Slippery Slope


P1. Same-sex marriage must appeal to an understanding of marriage which equally applies to other relationship types

P2. Over time, any arbitrary exclusions of relationship types in marriage will disappear

C. Therefore same-sex marriage will lead to other relationship types being included in marriage

What Follows for the Family – Robert P. George


What principle can be appealed to which permits two, but not three, people of the same sex to marry?

In his dissent (Obergefell vs. Hodges, 2015), Chief Justice Roberts said:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? –

…Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.

Slippery slopes are often dismissed out of hand however Eugene Volokh highlights some relevant examples. 

Example 1:

In Griswold v. Connecticut (1965), the Supreme Court struck down a ban on the use of contraceptives. Griswold deeply relies on the rights of a married couple; nothing in it asserts a broader sexual autonomy right….Yet only seven years after Griswold, in Eisenstadt v. Baird, the Court relied on Griswold to hold that unmarried couples have a right to use contraceptives.

The following year, the Court used Griswold and Baird as the foundations for recognizing a right to abortion…And in the recent Lawrence v. Texas, the Court used Griswold as “the most pertinent beginning point” for its decision to strike down laws banning homosexual conduct.

Example 2:

From the 1960s on, many states decriminalized same-sex sexual conduct…When such liberalizations were proposed, some people warned that these laws were steps down a slippery slope to broader rejection of traditional sexual rules, including towards same-sex marriage. These slippery-slope arguments were dismissed, sometimes contemptuously. The claim that a hate crime law “would lead to acceptance of gay marriages” was called “arrant nonsense.”A proposed antidiscrimination law, people were assured, does not “put Massachusetts on a ‘slippery slope’ toward” “legaliz[ing] ‘gay marriage’ or confer[ring] any right on homosexual, lesbian or unmarried heterosexual couples to ‘domestic benefits.’” “Those 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.” Yet when the Massachusetts Supreme Judicial Court held that the state constitution requires the legislature to recognize same-sex marriages, part of its reasoning rested on the legislature’s decision to ban sexual orientation discrimination: This decision, the Court reasoned, undermined the asserted government interest in condemning homosexuality as immoral, and thus helped strip away any rational basis the law might have had. Likewise, when the Vermont Supreme Court held that the state constitution requires the legislature to recognize same-sex civil unions (marriages in all but name), a large part of its argument rested precisely on the legislature’s past enactment of various gay rights laws, including the enactment of antidiscrimination laws and hate-crime laws that refer to sexual orientation.

Example 3:

Similarly, when the Equal Rights Amendment was being debated in the 1970s and 1980s (both at the state and federal levels), and the ERA’s foes argued that the sex discrimination ban might lead to legalization of same-sex marriage, such arguments were derided as “emotional scare tactics,” “hysterical,” and “canards.” Yet both the Hawaii Supreme Court and the necessary fourth vote on the Massachusetts Supreme Judicial Court relied on the state Equal Rights Amendments in concluding that the opposite-sexes-only marriage rule was indeed sex discrimination.