Challenging his American University law school audience, Scalia asked, “Do you think you’re representative of American society? Do you not realize you are a small cream at the top and that your views on innumerable things are not the views of America at large? Doesn’t it seem somewhat arrogant for you to say, ‘I can make up what the moral values of America should be on all sorts of issues, penology, the death penalty, abortion, whatever’?”
Quoting a phrase from a 1958 decision by Chief Justice Earl Warren — “the evolving standards of decency that mark the progress of a maturing society” — and noting that “I detest that phrase,” Scalia said some of his colleagues on the court employ “evolving standards of decency” to justify unilaterally imposing changes in death penalty laws, overriding the will of democratically elected state legislatures.
[snip]
“Do we just use foreign law selectively? When it agrees with what the judges would like the cases to say, we use the foreign law and when it doesn’t, we don’t use it?” Scalia asked.
Although not mentioning Justice Kennedy by name, Scalia said that Kennedy’s decision in Lawrence vs. Texas arbitrarily used foreign precedents: “not all foreign law, just the foreign law that agreed with the disposition of the case.”
Kennedy's opinion in Lawrence v. Texas says:
"Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) & ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization."
Then he says:
"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 European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P.G. & J.H. v. United Kingdom, App. No. 00044787/98, & ¶ 56 (Eur.Ct.H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H.R. (1993); Norris v. Ireland, 142 Eur. Ct. H.R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary *577 Robinson et al. as Amici Curiae 11-12. 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."
Scalia absolutely trashed this reasoning in his talk. The obvious point is that the Europeans pass their own laws. They don't pass our laws. We pass our laws.
The fact that the Court had to rely on EU decisions to make its point illustrates the fact that the law was not on its side.