Lessons from the Past and Strategies for the Future: Using Domestic, International and Comparative Law to Overturn Sodomy Laws
| Jurisdiction | United States,Federal |
| Citation | Vol. 24 No. 04 |
| Publication year | 2000 |
I. Introduction
This Article draws upon the authors' experiences in challenging sodomy laws to evaluate the effectiveness of previous strategies to overturn sodomy laws. This Article will suggest ways of improving those strategies in the future and developing new avenues for these challenges by incorporating domestic, international, and comparative law.(fn1)
The Introduction to this Article will first discuss the legal importance of challenging sodomy laws, even though those laws are rarely enforced. It will then discuss the importance of incorporating international and comparative law in formulating these challenges. In Section II, Professor Charlene Smith will discuss past and future strategies, focusing on the topics of equal protection, morality, and the difference (or lack thereof) between acts and status. In Section III, Professor Jim Wilets will explore incorporating international and comparative law into domestic challenges to U.S. sodomy laws.
It should be noted at the onset that sodomy statutes, although not widely enforced, have much greater consequences for the civil rights of gays and lesbians than "simply" criminalizing their sexual relations.(fn2) The existence of these sodomy laws has been invoked by courts and legislatures to justify a wide range of human rights violations against gays and lesbians. These include violations of sexual minorities' rights to equal protection, free association, free speech, custody of their children, and a myriad of rights that heterogendered people take for granted.(fn3)
The authors consider the incorporation of these seemingly disparate domestic and international litigation strategies in one article as essential. The use of domestic law is obviously a prerequisite to any domestic litigation strategy, and certainly much has been written on the substantive aspects of constitutional law as it affects sexual minorities.(fn4) The Supreme Court's decision in
The authors also firmly believe international and comparative law are essential elements of any effective litigation strategy. First, invoking United States obligations under international law is most effective when United States domestic law, particularly state law, is out of sync with those international legal obligations undertaken by the federal government. This Article will demonstrate that there is binding Supreme Court authority requiring all U.S. courts to respect, whenever possible, the international obligations of the United States federal government when interpreting federal and state law. This requirement, implicates the very structure of our federal form of government. Separation of powers principles require that the judiciary desist from interfering with the executive and legislative branches' conduct of foreign policy. Similarly, principles of federalism require that states refrain from preventing the federal government from speaking with one voice in its conduct of foreign policy. Article VI of the U.S. Constitution specifically provides that:
Although this seemingly clear constitutional dictate has been somewhat weakened by the judicial doctrine of self-execution,(fn8) the U.S. Supreme Court understood the constitutional importance of international treaties in U.S. law when it held that domestic law should be interpreted, whenever possible, in accordance with the international obligations of the United States.
This Article will demonstrate that there is a clearly articulated federal policy, by both the Executive Branch and United States Senate, to respect and implement those international obligations that require the United States to decriminalize same-sex consensual sexual relations. Indeed, that policy is enshrined in the International Covenant on Civil and Political Rights,(fn9) to which the United States is a party.
Comparative law provides a normative reason why courts should feel comfortable interpreting state law in accordance with our international legal obligations. Currently, the United States is the only major industrialized nation with sodomy laws.(fn10) Thus, comparative law is useful for demonstrating to courts that this country is out of sync with those developed nations to which our courts like to compare the United States. Comparative law therefore supports the proposition that our international obligations are not simply a legal requirement; they reflect the now universal consensus of industrialized democratic nations that criminalization of same-sex relations is incompatible with a democratic legal order respecting individual rights.(fn11)
Professor Smith draws, in part, upon her extensive experience in challenging Kansas' sodomy statute to suggest several effective strategies for challenging sodomy laws under domestic law. Professor Wilets draws upon his experience in using international and comparative law in domestic litigation to suggest ways that international and comparative law can be integrated into an effective domestic litigation strategy.
II. Domestic Strategies for Overturning Sodomy Laws
A party arguing domestic law to oveturn sodomy law in the courts of the United States has to confront four obstacles: (1) the success of any direct challenge to a state's sodomy law on the basis of the federal right to privacy is rendered improbable by the existence of
Before discussing these strategies, it should first be noted that there is no need to necessarily undertake a frontal attack on
The strategies presented below permit parties to overcome substantive obstacles that they may encounter while litigating in state and federal courts. This Article assumes that parties challenging sodomy statutes have already chosen to rely only on the federal right to equal protection and state rights to privacy and equal protection. It should nevertheless be noted that many of the arguments contained in this Article could be used in any attempt to directly challenge
The first strategy is to demonstrate to the court that courts have been willing, on occasion, to disregard the three-tier system when the legislation in question has been motivated primarily by animus against a particular group. It is especially helpful to use Justice Scalia's past opinions to demonstrate that even the conservative wing of the Supreme Court has abandoned, in substance, the rigid three-tier approach under certain circumstances.(fn14) Since Scalia constitutes the most vociferously antigay member of the Supreme Court, using his own reasoning in past cases can be particularly effective. Indeed, a consistent application of even the conservative approach to equal protection analysis leads to the application of, at a minimum, a "rational basis with bite" in reviewing the constitutionality of sodomy statutes.(fn15)
The second strategy is to argue that morality alone cannot be used as a justification to strike down or uphold a law. This strategy questions the court's ability to apply objective criteria to determine whether the morality upon which the legislation is based represents a legitimate governmental purpose, or whether it simply represents the illegitimate biases of society towards a particular disfavored group.(fn16)
Finally, the third strategy is to demonstrate to the court that Sca-lia' is correct in observing that status and acts cannot be severed,(fn17) a strategy that admittedly contains its own risks. The following discussion presents these three strategies.
With the exception of Kansas, recent court challenges have resulted in declaring same-sex sodomy statutes unconstitutional.(fn18) In the...
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