O’Connor Says Court Will
Look to Foreign Laws
By
Robert Knight
Justice Sandra Day O’Connor told a Georgia audience that the U.S.
Supreme Court will base more of its decisions on international law.
In an October 28 speech to the Southern Center
for International Studies (SCIS) in Atlanta, O’Connor stated, “I
suspect that over time, we will rely increasingly – or take notice at least
increasingly – on international and foreign law in resolving domestic issues.”
She noted that the court had used foreign law in
Lawrence v. Texas (2003) to justify striking down Texas’ anti-sodomy law, and
in a 2002 decision prohibiting the executions of mentally retarded killers
(Atkins v. Virginia).
According to its Web site, “The primary mission
of SCIS is to internationalize the thinking of the American public.” Founded in
1962, SCIS has an array of programs on international education. Its main web
page recommends, “For more information on the importance of international
education, go to internationaled.org. That site “is part of a larger
initiative, Asia and International
Studies in the Schools, whose mission is to expand our nation’s investments in
international studies by stimulating teaching and learning about world history,
languages, cultures and current affairs in every school in America. … Asia Society is the
secretariat of Asia and International Studies in the Schools.” That
group, the site says, was founded in 1956 by John D. Rockefeller 3rd.
Accusing Americans of
bigotry
In the majority opinion in Lawrence v. Texas, Justice Anthony Kennedy
dismissed the historical overview of sodomy in the United States as written in Bowers v.
Hardwick (1986), in which the court had upheld Georgia’s sodomy law. Instead,
Kennedy cited the European Convention on Human Rights, the Wolfenden Report
on homosexuality from Great Britain, and the United Nations.
|
Justice Sandra Day
O'Connor
|
O’Connor
joined the Lawrence majority in a separate,
concurring opinion in which she did not cite international law, nor criticize
Kennedy’s reliance upon it. But she asserted that the real reason for
sodomy laws was “dislike and disapproval of homosexuals,” and said that
such laws constitute “an invitation to subject homosexual persons to discrimination.”
Her reasoning was strikingly similar to that of Justice Kennedy in Romer
v. Evans (1996), in which the Supreme Court stuck down Colorado’s Amendment Two initiative.
Kennedy had accused the people of Colorado of having no reason other
than “animus” against homosexuals for voting to stop the expansion of
civil rights laws to include “sexual orientation.” The Court, in effect,
has declared twice that opposing “gay rights” is a form of bigotry and
hatred. |
In
a scathing dissent, Justice Antonin Scalia accused the majority of having
“taken sides in the culture war” and wrote, “The Court’s discussion of
these foreign views (ignoring, of course, the many countries that have
retained criminal prohibitions on sodomy) is therefore meaningless dicta.
Dangerous dicta…this Court … should not impose foreign moods, fads, or
fashions on Americans.”
In
2002, O’Connor joined the majority in Atkins v. Virginia, which cited international
opinion in striking down a law permitting executions of mentally retarded
murderers. In his dissent, Scalia called the foreign references “irrelevant”
and noted that other nations’ “notions of justice are (thankfully) not
always those of our people.” |
Justice Antonin
Scalia |
In 1988, Justice John Paul Stevens wrote the majority
opinion in Thompson v. Oklahoma, striking down a law that
allowed executions of murderers who committed the crime when they were minors.
The opinion cited Amnesty International and other non-American authorities.
O’Connor wrote a separate, concurring opinion that did not take issue with
the majority’s citations of foreign sources. Scalia, joined by Chief Justice
William H. Rehnquist and the late Justice Byron White, called the majority’s
references “totally inappropriate as a means of establishing the fundamental
beliefs of this nation.”
Scalia added, “We must never forget that it is a
Constitution of the United States of
America that we are expounding. … The fact that a
majority of foreign nations would not impose capital punishment upon persons
under 16 at the time of the crime is of no more relevance than the fact that a
majority of them would not impose capital punishment at all, or have standards
of due process quite different from our own.”
In
her SCIS speech, O’Connor noted that she had met with judges from Arab
countries last summer and, she said, “The differences between our nations are
fewer and less important than our similarities,” according to the Fulton County Daily Report.
“I would think that having one’s head removed for
engaging in sodomy in Arab countries would be considered a significant dissimilarity
from the misdemeanor Texas sodomy statute, which O’Connor found so troubling,”
commented Jan LaRue, CWA’s chief counsel. “But then, she and the Lawrence majority didn’t consult
unfavorable foreign laws. Judicial activists are using foreign law as another
excuse to arbitrarily affirm or strike laws they don’t like. It’s incompatible
with the oath to uphold the U.S. Constitution and it disses our national sovereignty.
It ought to be grounds for impeachment.”
Robert
Knight is director of Concerned Women for America’s (CWA) Culture &
Family Institute, headquarted in Washington, DC. and may be contacted
by calling (202) 488-7000 or e-mailing mail@cwfa.org. For more information
regarding CWA visit their web site at www.cwfa.org.