Blogs > Cliopatria > The Constitution, Values, and Science

May 17, 2005

The Constitution, Values, and Science




A few entries down, there is an interesting post by Greg Robinson that has stimulated a good discussion concerning homosexuality and the Constitution. These comments began as a response to a comment there by John Lederer, but they took on a life, a length, and therefore an entry, of their own.

The relationship between the interpretation of the constitution and the values of society is a difficult one. One reason is that values change as knowledge changes. When knowledge and values both change, then constitutional interpretation necessarily changes.

Consider the 14th amendment. It was pushed upon the nation by quasi-revolutionary means by people who viewed the races as essentially equal and who considered it the duty of the national government to support this.

After Reconstruction, most of the country preferred greater deference to states rights (for both racist and non-racist reasons), and the interpretation of the 14th amendment narrowed to eliminate most Congressional “meddling” in the states’ handling of race.. By the 1890s, Darwinism gave what appeared to be support for racism, and racial inequality became scientific fact. That is the part of the context of Plessy v. Ferguson.

During and after world War II changes in the scientific view of race, the respect won by the actions of African Americans in politics and war, and the terrible object lesson of the Holocaust shifted educated and public opinion in the direction of accepting the idea that the races were truly equal.

Court interpretation of the 14th amendment changed with this, moving toward the original intent of the people who wrote the amendment (though not necessarily the desires of those who reluctantly ratified it).

One writer in the mid to late 1950s, I have sadly lost the citation and name, argued that the Brown decision would have been better if the Court had ruled bluntly that ghettoization of a people is contrary to the 14th amendment. He assumed the narrower reliance on sociology and the harm done to children was the price paid for unanimity. But even that reliance provides a direct glimpse at how changes in scientific knowledge (sociology was well respected then) affect interpretation of the constitution. Behind that was the broader realization, in part scientific, in part social, that the previous assumptions of racial inequality and racial difference was wrong.

The shift to a more scientific standard has affected the court in other areas, including homosexuality. At one point nearly everyone simply viewed it as evil. A majority is still uncomfortable. But when it comes to the rights of groups, the courts and many citizens accept, albeit grudgingly, that you cannot ghettoize a people just because the majority does not like them. You have to show cause, and if you can't, then the assumption is that the members of that group should be treated equally.

Thus, for more and more justices, discrimination against a group must have an “objective” basis. The state mush show harm done. Against that standard,"people don’t like it," or"the Bible tells us no," seems pretty weak, even to many conservative jurists.

Now a scientific standard--which is what this is, more or less--is no guarantee against problems. The racism of 1900 was “scientific.” The current blending of cutting edge biology and product development may present the Courts and the nation new moral dilemmas made all the more confusing by the wrapping of greed in the language of white coated “science.”

However, one of the disturbing things about the various Defense of Marriage amendments is that they declare categorically that whatever we learn about homosexuality should have no bearing on how we treat it, at least in the case of marriage. The effect will be to make the government “education proof” on this issue.



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Greg James Robinson - 5/19/2005

My dear Ralph, I know about the Puritans and sex--I read Edmund Morgan long ago. I deliberately used a small "p" so as not to confuse those who are puritanical with the 17th Century Calvinists. Now you want to get Peter Gay on my tail for stigmatizing the Victorians? Actually, perhaps we might blame in on the Augustans. Was it not John Wilkes who on being told by an opponent, "I believe that you will either die on the gallows or from some loathsome disease," responded "that would depend, Sir, on whether I embraced your principles of your mistress."


Ralph E. Luker - 5/19/2005

Greg, If the documentation in the amicus brief to the Supreme Court's decision in Lawrence was accurate (and I haven't been able to get Clayton Cramer to publish his claims that it was not accurate), I think you would want to say "the wrath of the Victorians," not "the wrath of the puritans." Not that the Puritans exactly "embraced" homosexuality, but the stigma against the Puritans in the mind of the Secular Left is just as deeply entrenched, despite Perry Miller, the brief, et al., as the stigma against homosexuality in the Religious Right.


Greg James Robinson - 5/19/2005

"Embrace" homosexuality? Watch those metaphors before you bring the wrath of the puritans down on you! Seriously, it is interesting that the question of whether homosexuality is a "choice" or not, despite its logical irrelevence to questions of liberty (it is also a "choice" to practice one's religion) is made the acid test of rights, even as the overwhelming scientific and logical evidence pointing towards it being innate is swept aside. But then, what is striking about the legal debates is how often those opposed to equal rights have resorted to astounding falsehoods about child molestation, etc.


Oscar Chamberlain - 5/19/2005

I agree that the science of sexual preference has not been of great importance in these decisions. However, the idea that discrimination against an identifiable group is wrong-- unless one can show that not discriminating will do society harm-- is in the background of these decisions and of the slowly growing willingness of the public to tolerate homosexuality, even if most don't embrace it.


chris l pettit - 5/17/2005

I have to admit a bit of self interest on the topic, as I am contributing a book chapter on exactly this subject...

Has anyone had any experience or background with John Dunn? I would highly recommend any of his texts on political theory and articulations of rights based theory. His tracing of the history of democracy is extremely enlightening; it basically debunks the whole idea of democracy as those who try and make the argument are defining it when one considers the history of the idea and the way groups are manipulated by ideologically based religion, miseducation and misinformation by those in power, economic factors, etc. At times it comes across as a pretty good argument for why economic social and cultural rights must come before political and civil ones if one wants to claim any legitimacy for democracy (which the US definitely cannot do at the moment).

This still ends up going back to whether one wants to take a utilitarian ("democratic") position regarding the universal rights of others. The rule of man (meaning rules articulated by self interested groups of humans to govern themselves and others...usually detrimental to rights) allows anyone in power to restrict the rights of others as long as they can claim it is in the "greater good" or they can conjure up a "majority" (by appealing to ideological interests, political interests, religion, or basic ignorance). The rule of law, on the other hand, is dependent on the recognition of universal rights that allows for an impartial and non-ideological judiciary to be made a protectorate of these rights...kind of like the Supreme Court was originally intended in the US (protectorate of the Constitution...which is a FLUID DOCUMENT and can accomodate historical and cultural progression from ignorance to enlightenment). That being said, the US judiciary is one of the most biased and ideological in the world, which is why it ranks as one of the least desireable courts in the world. South Africa is a much better model to follow. The rule of law also allows for recognition of historical progressions and flexibility of the law (in other words, I am not arguing for absolute rights as many mistaken rights theorists do...opening themselves for an easy attach by positivists and utilitarians). The rule of man is rules based...those who have the power and authority enforce those rules that they can enforce...law and rights do not even enter the conversation...only power issues and societal relationships. The rule of law is based in universal rights that apply to all humans (and no, they don't come from an invisible man, but are found throughout history in nearly every culture and religion) and cannot be subverted for the "greater good" except in the most extreme of circumstances (like overwhelming opposition - say 2/3 - and only if it can be shown that this opposition is based in critical analysis and rationality, not in ideology, blind faith, and fundamentally flawed assumptions). There should be a system of checks and balances...but the judiciary should have the final say in rights matters (which yes, is wode reaching). "Democracy", utilitarianism, and religion have no place in discussions involving universal rights that apply to all humanity and therefore require the elimination of argument based in faith and assumption that crumbles in the face of critical examination.

CP


Greg James Robinson - 5/17/2005

Oscar's point is well taken. The moral or religious arguments against same-sex marriage look weak. Opponents are forced to rely on arguments about democracy (the majority of people don't like it...) or attempt to show that outlawing same-sex marriage will somehow encourage opposite-sex marriage. However, while changing scientific thought was definitely a goal of early Gay activists (the high point was achieved in 1973 when the American Psychological Association voted to remove
"homosexuality" from its diagnostic manual of disorders) I am not sure that it has been particularly influential in changing ideas of reasonableness. I do not think the Supreme Court, either in ROMER v. EVANS or in LAWRENCE v. TEXAS, cited medical testimony as to homosexuality. I think the social acceptance of homosexuality in general, and the growth of same-sex family units (especially parents) in particular, has been of importance in altering standards.