“Slippery Slop”

Dahlia Lithwick has, as usual, a clever and entertaining article today on Slate, “Slippery Slop: The Maddening ‘Slippery Slope’ Argument Against Gay Marriage.”

She has great fun with incest, sex with cats, etc., but she recognizes that the most serious critics question whether there can be a constitutional right to gay marriage that would not also protect polygamy. She replies to that argument in a serious way only with these comments (links omitted):

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 Lawrence decision 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.

This strikes me as a very weak argument. Of course “[t]he desire of a group of seven people to marry simply does not intuitively fit into that binary sphere of intimacy,” but the very question raised by the critics concerns the constitutional basis for insisting that that sphere be binary, especially since rights belong to individuals and not binary units. And whose intuition should govern? After all, single sex marriages also do not “intuitively fit” into the concept of marriage held by many people.

Lithwick is right to point out that it is not a good argument against gay marriage to say that bigamists can benefit from the arguments for it, but anyone who wants to argue that bigamists won’t benefit from legal protection of gay marriage will have to do considerably better than this.

UPDATE

Eugene makes the same point, better, here and here. In the latter post he tentatively predicts that there may well be no slippery slope leading inevitably from gay marriage to constitutionalized polygamy, but if that turns out to be the case, he suggests, it will be because homosexuals are much more integrated into American society, popular, and influential than polygamist wannabes. It is not because the principle necessary to legalize gay marriage does not also cover polygamy.

UPDATE II [05/25/04]

I attempted to leave the following as a comment to this fine post by Fenster Moop, but ran into a length problem. Since it also fits here, here it is:

Eugene Volokh has a long law review article on slippery slope arguments, and anyone seriously interested in the topic should go there first. On a much more superficial level, I have several thoughts.

First (and maybe last; I may not get to more), I think it is demonstrable that in many areas where slippery slope arguments are deployed the slopes are in fact slippery: slave owners feared that allowing post offices to distribute anti-slavery propaganda would ultimately lead to the federal government moving to limit or abolish slavery (this argument was both reasonable and correct, if offensive); pro-gun forces in Britain argued that if the govt banned some guns they would soon move to ban all guns (correct again); Southern segregationists argued against the 1964 Civil Rights Act by insisting that recognizing equal rights would inevitably lead to demands for preferential rights. Their prediction was right, although that doesn’t mean that their opposition to the CRA was right.

On the other hand, some slip slope arguments are silly, even when they turn out to be right. Great example: William F. Buckley once commented to the effect that “they told me in 1964 that if I voted for Barry Goldwater within four years we’d be bombing Hanoi. They were right. I did, and we are.”

The real question, I think, is, precisely what is it that makes the slope slippery? In this country, the answer is often the nature of our legal system. An independent judiciary, working more than ever from abstract principles (more accurately, the interpretation of abstract principles) rather than from common law traditions increasingly reasons itself to conclusions that impose policies on an unwilling public because those policies are seen to be required by the arguments used in prior cases. Courts limited to common law are much more constrained by the popular consensus; courts that have the power to interpret a written constitution and impose its mandates are not. The fact that this sometimes results in good policies is irrelevant to my point here, which is that the nature of our legal system makes slippery slope arguments much more appropriate than they would be elsewhere.