[Congressional Record (Bound Edition), Volume 149 (2003), Part 14]
[Extensions of Remarks]
[Page 18658]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        FOREIGN COURT PRECEDENTS

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                           HON. DOUG BEREUTER

                              of nebraska

                    in the house of representatives

                        Wednesday, July 16, 2003

  Mr. BEREUTER. Mr. Speaker, this Member agrees with the sentiments 
expressed in a July 11, 2003, Omaha World-Herald editorial entitled 
``Courting foreign ideas.'' In the recent Supreme Court decision 
overturning a Texas sodomy law (Lawrence v. Texas), the majority 
opinion written by Justice Anthony Kennedy cites a 1981 European Court 
of Human Rights decision as evidence that state sodomy laws are not 
founded in Western tradition.
  Regardless of what one's position is on state sodomy laws, Supreme 
Court decisions should be (and, of course, generally are) based on the 
U.S. Constitution and U.S. legal precedent. This citation contributes 
to a damaging and dangerous precedent; this practice should end. While 
this Member is a long-time supporter of a strong transAtlantic 
relationship, European or other foreign court actions, laws or 
traditions should not be cited in U.S. court cases.
  This Member requests that the Omaha World-Herald editorial be 
included in the Congressional Record.

              [From the Omaha World-Herald, July 11, 2003]

                         Courting Foreign Ideas

       The U.S. Supreme Court's decision in Lawrence vs. Texas has 
     stirred political controversy, and not just for what it may 
     or may not mean for gay marriage. Its reference to a European 
     Court of Human Rights decision has spawned a furor over 
     whether the justices will adopt foreign courts' views of 
     individual liberties.
       We welcomed the outcome of the case, which overturned a 
     Texas sodomy law. But we're taken aback that a U.S. court, 
     particularly the highest one, could so boldly open itself to 
     foreign precedents.
       Justice Anthony Kennedy, who wrote the majority opinion in 
     the Texas case, cited the European courts 1981 decision as 
     evidence that state sodomy laws are not founded in Western 
     tradition.
       Past U.S. laws and traditions are referenced heavily in 
     many court decisions. American laws are certainly founded on 
     the nation's Western heritage, especially that of the British 
     legal system. But the U.S. Supreme Court is charged with 
     upholding the U.S. Constitution and U.S. legal precedent.
       In the 227 years of this nation's history, American laws 
     and norms have developed apart from those of other nations, 
     even those with similar concepts of liberty and rights. The 
     death penalty and gun control are important issues on which 
     U.S. and European laws, for instance, differ.
       Are U.S. citizens now to be bound by other countries' laws 
     and constitutions? Who will choose which countries' laws are 
     fit and applicable and which are not? In his dissent to the 
     Texas ruling, Justice Antonio Scalia. decried the foreign 
     citation.
       ``Constitutional elements do not spring into existence . . 
     . as the Court seems to believe, because foreign nations 
     decriminalize conduct,'' Scalia wrote.
       We agree. It's a course several justices seem inclined to 
     pursue, unfortunately.
       ``Our Constitution and how it fits into the governing 
     documents of other nations, I think, will be a challenge for 
     the next generations,'' Justice Stephen Breyer said on a 
     Sunday morning talk show.
       Foreign laws and ideals that become broadly accepted by the 
     U.S. populace certainly can be adopted into U.S. law--by 
     their elected representatives, in Congress. That's a 
     legislative function, not a judicial one. The guardians of 
     our Constitution should know that and abide by it.

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