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.

8/05/2005 10:18 AM  
Blogger beautifuls said...

Buy cheap Classic Cambridge Satchel Music Cambridge Satchel Designer Cambridge Satchel Metallic Cambridge Satchel and Limited Cambridge Satchel with cheap price and high quality. Fluro Orange Cambridge Satchel

2/28/2012 9:20 PM  
Blogger GuildWars2Items said...

Your future depends on your dreams. So go to sleep Diablo 3 Gold, he time of life is short ; to spend that shortness basely, it would be too long C9 Gold, It's great to be great, but it's greater to be human C9 Gold Sale. People who are serious about the relation are moody as they have devoted a lot that makes them worry about gains and losses.

Life is too short to wake up in the morning with regrets. So, love the people who treat you right and forget about the ones who do not buy c9 gold, Life is like a hot bath. It feels good while you're in it, but the longer you stay in, the more wrinkled you get cheap c9 gold, what gets us into trouble is not what we don't know.It's what we know for sure that just ain't so c9 money.

4/19/2013 1:17 AM  
Blogger ninest123 Ninest said...

ninest123 08.04
oakley sunglasses, nike air max, michael kors outlet, prada outlet, tiffany jewelry, louboutin shoes, nike outlet, michael kors outlet online, kate spade outlet, tiffany jewelry, burberry factory outlet, oakley sunglasses, coach outlet, michael kors outlet online, michael kors handbags, longchamp outlet, chanel handbags, michael kors, nike air max, kate spade, coach purses, nike free, replica watches, cheap jordans, ray ban sunglasses, prada handbags, louboutin uk, gucci handbags, burberry outlet, michael kors outlet store, true religion outlet, ralph lauren polo, ray ban sunglasses, coach outlet, coach outlet store online, oakley sunglasses, longchamp outlet, christian louboutin, christian louboutin, ralph lauren outlet, tory burch outlet, longchamp bags

8/03/2015 10:26 PM  
Blogger ninest123 Ninest said...

nike air force, jordan pas cher, vans pas cher, abercrombie and fitch UK, vanessa bruno pas cher, nike blazer pas cher, nike air max, true religion outlet, polo lacoste pas cher, michael kors uk, nike air max pas cher, lunette ray ban pas cher, north face pas cher, louboutin pas cher, longchamp soldes, michael kors, hermes pas cher, converse, nike air max uk, nike air max uk, nike free, polo ralph lauren uk, burberry pas cher, longchamp pas cher, nike free pas cher, nike roshe run pas cher, north face uk, mulberry uk, lululemon outlet, hollister uk, michael kors outlet online, true religion outlet, timberland pas cher, nike tn pas cher, ray ban uk, lunette oakley pas cher, hogan sito ufficiale, new balance, sac guess pas cher, true religion jeans, abercrombie and fitch, ralph lauren pas cher

8/03/2015 10:28 PM  
Blogger ninest123 Ninest said...

beats by dre, babyliss pro, nike roshe run, hollister clothing, abercrombie, mcm handbags, p90x workout, nike trainers uk, wedding dresses, softball bats, timberland boots, insanity workout, nike air huarache, instyler ionic styler, herve leger, lululemon outlet, north face outlet, asics running shoes, new balance shoes, valentino shoes, mac cosmetics, chi flat iron, hermes handbags, iphone 6 cases, nfl jerseys, nike air max, soccer jerseys, soccer shoes, celine handbags, nike roshe uk, oakley, reebok outlet, salvatore ferragamo, north face outlet, giuseppe zanotti, abercrombie and fitch, ghd hair, mont blanc, vans outlet, bottega veneta, jimmy choo outlet, longchamp uk

8/03/2015 10:29 PM  
Blogger ninest123 Ninest said...

coach outlet, pandora jewelry, ugg,uggs,uggs canada, hollister, pandora uk, converse shoes outlet, ugg,ugg australia,ugg italia, pandora charms, vans scarpe, ray ban, toms shoes, ugg pas cher, gucci, bottes ugg pas cher, uggs on sale, converse, replica watches, swarovski jewelry, thomas sabo uk, uggs on sale, wedding dresses uk, uggs outlet, supra shoes, marc jacobs, uggs on sale, juicy couture outlet, links of london uk, louboutin, ugg uk, juicy couture outlet, polo ralph lauren, hollister, montre pas cher, karen millen uk, lancel, swarovski uk, nike air max, uggs outlet
ninest123 08.04

8/03/2015 10:30 PM  

Post a Comment

<< Home