SLOPE NOT THAT SLIPPERY? Mark Barton on Goodridge

[Mark Barton is a physicist and registered domestic partner in Pasadena, CA.]

[Eve, riffing on points made by Eugene Volokh, writes:] "In other words, at the time that these various anti-discrimination statutes were passed, everybody who supported them said that they would not form a slippery slope to same-sex marriage. But when the court wanted to justify SSM, guess what it drew on? So the court basically pulled us down the slope."

[Mark replies:] While Eugene's general point can hardly fail to apply at some level, the anti-discrimination law is a remarkably feeble example. The anti-discrimination law contributed almost no slipperiness to the overall trend. It is invoked in a single brief paragraph which is the last, and presumably least important, before the summing up. Moreover, it's in response to an objection which had to be made by one of the amici, presumably because the state as the defendant judged it too weak to bother with.

The state's case collapsed because on a wide variety of fronts its prior legislative actions belied the motivations that it claimed for keeping marriage opposite-sex. Moreover, many of these hypocrisies had nothing to do with same-sex couples. For decades before the gay rights movement gained traction, marriage had been on a quite different
slippery slope created by the advent of reliable contraception, which largely eliminated the state's leverage in tying procreation to
marriage, to the point where the state had pretty much given up trying, and the court could correctly say, "Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family."
posted by Eve at 2:44 AM | link

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