability insurance, for example—only to the extent that they are “actual . . .expenses” that are “reasonably necessary.” Additional deductions for energy are allowed, but again only if they are “actual expenses” that are “reasonable and necessary.” §707(b)(2)(A)(ii)(V). Given the clarity of those limitations to actual outlays, it seems strange for Congress to limit the car-ownership deduction to the somewhat peculiar category “cars subject to any amount whatever of out-standing indebtedness” by the mere word “applicable,”meant as incorporation of a limitation that appears in instructions to IRS agents

And:

In the present context, the real-world difference between finding the guidelines incorporated and finding it appropriate to consult them escapes me, since I can imagine no basis for consulting them unless Congress meant them to be consulted, which would mean they are incorporated. And without incorporation, they are at odds with the statutory language, which otherwise contains no hint that eligibility for a Car Ownership deduction requires anything other than ownership of a car.

The House of Lords opinion is an interesting historical footnote, not a linchpin of his reasoning.

[Bricker]

@Little_Nemo

Scalia decides his cases on ideological grounds. Then he looks for whatever legal grounds he can use to justify his decision.

So Scalia’s ideology steers him to help the struggling person who is declaring bankruptcy by allowing him to take the car allowance even thought his car is paid for?

[villa]

@Bricker

In Lawrence v. Texas, Kennedy cites Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981), to show that laws prohibiting homosexual conduct run afoul of human rights – the exact question under consideration in Lawrence. Nota collateral question, not a broad question, but the precise substantive legal question.

You know what - that just isn’t true. Let’s actually look at the opinion to see where Kennedy cites to Dudgeon. He does it twice.

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

This time the purpose is clear - it is to dispute a premise of Bowers that a claim to a right to consensual homosexual conduct was “insubstantial in Western civilization.”

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. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11—12. 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.

Here’s the second time. Once again, it is undercutting the concept that Bowers claimed that there were broadly shared values at stake.

Kennedy didn’t cite the European cases “to show that laws prohibiting homosexual conduct run afoul of human rights.” He cited them to critique Burger’s (vicious and meanspirited) concurrence to Bowers.

@Chief Justice Burger

As the Court notes, ante at 192, the proscriptions against sodomy have very “ancient roots.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality [p197] and the Western Christian Tradition 70-81 (1975). During the English Reformation, when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816, the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

[AK84]

The quoting of *Dudgeon * in Lawrence in order to rebut Bower was also misguided. Dudgeon was preceeded by the case of X v UK where the Court had upheld discriminatory laws on age of consent (which IIRC still hold the field) and both it and Laskey b United Kingdom in 1993 both confirmed that certain homosexual act could be restricted on the protection of health basis. Dudgeon was also decided on the basis of the right to privacy (Article 8 of ECHR not on equal treatment grounds), another reason why the citing was misguided.

@Bricker

Not in the slightest. He goes on to point out that in other sections of the same code, his approach is followed:

What he said

When a thought could have been expressed more con-cisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with.

He used the HoL judgment in support of above proposition. The question was whether the word “applicable” caused there to be imported into the section a rule of law which prevented a deduction. He stated that the word “applicable” added on its own nothing to the statute and hence the said regulation was not imported. He used the HoL judgment in support. The outome is different otherwise. What he states later is to bolster his outcome, that other parts of teh code allow for deductions, so why not this one. Interesting, but his opinion would make no sense just based on that.

[villa]

@AK84

The quoting of *Dudgeon * in Lawrence in order to rebut Bower was also misguided. Dudgeon was preceeded by the case of X v UK where the Court had upheld discriminatory laws on age of consent (which IIRC still hold the field) and both it and Laskey b United Kingdom in 1993 both confirmed that certain homosexual act could be restricted on the protection of health basis. Dudgeon was also decided on the basis of the right to privacy (Article 8 of ECHR not on equal treatment grounds), another reason why the citing was misguided.

That’s as may be. But to claim that the purpose of quoting Dudgeon was as demonstration “that laws prohibiting homosexual conduct run afoul of human rights” is misrepresenting the case.

[Bricker]

@villa

That’s as may be. But to claim that the purpose of quoting Dudgeon was as demonstration “that laws prohibiting homosexual conduct run afoul of human rights” is misrepresenting the case.

Yes, OK. I should have known better than to take a shortcut in my summary.

[AK84]

@Zebra

Does that mean that Scalia’s ruling is void in the State Oklahoma?

Its a dissenting judgement, it has no weight anywhere except as being persuasive.

[Don_t_Call_Me_Shirley]

@Spoons

I’m surprised to find that some Americans think they are unique in the common-law world, and that as a result, other common-law countries’ precedents should never be considered.

You haven’t met many Americans, have you?

[ShibbOleth]

I want to see him cite Sharia or Confucian beliefs. That would be worth the price of a ticket.

[The_Tao_s_Revenge]

@ShibbOleth

I want to see him cite Sharia or Confucian beliefs. That would be worth the price of a ticket.

Here’s a simulation of the force at which heads explode from such an event.