Friday, July 11, 2003


Lawrence v. Texas and "The Homosexual Agenda"

There has been considerable discussion about Justice Scalia's accusation that the Lawrence majority had signed on to "the so-called homosexual agenda." I believe what has irked some people is that the expression "the homosexual agenda" has a history. It is a form of code often used by Jesse Helms and other social conservative politicians to whip up resentment against moderates and liberals who support gay rights. The use of the term "homosexual agenda" has been a shrewd way of intimating without overtly stating that people who supported gay rights were somehow disloyal to the country (like the hidden communist agenda) because they were assisting in the destruction of America by destroying its moral fibre, or extremist, because they supported a deeper, hidden agenda whose real goals cannot be openly announced and are instead disguised in the plausible sounding garb of equal rights.

Here's a representative quote from Sen. Helms in support of a bill he introduced to roll back President Clinton's executive order prohibiting discrimination against gays in federal employment:

Mr. President, for many years the homosexual community has engaged in a well-organized, concerted campaign to force Americans to accept, and even legitimize, an immoral lifestyle. This bill is designed to prevent President Clinton from advancing the homosexual agenda at the expense of both the proper legislative role and the free speech rights of Federal workers.

From the standpoint of constitutional theory, what is interesting here is the extent to which such rhetorical appeals have any place in a Supreme Court decision. If Justice Scalia began speaking in code in a case involving race relations, one assumes he would be roundly condemned. But the social movement for gay rights has not won out in the same way that the Civil Rights Movement has. (As Trent Lott recently learned. Remember that Lott also said that gays were mentally ill like kleptomaniacs, and he wasn't thrown out of the Senate Majority Leader's position for saying *that.*).

If, as I suspect, in the long run, homosexuals are going to gain legal protection by legislatures and courts from most forms of discrimination, Scalia's accusation that the Court is marching to the tune of the homosexual agenda and Lott's equation of homosexuality with kleptomania will take on a very different cast for future generations. In the meantime, however, my prediction is that we are going to see a lot more code talk about gay rights in the future precisely because gays are gradually winning the battle for equal rights, and so the most overt forms of name calling and hate mongering won't be permitted. It will no longer be permissible to call Barney Frank "Barney Fag," as former House Majority Leader Dick Armey once did. Rather politicians will have to say that Representative Frank has worked all his life to promote the radical homosexual agenda that is slowly destroying America from the inside.

Finally, although many people are quite annoyed at Scalia's reference, my own view of what Scalia was doing is that he was simultaneously using this form of code and distancing himself from it through irony. He is well aware of what the words "homosexual agenda" mean when they are invoked by social conservatives. That is why I think he used the prefix "so-called."

Wednesday, July 09, 2003


The Supreme Court and the Law of Nations

Will Baude, who runs Baudesblog, asks how far back the practice of federal courts citing to international authorities runs. Is it just a new idea beginning with Atkins v. Virginia and Lawrence v. Texas, or does it go further back?

The answer is that the practice of American courts, and in particular the Supreme Court, citing to "the law of nations" goes back to the very beginnings of the country's history. If you think about it, you can see why this would have to be the case. When the country was first founded, it had very little law of its own, and, moreover, it was also a naval power continually engaged in international commerce. Go to Lexis and/or Westlaw and plug in "law of nations" and date pre 1900 in the Supreme Court library. You'll get scores (actually hundreds) of Supreme Court decisions referring to international law. Following World War II there was also an increasing number of international organizations, and thus more international law, which the Court also refers to.

Here, for example, is an early discussion of the law of nations by Chief Justice John Marshall in 30 Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cranch.) 191, 198 (1815):

The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a s[e]ries of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the Courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.

Thus, for those who think that citation to international sources is somehow inconsistent with the genius of the American Constitution, the hallowed practices of the founding generation, or the authority of the American Constitution and our country's devotion to the Rule of Law, I say, take it up with John Marshall.

And for those of you who are interested in further legal niceties, there is currently an interesting debate in the legal academy about the extent to which customary international law should be recognized as part of federal common law, in which two very fine scholars, Curtis Bradley and Jack Goldsmith have criticized the standard view that customary international law forms part of federal law. See Curtis A. Bradley and Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). I am concerned here only with the more narrow question of whether the Supreme Court may look to international law and to the decisions of foreign courts as persuasive authority, rather than as part of federal law. Even if Bradley and Goldsmith are correct that some elements of customary international law should not be regarded as part of federal common law, the practices by federal courts and the Supreme Court for well over two centuries of looking to foreign decisions, international law, and treatises on international law as persuasive authority would not be affected.

Monday, July 07, 2003


Legal Xenophobia

In a column at NRO online, Quin Hillyer bitterly denounces Justice Kennedy's citation of a 1981 decision by the European Court of Human Rights, Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981), in his majority opinion in Lawrence v. Texas:

There you have it: The values of Europe, and the decision of its (misnamed, borderline anti- Semitic) Court of Human Rights, are deemed somehow relevant for American constitutional jurisprudence.

On one level, Anthony Kennedy's line of reasoning should be familiar to American youngsters and parents nationwide. It's not much more than a gussied up version of "Johnny's mommy lets him do it, so why can't I?" (Or, more precisely, if Johnny can do it, shouldn't Billy's mom let him do it too — and by extension, if Billy's mom lets him do X, shouldn't I be able to do Y?)

But on a deeper level, the citation borders on the subversive. If the authority of extra-national courts is held to be even partially dispositive in the United States (especially without a formal treaty yielding a specific measure of American sovereignty on a particular issue), then the same foreign authority cited in supposed defense of liberty could be cited to take an American individual's liberty away. . . Unable to find clear authority in the U.S. Constitution for its raw exercise of judicial will, the Kennedy majority looked to a foreign source for justification. But any American with native intelligence can see that down that road lies alienation from our country's rule of law.

I don't find Hillyer's fears or his objections very plausible. There's nothing in American constitutional jurisprudence that prevents American courts from looking to the decisions of other courts, any more than they are prevented from citing treatises, or law review articles, or, for that matter, learned books written in foreign languages. American courts, including the Supreme Court, have done this from the country's inception. No loss of sovereignty is involved in citing such cases, because the cases are what lawyers call persuasive authority rather than controlling authority.

Within our federal system, state courts routinely cite decisions of other state courts on common law issues (or interpretations of uniform acts or statutes that are roughly similar between states). They well understand that these decisions are not controlling. State A's common law is not binding on State B's. More to the point, interpretations of State A's statute are not binding on interpretations of State B's similar statute. Within the federal judiciary, decisions of one circuit are not binding on those of other circuits. Nevertheless, courts look to what other courts have decided for guidance, even if they ultimately reject those decisions. Why? Because there is some advantage to considering how other judges in similar positions facing similar problems have handled a particular issue. It helps to know what they have decided, and often equally important, why they decided it that way.

Yet, one might object, what if courts in Europe take positions that are at odds with cherished American liberties? For example, many countries around the world have restrictions on free speech that are inconsistent with American free speech law. What is to stop American courts from citing those decisions? Well, nothing prevents an American court from citing such decisions, but citing such a decision does not make it convincing to other judges, nor, more to the point, does it make the decision controlling legal authority. Judges often cite law review articles or treatises for positions inconsistent with existing doctrines, (and other judges cite contrary law review articles and treatises) but that doesn't mean that judges have to follow what the law reviews or treatises say unless the judges are convinced by their reasoning. In like fashion, judges are free to reject or completely ignore the decisions of foreign courts if they think that they are irrelevant or unconvincing. That is precisely what circuit courts do with decisions by other circuit courts they disagree with, and state courts do with decisions by other state courts they think are wrong. That's what it means for authority to be merely persuasive rather than controlling authority. (Perhaps Hillyer is worried that American judges will read these foreign court opinions and become convinced by them. If that's his real worry, I think there is a long list of law reviews and treatises he should keep out of their hands as well, not to mention books, movies and television shows.).

Hillyer might resent judges using foreign court decisions to support liberal causes he thinks are inconsistent with the best interpretation of the Constitution. But there is no reason why Justice Scalia or other conservative jurists couldn't cite other constitutional courts as support for positions they happen to admire. And, in the long, run, I suspect that this is exactly what will happen, once people get over the shock of seeing foreign court opinions cited: Decisions by various foreign courts will be cherry picked and cited by both sides of a dispute selectively to make their points, just as law review articles and treatises are cited.

I strongly suspect that the reason why Justice Kennedy picked the European Court of Human Rights is because it agreed with a position he otherwise supported, and because he regarded it as a respected court. It is very doubtful that he would cite with approval a court that he didn't agree with, or one that he thought was from a country with a long history of human rights abuses, because that would undermine the citation's persuasive authority. Here again, citiation of foreign court decisions seems to me very much like the way that judges currently cite law reviews or treatises. They cite them if they agree with them, or to underscore particular points in an argument they are making. They do not, and cannot cite them as controlling authority.

Presumably Hillyer accepts the practice of cross citation between American courts, and the use of treatise and law review articles as persuasive authority. Nevertheless, he insists that there is something insidious, or as he puts it, "subversive," about looking to the decisions or the reasoning of a foreign court. Unless he is merely engaged in a xenophobic rant against all things not truly "American," I cannot see why this should be so. Countries outside the United States also have laws and constitutions. They also have judges, many of whom were trained in or have familiarity with common law modes of argument. Many many others have been deeply influenced by American constitutionalism, which is one of our most lasting legacies to the world. American constitutional ideas shaped the formation of post-World War II constitutions around the world, which, in turn, innovated on American models and synthesized them with parliamentary ideas. It is hardly surprising that American lawyers might be curious about the forms of constitutional argument that have grown up in the past half century. We planted seeds years ago in many other lands that have now borne fruit. Americans can hardly take credit for all of these innovations: The Canadians and South Africans, to name only two, would surely disagree. But America played an important role in inspiring much of the constitution making that followed the Second World War, and we should not disdain the experiences that might be gleaned from it.

Indeed, it is quite commonplace these days for constitutional courts around the world to cite the decisions of other constitutional courts, including the American Supreme Court, as persuasive rather than as controlling authority. Nobody believes that these citiations somehow deny these countries their sovereignty or undermine their constitutional systems. (Hillyer does not explain why frequent citation of American Supreme Court decisions by other counties' constitutional courts has not destroyed their constitutions and made them mere appendages of America). For the past half century, constitutional courts in Canada, Europe, Asia, Africa, and Australia have looked at what other constitutional courts around the world are doing in an effort to learn from each other as well as to avoid each other's mistakes. They have created a rich conversation about constitutions and constitution making. Here too they were not original; for the American Framers-- particularly James Madison-- undertook a deep study of the constitutions of the past and present when they began their deliberations in Philadelphia. That sort of interest in what other people are doing is not loss of sovereignty. It is wisdom and common sense.

The citation in Lawrence is quite modest when you compare it to what other constitutional courts are doing. All that Kennedy wanted to establish is a minor point: If Bowers is premised on the idea that homosexuality is inconsistent with Western values, (Chief Justice Burger's claim), or on the notion that any argument for homosexual rights "is, at best facetious," (Justice White's claim) we might look to see what other Western countries and constitutional courts have done. They are not American courts, to be sure, but they give some evidence of what Western values are and what is a reasonable as opposed to a facetious claim about liberty, just as decisions by state courts in the United States give some evidence.

What is remarkable is the degree of upset this modest citation has produced, of which Hillyer's op-ed is only one example. I wonder whether this upset is about something other than a desire to protect American sovereignty, for, as I have pointed out, that sovereignty is in no danger from the use of persuasive authority by foreign sources, any more than it is endangered by the citation to law reviews and learned treatises. What I think is going on is a certain visceral fear of something un-American creeping into the discourse of American constitutionalism. This is hardly the first time such xenophobia and No-nothingism have arisen in American history. Nor is it the first time that the purity of the American Constitution and American sovereignty have been defended by sanctimonious self-appointed champions against the poisonous ideas and tendencies of dreaded foreigners. It arises everytime people feel confronted with change. They strike out at that change by blaming it on something un-American.

The irony, of course, is that the American constitutional and legal system has never been so pure as its defenders believe. We have assimilated many different ideas into American law in the course of our history (many from Europe, I might add), and we remain a proud and free people. Indeed, Americans' ability to draw on ideas from all around the world, synthesize them and integrate them into our lives and our institutions is one of the abiding features of American ingenuity and one of the abiding strengths of American law. Something tells we that we will survive the occasional citation of a European court.