I've just posted this article, which is forthcoming in the Hofstra Law Review. Here's the Introduction; for more details, and footnotes, see the article itself:

Recognizing same-sex marriage, some say, will make it more likely that the law will one day recognize polygamy. This is a classic slippery slope argument: Even if legal action A today (recognizing same-sex marriage) wouldn't be that bad, or would even be moderately good, it should be opposed because it will increase the likelihood of a much worse legal action B in the future (recognizing polygamy). And the argument isn't a logical one, but a psychological one: Though A and B are distinguishable, the argument goes, in practice it's likely that various actors in our legal system — legislators, voters, judges — will eventually end up not distinguishing them.

Recognizing same-sex marriage, others say, will make it more likely that other "gay rights" laws will be passed and upheld, including laws that substantially burden religious objectors, institutions that are trying to further value systems that oppose homosexuality, or antigay speakers:

  • Employers (including churches, religious schools, and groups like the Boy Scouts) will have to hire homosexuals, even if they believe that the homosexuality is inconsistent with the employee's position as a role model.

  • Private landlords will be required to rent to same-sex couples, even if the landlords have religious objections to providing space that would likely be used for sinful activity.

  • Roommates might be unable to advertise their preference for a same-sex heterosexual roommate.

  • Fear of "hostile work environment" liability under antidiscrimination law may pressure employers or educators into suppressing antigay views by employees or students.

  • Groups like the Boy Scouts may be required to have openly gay scoutmasters, or at least face exclusion from government benefits if they insist on limiting their leadership posts to heterosexuals.

This too is a slippery slope argument: Legal action A might not be that bad, for instance because giving same-sex couples marriage licenses doesn't hurt anyone else. But taking action A will increase the chance of legal action B, which would be worse — from the perspective of some observers — because it would interfere with the free choice of people or groups who oppose homosexuality. (Naturally, some people might welcome the slippery slope, since they may favor B; but the argument's target audience is those who oppose B.)

How can we evaluate the plausibility of these arguments? In this Essay, I'll try to briefly discuss this question — and in the process, illustrate more broadly how slippery slope arguments can be made and analyzed.

Throughout, I'll focus on examining the mechanisms behind the "slippery slope" metaphor. Metaphors are falsehoods. If they were literally true, they wouldn't be metaphors.

Of course, metaphors are falsehoods that aim at exposing a deeper truth. They can be legitimate, and rhetorically powerful. Some of the most effective legal arguments use metaphor. Yet, as Justice Holmes cautions us, we must "think things not words" — "or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true." So what are the facts for which the metaphor "slippery slope" stands? To determine how likely it is that we will "slip" from one legal decision to another, we need to understand how the "slippery slope" operates, in fact and not just metaphorically.

What follows will not discuss (except briefly in the Conclusion) whether recognizing same-sex marriage is good or bad on its own terms; whether recognizing same-sex marriage is so morally or practically imperative that slippery slope arguments are irrelevant; or whether recognizing polygamous marriages or accepting broader antidiscrimination laws is itself good. These are all important parts of analyzing whether to support recognition of same-sex marriage, but I leave them to the many other commentators who are happy to deal with them.

Rather, I will focus solely on the empirical claims behind the slippery slope argument: that recognizing same-sex marriage will indeed help bring about those consequences. This is just a subset of the broader policy question, but I think an important subset, at least for those who like (or don't deeply dislike) the first step A but oppose the possible future step B. And I think that exploring this subset can help illuminate slippery slope phenomena more broadly.

mackinac (mail):
ok - no slippery slope - but I want to marry my horse

but I think that the problem of gay marriage is that it changes, by its very nature, the definition, and assumptions of marriage

Why does society recognize the permanent union of man and woman ?

I would propose it would not be because of personal satisfaction, or love ablooming (could be - but is that the point ?) Then it could be argued that society has a right to intefere in my bedroom, if, by doing so, I would be happier ?

I would say that it has to do with one single reason - marriage provides a stable platform for the raising of children. (That it does/doesn't work well isn't the point)

By changing the reason, assumption and definition of marriage, the device of homosexual marriage proposals already would do damage to the institution

8.22.2005 8:30pm
speedwell (mail):
Sorry, Mac, it doesn't change anything at all. It merely recognizes that such a change has already taken place.

Say you believe that rock music and opera are definitely not the same genre of music. Then your locality passes a law that classifies rock as a kind of opera. This would make no sense whatsoever if it was the common opinion that rock and opera were separate. Only if the majority of voters in your locality believed that rock really is a kind of opera would the passage of such a law make sense. It would be recognizing a state of affairs already in existence. Furthermore, hardly anyone would argue that a piano concerto or a college lecture was a sort of opera, let alone pass a law to that effect. Changing the definition of opera to include rock does not involve any kind of slippery slope like that.

The perception of a marriage as something that gay people can enter into is well on its way to being fully accepted, whether you're comfortable with it or not. The perception of it as something children and horses can enter into, however, is nowhere near being accepted. Acceptance of the one does not entail acceptance of the other. Your slippery slope doesn't exist here, either.
8.22.2005 8:44pm
jrp (mail):
I, for one, reject your assertion of a slippery slope: soi-disant "gay marriage" (which contains an inherent contradiction in terms) is very bad, leading to a loss of a key formational component of the humanity of a child (a member of a different sex in the parental role). Polygamy is less bad than civil unions in this respect - so, since you've already hit the bottom of the slippery slope, why would you now not legalize the less bad (still really bad, just less so) thing? If you've already legalized crack and meth, why not legalize pot?

The argument, I reiterate, is that same-sex civil unions implies a total disregard for the welfare of children, limiting their uniquely human experiences and cutting them off from a key component that is, by right, theirs. This puts civil unions on the same plane (in kind, if not, perhaps, degree) as incest (allowing, for instance, first cousins to marry); taking a willful, significant risk in genetic pairings of recessed bad genes (which we used to legislate against in principal: before we knew how to deal with it, the old thing about blood tests for Rh factor and not allowing certain people to marry); or leaving custody of a child to one or more truly unfit (drug addict, for instance) parents. All of which ignores the welfare of the child.

I note in your (long) piece that the only (short) paragraph which really addresses the children of a same-sex union makes note of them first by casting aside consideration of the desires of the separated biological parent ('inheritence or adoption'), next by describing the rearing benefits as mostly monitary (not at all the most important consideration), then the children themselves are more of a burden than a blessing: "same-sex relationships can't result in accidental children". You treat the child like a piece of community property. This is, I think, not cool, and is at the heart of the disagreement.

While they don't have a civil right to it, children have a natural right to both a mommy and a daddy, and, specifically, a natural right to have their biological mommy and daddy - both of which have unique insight to their genetics other people would not have, since they share them. To take that away from a child is to cut them off from their roots, to steal away their inheritence, without due process, without taking their future feelings into account, without regard for them-as-individuals.

And this is the true slippery slope we have come from: starting with young girls giving children up for adoption instead of being "burdened" with them, to divorce and sole-custody limiting the father's key role, to single-motherhood where the father doesn't accept his responsibility, to abortion (the denial of the child a right to life), to a state-sponsored denial of the child's rights of inheritence in it's propagation of 'civil unions' as something to be encouraged and promoted.
8.22.2005 9:16pm
Andy Morriss (mail):
I just read an interesting attempt to model one subset of this argument (in a different context): Timothy Besley &Stephen Coate, On the public choice critique of welfare economics, Public Choice 114:253-273 (2003). Their analysis is not about gay marriage or slippery slopes in general, but they address the question of how action on one item may sometimes change the politics of another, such that there are reasons for a group to oppose or support a change in policy A to get a result with respect to policy B. Not exactly the point but a related one and a very interesting article.
8.22.2005 9:22pm
Carol Anne:
jrp writes (in part): The argument, I reiterate, is that same-sex civil unions implies a total disregard for the welfare of children, limiting their uniquely human experiences and cutting them off from a key component that is, by right, theirs.

What claptrap! I'll just point to a few of the logical inconsistencies in that statement, leaving the rest as an exercise for the reader:

1. Where is the notion of "children" inherent in marriage (or even civil unions?). There are many children borne out of wedlock (should their mothers be imprisoned?). There are many marriages (and civil unions) initiated in which the participants have no intention of every producing children.

2. "...limiting their uniquely human experiences..." Well, then, divorce should be clearly make illegal, now, shouldn't it? In what ways, specifically, does a child have their expososure to "uniquely human experiences" "limited?" Do they never leave the house? Have they no neighbors, no friends with hetrosexual parents, see other couples at church?

3. "...cutting them off from a key component..." What component, specifically? Do you mean, perhaps, catching their heterosexual parents in copulation? And, "...components..." is a rather odd choice of words when, apparently, you mean the "on-going behavioral interactions."

4. ",,,that is, by right, theirs." Where is this "right" defined? Even if one were to blindly accept everything else you've sent in this quote from your post, where does the "right" arise from?

I submit, if you dare to actually interview children raised in a loving gay household, you'd find they turn out just fine...and likely heterosexual by preference, too.
8.22.2005 11:36pm
Zoe Brain (www):
Here's a Hypothetical case:

A (at least partially) genetic male marries a genetic female.
20 years later they have a child.
The father then suffers a hormonal intersex condition, which feminises him to her.
The father had always suffered Gender Dysphoria, but until the physical changes that gave her, inter alia, female secondary sex characteristics, had kept it under control.
Due in part to the dangerous side effects of the hormonal imbalance (adrenals and pituitary glands starting to malfunction), and due to the psychological effects, expert advice is that a course of Hormone Replacement Therapy is neccessary, with a view to complete future Gender Reassignment.

The two people wish to remain married. There is no element of "choice" regarding the father's gender reassignment, it's do that or die. The natural pre-HRT changes have already caused her to think of herself as female, and have a female appearance.


1. Is the marriage invalid ( and hence the child an "ex-nuptial" )
2. Is the marriage valid, but in which jurisdictions could they be compelled to divorce against their wishes?
3. If the father was genetically Intersexed, would that make any difference?
4. If the father completed surgical reassignment, with surgery that made her qualify as legally (as well as actually) female, yet did not request amendment of documentation such as birth certificate to reflect that, would that affect the case?

Oh yes, I misled you : this isn't hypothetical.
8.22.2005 11:46pm
Carol Anne:
Great example: It makes a mockery of the entire belief system that there are "two sexes." There are, indeed, an entire range of sexes (N.B. independent of gender), with the majority of the population existing at the two ends of the spectrum.

Reality has outrun the law. :-) But, will the law change? (Not as long as a vast number of unimaginative/hidebound/uneducated people cling to the absurd belief that there are only two sexes, with nothing in between.)

Thanks, Zoe Brain, for a boundary case that "proves" (i.e., tests) the rule. Is there a public citation of the case, or are you honor-bound to respect the principals' privacy?
8.23.2005 12:49am
Jamesaust (mail):
Its an interesting approach to the larger issue in a value-laden context.
Specifically, I would note that perhaps the slope has already been 'slipped,' meaning not that beastiality is inevitable (or probable) but that gay marriage - or more accurately, marriage rights for same-sex couples - is an inevitable consequence of decisions already (although controversially) made.
The two key ones are: (1) the ending of traditional gender-determined roles, (2) the "liberation" from reproductive consequences. Once the majority of persons (hetrosexuals) have freed themselves from such restrictions, there's nothing left to distinguish the institution from one for homosexuals.
What's more, there needs to be a separation of 'ideal' with 'real.' The focus of such reflection is better not on asking what's the perfect arrangement but rather on what's the minimum below which harm is clearly more likely than not? We do not as a society (and I don't think any society does) take children away from single parents and give them to strangers so that they can have two (differently gendered) parents, although some societies place great pressure on the one parent finding a replacement-mate. We don't have 'family police' grading the quality of families absent specific signs of harm. No doubt, a significant percentage of existing (blessed by the state and the church) families are disfunctional but no one, outside of totalitarian societies, feels free to insist on an 'ideal' as a prerequisite to marriage.
Finally, I would submit that there's all the difference in the world between the recognized human need to find a specific helpmate (opposite or same gendered) with a claim for a 'need' for multiple partners (isn't this just not wanting to make a choice? the chosing of one requiring the denial of others?). Or, of an intrinsic disorder, such as bestiality.
8.23.2005 1:10am
mackinac (mail):
Carol Anne wrote

1. Where is the notion of "children" inherent in marriage (or even civil unions?). There are many children borne out of wedlock (should their mothers be imprisoned?). There are many marriages (and civil unions) initiated in which the participants have no intention of every producing children.

2. "...limiting their uniquely human experiences..." Well, then, divorce should be clearly make illegal, now, shouldn't it? In what ways, specifically, does a child have their expososure to "uniquely human experiences" "limited?" Do they never leave the house? Have they no neighbors, no friends with hetrosexual parents, see other couples at church?

3. "...cutting them off from a key component..." What component, specifically? Do you mean, perhaps, catching their heterosexual parents in copulation? And, "...components..." is a rather odd choice of words when, apparently, you mean the "on-going behavioral interactions."

4. ",,,that is, by right, theirs." Where is this "right" defined? Even if one were to blindly accept everything else you've sent in this quote from your post, where does the "right" arise from?

I submit, if you dare to actually interview children raised in a loving gay household, you'd find they turn out just fine...and likely heterosexual by preference, too>>>

I first would like to say that it is refreshing to see different points of view, without recourse to name calling, et al

1) That is the point of marriage.
Study after study after study have shown that children raised by single mothers (or fathers to be fair) have a more difficult time in time (I would refer you to archived atlantic monthy titled: Dan Qualye was right) Out of wedlock children have more emotional problems, as well as economic problem (want to remain poor ? have a child out of wedlock)

2-5)so - how do you "enforce" that ? Well, one way is to stigmitize out of wedlock children ("bastards"). Or, you can reinforce the definition and exclusiveness of marriage, making divorce difficult.

BTW: I don't like cars. They scare me. I choose not to ever ride an car. Because of my fears, should we ban cars ? - even if I never want to use one as intended ? Or do enough people benefit from cars that society wants to reinforce flying (that takes care of the childless couple argument)

Now about "key components" Gender studies have confirmed that each parent plays a different role in the development of children (men and women are different). Do gay couples raise children as well as heterosexual. That jury is still out, however, I heard somewhere that gay men, even those committed to lifelong relationship, have very short commitment span.

It isn't about "rights" - I have no more "right" to be happy than to have money poured over me. But society's (wisely, I think) base assumption on the definition of marriage is that it exists, not for adults, but for children

Again, thanks for keeping everything civil

8.23.2005 1:26am
Patrick Casey (mail):
One logical position I didn't see covered in the original paper (perhaps I just missed it), is:

Assume there is a slippery slope.
Assume that gay marriage is a good thing.
Assume that polygamy is a bad thing.

Accept that the legalization of polygamy (a moderate social ill) is a probably necessary price to pay for the legalization of gay marriage (a significant social gain).

In other words, I don't think the mere fact that a hypothetical rational voter A) believes in the slippery slope and B) dislikes polygamy, is necessarily sufficient to make said voter oppose gay marriage.

I offer as my real world example, Andrew Sullivan, everyone's favorite excitable blogger. Andrew's a bright man, and probably accepts at some core intellectual level that there is a slipperly slope here. Additionally, I've seen no evidence whatsoever to suggest Andrew's in favour of polygamy. However, he's so strongly in favor of gay marriage that he could care less if polygamy comes along for the ride.
8.23.2005 2:13am
Joe McReynolds (mail) (www):
A really interesting article, Eugene! I'd just like to note, though: Page 22 (As far as I've had time to read thus far) has the bookmarks you set turning out wonky. Reading it in the PDF, I get the following message (in bold:

Error! Bookmark not defined.

Hope that gets fixed before you publish. :) Being a sophomore in college, I don't know much about law reviews (Nor if Hofstra is a prestigious one), but I'm guessing they prefer every i dotted, and every t crossed.

A general thought: There are strong pragmatic arguments about how legalization of polygamous marriage (as opposed to simple polygamous/polyamorous activity) would break down or otherwise distress society's structures in numerous ways.

There's no compelling pragmatic argument against gay marriage; the "right of sexual autonomy", which most people have a strong interest in upholding, coupled by the fact that equality can be granted here without the costly detrimental effects found in legalizing polygamous marriages, leaves me firmly in favor of gay marriage legalization but opposed to the same for polygamy.
8.23.2005 3:03am
Phil (mail):
Most of this sounds like an irrational prejudice (which I share, but a shared prejudice is not any better than an unshared prejudice) against those who find emotional and sexual satisfaction in groupings greater than two.
Assuming that marriage is to be sundered from even a passing connection to procreation (or already has been), what justifies visiting these legal windfalls on couples at all?
Are singles, trios, quads, etc. really morally inferior to pairs? Moreover, even if they are, under Lawrence can the law treat them less well solely because of the moral views of the majority?
8.23.2005 4:41am
Robert Woolley (mail):
jrp touches on what has always struck me most about the gay marriage-->polygamy fear: It seems to require the pre-existing belief that polygamy is worse than gay marriage. I don't get that. (And Joe McReynolds' comments above don't clarify it much for me.)

Polygamy has been and continues to be part of cultures for basically as long as we have any records that could confirm it--including, of course, what most of us call the Old Testament. Even Martin Luther couldn't find anything in Christian doctrine to condemn plural marriage.

Mind you, I have no interest in participating myself. (I'm fond of Mark Twain's observation that polygamy violates the Bible, because a man cannot have two masters.) But I'm one of many who demonstrably wouldn't exist were it not for polygamy--on both the maternal and paternal sides of my family. My maternal grandmother was one of her father's 31 children. Unlike most of my generation, I was raised as part of a group that had polygamy within the personal memory of many people that I knew. (Mormon church-sanctioned plural marriages definitely did not end in 1890, as the church publicaly announced. When they ended, exactly, is hard to pin down, but they continued at least until 1918, and probably sporadically for another 10 or so years.)

Just speaking of Mormon splinter groups, there are thousands of polygamous families now living in Utah, Arizona, Colorado, Idaho, Texas, and Alberta. And who knows how many Muslim polygamists are here with their multiple wives? As a physician, I cared for several Hmong families in which a man had two wives (though never more than that, within my experience).

I really am hard-pressed to grasp how people see polygamy as a "point B" so horrific as to need to avoid going through "point A" to get there. Legal formalities aside, it's here, always has been, always will be. It strikes me as *obviously* less different from monogamous heterosexual marriages than homosexual marriages would be.

To be clear, I, too, am in favor of gay marriage. More broadly, I don't think the state or federal governments should at all be in the business of defining who is or can be married. Marriage can be a wholly religious or personal institution, with any rights associated with it done by contract, rather than statute. But that's a whole 'nuther discussion. For now, I just say, "Why do people get their undies in a bunch over polygamy?" I don't see how it threatens anything or anybody who chooses not to participate in it.
8.23.2005 4:44am
The slippery slope goes both ways. Based on their idea of what marriage is for, some conservatives want to ban birth control, even for married people, and criminally punish sex outside of marriage.

Many on the conservative side also want to restrict or eliminate divorce. In the not-so-distant past, the Catholic Church unsucessfully fought the Irish government's effort to ease that country's total ban on divorce.

Then, of course, truly "traditional" marriage is the union of a man and a woman (often a boy and a girl or a man and a girl) of the same race, religion and social class picked by their parents. If conservatives use "tradition" to insist on the man and woman part, why shouldn't they use "tradition"insist on the rest?
8.23.2005 5:21am
Defending the Indefensible:
Agreeing with Robert Woolley here, extending on his remark (though he said it's "a whole 'nother discussion") that the state and federal governments ought not to be in the business of defining marriage. Marriage is historically a deeply religious tradition, and when the state intervenes in matters of spirituality it transgresses the separation of church and state.

This is not to say that the state cannot or should not allow for and recognize some form of civil union contract, which ought not to be issued or denied on a discriminatory basis. I think the civil union approach is being used presently for gay couples, and the same ought to be extended to heterosexuals, marriage itself being reserved exclusively to the sphere of religion.
8.23.2005 10:04am
Defending the Indefensible:
Just thought I'd point out in the interest of disclosure that I am married, and my wife and I undertook our own vows and ceremony according to our mutual recognition of the fact that we were husband and wife. Neither of us would recognize that the state has anything to do with this, and we would not seek or obtain a license to do what was already done. We did notarize statements to inform our bank and others who required documentation of our marriage.
8.23.2005 10:14am
Jeff S (mail):
Going back to the original thread, while slippery slope arguments are weak, they are at least somewhat compelling for a reason: recent history has proved them to be true in many social arenas. Look at the history of expanding abortion rights in the US over the last 35 years, far beyond even what was envisioned in Roe. Is the slippery slope really an unfounded fear when so many groups have learned to circumvent legislatures and get courts to find new and ever-expanding rights?
8.23.2005 12:22pm
Carol Anne:
Ah, the slippery slope of this very argument has now brought out the "abortion" issue :-)

Will accusations of Nazism come soon?

What some call "slippery slope" I call societal learning. As a population learns that some of its cherished beliefs may have undesirable consequences, they open new doors to new cultural patterns. And, as Yogi Berra said, "Predicting is difficult, especially about the future."
8.23.2005 12:50pm
Jeff S (mail):
Well, I suppose there's a confirmation of the slippery slope right there -- a comment about judicial activism expanding unlegislated rights leads to accusations of Nazism.

And we have a winner of the Godwin award.
8.23.2005 1:04pm
I forgot three other aspects of "traditional" marriage:

-Women legally disappeared, merging into the legal person of their husband;
-Women must be submissive to their husbands (the Southern Baptist Convention passed a resolution to this effect in the last few years);
-Men could rape their wives without legal consequence.
As I said above, the slippery slope goes both ways. If conservatives win the gay marriage battle, what other aspects of "traditional" marriage will they try to legally compel? And what rationale is there for drawing the line at banning same-sex marriage when there are so many other "traditions" to reimpose?
8.23.2005 3:01pm
Justin (mail):
While I'm willing to concede that the law's (failing) attempt to blockade the inevitable equality of homosexuality will speed up the inevitable time where it will be socially (and thus, inevitabliy) legally invalid to discrimiate against homosexuality in employment and housing, I have a couple of problems with your argument.

1) The slippery slope here already exists. We're already on it, because such acts are already inevitable. It was the very concept of sexual equality catching on in the 60s that PUT US on the slippery slope, one that INCLUDED the fundamental right of marriage being given to the homosexual community (my former classmate Jeff Williams discusses this slope in an article he writes for the Columbia Journal of Gender and Law).

2) The slippery slope isn't that bad, and I also partially think you overstate the case. While homosexuals are inevitably on the path to equal rights, and those will rights will inevitably come into conflict with other, well-established rights...such as the right to associate freely and speak politically, the central coordinate power that estimates the social distribution of rights (the courts), will levy them accordingly. That the courts NOW (correctly) interpret one set of rights (the rights of gays to live free from discrimination), the courts have not obligated themselves to make that fundamental right trump other fundamental rights when those rights come into conflict. Your argument assumes otherwise, and to that degree, it is incorrect.
8.23.2005 4:31pm
Joe McReynolds (mail):
To clarify about why legalization of polygamous marriage would be so bad:

My considerations are purely pragmatic.

How do you handle all issues relating to property rights, child custody, medical release, and every other various and sundry issue involved?

What if the union is *completely* dissolving between all partners? What if one is leaving and the other two are staying together? What if it's a group of ten, splitting into a five-on-five fight?

There are just so many ways in which our legal system would buckle under the pressure that I conclude we couldn't extend marriage (in its current form, conferring benefits and responsibilities and entanglements) to polygamists without really mucking up the whole thing.

So, why not simply make sure polygamous/polyamorous *conduct* is legal, and then let them handle the rest as per their individual situations?

I'm not biased against polyamory; I've never tried it, but the idea in theory doesn't disgust me or anything. It just seems too damn impossible to make work, when in reality a combo of gay/straight marriages (assuming you have an even number of polygamists), combined with some contracts and powers of attorney between them, is an easier solution than re-writing the whole legal system with regards to marriage in order to solve a tiny number of cases.

A demand for equality has a pretty compelling moral force behind it, but in the case of polygamy, pragmatic concerns trump can it.
8.23.2005 5:41pm
D. Jenkins (mail):
The forthcoming judicial legalization is the bottom of the slippery slope.
It began in Grizwold. This privacy right is only in marriage--you can still morally condem adultery, sodomy, fornication etc. These things are bad for society, every one knows that this should not be construed as protecting these elicit relations.
No wait...We'll extend this to foricators and adulterers. Because that is what the constitution requires.
No wait...We'll extend this to women killing the unborn, unconditionally in the first trimester, mostly in the second trimester, but not in the third trimester. Because that is what the constitution requires.
No wait...We'll extend it to sodomizers. Because that is what the constitution requires.
No wait...We'll extend it to thid trimester abortions, once again because that is what the constitution requires.
No wait...We'll extend it to same sex marriage. Because that is what the constitution requires.
No wait...We'll extend it to polygamy. And adult incest.
The only argument to legalize same sex marriage is that otherwise the state is making a moral judgment as to the worth or validity of a particular relationship. The only way that polygamy and adult incestuous relationships can be prohibited is because the state sees a moral reason to prohibit them.
There are those who fail to see that all laws are moral. They make judgments on behavior. The best, most useful, positive relationship in society is the marriage of one man and one woman in a monagamous relationship. That is the fundamental building block of society and life. Encouraging anything else weakens the most important instution on earth.
The paper in its conclusion reveals its bias and shortcomings. It summarily dismisses the arguments without fact or logic "

I suspect that a change towards recognizing same-sex marriage is unlikely to cause much harm."

Some are not as optomistic

we warn that the disintegration of the family will bring upon individuals, communities, and nations the calamities foretold by ancient and modern prophets.

The First Presidency and the Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints November 1995 Ensign
8.23.2005 7:00pm
D. Jenkins unintentionally proves that the slippery slope goes the other way, too. Look how far Jenkins' proposal would take us back.

So, which would be worse, a world in which multiple consenting adults could form stable, legally recognized relationships?

Or one in which wives are virtually the property of their husbands; parents arrange marriages for their children with people of the same race, ethnicity, religion and social class; use of contraception is illegal; divorce is illegal; non-marital sex is punishable with prison; sex within marriage is punishable with prison if it is not procreative; and husbands are allowed to rape their wives?

No, not all of these are in Jenkins' post, but many are. The rest are firmly rooted in a conservative view of marriage or Western tradition.
8.23.2005 7:27pm
D. Jenkins (mail):
Public_Defender. The only alternatives are marital rape or gay marriage. I think you go a little overboard.
I only addressed the "new" rights to adultery, fornication, sodomy and abortion. We are not talking solely about their legality, but about the requirement placed on the government to support and foster these destructive behaviors.
What same sex couples really want is the stamp of approval. They want the government to say that their relationsip is good. They want the government to force the country accept that their lifestyle is moral. That is why the title of civil unions is not enough. They want marriage.
Why else if not for the moral connotations? Civil unions in California would give them essentially the same rights, but they want the title. Why? Because of the moral connotations that come with it.
Who is inflicting their morality on who?
8.23.2005 7:43pm
Mary Katherine Day-Petrano (mail):
Somewhere along the slippery slope, I wonder if I might acquire a constitutional right to marry my horse. He's very cool, always friendly, and doesn't talk bacj like my husband (a human). Many benefits might come from the relationship.
8.23.2005 7:54pm
D. Jenkins,

I was only pointing out where conservative arguments about "moral connotations" will take marriage. There have been many changes is marriage over the last few decades and centuries. If you get rid of the "new rights," you take America back to a place many Americans don't want to go.
8.23.2005 8:09pm
Robert Woolley (mail):
D. Jenkins:

You say:


What is your empirical evidence that monogamous marriages are more "useful" and "positive" to society than polygamous ones?

How do you determine that monogamous marriages are the fundamental building block, as opposed to polygamous marriages, which have been common through all time and through most known cultures?


Dang. I guess God really blew it when he authorized polygamy for the Old Testament prophets, eh? He probably didn't have your wisdom to know what effect this would have.

BTW, I take it that you are Mormon, from your quotation of the church magazine. Do you acknowledge that what you now say about monogamous marriage is virtually word-for-word what Brigham Young and others said about plural marriage? That it was God's true way, etc. In fact, an official statement of the First PResidency said that *only* polygamists could get to the highest levels of heaven.

How do you reconcile your views with all of that?
8.23.2005 9:03pm
speedwell (mail):
"What [heterosexual] couples really want is the stamp of approval. They want the government to say that their relationsip is good. They want the government to force the country [to] accept that [only] their lifestyle is moral. That is why the title of [boyfriend and girlfriend] is not enough. They want marriage."
8.24.2005 2:30am
Defending the Indefensible:
Your point is well taken. Let marriage and other moral/religious considerations to the faith of each individual, and the state be reserved to civil functions.

Marriage is not a civil institution. The argument for marriage licenses in the first place was racist, it was intended to prevent "miscegenation" (marriage between black and white people), by placing legal hurdles to block such unions. Now the matter is stood on its head, and the state may wish to recognize civil unions between gays and between lesbians where many churches might not, and insofar as it is a simple matter of contractual status the state may do so, and it may grant civil unions between interfaith couples, or in any other circumstances that people may choose so to seek it. But leave marriage to the the sphere of religion.
8.24.2005 3:26am
Joe McReynolds (mail):
The problem with getting the government 'out of the marriage business' is that it makes the modern world a whole lot more complicated, in terms of permissions, visitations, etcetera.

In a world of perfectly rational actors, where people knew just when it was a good time to get a binding contract drawn up, it wouldn't be much of an issue...

...But in the real world, the results for everyday people of the government "getting out of the marriage business" could be calamitous.

For instance, just look at the documentary "Tying the Knot", and watch how innocent gays and lesbians (Even ones connected enough to try and have their relationships codified into law) have had their lives torn apart by government refusal to recognize gay marriages.
8.24.2005 4:48am
Burt Likko (mail):
A very interesting article, Eugene! Two points:

First, your predictive charts appear quite abruptly and were initially confusing to read. As you continue the editing process maybe you could find a way to make them flow into the argument a little more fluidly.

Second, when discussing the issue of whether and how the Supreme Court would address sexual orientation discrimination under an equal protection analysis, a nod to <i>Loving v. Virginia</i> would be useful -- the case did call marriage a "fundamental right" within both the equal protection and substantive due process contexts, although the opinion also included language to the effect that this fundamental right only applied to opposite-sex couples. How your hypothetical Supreme Court justices would deal with this issue, on both the statutory and constitutional levels, would affect which of the five groups they would fall into, and particularly with a new Justice likely coming on the court, this could easily change the calculus of your slippery-slope forecast.
8.24.2005 11:26am
Carol Anne:
The California Supreme Court, on Monday, August 22, decided that a lesbian is liable for payment of child support to her ex-partner, another lesbian.

It seems to me that this either supports the separation of marriage from parenting (a point I recently asserted elsewhere in VC), or begs the issue "was theirs a marriage de facto, and child support is a natural consequence of the issue of that now-dissolved marriage?"

Perhaps some of the lawyers here can help me understand how a responsibility can be levied on a citizen without the concomittant authority? Is that a principle of our society?
8.24.2005 12:19pm
"The slippery slope goes both ways. Based on their idea of what marriage is for, some conservatives want to ban birth control, even for married people, and criminally punish sex outside of marriage."

I believe you are overlooking the "slippery" and "slope" aspect of the phrase "slippery slope" Public Defender. It is far easier to traverse down a slope (and a greased one at that), than to traverse back up it.
8.24.2005 7:08pm
Of course, that depends on which way is "down." I'd argue that encouraging gays and lesbians to form long-term, monogamous relationships is a step up a ladder.

Going back to the "traditional" marriage in which a husband could rape his wife seems like a slide backwards to me.

One person's slippery slope is another's ladder.
8.24.2005 9:37pm
Zoe Brain (www):
Carol Anne :
No citation yet, and with luck there never will be.

If you look at my blog you will see my perception of events as they unfolded since May this year. Jurisdiction is the Australian Capital Territory.

I'm not the only person something like this has happened to. It's extremely rare, but it does happen. Far more common is when Gender Dysphoria alone forces the change, not the patient's endocrine system.

The question is, if a man and a woman get married, and then due to discovery of an Intersex condition, or just Gender Dysphoria, one of them changes sex, should the marriage be allowed to stand if both parties request it?
8.25.2005 1:13am