it becomes harder to condemn the slippery slope argument as patently unsound. Dahlia Lithwick does make some apt criticisms of some “today, gay marriage, tomorrow . . .” arguments; and, as blog readers know, I tentatively support same-sex marriage and suspect that it probably will not lead even to a recognition of polygamous marriages (though I don’t have the confidence in this that Dahlia does). But some of her arguments strike me as not entirely persuasive. Consider this:
[B]eyond just the policy differences between [same-sex marriage and polygamous marriage], 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.
To begin with, I think there’s something conclusory about characterizing “intimacy” as an inherently “binary sphere.” We’re familiar with lots of nonsexual but very deep intimacy that isn’t binary — consider the intimacy of relationships within a biological family of three, four, or even seven. It’s true that we’ve traditionally understood marital intimacy, a particular subset of intimacy, as intimacy between two people. But we’ve also traditionally understood it as intimacy between one man and one woman. If we reject the “binary [opposite-sex] sphere of intimacy” model of marriage, despite its “intuitive[]” appeal to many people (and even more people not long ago), then it’s quite plausible that many voters will be led to also reject the “binary” part.
But, one might ask, doesn’t Griswold stress the binary nature of the relationship? Well, Griswold stresses lots of things:
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Griswold deeply relies on the rights of a married couple — read the opinion and see for yourself how intricately tied it is to marriage. Yet a mere seven years later, in Eisenstadt v. Baird, the Court relied on Griswold to hold that unmarried couples have a right to use contraceptives.
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The three-Justice concurrence (Goldberg, Warren, and Brennan) in Griswold also said that “it should be said of the Court’s holding today that it in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting opinion in Poe v. Ullman [an earlier case in which Harlan eloquently argued for a right of married couples to use contraceptives,] “Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.”
Presumably Justice Harlan continued to hold this view, which means that four of the seven Justices who voted to strike down the law believed that the case was no precedent for a broader right to sexual autonomy, or specifically a right to engage in homosexual conduct. And yet the Court in Lawrence v. Texas used Griswold as “the most pertinent beginning point” for its decision to strike down laws banning homosexual conduct.
So the Court has been willing to depart from the very core of Griswold‘s argument (the limitation to marriage) and from the express assurances by the concurrence that the decision in no way affects homosexuality. Why should we have any confidence that the Court — or lower courts or other influential bodies — will feel limited by Griswold‘s supposed stress on the inherent “binar[iness]” of “intimacy,” something that is much less expressly dwelt on by the Griswold opinions? (To the extent the opinions suggest anything about the binariness of intimacy, that comes from their focus on the married couple — a focus that the Court has long abandoned, see Eisenstadt.)
The changes in sexual attitudes — and in the law surrounding sex — over the last 40 years are one long slippery slope. Some may think it’s a slope to a good result, others to a bad result. But we have seen growing legalization and social normalization of contraception, premarital sex, abortion, and homosexuality, and a growing constitutionalization of such changes, so that communities where a majority still opposes those changes are nonetheless required to accept them. The legalization or constitutionalization of same-sex marriages would be yet another step.
It’s conceivable, of course, that there is simply a temporal relationship here and not a causal one — perhaps the first changes didn’t help cause the subsequent ones, in which case we should worry less about the legalization or constitutionalization of same-sex marriage helping cause other things. It’s also conceivable (perhaps even likely) that there are powerful political reasons why things will stop short of legalizing polygamous marriages.
But given this past history, the slippery slope arguments related to same-sex marriage aren’t that easy to dismiss. And they’re especially hard to dismiss by an appeal to the supposed inherent limits of Griswold, limits away from which we have already dramatically slipped.
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