Scalia: Court
Influenced
By Foreign Rulings On
Gays, Death
by AP from 365Gay.com
on the Web, May 19, 2006
Washington, May 18 -- Firing
the latest round in a debate with his Supreme Court colleagues, Justice Antonin
Scalia on Thursday decried the use of foreign law in interpreting the U.S.
Constitution on issues ranging from the death penalty to gay rights.
"I do believe that there's a moral law ... but I don't believe that judges have
been charged with deciding it," Scalia said in a speech on Capitol Hill.
Scalia criticized the court's use of foreign law in a decision striking down a
Texas statute that made gay sex a crime, a ruling in which he strongly
dissented.
In a 2005 ruling in which Scalia also was in the minority, justices outlawed the
death penalty for juvenile killers, citing in part international sentiment
against it.
Judges around the world have come to believe they are charged with deciding "the
most profound moral questions," Scalia said. "Should there be the death
penalty? Should there be a right to abortion? Should homosexual
conduct be proscribed?"
"If you believe that, of course you are going to cite the Court of Human Rights
in Strasbourg, because those guys wear robes just as you do," said Scalia.
"And therefore they also have been charged with determining the most profound
moral questions of mankind."
Scalia's made his remarks to a Capitol Hill audience that included Samuel Alito,
the court's newest justice, and about a dozen members of Congress.
Of those he feels lean too heavily on foreign law, Scalia asked rhetorically,
what authority can be cited when a court that says constitutional law which
"used to say one thing now says something else?"
"You have to make noises like a lawyer, right?" Scalia said. "Here's an
opinion of a foreign court. It looks like a real legal opinion, so and so
versus so and so, 33 Uganda 251." He said that "one of the worst aspects
of using foreign law for deciding our constitutional questions is that it is so
manipulable."
Scalia appears to have gotten some recent support for his views. At his
confirmation hearing, Chief Justice John Roberts stated his opposition to the
use of foreign law in rendering U.S. court decisions.
The issue of foreign law has become an increasingly high-profile issue for the
court.
Justice Steven Breyer has said it's appropriate in some instances to look at the
law in other places. Justice John Paul Stevens has said allowing U.S.
courts to consider the views of international jurists while making a decision is
a responsible practice. Before his death, Chief Justice William H.
Rehnquist weighed in against the use of foreign law, and Justice Clarence Thomas
has done so as well.
Before her retirement, Justice Sandra Day O'Connor dismissed growing criticism
about the Supreme Court's use of international law in its opinions, saying it
makes sense for justices to look at foreign sources when a point of law is
unclear.
Scalia's remarks came at a public policy forum of the National Italian American
Foundation.
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