SEARS: Sirens' lure of foreign law

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By Alan Sears

The Sirens, they say, had maidens' features. . . . They played the flute, lyre and sang. The isle where they lived was full of the mariners' bones they had led to destruction. It was foretold the Sirens would die when a ship passed them unharmed. Only Odysseus, bound to the mast heard their lovely song and lived, while his shipmates, whose ears were filled with wax, sailed on.

— Greek mythology

We can only hope that the judges of the California Supreme Court - and their jurist peers across the country - will be as wise as Odysseus' sailors, on the song of the Sirens.

In the courtrooms of America these days, that song is the call to invoke international judicial precedents in deciding the legal course of our country. Increasingly, state and federal courts hand down crucial decisions that lean heavily on the fundamentally more leftist mindset of European and Canadian jurists - and drown out the traditional legal, cultural and moral perspectives that have hallowed American jurisprudence for centuries.

Just last month, the California Supreme Court made passing reference to several Canadian precedents in ruling 4-3 that a state law defining marriage as the union of one man and one woman is unconstitutional - a decision that could have huge ramifications, and not just for California. Although the California judges stopped short of basing their ruling on the work of foreign jurists, their willingness to indulge these philosophical detours is troubling.

The decision has already prompted New York Gov. David Paterson to bypass his state legislature and order his government's agencies to recognize same-sex "marriages" from other jurisdictions, including Canada, in direct violation of state law. That action, in turn, prompted a lawsuit from the Alliance Defense Fund, also involved in the California litigation.

Specifically, the California justices made mention of Egan v. Canada, in which that country's Supreme Court declared that (a) sexual orientation is as inherent and immutable a human characteristic as race or gender, and that (b) denying same-sex couples the right to marry reduces them to the status of "second-class citizens."

The California judges also referenced a United Nations declaration and decisions from the handful of foreign countries that have forced same-sex unions on their citizens. The only American precedent the justices could find was Goodridge v. Department of Public Health, in which the Massachusetts Supreme Judicial Court opted to redefine marriage in direct repudiation of the commonwealth's constitution - again, based on similar international, not American, precedents.

Nor are only state judges being drawn by the sirens' song. Several U.S. Supreme Court justices, in landmark cases like the 2003 Lawrence v. Texas decision (striking down state sodomy laws) and the 2005 Roper v. Simmons decision (which declared it unconstitutional to impose the death penalty on anyone under age 18), have repeatedly cited international law to justify rulings that have flown in the face of originalism and strong American legal precedent.

This growing enthusiasm for and deference to foreign courts has drawn vigorous protests from other Supreme Court justices like Antonin Scalia (who has bluntly accused his fellow justices of embracing international precedent when it agrees with them, and ignoring it when it doesn't) and from the U.S. Congress (where in 2004 more than 50 House members signed a nonbinding resolution chastising the high court for its frequent imitation of foreign legal trends).

But, of course, not everyone is disappointed. The American Civil Liberties Union has been serenading the recent trend and building a chorus of support for the foreign invasion of American jurisprudence through national conferences and litigation advocacy. Supreme Court Justice Ruth Bader Ginsburg - former general counsel for the ACLU - has described Americans who want to follow their Constitution as having a "Lone Ranger" mentality.

ACLU Executive Director Anthony Romero is in perfect harmony with that view. "It is clear that we can no longer count on the Constitution alone to protect fundamental freedoms in the United States," he says. "We must emphasize the positive face of globalism."

But anyone inclined to hum along to the tune of international judicial consensus should listen to the words. It won't take long to discover just what it is in the "Sirens' song" that's so attractive to radicals like the ACLU.

In Canada and Sweden, for instance, both legislators and judges are criminalizing as "hate speech" criticisms of homosexual behavior and other discourse that America's First Amendment protects. Some feeble allowances have been made to exempt speech made in a specifically religious context, but the burden of proof lies heavily with the accused individuals. Pastors who choose to preach their biblical convictions from the pulpit increasingly do so at the risk of serious jail time. In Germany, parents who wish to homeschool their children - away from the moral and cultural indoctrinations of state-run classrooms - face similar threats of jail and legal persecution.

Now, the judges of our highest courts are invoking many of these foreign precedents, not to complement our nation's legal heritage - with its unswerving support for free speech, the sanctity of marriage and the family, and religious liberty - but to justify their own political activism and deliberately override the expressed will of voters and legislatures.

In fact, international precedent has become the philosophical "Get Out Of Jail Free" card for the partisans of the political Left. Unable to persuade Americans to wholeheartedly embrace their agenda, they have turned to the courts. But most American courts have also rejected the Left's most flagrant legal assertions as contradictory to the Constitution and destructive to the nation's freedoms.

That's left the frustrated social revolutionaries with one last resort: the legal precedents of foreign courts and the hope that American judges will succumb to the seductive rhythms of international opinion. And now, in courtrooms coast to coast in America, that Siren song is climbing the charts.

But that song is badly out of tune with the deepest moral beliefs and strongest legal traditions of the American people. And unless Americans confront the danger, the Sirens' song could well be the swan song of freedom.

Alan Sears, a former federal prosecutor who held various posts in the departments of justice and interior during the Reagan administration, is president, chief executive officer and general counsel of the Alliance Defense Fund, a legal alliance employing a unique combination of strategy, training, funding and litigation to protect and preserve religious liberty, the sanctity of life, marriage and the family.