Wednesday, July 09, 2003

From blog correspondent Lee Penn
Supreme Court cited European Union precedents in legalizing sodomy

The following is from Lee Penn:

Whether you agree with the result of the Court's sodomy decision or not,
there is Very Big News that is part of the majority decision: use of overseas
legal precedent as part of the ruling. Note the following story well; it is
from a mainstream paper.

Justin Bosl, an orthodox Catholic law student, adds the following assessment:

"Another aspect of Lawrence that seems to be largely ignored, but which is
nonetheless scary is its reliance on EU law. While it isn't too uncommon for
the court to look at foreign precedent when there is not U.S. precedent, the
court normally looks to U.K., Canadian, Australian, or S. African law, since it
is based on the same [common law] system. In Kennedy's opinion, however, he
claims that the EU law, from the European Commission of Human Rights, is more
authoritative than U.K. law, and cites it as showing the way to go. This not
only treats the EU as a sovereign entity, but as one with the ability to pass
judicial law that is more authoritative than that of nations with similar legal
systems to our own."

Here are some quotes from the majority opinion in the case, as found by Mr.
Bosl. (Bowers, referred to in the sections below, was the 1986 Supreme Court
case that upheld laws against sodomy.) ...

""The sweeping references by Chief Justice Burger to the history of Western
civilization and to Judeo-Christian moral and ethical standards did not take
account of other authorities pointing in an opposite direction. A committee
advising the British Parliament recommended in 1957 repeal of laws punishing
homosexual conduct. (The Wolfenden Report: Report of the Committee on Homosexual
Offenses and Prostitution
(1963)). Parliament enacted the substance of those
recommendations 10 years later. (Sexual Offences Act 1967).

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))

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."

"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, (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.

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."

(End of quote from majority decision)

Now that the High Court is using foreign precedents in its rulings, what will
it do next? It should be of great concern, since the European Union (whose
rulings the Court cited) is using hate-speech laws and other novel legal
concepts to suppress freedoms that Americans have still taken for granted. We
threw out the foreign rulers in the Revolution; it seems that the High Court is
opening the way to being foreign law into force in the US. Since much foreign
legal procedure and precedent is more authoritarian than US tradition, there
could be trouble ahead.

No comments:

Post a comment

Leave comment