Constitutional Law and Foreign sources, continued

This is a lengthy email on a Law and Courts Discussion list, by someone much more versed than me about international (Kim Scheppele)

the international influence was a factor in Lawrence v. Texas(2003)]
European Court of Human Rights decisions were cited in the text, not just as ornament, but as persuasive authority for the point that "Western civilization" (which presumably includes the 45 countries that are under the jurisdiction of that court) has largely come to the view that anti-gay laws are mere prejudice not historic morality. It has been less noticed, but in Ginsburg's concurrence in Grutter (joined by Breyer) earlier in the week, she cites not only the International Convention for the Elimination of All Forms of Racial Discrimination (which the US has ratified) but also the Convention for the Elimination of Discrimination against Women (which the US has not).

The brief (PDF)urging the international arguments in Lawrence was submitted to the Court with Harold Koh as Counsel of Record and with able research assistance from a group of students at the Yale Law School. It reviewed the significant international jurisprudence in favor of striking down anti-sodomy laws (the Colombian and South African Constitutional Court decisions are particularly bold) and shows how many countries have acknowledged that gay rights are human rights. And it also compiles a wonderful collection of quotations from some of the current justices (some in opinions, some in speeches) about the need to look at international sources. For those who haven't seen the brief (or who haven't been part of the substantial conversations in comparative constitutional law where gay rights have been triumphing in jurisdiction after jurisdiction), ...

And it is true that US Supreme Court justices have been getting progressively more criticism from their fellow justices elsewhere for being so parochial. At international conference after international conference, judges from other courts can cite chapter and verse of US Supreme Court decisions but the US justices barely know the jurisdictional rules for these other courts. Perhaps Lawrence is one way to redress the balance just before a number of them head off for other countries and this year's round of (perhaps less) embarrassing summer meetings with judges from other courts..