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Gay Marriage and Slippery Slopes

This week's gay-marriage ruling from the New Jersey Supreme Court, Lewis v. Harris, brought images of slippery slopes to two of the co-conspirators at The Volokh Conspiracy. For UCLA law professor Eugene Volokh, the ruling is evidence "that the slippery slope is a real phenomenon." He recalls a 1989 Boston Globe editorial in favor of a proposed law barring sexual-orientation discrimination in credit, employment, insurance, public accomodation and housing. The bill, the editorial said, would neither legalize gay marriage nor "put Massachusetts on a 'slippery slope' toward such rights." Massachusetts, of course, became the first state to recognize gay marriage. And the New Jersey court's equal protection argument begins, Volokh notes, by citing similar non-marriage-related gay rights laws. Says Volokh:

One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter ..., but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions).

University of Minnesota law professor Dale Carpenter also sees a slippery slope at play here, but his is judicial rather than legislative and starts from the unstable middle ground on which the state based its defense of traditional marriage. The state's arguments focused on heterosexual marriage as a tradition, he notes, rather than on marriage as an institution built around procreation and child rearing. In so doing, Carpenter says, "the state thus surrendered the two rationales for denying equal rights to gay couples that have been successful in other state court decisions." The state, by resting its argument on this middle ground, brought the court to the summit of the slippery slope:

The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren't there to do more or because of simple fiat. When legislatures act, they may grant 50 of the 1,000 rights of marriage now, another 25 rights next year, another 100 the year after that, and the rest whenever they get around to it, all without explaining why they've acted or failed to act. Courts have a harder time making these distinctions because judicial conventions mandate that they give reasons to support their opinions, and what principled reason could there be for giving 50 of the 1,000 rights of marriage but not another 25 or 100 or all of them? This is the slippery slope phenomenon Eugene points to. It's not so much a legislative slippery slope as it is a judicial one.

While Volokh and Carpenter see in the ruling different slippery slopes, University of Chicago law professor Geoffrey R. Stone, writing at The Huffington Post, finds in it a reminder of how far we've come:

This is what is meant by 'raising one's consciousness.' I'm old enough to remember when blacks couldn't drink from the same water fountain as whites and when a woman Supreme Court justice, an African-American secretary of state, an openly gay congressman, and a Hispanic attorney general seemed unthinkable. Today's law students will no doubt regale their children with their memory of a time when, believe it or not, gays and lesbians couldn't marry. Pretty amazing.

Posted by Robert J. Ambrogi on October 27, 2006 at 05:38 PM | Permalink | Comments (10)

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