Slippery Slop

The maddening “slippery slope” argument against gay marriage.

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.

Still, as gay marriages started happening in Massachusetts this week, we heard it yet again as James Dobson of Focus on the Family insisted on Hannity & Colmes that “you could have polygamy. You could have incest. You could have marriage between a father and a daughter. You could have two widows, or two sisters or two brothers.” (Two widows?) Dobson further warned, “Once you cross that Rubicon, then there’s no place to stop. Because if a judge can say two men and two women can marry, there is no reason on Earth why some judge some place is not going to say, this is not fair. Three women or three men, or five and two or five and five.”

And here’s Bill O’Reilly pointing out that “if anybody can get married, then I want the McGuire twins and I have to have a nice honeymoon in Provincetown.” The notion that the institution of marriage could withstand every modification and reform it’s seen over the centuries (centuries since the biblical Jacob married two sisters) yet cannot endure this new one, is the new party line.

Sen. Rick Santorum got into hot water for spewing this argument last spring: “If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.” Anything, mind you. Justice Antonin Scalia made the same point in his dissent in last year’s gay sodomy case, Lawrence v. Texas, when he wrote, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision.”

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.

Another problem with the slippery slope objections to gay marriage is that they present a moving target. No two opponents of gay marriage seem to agree upon where this parade of horribles begins or ends. You can order your comparisons off the Santorum Menu (“bigamy, polygamy, incest, adultery”), the Scalia Menu (“bigamy, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity”), or off the James Dobson Menu, in which all of the above evils ensue, plus the demise of heterosexual marriage altogether. Call this argument the horse-and-elephant leavings, smoking on the ground after the parade of horribles has passed by. No one can plausibly explain why the entire institution of marriage is at risk from gay unions. Which raises yet another objection to slippery slope arguments: These are projections into an unknowable future. 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.

The problem with the slippery slope argument is that it depends on inexact, and sometimes hysterical, comparisons. Most of us can agree, for instance, that all the shriekings about gay marriage opening the door to incest with children and pedophilia are inapposite. These things are illegal because they cause irreversible harms. Similarly, adultery, to the extent it’s illegal anymore, produces a tangible victim. Let’s also agree that we can probably also take the bestiality out of the mix. While Rep. Marilyn Musgrave, the Colorado Republican who authored an amendment to the Constitution that would bar gay marriage, thinks it’s a short hop from gay marriage to sex with cats, the rest of us can intuitively understand that there are sound policy and health reasons to ban sex with animals.

Sound policy and health reasons similarly suggest that there is at least a rational basis for keeping prostitution illegal. This one is a closer call, but there are inarguably ways in which prostitution has negative effects on women, and families, and public health. To the list of mostly irrelevant examples above, I’d add masturbation and fornication (intercourse between unmarried adults) which, while horrifying to Justice Scalia, are not only legal but also great fun as far as most Americans are concerned.

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.

While Stanley Kurtz claims he has won the slippery slope debate outright, his analysis, here, is reasonably limited to the dangers of polygamy and polyamory. 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.

Just because advocates of polygamy have tried to leverage the Lawrencedecision to support their cause doesn’t mean there are no differences between the two marginalized groups. And it’s just not an argument against gay marriage to say, “I told you those bigamists would use this in court!” It would be stupid for the bigamists not to try.

One of the most persistent complaints of conservative commentators is that liberal activist judges refuse to decide the case before them and instead use the law to reshape the entire legal landscape for years to come. The Massachusetts Supreme Court, in finding that the ban on gay marriage violated the state constitution, did exactly what good judges ought to do: It confined its reasoning to the case before it, rather than addressing the myriad hypothetical future cases that may be affected by the decision. Opponents of gay marriage should consider doing the same.