The Constitution, Values, and Science
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.