Slippery Slopes and Gay Marriage:

(Originally posted on Freespace)

The slippery slope is one argument that has been used against gay marriage in particular and homosexuality in general. The argument goes something like this: If we don’t morally condemn homosexuality, or if we permit gay marriages, how can we not do the same with polygamy, bestiality, incest, etc. Dr. John Corvino, one of my favorite moral philosophers, tackles this argument in his article, First Gays, Then Polygamists. His essential point is this: Homosexuality is not logically related to any of the other things any more than heterosexuality is. Heterosexuality, homosexuality, incest, bestiality, polygamy, pedophilia, etc. are all different phenomena. What makes homosexuality any more logically closer to these other things than it is to heterosexuality?

There is only one plausible answer: They have all been condemned by tradition. But guess what, so have interracial relationships. In other words, the only thing that logically connects homosexuality with pedophilia, polygamy, incest, etc., also connects it to interracial relationships. Tradition may be a good place to start when establishing social norms, but ultimately tradition cannot (or maybe I should say can) justify anything. Let us not forget that slavery, and many other horrible things—things that have risen to the level of crimes against humanity—have been justified by cross-cultural tradition.

This is where the relevance to the marriage issue comes into play. Just as some argue that homosexual marriage will send us on a slippery slope to polygamous, etc., ones, so too can we argue—and in fact it was argued—that interracial marriages sent us on a slippery slope homosexuality, polygamy, incest, etc.

If the Supreme Court did rule in favor of gay marriage and in doing so, cited Loving v. Virginia as precedent, the anti-miscegenationists could say, “see, we were right all along”; the Supreme Court, on a downward slippery slope, used its interracial marriage decision to justify homosexuality marriage. Anti-gay marriage advocates, who, by in large support Loving, claim that Loving need not support gay marriage because interracial relationships are distinguishable from homosexual ones. Well they certainly are. But homosexual relationships are equally distinguishable from polygamous, incestuous, etc. relationships.

Richard Posner, Judge of the 7th Circuit, and a thinker whom I greatly respect, does buy into the slippery slope argument. In his article Wedding Bell Blues, Posner takes on Evan Gerstmann, a pro-gay marriage advocate who pushes for a Federal Court solution. Gerstmann posits a federal fundamental right to marry and cites cases including “Turner v. Safly, [where] the Court in 1987 ruled that a prison inmate could not be denied the right to marry,” and “Zablocki v. Redhail, a case in 1978 that invalidated a law prohibiting a person who was under court order to support minor children to marry without the court's permission.” Gerstmann argues that these cases make supportive analogies to homosexual marriage—but homosexual marriages, once recognize, do not require support for polygamy, etc. Posner disagrees:

When Gerstmann describes the right to marry as fundamental, he means that any person who wants a marriage license has a strong presumptive right to it regardless of how the person defines marriage. He might be a man who wanted to marry his sister (both being sterile), or a very mature twelve-year-old boy (say, a freshman at MIT) who wanted to marry his twelve-year-old girlfriend (say, a freshman at Harvard), or a married man who wanted additional wives so that they might help out his current wife around the house, or a busy professional woman who wanted two husbands, the better to take care of the house and the kids, or a homosexual male who wanted three male spouses.

Posner further describes Gerstmann’s intellectual game: "Find a precedent…and analogize it to the present case…and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage…."

But what about the two aforementioned cases? Do they, by themselves, not also lead us down the same slippery slope? Posner distinguishes them from homosexual marriages: “The Court in Turner was not expanding the basic right to marry as defined by marriage law and custom. It was not as if marriage laws forbade prisoners to marry. The question was whether a prisoner could be denied the same right…enjoyed by non-prisoners.”

And what then, if the state had traditional marriage laws and customs that denied prisoners the right to marry, and to change it would be to “expand the definition of marriage?” Should the analysis have been different? In the entire article, there is nary a mention of the Loving case. Perhaps Posner did not include it for good reason: Loving did indeed, “expand[] the basic right to marry as defined by marriage law and custom.” Posner may be correct that homosexual marriages could lead us on a slippery slope to other things, but he does not tell us that Loving could be taking us down that same slope as well.

But he does tell us how courts, once they expand rights, prevent further slide down the slope. Posner explains why gay marriage is not the next logical step on a slope we are already on: "For one thing, there is nothing sacrosanct about precedent, especially in the Supreme Court. In Lawrence, the Court overruled a precedent that was not merely analogous to the case at hand, as Turner and Zablocki might be thought analogous to a case involving homosexual marriage, but identical to it." In other words, being able to make an analogy won’t win you the case. The Supreme Court has the power to break with duplicates for God’s sake! But if the polygamous try to analogize with homosexuals, we can likewise say, courts don’t have to recognize analogies.

Posner continues, “For another, it would be child's play, as a matter of legal casuistry, to limit [Turner and Zablocki] to conventional, monogamous, non-incestuous, heterosexual marriage.” But what about interracial marriages? Can we limit them in the same manner? Previously, conventional marriages were limited to 1) monogamous, 2) non-incestuous, 3) non-miscegenationist, 4) heterosexual relationships (and if we put our minds to it, we can come up with more elements as well). And now, we’ve expanded this definition by eliminating element number three. If we can take this step and go no further because courts can break with precedents, limit past decisions by distinguishing between analogies, then so too can we eliminate element number four and not go further, because, once established, courts can break with their gay marriage precedent and such marriages are as distinguishable from polygamous ones as interracial marriages are from homosexual ones.

One might argue that interracial marriages don’t fundamentally change marriage because element number four is more central to the institution than element number three. But the heterosexual component can also be present in element number two. Why can’t we argue that recognizing interracial marriages sent us down the slope that could lead us to incestuous relationships as long as they involved one man and one woman, who happened to be adults, etc.?

In the article, Posner doesn't argue against gay marriage per se, he is more interesting in tackling the claim that past precedent establishing a right to marry demands a present court decision in favor of gay marriage. He recognizes that there may be benefits to allowing gay marriages or civil unions (the latter is a policy that he actually supports), and—in line with his “pragmatist” judicial philosophy—wants us to focus on the consequences—pro and con—from allowing such marriages. But along the way he tells how courts could stop from falling down the slippery slope. And this helps to allay some of the slipperly slope fears that Posner tried to instill in his article.

Whether it was his intention or not, Posner’s article actually supports the notion that instead of worrying about slippery slopes, let each case get its fair hearing. In the Loving case, critics could have asked, "what happens when an adult brother and sister come asking for their marriage rights...?" And the Court could have answered, “we’ll cross that bridge when we come to it.” We can respond the same way once we recognize gay marriage and are asked about the polygamists.