Apparently a lot of people (Scalia at the forefront) are upset at the majority’s mention of “what other countries are doing” in the Lawrence v. Texas decision. In the opinion, Justice Anthony Kennedy noted that the European Court of Human Rights and other foreign courts have affirmed the ‘‘rights of homosexual adults to engage in intimate, consensual conduct.’’
http://www.usatoday.com/usatonline/20030708/5303928s.htm
It seems quite a few people think that alone makes the opinion based solely on extraconstitutional principles. I think that’s a load of crap. What the rest of the civilized world is doing should most certainly have a modicum of influence upon the Supreme Court’s decision. No, not in opposition to the Constitution, mind you. But if what the Constitution says were so clear cut in a given case, it wouldn’t have gotten past summary judgment at the district court. By the time the SCOTUS takes cert. on a case, it will necessarily have to look past the four corners of the statute in question.
The ultimate hypocrisy I see in Scalia’s standpoint is that, were a case before the Court wherein Roe v. Wade was at stake, he would have absolutely no qualms about listing all the other countries in the world that outlaw and think poorly of abortion.
Of course I do agree with Scalia when he says ‘‘The views of other nations, however enlightened the justices of this court may think them to be, cannot be imposed upon Americans through the Constitution.’’ But that is most certainly not what happened in the Lawrence v. Texas case. There was no imposition of foreign views. The case was not based on what other nations do. That reference was just a citation to persuasive (not binding) authority–no different than the 7th Circuit citing the 5th Circuit.
Or am I wrong? Should the Supreme Court never bolster its holding (or a dissent, for that matter) by alluding to what another nation does in the same situation?