According to today's news, Pres. Bush is trying to calm his upset conservative right wing over the Lawrence v. Texas decision declaring unconstitutional the Texas statutory scheme criminalizing homosexual conduct. The right is agitating about the need for a constitutional amendment declaring marriage to be an institution only open to male-female couples, not gays. Pres. Bush suggested today that "the lawyers" be given time to assess the situation, as an amendment may not be necessary.
The right seems to be indulging themselves in the sort of 'slippery-slope' argument analyzed recently by our thoughtful host, Prof. Volokh, in a recent Stanford Law Review article. 'Slippery-slope' arguing was given a good-going over by Prof. Jeffrey (at least I think that's his first name; I got in trouble the last time I supplied a first name w/o checking) Nunberg of Stanford yesterday on NPR, with credit given to Volokh. Nunberg asserted that one problem with flogging the slippery slope argument is that it can be used by anyone, in any argument, to uphold the status quo and denounce even small advances. Every move in one direction, to the slippery sliders, represents imminent arrival at the logical and much more difficult extreme, politically.
There must be a good counter-argument to the 'slippery-slope' argument. It is only a metaphor, and not a very good one at that, except that it is so popular. It should only apply in playgrounds where children congregate, and pig-wallows, because the slippery slide doesn't describe how people really behave in important matters, when they're acting sanely, at least.
We usually take important matters one step at a time.
We look before we leap.
We ratchet things along one step at a time, with few multi-step advances, but little back-sliding, either.
I think the ratchet metaphor describes the way constitutional law functions in real life much better than the slippery slope argument.
Lawrence v. Texas is thus a far-cry from imminent homosexual marriage.
I suspect the slippery slopers regard the agitation over Lawrence as too useful for fund-raising purposes to abandon.
Gays want legal and social recognition, i.e., respect and dignity, accorded to their enduring, declared relationships, along with the legal benefits associated with marriage. I don't have a problem with that. I do have a problem with CALLING enduring gay relationships 'marriage' in the classical sense. It's a question of mind-bending, altering categories that are more than just furniture in my mind, but more like walls. I've got a case of 'hardening of the categories' that I'm not sure I want to be cured of.
This, for the record, has to do with something I call 'constitutional attitudes,' the prerequisite to and sine qua non of constitutional law.
Robert Sheridan
