"sodomy" and international law

Mortimer Sellers msellers at ubalt.edu
Wed Feb 25 16:18:17 PST 2004

International law scholars are subject to the same sorts of temptation as constitutional law scholars to speak ex cathedra and declare that international (or constitutional) law requires or imposes this or that moral preference of the speaker.

Sometimes they may be correct, but only if they pay some attention to the usual sources of law.  When pontificating lawyers disregard the usual procedures of legislation to impose  novel ideas, it tends to discredit law and lawyers both, with generally pernicious effects.  People come to see assertions of law as simple claims of unwarranted authority by opinionated members of a self-perpetuating elite.  

Customary international law arises from state practice, coupled with opinio iuris.  There is not as yet any international consensus about "sodomy" as a practice protected (or discouraged) by law.

Defenders of sodomy may wish to make an argument, as some of the framers might have, from natural law, but citations to European (or any other) cases are not persuasive evidence of international custom.  At best they are a subsidiary means for the determination of rules of law.

          Tim Sellers

-----Original Message-----
From: Francisco Martin [mailto:ricenter at igc.org]
Sent: Wednesday, February 25, 2004 3:16 PM
To: conlawprof at lists.ucla.edu
Subject: Lawrence & Originalism

Prof. Maltz wrote in relevant part: "No one (I don't think) would argue
that Lawrence is correctly decided from an originalist viewpoint."

COMMENT:  I would argue that Lawrence was correctly decided from an
originalist viewpoint.  Madison, Randolph, Jefferson, and Hamilton  all
argued (without objection from any other Founders or Framers) that the
Constitution must be construed in conformity with customary international
law.  Because customary international law is -- well, customary -- it is
evolving.  See Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) (distinguishing
between ancient and modern law of nations).  It was well established by the
time of Lawrence that customary international law prohibited criminal
statutes outlawing sodomy on both rights to privacy and non-discrimination
grounds.  See Dudgeon v. UK, Norris v. Ireland, Modinos v. Cyprus, Toonen
v. Australia.  Therefore, construing the Constitution according to present
customary international law is originalist.

Francisco Forrest Martin

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