More on the Slippery Slope to Same-Sex Marriage:

(This post returns to some points I’d made earlier about the California, Massachusetts, and Vermont same-sex marriage/civil union decisions, and applies them to the Iowa case.)

Like some earlier decisions striking down opposite-sex-only-marriage rules, the Iowa Supreme Court decision helps illustrate what I call “legislative-judicial slippery slopes” — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.

Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision’s backers want to argue that the decision is quite narrow. Thus, for instance, consider:

  1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law “would lead to acceptance of gay marriages” was “arrant nonsense.”

  2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: “Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a ‘slippery slope’ toward [same-sex marriage or domestic benefit] rights.”

  3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): “Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the ‘slippery slope’ [toward same-sex marriages] …. But, this legislation needs to be looked at on the face value of what it is, and it really does very little.”

Yet consider how the Iowa Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage (some paragraph breaks added):

A second relevant consideration [in deciding whether discrimination based on a characteristic should be closely scrutinized by courts] is whether the characteristic at issue — sexual orientation — is related to the person’s ability to contribute to society. Heightened scrutiny is applied when the classification bears no relationship to a person’s ability to contribute to society. The existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. A classification unrelated to a person’s ability to perform or contribute to society typically reflects
“prejudice and antipathy — a view that those in the burdened class are not as
worthy or deserving as others” or “reflect[s] outmoded notions of the relative
capabilities of persons with the characteristic.”

Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a person’s sexual orientation to be indicative of the person’s general ability to contribute to society. More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation is not relevant to a person’s ability to contribute to a number of societal institutions other than civil marriage. See Iowa Code § 216.6 (employment); id. § 216.7 (public accommodations); id. § 216.8 (housing); id. § 216.9 (education); id. § 216.10 (credit practices). [Footnote: The legislature has further indicated the irrelevancy of sexual orientation by mandating sex education in the state’s public schools be free of biases relating to sexual orientation, Iowa Code § 279.50, and by securing personal freedom from violence and intimidation due to sexual orientation, id. § 729A.1. Likewise, numerous state administrative regulations indicate sexual orientation is not relevant to a person’s ability to contribute to society. See Iowa Admin. Code r. 191-48.9 (prohibiting discrimination in making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r. 281-12 (preamble) (ensuring access to education meeting child’s needs and abilities regardless of sexual orientation); id. r. 281-12.1 (ordering equal opportunity in educational programs regardless of sexual orientation); id. r. 281-12.3 (ordering school boards to consider the potential disparate impact of student responsibility and discipline policies on students because of students’ sexual orientation); id. r. 281-68.4 (prohibiting discrimination in admission process to public charter schools based on sexual orientation); id. r. 282-25.3 (labeling denial of participation in benefits of educational program based on sexual orientation an “unethical practice”); id. r. 282-26.3 (prohibiting licensed educators from discriminating based on sexual orientation); id. r. 641-131.7 (allowing public health department to take numerous adverse actions against emergency medical care personnel who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual
orientation); id. r. 641-131.8 (allowing public health department to take numerous adverse
actions against training program or continuing education providers who “practice, condone,
or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-132.10 (allowing denial, probation, revocation, and suspension of authorized emergency medical service programs that discriminate on the basis of sexual orientation); id. r. 645-282.2 (prohibiting licensed social workers from discriminating on the basis of sexual orientation); id. r. 645-363.2 (providing that sexual-orientation-based discrimination by sign language interpreters or transliterators is unethical); id. r. 657-3.28 (providing that sexual-orientation–based discrimination by pharmacy technicians is unethical); id. r. 657-8.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacistinterns); id. r. 661-81.2 (prohibiting entrance of information regarding sexual orientation into Iowa law enforcement intelligence network information system in most circumstances).]

Significantly, we do not construe Iowa Code chapter 216 to allow marriage between persons of the same sex, a construction expressly forbidden in the Iowa Code. See id. § 216.18A (“[Chapter 216] shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.”). Rather, we merely highlight the reality that chapter 216 and numerous other statutes and regulations demonstrate sexual orientation is broadly recognized in Iowa to be irrelevant to a person’s ability to contribute to society. [Footnote: Other federal and state authority supports such a conclusion. See Kerrigan, 957 A.2d at 435 (relying on Connecticut statutes banning discrimination based on sexual orientation “in every important economic and social institution and activity that the government regulates”); cf. Frontiero, 411 U.S. at 687 (Brennan, J., plurality opinion) (interpreting congressional protections against gender discrimination as suggesting legislative determination such classifications are “inherently invidious” and implying significance of “conclusion of coequal branch of Government” in deciding whether to apply heightened scrutiny).] Those statutes and regulations reflect at least some measure of legislative and executive awareness that discrimination based on sexual orientation is often predicated on prejudice and stereotype and further express a desire to remove sexual orientation as an obstacle to the ability of gay and lesbian people to achieve their full potential.

Therefore, we must scrutinize more closely those classifications that suggest a law may
be based on prejudice and stereotype because laws of that nature are “incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.” Thus, although we do not interpret chapter 216 to allow same-sex marriage, we rely on the legislative judgment underlying chapter 216 to determine the appropriate level of scrutiny when sexual orientation is the basis for a
statutory classification. Based on Iowa statutes and regulations, it is clear sexual orientation is no longer viewed in Iowa as an impediment to the ability of a person to contribute to society.

Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, and by the California Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts and California) and same-sex domestic partnership benefits (Vermont).

Of course, some people might like this slippery slope, because they like what’s on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: “When Hawaii’s steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-’90s, some gay-rights advocates felt the need to pooh-pooh the ‘slippery slope’ argument by foes that we’d ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. ‘Our foes kept saying, ‘This is a slippery slope to marriage,’ and we kept nodding our heads, ‘Yep,” says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement’s two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.”) I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative.

But it seems to me that decisions such as the ones in California, Connecticut, Iowa, Massachusetts, and Vermont ones illustrate that it’s a mistake to just factually dismiss the claims that slippage is possible. When we’re dealing with a legal system that’s built on analogy and precedent (both binding precedent and persuasive precedent), the possibility of a slippery slope has to be taken seriously.

And this is true even though the past decisions are distinguishable from a future one. Employment discrimination laws, for instance, are not the same as same-sex marriage. Legislative decisions are not the same as constitutional ones. It was certainly possible to draw the line between legislative decisions to ban private discrimination in employment and judicial decisions to ban governmental discrimination in deciding who may marry. That two matters are distinguishable does not mean that they will be distinguished by future decisionmakers. And in fact they may influence future decisionmakers even when the earlier decision expressly disclaims any attempt to accomplish what the later decision did, as was the case with the Iowa antidiscrimination statutes, which expressly said that they “shall not be construed to allow marriage between persons of the same sex.” Though they themselves weren’t construed as allowing same-sex marriage, they were indeed construed as a data point in favor of a constitutional decision allowing same-sex marriage.

So people who worry about slippery slopes generally — and who worry about slippery slopes in the field of sexual orientation and the law — can’t be lightly dismissed. And it is reasonable for them to worry: If we have gotten this far partly through slippery slope effects, will we slip further, and to what? In particular, would this increase the likelihood of further broadening of antidiscrimination laws? Would it increase the likelihood that groups (such as the Boy Scouts) that discriminate based on sexual orientation will be excluded from tax exemptions, just as groups that discriminate based on race are often excluded from tax exemptions? Would it increase the likelihood that such groups will be excluded from generally available benefits?

Would it increase the likelihood of broader restrictions on anti-homosexuality speech — in government-run organizations, or in private organizations coerced by government pressure — by analogy to the broad support in many areas for restrictions on sexist speech? Would it increase the likelihood of restrictions on people’s choosing roommates based partly on sexual orientation, or advertising such preferences in “roommates wanted” ads? Would it increase the likelihood of punishment of wedding photographers who refuse to photograph same-sex weddings (even if they have religious objections to participating this way in such ceremonies, and even if they feel that requiring them to photographing same-sex weddings compels them to create artistic works that they do not wish to create)? Would it increase the likelihood that legislatures will repeal religious institutions’ partial exemptions from some bans on sexual orientation discrimination in employment?

Perhaps some of this would have already been the case under Iowa statutes — such restrictions are primarily the consequences of antidiscrimination statutes, not of same-sex marriage as such. And the conclusion that the government generally may not discriminate based on sexual orientation is distinguishable from a conclusion that private entities generally may not discriminate based on sexual orientation, or that individuals may not say things that create an “offensive environment” based on sexual orientation.

But as we saw, that two things are distinguishable does not mean that they will be distinguished, and a governmental judgment in one field may be used by other governmental decisionmakers as a reason to push further in another field, whether in interpreting a vague statute, enacting a new statute, or repealing an exemption in an old statute. And such decisions can have effects on other states as well: Consider the Iowa Supreme Court’s extensive citations to similar decisions in other states, which I suspect considerably emboldened the Iowa Justices. For some much more detailed and concrete discussion of how the slippage can work — and I’ve long stressed that investigating the risk of slippage requires getting detailed and concrete — see this article I wrote on Same-Sex Marriage and Slippery Slopes that I wrote a few years ago.

So I stress again: Perhaps such slippage would be good, or even if it isn’t good, the same-sex marriage decision is so good that it should be embraced regardless of the risk of slippage. But I don’t think it’s credible at this point to just casually dismiss the possibility of slippage in this area, given how many slippery slope effects we have already seen.