There's a difference between a technological change and a philosophical change. The former involves new methods of doing an old thing. The latter involves a new viewpoint.
The 1st Amendment protects (among other things) Free Speech. New methods of carrying out that freedom have been invented since the 1st Amendment was ratified. Television, internet, etc.
But the amendment protects the ACT of free speech. The fact that the methods of carrying out that act might change over time due to technology doesn't matter. Speech is still protected.
Suppose that in 1850, a law had been passed prohibiting taking a controversial drug (let's call it drug X) across state lines under the federal power to regulate interstate commerce. Would that mean you or I could today take that drug across state lines in car? After all, cars didn't exist in 1850, so would they not be covered by the law? Of course they'd be covered. The law prohibits the ACT of taking the drug across state lines. The method is irrelevant, and as methods change over time due to technology, the law incorporates them.
In the case of homosexuality, though, it's not a new thing relative to the Bill of Rights, or the 14th Amendment, like television is to the 1st Amendment. Homosexuality existed at the time the BOR was ratified. It existed at the time the 14th Amendment was ratified. It existed at the time the provisions of the Massachusetts constitution Margaret Marshall cited were ratified. And in all those ratification circumstances, it was unthinkable that gay "marriage" would have ever been the intent of any of those amendments. Had it even crossed anyone's mind that that might happen, the amendments in question would have either been rejected, or ratified only after being reworded to make sure they didn't sanction gay "marriage". Homosexuality was considered at the time to be a total abomination, so much so that no one in their wildest fantasies ever dreamed that anyone would ever interpret the amendment they were authoring as mandating it.
Now, you say that attitudes change. That's true, sometimes for the better, sometimes for the worse. But that's not constitutionally relevant. If attitudes change ENOUGH, then the votes will exist to enact gay "marriage" democratically. If they change at a literally revolutionary level, then the votes will exist to amend the Constitution to guarantee a "right" to gay "marriage".
But what if they change at a level below that? What if support for gay "marriage", which was at essentially zero when the 14th Amendment was adopted, rises to about 20% and stops? Is it the responsibility of the court to accommodate that 20% by reading it into the 14th Amendment? Why should that be the case when 20% could never be enough to ratify a constitutional amendment?
In the case of gay "marriage", and the gay agenda in general, we have a situation where only a minority of the poulation in general is supportive, but a majority of the ELITE population is supportive. The elite population has influence on the courts, via personal friendships with judges, via law review articles, via fluff pieces in the New York Times, via the power to socially mingle with the justices at various beltway functions. That's why gays now have so much clout in the courts, and why Romer got handed down.
Compare that to polygamists. I doubt that the public in general is any less supportive of polygamous marriage than they are of gay "marriage". Put polygamous marriage on the ballot in Texas and it would probably lose four-to-one, about the same margin as gay "marriage" lost by. The American people are strongly opposed to both polygamous marriage and gay "marriage". But there's a huge discrepancy among elites. Gay "marriage" is all the rage in elite circles. It's the hot new "human rights" issue. But polygamous marriage isn't currently a big deal among elites.
That's why we see gay shows all over TV, but not polygamy. We see Showtime and the Sundance Channel hosting gay directors weeks, but not polygamous directors weeks. We don't see polygamists painted as sympathetic victims of prejudice, as we do with gays in movies such as Brokeback Mountain and V For Vendetta.
And it's because of that difference in elite opinion that gay "marriage" is a judicial threat to us and polygamous marriage isn't. It's why the Supreme Court has declared homosexuals to be a protected 14th Amendment class, and not polygamists. If elite opinion were reversed, the judicial situation would likewise be reversed. Gays would be irrelevant people on the judicial sidelines, while polygamy would be advancing like a juggernaut through our courts.
That was Scalia's point at the close of his dissent in Romer. Homosexuality by then was fashionable within certain elite circles, so the court forces homosexuality on the public in a way they would never do with an unfashionable group, and that's the only difference.
It's not the function of the judiciary to force something on the public that we do not desire without clear constitutional mandate. Using a generally phrased passage such as the Equal Protection Clause to do that with homosexuality, when it's clear that was never intended by the phrase's authors and ratifiers, is tyrannical conduct by the court. And ironically, it's discriminatory conduct, since they only read new things into that amendment based on their own biases. Fashionable groups get added in, unfashionable ones don't.
Perhaps, but there's little doubt that the Internet has impacted people in ways yet to be considered. Attitudes change with changes in technology and methods of communication. People are subjected to messages and philosophies they never before would have even thought about. Such is what is happening in China today, and part of what led to the downfall of the Soviet Union. When a state opens up communications, attitudes change, just as they have here. Previously, many if not most attitudes concerning race, gender and other such distinctions were formed and maintained in small communities dominated by religious beliefs. That is why attitude changes first take place in urban areas.
But the amendment protects the ACT of free speech. The fact that the methods of carrying out that act might change over time due to technology doesn't matter. Speech is still protected.
You may have missed all of the furor over free speech with respect to the Internet. Free speech has been challenged for years, some of which has far more impact than in earlier decades. Both cable/satellite TV and the Internet have dramatically changed the outlook on free speech.
Suppose that in 1850, a law had been passed prohibiting taking a controversial drug (let's call it drug X) across state lines under the federal power to regulate interstate commerce. Would that mean you or I could today take that drug across state lines in car? After all, cars didn't exist in 1850, so would they not be covered by the law? Of course they'd be covered. The law prohibits the ACT of taking the drug across state lines. The method is irrelevant, and as methods change over time due to technology, the law incorporates them.
No, but the technology of 24/7 news and the Internet affects the attitudes such that people in 1850 would not have questioned the law, whereas today, with instant knowledge, people may learn quickly that it is a good or bad law and start a movement to either protect it or to get it tossed out. Also technological advances in medicine may also show that it is either a very harmful drug or a harmless drug. So you can't ignore the impact of technology on attitudes, which translates into cultural changes.
In the case of homosexuality, though, it's not a new thing relative to the Bill of Rights, or the 14th Amendment, like television is to the 1st Amendment. Homosexuality existed at the time the BOR was ratified.
But what is different is that both the truths and distortions concerning homosexuality can be verified in minutes, where before you had no way of knowing anything other than what the Bible supposedly said about it.
It existed at the time the provisions of the Massachusetts constitution Margaret Marshall cited were ratified. And in all those ratification circumstances, it was unthinkable that gay "marriage" would have ever been the intent of any of those amendments.
At the time of the ratification of the 14th Amendment, complete racial integration and especially marriage across racial lines were not considered either.
Had it even crossed anyone's mind that that might happen, the amendments in question would have either been rejected, or ratified only after being reworded to make sure they didn't sanction gay "marriage".
That is completely irrelevant to the question of whether or not same sex marriages are right or wrong. Most Americans think it is wrong, and since 45 of 50 states outlaw it, there is every likelihood that it will not become the law unless attitudes change, which I don't see any time soon. As long as marriage is protected as necessary for procreation, the brouhaha this year will die out.
If attitudes change ENOUGH, then the votes will exist to enact gay "marriage" democratically. If they change at a literally revolutionary level, then the votes will exist to amend the Constitution to guarantee a "right" to gay "marriage".
The greatest danger to those who are in fear of the same sex marriages would be the few states that may actually try it like Massachusetts. If people perceive that in fact the same sex marriages do not cause any harm to traditional marriages, attitudes will likely change over time. But that will probably not happen in my lifetime. I'm content that states that want to prevent it can do so.
But what if they change at a level below that? What if support for gay "marriage", which was at essentially zero when the 14th Amendment was adopted, rises to about 20% and stops? Is it the responsibility of the court to accommodate that 20% by reading it into the 14th Amendment? Why should that be the case when 20% could never be enough to ratify a constitutional amendment?
Two points. First, the court would have to recognize gay marriage as a right, that is that the state did not have a compelling interest in preventing the gay marriage. Not likely. Second though, 20 percent represents a minority of opinion, and the BOR and 14th Amendments were enacted to ensure that the rights of minorities, not majorities were protected. So the 20 percent is irrelevant.
In the case of gay "marriage", and the gay agenda in general, we have a situation where only a minority of the poulation in general is supportive, but a majority of the ELITE population is supportive.
Only a minority of the population was in favor of interracial marriages too. Again, the % of the population that favors something is totally irrelevant to the question of whether it is in fact a right.
That's why we see gay shows all over TV, but not polygamy. We see Showtime and the Sundance Channel hosting gay directors weeks, but not polygamous directors weeks. We don't see polygamists painted as sympathetic victims of prejudice, as we do with gays in movies such as Brokeback Mountain and V For Vendetta.
True, and as a result, general attitudes have changed with respect to homosexuality in general.
That was Scalia's point at the close of his dissent in Romer. Homosexuality by then was fashionable within certain elite circles, so the court forces homosexuality on the public in a way they would never do with an unfashionable group, and that's the only difference.
Scalia's belief that customs and the attitudes of the population should somehow determine whether someone has a right or not is simply wrong. He is normally right on most issues, but not on this one. That was his religious convictions talking, not his supreme court role.
It's not the function of the judiciary to force something on the public that we do not desire without clear constitutional mandate.
Where in Article III does it require the judiciary to take a poll before deciding rights issues? Since all rights claims will always come from minorities, the judiciary would never uphold a rights claim, since the majority had not ok'd it.
Using a generally phrased passage such as the Equal Protection Clause to do that with homosexuality, when it's clear that was never intended by the phrase's authors and ratifiers, is tyrannical conduct by the court.
It is completely irrelevant what the authors or ratifiers believed or didn't believe. I certainly doubt they were all in concert, since the 14th Amendment was ratified through the barrel of a gun. In any case, the language must be the preeminent factor, not any of the attitudes of the authors (which was Congress).