So poorly reasoned was Justice Anthony Kennedy’s majority opinion in the recent Texas sodomy case that perhaps its most dangerous precedent has gone overlooked.

In the course of overturning existing Supreme Court precedent, Justice Kennedy also, at least slightly, undermined the very sovereignty of this nation and its Constitution.

The highly objectionable reasoning came in the course of a bizarre, long-winded attempt to argue that there really isn’t a centuries-old tradition of outlawing homosexual sodomy. Kennedy’s point was to refute an assertion by then-Chief Justice Warren Burger in the 1986 Bowers v. Hardwick case that rejected a “right” to private sodomy. Burger had written, seemingly unremarkably: “Decisions of individuals relating to homosexuality have been subject to state intervention throughout the history of Western civilization.”

Burger’s opinion was merely a concurrence, not the controlling majority opinion, but no matter: Kennedy set out to swat it down — and he swatted and swatted and swatted until he had built up quite a lather.

After dubiously asserting that “our laws and traditions in the past half-century are of most relevance here” (although why 50-year-old “traditions” trump a 135-year-old amendment to a 215-year-old Constitution isn’t clear), Kennedy then made a segue to “other authorities” in “Western civilization.” Somehow he found it relevant that the British parliament repealed laws against homosexual conduct in 1967.

Then came what would have been a real howler, if it weren’t so serious. “Of even more importance,” wrote Kennedy,

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…. The court held that 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 (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.

A few paragraphs later, Kennedy returned to this theme: “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.”

There you have it: The values of Europe, and the decision of its Court of Human Rights, are deemed somehow relevant for American constitutional jurisprudence.

On one level, Anthony Kennedy’s line of reasoning should be familiar to American youngsters and parents nationwide. It’s not much more than a gussied up version of “Johnny’s mommy lets him do it, so why can’t I?” (Or, more precisely, if Johnny can do it, shouldn’t Billy’s mom let him do it too — and by extension, if Billy’s mom lets him do X, shouldn’t I be able to do Y?)

But on a deeper level, the citation borders on the subversive. If the authority of extra-national courts is held to be even partially dispositive in the United States (especially without a formal treaty yielding a specific measure of American sovereignty on a particular issue), then the same foreign authority cited in supposed defense of liberty could be cited to take an American individual’s liberty away.

As Justice Clarence Thomas noted in his brilliantly concise dissent from the Court majority — in overreacting to a “silly” (and even obnoxious) Texas law — left behind its judicial restraint and assumed a legislative posture instead. Unable to find clear authority in the U.S. Constitution for its raw exercise of judicial will, the Kennedy majority looked to a foreign source for justification. But any American with native intelligence can see that down that road lies alienation from our country’s rule of law.

— Quin Hillyer is an editorial writer and columnist for the Mobile Register.