Editorial, Louisville Courier-J., Feb. 3, 1994, (dismissing as �arrant nonsense� the claim that a hate crime law �would lead to acceptance of gay marriages�); Editorial, Boston Globe, Oct. 15, 1989 (arguing that a proposed antidiscrimination law �does not legalize �gay marriage� or confer any right on homosexual, lesbian or unmarried heterosexual couples to �domestic benefits.� Nor does passage of the bill put Massachusetts on a �slippery slope� toward such rights.�); Riverside Press-Ent., Apr. 30, 1994, at B1 (quoting Riverside Human Relations Commission member Kay Smith as saying that �Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the �slippery slope� [toward gay marriages] . . . . But this legislation needs to be looked at on the face value of what it is, and it really does very little.�).
But it turns out that these arguments aren't as implausible as all that -- apparently the legitimatization of homosexuality in some contexts has indeed led to its legitimization in others. In the discussions about this very case, people have argued that Texas's allowing gays to adopt (it has already apparently done so, Erik says below, at least to some extent) and Texas's adding sexual orientation to the list of hate crime categories undermines its case for criminalizing gay conduct. And in the Vermont case that mandated the legislature to allow homosexual civil unions, the Vermont Supreme Court used the legalization of sodomy -- together with the legalization of gay adoptions, the prohibition of sexual orientation discrimination, and the sentence enhancements for sexual-orientation-based hate crimes -- as part of its justification:
[1.] The State asserts that [the goal of promoting child rearing in a setting that provides both male and female role models] . . . could support a legislative decision to exclude same-sex partners from the statutory benefits and protections of marriage. . . It is conceivable that the Legislature could conclude that opposite-sex partners offer advantages in this area, although we note that . . . the answer is decidedly uncertain.
The argument, however, contains a more fundamental flaw, and that is the Legislature�s endorsement of a policy diametrically at odds with the State�s claim. In 1996, the [Legislature removed] all prior legal barriers to the adoption of children by same-sex couples. At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their �domestic relationship.�
In light of these express policy choices, the State�s arguments that Vermont public policy favors opposite-sex over same-sex parents or disfavors the use of artificial reproductive technologies, are patently without substance.[169] . . .
[2. W]hatever claim [based on history and tradition] may be made in light of the undeniable fact that federal and state statutes --including those in Vermont -- have historically disfavored same-sex relationships, more recent legislation plainly undermines the contention. [In 1977, Vermont repealed a former statute that criminalized fellatio.] In 1991, Vermont was one of the first states to enact statewide legislation prohibiting discrimination in employment, housing, and other services based on sexual orientation. Sexual orientation is among the categories specifically protected against hate-motivated crimes in Vermont. Furthermore, as noted earlier, recent enactments of the General Assembly have removed barriers to adoption by same-sex couples, and have extended legal rights and protections to such couples who dissolve their �domestic relationship.
Thus, viewed in the light of history, logic, and experience, we conclude that none of the interests asserted by the State provides a reasonable and just basis for the continued exclusion of same-sex couples from the benefits incident to a civil marriage license . . . .
Now maybe the Vermont Supreme Court's arguments here were just makeweight, and the Justices would have reached the same result even had none of the first steps been taken; but I'm not sure that's so, and even if it is so, presumably the Justices made these arguments because they thought that at least some readers would buy them.
I discuss all this in detail in my Mechanisms of the Slippery Slope piece, starting near footnote 164; and my conclusion is that decisions such as this one can indeed have such slippery slope effects -- decriminalizing gay sex can indeed indirectly increase the likelihood that gay marriage will be recognized, too. "It might lead to gay marriage" is thus a not implausible argument against decriminalizing gay sex.
Now this having been said,
- I think criminalization of gay sex is very bad,
- I think gay marriage would probably be good, though my views on this are more tentative, and
- I think that the slippery slope effect here, while possible, isn't very likely -- decriminalizing gay sex may increase the likelihood that gay marriage will be recognized, but not by much.
- So I think that gay sex should be decriminalized without regard to the slippery slope risks (though I realize that this is a separate question of whether the Constitution mandates such decriminalization). But the slippery slope argument is more sensible than might at first appear.
- I think gay marriage would probably be good, though my views on this are more tentative, and
