Slippery Slope

The Slippery Slope

Beware of the slippery slope! The slippery slope warning is a common argument raised against recognizing same-sex marriage (SSM). The logic behind this argument, as it is utilized against SSM, is as follows. A will or might occur, therefore B will inevitably follow, B is wrong, so that makes A wrong (since B followed A) and A cannot or should not occur. Put another way, once one exception is made, what’s to stop from making the next exception, and then the next one?

Opponents to SSM argue that if the government begins to recognize SSM what will stop them from legalizing polygamy or incest? Because I am trying to approach the SSM argument from a legal standpoint by discussing what could be legal justifications for denying a particular group of people (gays) a fundamental right (marriage), I would ask that we look beyond the disgust or yuck factors involved with polygamy and incest. It may be true that these types of relationships have not gained as much social acceptance in America as homosexual relationships have, but these feelings, like feelings towards homosexuality, may evolve. Furthermore, if we argue that dislike or the yuck feelings don’t justify prohibiting SSM, then we can’t allow those same unpleasant feelings be the sole justification for denying the legal recognition of polygamous or incestuous relationships.

With that said, here is a Canadian parliament member’s slippery slope-polygamy warning.

"[W]hy is it acceptable to remove discrimination on the basis of sexual orientation but continue to permit and perpetuate . . . other forms of discrimination? Either we eliminate all forms of discrimination or we leave the current definition alone.” If marriage is redefined to include same-sex couples, then polygamy is inevitable. "Some say that raising polygamy is a red herring . . . . [t]hat is utter legal nonsense."

Let’s see who is being nonsensical. Let’s examine why legalizing same-sex marriage should be considered on its own merits, and why extending same-sex couples the right to marry will not inevitably lead to legal polygamy.

If it is true that legalizing same-sex marriage will inevitably lead to the legalization of polygamous marriages, then it must also be true that there is not a government interest sufficient to justify a continued ban on polygamy. Because remember, to interfere with a fundamental constitutional right, the government must have a compelling interest, and the interference caused by the government must be necessary to advance that interest. So if same-sex marriage (marriage = fundamental constitutional right) should be permitted because banning it (interference) is not necessary in order to advance a compelling government interest, is it necessary to ban polygamy in order to advance any particular government interest? Well how about protecting children by preventing child abuse, or preventing the exploitation of women? What about curbing welfare fraud or tax evasion. In July of this year, Senate Majority leader Harry Reid called polygamy a form of organized crime. Reid said that polygamous communities conceal crimes such as child abuse and statutory rape, and teenage and preteen girls are being forced to marry older men and bare their children. He also said that these communities are committing tax evasion and welfare fraud. These problems, enumerated by Reid, create victims, and these victims are telling their stories, and they are seeking help through “polygamy- survivor” support groups. Some might argue that monogamous married couples commit welfare fraud and tax evasion, and would probably even argue that monogamous couples abuse their children, and monogamous relationships aren’t prohibited. That is true. But such an argument ignores the fact that while these problems may occur in monogamous relationships, it is not the monogamous relationship itself that causes child abuse or tax fraud. On the other hand, child abuse or welfare fraud have become symptoms, or side effects, of polygamous marriage and polygamous communities. Still, setting these issues aside, polygamy presents other problems. Marriage is a contractual relationship between two people. Changing the amount of people involved in a legal marriage would, unlike SSM, complicate legal administration matters. These administrative matters concern issues such as inheritance, parental rights, or insurance benefits. Which one of the several wives will get what when a husband passes, or what if one or more of the wives or the husband want a divorce? The system and the surrounding legal devices are designed for two people. While these issues can be resolved and the law could be altered to accommodate polygamous marriage, the administrative problems, coupled with the abuse and economic crimes, are clear obstacles between the legalization of SSM and the so called “inevitable” downward slope towards legalizing polygamy.

Okay, so what about incest? Again, the slippery slope argument is as follows. If SSM is legalized because there is no justification for a continued ban, then incest marriage will be legalized because there is also no justification for a continued ban. Well, is there a justification for continuing to ban incest? To begin with, and herein lies the problem with the incest discussion, what type of incest are we talking about? Seriously. Parent/child? Brother/sister? Cousin/cousin? Parent/child marriage bans can be justified on the grounds that one must reach the age of consent to be married. I’m sure that no one would challenge age requirements for marrying unless they aren’t concerned about child abuse. The common argument against permitting any incestuous marriage is that the inbreeding is said to increase the risk of birth defects in the children these relationships produce. This argument though, is coming under attack. These conclusions face criticism in regards to prohibiting cousin marriages because the “increased risk” is not so increased. (Sibling marriages are still believed to cause a significantly higher risk of birth defects.)

Another justification advanced for prohibiting incestuous marriages is the destruction on the “family” such a marriage can cause. Incest relationships are often conducted in secrecy and once revealed can be destructive to family harmony. Also, there is an interest in maintaining this status quo because it is necessary to maintain the family unit. Here is an expression of these worries.

Because certain sexual and marital relationships are categorically forbidden, and the categorical ban is instilled early on in children's minds, children can grow and develop affectionate, close bonds with a wide span of relatives, without the intrusion of "inappropriate sexuality." Children can "wander freely, sitting on laps, pulling beards, and nestling their heads against comforting breasts-neither tempting nor being tempted beyond their years."

And about the benefits of the incest taboo at large.

The ban on intrafamily marriage forces families to reach outward and connect with other families -- and it is those connections between many different families that make society function.

Whether these justifications are or will remain government interests which are compelling enough to justify a continued ban on incestuous marriages remains to be seen. But does that mean SSM will lead to legalizing incestuous marriage? Three state Supreme Courts have ruled in favor of legalizing SSM while seven states allow cousin marriages with restrictions and 19 allow cousin marriages without restriction. It seems that legalizing SSM can’t lead to certain types of incest because incest is already legal in many states. The fact of the matter is that each relationship, be it same-sex, polygamous, or incestuous, is considered on its own merits. As laws prohibiting these relationships are challenged, they will be upheld or invalidated because there is, or isn’t a proper justification for doing either. Don’t be frightened by the slippery slope scare. It’s a powerful rhetorical tool, but the logic is not entirely sound. Consider each argument separately, and decide for yourself. Thank you.

What do you think?

What Do You Think?

The two arguments below are popular positions taken in order to justify denying same-sex couples the right to marry. Are these compelling state interests? Does banning same-sex marriage (SSM) advance these state interests or achieve the state’s goal? Let’s find out.

“We must preserve the definition of marriage.” Obviously, same-sex marriage must be banned in order for the definition of marriage to remain a union between a man and a woman. But, is preserving the definition of marriage a compelling state interest? Does “tradition” justify a same-sex marriage ban? To both questions the answer is no. The Supreme Court of Connecticut had something to say about “tradition.” The Court said that it is improper “to define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible.” Traditionally, same-sex couples have been prohibited from marrying. One cannot then argue that tradition is the reason same-sex couples should be prohibited from marrying. The traditional denial of the right to marry is what has same-sex couples fighting for the right now. The “tradition” argument is circular. So if maintaining the traditional definition of marriage is not a compelling interest, what is it? In his dissenting opinion in Lawrence v. Texas, Justice Scalia wrote that “preserving the traditional institution of marriage is just a kinder way of describing the state’s moral disapproval of same-sex couples.” A bellow for tradition is merely disguised abhorrence. It certainly is not a state interest sufficient to justify denying same-sex couples the right to marry. And that’s not just me talking, The Supreme Court of the United States says animus, or strong dislike, is not a good enough reason to deny any group the equal protection of the law.

“Same-sex marriages do not create an optimal living environment for children.” This “protect the children” argument is founded on the idea children raised by same-sex parents are somehow disadvantaged and that same-sex couples make a deficient parental unit. The welfare of children is certainly a compelling concern of the state, but is it necessary to deny same-sex couples the right to marry in order to protect children? Again, the answer is no. Those who raise this argument often point to studies that show children raised in families with a mother and father, fare better in childhood and as adults than do children raised in families of a single sex. These studies, however, compare children raised by two-opposite sex-parents to those raised by a single parent (therefore single sex). These studies are therefore in applicable in this analysis and their use is misleading. The truth is many agree that the studies that do analyze the lives of children raised by same-sex couples are biased (on both sides) or inconclusive. Still, several organizations such as the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, and the American Academy of Pediatrics support same-sex partners as parents. And ask yourself this: If same-sex couples are such inadequate parents and the children they raise are so disadvantaged, why are same-sex couples permitted to adopt children in every state but Florida? In reality, children ideally need a loving, stable, and supportive environment to grow up in which can be provided by same-sex and opposite-sex parents.

On the flip side, some courts have found that it is actually harmful to the children of gay couples to deny their same-sex parents the rights, benefits, and protections of marriage provided by state law. So I guess the opponents to SSM are right. Children of same-sex couples are disadvantaged. Only it’s not their parents’ fault. Massachusetts Supreme Judicial Court Justice Marshall wrote:

Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. . . . In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation.

And Justice Albin of the Supreme Court of New Jersey wrote:

Disparate treatment of committed same-sex couples, moreover, directly disadvantages their children. We fail to see any legitimate governmental purpose in disallowing the child of a deceased same-sex parent survivor benefits under the Workers' Compensation Act or Criminal Injuries Compensation Act when children of married parents would be entitled to such benefits. Nor do we see the governmental purpose in not affording the child of a same-sex parent, who is a volunteer firefighter or first-aid responder, tuition assistance when the children of married parents receive such assistance. There is something distinctly unfair about the State recognizing the right of same-sex couples to raise natural and adopted children and placing foster children with those couples, and yet denying those children the financial and social benefits and privileges available to children in heterosexual households.

One could try to argue that I have held the state to too high a burden with the strict scrutiny analysis. Only a Hawaii court has strictly scrutinized the government relating to this issue. Yes, one could make such a frivolous argument. But, neither of the above justifications can even be considered a rational justification (the lowest needed) for interfering with an individual’s rights. In my next post I will discuss some other arguments made in opposition to allowing same-sex marriage.

A prelude

In my previous posting I discussed a developing change in this country. What I was referring to was the American publics' growing acceptance of same-sex relationships. Unfortunately this may have been a bit of wishful thinking on my part. Yesterday, Election Day 2008, there were proposed constitutional amendments on three state ballots seeking to write into these state’s constitutions same-sex marriage bans. Unfortunately, all three amendments passed. Today, I am truly saddened and angered by these results.

An opponent to same-sex marriage will say that he is no bigot. He will say that he is not discriminating. He will say "We aren't trying to change anything that homosexual couples believe or want -- it doesn't change anything that they're allowed to do already. It's defining marriage. . . . Marriage is a man and a woman establishing a family unit." This man may not want to discriminate, but he does. He “defines” marriage to the exclusion of others. Why does he do this? If it is not about hatred towards gays, what is it about? What justifies his position?

At the outset, I will reluctantly say that I respect this view that some people hold. People have the right to feel however they feel and think of marriage in whatever way they like. The problem with those that hold this view—the marriage is between a man and a woman view—is that they want their view of marriage to be the law’s position on marriage. But what’s wrong with that you ask? Why shouldn’t marriage be a relationship reserved for only a man and a woman? Or, why should the other view prevail, that is, why should men be allowed to marry men and women marry women?

Well, same-sex couples should be permitted to marry because the Supreme Court of the United States has recognized that marriage or the right to marry is a fundamental constitutional right. And, when fundamental rights are interfered with by the government, the government must justify that interference. The government can only accomplish this by demonstrating that it has a COMPELLING interest in causing this interference. The government must also show that the interference they have caused is NECESSARY to advance that compelling interest. Both factors must be met. The interference must be necessary to accomplish the state’s compelling interest. This is known as strict scrutiny analysis and it is the test used to determine whether government action that interferes with a fundamental right is constitutional. Here’s an example of this analysis at work:

Wisconsin once passed a statute that required residents to obtain a court order before getting married if they had children that they were required to pay child support for. Marrying without the court order was prohibited and criminally punishable. Wisconsin declared that their interest in placing this restriction on marriage was to protect the welfare of the children owed child support and to give the state the opportunity to counsel the marriage applicant about fulfilling his or her prior support obligations. The Supreme Court of the United States found the Wisconsin statute unconstitutional. While protecting children can certainly be called a compelling interest, the Court held that the law was flawed in that it only prohibited incurring new burdens through marriage and it didn’t actually collect any money for children. It simply restricted access to marriage. Furthermore, other means existed for accomplishing the state’s task like wage assignments or civil contempt proceedings.

The Wisconsin law is an example of a restriction on a fundamental right NOT necessary to advance the state’s compelling interest. So with that in mind, for the government to lawfully deny same-sex couples the right to marry (a fundamental right) the government must have a compelling interest in doing so, and denying same-sex couples the right to marry must be necessary to advance that government interest. The question here is what is the justification for interfering with gay people’s fundamental right to marry? What is the compelling interest? And is banning same-sex marriage actually necessary to protect that interest? My next blog will focus on some of the justifications for denying same sex couples the right to marry opponents to same-sex marriage advance. I will take those arguments and run them through the strict scrutiny analysis.

I would like to leave you with this thought. As many today, following the results of this election, have spoken of the great strides our country has made towards racial equality, I would like to point out that courts that have encountered the same-sex marriage issue have not followed the analysis I will. The courts have followed a different analysis which held the state governments to a lower burden and made it easier for these states to justify denying same-sex couples the right to marry. Facing this lower burden, some states have still failed to make the showing that they have a legitimate reason for denying same-sex couples the right to marry, the fact that the strict scrutiny analysis isn’t used in every instance—along with the passing of those three discriminatory amendments—should indicate how much work is still left to be done before equality for homosexuals is realized in this nation.

Where Do You Stand?

Where do you stand?

The heresy of one age becomes the orthodoxy of the next.

-Helen Keller

Funny how someone who couldn’t see something with her own two eyes could make such an observation about society, and yet there are plenty of people with unimpaired vision who are blind to the sort of change Helen spoke of.

I speak of this sort of change as well. A sort of change that is developing into what some have called the civil rights movement of our generation. Same-sex marriage is no doubt a civil rights issue and it is time that we fully recognize that. To deny same-sex couples the right to marry is unconstitutional, plain and simple.

Marriage is a contract between two adults who have met the State’s requirements for the legal protections and rights available through marriage. But as we continue to LEGALLY deny homosexuals the right to marry, people should look for LEGAL justifications for the denial. The arguments against same-sex marriage now are constitutionally impermissible, hateful, and factually unsupported.

It is against the Constitution to define marriage based on a particular religion’s views. Same-sex marriage won’t lead to adults marrying children, or brothers marrying sisters. There is no scientific evidence to support that children are harmed by gay parents. In fact, gay couples are permitted to adopt children in all but one state. These are just some of the unfounded arguments made against same-sex marriage equality. There is no justification to continue this discrimination.

The prejudice displayed by opponents to equal marriage rights is palpable. To this day some contend that gay marriage would make a mockery of their “legitimate” loving marriage, which they have been in for x number years. This opinion is based on the stereotype that gays only have promiscuous untenable relationships. While in actuality many homosexuals are in long, loving relationships, have adopted children, and have made admirable homes for their families. It is time we abandon these stereotypes and recognize what is reality, homosexual relationships are just like heterosexual relationships and deserve the same respect.

Courts have legalized same-sex marriage in Connecticut and California. Apple and Google have donated money to groups opposing same-sex marriage bans. A 2006 gallop poll indicated that 47% of Americans say same-sex marriage should be legal. The change is on the horizon.

It is impossible, in the closing days of this election season, to ignore that this topic must be discussed in the election context. Sadly, same-sex marriage is already illegal in Florida by statute. However, Amendment 2 is on the ballot and if passed, Florida citizens will have prohibited same-sex marriage within our state Constitution. I am a Floridian. I was born and raised here, and I plan on making my family’s home here in South Florida. I love Florida, but it makes me sad that we stand poised to scribe discrimination into our constitution. That is why I ask that people recognize that same-sex couples deserve equal marriage rights. Specifically, I implore my fellow members of Generation Y to stand up against this amendment. After all, who are you Generation Y? You are the independent and determined. You are diverse and inclusive. Some say you, we, are poised to be the next hero generation. Lead the way on this issue. Start by voting down amendment 2. Then, if ever given the opportunity, flex your muscles, exhibit your open-mindedness, show your strength in numbers and express that you will be the generation to end this outdated discrimination. The change is coming. The real question is how will history reflect upon you when the change occurs? Now the views and opinions once expressed against race and gender equality are disturbing and almost unbelievable. Be on the right sight of this change.