(C-FAM.org) - Ten years ago, the late, great American jurist Robert Bork wrote a short book entitled Coercing Virtue: The Worldwide Rule of Judges.  He described how the “American disease” of judicial legislating—activists using constitutional courts “to outflank majorities and nullify their votes” on controversial social issues—was becoming a global phenomenon.

Among other examples, Bork noted a conference held in London in 1999 “to consider ways of making homosexual conduct a constitutional right in various nations.”  As happened with abortion—a phenomenon documented in Susan Yoshihara’s and Douglas Sylva’s Rights by Stealth—a coterie of “experts” in the field of “human rights” tasked themselves with refashioning norms in the area of “sexual orientation and gender identity” and exporting such novel norms to countries that adhered to old-fashioned principles such as rule of law and constitutional separation of powers.

On May 7-10 at the Supreme Court of Belize, in the case Orozco v. Attorney General, a fascinating legal clash occurred when the proponents of the “new rights” brought their traveling roadshow to this small, English-speaking Central American nation. 

Claiming that “international law” required the striking of a facially neutral statute prohibiting “carnal intercourse against the order of nature,” Lord Peter Goldsmith, Q.C.—the former Attorney General of England and Wales, acting for the intervening Commonwealth Lawyers Association, the Human Dignity Trust, and the International Commission of Jurists—appealed not to the language of a specific treaty, nor to customary international law (properly understood), but rather to his own obiter dicta and a variety of non-binding “soft law” declarations by United Nations Committees and personalities pointing to “evolving standards” of “international jurisprudence.” . . . . 

Counsel for a coalition of Belizean Churches, Eamon Courtenay, S.C.—the former Attorney General of Belize—rebutted Goldsmith’s Toonen claims, pointing out that even a State participant to a proceeding under the optional protocol was free to reject its Views, as Peru has done in the matter ofKaren Llontoy.  In that proceeding, the HRC exceeded its authority by opining that Peru should alter its laws to allow eugenic abortion in the case of fetal abnormality; as with sodomy, abortion is not a “right” found in the ICCPR.

Moreover, as Belize never acceded to the Optional Protocol, Toonen could only be of academic interest.

Going to the heart of the issue before the Court, as well as the issue raised by Robert Bork a decade prior, Courtenay then raised a fundamental question: in a constitutional system of self-government, who gets to make the laws, a judge or the people through their elected representatives?

Put another way, if standards truly are “evolving” and constitutions are to be considered “living documents,” with non-binding transnational “soft law” norms coming into play, who determines the substance and the pace of such an evolution?  If the law should be revised to reflect changed societal mores—the elevation of what was once universally considered an objective wrong (such as sodomy) into a “right”—is such change to be imposed by a court, or should judges exercise restraint and defer to the legislature?  If it is a role of judges to fashion new rights, in what sense are a people self-governing?  While the fa├žade of representative democracy may remain, has not an unelected oligarchy arisen, and the separation of power principle been rendered meaningless? . . .