Friday, July 29, 2005

The Insidious Wiles, Redux

Yesterday's dispatch from Elizabeth reads, in part, like a section of an amicus brief for future constitutional challenges against state laws in the US banning gay marriage -- a section that might be called "European and North American Practices in Protecting the Rights of Same-Sex Couples." It certainly goes a long way to demonstrating that the nations that share our Christian-Judeo heritage (the heritage that opponents of gay marriage lean on heavily in their arguments for why the definition of marriage should not change) are moving toward broad civil rights -- including the rights afforded heterosexual married couples -- for same sex couples.

Should what Switzerland, Canada or Spain do on this question matter? We have had ongoing discussions on this blog of the topic of foreign sources in domestic jurisprudence (see this discussion from June -- read the whole string). In what way did the practices of Europe and decisions of the ECHR matter in the Lawrence (striking down homosexual sodomy laws) and Simmons (striking down the juvenile death penalty) cases? In his majority opinions in both cases, Justice Kennedy's references to foreign practices and international court opinions took the position that we should care about what certain countries do, particularly those countries with whom we have, more or less, a shared religious and cultural history. On the other hand, Elizabeth's "Venus-Mars" characterization of differing trends in the US and Europe would, in many ways, support Scalia's position (and echoes his dissents in Lawrence and Simmons): we wouldn't dream of following European political practices when it comes to abortion rights, why would we do so for gay rights? On the other hand, if the main justification for denying marriage rights to gays is rooted in religious and cultural understandings of marriage, the developments in Canada and Europe (not to mention Massachusetts) demonstrate just how contingent those religious and cultural understandings may be.

ACS Conference note: The use of foreign and international sources in domestic law is one of the many interesting panels at this weekend's ACS convention in Washington, DC. I am sorry to be missing it, but for anyone in the DC area over the next few days, the conference has much to recommend it, including a panel on interrogation, torture and the war on terrorism.


Anonymous Elizabeth K. Cassidy said...

A few thoughts in response to Peggy’s questions:

Paul Krugman started his column in the International Herald Tribune last weekend by observing that Americans tend to believe that we do things better than everyone else, making it difficult for us to learn from others. This tendency may help explain some of the fuss over the issue of US courts citing foreign and international sources. However, it’s not all self-centeredness, of course: if the Constitution stated that the courts must or may consider foreign and/or (non-US ratified) international law, like the South African Constitution does, we wouldn’t be having this debate at all. But it doesn’t, so here we are.

As a teacher and researcher, I find it essential, and illuminating, to consider foreign and international approaches. More Americans, including judges, should think about the ways others do things more often. But should US judges rely on foreign and international sources in making their rulings? This is a different, and more difficult, question. First, one must determine whether the Constitution allows such reliance, a question on which, as seen in the debate on Opinio Juris and elsewhere, today’s great legal minds differ. Furthermore, assuming that it is constitutionally permitted, there is still the question of when reliance on foreign and/or international precedents is appropriate. A US court relying on European laws to require the legalization of gay marriage in the US would, it seems to me, be inappropriate. Gay marriage is a highly controversial issue for which no clear solution appears in the text of the Constitution or the founders’ intent, and on which European and American attitudes are very different. These circumstances weaken the relevance of European practices to the US situation and heighten the risk that a decision relying on such practices would be seen as illegitimate.

It is important to recognize the limited way that Justice Kennedy used foreign and international sources in Lawrence and Simmons. To me, neither case amounts to the illegitimate imposition of foreign moods, fads or fashions on Americans, as Justice Scalia contended. In Lawrence, Kennedy cited the ECHR decisions and foreign practices only to point out that arguments justifying Bowers v. Hardwick based on “values we share with a wider civilization” were misplaced. His rationale for rejecting Bowers was that its reasoning and result had been eroded in US society and law. In Simmons, Kennedy relied on the evidence of a national consensus for prohibiting juvenile executions, only using the international rejection of the juvenile death penalty – which he expressly noted was not controlling -- as confirmation of his conclusion. Moreover, Eighth Amendment precedent requires consideration of the “evolving standards of decency of the civilized world” in determining whether a punishment is cruel and unusual. As Professor Kontorovich mentioned, some academics advocate a broader reliance on foreign and international precedent in US constitutional interpretation, and Justice Ginsburg’s extrajudicial comments suggest that she, at least, may support this. However, Lawrence and Simmons do not go so far.

As for Peggy’s other point, I wonder if gay-marriage opponents would characterize Europe and America as still sharing the same Judeo-Christian heritage. I suspect that they would argue that this heritage is no longer reflected in the political and judicial decisions, such as allowing gay marriage, of today’s liberal, secular Europe.

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