Prof. Funk writes: "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."
Comment: I do not understand your points here. The U.S. is a party to CERD; therefore, CERD is a U.S. treaty obligation. Ginsburg recognized this when she stated in Grutter that the U.S. had ratified the CERD. I also did not say that CERD trumped the Equal Protection Clause . There is no conflict between the text of the 14th Amendment and CERD. (Therefore, CERD need not even have to trump the 14th Amendment. )
Prof. Funk continues: "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." 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."
Comment: I was not referring to the Court's opinion but to Scalia's dissent in Lawrence (and Rehnquist's in Atkins.) Scalia should have properly characterized the ECHR cases as international law (specifically, evidence of U.S. customary international legal obligations) -- not foreign law. This should not be a controversial matter. International lawyers do not refer to international court cases as "foreign" law. Otherwise, it's like saying Kansas v. Colorado is foreign law for Florida. Furthermore, I never suggested (and do not necessarily agree) that "citations to foreign [i.e., domestic] cases . . . were applications of U.S. law." Indeed, what I am saying is that the "foreign" (i.e, ECHR) cases are international law cases providing strong EVIDENCE of U.S. customary international legal obligations. Prof. Funk appears to be making the same mistake as !
Scalia and Rehnquist by making international law equivalent to foreign law.
Francisco Forrest Martin
