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Wednesday, May 21, 2008

The slippery slope to endless "slippery slope" rhetoric

The California Supreme Court's recent decision on gay marriage has predictably revived that old perennial favorite of arguments against substantive due process arguments for sexual privacy -- the "slippery slope."

You know the drill: If courts strike down x law regulating sexual conduct, then it will be logically impossible to avoid striking down y, z, a, b, and c laws. That latter set usually involves references to laws prohibiting bestiality, polygamy, and public nudity. But Justice Scalia, warming to his theme in his Lawrence v Evans dissent, added invalidation of laws against "masturbation" to the usual series (539 U.S. 558, 590). (I did a double take when I saw that new marcher in the parade of horribles: Since when did any states have laws against masturbation?)

The obvious response to the "slippery slope" is the "conceptual ledge": There are lots of natural resting places for the mind, if one only bothers to look for some fine-grained moral/legal theory. Public nudity is, well, publicly visible; bestiality does not foster emotionally important human sociability; polygamy thrives on subordination of women; and so forth. Of course, such theories require courts/legislatures to pick and choose on the aspects of human sexuality that they think are worth protecting from the law and those that are not -- but that's hardly news.

So why do patently unconvincing slippery slope arguments grow like black mold in a leaky attic every time a court makes a decision about sexuality? I think that we've used slippery slope arguments so carelessly that we are losing our intellectual capacity to draw fine-grained conceptual distinctions. Once one starts invoking the essential similarity of one thing to another, one can't stop: The temptation to assert foolishly that logical consistency requires elision of any distinction not crudely cut with a meat cleaver becomes an addictive habit. (E.g., "You think animals have rights? Why don't you let them vote?" "You think invading Iraq was a good idea? Why not China?" And so forth).

Maybe we should just swear off "slippery slope" arguments entirely to avoid sliding into such conceptual incoherence. After all, once you start, you can't stop: It's a slippery slope....

Posted by Rick Hills on May 21, 2008 at 08:56 AM in Constitutional thoughts | Permalink

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Rick Hills roundly condemns slippery slope arguments: The California Supreme Court's recent decision on gay marriage has pre... [Read More]

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Comments

With all due respect, Professor Hills, this post is deeply unconvincing. The reason slippery slope arguments can be powerful, as you well know, is that they extend arguments made in one factual scenario to another in which there is no logical reason, within the premises of the argument, not to make that extension. The key is "within the premises of the argument."

Fine grained moral theory is delightful, of course. And so are policies that foster "emotionally important human sociability," whatever those may be. Now, perhaps we can agree that sex with goats doesn't meet your test (although I'm sure there are some quite amiable goats, as well as people who are drawn to them), but I bet we (and I mean the larger, social we) cannot agree about a great number of other matters if this is your criterion. The little difficulty, of course, is coming up with policies that do in fact do that fostering. The much bigger difficulty is telling everybody else that they must agree with your human-sociability-enhancing policy, because you've figured out something they haven't (poor benighted souls that they are). If you are going to make an argument for gay marriage whose logical premises can be extended to other contexts, but whose human-sociability-enhancing qualities cannot, then you'd best be honest about what you're saying to those retrograde hordes who haven't signed on to your vision.

But this is all familiar stuff that you know very well. So why all the blustering ("black mold"?) about what simply comes down to the usual and classic tension between positive and negative liberty, a la Isaiah Berlin?

Posted by: anonymous | May 21, 2008 9:54:31 AM

Someone tell this to the Volohk boys.

Posted by: miles | May 21, 2008 10:01:15 AM

We're no longer on a "slippery slope" in regards to sexual morality and the courts, of course. We're now in free fall. Provided that one can prove a sexual activity is consensual and not harmful (see "consensual," for the most part), then laws against it are likely to be invalidated.

Of course, slippery slope arguments make sense only with an exterior normative that applies to both law and society. When society, as in the case of those with a "thick anthropological" viewpoint, is the normative, then slippery slope arguments are useless. To believers in anthropological sources of law, there is only what a society does and what it does not do, which could change over a matter of years, and could change in any direction.

This seems to be the thrust of this posting - Prof. Hills truly arguing that he favors "anthropologically thick deductions of actual belief and behavior over logically consistent deduction from abstract premises" and that therefore he has "no trouble drawing fine distinctions between factually dissimilar cases without skiing down some imaginary slippery slope in which all capacity to draw lines suddenly vanishes."

-Jonathan

Posted by: Jonathan | May 21, 2008 10:13:24 AM

I've just posted a bit of a response to this post over here:
http://prawfsblawg.blogs.com/prawfsblawg/2008/05/same-sex-marria.html

Posted by: Dan | May 21, 2008 10:36:26 AM

"[B]estiality does not foster emotionally important human sociability."

This is true. However, it does little to answer the claim that social norms are no longer a legitimate state interest in refusing to sanction marital relationships. It was not as if gay marriage proponents are taking the position that it would be ok to ban gay marriage if it could be shown that it didn't "foster sociability." The argument is phrased in the form of a "right" that is held by an individual -- the right to have the state recognize his or her marriage and cohabitation preferences regardless of the marjority viewpoint that desires not to have such sanctioned.

"[P]olygamy thrives on subordination of women."

Putting aside the fact that anti-polygamy laws ban both non-subordinating relationships and women marrying more than one person, isn't a law that seeks to reduce "subordination" just using *another* social norm to regulate conduct? Does it make sense that the dislike for "subordination" can trump the freedom of marriage but the dislike for gay marriage doesn't? If it can be shown, with the same level of ipse dixit that you've presented, that homosexuality also subordinates one of the couples, would that then mean that the state can ban homosexual marriage?

You've pointed out some great *normative* differences in why the public should *less approving* of certain things versus gay marriage. But the entire basis for the gay marriage movement is that *public approval doesn't matter* versus the rights of individuals.

Posted by: Lawyer | May 21, 2008 11:49:07 AM

"Since when did any states have laws against masturbation?"

There are many laws in many states that distinguish lewd sexual acts (e.g., masturbation without making physical contact with the victim) from public nudity and from rape. It may be masturbation in public, masturbation in front of a child or a non-consenting adult, viewing masturbation in exchange for money (occasionally defined within prostitution), etc. Indeed, statutes have occasionally criminalized "victimless" masturbation (e.g., masturbating while watching a sleeping child or while a child is blindfolded playing a "game"). One hardly may classify it as a "new marcher."

Posted by: anon | May 21, 2008 12:02:11 PM

I would think that the main problem with arguing against "slippery slope" arguments is the propensity of courts to issue rulings from further down the slope at inconvenient times. Orin Kerr today notes a case in the 9th Circuit that extracts from Lawrence the further-down-the-slope proposition that heightened scrutiny applies to a case challenging the constitutionality of 10 U.S.C. § 654.

Posted by: Simon Dodd | May 21, 2008 3:30:55 PM

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