Commentary: Foreign Jurisprudence Must Not Apply Here

It’s bad enough when judges legislate from the bench, but appealing to foreign courts for precedent to apply in our country is, in the minds of some, almost treasonous. Yet an appeal to foreign courts – to share with a “wider civilization” – was part of the reasoning used by the United States Supreme Court in its majority opinion in Lawrence v. Texas.

In Lawrence, the court announced a new, fabricated constitutional right to engage in sodomy. Its arguments were so questionable that the majority in Lawrence had to refer not just to the legal alchemy of Griswold v. Connecticut and its construct of the right to privacy, but felt compelled to appeal to European courts to justify the desired conclusion. The majority said that laws against sodomy “have been rejected by the European Court of Human Rights.” It argued that “other nations have taken action” to favor homosexual behavior, and therefore the U.S. should too.

The court said, in part, that because foreign countries approve of sodomy, our country should follow their lead.   What about the rights of Texans, Americans, and their legislatures to decide such matters? As the Supreme Court said, European elitists know better than Americans!

With such an appeal to European precedent, the court may have laid the groundwork for far more mischief down the road than most readers recognize. What does this mean to the nation? Who has the most to win, and who has the most to lose? Would we have been so anxious to turn to European courts a few decades ago? How about the German courts of the 1930s and 1940s? How about Stalin’s courts in Eastern Europe during the same period?

For all of us who depend on the morals, values, and the legal system which made our country great and unique in world history, and enabled us to produce the most powerful economy in world history, the stakes are high.

An A-1 Wall Street Journal story published days before the physical tragedies of September 11, 2001, speaks to the tremendous potential for economic peril if we lose the moral and legal foundations of our prosperity. Why are some economies robust, while others merely survive? “To a remarkable degree, the answers can be traced to the different legal traditions that emerged in England and France in the 12th century and spread through their colonies. Nine hundred years later, these traditions still influence business, investors, and government. And as globalization steadily erodes national boundaries, the differences are causing unavoidable strains.”

If we look to foreign law to change the boundaries of American law and morality, and to interpret our Constitution, can the loss of our hard-won prosperity, provided by our English Common Law respect for life, liberty, and private property, be far behind?

Many of our nation’s moral and legal foundations are at odds with those of France, Europe, and the Court of Human Rights. One of the foremost is set forth in the Declaration of Independence – which would not be approved by the same Court of Human Rights – the affirmation that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” which no man, no government on earth has the authority to steal.

So, Justice Kennedy, it’s not just a matter of what two homosexual advocates do to each other’s bodies. It’s about a differing view of our nation and its sovereignty.

The Supreme Court, upholding hundreds of years of English Common Law tradition, said a state legislature “could legitimately act … to protect ‘the social interest in order and morality,’” (Paris Theater I v. Slaton, 1973). The court also ruled that there is no constitutional right to sodomy (Bowers v. Hardwick, 1986). But European courts ruled differently, so who are American hayseeds to resist? Why should we sacrifice U.S. accomplishments to be saddled with European failures?

But as Supreme Court Justice Stephen G. Breyer told us, we should get accustomed to a lack of sovereignty and to increased globalization. During his recent interview with ABC News, Breyer said the world is growing together through “commerce and through globalization” and we will find out in coming years how our Constitution “fits into the governing documents of other nations…”

In 1966, did anyone realize Griswold v. Connecticut would lead to the further fabrication of so called rights? Griswold begat Roe v. Wade, and Roe begat the death of more than 40 million Americans. Now the High Court, to quote Justice Scalia, “…decree[d] the end of all morals legislation.” Does anyone know how Lawrence will “grow” and will influence the law?

The good news is that the fight is not finished, Lawrence is not the last word.

The Declaration of Independence refers four times to the existence of a Creator God. And as Thomas Jefferson once said, “Indeed I tremble for my country when I reflect that God is just and his justice will not sleep forever.” What modern European court embraces the philosophy of a Creator God and His higher law? Not one.

At the beginning of our republic, George Washington asked why Americans should surrender our great legal, social, and political advantages to European influence. “Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European Ambition, Rivalship, Interest, Humour or Caprice?”

In 2003, let us ask, why indeed?

Alan Sears is the president of the Alliance Defense Fund, the national legal organization that has fought more battles and won more cases defending the traditional definition of marriage. Sears is also the co-author of "The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today."