I’ve heard some variation of this kind of argument more times than I can count: “If we let gays marry, next we’ll have to let people marry goats! Or, “If we can’t legislate morality, what’s to stop people from legalizing polygamy or marrying children?” These are what lawyers call “slippery slope” arguments, the idea being that once you’ve started going down the hill, there’s nothing to keep you from pretty much careening all the way to the bottom.
Slippery slope arguments are a mainstay of conservative commentators who object to same-sex marriage, and I can see why. They appeal in a common-sense kind of way. It’s important for a civil society to have clear lines between things that are right and wrong so we all know what to expect each day. The slippery slope suggests that well intended policies could have unintended consequences that will surely send us into chaos.
You might have noticed, however, that while these comments are all over the place in the media, they’re pretty much non-existent in LGBT court cases. That’s because in real life there is no slippery slope.
In law school I learned how to use the slippery slope argument to make my position sound stronger than it really was. It’s actually more of a volley into the opponent’s court than a killer shot; it buys a little time and gets the other side on the defensive.
Allow me to return the volley and explain why same-sex marriage won’t put us on a slippery slope to ruin. In short, it’s because the law is in the hands of human beings, not robots, who will, with any luck, put the brakes on when it’s correct to do so. And that choice will always be dependent on more than one simple precedent – such as same-sex marriage – but rather, a complex weighing of the multitude of competing rights and duties we all have.
Back in 1878 the Supreme Court outlawed polygamy based on the idea that religious belief can’t trump the needs of an ordered democracy. We still have freedom of religion, but it never exists in a vacuum.
Now let’s talk about goat marriage. No matter what the courts say about same-sex marriage, there is at least one very good reason why we will never see man/goat marriages down at the courthouse: goats can’t consent. Each of us has the right to marry, sure, but inherent to modern legal marriage is mutual consent. Sorry, goat-lovers.
Which is also why states restrict marriage to minors. You’ll probably agree that what makes the image of someone marrying a minor distasteful (at best) to most of us is that minors are likely not mature or empowered enough as individuals to fully and freely consent to such an important agreement. In this case, the law respects the right of the minor to not be coerced or exploited by someone in a more powerful position over the right of the adult to marry, or even the minor’s right to choose.
The more compelling version of the slippery slope argument is whether we can legislate morality. Same-sex marriage opponents believe that same-sex marriage portends the end of moral considerations in our laws. But we legislate morality all the time. Think about strip joints near schools or banning porn on broadcast TV. Again, it’s a question of weighing the rights involved. Is it your right not to have the evening news go totally hardcore, or the network’s right to broadcast what they want? The moral foundation of our laws will continue to be factored into the equation as long as we have a system of rights. Sometimes that morality will be deemed compelling enough to compel legislation; sometimes it won’t.
As for same-sex marriage, where we’ve won it, the courts have decided that one group’s moral views (a minority of people now, for the record) is not sufficient to stop another group from entering into a lawful contract of marriage, as consenting adults. More specifically, and with all due respect to those who disagree, where society goes next is not a foregone conclusion. Rather than wildly sliding down, I’d say we’re still climbing, slowly, up.
Abby is a civil rights attorney-turned-author who has been in the LGBT rights trenches for 25-plus years. She can be reached through her website: queerquestionsstraighttalk.com