"You talk about the judges imposing "their" values. I hear this every time a court rules in favor of a gay side in a case. I find it more likly that they found the current standard to be unfair."
Yes, they imposed their values. This is not what courts should do. They should rule on what the law is.
You seem blase because they created a result you like. But how far are you willing to go with this:
1. Slippery slope arguments hold in these cases - tangential acceptance of one behavior is used to justify normalization of something far broader. Its fatuous legal reasoning, but it exists.
2. The slippery slope includes polygamy, incest and other forms of "adults marrying whomever they choose".
In other words, would you be as carefree about this if the court *imposed* polygamy, group marriages, and incestual marriages on your state? The slippery slope does indeed live, see:
http://volokh.com/2003_11_16_volokh_archive.html#106920841936722666
Eugene Volokh, 2:07 PM]
More "they said it would be like this": An editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] 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." (See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as isaying that "[t]hose 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."; Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A (rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages"),
From Goodridge v. Dep't of Public Health, the Massachusetts Supreme Judicial Court case finding a constitutional right to homosexual marriage:
Several amici suggest that prohibiting marriage by same-sex couples reflects community consensus that homosexual conduct is immoral. Yet Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation. See G.L. c. 151B (employment, housing, credit, services); G.L. c. 265, § 39 (hate crimes); G.L. c. 272, § 98 (public accommodation); G.L. c. 76, § 5 (public education). See also, e.g., Commonwealth v. Balthazar, 366 Mass. 298 (1974) (decriminalization of private consensual adult conduct); Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (custody to homosexual parent not per se prohibited).
So the Massachusetts Supreme Judicial Court's decision allowing homosexual marriage partly relied on the passage of that very antidiscrimination statute. Unless the court's argument was just makeweight (possible, but the court must have at least thought that the point would be persuasive to some readers, or else it wouldn't have included it), passage of the employment discrimination bill did take another step down the slope towards homosexual marriage, in the sense that it did make homosexual marriage more plausible. The very same thing happened in the Vermont Baker v. State civil union decision (see pp. 1083-86 of my Mechanisms of the Slippery Slope).
Again, this doesn't dispose of the merits of antidiscrimination laws, or of gay marriage. Perhaps it was good that the antidiscrimination law helped bring about gay marriage. But this is a reminder not to pooh-pooh slippery slope arguments. In a legal system built on analogy and precedent, where past decisions (even legislative decisions) are used as inputs to future decisions, the slippery slope can be a very real phenomenon -- which is to say that a proposed new legal rule may end up having indirect effects far beyond its own narrow scope.
FURTHER NOTE: More evidence of this tendency (whether good or bad) of past pro-homosexual-rights decisions to lead to homosexual marriage: The court rejects the argument that marriage can be straight-only because it's largely aimed at helping children -- "Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of . . . whether the parent or her partner is heterosexual, homosexual, or bisexual." So letting homosexuals adopt (a policy that I think is generally quite laudable) has indeed led to legitimatizing homosexual marriage, another example of slippery slope effects.
Polygamous and incestuous marriages: By the way, concerns that the Massachusetts homosexual marriage decision may lead to legalization of adult incestuous marriages and even polygamous marriages seem to me quite plausible. The court says that the parties "do not attack the binary nature of marriage" or "the consanguinity provisions." (See also footnote 34, "Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamous prohibitions of our marriage laws.") But the court's reasoning seems to apply equally to those, too.
The court reasons that "the right to marry means little if it does not include the right to marry the person of one's choice," but while it qualifies this as "subject to appropriate government restrictions in the interests of public health, safety, and welfare," it's far from clear that a court would find that "health, safety, and welfare" would be hurt by adult polygamous marriages (assuming all existing partners in the marriage consent to the addition of another). Likewise for adult brother-sister marriages; as I mentioned several months ago, I think the genetic harm argument doesn't really work here -- after all, we don't generally ban marriages between people who have serious genetic diseases, even if the odds of a defect in their children are much higher than for brother-sister marriages.
Similarly, the court rejects the government's "foster the best environment for raising children" argument by saying that "It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation." Seems to apply equally to children of polygamous marriages or of incestuous marriages. In fact, why isn't the desire to have multiple committed lifelong partners, or to have a relationship with one's sibling itself a "sexual orientation"?
I doubt the court would uphold a constitutional right to polygamous or incestuous marriages within the next year or two. But over time, if, for instance, a polygamists' rights movement arises -- not implausible, given that some religions practice polygamy -- a court might well do this, citing the Massachusetts decision as an eminently logically applicable precedent.
Some might think this wouldn't be very bad; and some might think that, even if it would be bad, it involves a modest probability of only a small harm, and having a constitutional right to homosexual marriage is right enough to justify that risk of a wrong consequence. But I don't think one can ridicule arguments that a constitutional right to homosexual marriage may lead to rights to polygamous or incestuous marriage. Given the text of the Massachusetts decision, the arguments seem eminently plausible.
Your last post was full of stuff I agree with, which is a refreshing turn.
Foremost, I have absolutely do doubt that should some future case involving incest or polygamy come around in Massachusetts, they will use what they can from this current ruling. They will use whatever they can. And it will be up to the judges of course, to discern the differences as it regards the MA constitution.
In terms of civil law, I'm not sure what exactly the incest side will be fighting for as many of the rights and privileges gay couples are looking for are their for family members. But I'm sure there will be something. And I agree that the genetic argument may be mute for the reasons you stated.
Disturbingly, if you have to take the genetic issue out of the argument (a thorny thing, that) it actually has me wondering if the con arguments would be strong enough to hold. It is a thoroughly creepy thought to me, but I'm aware of course, that homosexuality is no less creepy to many others. I myself try not to dwell on the mechanics of it much.
So does the slippery slope exist? Sure. Does it portend inevitability? No, but I certainly recognize its presence.
Still, I for one, am not about to argue that committed gay couples (I keep using that term, awkward as it is, as I want to distinguish from the gay equivalent of shacking up) have to be denied rights and privileges of married couples because of a concern about polygamy and incest - issues I'm sure are just as foreign and unacceptable to them as a whole as they are to us.