Eugene Volokh has a set of posts on the decision, but his comments in this one on “the slippery slope” to same-sex marriage struck me particularly. In this context, the idea of a slippery slope is a misframing of the question, I think – as if there were an instance where it wasn’t.
The California Supreme Court decision striking down California's opposite-sex-only-marriage rule helps illustrate, I think, what I call "legislative-judicial slippery slopes" — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.
Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:
1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."
2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."
3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."
Yet consider how the California Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage:
I think we have to remember one basic fact that never gets mentioned here: the courts do not really innovate in the area of social policy. They reflect the prevailing mood, although they might, on occasion, be ahead of the curve. (Not often, and only slightly: the courts are not really the most progressive element of our society.) So, for example, the Supreme Court can come up with a howler of a verdict in a case like Bowers vs Hardwick, which was not only socially regressive but was bad law, and within a few years reverse itself (as it did with Lawrence) when it realizes just how far behind the rest of the country it is.
So, for the California court to cite examples of the expanding acceptance and protection of gays is merely to note that attitudes have changed and continue to do so. The court is not precipitating anything – it is merely reflecting the attitude of the public. Likewise, the idea that legislatures are creating a “slippery slope” when they acknowledge the unfairness of current law and change it is somewhat of a reach.
To those who would point to decisions such as Griswold, Roe, or Lawrence as evidence of “judicial activism” and the creation of slippery slopes, I’d just like to point out that the courts were, in those instances, vetting laws against the relevant constitutional provisions and finding the laws lacking. That’s not social progressivism that I can see – it’s simply the courts doing what they were designed to do.
I think it’s worth noting in this context that the phrase itself was manufactured by the conservative Christian right as another alarmist catch-phrase to add to their arsenal. It has no real meaning that I can see, and I think for Volokh to base a post on this without pointing out that the courts are generally not originators shows a significant blind spot. (Nor, for that matter, are legislatures – they are sometimes even more conservative than the courts. They are also more immediately vulnerable to pressure applied by special interests.)
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