Justice Ginsburg's concurrence in Grutter referred to the International Convention on the Elimination of All Forms of Racial Discrimination as evidence of "international understanding," not as a US treaty obligation. Clearly, the Court did not view that Convention as trumping the the Equal Protection Clause, or the outcome in Gratz would have been otherwise. The Court in Lawrence referred to the European Court of Human Rights cases (and unnamed other nations' domestic cases) as "evidence of values we share with a wider civilization" to attack Justice Burger's contrary statements that condemnation of homosexual sodomy is "firmly rooted in Judaeo-Christian moral and ethical standards," see Lawrence, 123 SCt at 2481, and to rebut Bowers to the extent that it "relied on values we share with a wider civilization," see id, at 2483. The Court did not cite it or use it as an example of a customary international legal norm binding upon the United States. Moreover, the only amicus brief cited by the Court with respect to international norms rejected the notion that foreign cases bound the US, stating instead: "This Court should pay decent respect to these opinions of humankind."It is misleading to characterize the law to which U.S. Supreme Court justices have cited in a number of recent decisions (e.g., Lawrence) as "foreign" law. Depending on the case, the law cited was either a U.S. treaty obligation (Convention to Eliminate All Forms of Racial Discrimination in the Michigan affirmative action case) or reflective of a U.S. customary international legal norm (ECHR cases in Lawrence).
Thus, it is Mr. Martin who is "misleading," when he suggests that the citations to foreign cases and an international convention were applications of US law.
Bill Funk
Lewis & Clark Law School
