Try not to look too far ahead, but keep your eyes on the future.

Pulled from the Wall Street Journal editorial pages:
The week Massachusetts starts marrying same-sex couples, Slate's Dahlia Lithwick mocks the "slippery slope" argument against same-sex marriage, an argument most recently offered by James Dobson of Focus on the Family in a Monday interview:

"You could have polygamy. You could have incest. You could have marriage between a father and a daughter. You could have two widows, or two sisters or two brothers. . . . Once you cross that Rubicon, then there's no place to stop. Because if a judge can say two men and two women can marry, there is no reason on Earth why some judge some place is not going to say, this is not fair. Three women or three men, or five and two or five and five."

Last year, Sen. Rick Santorum made a similar argument about Lawrence v. Texas, a then-pending case challenging state sodomy laws: "If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."

And in his Lawrence dissent, Justice Antonin Scalia wrote: "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision."

These comments drew howls from gay-rights advocates, most of whom, we suspect, were objecting to the implication that homosexuality was comparable to practices like incest and bestiality, which most everyone still agrees are deviant. But Lithwick thinks the slippery-slope argument itself is fundamentally flawed: "The problem with the slippery slope argument is that it depends on inexact, and sometimes hysterical, comparisons," she writes. Also: "Slippery slopes are only metaphors. They are not intrinsic principles of law."

Yet the way American constitutional law works, slippery slopes are almost inevitable--a point that is more easily understood if we think of same-sex marriage as coming at the end of such a slope rather than the beginning.

In 1868 Congress and the states ratified the 14th Amendment, the first section of which was designed to protect the rights of black Americans, newly freed from slavery. But the amendment's language was much more sweeping:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 14th Amendment was the basis for the landmark Brown v. Board of Education decision of 1954, which declared unconstitutional the segregation of government schools. But it has also been the basis for a series of other court decisions that have profoundly affected American life but have nothing to do with the rights of blacks.

The equal protection clause has been construed to apply to various sorts of nonracial discrimination, while the doctrine of "incorporation" has led to myriad restrictions on state policy in the name of enforcing the Bill of Rights (including judicially discovered rights like privacy), which originally limited only the federal government.

A partial list of the Supreme Court-driven changes we owe to the 14th Amendment:

The ban on prayer in government schools and other restrictions on religious expression in public venues (Engel v. Vitale, 1962, and subsequent decisions).


The establishment of a constitutional right to contraception (Griswold v. Connecticut, 1965).


The right to abortion (Roe v. Wade, 1973).


The right, subject to limits that are minimal in practice, to distribute pornography (Miller v. California, 1973).


The abolition of all state laws against consensual gay sodomy (Lawrence v. Texas, 2003).
Same-sex marriage isn't on this list yet, because the U.S. Supreme Court hasn't spoken on the issue. But the Massachusetts Supreme Judicial Court relied heavily on Lawrence in its decision mandating it last year--proving that Scalia was correct in at least one aspect of his slippery-slope argument.

The point of this list is not to make a judgment as to whether any of these cases were good law or good policy. It is simply to underscore the extreme unlikeliness that the framers of the 14th Amendment could have foreseen any of these results in 1868.

Yet there is a logical progression from the sweeping language of the 14th Amendment to the jurisprudence of the late 20th and early 21st centuries. Once the court had established a right to marital privacy in Griswold, it wasn't that much of a leap to expand it to include unmarried people, abortion and homosexuality. Indeed, the court's 1986 decision in Bowers v. Hardwick, which declined to strike down sodomy laws, left the court's privacy doctrine looking incoherent: If government was to stay out of abortion clinics, what business did it have in the bedrooms of consenting adults?
Imagine if a conservative Southern politician had reacted to Brown v. Board of Education in 1954 by issuing the following prediction: "If the court can strike down our precious institution of segregation, are there any limits? One day it will affirm the right to practice sodomy, and men will even marry men." History would have recorded this as a bigoted and hysterical pronouncement. But purely as a matter of prognostication, our hypothetical politician would have been proved right. At least where the law is concerned, one shouldn't be too quick to scoff at slippery-slope arguments.

FULL STORY:http://www.opinionjournal.com/best/?id=110005113