Abstract: A significant body of evidence
suggests that sexual orientation nondiscrimination laws like the
Employment Non-Discrimination Act (ENDA) can function as important
incremental steps toward same-sex marriage. This evidence, which
shows how effective a step-by-step strategy can be for redefining
marriage, provides substantial cause for individuals who support
marriage as the union of husband and wife to be concerned about
local, state, and federal nondiscrimination laws like ENDA.
Individuals who support marriage as the union of husband and
wife have strong reasons to be concerned about nondiscrimination
proposals like the Employment Non-Discrimination Act (ENDA). ENDA
would elevate "sexual orientation" to a protected status under
workplace nondiscrimination laws. Proponents often argue that
ENDA and similar laws at the state and local levels are focused
exclusively on workplace issues, but a large body of evidence
suggests that such legislation would also be viewed as, and in many
cases expressly intended to be, a significant step toward
redefining marriage to include homosexual unions.
This evidence includes substantial material from sources that
openly favor same-sex marriage. Legal scholars who support marriage
redefinition have described laws like ENDA as a key step on the
"incremental" path to same-sex marriage. Same-sex marriage advocates
have observed that intermediate measures like nondiscrimination
laws can "help bring marriage equality closer." Lawyers challenging
traditional marriage policies in court have cited nondiscrimination
laws in arguing that defining marriage as the union of husband and
wife is "utterly irrational" and constitutionally "suspect."
Several state courts have cited nondiscrimination laws in decisions
mandating same-sex marriage or some other form of legal recognition
for homosexual unions. And no state has legislatively redefined
marriage without first enacting a sexual orientation
Leading activists make no attempt to hide the fact that marriage
redefinition is a fundamental goal of the gay-rights movement.
Noted same-sex marriage advocate Andrew Sullivan, for example, has
described same-sex marriage as the "end of the slippery slope" for
homosexual men and women. Indeed, for many activists, same-sex
marriage is the "ultimate goal" and "crowning achievement."
Intermediate steps like nondiscrimination laws, while valued by
activists in their own right, are also viewed as significant
advances toward more fundamental goals, including recognition
through marriage for homosexual unions.
Given this evidence, individuals who support defining marriage
legally as the union of husband and wife have strong reasons to be
concerned about nondiscrimination laws like ENDA, even apart from
other concerns about such laws. Same-sex marriage
advocates have openly stated that nondiscrimination laws and other
gay-rights policies are important steps toward the more radical
goal of marriage redefinition. And an established history of
judicial and political activism demonstrates just how effective
such a "step-by-step" strategy can be. Individuals firmly opposed
to redefining marriage therefore have additional reasons to be
concerned about local, state, and federal laws like ENDA.
Statements by Legal Scholars and
Same-Sex Marriage Advocates
Several legal scholars who study the subject generally agree
that the path to same-sex marriage is incremental and involves
several key steps that build on each other. Yale Law Professor
William Eskridge, for example, writes that the "tried and true
path" to same-sex marriage is "incremental" and involves a
"step-by-step," "sequential" process. Professor Eskridge draws
support for this "[p]rinciple" from the observations of
Kees Waaldijk, a European scholar and expert on same-sex
marriage, who, like Eskridge, thinks the path to same-sex marriage
"involve[s] several small, sequential steps," where each step is a
"precursor and even a stimulant to the next." Professor
Waaldijk calls this process "the law of small change" and "the
trend of standard sequences."
In this view, elevating sexual orientation to a protected status
in nondiscrimination laws is a key step on the incremental path to
same-sex marriage. Yuval Merin, formerly a visiting scholar
with the Williams Institute at UCLA Law School, describes
nondiscrimination laws as an essential step in the "necessary
process" for legally recognizing homosexual unions.
Similarly, Professor Eskridge identifies nondiscrimination laws as
an important step toward the "legal recognition of same-sex
marriage." According to Professor Eskridge,
nondiscrimination laws "make it easier to recognize same-sex
unions" and states that implement them with other
gay-rights measures are the "most likely to take the next logical
step and recognize same-sex unions." Several scholars also
think that particular jurisdictions are unlikely to recognize
same-sex unions legally until they elevate sexual orientation to a
protected status in their nondiscrimination laws.
Like these scholars, same-sex marriage advocates outside the
academy also see laws like ENDA as an important step on the path to
same-sex marriage. Evan Wolfson, the founder and executive director
of Freedom to Marry, an organization committed to same-sex marriage
advocacy, has described local nondiscrimination laws as one of
several steps that can "help bring marriage equality closer."
Matthew Coles, the director of the ACLU's LGBT & AIDS Project,
has said that nondiscrimination laws are a "predicate" to making
progress on issues involving relationship recognition.
Mary Bonauto, the lead counsel in the Massachusetts same-sex
marriage case, has written that the Massachusetts same-sex marriage
case was the "logical next step of a decades-long process"
that included "enacting a sexual orientation non-discrimination
law." And "many observers," according to an
article in The Advocate,a leading LGBT news source, consider
ENDA to be one of the "crucial building blocks" for marriage
redefinition efforts federally.
An op-ed published in The Washington Blade, another LGBT
news source, discusses this concept even more figuratively. The
op-ed likens ENDA and other gay-rights legislation to the structure
of a house with civil unions as the "roof structure" and same-sex
marriage as the "shingles." "[T]here is a logical
progression to all of this," states the op-ed, "[y]ou don't build a
house upside down." This opinion reflects the thinking of
many activists that laws like ENDA are an important step on the
incremental path to same-sex marriage.
State Court Decisions Involving
Recognition of Same-Sex Unions
In marriage litigation throughout the country, same-sex marriage
advocates have cited sexual orientation nondiscrimination laws in
arguing that traditional marriage laws are unconstitutional. In
Massachusetts, California, and New York,
for example, same-sex marriage advocates have cited
nondiscrimination laws in arguing that sexual orientation is a
"suspect" or "quasi-suspect" classification deserving heightened
scrutiny. Lawyers for the City of San Francisco have cited
nondiscrimination laws and other gay-rights policies to argue that
defining marriage as a relationship between a man and a woman is
"totally inconsistent," "utterly irrational,"
"schizophrenic," and "entirely erratic." In some cases
advocates have cited nondiscrimination laws, more generally, as
evidence of a history or policy trajectory consistent with or
supporting marriage redefinition.
State courts in Vermont, Massachusetts, New Jersey, New York,
California, Connecticut, and Iowa have put some stock in this kind
of reasoning. Courts in each of these states have cited
sexual orientation nondiscrimination laws in decisions mandating
same-sex marriage or some other form of legal recognition for
homosexual unions. For instance:
The Vermont Supreme Court cited Vermont's sexual orientation
nondiscrimination laws as part of the "history, logic, and
experience" supporting the conclusion that "none of the interests
asserted by the State provides a reasonable and just basis" for
limiting the benefits of marriage to relationships between a man
and a woman.
The Massachusetts Supreme Judicial Court cited Massachusetts's
sexual orientation nondiscrimination laws in rejecting the argument
that a collective moral consensus disfavoring homosexual conduct
provided an adequate basis for defining marriage legally as the
union of husband and wife.
The New Jersey Supreme Court cited New Jersey's
nondiscrimination laws as evidence of an "evolving expansion of
rights" supporting some form of legal recognition for homosexual
A New York trial court cited New York's sexual orientation
nondiscrimination laws as evidence of an "evolving public policy"
reinforcing the court's decision to extend the "right to choice in
marriage" to homosexual couples.
The California Supreme Court cited California's sexual
orientation nondiscrimination laws in support of its conclusion
that "homosexualorientation" is not a "constitutionally legitimate
basis" for withholding the right to marry found in the California
The Connecticut Supreme Court, in determining how closely to
scrutinize Connecticut's traditional marriage laws, thought it was
"highly significant" that Connecticut had included sexual
orientation in its nondiscrimination laws.
And the Iowa Supreme Court, in applying a heightened level of
scrutiny in striking down Iowa's traditional marriage law, reasoned
that Iowa laws and regulations protecting sexual orientation
"express a desire to remove sexual orientation as an obstacle to
the ability of gay and lesbian people to achieve their full
These cases illustrate what UCLA Law Professor Eugene Volokh
describes as "the tendency of some legislative decisions to affect
future judicial decisions, even judicial decisions that cover
territory considerably beyond the original statute." By
citing nondiscrimination laws in judicial decisions involving the
much broader issue of marriage definition, these courts extended
the effect of those nondiscrimination laws beyond their original
scope. This case history provides another reason for individuals
who support marriage as the union of husband and wife to be
concerned about laws like ENDA.
Facilitating the Political Conditions
for Same-Sex Marriage
Same-sex marriage advocates also think that the enactment of
nondiscrimination laws and other gay-rights legislation can
facilitate the conditions for redefining marriage politically. In
certain European countries, for example, where marriage has been
redefined politically rather than judicially, the passage of sexual
orientation nondiscrimination laws was an important step in the
process. Similarly, in Vermont, New Hampshire, and
Maine--the only states in this country to have redefined marriage
legislatively--nondiscrimination laws were important precursors to
legal recognition through marriage for homosexual unions. As
one source observed after Maine established its nondiscrimination
law, "every piece of pro-gay legislation is another piece of the
treasure map, and, in Maine, activists aren't at all squirrelly
about their plan now."
According to several sources, an incremental strategy built on a
series of "small changes" can advance the political conditions for
same-sex marriage in at least three ways.
First, same-sex marriage advocates think that "[s]tep-by-step"
changes to the law can facilitate the "gradual adjustment" of
"public attitudes" about homosexuality. Advocates understand that,
"[c]ompared to legalizing same-sex marriage, prohibiting employment
discrimination on the basis of sexual orientation looks quite tame
to most Americans." However, "[o]nce the citizenry adjusts to
antidiscrimination laws...[,] it gradually becomes ready for civil
union. After another period of adjustment, [same-sex] marriage may
follow." In this view, enacting "small changes"
like ENDA can lead the public to see more radical changes like
same-sex marriage "as less extreme and thus more acceptable."
Second, success in passing incremental measures like
nondiscrimination laws can make it easier politically for elected
officials and swing voters to support more controversial measures
like same-sex marriage. Activists understand that more people will
support an issue that is "perceived to 'have momentum'"
and that political mobilization for one issue can translate into
support for other issues. Perhaps it was this understanding that
led Matthew Coles, an attorney with the ACLU, to state recently
that "passing ENDA and getting members on record will help us get
DOMA [the Defense of Marriage Act] repealed."
Third, a "small change" strategy allows activists to deflect
unwelcome attention from more radical goals while taking the
necessary intermediate steps to achieve them. For example, an op-ed
in The Washington Blade suggests that, for a certain time at
least, "[same-sex] marriage and civil unions should remain silent
issues--at least silent to the straight public. Tactics and
strategies can be formed behind closed doors, while focusing our
primary efforts on the passable issues." The op-ed makes clear that
passing nondiscrimination laws should be one of the primary
efforts. Other sources, more generally, have observed that
gay-rights activists might need to consider "a selective
withholding of information" and pointed to the story
of the Trojan Horse as an illustration of how "moderate discourse"
can lead to radical "transformation." Focusing on "small
changes" like nondiscrimination laws allows activists to manage
their messages, deflect criticism, and lay the groundwork for more
challenging goals like marriage redefinition.
In sum, many gay-rights activists understand that "[d]ismantling
the opposition piecemeal has always worked better." In
terms of democratic principles, addressing the question of whether
to redefine marriage using politically accountable legislatures is
certainly procedurally preferable to courts imposing that choice on
unwilling populations. But lawmakers who do not wish the
traditional understanding of marriage to be "dismantled piecemeal"
by any process should pay close attention to the power of changes
that seem "small" compared to more radical measures.
Ineffective Safeguards for
Lawmakers who object to laws like ENDA on the ground they could
lead to same-sex marriage might be pressured to drop their
objection in exchange for explicit statutory language stating that
such legislation should not be construed to support same-sex
marriage. History shows, however, that such measures can be
ineffective safeguards for marriage.
In Massachusetts, for example, when lawmakers were considering
whether to enact a sexual orientation nondiscrimination law, one
concern was that such legislation could lead to same-sex
marriage. Massachusetts lawmakers clarified that
nothing in the legislation should "be construed so as to legitimize
a 'homosexual marriage.'" But the Massachusetts
Supreme Judicial Court nevertheless cited Massachusetts's
nondiscrimination laws in redefining marriage for that state.
Similarly, the Connecticut legislature stipulated that its
decision to include sexual orientation in the state's
nondiscrimination laws should not be construed as authorizing "the
recognition of or the right of marriage between persons of the same
sex." As in Massachusetts, this measure failed
to stop the Connecticut Supreme Court from citing Connecticut's
nondiscrimination laws in a decision redefining marriage for that
When New York elevated sexual orientation to a protected status
in its nondiscrimination laws, lawmakers stipulated that the
legislation should not be construed to "create, add, alter or
abolish any right to marry" that may exist under federal or state
law. In a decision redefining marriage, a New
York trial court noted the statutory construction provision, but
nevertheless concluded that the nondiscrimination law "clearly
evinces a public policy choice by the legislative and executive
branches in favor of eliminating discrimination based on sexual
orientation." The trial court's decision to redefine
marriage was overturned on appeal, but nevertheless demonstrates
that political compromises constituting "small steps" toward
same-sex marriage can facilitate significant, unintended, and even
expressly disavowed consequences.
Iowa lawmakers also made clear that the state's sexual
orientation nondiscrimination laws should "not be construed to
allow marriage between persons of the same sex." The Iowa Supreme
Court, though insisting it was not violating this legislative
dictate, nevertheless cited Iowa's
nondiscrimination laws in redefining marriage and expressly relied
on the "legislative judgment" underlying those laws in subjecting
Iowa's definition of marriage as one man and one woman to
Similar compromises in the guise of statutory construction
language also might be proffered at the federal level. The version
of ENDA under consideration currently, for example, though not
going nearly as far as the statutory construction language in the
state statutes discussed above, would expressly incorporate the
definition of marriage set forth in the Defense of Marriage Act.
There is no reason to conclude, however, that such measures at the
federal level would provide any more protection than similar
measures provided in Massachusetts, Connecticut, and Iowa.
Even if courts redefining marriage do not, in a strict sense,
construe nondiscrimination laws as creating, allowing, or
authorizing same-sex marriage, one cannot deny the effect that
nondiscrimination laws and other gay-rights policies might very
well have on marriage cases. As the state court precedents set
forth in the previous section demonstrate, some courts might cite
nondiscrimination laws in support of decisions subjecting marriage
laws to a higher level of scrutiny, which means that public
officials would be required to provide more compelling reasons for
defining marriage as the union of husband and wife than otherwise
would be the case. Those precedents also demonstrate that some
courts might cite nondiscrimination laws and other gay-rights
legislation as evidence that society has abandoned certain precepts
undergirding a policy of defining marriage as the union of husband
and wife or as evidence that society has embraced an evolving
public policy of protecting homosexuality, either of which could
make it more difficult for state officials to defend marriage even
if nondiscrimination laws contain provisions stating they should
not be interpreted to allow same-sex marriage. Furthermore, such
statutory construction provisions can even backfire, as in
Connecticut, where the court cited statutory construction language
in Connecticut's nondiscrimination law as evidence that the state
had disfavored homosexuality in a way that supported scrutinizing
the state's marriage law more closely. Provisions intended to
prevent nondiscrimination laws from being construed to undermine
marriage as the union of husband and wife are inadequate to
safeguard marriage from the potential effects of enacting such
Lawmakers Who Support Marriage Have
Serious Reasons to Be Concerned About Laws Like ENDA
Suggestions that laws like ENDA could lead to same-sex marriage
have been "pooh-poohed," decried as a "sham," and flatly
denied. But the evidence discussed in this paper
shows that slippery slope concerns about ENDA and similar laws at
the state and local levels are well founded and cannot be summarily
Indeed, concerns about marriage justify serious reservations
about measures like ENDA for at least four reasons.
First, although many activists might deny that same-sex marriage
is itself a stepping stone to more-radical social and legal
outcomes, there is no question that activists are committed to
achieving the future outcome under consideration with respect to
nondiscrimination laws--that is, same-sex marriage. Gay-rights
activists seek to redefine marriage to include homosexual unions
and, in arguing that civil unions and domestic partnerships
perpetuate discrimination and fall short of the ultimate goal, have
demonstrated an intention to settle for nothing less than same-sex
Second, several same-sex marriage advocates have openly stated
that passing laws like ENDA is an important step toward marriage
redefinition. If same-sex marriage advocates think that the
judicial, political, and cultural movement for same-sex marriage
depends on a series of "small changes" like ENDA, then individuals
who think that marriage is the union of husband and wife have more
than sufficient justification to be concerned about laws like ENDA.
This is especially true when lawyers have cited nondiscrimination
laws in legal briefs arguing that defining marriage as the union of
husband and wife violates constitutional principles.
Third, laws like ENDA have already proved to be an important
step toward legal recognition for homosexual unions in several
states throughout the country. In states including Vermont,
Massachusetts, New Jersey, New York, California, Connecticut, and
Iowa, courts have cited sexual orientation nondiscrimination laws
in decisions mandating same-sex marriage or some other form of
legal recognition for homosexual unions. And no state has
legislatively redefined marriage without first enacting a sexual
orientation nondiscrimination law.
Fourth, history shows that legislative compromises designed to
safeguard marriage from the effects of laws like ENDA can be
ineffective. In Massachusetts, Connecticut, and Iowa, for example,
where lawmakers clarified that laws like ENDA should not be
construed to allow same-sex marriage, courts nonetheless cited
nondiscrimination laws in decisions redefining marriage. The
Connecticut Supreme Court even cited that state's statutory
construction language as evidence reinforcing the court's standard
for reviewing the marriage laws in that state.
There is no question that unjust discrimination should be
opposed in every instance. It is also true, however, that this
principle does not automatically justify support for measures that
would elevate sexual orientation to a protected status like race.
Indeed, no matter what one thinks about homosexuality and same-sex
marriage, there are several reasons to be concerned about
nondiscrimination laws that govern the conduct of private
citizens. Whatever other concerns might exist,
however, the growing body of evidence demonstrating a connection
between nondiscrimination laws and marriage redefinition provides
solid grounds for lawmakers who support marriage as the union of
husband and wife to be seriously concerned about local, state, and
federal measures like ENDA.
Messner is a Visiting Fellow in the Richard and Helen DeVos
Center for Religion and Civil Society at The Heritage