A Response to “The SCOTUS, same-sex ‘marriage,’ and International Law”

By Seana Cranston J.D. | August 12, 2010

In a post earlier this week, J.C. von Krempach appears to argue that the use of foreign law in a U.S. Supreme Court decision defining “marriage” is not “really something we should be worried about,” since “[t]he influence of foreign case law may at times lead to regrettable results, but at times it may also turn out helpful.”  With all due respect to my blog colleague, I believe Justice Scalia has a term for his argument–it’s called “sophistry.”  (“To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”  Roper v. Simmons, 125 S. Ct. 1183, 1228 (Scalia, J., dissenting)).  Mr. von Krempach further cites to “helpful” precedent from a recent decision in the European Court of Human Rights, which held that the word “marriage” in Article 12 of the European Convention on Human Rights does in fact mean traditional marriage.

Mr. von Krempach thus appears to argue that there is no problem with our U.S. Supreme Court importing foreign case law and using it to decide a question of constitutional interpretation–which, in this case, would essentially mean that the Court would look to foreign decisions, such as those of the European Court of Human Rights, to define “marriage.”

This position is problematic, on multiple levels.  There was a fantastic law review article published a few years ago in the Harvard Journal of Law and Public Policy regarding the general topic of the use of foreign law that delves into all the key arguments against its use.  Authored by Prof. Robert J. Delahunty and Prof. John Yoo, “Against Foreign Law” argues that the substantive use of foreign decisions 1) undermines the separation of powers and violates the constitutional rules against delegation of federal authority to bodies outside the control of our national government, and 2) undermines the limited theory of judicial review articulated in Marbury v. Madison.

In a sense, the problem of using foreign case law to decide U.S. decisions has some parallels with one of the key problems with Roe v. Wade.  Although it would take a much longer blog post to delve into this idea further, many conservatives have consistently argued that one of the problems with Roe was that–even apart from the obvious and immediate horrific moral implications of the decision–in Roe a federal court usurped an issue that had previously (and constitutionally) been the sole prerogative of state governments.  At the risk of sounding too simplistic (again, this would take a much, much longer blog post to flesh out), doesn’t the argument that the U.S. Supreme Court should look to foreign courts/decisions (in other words–a “level” of government outside of–or higher than–that of the U.S. Supreme Court and its own line of jurisprudence) rather parallel the Roe Court’s snatching of the abortion issue away from the states?  Because, in a sense, looking to foreign courts and foreign case law to decide an issue undermines the separation of powers in the same way that Roe undermines our federalist system in which power is split between the states and the federal government.

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