How's that for an attention grabber? I've read and heard countless agruments explaining why the slippery slope argument against gay marraige is absurd. The latest one by Dahlia Lithwick from Slate does a pretty good job of it and, unlike others, backs it up with some legal precedents.
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 Penny'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."
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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.
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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.
