Same-Sex Marriage, Slippery Slopes, and Other Links, Including a Cool Facebook Haggadah

Posted by Sappho on April 8th, 2009 filed in Blogwatch, Marriage

Evidently, remarking on the goings on at Crunchy Con is a kind of ongoing thread at Alexandria, where Rod Dreher’s blog is also known as Over There, the Other Blog, and the like. And it turns out that I, too, have some comments about a post at CC, which I’ll be crossposting to Alexandria. But before I get to those comments, it’s important that I tell you a few other things.

First, as my sister has pointed out to me, there’s this really cool Facebook Haggadah. Go read it now. Your Pesach isn’t complete without it.

Second, I need to fill my blog mission to keep you updated about every bit of news about the careers of Vanessa Williams and Andre Braugher. Noli Irritare Leones readers may recall (but I’ll point it out again for Alexandria readers) that Vanessa Williams (the villainous Wilhelmina in Ugly Betty) has just released a new album, and that Andre Braugher (best known as Pembleton) is going to be in a new TNT series titled Men of a Certain Age. Anyway, here’s the latest:

Vanessa Williams is going to be on the Tyra Banks show on 4/10/2009.

History Net has an interview with Andre Braugher Looking Back Fondly on Glory: 20 Years Later, about the Civil War movie Glory (my personal favorite Civil War movie), and African-American history in general.

Next, some more links:

Jesse Taylor at Pandagon has a few words on mobile phones for homeless people.

Cell phones are an inexpensive, flexible way for the poor and homeless to keep an anchor in the world and allow them a lifeline out; it’s a way to potentially secure shelter, employment, food, clothing, any number of things – to demean a homeless person for having a cell phone is, in many ways, like demeaning them for having shoes. Except worse, because shoes can’t call back an employer to let them know when you can start. Well, most shoes.

Hanna Rosin at XX Factor writes about Teen Sex, In Defense of the Mixed Message. So, since I’m totally in favor of giving teenagers mixed (or at any rate, complex and nuanced) messages about sex, I had to link it.

On to Rod Dreher, who at the moment is exercised, not about teen sex, but about same-sex marriage. Doubtless the fact that the number of states permitting same-sex marriage just doubled has something to do with it. At any rate, Rod Dreher, Andrew Sullivan, and an anonymous blogger at the Economist’s Democracy in America blog all link to Eugene Volokh’s recent post arguing that a slippery slope on same-sex marriage shouldn’t be lightly dismissed. I should note here that the bloggers linking (obviously) have widely disparate views on same-sex marriage, and that Volokh, to the best of my knowledge, is in favor. In this recent slippery slope post, he writes:

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?

Rod Dreher follows up his linkage of Eugene Volokh with another post in which he sees a polygamy slippery slope, a slope which Eugene Volokh has previously argued to be unlikely to follow from same-sex marriage. It’s worth noting here Volokh’s general perspective on slippery slopes, which is basically that you can neither assume that a slope will be slippery simply because you can place two points on a metaphorical slope, nor assume that it won’t be because you can distinguish the two points. Rather, Volokh argues, you need to look at each case specifically and judge whether there is any mechanism that will cause the slope to be slippery, and whether there are any mechanisms that would work against slippage. See Volokh’s The Mechanisms of the Slippery Slope for a fuller explication of this argument.

Now, in the case of same-sex marriage, various hypothetical slippery slopes have been proposed. Volokh, in his recent post, uses an example of one of the more plausible ones. It is true, for example, that the California Supreme Court decision that briefly legalized same-sex marriage in this state relied heavily on legislation that had already been passed prohibiting various varieties of discrimination based on sexual orientation. It is also true that, for another example, Loving v. Virginia led ultimately to Bob Jones University losing its tax exempt status, as it sought, way behind the rest of the country, to prevent its students from dating interracially. So Volokh’s specific examples, of broadening of antidiscrimination laws and threats to the tax exempt status of groups like the Boy Scouts, actually don’t seem to me much of a stretch as possible “slippery slope” (or “slippery climb” if you like the results) consequences of same-sex marriage.

Certain other “slippery slopes” that have been proposed strike me as less plausible. For instance, approval of sex with children gets routinely raised rhetorically as a “slippery slope” consequence of all kinds of approval of homosexuality, but I see no mechanism for that happening, and in fact, during the past couple of decades, as homosexuality has gained acceptance, attitudes toward pedophilia have become harsher, as seen in measures as varied as a) NAMBLA losing what ground it had, b) the scandals involving the Catholic Church, and c) the spread of laws identifying and restricting pedophiles after their release from prison. So, of all the slippery slopes proposed, this would be the least likely one.

Polygamy’s a more muddled case, partly because of the question of what’s meant by approval of polygamy. Is the slope supposed to slide to:

1) Court-ordered government provision of polygamous marriages (i.e. the polygamous equivalent of Goodrich v. Department of Public Health)? This seems really, really, really unlikely, because, among other things, marriage is a standardized contract provided by the state, one that, in our country, is built heavily around the assumption of two people. Changing the law to make the two people of the same sex is, whether you like it or not, legally easy; all the hard work of making marriage law gender-neutral, and removing those pesky man-as-head-of-household aspects it once had, where wives couldn’t get their own credit and the like, has already been done. But the result is a set of property, custody, divorce, and inheritance rules that are not well written for poly households. Who makes my medical decisions if I have two spouses? If my husband marries a second wife, and I live in a community property state (as I do), is my property now her community property, and can her creditors place liens on it? Etc.

2) Legislative approval, in one state or another, of polygamous marriage: I think this one’s unlikely, too, but, hey, if you want it, knock yourself out. Come up with some fair standard poly contract rules and proposed the legislation in the friendliest state you can find. It’s at least intrinsically possible to do, and much less chaotic that 1).

3) Not outlawing polygamy: This one’s really easy to do. You just don’t pass laws against, or do raids on, households that choose to present themselves as polygamous (unless they break the law in some other way). Maybe you allow polygamous families to immigrate on the same terms as other families; maybe you allow them to apply for assistance in the same ways as other families. Maybe they can handroll their own contracts with each other. But they don’t have state recognized marriage; no one is under any legal obligation to recognize the extra spouses as being married. They are, in other words, in the same position as same-sex couples are, right now, in states that don’t have either same-sex marriage or civil unions. It looks to me as if this is actually the kind of thing that Rod Dreher is alleging is happening in Canada (I don’t know enough about Canadian law to know what’s actually happening there). And it doesn’t seem to me all that far-fetched that, same-sex marriage or no, there could be some movement in this direction in one or more states in the US at some time in the foreseeable future.

A lot of polygamy slippery slope arguments confound 1) and 3), but, because of the vastly different legal complexity involved, even if social attitudes toward polygamy and homosexuality were more or less the same, there’s a much higher barrier to moving from tolerating polygamy to institutionalizing it as a form of legal civil marriage. And that’s the case whether you, personally, consider polygamy worse than homosexuality, homosexuality worse than polygamy, or both morally equivalent, and whether you, personally, would welcome poly marriages, or vehemently oppose them.

I mentioned above that Eugene Volokh has argued in the past that a slippery slope to polygamy, in the US, is unlikely, so now I’ll quote him.

Disapproval of polygamy seems deeply rooted in American culture; it is not easy to overcome this sort of opposition. The gay rights movement did overcome such opposition, but it had natural allies that polygamists likely will not. Gays have many straight friends and family members who are part of the American mainstream. Polygamy in America
today seems to be chiefly practiced by separatist Mormon communities, whose political connections are limited by their living apart.

Moreover, the gay rights movement had natural allies on the American Left, which generally supported sexual autonomy. A polygamist rights movement would likely find less enthusiasm from the Left:

1. The rhetoric of religious obligation would probably be less appealing to the increasingly secular Left than the rhetoric of individual autonomy or opposition to discrimination based on immutable characteristics.

2. Enthusiastic feminists, an important constituency on the Left, seem likely to be skeptical of polygamy. (Though in theory polygamy could involve multiple husbands, or both multiple husbands and multiple wives, in practice polygamy has long been and is likely to remain overwhelmingly one-man-severalwomen.)

3. Left-wing social egalitarians will likely not be pleased by the tendency of polygamy to involve richer men having multiple wives, with poorer men having no wives at all.

4. Left-wing social planners will likely not be pleased by the possible social effects of this, either.

And the movement would likely find no enthusiasm from the Right, either: Polygamy is contrary to the religious beliefs that most on the Right share. It’s contrary to American traditions, which the Right cares about. Even if men are less hostile to polygamy than women, and the Right is somewhat more male than the Left, this effect would be fairly small: Relatively few men would derive much of a personal benefit from the legalization of polygamy, and few would even feel much sympathy for polygamists.

Point being, it’s one thing to say that slippery slope arguments shouldn’t be automatically dismissed before you’ve examined whether there might in fact be a mechanism to grease the slope. I’d actually agree with that point, and consider some particular slopes prone to slipperiness. It’s another thing to say that all the possible slippery slope arguments in a given case (such as same-sex marriage) need to be accepted as likely; some slopes, for better or worse (sometimes for better and sometimes for worse) are much more likely to be slippery than others.

3 Responses to “Same-Sex Marriage, Slippery Slopes, and Other Links, Including a Cool Facebook Haggadah”

  1. Daisy Bond Says:

    That slippery slope/slippery climb comment is a good one — pretty much every group, with every agenda, is hoping for a “slippery climb” of sorts. For example, equality advocates are, indeed, hoping that anti-discrimination statutes will lead to greater acceptance of LGBT folks, which will, in turn, lead to increasing legal and social equality. On the hand, when conservatives promote, say, abstinence only sex ed, they’re not just trying to encourage abstinence: they’re also hoping this will lead to certain attitudes about sex and love in general, which will in turn lead to various outcomes they consider desirable (less divorce, stricter gender roles, etc). All this, of course, reinforces Volokh’s point.

  2. José Solano Says:

    If one had raised the question 30 years ago of what might occur sooner, the acceptance of men marrying men or polygamy, just about everyone including judges, legislators, etc. would have thought you were asking a preposterous question. It would have been simply inconceivable that a man could marry a man. Polygamy has always existed on earth, and we find no strong disapprobation of polygamy even during the ancient Hebrews.

    And look where we are now, thanks to an extremely powerful propaganda machinery that confounds the public with junk genetics, junk theology and junk reasoning. This homosexualist machinery has worked hard to distance itself, to disassociate itself from any thought of comparing its objective with any that might legitimize polygamy. While working to have people discriminate in favor of homosexual relationships and “marriage,” they have recognized that any comparison with non-discrimination of polygamy undermines their cause and raises the specter of the slippery slope, when in reality polygamy would not be a sliding down the slope because homosexual practices are far more depraved than polygamy. They are already close to the bottom of the slope from which you cannot slip much further,

    The propaganda machinery, with all of the sophistry and convincing theater that Hollywood can conjure, works to desensitize society to the abomination that homosexual relationships really are. They invade the educational systems to brainwash impressionable minds and they take control of the media. It is a masterful brainwashing campaign that any Stalin or Goebbels would have envied. Vast segments of society have been anesthetized and the constant drone of “equality” and non-discrimination verbiage, hijacked from the civil rights movement to be misapplied to justify perverse behaviors, has left masses of people believing the great hoax of our times, namely that two men can actually form a marriage while polygamy must be banned with discriminatory and silly rationalizations that there would be too much cumbersome paperwork to allow it.

    The abomination that has never before been allowed is Ok because it is easier to handle the paper work while polygamy, which has existed since time immemorial, must be banned. I’m for banning both but polygamy is indeed marriage while it is impossible to form a non-complementary, universally non-procreative marriage. They need to call those non-complementary sexual relationships something else. I have long suggested they use a non-euphemistic and honest term such as simply The Homosexual Relationship.

    When society insists on calling a same-sex relationship “marriage,” which leads to the inevitable deconstruction of marriage, then we need to find another term for marriage because they are absolutely different relationships that must be differentiated. I suggest the term often used in Spanish for marriage. They are simply pronounced “Man and Woman,” “Hombre y Mujer.”

    Have you pondered why they have called the relationship “matrimony.” “Mater,” “matr” means “mother.” A wife is not initially a mother but has the potential to become a mother because of her relationship to her husband. The concept is that marriage is “mother making.” This is naturally impossible for two men under any circumstances and for two women also without bringing in a male third party, hence through a polygamous relationship. Hmm. A legal polygamous relationship? Oh yes, we also have legal serial polygamy. Lots of cumbersome paperwork in those also.

  3. Stentor Says:

    I think Volokh does a very good job of outlining how to approach the analysis of slippery slopes. But I think he misses the mark in the last bit you quote from him, by assuming that acceptance of polygamy would have its base among Mormons. He overlooks (probably because he himself doesn’t travel in the correct, mostly younger, circles) the type of relationship that goes under the label “polyamory,” and which has substantial support among young left and left-ish people, whether they practice it or not. It’s still an embryonic tendency, to be sure, but it’s doing the work of hashing out how to make multi-partner relationships work in an egalitarian way, which could eventually be translated into state-recognized marriage contracts. Certainly polyamory proponents already enounter the kinds of resistance Volokh describes — but LGBT people were hardly embraced immediately by the rest of the left either. I’m not going to predict that polyamory will necessarily ultimately prevail, but I think the slope is slipperier than Volokh imagines.