29-07-2003 00:38									#1
	Supreme Court citing more foreign cases Support Apolyton or Terrorists Win

quote: Posted 7/7/2003 9:19 PM WASHINGTON — The Supreme Court's reference to foreign law in a ruling last month that overturned state anti-sodomy statutes stood out as if it were in bold print and capital letters. Writing for the majority in a landmark decision supporting gay civil rights, 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." Never before had the Supreme Court's majority cited a foreign legal precedent in such a big case. Kennedy's opinion in Lawrence vs. Texas, which was signed by four other justices, has ignited a debate among analysts over whether it was a signal that the justices will adopt foreign courts' views of individual liberties. In theory, that could mean the conservative court someday might be influenced by other countries' opposition to the death penalty, their emphasis on foreign prisoners' rights and even their acceptance of same-sex marriages. (Last month, a court in Canada lifted a ban on such unions.) But it is far from clear that the U.S. high court routinely will turn to foreign law, and the practice has its critics — notably Justice Antonin Scalia. When the court interprets the Constitution, he has written, U.S. attitudes about what is decent and right — not foreign ones — are what should matter. In Lawrence vs. Texas, the court relied most fundamentally on the U.S. Constitution's right of privacy to strike down laws prohibiting oral and anal sex between consenting adults of the same sex. But it also emphasized the "values we share with a wider civilization" and how privacy for gay men and lesbians "has been accepted as an integral part of human freedom in many other countries." "It surprised me to see it in a majority opinion because there has been a debate among the justices over whether foreign law is relevant" to rulings on U.S. law, says Yale law professor Drew Days, a former U.S. solicitor general. Days is among those who saw the reference as a step forward. "The justices are gaining the benefit of very sophisticated thinking by other foreign courts about privacy and equality," he says. "Those terms are not unique to our Constitution and our society." Last year, Justice John Paul Stevens cited foreign law in a footnote when the majority banned executions of mentally retarded convicts. Stevens noted that "within the world community, the ... death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." That drew a rebuke from Scalia, who said, "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." Chief Justice William Rehnquist and Justice Clarence Thomas joined Scalia in his dissent. In the Texas case, Scalia — joined once again by Rehnquist and Thomas — wrote that "the court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court should not impose foreign moods, fads, or fashions on Americans." (Justice Sandra Day O'Connor voted with the Kennedy majority in the case but wrote a separate opinion.) Ruth Bader Ginsburg and Stephen Breyer have been the most enthusiastic justices in giving consideration to foreign legal trends. In voting last month to uphold an affirmative action policy at the University of Michigan, Ginsburg, joined by Breyer, highlighted an international treaty that endorsed the use of race-conscious programs to help minorities. But it was Kennedy's opinion striking down the anti-sodomy laws that set off debate among close observers of the court. His opinion referred to a "friend of the court" brief that described liberty as a global concept and detailed how other countries protect the privacy of gay men and lesbians. It was submitted by Mary Robinson, former United Nations high commissioner for human rights, and others. Kennedy said there was no evidence that the USA has a "more legitimate or urgent" reason than other countries to ban homosexual sex. The ruling in the Texas case came June 26, on the last day of the high court's annual term. Several justices were leaving for conferences overseas that also serve as reminders of how the justices increasingly are in touch with foreign legal issues. This week, five of the nine justices — O'Connor, Kennedy, Thomas, Ginsburg and Breyer — will be in Florence, Italy, for a forum with foreign judges on a proposed new European constitution.

http://www.usatoday.com/news/washington/2003-07-07-foreign-usat_x.htm

	29-07-2003 00:53									#2
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So?

After all US states cite other state's opinions on a variety of opinions, even when the case deals with the state Constitution. I see no reason why the US Supreme Court should not look at opinions of other courts to determine which policy it should follow.

	29-07-2003 00:55									#3
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quote: Originally posted by Imran Siddiqui So?

When the court interprets the Constitution, he has written, U.S. attitudes about what is decent and right — not foreign ones — are what should matter.

	29-07-2003 00:59									#4
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quote: Originally posted by DinoDoc When the court interprets the Constitution, he has written, U.S. attitudes about what is decent and right — not foreign ones — are what should matter.

Oh dear.

	29-07-2003 01:06									#5
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I think you are correct Dino Doc. Yet, if we can use foreign laws to make or uphold domestic laws here are some laws I want in the US:

-Age of Consent should be 13, like in Japan

-Children may not purchase cigarettes, but they may smoke them, like in Australia

-You may only have one child, or you will have to pay a fine, and To go to college you must be intelligent, like in China

Well, there are a lot more here

	29-07-2003 01:07									#6
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I wonder if they were using it as an illustration or a justification of the ruling. Obviously foreign laws and court rulings should not be the basis of our court rulings (except English Common law and the Code Napolean in Louisiana), but I see no reason why courts can't point to foreign rulings to illustrate and demonstrate their thinking.

	29-07-2003 01:18									#7
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Rulings that SCOTUS are supposed to be based on the US Constitution. Foreign law has no enforcability here, therefore it ought not to be used.

	29-07-2003 01:18									#8
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quote: I wonder if they were using it as an illustration or a justification of the ruling. Obviously foreign laws and court rulings should not be the basis of our court rulings (except English Common law and the Code Napolean in Louisiana), but I see no reason why courts can't point to foreign rulings to illustrate and demonstrate their thinking.

Bingo.

Jeez, DinoDoc, I wonder if you are pissed with Mississippi refers to an Arkansas case in their rulings?

	29-07-2003 01:23									#9
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Mostly it seems like activist judges are getting tired of reading all sorts of nonsense into existing American law (instead of say... just looking at exactly what the law says as written) and they have no decided they can use foreign laws if it suits their agenda. The constitution and declaration of independence are very clear about the US being a sovereign nation which makes it's own laws and that the Congress is the body which makes those laws.

	29-07-2003 01:36									#10
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Foreign law is secondary authority, and has been used in law and motion practice in US courts for only a couple of centuries.

The tradition of citing foreign law, in the US and before it ever existed, goes back prior to the Romans.

There's no issue, DD, Shi and Oerdin, unless a US court claimed it was obligated to follow foreign law.

The Justices' opinions are just that - illustrative explanations of their reasoning. If a judge or justice is so inclined, he/she could cite Bloom County or Calvin & Hobbes.

The court's holding and/or order is the only thing that actually constitutes law. If you read the holding in the cited case, there's no reference to foreign law.

	29-07-2003 01:40									#11
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quote: If a judge or justice is so inclined, he/she could cite Bloom County or Calvin & Hobbes.

Damn, that'd be great if someone cited Calvin & Hobbes in their opinion .

	29-07-2003 01:44									#12
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yeah but those foreign laws were to figure out intent and common practice as in what does law X mean and how does it traditionally apply in English Common law. It has nothing to do with determining if something like homosexual acts can be considered immoral or not. I am especially concerned about this is the far left is no longer even basing their opinions upon American laws nor the constitution.

If they think their point of view is so great then elect people to congress who will enact their point of view, but, this crap about how they always lose elections so their going to worm their way into the courts and then enact their drivel is just plain outragious.

	29-07-2003 01:52									#13
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Considering that the "far left" SCOTUS consists of 7 Republican appointees, I think it's a little premature to raise the cry that the leftist hordes are coming.

I think the basis in American law and the Constitution is pretty sound: When you have consenting adults in the privacy of their own homes, it's none of the government's damned business who sticks which part in who.

Now if we could just expand upon this notion a bit, and push government back further out of our homes and pants, that'd be just great. Get the Congress to pay attention to that bit about "Interstate Commerce"

Or do you really think your tax money and mine should be spent on community fudgepacker patrols? How about we just install cams everywhere, and two-way TVs?

	29-07-2003 01:52									#14
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quote: Originally posted by Oerdin I am especially concerned about this is the far left is no longer even basing their opinions upon American laws nor the constitution.

Uhm, we have almost no representation in the courts (and certainly none in SCOTUS), though it's possible the odd radical or two has somehow slipped past Congress. Given that the majority of SCOTUS is conservative or worse (Thomas, Rhenquist and Scalia are reactionaries, not just conservatives) and that there are no liberals (though moderates seem like liberals compared to the aforementioned three), the far left, the left, and even liberals, had nothing to do with this ruling.

Please leave us out of your rant.

	29-07-2003 01:52									#15
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quote: yeah but those foreign laws were to figure out intent and common practice as in what does law X mean and how does it traditionally apply in English Common law.

Not always. In some early US SCOTUS opinions, the justices would look at the laws of France and Germany and how other countries do the same thing as justification for their holding.

	29-07-2003 02:43									#16
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quote: Originally posted by Japher You may only have one child, or you will have to pay a fine, and To go to college you must be intelligent, like in China

Not accurate. In China the first child is eligible for state benefits (health and education). Extra children aren't.

The parent's aren't "fined" by a court - they just have to be rich enough to pay for things the first child gets for nothing.

	29-07-2003 03:11									#17
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In my view, right to privacy is an aspect of liberty. The protection of Liberty is object of the main body the Constitution and is expressly protected by the 14th amendment. But assuredly, the United States did not invent Liberty or the right of privacy. In determining the meaning of Liberty and the boundaries of the right of privacy, surely we can look abroad and to history for a common understanding of what these terms meant at the time of writing the Constitution and what they mean today to humanity. I see nothing wrong therefore in Supreme Court looking to European views on the right of privacy.

	29-07-2003 07:51									#18
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well in this case they were striking down a stupid law.

So I'll escuse them this time.

But if they start trying to turn american into some foreign country- then I might have a problem. Not that I can do anything about that, since we don't elect supreme court judges.

	29-07-2003 08:01									#19
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What che said. The ruling was well-grounded on the 14th (for two reasons - liberty as Kennedy cited and equal protection as O'Conner cited), as well as the 9th as the courts didn't cite.

	29-07-2003 08:10									#20
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Che: what do you consider Ginsburg then? She's definetly on the left . Hell, she wants to be Brennan .

	29-07-2003 09:06									#21
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Black, Brennan, Douglass and Marshall were a hell of a line, though.

	29-07-2003 09:23									#22
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quote: I wonder if you are pissed with Mississippi refers to an Arkansas case in their rulings?

I would be unless the state constitutions were identical and Arkansas got it right.

	29-07-2003 16:56									#23
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	29-07-2003 17:23									#24
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quote: Originally posted by Oerdin yeah but those foreign laws were to figure out intent and common practice as in what does law X mean and how does it traditionally apply in English Common law. It has nothing to do with determining if something like homosexual acts can be considered immoral or not. I am especially concerned about this is the far left is no longer even basing their opinions upon American laws nor the constitution.

So NOT arresting gay people is extreme?

Funny thing is, people like you complain about high crime then want to police to waste resources by arresting people for consentual acts of sex.

	29-07-2003 17:30									#25
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quote: Originally posted by Oerdin The constitution and declaration of independence are very clear about the US being a sovereign nation which makes it's own laws and that the Congress is the body which makes those laws.

I find your xenophobia really amazing. They haven't applied Art 8 ECHR, after all. Or did they?

You're dealing with very open terms in fundamental rights - what is liberty, what is justified, what is reasonable. Taking the opinions of other courts that have to make the same determinations can shed some light on the issue, but any decision is still grounded on your domestic law. Just don't ignore that your Constitution and other western human rights texts share the same roots.

	29-07-2003 18:51									#26
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quote: I would be unless the state constitutions were identical and Arkansas got it right.

Why? On a case involving something with Arkansas has already ruled on, but Mississippi may have not, why not see how other states have ruled on the same issue? Everyone in law knows that decisions of other jurisdictions are secondary authority anyway.