SLIPPERY SLOP: Dahlia Lithwick

Anyone else bored to tears with the "slippery slope" arguments against gay marriage? Since few opponents of homosexual unions are brave enough to admit that gay weddings just freak them out, they hide behind the claim that it's an inexorable slide from legalizing gay marriage to having sex with penguins outside JC Penney's. The problem is it's virtually impossible to debate against a slippery slope. Before you know it you fall down, break your crown, and Rick Santorum comes tumbling after. ...

The real problem is that there are really only three arguments against gay marriage: One is rooted in entirely God's preferences--which have little bearing on Equal Protection or Due Process doctrine, as far as I can tell. The second cites inconclusive research on its negative effects on children. The backup is the slippery slope jeremiad, which seems to pass for a legal argument, at least on cable TV. But fear of the slippery slope alone is not a sufficient justification for doing the wrong thing in any individual case. In a superb dialogue on gay marriage in Slate, Andrew Sullivan, responding to David Frum, makes this point eloquently: "The precise challenge for morally serious people is to make rational distinctions between what is arbitrary and what is essential in important social institutions. ... If you want to argue that a lifetime of loving, faithful commitment between two women is equivalent to incest or child abuse, then please argue it. It would make for fascinating reading. But spare us this bizarre point that no new line can be drawn in access to marriage--or else everything is up for grabs and, before we know where we are, men will be marrying their dogs."

Now, slippery slopes are not to be sneezed at. Professor Eugene Volokh of UCLA law school has done some extremely serious thinking on the subject and, while he does not himself oppose gay marriage, he cautions that one ignores slippery slope effects at one's peril. But he also reminds us that slippery slopes are only metaphors. They are not intrinsic principles of law. Each step in the slope must be analyzed, critiqued, and evaluated on its merits. And that is happening only at the very margins of the gay marriage debate.

...Asking proponents of gay marriage to prove that these marriages won't be bad for kids or families is asking that they prove a negative. The law cannot know the long-term future social effects of legalizing gay marriage (Stanley Kurtz, who has quite fixed views on gay men and their philandering ways, notwithstanding). We can only determine whether it is fundamentally unfair to bar one whole class of citizens from a privilege constitutionally afforded the rest of us. ...

Bracket all the hysterical and irrelevant stops along the slippery slope (some of which are there only to trivialize homosexuality) and we are left to try to draw principled lines between gay marriage, in which no one is harmed, and adult incest, adultery, bigamy, or polyamory. This is where the debate should begin. Not at child molesting. My colleague Will Saletan has argued that there is in fact no principled reason for legally prohibiting sex between cousins and I am, I think, persuaded that he is correct. But one can plausibly argue that there is a rational basis for states to ban polygamous and polyamorous marriages in which there has been historical evidence of an imbalance of power, coercion (particularly of young girls), and an enormous financial burden placed on the state. None of these arguments can be made against gay marriage. And as my colleague Ann Hulbert has shown, the data about the effects of gay marriage on child rearing are too ambiguous to support any legal assertions about harm to children.

...But beyond just the policy differences between the two, there is also a legal bulwark between Justice Kennedy's reasoning in Lawrence v. Texas (and the Massachusetts decision in Goodridge v. Department of Public Health, which borrowed heavily from the reasoning of Lawrence) and the invasion of the polygamists: The right to sexual privacy Kennedy finds in the line of cases starting with Griswold v. Connecticut, the Connecticut birth-control case from 1965, is an intimate right, between two consenting partners. The court calls these "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." The desire of a group of seven people to marry simply does not intuitively fit into that binary sphere of intimacy.

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posted by Eve at 2:18 AM | Link |

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