Foreign and International Law in Constitutional Gay Rights Litigation: What Claims, What Use and Whose Law?
William D. Araiza
Brooklyn Law School
William Mitchell Law Review, Vol. 32, 2005
Loyola-LA Legal Studies Paper No. 2005-17
This article, part of a symposium on the use of foreign and international law in gay rights litigation in the United States, considers several basic questions about the use of such non-domestic law in American constitutional adjudication. It begins by considering the argument that structural constitutional provisions are especially resistant to foreign law borrowing, given a nation's unique social and economic composition and the unique historical situation it faced in its founding period. It concludes that these characteristics influence both a constitution's structural and rights provisions, and thus do not adequately distinguish between situations where borrowing is appropriate and those where it is not.
The article then moves on to consider borrowing in constitutional rights adjudication, since most gay rights litigation is and will be based on rights provisions. Building on my earlier work in the area of congressional authority to enforce the Fourteenth Amendment, I argue in the article that foreign law can play three important roles in constitutional rights adjudication. First, it can provide empirical inputs that feed into domestic constitutional doctrine. Second, it can form part of the social context against which courts apply constitutional doctrine. These constitute relatively modest uses of foreign law.
A third and more aggressive use of foreign law sees it as a source of rules that should inform the actual meaning of analogous provisions in the U.S. Constitution. The article suggests that borrowing meaning in this way requires courts to determine whether the foreign provision is situated within that nation's set of constitutional commitments similarly to how the analogous American provision is situated with regard to the overall thrust of American constitutional law. The article expands on this understanding with several examples. The article also suggests that Justice Kennedy's focus on liberty in Lawrence v. Texas may well accelerate the process of foreign borrowing, not just because the opinion relies heavily on foreign law, but exactly because it focuses on the universal concept of liberty.
The article then considers the special problems posed by borrowing from international, as opposed to foreign, law. It suggests first that congressional ratification of treaties should be taken, for constitutional adjudication purposes, as an authoritative national embrace of the values enshrined in that treaty. Thus, even if the treaty is not self-executing, congressional ratification provides strong evidence, for substantive due process purposes, of the basic value choices American society has made. Moving beyond treaties, the article then considers whether international agreements more generally or customary international law should influence American constitutional adjudication. The Court's recent use of international law in its Eighth Amendment jurisprudence reveals a role for such law. The article concludes by considering the possibility that international - and evolving global law - can play a similar role in the adjudication of constitutional gay rights claims.
Number of Pages in PDF File: 55
Date posted: August 30, 2005