International human rights law perspective on Grutter and Gratz.

• Author: Weissbrodt, David
• Position: From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality

There is an international human rights law aspect to Grutter v. Bollinger (1) and Gratz v. Bollinger (2) that might be missed by many lawyers and scholars who rarely consider any legal domain beyond the limits of the U.S. Constitution. Indeed, Grutter and Gratz reflect a trend in Supreme Court opinions to use international human rights sources in interpreting the Constitution.

Justice Ginsburg's concurring opinion in Grutter relies upon international human rights law in noting that

[t]he Court's observation that race-conscious programs must have a logical end point, accords with the international understanding ... of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994 ... instructs [that affirmative action measures] "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." (3) In Grutter Justice Ginsburg also cited Article 4(1) of the Convention on the Elimination of All Forms of Discrimination against Women, (4) which provides for affirmative action, but limits such special measures to the length of time required to achieve the goal of de facto equality. Furthermore, in her dissenting opinion in Gratz, Justice Ginsburg referred to her use of international law in Grutter. In distinguishing between invidious and remedial discrimination, she states that "[c]ontemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality." (5)

In supporting affirmative action, Justice Ginsburg appropriately relied upon the International Convention on the Elimination of All Forms of Racial Discrimination (Race Convention), (6) which has been ratified by the United States and 168 other nations, that is, over three quarters of the countries in the world. By ratifying the Race Convention the United States has committed itself under Article 5 "to prohibit and to eliminate racial discrimination in all its forms" (7) and to provide under Article 2 for affirmative action so long as such special measures are required. (8) The Race Convention authorized the Committee on the Elimination of Racial Discrimination (Race Committee) to review compliance with the treaty's provisions. The Clinton Administration submitted (9) and the Bush Administration presented (10) the first U.S. report to Race Committee in which the U.S. identified several federal statutes and regulations that provide for affirmative action. In its concluding observations on the U.S. report the Race Committee "emphasize[d] that the adoption of special measures by States parties, when the circumstances so warrant, such as in the case of persistent disparities, is an obligation stemming from article 2, paragraph 2 of the Convention." (11)

Justice Ginsburg could also have referred to the International Covenant on Civil and Political Rights, (12) by which the U.S. and 150 other nations have pledged to "prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race...." (13) The Covenant established the Human Rights Committee, which reviewed the first U.S. report and concluded, inter alia:

The Committee emphasizes the need for the Government to increase its efforts to prevent and eliminate persisting discriminatory attitudes and prejudices against persons belonging to minority groups and women including, where appropriate, through the adoption of affirmative action. State legislation which is not yet in full compliance with the nondiscrimination articles of the Covenant should be brought systematically into line with them as soon as possible. (14) Lest one gets the impression that Justice Ginsburg is the only justice of the Supreme Court that is aware of these international legal sources, one should also refer to the learning process reflected by the Court's experience in regard to discrimination against homosexuals. In Bowers v. Hardwick (15) the Supreme Court held that the U.S. Constitution does not protect the right to engage in consensual, adult, homosexual conduct. In a concurring opinion, Chief Justice Burger explained:

Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law and the Western Christian Tradition.... To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. (16) The Supreme Court failed in Bowers even to cite Dudgeon v. United Kingdom (17) in which the European Court of Human Rights had five years earlier held that an individual's fear of prosecution for male homosexual conduct constituted an unjustified interference with his right to respect for his private life. On June 26, 2003, the Supreme Court in Lawrence v. Texas (18) reversed Bowers and Justice Kennedy, writing for the majority, corrected Chief Justice Burger's statement:

The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction.... Of even more importance, almost 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) par. 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. (19) Another recent example of how international law and practice can be relevant to at least some justices can be found in the Supreme Court's June 20, 2002, decision in Atkins v. Virginia. (20) In holding that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment, Justice...