The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. [Matter pertaining to developments in American jurisprudence omitted.]To the extent, Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The [ECHR] has followed not Bowers but its own decision in Dudgeon v. United Kingdom. [Further citations to ECHR decisions omitted.] Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. [Citation omitted.] The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10–11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. **** It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.
The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.
Note *: I do not read Justice Kennedy’s opinion for the Court in Lawrence as being inconsistent with the just-quoted passage. In Lawrenece Kennedy remarked: 539 U.S. at 578-79:”Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”