...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.

But it seems to me that decisions such as the ones in California, Connecticut, Iowa, 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), the possibility of a slippery slope has to be taken seriously.

And this is true even though the past decisions are distinguishable from a future one. Employment discrimination laws, for instance, are not the same as same-sex marriage. Legislative decisions are not the same as constitutional ones. It was certainly possible to draw the line between legislative decisions to ban private discrimination in employment and judicial decisions to ban governmental discrimination in deciding who may marry. That two matters are distinguishable does not mean that they will be distinguished by future decisionmakers. And in fact they may influence future decisionmakers even when the earlier decision expressly disclaims any attempt to accomplish what the later decision did, as was the case with the Iowa antidiscrimination statutes, which expressly said that they "shall not be construed to allow marriage between persons of the same sex." Though they themselves weren't construed as allowing same-sex marriage, they were indeed construed as a data point in favor of a constitutional decision allowing same-sex marriage.

Labels: courts, gay marriage

VOTE

<< Home