Friday, August 7, 2015

Conservative Justices' Evolving Citation of Foreign Sources

Zachary Kaufman, a fellow at Harvard's Belfer Center, recently posted his article titled "From the Aztecs to the Kalahari Bushmen - Conservative Justices' Citation of Foreign Sources: Consistency, Inconsistency, or Evolution?",in the on-line edition of the Yale Journal of International Law.  Perhaps in hopes of laying this controversy to rest once and for all, Kaufman provides a detailed analysis of conservative justices' uses of foreign law in the recent Obergefell oral argument and subsequent decision.  Here is the abstract:

On April 28, 2015, there were few surprises at the Supreme Court. During oral argument in Obergefell v. Hodges, counsel for each side mostly rehearsed the usual marriage equality arguments around rights, dignity, fairness, love, procreation, family, tradition, religion, and slippery slopes. Almost two months later, on the historic day of June 26, the Supreme Court announced its decision in Obergefell. The 5-4 majority opinion held that the Fourteenth Amendment requires states both to license marriages between two people of the same sex and to recognize such marriages if lawfully licensed and performed out-of-state.

What stands out as different in the reasoning of Obergefell is that members of the Court's conservative wing invoked foreign law in a constitutional case about a domestic matter. By doing so, the Court's conservatives appeared to contradict their own previous statements about the role of foreign law in interpreting the U.S. Constitution. Besides legalizing marriage equality, Obergefell may therefore also set an important precedent as to the appropriateness of citing foreign sources in constitutional decisions.

https://lawprofessors.typepad.com/human_rights/2015/08/conservative-justices-evolving-citation-of-foreign-sources.html

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