On the New Jersey decision and the slippery slope

This Volokh post discusses the phenomenon in the New Jersey same-sex marriage case that a list of statutes were possibly misused unjustly.

"Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law 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 saying 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." And see the 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."

. . .

Now maybe this entire discussion, though detailed and prominently placed, is all makeweight; maybe the court would have reached the same result even if such laws hadn't been enacted, and would have found that something else besides those laws "provide[s] committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples." But if we take the New Jersey Supreme Court at its word, it sounds like in New Jersey antidiscrimination laws, domestic partnership laws, and hate crime laws did indeed help bring about same-sex civil unions, just as they did in Vermont (PDF pages 59-61) and, as to same-sex marriage, in Massachusetts.

One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter (see PDF page 37), but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions)."

To apply this discussion to Virginia, I expect that from this day forward, any statute or other rule that implies protection against discrimination on the basis of sexual orientation will be opposed, citing the New Jersey case, on the basis that some future court will cite the new rule in support of something else quite different.