From Justice Kennedy's opinion:


...almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bower 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...The court held the laws proscribing the conduct were invalid under the European Convention on Human Rights...Authoritative in all countries that are members of the Council of Europe, the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

A few paragraphs later

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 government interest in circumscribing personal choice is somehow more legitimate or urgent.

We are not debating homosexuality, we are not debating the right to privacy. The question is:

Is Kennedy undermining national soveriegnty?

No. Agreeing with someone does not undermine one's right to disagree later.

I believe that using a precedent from a foreign body has no legal basis.

Comparing our laws to those of Europe or Saudi Arabia or any other country carries no legal weight.

I cannot believe that a Supreme Court justice would ever reference a foreign decision when coming to a decision about the Constitutionality of any specific law.

Is he using it as a binding precedent, or merely as a way of illustrating a point using a concrete example instead of making one up? Justices have historically referred to all manner of philosophers, authors, and other non-US non-legal sources to illustrate or explain a point, and there's nothing wrong with that. Kennedy is not saying we should do X because an Irish court did X.

BTW, a link to the full text would have been appropriate. We all know that edited quotes can be and often are abused to misrepresent the intent or even the essence of an original. At least identify which decision the quotes are from.

Update: the case is Lawrence et al vs. Texas, the Supreme Court link is here, the Akamai mirror is here, and people might not have realized from the biased editing that Bowers v. Hardwick was a US case. Kennedy's point was that the earlier Bowers case was predicated on a vague reference to "western Civilization" - itself a reference to non-authoritative non-US non-legal sources - and that the reference was incorrect. If you read the actual opinion, you'll see that Kennedy continually places the US constitution and legal precedents above such "external" sources. He's doing what I often do: accepting a known false premise for the sake of argument, and showing that the conclusion is still wrong. Here's Kennedy's real argument, from the syllabus:

Not even English common law? Isn't this the basis for the American legal system?

Clearly, English common law is a basis for our legal system. I see no controversy with referring to English common law our even Western civilization up until the point of the enactment of the Constitution.

I think we have to keep in mind Kennedy is refuting the decision in Bowers whose premise, according to Kennedy, was that the claim put forward was insubstantial in our Western civilization.

The opinions on Bowers and the latest opinions on Lawrence can be found quickly at www.law.cornell.edu

No, not in the least. He simply used an example to explain his point of view. Had the case in Northern Ireland not existed, he would have ruled the same way. Its just that this other case helped him to better illustrate his ruling.