Profs. Koh and Yoshino Submit Brief to Supreme Court on Lawrence v. Texas
Harold Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law, and Kenji Yoshino, professor of law, participated in drawing up an amici curiae brief that was submitted to the U.S. Supreme Court in the case of Lawrence v. Texas, arguing that the Court should consider the decisions of foreign and international courts in deciding whether a Texas statute barring consensual same-sex sodomy is constitutional.
The brief argues: "Applying the same or similar constitutional terms to nearly identical fact patterns, foreign and international courts have barred the criminalization of sodomy between consenting adults. This Court should pay decent respect to these opinions of humankind." (Follow the link at the bottom of this page to read the entire brief.)
"My academic work has been about internalization of international norms into domestic law," says Koh. "In particular, there are interpretations of the Constitution to which international rules are relevant." He points out that the phrase "decent respect to these opinions of humankind," which the brief argues for, is derived from the Declaration of Independence. U.S. courts have relied on international law throughout the history of the nation. Last year, Koh helped author a brief in Atkins v. Virginia that argued that execution of the mentally retarded was unconstitutionally cruel and unusual because it violated a clear international consensus against the practice. Indeed, the majority opinion banning such executions made a reference to the point that Koh had laid out in his brief. (Read about it here.)
In Lawrence v. Texas, Koh argues, "the Supreme Court has regularly said that what due process permits is to be determined with reference to our concept of 'ordered liberty,' and frequently invokes as part of the concept of 'ordered liberty' the practices of fellow democracies." The brief notes that the European Court of Human Rights has overturned bans on consensual sodomy, as have nations from South Africa to Israel to Colombia.
The brief also notes instances where almost every current Supreme Court justice has cited the practices of other nations in constructing an argument. Koh states, "What we're saying is if you're going to do this, you should do this consistently, and in deciding what's consistent with notions of liberty and equality, you should make reference to foreign views.... Liberty and equality are not just American concepts, they're global concepts."
Koh and Yoshino were already discussing writing a brief on international law in Lawrence v. Texas when they were contacted by Lambda Legal, which is representing the petitioners in the case, John Geddes Lawrence and Tyron Garner. Koh and Yoshino brought in colleagues from other institutions--Robert Wintemute, a lecturer at King's College London School of Law, and Ryan Goodman '99, the Sinclair Armstrong Assistant Professor of International, Foreign, and Comparative Law at Harvard Law School--and then put out a request for help from Yale law students in late December. "Everybody recognized that it was an awkward moment because it came during the exams," says Koh. "Nevertheless, the number of students who participated showed how much interest there was in the School."
Fifteen student volunteers split up into three teams overseen by the scholars and together they researched, wrote, and edited the brief in time to file it on January 16.
Harold Koh is the counsel of record on the brief, and it is signed by Mary Robinson, Amnesty International U.S.A., Human Rights Watch, and several other organizations. James Silk and Deena Hurwitz of the Schell Center's Allard K. Lowenstein International Human Rights Clinic also gave important support and co-signed the brief, along with Joseph Tringali and Tyler Robinson of the Simpson Thacher & Bartlett law firm.
Mary Robinson was United Nations High Commissioner for Human Rights from 1997 to 2002 and served for seven years as the President of the Republic of Ireland. Koh notes that this is the first brief she has signed since she stepped down as High Commissioner for Human Rights. Koh says that her participation shows that "this is a view not just held by human-rights nongovernmental organizations, but also by leading global figures who have dedicated their lives to human rights work."
Read the Brief