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<DIV>Debbie,</DIV>
<DIV> </DIV>
<DIV>No opinion of the SCOTUS overturning an internal state law has been
decided BASED on international opinion. There have been a number of
cases that have looked to international law for corroboration of developing
American trends. Three come to mind, two of them death penalty
cases. They are the "no executing juveniles" case issued within the last
month, Simmons v. Roper, </DIV>
<DIV><FONT face=Arial><A
href="http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf">http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf</A></FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV>Lawrence v. Texas, (finding criminalization of consensual intimate sexual
contact between two persons of same sex in the privacy of one's home to violate
the Due Process Clause)</DIV>
<DIV><FONT face=Arial><A
href="http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf">http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf</A></FONT></DIV>
<DIV> </DIV>
<DIV>and Atkins v. Virginia (no executing the mentally retarded).</DIV>
<DIV><FONT face=Arial><A
href="http://supct.law.cornell.edu/supct/html/00-8452.ZS.html">http://supct.law.cornell.edu/supct/html/00-8452.ZS.html</A></FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>In all of these cases, the justice who considered
international law or "opinion", did so in the context of noting how out-of-step
the American law at issue was with the rest of the world. This was a
confirmatory step, though, and not the reason for the decision. The basis
for the decision itself was that the American law at issue was out of step
with American law. The Court found that evolving concepts of decency in a
civilized society precluded the execution of juveniles and the mentally retarded
under the Eighth Amendment's "cruel and unusual punishment" clause by 5-4 and
6-3 votes. The Court noted in these three cases that the trend in the
States was to prohibit execution of the mentally retarded and juveniles, and
that the targeting of homosexuals for their private intimate conduct was a new
development which violated the right to liberty in the due process
clause.</FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>One might argue with the correctness of these decisions in
finding a "consensus" of the States to be strongly in one direction.
Justice Scalia argues strongly against the position that sufficient consensus
existed in these to have a Court insert itself into the States' natural
position as the source of legislation by overturning the particular laws at
issue. In the juvenile case, Justice O'connor agreed and voted not to
outlaw the practice based on insufficient consensus in the States.</FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>Justice Scalia also indicted his peers for considering the
state of similar laws outside the United States, in trying to determine the
evolving sense of decency in a civilized society. But when that is just
one consideration, and a confirmatory one at that, with respect to the primary
consideration of the evolving standard set in this country by the States, I
think he overstates the importance of the other justices' consideration of
international opinion and the consequences of so doing. And I believe that
a solid 6-3 majority of the Court, excluding Scalia, Rehnquist and Thomas, has
rejected the position that international law is absolutely and
always irrelevant to the consideration of laws in the United States.
</FONT></DIV>
<DIV><FONT face=Arial></FONT><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>Justice Ginsburg delivered a lecture at the University of
Idaho on the increasing importance of international law in the Court's
consideration of decisions in the Bellwood Lecture. A copy of that can be
found here:</FONT></DIV>
<DIV><FONT face=Arial><A
href="http://www.humanrightsfirst.org/us_law/inthecourts/LOOKING_BEYOND_BORDERS_Just_Ginsburg.pdf">http://www.humanrightsfirst.org/us_law/inthecourts/LOOKING_BEYOND_BORDERS_Just_Ginsburg.pdf</A></FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>I believe a google search involving international law and
Justice O'Connor will turn up a similar speech.</FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV><FONT face=Arial>Bruce Livingston</FONT></DIV></BODY></HTML>