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Striking Down Texas’ Anti-Sodomy Law: The Real Story By: David Keene
TheHill.com | Tuesday, July 15, 2003


The news that five members of the Supreme Court were winging their way over to Italy on the heels of the decision striking down Texas’ anti-sodomy law seemed somehow appropriate.

Some of the flying judges were no doubt there to discuss the newly proposed constitution which was given as the official reason given for the junket, but two or three of them must have at least contemplated communing with European elitists on how they ought to vote on upcoming cases here. After all, in the Texas case they had for the first time in a majority opinion cited European public opinion, decisions of the European Court of Human rights and other foreign courts as reasons to strike down the Texas law.

It was the first time that the US Supreme Court had ever cited foreign decisions and opinion in this way as major determining factors in a major case and was the principal reason for Justice Scalia’s scathing dissent. Scalia, joined by Justices Rehnquist and Thomas, wrote of the majority’s reliance on foreign opinion and judicial decisions as a basis for the decision, that “the court’s discussion of these foreign views … is meaningless dicta, however, since this court should not impose foreign moods, fads, or fashions on Americans.”

In fact, of course, the court majority or some of those making it up are caught up in the need to march in step with those in Europe who envision a brave new world run by bureaucrats with the best interests of everyone but us in mind. Justice Stephen Breyer, for example, likes to talk about the need in the future to “harmonize” our laws with those of Europe and went so far as to appear on television after the Texas sodomy case to wonder whether our constitution will remain “relevant” in the coming age of globalization.

The implications of a reliance on the opinions emanating from Brussels are profound. Does this mean that in the next term the Court will strike down the death penalty as inconsistent not with the Constitution, but with the position of the European Parliament or that the Justices will review European campaign finance laws before voting on the constitutionality of the McCain-Feingold reforms? Who can say?

It was Breyer who, along with Justice Anthony Kennedy seemed most taken with the opinions of the Europeans in deciding the Texas case. Indeed, Kennedy in the court’s majority opinion specifically cited and praised an amicus brief filed in the case by Mary Robinson, the controversial former head of the United Nations Commission for Human Rights, suggesting that in deciding the case, the US Supreme Court should follow the lead of other nations in recognizing a “global concept” of homosexual rights.

Forget for a minute the question of whether Texas’ anti-sodomy law represented good or bad public policy and consider instead the broader implications of the way in which the Supreme Court went about striking it down. Their decision was based not on the language of the Constitution nor the wishes, beliefs or opinions of the founders. It wasn’t even based on previous Supreme Court precedent, lower Federal or State Court opinions or a developing consensus view in the United States.

Instead, it was grounded in court decisions and public attitudes that have developed in Britain, France and the rest of what is increasingly known as “Old Europe.”

As Scalia also pointed out, the Court didn’t crank the opinions of Africa, the Middle East or Asia into their decision-making. Had they done so, they might have found some substantial disagreement with the “global concept” of homosexual rights they found in Europe. The fact is that the views the Justices find so attractive are those of the European upper class elite; the folks who sit around in Paris and Brussels looking down their noses at us and opining on how the world ought to be run. For the United States Supreme Court or any justice who sits on that court to base a vote on their opinions, attitudes and prejudices makes a mockery of the Court, the constitution and more than two hundred years of history.

If Justice John Marshall had asserted the right of judicial review at the dawn of the 19th century because of a perceived need or desire to “harmonize” our views with the views of those who then populated the salons of Europe, he’d have been driven off the court and out of town on a rail.

We don’t do that anymore, but good ideas are truly timeless.


David Keene, chairman of the American Conservative Union, is a managing associate with the Carmen Group, a D.C.-based governmental affairs firm.


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