Crusaders in Wingtips

International courts are the next front in America's culture wars

| February 9, 2006

While the Supreme Court is being reshaped before our eyes, the American Civil Liberties Union (ACLU) and the Alliance Defense Fund (ADF) are looking overseas for the next front in America's legal battles, Rachel Morris reports for Legal Affairs. The past few years have seen a small but significant rise in US court rulings that cite non-US court decisions. As then-Chief Justice William Rehnquist said in 1989: '[I]t is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process.'

The ACLU spotted the coming articulation between international courts and US legal issues and held a conference on the issue in late 2003. Shortly thereafter, the Center for Reproductive Rights began a below-the-radar push for what Morris calls 'a human right to abortion in international norms and treaties.' The ADF -- a Christian group that pushes conservative values through litigation -- quickly followed suit, focusing on influencing the outcomes of cases abroad that they saw as dangerously close to issues they were facing at home. Advocating a pro-life, pro-family, anti-gay agenda, the ADF saw foreign battles over issues that were hot-button in the United States as central to their mission. If US courts were going to cite international courts in their rulings, why then should the ADF confine its litigation to the US court system?

Recently the group successfully defended the Rev. Ake Green, a Pentecostal preacher in Sweden who was being prosecuted under a recent provision in Sweden's criminal code that forbids expressions of 'contempt' for homosexuals. Similarly, the ADF is currently intervening in Canada, defending an anti-gay minister. Inside the US, the ADF had a hand in the Terri Schiavo case and was instrumental in both halting gays from marrying in San Francisco and keeping them from leading Boy Scouts across the nation, Morris reports.

It's a game the ADF says it would rather not play, preferring instead to keep the US judicial system free of international influence. But the group's mission is to advocate for its positions in the culture wars, and if that requires intervention in foreign cases, so be it. The game is afoot, and the ADF would rather not lose at it. Morris quotes Benjamin Bull, ADF's chief counsel: 'If there's a dangerous foreign law precedent that will influence US courts within the next five years, we want to impact the outcome.'
-- Nick Rose

Note: The March/April issue of Legal Affairs, in which the article summarized above appears, will be the last. Citing financial difficulties, the magazine will cease print publication while it 'explore[s] opportunities the site provides.'

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