Comparative Law: Why Study? Lawrence v. Texas (US 2003) Last updated 08 Jan 07

Model for borrowing Gain perspective Discover truths Impose / power Value of knowing other legal systems

Lawrence v. Texas (US 2003) Discussion Scalia-Breyer

Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body decision –Academic writing MajorityDissent

Majority Background Texas criminalizes homosexual sodomy Review B v H under DP Analysis Antisodomy laws in disrepute –History –Moral stance –Ignored in US / elsewhere –States see B v H as deficient Shift in moral code Holding Stare decisis not ironclad B v H overruled Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body case –Academic writing

Scalia dissent Majority expands “liberty” interest Consider B v H history Don’t look to foreign law –“meaningless dicta” –Other countries retain! Texas statute has rational basis –Court not side in culture wars –Could be path to gay marriage Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body case –Academic writing

Foreign law in US courts …

Federal Rules of Civil Procedure Rule 44.1: Determination of foreign law A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.

Background Texas criminalizes homosexual sodomy –Petitioner charged and convicted (Tx statute) –Petitioner challenges conviction (EP / DP) –State defends statute (Bowers v. Hardwick, 1986) Review under DP Review B v H –issue was seen as “fundamental right” –Issue should be “liberty” Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body case –Academic writing

Consider No longstanding history against homosexuals –Pre-colonial experience –“homosexuality” new notion –American laws (20 th C) Only 9 states prohibit Some abolish prohibitions No clear moral stance –Court not moral codifier –Judeo-Christian tradition unclear –History not the only interpretive source –MPC did not criminalize Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body case –Academic writing

Consider Antisodomy laws ignored in US –Not all states adopt –Many states ignore Antisodomy laws gone elsewhere –UK repeals, after recommendation –Invalidated in Europe (Council of Europe) States see BvH as deficient –25 states once followed, now only 13 –No prosecutions in Texas Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body case –Academic writing

Shift in moral code Supreme Court cases –Casey (abortion rights upheld) –Romer (Colorado can’t withdraw protections) Criticism of BvH –US –Europe –Other countries Holding Stare decisis is not written in stone BvH not correct –Overruled –Texas court overruled Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body case –Academic writing

Scalia dissent New liberty interest –Not fundamental right –Can’t base on criticism Court relies wrongly –Casey (anti-abortion) –Roe criticized –BvH followed Respect Texas policy Consider BvH history –Criminal laws –203 prosecutions –MPC resisted Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body case –Academic writing

Scalia dissent Don’t look to foreign law –“meaningless dicta” –Other countries retain antisodomy laws Texas statute has rational basis –Court not take sides in culture wars –Congress has not acted –“Nothing against homosexuals” - Texas –Could be path to gay marriage Sources US sources –US Constitution –US Sup Ct case –State statute –State court case –Professional writing –Academic writing Foreign sources –Foreign statute –Foreign court case –Int’l body case –Academic writing