News & Politics

Same-sex Marriage and the Slippery Slope: Comparing Chalk to Cheese

Kānth The Supreme Court’s term comes to an end this month. All eyes are on Washington as we wait for SCOTUS’s decision concerning the fate of same-sex marriage in the United States. Although I am as eager as everyone else to learn how the court will rule, I am still stuck a bit on the oral arguments that took place almost two months ago in the soon-to-be-famous case, Obergefell v. Hodges.

Photo credit: wikipedia

SCOTUS Jusice Samuel Alito Photo credit: wikipedia

During the first half of oral arguments, Justice Samuel Alito asked the attorney arguing in favor of same-sex marriage the following question:

“Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?”

Moments later he followed up with another spin on the same question:

“Well, let’s ­­ let’s think about two groups of two people. The first is the same-sex couple who have been together for 25 years, and they get married either as a result of a change in State law or as a result of a Court decision. The second two people are unmarried siblings. They’ve lived together for 25 years. Their financial relationship is the same as the ­­ the same­-sex couple. They share household expenses and household chores in the same way. They care for each other in the same way…”

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There is nothing terribly new or surprising about Justice Alito’s remarks. Most of the legal decisions over the past ten years ruling on same-sex marriage have addressed the slippery slope argument in one form or another. Even before then, in 1967 when SCOTUS heard arguments in Loving v. Virginia—the landmark case that struck down the nation’s anti-miscegenation laws—Chief Justice Earl Warren wondered aloud how interracial marriage compared to polygamy, cousin-marriages, and polygamy (although interestingly, not same-sex marriage).

This time, though, Justice Alito’s questions left a foul taste in my mouth. They were offensive. Slippery slope arguments manipulate people’s fears. They draw false comparisons and invoke disgust or the absurd in an effort to devalue people’s rights.

“Aren’t same-sex marriage and polygamy equally horrible?”

“Do we really want mothers to marry their sons?”

“If we are required to let two men or two women marry, how on Earth can we justify refusing marriage to a man and his pet snake, or to a woman and her beloved oak tree?”

Cue Rick Santorum’s comparison of same-sex marriage to “man on dog.”

By asking these questions, Justice Alito also seeks to place the fate of the entire institution of marriage on the shoulders of same-sex couples. As if it would be the fault of same-sex couples if suddenly other families were to now invoke the Constitution because we have. If a polygamous family files a lawsuit challenging their state’s marriage laws, let Justice Alito answer his own question then. That’s what he gets paid for.

Until then, leave us same-sex couples alone. Our lawyers haven’t been retained to represent polygamous families, or any other groups marching in the supposed parade of horribles. Why should we have to address hypothetical arguments in favor of or against anything other than the question that is actually before the court?

Former Washington State Supreme Court Justice Bobbe Bridge. Photo creidt: Mike Urban/Seattle Post-Intelligencer

Former Washington State Supreme Court Justice Bobbe Bridge. Photo creidt: Mike Urban/Seattle Post-Intelligencer

Mary Bonauto, the attorney who presented oral arguments in support of same-sex marriage before SCOTUS, did an admirable job on behalf of lesbian and gay families. But she was not nearly as outraged or indignant as I would have wanted her to be in response Justice Alito’s comments. In search of some comfort, I went back and re-read several of the earlier same-sex marriage opinions that addressed head-on the slippery slope argument. It turns out that some judges have had both biting and profound things to say.

Washington State Supreme Court Justice Bobbe Bridge offered the following observation in a dissent she wrote in 2006: “Comparing same-sex marriage to polygamy is like comparing chalk to cheese.” Reading these words, one cannot help but call to mind Irina Dunn’s quote popularized by Gloria Steinem, “A woman needs a man like a fish needs a bicycle.” Both statements reject the associations people often assume and then impose on others.

Perhaps the most compelling response to the slippery slope argument, and the one I would have been inclined to share with Justice Alito if I were at the podium, was written by Oregon Federal District Court Judge Michael McShane in 2014, when he said at the conclusion of his opinion in support of same sex-marriage:

District Court Judge Michael McShane

District Court Judge Michael McShane

“Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.”

I could not imagine saying it any better myself.

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