Posted by Eugene Volokh:
More on the Slippery Slope to Same-Sex Marriage:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1238948132
(This post returns to some points I'd made earlier about the
California, Massachusetts, and Vermont same-sex marriage/civil union
decisions, and applies them to the Iowa case.)
Like some earlier decisions striking down opposite-sex-only-marriage
rules, the [1]Iowa Supreme Court decision helps illustrate what I call
"[2]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 Iowa 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 (some
paragraph breaks added):
A second relevant consideration [in deciding whether discrimination
based on a characteristic should be closely scrutinized by courts]
is whether the characteristic at issue -- sexual orientation -- is
related to the person�s ability to contribute to society.
Heightened scrutiny is applied when the classification bears no
relationship to a person�s ability to contribute to society. The
existence of this factor indicates the classification is likely
based on irrelevant stereotypes and prejudice. A classification
unrelated to a person�s ability to perform or contribute to society
typically reflects �prejudice and antipathy -- a view that those in
the burdened class are not as worthy or deserving as others� or
�reflect[s] outmoded notions of the relative capabilities of
persons with the characteristic.�
Not surprisingly, none of the same-sex marriage decisions from
other state courts around the nation have found a person�s sexual
orientation to be indicative of the person�s general ability to
contribute to society. More importantly, the Iowa legislature has
recently declared as the public policy of this state that sexual
orientation is not relevant to a person�s ability to contribute to
a number of societal institutions other than civil marriage. See
Iowa Code § 216.6 (employment); id. § 216.7 (public
accommodations); id. § 216.8 (housing); id. § 216.9 (education);
id. § 216.10 (credit practices). [Footnote: The legislature has
further indicated the irrelevancy of sexual orientation by
mandating sex education in the state�s public schools be free of
biases relating to sexual orientation, Iowa Code § 279.50, and by
securing personal freedom from violence and intimidation due to
sexual orientation, id. § 729A.1. Likewise, numerous state
administrative regulations indicate sexual orientation is not
relevant to a person�s ability to contribute to society. See Iowa
Admin. Code r. 191-48.9 (prohibiting discrimination in making or
solicitation of viatical settlement contracts on basis of sexual
orientation); id. r. 281-12 (preamble) (ensuring access to
education meeting child�s needs and abilities regardless of sexual
orientation); id. r. 281-12.1 (ordering equal opportunity in
educational programs regardless of sexual orientation); id. r.
281-12.3 (ordering school boards to consider the potential
disparate impact of student responsibility and discipline policies
on students because of students� sexual orientation); id. r.
281-68.4 (prohibiting discrimination in admission process to public
charter schools based on sexual orientation); id. r. 282-25.3
(labeling denial of participation in benefits of educational
program based on sexual orientation an �unethical practice�); id.
r. 282-26.3 (prohibiting licensed educators from discriminating
based on sexual orientation); id. r. 641-131.7 (allowing public
health department to take numerous adverse actions against
emergency medical care personnel who �practice, condone, or
facilitate� discrimination against a patient on the basis of sexual
orientation); id. r. 641-131.8 (allowing public health department
to take numerous adverse actions against training program or
continuing education providers who �practice, condone, or
facilitate� discrimination against a patient on the basis of sexual
orientation); id. r. 641-132.10 (allowing denial, probation,
revocation, and suspension of authorized emergency medical service
programs that discriminate on the basis of sexual orientation); id.
r. 645-282.2 (prohibiting licensed social workers from
discriminating on the basis of sexual orientation); id. r.
645-363.2 (providing that sexual-orientation-based discrimination
by sign language interpreters or transliterators is unethical); id.
r. 657-3.28 (providing that sexual-orientation�based discrimination
by pharmacy technicians is unethical); id. r. 657-8.11 (same for
licensed pharmacies, licensed pharmacists, and registered
pharmacistinterns); id. r. 661-81.2 (prohibiting entrance of
information regarding sexual orientation into Iowa law enforcement
intelligence network information system in most circumstances).]
Significantly, we do not construe Iowa Code chapter 216 to allow
marriage between persons of the same sex, a construction expressly
forbidden in the Iowa Code. See id. § 216.18A (�[Chapter 216]
shall not be construed to allow marriage between persons of the
same sex, in accordance with chapter 595.�). Rather, we merely
highlight the reality that chapter 216 and numerous other statutes
and regulations demonstrate sexual orientation is broadly
recognized in Iowa to be irrelevant to a person�s ability to
contribute to society. [Footnote: Other federal and state authority
supports such a conclusion. See Kerrigan, 957 A.2d at 435 (relying
on Connecticut statutes banning discrimination based on sexual
orientation �in every important economic and social institution and
activity that the government regulates�); cf. Frontiero, 411 U.S.
at 687 (Brennan, J., plurality opinion) (interpreting congressional
protections against gender discrimination as suggesting legislative
determination such classifications are �inherently invidious� and
implying significance of �conclusion of coequal branch of
Government� in deciding whether to apply heightened scrutiny).]
Those statutes and regulations reflect at least some measure of
legislative and executive awareness that discrimination based on
sexual orientation is often predicated on prejudice and stereotype
and further express a desire to remove sexual orientation as an
obstacle to the ability of gay and lesbian people to achieve their
full potential.
Therefore, we must scrutinize more closely those classifications
that suggest a law may be based on prejudice and stereotype because
laws of that nature are �incompatible with the constitutional
understanding that each person is to be judged individually and is
entitled to equal justice under the law.� Thus, although we do not
interpret chapter 216 to allow same-sex marriage, we rely on the
legislative judgment underlying chapter 216 to determine the
appropriate level of scrutiny when sexual orientation is the basis
for a statutory classification. Based on Iowa statutes and
regulations, it is clear sexual orientation is no longer viewed in
Iowa as an impediment to the ability of a person to contribute to
society.
Similar arguments were made by [3]the Massachusetts Supreme Judicial
Court and the Vermont Supreme Court, and by the [4]California Supreme
Court, when they decided that their state constitutions should be read
as recognizing a right to same-sex marriage (Massachusetts and
California) and same-sex domestic partnership benefits (Vermont).
Of course, some people might like this slippery slope, because they
like what's on the bottom. (See Deb Price, Marriage Is the Only
Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's
steps toward legalizing gay marriage led to a backlash in Congress and
many states in the mid-'90s, some gay-rights advocates felt the need
to pooh-pooh the 'slippery slope' argument by foes that we'd
ultimately try to push beyond any piecemeal rights thrown our way and
would be satisfied with nothing less than full marriage. But not
anymore. 'Our foes kept saying, 'This is a slippery slope to
marriage,' and we kept nodding our heads, 'Yep,'' says [Anne]
Stanback, unabashedly embracing marriage as the goal, just as do the
movement's two top political groups, the Human Rights Campaign and the
National Gay and Lesbian Task Force.") I myself support recognition of
same-sex marriage as a policy matter. Still others may disapprove of
the bottom of the slope, but might see some of the steps down it as
morally imperative.
But it seems to me that decisions such as the ones in California,
Connecticut, Iowa, Massachusetts, and Vermont ones illustrate that
it's a mistake to just factually dismiss the claims that slippage is
possible. When we're dealing with a legal system that's built on
analogy and precedent (both binding precedent and persuasive
precedent), the possibility of a slippery slope has to be taken
seriously.
And this is true even though the past decisions are distinguishable
from a future one. Employment discrimination laws, for instance, are
not the same as same-sex marriage. Legislative decisions are not the
same as constitutional ones. It was certainly possible to draw the
line between legislative decisions to ban private discrimination in
employment and judicial decisions to ban governmental discrimination
in deciding who may marry. That two matters are distinguishable does
not mean that they will be distinguished by future decisionmakers. And
in fact they may influence future decisionmakers even when the earlier
decision expressly disclaims any attempt to accomplish what the later
decision did, as was the case with the Iowa antidiscrimination
statutes, which expressly said that they "shall not be construed to
allow marriage between persons of the same sex." Though they
themselves weren't construed as allowing same-sex marriage, they were
indeed construed as a data point in favor of a constitutional decision
allowing same-sex marriage.
So people who worry about slippery slopes generally -- and who worry
about slippery slopes in the field of sexual orientation and the law
-- can't be lightly dismissed. And it is reasonable for them to worry:
If we have gotten this far partly through [5]slippery slope effects,
will we slip further, and to what? In particular, would this increase
the likelihood of further broadening of antidiscrimination laws? Would
it increase the likelihood that groups (such as the Boy Scouts) that
discriminate based on sexual orientation will be excluded from tax
exemptions, just as groups that discriminate based on race are often
excluded from tax exemptions? Would it increase the likelihood that
such groups will be excluded from generally available benefits?
Would it increase the likelihood of broader restrictions on
anti-homosexuality speech -- in government-run organizations, or in
private organizations coerced by government pressure -- by analogy to
the broad support in many areas for restrictions on sexist speech?
Would it increase the likelihood of restrictions on people's choosing
roommates based partly on sexual orientation, or advertising such
preferences in "roommates wanted" ads? Would it increase the
likelihood of punishment of wedding photographers who refuse to
photograph same-sex weddings (even if they have religious objections
to participating this way in such ceremonies, and even if they feel
that requiring them to photographing same-sex weddings compels them to
create artistic works that they do not wish to create)? Would it
increase the likelihood that legislatures will repeal religious
institutions' partial exemptions from some bans on sexual orientation
discrimination in employment?
Perhaps some of this would have already been the case under Iowa
statutes -- such restrictions are primarily the consequences of
antidiscrimination statutes, not of same-sex marriage as such. And the
conclusion that the government generally may not discriminate based on
sexual orientation is distinguishable from a conclusion that private
entities generally may not discriminate based on sexual orientation,
or that individuals may not say things that create an "offensive
environment" based on sexual orientation. But as we saw, that two
things are distinguishable does not mean that they will be
distinguished, and a governmental judgment in one field may be used by
other governmental decisionmakers as a reason to push further in
another field, whether in interpreting a vague statute, enacting a new
statute, or repealing an exemption in an old statute. And such
decisions can have effects on other states as well: Consider the Iowa
Supreme Court's extensive citations to similar decisions in other
states, which I suspect considerably emboldened the Iowa Justices.
So I stress again: Perhaps such slippage would be good, or even if it
isn't good, the same-sex marriage decision is so good that it should
be embraced regardless of the risk of slippage. But I don't think it's
credible at this point to just casually dismiss the possibility of
slippage in this area, given how many slippery slope effects we have
already seen.
References
1. http://www.desmoinesregister.com/assets/pdf/D213209243.PDF
2. http://www.law.ucla.edu/volokh/slipperyshorter.pdf
3.
http://www.volokh.com/archives/archive_2005_08_14-2005_08_20.shtml#1124298617
4. file://localhost/archives/archive_2008_05_11-2008_05_17.shtml#1210877596
5. http://www.law.ucla.edu/volokh/marriage.pdf
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