Gay Rights Laws, Slippery Slopes, and a Constitutional Right to Same-Sex Civil Unions:

The New Jersey Supreme Court has just held that the New Jersey Constitution's equal protection principles require the legislature to recognize at least same-sex civil unions. (Whether the legislature must recognize outright same-sex marriage is left open.) I'm not sure I'll have much to add on the big picture questions this raises, but I did want to note one thing -- this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon. Even when there are conceptually quite clear distinctions that could be used to distinguish the first step A from the final step B, A may nonetheless help bring B about.

Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as saying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little." And see the Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages."

Yet the New Jersey Supreme Court's equal protection argument begins by citing such non-same-sex-marriage, non-civil-union gay rights laws (citations omitted):

In addressing plaintiffs' claimed interest in equality of treatment, we begin with a retrospective look at the evolving expansion of rights to gays and lesbians in this State. Today, in New Jersey, it is just as unlawful to discriminate against individuals on the basis of sexual orientation as it is to discriminate against them on the basis of race, national origin, age, or sex. Over the last three decades, through judicial decisions and comprehensive legislative enactments, this State, step by step, has protected gay and lesbian individuals from discrimination on account of their sexual orientation.

In 1974, a New Jersey court held that the parental visitation rights of a divorced homosexual father could not be denied or restricted based on his sexual orientation. Five years later, the Appellate Division stated that the custodial rights of a mother could not be denied or impaired because she was a lesbian. This State was one of the first in the nation to judicially recognize the right of an individual to adopt a same-sex partner's biological child. Additionally, this Court has acknowledged that a woman can be the "psychological parent" of children born to her former same-sex partner during their committed relationship, entitling the woman to visitation with the children. Recently, our Appellate Division held that under New Jersey's change of name statute an individual could assume the surname of a same-sex partner.

Perhaps more significantly, New Jersey's Legislature has been at the forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians. In 1992, through an amendment to the Law Against Discrimination, New Jersey became the fifth state in the nation to prohibit discrimination on the basis of "affectional or sexual orientation." In making sexual orientation a protected category, the Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added "domestic partnership status" to the categories protected by the LAD.

The LAD guarantees that gays and lesbians, as well as samesex domestic partners, will not be subject to discrimination in pursuing employment opportunities, gaining access to public accommodations, obtaining housing and real property, seeking credit and loans from financial institutions, and engaging in business transactions. The LAD declares that access to those opportunities and basic needs of modern life is a civil right.

Additionally, discrimination on the basis of sexual orientation is outlawed in various other statutes. For example, the Legislature has made it a bias crime for a person to commit certain offenses with the purpose to intimidate an individual on account of sexual orientation, and has provided a civil cause of action against the offender. It is a crime for a public official to deny a person any "right, privilege, power or immunity" on the basis of sexual orientation. It is also unlawful to discriminate against gays and lesbians under the Local Public Contracts Law and the Public Schools Contracts Law. The Legislature, moreover, formed the New Jersey Human Relations Council to promote educational programs aimed at reducing bias and bias-related acts, identifying sexual orientation as a protected category, and required school districts to adopt antibullying and anti-intimidation policies to protect, among others, gays and lesbians.

In 2004, the Legislature passed the Domestic Partnership Act, making available to committed same-sex couples "certain rights and benefits that are accorded to married couples under the laws of New Jersey." With same-sex partners in mind, the Legislature declared that "[t]here are a significant number of individuals in this State who choose to live together in important personal, emotional and economic committed relationships," and that those "mutually supportive relationships should be formally recognized by statute," The Legislature also acknowledged that such relationships "assist the State by their establishment of a private network of support for the financial, physical and emotional health of their participants." ...

In passing the Act, the Legislature expressed its clear understanding of the human dimension that propelled it to provide relief to same-sex couples. It emphasized that the need for committed same-sex partners "to have access to these rights and benefits is paramount in view of their essential relationship to any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners." Aside from federal decisions such as Romer v. Evans and Lawrence v. Texas, this State's decisional law and sweeping legislative enactments, which protect gays and lesbians from sexual orientation discrimination in all its virulent forms, provide committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples.

Later in the case (opinion pages 48-49 and 51-52), the court refers back to this reasoning, and uses it as an integral part of its equal protection argument.

Now maybe this entire discussion, though detailed and prominently placed, is all makeweight; maybe the court would have reached the same result even if such laws hadn't been enacted, and would have found that something else besides those laws "provide[s] committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples." But if we take the New Jersey Supreme Court at its word, it sounds like in New Jersey antidiscrimination laws, domestic partnership laws, and hate crime laws did indeed help bring about same-sex civil unions, just as they did in Vermont (PDF pages 59-61) and, as to same-sex marriage, in Massachusetts.

One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter (see PDF page 37), but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions).

Related Posts (on one page):

  1. The Third Way in New Jersey:
  2. The New Jersey marriage decision and the unstable middle ground:
  3. Gay Rights Laws, Slippery Slopes, and a Constitutional Right to Same-Sex Civil Unions:
  4. Third Way Result in New Jersey Marriage Case: