Wishy-washy Scalia

From Olympic Airways v. Husain, February 24, 2004:

Today's decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us. This sudden insularity is striking ... The Court’s new abstemiousness with regard to foreign fare is not without consequence: Within the past year, appellate courts in both England and Australia have rendered decisions squarely at odds with today’s holding. Because the Court offers no convincing explanation why these cases should not be followed, I respectfully dissent.

Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” ante, at 16, but rather rejected the claimed right to sodomy on the ground that such a right was not “ ‘deeply rooted in this Nation’s history and tradition,’ ” 478 U.S., at 193—194 (emphasis added). Bowers’ rational-basis holding is likewise devoid of any reliance on the views of a “wider civilization,” see id., at 196. The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court … should not impose foreign moods, fads, or fashions on Americans.” Foster v. Florida, 537 U.S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).