QUIN AT SA ON SCALIA

Quin at SA has an interesting post on a reference to foreign law in a Supreme Court opinion, from. . .wait for it!. . .Scalia. Seems to me that the finer distinctions suggested in comments don't really let Scalia off the hook. Remember, in Lawrence, Kennedy's opinion was taking aim at a "fact" that was presumed by Burger's concurring opinion in Bowers, namely, that sodomy was universally condemned in the West and that that condemnation was ongoing. Kennedy's references to foreign law on sodomy were clearly aimed at demolishing that claim, i.e., establishing that it the presumed "fact" was not a fact at all, and that Burger should have tempered his claims in light of the actual state of foreign law.

MORE: Feddie replies here.