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The Slippery Slope to Same-Sex Marriage:

The California Supreme Court decision striking down California's opposite-sex-only-marriage rule helps illustrate, I think, what I call "legislative-judicial slippery slopes" — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.

Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:

  1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."

  2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."

  3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."

Yet consider how the California Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage:

There can be no question but that, in recent decades, there has been a fundamental and dramatic transformation in this state’s understanding and legal treatment of gay individuals and gay couples. California has repudiated past practices and policies that were based on a once common viewpoint that denigrated the general character and morals of gay individuals, and at one time even characterized homosexuality as a mental illness rather than as simply one of the numerous variables of our common and diverse humanity. This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation, and, more specifically, recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.

[Footnotes to above: See, for example, Civil Code section 51 (barring sexual orientation discrimination in the provision of services by any business establishment); Government Code sections 12920 (barring sexual orientation discrimination in employment), 12955 (barring sexual orientation discrimination in housing), 11135, subdivision (a) (barring sexual orientation discrimination in any program operated by, or that receives any financial assistance from, the state); Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 466-475 (Gay Law Students) (Cal. Const. prohibits sexual orientation discrimination by public utility). See, for example, sections 297 et seq., 9000, subdivisions (b), (g); Welfare & Institutions Code section 16013, subdivision (a); Sharon S. v. Superior Court (2003) 31 Cal.4th 417; Elisa B. v. Superior Court, supra, 37 Cal.4th 108....]

Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts) and same-sex domestic partnership benefits (Vermont).

Now the California Supreme Court majority does say that "our reference to numerous statutes demonstrating California’s current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment does not suggest that an individual’s entitlement to equal treatment under the law — regardless of his or her sexual orientation — is grounded upon the Legislature’s recent enactment of the Domestic Partner Act or any other legislative measure. The capability of gay individuals to enter into loving and enduring relationships comparable to those entered into by heterosexuals is in no way dependent upon the enactment of the Domestic Partner Act; the adoption of that legislation simply constitutes an explicit official recognition of that capacity. Similarly, the numerous recent legislative enactments prohibiting discrimination on the basis of sexual orientation were not required in order to confer upon gay individuals a legal status equal to that enjoyed by heterosexuals; these measures simply provide explicit official recognition of, and affirmative support for, that equal legal status."

Yet the majority's citing those past legislative decisions — and going on to say that "Indeed, the change in this state’s past treatment of gay individuals and homosexual conduct is reflected in scores of legislative, administrative, and judicial actions that have occurred over the past 30 or more years. (See, e.g., Stats. 1975, ch. 71, §§ 7, 10, pp. 133, 134 [revising statutes criminalizing consensual sodomy and oral copulation]; Governor’s Exec. Order No. B-54-79 (Apr. 4, 1979) [barring sexual-orientation discrimination against state employees]; Morrison v. State Board of Education (1969) 1 Cal.3d 214 [homosexual conduct does not in itself necessarily constitute immoral conduct or demonstrate unfitness to teach].)" — means that the Justices in the majority must see legislative decisions as relevant. Maybe at least one Justice of the 4-to-3 majority was indeed swayed by the body of legislative pro-gay-rights judgment; or even if the argument was makeweight, the majority must think that some of the readers would be swayed by these legislative judgments. And these legislative judgments are seen as relevant even in an area (same-sex marriage) different from that in which the initial legislative judgments took place.

Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative. (The decriminalization of same-sex sexual conduct, which the California Supreme Court majority cited as evidence of a "change in this state’s past treatment of gay individuals and homosexual conduct," is likely the best example.)

But it seems to me that decisions such as the California, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), slippery slope risks have to be taken seriously.

John D (mail):
Like marriage equality is a bad thing?
5.15.2008 3:57pm
Hoosier:
John D--I really don't think that was the point of EV's post. Nor do I think the point of the post was unclear.
5.15.2008 4:02pm
John D (mail):
I understand the point of his post. I simply feel that "slippery slope" is a phrase like "judicial activism." It equates to "I don't like the decision."

If you like the decision, it seems quite rational and the judges don't seem the slightest bit activist. (That's where I stand.)

I was unaware that Professor Volokh was against the use of analogy and precedent in the courts. It seems a strange position for a legal scholar to take. Certainly precedents are used to justify decisions beyond the scope of the earlier case. Is that really a "slippery slope"? Or is this just slippery language?
5.15.2008 4:07pm
KevinQ (mail) (www):
How come nobody ever talks about a "slippery slope" toward a result they would like? Abortion opponents don't say "Parental notification laws are starting us on the slippery slope toward overturning Roe v. Wade."

"Slippery slope" is a rhetorical device, not a legal argument. I guess it's only a slippery slope if you're trying to fight it.

K
5.15.2008 4:08pm
Fub:
Just FWIW, and not directly related to the slippery slope exegesis above -- I just heard radio news that Governator Schwarzenegger has announced that he supports and respects the Court's decision, and will not support ballot initiatives to overturn the Court's decision.
5.15.2008 4:10pm
FantasiaWHT:
Except the bottom of this slippery slope isn't gay marriage, it's polygamist marriage, incestuous marriage, etc...
5.15.2008 4:12pm
Virginian:

Like marriage equality is a bad thing?


If by "marriage equality" you mean changing the definition of marriage that has existed for millennia, then yes that's a bad thing.
5.15.2008 4:13pm
MXE (mail):
How come nobody ever talks about a "slippery slope" toward a result they would like?

Well, Kevin, people don't use the term "slippery slope" when talking about a process they support, because it's a metaphor with negative implications -- falling off a cliff, basically.

But people acknowledge the underlying slippery slope mechanism all the time in cases where they consider the "slope" to represent progress.

Gun rights advocates routinely cite the value of shall-issue concealed carry in fostering a "new generation" that's comfortable with the idea of CCW and will thus be more generally pro-gun. That sounds like a slippery slope to me.

The Times did the exact opposite in an editorial about the Clinton assault weapons ban, acknowledging that the present ban was basically worthless as a crime control measure, but citing it as a necessary incremental step toward more control.

And environmentalists often say that signing onto Kyoto would be useful in getting the U.S. committed to the "CO2 emissions reduction bandwagon" even though Kyoto on its own wouldn't do anything to stop climate change. That, too, is a form of slippery slope, in that the Kyoto step makes it easier to move further.
5.15.2008 4:15pm
CDU (mail) (www):
When someone dislikes what lies at the end of a potential chain of events, they call it the slippery slope. When they approve of it, they call it "a good first step".
5.15.2008 4:29pm
New Yorker:
"If by "marriage equality" you mean changing the definition of marriage that has existed for millennia, then yes that's a bad thing."

This is rather interesting coming from a Virginian. I'm rather glad that it was precisely in Virginia where our definition of marriage began its evolution. :-)
5.15.2008 4:29pm
The Ace:
Time to drop a but see.


Conaway v. Deane, the Maryland decision against gay marriage states:


While gay, lesbian, and bisexual persons in recent history have been the target of unequal treatment in the private and public aspects of their lives, and have been subject to
stereotyping in ways not indicative of their abilities, among other things, to work and raise a child, recent legislative and judicial trends toward reversing various forms of discrimination based on sexual orientation underscore an increasing political coming of age. The relevant decisions from other jurisdiction s recognize this. Andersen, 138 P.3d at 974-75 ("The enactment of provisions providing increased protection to gay and lesbian individuals in [the State] shows that as a class gay and lesbian persons are not powerless but, instead, exercise increasing political power. Indeed, the recent passage of the amendment [in Washington prohibiting discrimination on the basis of sexual orientation] is particularly significant . . . . We conclude that plaintiffs have not established that they satisfy the [political powerlessness] prong of the suspect classification test."); see also High Tech Gays, 895 F.2d at 573-74 (concluding, independent of reliance on Bowers, that, "[w]hile we do agree that homosexuals have suffered a history of discrimination, we do not believe that they meet the other criteria [for being a suspect or quasi-suspect classification]," and determining that "legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation though the passage of anti-discrimination legislation. Thus, homosexuals are not without political power . . .")


Then in a footnote, the Maryland Court of Appeals says what we all were thinking:


The irony is not lost on us that the increasing political and other successes of the expression of gay power works against Appellees in this part of our analysis of the level of scrutiny to be given the statute under review.


Opinion here
5.15.2008 4:31pm
Thales (mail) (www):
I second New Yorker. I think Mildred Loving (RIP) would agree.
5.15.2008 4:32pm
John Howard (eggandsperm.org) (mail) (www):
Wasn't the courts reasoning, in a nutshell, that as long as DP's give the same rights as marriage, there is no justification to give them different names? They took pains to point out they weren't looking at the public policy issue of whether or not same-sex couples should have all the rights of marriage.

I think it will be interesting to see how the candidates (who all support CU's I think) respond. They can't justify their stance anymore, so they will either have to specify what right or rights they don't think same-sex couples should have, or move to supporting SSM.

I hope they will say that same-sex couples should not have the right to conceive children together that all marriages should have, using the couple's own genes. Same-sex conception requires modifying the genetic imprinting and introduces unnecessary risk and cost and forces us to accept use of modified gametes for hetero couples as well, essentially bringing on Gattaca and Brave New World situations. To avoid that, we have to preserve natural conception rights, which means we have to prohibit using modified gametes, which means we have to prohibit same-sex conception, which gives us a suitable distinction for anyone looking for one.
5.15.2008 4:37pm
SIG357:
They start with their conclusion, then come up with whatever justification is handy. After all, the "domestic partnership" laws were mostly passed in an effort to head off judicial meddling.
5.15.2008 4:39pm
Sean O'Hara (mail) (www):

If by "marriage equality" you mean changing the definition of marriage that has existed for millennia, then yes that's a bad thing.


Do you have an argument to support that assertion? (And "teh butt seks is bad" doesn't count.)
5.15.2008 4:43pm
Mike S.:
Actually, because of the pre-existing domestic partnership statute, i think this decision is far more reasonable that the Massachusetts one. The CA court could point to a legislative (i.e. democratically done) enactment and point out that the only reason for a different name is to limit the symbolic dignity of same-sex relationships. The MA court, in contrast, was left with the risible assertion that language written by John Adams (and slightly modified in a 1978 referendum making no mention either in the text or the campaign of same sex couples) implicitly has required same sex marriage all along, although no one who participated in drafting or adopting it realized it or even thought of the issue, as far as we know. (Also distinct from Loving, where the text of the 14th amendment explicitly prohibits racial discrimination) It is very hard to understand what theory of democracy can possibly underlie the Mass. decision, which was, in its essence, a raw assertion that the court not the people are sovereign.
5.15.2008 4:57pm
Oren:
I think Mildred Loving (RIP) would agree.
No need to think, she said as much.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. Especially if it denies people's civil rights.

I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.


RIP indeed Mrs. Loving.
5.15.2008 4:59pm
Bob from Ohio (mail):

I'm rather glad that it was precisely in Virginia where our definition of marriage began its evolution.


Laws against bi-racial marriages were an aberration. Loving merely restored the historic definition of any man with any unrelated woman.

Before recent times, man/man or woman/woman marriages had never been recognized any time in human history.
5.15.2008 5:04pm
The Oracle of Syracuse:
Those of us who were born polyamorous--that is, those of us with a genetic predisposition toward polyamorousness--are looking forward to reaching the bottom of this slope.
5.15.2008 5:05pm
Cold Warrior:
Those who haven't read Prof. Volokh's "Slippery Slope" law review article (or even it's condensed Reader's Digest version -- is that still available?) should definitely do so now.

I have to say it made me re-think (and ultimately suppress) my gut reaction to pooh-pooh slippery slope arguments. A finer piece of legal scholarship I haven't seen in the last decade. (Really ... I mean it.)
5.15.2008 5:13pm
Nathan_M (mail):
I often wonder whether there is an actual slippery slope effect, or if it just looks like there is because courts are reflecting changing societal values.

As I see it, the slippery slope argument is that a small liberalization in laws in an area inevitably leads to a larger liberalization (e.g. decriminalizing homosexuality causes legalizing gay marriage many years later). I would suggest this isn't the case at all, but rather changing norms has lead to the changes in the law.

So homosexuality was decriminalized because we became more accepting of it. But I'd suggest that if attitudes hadn't changed since then courts wouldn't be legalizing gay marriage today.

Now there could be a slippery slope in the sense that once homosexuals aren't imprisoned many people realize there's nothing wrong with homosexuality. And once homosexuals can form domestic partnerships, and adopt children, people realize the sky won't fall if they're allowed to marry. But I think that is just organic social change, and not some sort of nefarious slippery slope causing change that has no popular support.
5.15.2008 5:17pm
MadHatChemist:
There is no slippery slope. Proponents of same-sex marriage, who have argued for it based on privacy, freedom, and equality, will now use the same arguments that anti-same-sex marriage proponents used against same-sex marriage.

Same-sex marriage isn't about privacy, freedom, and equality. It is about replace one morality that restricted the definition of marriage with another morality that also restricts the definition of marriage.
5.15.2008 5:36pm
KeithK (mail):
I was unaware that Professor Volokh was against the use of analogy and precedent in the courts. It seems a strange position for a legal scholar to take.

I don't claim to speak for Prof. Volokh as to whether he is for or against these things. But it is very much valid to point out that the way analogy and precedent are used in our legal system do sometimes create slippery slopes. I am sure that hardly anyone thought Loving would find applicability to gay marriage when that the decision came out but now it (or similar logic) is applied to this issue. The justices who ruled on Griswold probably did not think their logic would be used to declare sodomy laws unconstitutional.

The way our laws eveolve in this manner is powerful but also extremely dangerous. Dangerous because it allows laws to be stretched far, far away from their original meaning by courts, rather than the democratic/legislative process.

If the CA legislature had passed SSM I would still be pissed off but I would at least see it as valid and not an invention of the courts. (And before someone says it, the legislature did not pass a SSM bill. The governor's veto is part of the constitutional legislative process.)
5.15.2008 5:40pm
Chimaxx (mail):
Bob from Ohio:

Before recent times, man/man or woman/woman marriages had never been recognized any time in human history.


If you look at the anthropological record, that's not strictly true. That is: It's true if you're talking about gender (man/woman), but not if you're talking about sex (male/female). Various cultures at various times have allowed pairs of same-sex couples (male-male or female-female) to marry as long as one of them lived as the opposite gender (man-woman).

In this era when the gender difference in marriage is dramatically less than it once was--when male-female couples can essentially live and move through the world as two men--gays are now asking for the right to be married as same-gender as well as same-sex couples.

There was a long discussion of just this issue and the anthropology around it at Box Turtle Bulletin a few, weeks ago.
5.15.2008 5:49pm
holdfast (mail):
"Except the bottom of this slippery slope isn't gay marriage, it's polygamist marriage, incestuous marriage, etc..."

Duh - how dare the courts intrude on the privacy of a man and his wives and his right to take as many wives as Allah permits? How dare the courts tell a man from rural Pakisstan or Jordan that he cannot marry his first cousin - it is an ancient cultural tradition, and why is it anyone else's business?

We may be able to stave off beasiality under the rubric of animal rights, but pretty much everything else is now on the table.

Anway, while I have no doubt that some gay couples really want to experience the bliss hell of marriage, for many other activists this is simply another weapon to destroy the evil heteronormative society.
5.15.2008 6:04pm
Randy R. (mail):
Bob:" Before recent times, man/man or woman/woman marriages had never been recognized any time in human history."

Well, then we should never have instituted representational democracy in the late 18th century, because that never was recognized any time in human history. (Ancient Greece had direct democracy, not representational). There are lots of things that we allow today that we didn't allow back in the mists of time, and if the only reason you have to not doing something is that it was never done in the past, then you will limit society on many occasions.

But you are wrong in fact as well. None of the Roman emperors were exclusively heterosexual, and at least one, Hadrian, did in fact marry Antinous, a male teenager. When Antinous died, Hadrian was bereft in sadness, and ordered thousands of busts in his likeness, elevated him to the status of a god, and named a city after him.

Additionally, there was a book that came out several years ago (I can't remember the name), where the scholar did extensive research and found that in the very early days of the church, same sex marriages were in fact performed. They were fairly rare, of course, and often done in secret, but nonetheless, they did occur.
5.15.2008 6:08pm
Randy R. (mail):
holdfast: "Anway, while I have no doubt that some gay couples really want to experience the bliss hell of marriage, for many other activists this is simply another weapon to destroy the evil heteronormative society."

You mean like how society crumbled in Canada and Spain after they allowed SSM?

I just love on people predict the end of the world because a handful of gay people get married! Frankly, if society is that corrupted that a few gay people can topple it, then the problems were there a lot longer before gays arrived on the scene.
5.15.2008 6:10pm
Bama 1L:
Isn't this the flipside of the recent Michigan decision holding that a law banning same-sex marriage forbade state agencies to offer benefits to same-sex domestic partners? That is, the Michigan court seemed to see a slippery slope--domestic partner benefits leading to marriage rights--and acted to arrest a slide down it.
5.15.2008 6:14pm
Shannon Love (mail) (www):
I remember as kid back in the 70's reading some conservative minister warning that the Equal Rights Amendment and women's liberation would lead to gay marriage. At the time he was much derided as an alarmist. A decade ago, conservatives who said that granting legal equality to homosexuals would lead to gay marriage.

Hate to say it but looking back over the 20th Century, it seems that social conservatives have accurately predicted the eventual evolution of law and culture. That makes me believe that their warnings that gay marriage will lead to significant weakening of marriage as an institution and even the return of polygamy.

I support gay marriage but it does seem like having the state define our contractual obligations to one another is leading to a least common denominator society were the most transient and impulsive behavior holds the legal presumption.
5.15.2008 7:11pm
Ken Arromdee:
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry

Odd fallacy here. Gay relationships don't produce children in the same way that straight relationships do. She's just disproven her own point.
5.15.2008 7:24pm
f:
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5.15.2008 8:42pm
KeithK (mail):
Randy, you are right to say that the fact that something has never been done before doesn't mean we shouldn't do it now. That said, one should understand that institutions that have existed for extremely long periods of time usually have done so for good reasons. We ought to think long and hard before making dramatic changes to them.

In my mind, it's really the same idea as a court respecting precedent. Previous rulings may be wrong and should be over ruled when they are. But precedents (especially long standing ones) represent the collected wisdom of the court over time. It's a mark of humility to respect and acknowledge what has gone before and not change it lightly.

Many supporters of gay marriage frame the issue such that they ask opponents "why shouldn't we be able to get married?" Given the long standing standard of marriage as only between man and woman (specific historical exceptions notwithstanding) the onus should be on supporters to convince society that their position is right.
5.15.2008 8:46pm
whit:
":How come nobody ever talks about a "slippery slope" toward a result they would like? Abortion opponents don't say "Parental notification laws are starting us on the slippery slope toward overturning Roe v. Wade"

i do.

for example. i am 100% for decriminalization of marijuana.

i am also for medical marijuana.

but i'd be a liar if i didn't acknowledge that the latter is a slippery slope towards the former.

slippery slope does mean something.

im against sodomy laws. but i'd also concede that lawrence v texas is a slippery slope towards legalized bestiality (as long as it doesn't harm the animal) etc.
5.15.2008 9:21pm
Dave D. (mail):
..They don't have to convince society, Keith, just appealing to a higher power, Chief Justice George, is enough.
...But may I live to see the reckoning when these philospher Kings are hanging from lightpoles, as anything less won't restore the balance of power. Rule by judicial fiat is NOT representational democracy. I could give a fig less whether girls marry girls, or goats, or lotsa people all at once. But I very much care not to be ruled by lawyers with attitudes. They overstepped their bounds and create a tyranny.
5.15.2008 9:30pm
Public_Defender (mail):
The slippery slope theory is right. Now that California has allowed gay marriage, married men all over the state are going to divorce their wives, abandon their children, and roll through an unhealthy series of gay one night stands. The family is doomed. Non-reproductive Western Civilization will be overrun by godless (or wrong-godly) terrorists who will launch a thermonuclear war destroying all humanity.

Oh, and the sky will fall, too.
5.15.2008 10:25pm
whit:
the slippery slope theory is valid. and i say that as somebody who SUPPORTS gay marriage. i get tired of people saying it's only the anti's that bring it up. it isn't.
5.15.2008 10:39pm
Randy R. (mail):
Shannon: "it does seem like having the state define our contractual obligations to one another is leading to a least common denominator society were the most transient and impulsive behavior holds the legal presumption."

What do you mean by the most transient and impulsive behavior? Do you really mean that gays and lesbians can't maintain longterm relationships? If so, you are truly mistaken. I know many couples that have lasted longer than many hetero couples, Britnery Spears included.

KeithK: I guess we differ on whether marriage has changed. After having read several books on the matter, it is pretty clear to me that marriage has changed quite dramatically over the centuries. There used to be strict limitations on who you could marry -- had to be the same class, race, no physical handicaps, and so on. Most marriages in the past were arranged. Almost no one married for love, and it was silly to think so -- you married because it brought an economic advantage to you or your family, or both. It's only been in the last 200 years or so that marriage has changed to the idea of marrying for love. And it's only been since around the 1920s that people actually did marry for love.

Today, for most people in the western world, we marry solely for love, nothing more or less. This is radically different from just a few hundred years ago. But if the basis is solely for love, then you can hardly exclude gays from the institution.

And surprisingly, marriage has survived all this change and tumult.
5.16.2008 12:58am
Public_Defender (mail):
This really isn't a "slippery slope" down. Instead, the freak-out of shouting "GAY!!!" has greatly diminished as society's view of homosexuality has shifted. In the end, we aren't sloping down, we're slowly climbing up.

Thirty or forty years ago, anti-gay people could say, "he's gay" and that person couldn't even get a job as a teacher some places. Now, people just aren't as freaked out about gay people as they used to be. We've realized that gay people can form permanent relationships and the sky won't fall.

Another factor is that, generally, sex outside of marriage has lost a lot of its stigma. In the past, limiting marriage meant limiting sex, at least to some extent. Now, limiting marriage just deters people from accepting the responsibility of permanent relationships. The question now is whether gay people should be encouraged to form multiple short-term relationships or one permanent one.

Although the physics are tricky, the slippery slope goes both ways. The Catholic Church is very clear that its goal is one in which any sex outside of marriage is sanctioned (and, as is the practice at some Catholic schools, premarital sex could be grounds for losing your job), in vitro would also be banned, and even married couples would be legally barred from using birth control.

Of course, the Catholic Church has every right to push its position, but the slope does go both ways.

That leads to my final point--the move toward gay marriage is really a steady climb up from bigotry and ignorance, not a slippery slope down. The term "slippery slope" incorrectly implies that we're going down.
5.16.2008 8:56am
whit:
while i support gay marriage, i think you are wrong about the slippery slope.

the courts (california at least) have said that there is a constitutional right to marry any consenting adult you please (essentially).

so, i ask... how can we outlaw incest? especially same sex incest? (no genetic issues).

that's (among other places) where the slippery slope comes in.

we are inarguably expanding the definition of marriage - based on some profound new insight into the (california) constitution (note: sarcasm).

again, i am FOR gay marriage, but let's admit the slope exists. where DO marriage rights stop? and how can we legitimately tell a guy he can't marry his brother, if they love each other ...


also, i may be wrong here (not that versed on the catholic church) but does the catholic church actually have as a goal that married couples would be LEGALLY barred from using birth control? if true, that's astounding. not doubting you, but i have never heard that
5.16.2008 9:18am
Public_Defender (mail):
also, i may be wrong here (not that versed on the catholic church) but does the catholic church actually have as a goal that married couples would be LEGALLY barred from using birth control? if true, that's astounding. not doubting you, but i have never heard that

Maybe Catholic (and conservative Protestant) leaders have changed their view since Griswold. If so, I stand corrected.
5.16.2008 9:27am
Public_Defender (mail):
I was wrong to single out the Catholic Church. Many American Episcopals are voluntarily and enthusiastically putting themselves under the authority of Nigerian Bishop Peter Akinola, who supports the imprisonment of gays who publicly support gay rights or who so much as touch each other in public. See this Washington Post article, for example.

Thugs like Bishop Akinola and his American acolytes are the ones trying to pull us down a slippery slope. The California Supreme Court pulled as a little father back up that slope.
5.16.2008 10:37am
Randy R. (mail):
You know, Whit, I have to admit that at least based on this decision, it's hard to claim that polygamy or incestuous relationships can't be sanctioned.

Now, there are arguments, that in polygamy women are forced into marriages against their will, and incestuous relationships its usually an older man having sex with a younger woman. In most of thos cases, having minimum ages of consent can take care of the problems.

But as to the broader point, here's my response: It's not my problem. I, at least, am not angling for polygamy or incest. I'm only angling for SSM. Let others make the argument for it. Then we can debate it. But not a single person here has made any arguments for it. Not a single person said, hey, I want to marry my 12 wives, so I should be allowed.

Nope. the only people who even raise the issue are those who are against SSM. So in my view, the issue is moot. It isn't raised, and if it isn't raised, it need not be addressed.

Perhaps in the future, these may be raised, or in another context, but we just had a raid in Texas, and most of the conservative commentators here were actually defending the polygamists! So if you guys have no problem with it, then I don't either. If you DO have a problem with it, the solution is simple: A constitutional amendment to prohibit polygamy and incest. Such an amendment should pass easily in any state.

In other words, if your primary objection to SSM is that it will lead to these outcomes, cut off the outcomes, and then that paves the way to your approval of SSM.

Unless, of course, that's not the real reason you oppose SSM.
5.16.2008 12:41pm
James N. (mail):
Randy R: "Almost no one married for love, and it was silly to think so -- you married because it brought an economic advantage to you or your family, or both."

Quick! Someone had better let Wm. Shakespeare know that Romeo and Juliet, Othello, the Merchant of Venice, etc. were all considered by Elizabethan England to be quite silly!
5.16.2008 5:18pm
Randy R. (mail):
Well yes. That's why those stories were so entertaining to people at the time -- because they were unusual.

But yes, until sometime in the 19th century, almost no one married for love. Romantic love was an ideal since at least the age of the Troubadours, who sang songs of love. But they didn't sing songs about marrying your love -- rather about 'reuniting' with you love. In other words, having an extramarital affair.

Divorce was almost always prohibited of course, so you married for social status and had a mistress on the side. This was the way of the aristocracy, whose fortunes (usually land) were at stake. It was the way of the middle class as well.

For the lower classes, well, you just married who ever was available. Slim pickin's, indeed.
5.16.2008 9:24pm
SteveO (mail):
If you DO have a problem with it, the solution is simple: A constitutional amendment to prohibit polygamy and incest. Such an amendment should pass easily in any state.

Remember how the American public responded to Short Creek. John Howard Pyle was booted out of office. There is good reason to have doubts about the viability of constitutional amendments prohibiting polygamy.

And surprisingly, marriage has survived all this change and tumult.

Has it? Marriage rate is dropping and co-habitation is going up.
5.17.2008 2:11am
Public_Defender (mail):

Has it? Marriage rate is dropping and co-habitation is going up.

You may have cause and effect backwards. Because we have largely lost the social sanction against premarital sex, creating a barrier to marriage no longer creates a barrier to sex.

In the past, society could greatly limit gay relationships by barring marriage. But now, gay people can live together openly. The only question is whether we encourage gay people to form long-lasting, stable, monogamous relationships (marriage), or encourage gay people to engage in multiple short-term flings (by banning marriage).

The policy choice is obvious.
5.17.2008 9:14am
Richard Nieporent (mail):
Here is a slippery slope argument that I don't believe has been addressed. Now that gays can be married, there is no reason to have a domestic partnership law. Thus all of the gay couples who have signed up for domestic partnership benefits at work may in the future be forced to be married to get those benefits. Another possibility is that by dint of the equal protection argument courts will no longer be able to ban heterosexual couples from taking advantage of the domestic partnership laws at work.
5.17.2008 11:29am
Randy R. (mail):
Richard: "Now that gays can be married, there is no reason to have a domestic partnership law."

Of course. The only purpose for them was because gays couldn't otherwise get the benefits of married people. So in CA, at least, they should go away.

"Has it? Marriage rate is dropping and co-habitation is going up."

In France, that is true, where they do not have SSM. It hasn't happened in Massachusetts or Canada, where SSM is allowed. Therefore, you can hardly blame SSM for the situation you heteros screwed up.

Did it ever occur to you that perhaps SSM might actually help the institution of marriage? Why do opponents always assume that SSM will only have a negative impact upon marriage? Especially since there is no evidence that it actually has?
5.18.2008 3:24am
Richard Nieporent (mail):
Randy, did you even bother to read what I wrote? If you did, please explain to me where it states that I am against SSM. This thread was about slippery slopes and I tried to provide an example that hadn't been discussed before namely that SSM could lead to less benefits for gay couples (or more benefits for non married couples of the opposite sex). Sometimes a cigar is just a cigar.
5.18.2008 8:54pm
Randy R. (mail):
Richard, I AGREED with you!

I quoted somebody else about the marriage rate dropping, and was responding to HIS comments. Sorry for the confusion, but I was not arguing with you.
5.19.2008 1:27am
James N. (mail):
Randy: "Well yes. That's why those stories were so entertaining to people at the time -- because they were unusual."

You're backtracking here. You said earlier that the idea of marriages being undertaken for love was thought to be "silly". This is totally false. It was quite clearly an ideal in Western Europe for at least as long as people have been writing about marriage.

Surely you have heard the proposal of The Passionate Shepherd to His Love: "Come live with me and be my Love / And we will all the pleasures prove ..."

The shepherd's sentiment is idealistic and rather naive, but your notion that only "in the last 200 years or so" marriage "changed to the idea of marrying for love" is a lot sillier.

Talking about the aristocracy is beside the point. The vast majority of married people are not power couples: not then, nor now.
5.19.2008 1:31am