On June 26, 2003 the U.S. Supreme Court ruled 6-3 in Lawrence v. Texas that the constitutional right to privacy protects consensual, adult sexual intimacy in the home. In declaring the Texas "homosexual conduct" law unconstitutional, the court overturned the 1986 Supreme Court decision in Bowers v. Hardwick, which upheld state laws making homosexual sex a criminal offense.
Human Rights Watch joined with former U.N. High Commissioner for Human Rights Mary Robinson and four other human rights organizations in an amicus ("friend of the court") brief in support of the petitioners. Prof. Harold Hongju Koh of Yale Law School and former U.S. Assistant Secretary of State for Democracy, Human Rights and Labor was counsel of record for the amici.
The amicus brief argues that the principles of privacy and equal protection being examined by the court should be interpreted in light of the rulings of foreign and international courts of nations with similar histories, legal systems, and political cultures.
According to the amicus brief, these court rulings have rejected the understanding of the right to privacy found in the court's decision in Bowers. To the contrary, the weight of international and foreign court authority establishes that sexual conduct between same-sex partners involves precisely the kind of intimate decisionmaking and familial relationships that have been protected under the right to privacy, and that sexual conduct between same-sex partners in the home can be protected without also committing courts to protecting "adultery, incest, or other sexual crimes" in the home.
The brief also argues that international and foreign courts have invalidated same-sex sodomy laws for betraying naked prejudice and a "bare . . . desire to harm a politically unpopular group" inconsistent with the court's rulings on equal protection.
Justice Anthony M. Kennedy's majority opinion and Justice Antonin Scalia's dissent both make reference to international law and standards:
[A]lmost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.
To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. [citations omitted] Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct." See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
Scalia criticizes the use of international law in his dissent:
Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization." [citation omitted], but rather rejected the claimed right to sodomy on the ground that such a right was not "'deeply rooted in this Nation's history and tradition'" [citation omitted]. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court . . . should not impose foreign moods, fads, or fashions on Americans." [citation omitted].
Lawrence v. Texas is a landmark decision on the constitutional right to privacy of gays and lesbians in the United States; it may also prove to be an important decision for the incorporation of international human rights law into U.S. jurisprudence.