Gay marriage and the ‘slippery slope’

Today’s question: Is there any “slippery slope” after the California Supreme Court’s decision? Click here to read previous installments from this week’s Dust-Up.

Next up: polygamy and incest
Point: Glen Lavy

With the California Supreme Court’s eradication of the opposite-sex requirement for marriage, what is to prevent a future court from changing things like the binary nature of marriage or the prohibition on incestuous marriages? The arguments on which you relied, Jon, to persuade the court to redefine marriage and create a new right are just as applicable to group or incestuous marriages.

After all, if “sexual orientation” is now a protected class, what about bisexuals? A bisexual who feels a need to have two spouses -- one same-sex and one opposite-sex -- to fully satisfy him or her could argue that it is sexual-orientation discrimination under the court’s decision for the state to forbid such persons from choosing the partners of their choice. How can a person say that his or her desire for a same-sex partner is more valid than a bisexual’s or polygamist’s desire for two or more partners? When marriage is divorced from its historical connection to opposite-sex couples and procreation, there isn’t much basis for retaining its other traditional norms. As University of Minnesota law professor Dale Carpenter pointed out on the Volokh Conspiracy blog Tuesday, the court’s answer to the polygamy question was not persuasive. But neither is Carpenter’s, particularly when it comes to the bisexual scenario.

The reality is that polygamy is far more grounded in history and even current law in various parts of the world than marriage for same-sex couples. As you observed in your counterpoint on Monday, Jon, polygamy has been around for thousands of years. And it is modern, as is evident by the recent raid on a polygamous compound in Texas. Although some proponents of same-sex “marriage” have been trying to distance themselves from polygamy, it is, and long has been, defended by powerful voices like the American Civil Liberties Union.

If “marriage” is now the right to “establish a legally recognized family with the person of one’s choice,” it is a very small step to make that the “persons” of one’s choice. There have been multiple law-review articles in recent years advocating for polygamy. Much of the intellectual support for redefining marriage has come from academics that also support polygamy. HBO’s “Big Love” series popularizes it, and a multitude of websites promote the virtues of polygamy or polyamory (group marriages). The movement for polygamy and polyamory is poised to use the successes of same-sex couples as a springboard for further de-institutionalizing marriage.

The elimination of prohibitions against incestuous marriages between consenting adults is also being promoted in law-review articles and websites. Although the arguments for incestuous marriages are not as well developed as those for polygamy, the California court’s decision would appear to apply just as well to those relationships. After all, if every individual has a protected privacy interest in establishing a legally recognized family with his or her person of choice, what compelling interest does the state have in prohibiting two sisters from marrying? How does a person’s love for a sibling relate to the person’s ability to perform or contribute to society? If it doesn’t, then consenting, incestuous couples have just as much a claim to protected-class status as same-sex couples.

Slippery-slope arguments have long been ridiculed by proponents of redefining marriage. But it’s hard to dispute that advocates of group and incestuous marriages are relying on the same kinds of arguments accepted by the California court. Hopefully, they will not have similar success.

Glen Lavy is senior counsel with the Alliance Defense Fund, a legal alliance of Christian attorneys and like-minded organizations dedicated to protecting religious liberty, the sanctity of life, marriage and the family. ADF and Lavy have been involved in same-sex marriage across the country, including the recent decision from the California Supreme Court.

An alarmist dodge
Counterpoint: Jon W. Davidson

Sixty years ago, when the California Supreme Court struck down our state’s ban on marriages by couples of different races, the dissent argued that bans on incest and polygamy would be next. Those who raised these alarmist concerns were wrong then and they are wrong now. Polygamy and incest have not become legal in Massachusetts, Canada or any of the other countries where same-sex couples can marry, and they’re quite unlikely to be recognized in California.

The problem with “slippery slope” arguments like yours, Glen, is that they assume that society and the law can’t make distinctions between situations that are different from one another. But we can tell apples from oranges. For example, that women got the right to vote does not mean that infants are next.

Bringing up polygamy and incest is simply a dodge -- an attempt to distract people from the injustice of denying same-sex couples the same opportunity to marry that different-sex couples want to preserve for themselves. That others might argue that they want to marry their relatives or have multiple legal spouses requires that those arguments be separately evaluated; it doesn’t make the exclusion of same-sex couples from marriage right.

As the California court’s majority opinion states, polygamy and incest present wholly different concerns than the marriage of same-sex couples: “Past judicial decisions explain why our nation’s culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry.” In other words, there may be compelling reasons to ban incestuous and polygamous marriages, including genetic concerns about the children of incestuous marriages, the importance of preventing coercion and abuse within families, and concerns about how young girls and women have fared under polygamy. By contrast, there is no compelling reason to bar same-sex couples from marriage. Permitting marriages of same-sex couples strengthens families and harms no one.

Moreover, California has come to recognize that lesbian and gay couples -- like our clients Del Martin and Phyllis Lyons, who have waited 56 years to marry -- “are entitled to the same legal rights and the same respect and dignity” afforded everyone else, and that they should not face discrimination based on their “loving and enduring” committed relationship. As the court recognized, in contrast to what may be true about laws barring incest and polygamy, laws barring same-sex couples from marriage do not serve any legitimate purpose. Rather, they draw an arbitrary line based on a characteristic -- sexual orientation -- that has no bearing on a person’s ability to participate in the institution of civil marriage.

(And by the way, Glen, bisexuality is the capacity to fall in love with people regardless of their sex. It’s no more about being concurrently involved with more than one person than is heterosexuality.)

Finally, Glen, I can’t let pass the part of your Tuesday post that attacked the marriage decision as at odds with the governmental system established by the California Constitution. This is as false now as it was when the California Supreme Court overturned the ban on interracial marriages. The court then, like now, did not “foist radical change” on the state. Instead, it did its job of upholding the rights of liberty and equality for all, including African Americans then and gay people now. That job -- and those rights themselves -- are an essential part of the government system our Constitution supports.

Jon W. Davidson is the legal director of Lambda Legal, a nonprofit legal organization dedicated to protecting the civil rights of lesbians, gay men, bisexuals, transgender people and those living with HIV. Lambda Legal was counsel in the case that led to last week’s decision from the California Supreme Court.