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Scalia: Court Influenced By Foreign Rulings On Gays, Death

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Scalia: Court Influenced By Foreign Rulings On Gays, Death

by The Associated Press

May 18, 2006 - 7:00 pm ET

(Washington) 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.

©365Gay.com 2006

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