SLIPPERY SLOP?: Eugene Volokh replies to Dahlia Lithwick

When we've had forty years of slipping, it becomes harder to condemn the slippery slope argument as patently unsound. Dahlia Lithwick does make some apt criticisms of some "today, gay marriage, tomorrow . . ." arguments; and, as blog readers know, I tentatively support same-sex marriage and suspect that it probably will not lead even to a recognition of polygamous marriages (though I don't have the confidence in this that Dahlia does). But some of her arguments strike me as not entirely persuasive. ...

So the Court has been willing to depart from the very core of Griswold's argument (the limitation to marriage) and from the express assurances by the concurrence that the decision in no way affects homosexuality. Why should we have any confidence that the Court--or lower courts or other influential bodies--will feel limited by Griswold's supposed stress on the inherent "binar[iness]" of "intimacy," something that is much less expressly dwelt on by the Griswold opinions? (To the extent the opinions suggest anything about the binariness of intimacy, that comes from their focus on the married couple--a focus that the Court has long abandoned, see Eisenstadt.)

The changes in sexual attitudes -- and in the law surrounding sex -- over the last 40 years are one long slippery slope. Some may think it's a slope to a good result, others to a bad result. But we have seen growing legalization and social normalization of contraception, premarital sex, abortion, and homosexuality, and a growing constitutionalization of such changes, so that communities where a majority still opposes those changes are nonetheless required to accept them. The legalization or constitutionalization of same-sex marriages would be yet another step.

It's conceivable, of course, that there is simply a temporal relationship here and not a causal one -- perhaps the first changes didn't help cause the subsequent ones, in which case we should worry less about the legalization or constitutionalization of same-sex marriage helping cause other things. It's also conceivable (perhaps even likely) that there are powerful political reasons why things will stop short of legalizing polygamous marriages.

But given this past history, the slippery slope arguments related to same-sex marriage aren't that easy to dismiss. And they're especially hard to dismiss by an appeal to the supposed inherent limits of Griswold, limits away from which we have already dramatically slipped.

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posted by Eve at 3:44 AM | Link |

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