The Interocitor

Gay marriage and the "slippery slope"

I'm seeing a lot of "slippery slope" arguments regarding homosexual marriage: polygamy, polyandry, combinations thereof, legal incest, etc. Too many bloggers to link to individually, although of the neutral parties, Volokh is fairly representative. There may be good reason to suggest this, from some kind of legal point-of-view (or maybe it's that lawyers have a dim view of the law's common sense), but there is a very basic difference between all of these scenarios and the situation in which gays find themselves.

Biological need. Gay people are wired differently than straights. Some very large percentage of gays (possibly all) cannot pursue happiness under a heterosexual mandate. They must seek their relationships among their own gender. To deny gay people the right to seek this happiness, by barring them from the most basic of human institutions (one that predates agriculture) constitutes a discrimination that approaches that of Dred Scott. Even the laws against interracial marriage (voided 35 years ago in Loving vs Virginia) did not present this fundamental issue. One *could* find happiness with another, unjust as the laws were. But a gay person denied the legal right to marry the whole class of persons to whom they are attracted is utterly denied this basic human bond.

Andrew Sullivan likens interracial marriage to the present issue. He's wrong. No one needs, biologically, to marry a person of a different race -- there are alternatives. That restriction is wrong on other grounds, notably no-good-reason. Polygamy, incest, etc are also devoid of this biological need -- these are simply wants, and there are very good reasons to bar these unions. While a truly bisexual person may want to marry "one of each", they can marry one or the other, or remain single, as they choose. All married people struggle at times with monogamy -- this is simply a difference in degree, not in kind. Pedophilia and bestiality do not apply to marriage, for reasons of consent and permanence. If your "bright line" is biological need without alternative, there is no slippery slope with respect to gay marriage.

Having said that, I do understand why the Massachusetts court did what it did. Separate-but-almost-equal unions, domestic partners, co-habitation pacts, or whatever you call these insults to marriage, are not the same thing. Matrimony is a thing by itself.

Practically, however, I still feel the court (and/or the litigants) jumped the gun – especially since an initiative could have solved the problem. It may well turn out that this court’s action starts the final debate, and consensus is reached. I truly hope so. But I fear a freezing of thought (like Roe v Wade) and decades of pointless division if consensus is not reached before the change is imposed. Which is what legislatures and initiatives are for.