The Impact of Foreign Law on the United States Supreme Court

The Impact of Foreign Law on the United States Supreme Court

The United States Supreme Court interprets the rights provided in the U.S. Constitution.  Changing public views on controversial topics, such as privacy in an era of terrorist threats or the rights of gay men and lesbians, may affect the way the Supreme Court decides a case.  But should the Court also consider other nations’ laws and world opinion when balancing individual rights in the United States?

Justices on the Supreme Court have increasingly considered foreign law when deciding issues of national importance.  This trend started in 2003 when, for the first time ever, foreign law was cited in a majority opinion of the Supreme Court.  The case was a controversial one in which the Court struck down laws that prohibited oral and anal sex between consenting adults of the same gender.  In the majority opinion, Justice Anthony Kennedy mentioned that the European Court of Human Rights and other foreign courts have consistently acknowledged that homosexuals have a right “to engage in intimate, consensual conduct.” (Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)).

The practice of looking at foreign law has many critics, including some conservative members of the Supreme Court, who believe that foreign views are irrelevant to rulings on U.S. law.  Other Supreme Court justices, however, including Justice Stephen Breyer and Justice Ruth Bader Ginsburg, have publicly stated that in our increasingly global community we should not ignore the opinions of courts in the rest of the world.

Question Presented

Should U.S. courts, and in particular the United States Supreme Court look to the laws of other nations for guidance when deciding important issues, including those involving rights granted by the Constitution?  If so, what impact might this have on their decisions?  Please explain.