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).[1] ENDA
would elevate "sexual orientation" to a protected status under
workplace nondiscrimination laws.[2] 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.[3] Same-sex marriage advocates
have observed that intermediate measures like nondiscrimination
laws can "help[] bring marriage equality closer."[4] 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"[5] and constitutionally "suspect."[6]
Several state courts have cited nondiscrimination laws in decisions
mandating same-sex marriage or some other form of legal recognition
for homosexual unions.[7] And no state has legislatively redefined
marriage without first enacting a sexual orientation
nondiscrimination law.[8]
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.[9] Indeed, for many activists, same-sex
marriage is the "ultimate goal" and "crowning achievement."[10]
Intermediate steps like nondiscrimination laws, while valued by
activists in their own right, are also viewed as significant
advances toward more fundamental goals,[11] 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.[12] 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"[13] and involves a
"step-by-step," "sequential" process.[14] Professor Eskridge draws
support for this "[p]rinciple"[15] from the observations of
Kees Waaldijk,[16] 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."[17] Professor
Waaldijk calls this process "the law of small change" and "the
trend of standard sequences."[18]
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.[19] 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.[20]
Similarly, Professor Eskridge identifies nondiscrimination laws as
an important step toward the "legal recognition of same-sex
marriage."[21] According to Professor Eskridge,
nondiscrimination laws "make it easier to recognize same-sex
unions"[22] 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."[23] 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.[24]
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."[25]
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.[26]
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"[27]
that included "enacting a sexual orientation non-discrimination
law."[28] 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.[29]
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."[30] "[T]here is a logical
progression to all of this," states the op-ed, "[y]ou don't build a
house upside down."[31] 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,[32] California,[33] and New York,[34]
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,"[35] "utterly irrational,"[36]
"schizophrenic,"[37] and "entirely erratic."[38] In some cases
advocates have cited nondiscrimination laws, more generally, as
evidence of a history or policy trajectory consistent with or
supporting marriage redefinition.[39]
State courts in Vermont, Massachusetts, New Jersey, New York,
California, Connecticut, and Iowa have put some stock in this kind
of reasoning.[40] 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.[41]
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.[42]
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
unions.[43]
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.[44]
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
Constitution.[45]
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.[46]
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
potential."[47]
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."[48] 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.[49]
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.[50] 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.[51] 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."[52]
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.[53] 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."[54] 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."[55] 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."[56]
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'"[57]
and that political mobilization for one issue can translate into
support for other issues.[58] 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."[59]
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."[60] 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"[61] and pointed to the story
of the Trojan Horse as an illustration of how "moderate discourse"
can lead to radical "transformation."[62] 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."[63] 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
Marriage
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.[64] Massachusetts lawmakers clarified that
nothing in the legislation should "be construed so as to legitimize
or validate
a 'homosexual marriage.'"[65] But the Massachusetts
Supreme Judicial Court nevertheless cited Massachusetts's
nondiscrimination laws in redefining marriage for that state.[66]
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."[67] 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
state.[68]
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.[69] 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."[70] 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."[71] The Iowa Supreme
Court, though insisting it was not violating this legislative
dictate,[72] 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
heightened scrutiny.[73]
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.[74]
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.[75] 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
laws.
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,"[76] decried as a "sham,"[77] and flatly
denied.[78] 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
dismissed.[79]
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
marriage.
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.
Conclusion
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.[80] 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.
Thomas M.
Messner is a Visiting Fellow in the Richard and Helen DeVos
Center for Religion and Civil Society at The Heritage
Foundation.
[2]Both
the Senate and House versions of ENDA would define "sexual
orientation" as "homosexuality," "bisexuality," or
"heterosexuality." S. 1584, § 3(a)(9); H.R. 3017, §
3(a)(9).
[3]William N. Eskridge, Jr., Equality Practice:
Civil Unions and the Future of Gay Rights xiii (2002). See also
infra notes 19-24 and associated text.
[7]See infra notes 40-49 and associated
text.
[8]Compare National Gay and Lesbian Task
Force, Relationship Recognition for Same-Sex Couples in the U.S.
(last updated July 2009) (showing years that Vermont, New
Hampshire, and Maine redefined Marriage), available at http://www.thetaskforce.org/downloads/reports/issue_maps/relationship
_recognition_07_09_color.pdf, with National Gay and
Lesbian Task Force, State Nondiscrimination Laws in the U.S. (last
updated July 1, 2009) (showing years that Vermont, New Hampshire,
and Maine adopted sexual orientation nondiscrimination laws),
available at http://www.thetaskforce.org/downloads/
reports/issue_maps/non_discrimination_7_09_color.pdf.
[10]Eskridge, supra note 3, at 2
(describing development of views of "many GLBT people"). See
also Sean Cahill & Bryan Kim-Butler,National Gay &
Lesbian Task Force, Policy priorities for the LGBT community: Pride
Survey 2006, at 7 (2006) (reporting that more survey respondents
"chose 'Marriage equality/partner recognition' as a 'policy
priorit[y] for the LGBT community' than any other issue"),
available at http://www.thetaskforce.org/downloads/
reports/reports/2006PrideSurvey.pdf; Evan Wolfson, Why
Marriage Matters: America, Equality, and Gay People's Right to
Marry 123-44, 191-92 (2004) (explaining that only full Marriage
Rights, including the word "Marriage," is satisfactory); C. Matthew
Hill, Note, "We Live Not on What We Have": Reflections on the
Birth of the Civil Rights Test Case Strategy and Its Lessons for
Today's Same-Sex Marriage Litigation Campaign, 19 Nat'l Black
L.J. 175, 196 (2006-2007) (stating that same-sex Marriage
"currently ranks as the first priority for many gay Rights
organizations" (emphasis added)).
[11]See Kees Waaldijk, Towards the
Recognition of Same-Sex Partners in European Union Law,
inLegal Recognition of Same-Sex Partnerships: A Study of
National, European and International Law 638-39 (Robert Wintemute
& Mads Andenaes eds., 2001) (recognizing that
"anti-discrimination provisions" have some "practical effects" but
stating that the "primary importance of [such] intermediate
symbolic legislation may well lie in its paving the way for such
practical legislation on [same-sex] partnership and parenting");
Matthew Coles, Director, Lesbian, Gay, Bisexual, Transgender and
AIDS Project of the American Civil Liberties Union, Remarks at Ohio
State University Moritz College of Law (Apr. 16, 2009) (hereinafter
Coles Remarks) (stating that "the point" of nondiscrimination laws
"is to create a social discussion, a social discussion in which
people agree that sexual orientation discrimination is wrong, and
then can move on to a discussion of relationships"), available
at http://moritzlaw.osu.edu/podcasts/events/090416_matt_coles.mp3;
see alsoJames W. Button et al., Private Lives, Public
Conflicts 130 (1997) (not discussing Marriage but stating that the
"actual adoption of laws or policies protecting gay Rights was
important beyond its substantive effect on preventing
discrimination").
[12]See infra at note 80.
[13]Eskridge, supra note 3, at xiii.
Similarly, University of Minnesota Law Professor Dale Carpenter has
discussed the "incremental path to gay Marriage," Posting of Dale
Carpenter to volokh.com, http://volokh.com
/posts/1131148084.shtml (Nov. 4, 2005, 5:48 PM), and has
stated that incrementalism "must" be a "guidepost[] in the battle
for gay Marriage," Dale Carpenter, Spousal Rights by Increments:
California Shows the Way, Indep. Gay Forum, Nov. 25, 2004, http://www.indegayforum.org/news/printer
/26682.html.
[14]Eskridge, supra note 3, at 154
(emphasis in second quotation omitted). See alsoWilliam N.
Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 320
(1999) ("Equality comes on little cat's feet, not in a single
step.").
[15]Eskridge, supra note 3, at 115.
[16]See id. at 115, 153-54 (citing
Kees Waaldijk, Small Change: How the Road to Same-Sex Marriage
Got Paved in the Netherlands, inLegal Recognition of
Same-Sex Partnerships: A Study of National, European and
International Law, supra note 11).
[17]Kees Waaldijk, Others May Follow: The
Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for
Same-Sex Couples in European Countries, 38 New Eng. L. Rev.
569, 577 (2004) (discussing Marriage redefinition in the
Netherlands as an example of "the 'law of small change' and the
'trend of standard sequences'"). See also Waaldijk,
Towards the Recognition of Same-Sex Partners in European Union
Law, supra note 11, at635, 637-38.
[18]Kees Waaldijk, Others May Follow,
supra note 17, at 577 (internal quotations omitted). See
also Waaldijk, Towards the Recognition of Same-Sex Partners
in European Union Law, supra note 11, at636-39
(discussing "The Trend of Steady Progress," "The Trend of Standard
Sequences," "The 'Law of Small Change'," and "The 'Law of Symbolic
Preparation'"); Yuval Merin, Equality for Same-Sex Couples 326
(2002) (citing Professor Waaldijk in arguing that there is a
"standard pattern or process...toward a high level of recognition
of same-sex partnerships").
[19]See Eskridge, supra note 3, at
xiv (discussing key steps toward same-sex Marriage, including
"state laws prohibiting public and private discriminations against
sexual and gender minorities"); Merin, supra note 18, at 309
(stating that nondiscrimination laws are a "prerequisite[]" for
"expansive recognition of same-sex partnerships"); Greg Johnson,
Civil Union, A Reappraisal, 30 Vt. L. Rev. 891, 908 (2006)
(discussing nondiscrimination laws as a precursor to Legal
recognition of same-sex unions); Developments in the Law--The
Law of Marriage and Family, Inching Down the Aisle: Differing Paths
Toward the Legalization of Same-Sex Marriage in the United
States and Europe, 116 Harv. L. Rev. 2004, 2012 (2003) (listing
sexual orientation nondiscrimination laws as one of the key steps
in the progression toward Legal recognition for homosexual unions
in Vermont); Waaldijk, Others May Follow, supra note
17, at 577-78 & n.43 (stating that Marriage redefinition in the
Netherlands was "contingent" on intermediate steps including "the
introduction of anti-discrimination laws").
[21]Eskridge, supra note 3, at 154. See
also id. at xiii-xiv, 118; William N. Eskridge, Jr.,
Equality Practice: Liberal Reflections on the Jurisprudence of
Civil Unions, 64 Alb. L. Rev. 853, 876 (2001).
[22]Eskridge, supra note 3, at 118.
[23]Id. at 232. See also
William N. Eskridge, Jr. & Darren R. Spedale, Gay Marriage: For
Better or for Worse? 88 (2006) (listing the enactment of sexual
orientation nondiscrimination laws as a factor in identifying those
"countries most likely to recognize same-sex marriages or
partnerships"); Merin, supra note 18, at 334 (stating that
"states with antidiscrimination laws should be ripe for legislative
introduction of a version of civil unions").
[24]SeeEskridge, supra note 3, at
232 (stating that "states in this country are unlikely to adopt
such recognition [of lesbian and gay unions] as long as they have
criminal sodomy laws and no antidiscrimination laws"); Merin,
supra note 18, at 309 (stating that "the enactment of
antidiscrimination legislation" is a "prerequisite[]" for
"expansive recognition of same-sex partnerships"); id. at
336 (stating that even where sodomy laws have been repealed "most
U.S. states would still have to provide gays protection from
discrimination before they would be ready to consider same-sex
Marriage"); Johnson, supra note 19, at 908 (stating that
"even a 'compromise' like civil union is not likely to come about
in a state that does not have an antidiscrimination statute in
place"); Waaldijk, Others May Follow, supra note 17,
at 577-78 (stating the Legal recognition of same-sex Marriage in
the Netherlands was "contingent" on the decriminalization of
homosexuality and the introduction of nondiscrimination laws).
[25]Wolfson, supra note 4.
[26]Coles Remarks, supra note 11 (stating
that "nondiscrimination laws and the public conversation that goes
with them are really a predicate to doing anything serious on
relationships"), available at http://moritzlaw.osu.edu
/podcasts/events/090416_matt_coles.mp3. In the same remarks,
Mr. Coles also describes nondiscrimination laws as part of the
"groundwork" required for repealing state constitutional amendments
that define Marriage as the union of husband and wife. See
id.
[27]Mary L. Bonauto, Goodridge in Context,
40 Harv. C.R.-C.L. L. Rev. 1, 2 (2005).
[28]Id. at 10. See alsoWilliam N.
Eskridge, Jr., Dishonorable Passions: Sodomy Laws in America 357-58
(2008) (associating Massachusetts's "broad antidiscrimination law"
with "normative shift" that "made Goodridge possible");
Daniel R. Pinello, America's Struggle for Same-Sex Marriage 34
(2006) (stating that "roots" of the movement for same-sex Marriage
in Massachusetts "go back at least to 1989" when Massachusetts
"include[d] sexual orientation in statewide laws banning
discrimination in employment and public accommodations"); Freedom
to Marry, History and Timeline of Marriage, http://www.freedomtomarry.org/get_informed/Marriage_basics
/history_overview.php (last visited Feb. 4, 2009) (stating
that same-sex couples who filed the Massachusetts same-sex Marriage
case were "building on" previous developments that included
"protections" in employment).
[29]Sean Kennedy, A Tipping Point, Year?,
Advocate, Jan. 15, 2008, at 3 (stating that "many observers" agree
that federal hate crimes legislation and ENDA are "crucial building
blocks" in the "ongoing effort to gain federal Marriage equality"),
available at http://advocate.com/issue_story_ektid
50926.asp?page=3. See also Posting of Matt Coles to
pamshouseblend.com, http://www.pamshouseblend.com/diary/12380/the-value-of-a-little-history
-the-myth-of-a-big-federal-fix (Aug. 6, 2009, 14:52:37 PM EDT)
(stating that "passing ENDA and getting members on record will help
us get DOMA repealed").
[32]See Brief of Plaintiffs-Appellants at
77-78, Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass.
2003) (No. SJC 08860) (citing Massachusetts's sexual orientation
nondiscrimination laws in arguing that homosexual men and woman
form a "[s]uspect [c]lass"); see also id. at 90 &
n.55 (citing Massachusetts's sexual orientation nondiscrimination
laws as evidence that the Massachusetts legislature had explicitly
"acknowledged gay people to form a distinct group").
[33]See Respondents' Opening Brief on the
Merits at 30, 32-33, In re Marriage Cases, 183 P.3d 384
(Cal. 2008) (No. S147999) (citing California's nondiscrimination
laws in arguing that "sexual orientation is [not] a proper basis
for differential treatment of individuals" and should be considered
a "suspect classification"), available at http://www.courtinfo.ca.gov/courts
/supreme/highprofile/documents/05Rymer_Opening_Brief_on_the
_Merits.pdf; Opening Brief on the Merits at 33, In re
Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999) (arguing
that "steps taken by both California courts and the California
legislature to protect individuals from discrimination based upon
their sexual orientation support the conclusion that statutes which
discriminate using classifications based upon sexual orientation
are 'suspect' and require strict judicial scrutiny"), available
at http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/
02clinton_openbrief.pdf; Petitioner City and County of San
Francisco's Opening Brief on the Merits at 63-64, In re
Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999) (citing
California's nondiscrimination laws in arguing that "lesbians and
gay men are a suspect class for equal protection purposes"),
available at http://www.courtinfo.ca.gov/courts/supreme/
highprofile/documents/06San_Francisco_Opening_Brief_on_Merits_
(Part_2).pdf.
[34]See Brief for Plaintiffs-Appellants at
64, 65 & n.37, 67 & n.39, Hernandez v. Robles, 821 N.Y.S.2d
770 (N.Y. 2006) (Nos. 86-89) (citing New York's sexual orientation
nondiscrimination laws in arguing that sexual orientation
classifications deserve heightened scrutiny), available at
/static/reportimages/141638CE48F65C0FA08130C16383F978.pdf; see
also Brief of Amici Curiae Parents, Families &
Friends of Lesbians and Gays, Inc., Family Pride Coalition, Human
Rights Campaign, Human Rights Campaign Foundation, and The New York
City Gay & Lesbian Anti-Violence Project in Support of
Plaintiffs-Respondents at 9, 13-14, Hernandez v. Robles, 805
N.Y.S.2d 354 (N.Y. App. Div. 2005) (citing sexual orientation
nondiscrimination laws in arguing that New York courts "may treat
sexual orientation as a suspect classification" (capitalization and
formatting altered)), available at /static/reportimages/58968CA188169E7BD164CEDEB422B07A.pdf.
[36]Id. (capitalization and formatting
altered).
[39]See Brief of the Plaintiffs-Appellants
at 9, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008)
(No. 17716) (citing Connecticut's sexual orientation
nondiscrimination laws as one of the steps in the "journey of
Connecticut lawmakers in confronting and eliminating aspects of
discrimination against lesbian and gay people"), available
at http://www.glad.org/uploads/docs/cases/2006-11-22-kerrigan-supreme
-court-brief.pdf; see also Brief Amici Curiae of
Iowa Professors of Law and History at 5-6, Varnum v. Brien, 763
N.W.2d 862 (Iowa 2009) (No. 07-1499) (citing Iowa's sexual
orientation nondiscrimination law as evidence of Iowa's
"longstanding commitment to equality"), available at http://data.lambda
legal.org/pdf/Legal/varnum/iowa-historians-and-law-professors-iowa
-supreme-court-brief.pdf; Petitioner City and County of San
Francisco's Opening Brief on the Merits at 15-16, In re
Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999) (citing
sexual orientation nondiscrimination laws as part of California's
"evolving recognition of the humanity of its gay and lesbian
citizens"), available at http://www.courtinfo.ca.gov/courts/supreme/
highprofile/documents/05San_Francisco_Opening_Brief_on_Merits_(Part_1)
.pdf;Memorandum of Law in Support of Plaintiffs' Motion
for Summary Judgment at 47, 49 & n.43, Hernandez v. Robles, 794
N.Y.S.2d 579 (N.Y. Sup. 2005) (No. 103434/2004) (citing New York's
sexual orientation nondiscrimination law in discussion of "New
York's evolving history of respect for and protection of same-sex
relationships"), available at /static/reportimages/2AF5A7F66F1AFA17676BB2B45F6D927E.pdf.
[40]UCLA Law Professor Eugene Volokh has written
on several occasions about how the enactment of sexual orientation
nondiscrimination laws and other gay-rights legislation can and has
influenced judicial reasoning in Marriage cases. See Eugene
Volokh, Same-Sex Marriage and Slippery Slopes, 33 Hofstra L.
Rev. 1155, 1160-61 (2005); Eugene Volokh, The Mechanisms of the
Slippery Slopes, 116 Harv. L. Rev. 1026, 1084-87 (2003);
Posting of Eugene Volokh to volokh.com, http://volokh.com/archives/archive_2009
_04_05-2009_04_11.shtml#1238948132 (Apr. 6, 2009, 12:21 PM)
(hereinafter Volokh April 6, 2009 posting); Posting of Eugene
Volokh to volokh.com, http://volokh.com/posts/1210877596.shtml (May
15, 2008, 2:53 PM) (hereinafter Volokh May 15, 2008 posting);
Posting of Eugene Volokh to volokh.com, XREF http://volokh.com/archives/archive_2006
_10_22-2006_10_28.shtml#1161812027 (Oct. 25, 2006, 5:33 PM)
(hereinafter Volokh October 25, 2006 posting); Posting of Eugene
Volokh to volokh.com, http://www.volokh.com/posts/1124298617.shtml
(Aug. 17, 2005, 1:10 PM) (hereinafter Volokh August 17, 2005
posting).
[41]Baker v. State, 744 A.2d 864, 886 (Vt. 1999).
See id. at 885-86 (citing sexual orientation
nondiscrimination laws); id. at 902 n.5 (Johnson, J.,
concurring in part and dissenting in part) (stating that, "as both
the majority and concurrence acknowledge, allowing same-sex couples
to obtain the benefits and protections of Marriage is a logical
extension of Vermont's legislatively enacted public
policy prohibiting discrimination on the basis of sex and
sexual orientation, decriminalizing consensual homosexual conduct
between adults, and permitting same-sex partners to adopt children"
(internal citations omitted and emphasis added)); Volokh, The
Mechanisms of the Slippery Slopes, supra note 40, at
1084- 85 (stating that a "major part of the [Vermont Supreme]
[C]ourt's stated reason" for its decision was the "legislature's
previous decisions to enact" gay-rights legislation including
legislation "prohibiting private discrimination based on sexual
orientation"); see also Merin, supra note 18, at
332-33 (citing Vermont and its adoption of sexual orientation
nondiscrimination laws as an illustration of the "necessary
process" leading to recognition for same-sex unions); Johnson,
supra note 19, at 906 (stating that Vermont provides a "good
example" of the step-by-step process described by Professor
Eskridge).
[42]Goodridge v. Dep't of Pub. Health, 798 N.E.2d
941, 967-68 (Mass. 2003). See also Volokh,
Same-Sex Marriage and Slippery Slopes, supra note 40,
at 1161 (stating that "part of [the court's] reasoning rested on
the legislature's decision to ban sexual orientation
discrimination"); Volokh August 17, 2005 posting, supra note
40.
[43]Lewis v. Harris, 908 A.2d 196, 212 (N.J.
2006). See id. at 212-15 (citing nondiscrimination laws and
other gay-rights policies); see also Volokh October 25, 2006
posting, supra note 40 (discussing how sexual orientation
nondiscrimination laws influenced the decision of the New Jersey
Supreme Court and stating that the decision "seems to be an
illustration that the slippery slope is a real phenomenon").
[44]Hernandez v. Robles, 794 N.Y.S.2d 579, 607
(N.Y. Sup. 2005), rev'd, 805 N.Y.S.2d 354 (N.Y. App. Div.
2005), aff'd, 821 N.Y.S.2d 770 (N.Y. 2006). This decision
was overturned on appeal, see 805 N.Y.S.2d 354 (N.Y. App.
Div. 2005), aff'd, 821 N.Y.S.2d 770 (N.Y. 2006), but
demonstrates the receptiveness of judges to this type of reasoning,
see 794 N.Y.S.2d at 606 (N.Y. Sup. 2005) (citing
nondiscrimination laws); see also 821 N.Y.S.2d at 796-97
(N.Y. 2006) (Kaye, C.J., dissenting) (citing legislative findings
associated with New York's sexual orientation legislation in
concluding that homosexual persons constitute a suspect class for
purposes of equal protection analysis).
[45]In re Marriage Cases, 183 P.3d 384,
429 (Cal. 2008), superseded by constitutional amendment as
stated in Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
See In re Marriage Cases, 183 P.3d at 428 & n.46
(citing nondiscrimination laws); see also Volokh May 15,
2008 posting, supra note 40.
[46]Kerrigan v. Comm'r of Pub. Health, 957 A.2d
407, 435 (Conn. 2008). See also id. at 447-48, 451-52
(additional citation of nondiscrimination laws).
[47]Varnum v. Brien, 763 N.W.2d 862, 891 (Iowa
2009). See also Volokh April 6, 2009 posting, supra
note 40. The Iowa Supreme Court bolstered its reliance on Iowa's
nondiscrimination laws by observing that the Connecticut Supreme
Court had "[relied] on Connecticut statutes banning discrimination
based on sexual orientation." Varnum, 763 N.W.2d at 891 n.20.
[48]Volokh May 15, 2008 posting, supra
note 40. In addition to these cases, a dissenting opinion in the
Maryland Marriage case thought the existence of nondiscrimination
laws was "highly significant" in determining "whether Maryland's
Marriage law is rationally related to a legitimate governmental
interest." Conaway v. Deane, 932 A.2d 571, 639 (2007) (Raker, J.,
concurring in part and dissenting). This opinion, which would have
required Maryland to extend the Rights and benefits of Marriage to
same-sex couples but not necessarily to redefine "Marriage," see
id. at 636-37, considered nondiscrimination laws and other
gay-rights policies in asserting that "discrimination on the basis
of sexual orientation is against the law in this State" and the
state's justification of its Marriage policy must be analyzed in
this "context," id. at 639. Although the controlling opinion
in that case cited nondiscrimination laws as evidence that
homosexual persons, as a class, exercise political influence, a
factor in determining there was no suspect class, see
id. at 611-14; see also Andersen v. King County, 138
P.3d 963, 974-75 (Wash. 2006) (plurality) (same), the opinion by
Judge Raker provides additional evidence of the receptivity of
judges to the types of arguments advanced by advocates of same-sex
Marriage in this context, see, e.g., Brief of Amici
Curiae Organization of American Historians et al. at 42-43,
Conaway v. Deane, 932 A.2d 571 (2007) (No. 44) (arguing that
same-sex Marriage is "consistent with" the establishment of sexual
orientation nondiscrimination laws and policies, which "reflect a
public policy commitment in Maryland to full Legal and social
equality for gay and lesbian people in this state"), available
at http://www.aclu.org/images/asset_upload
_file152_27248.pdf.
[49]The establishment of nondiscrimination laws
and policies can also influence executive officials. See
Letter from Patrick C. Lynch, Attorney General, State of Rhode
Island, to Jack R. Warner, Commissioner, Rhode Island Board of
Governors for Higher Education at 6 (Feb. 20, 2007) (stating that
Rhode Island's sexual orientation laws, when considered with other
gay-rights policies, lend support to the argument that "Rhode
Island does not have a strong public policy
against...same-sex relationships"), available at http://www.domawatch.org/cases/rhodeisland/chambersvormiston/RI
_AG_Opinion_on_SSM.pdf. See id. at 5 & n.13 (citing
sexual orientation nondiscrimination laws).
[50]See Waaldijk, Others May
Follow, supra note 17, at 578 (discussing Marriage
redefinition in the Netherlands); id. at 583 (stating that
Belgium "followed a similar path" to same-sex Marriage by taking
steps including decriminalizing sodomy and enacting sexual
orientation nondiscrimination laws).
[51]See Portland, Maine, Resolution
Supporting the Passage of LD1020 "An Act To End Discrimination in
Civil Marriage and Affirm Religious Freedom," Res. No. 16-08/09
(April 27, 2009) (citing ordinance protecting sexual orientation in
resolution supporting same-sex Marriage legislation in Maine),
available at http://www.portlandmaine.gov/orders/fy08-09/
resolve16.pdf; Minority Report for the Commission Established
by SB 427 to Study Same Sex Marriage and Its Legal Equivalents 30
(Nov. 30, 2005) (stating that legislatively commissioned study
concerning same-sex Marriage in New Hampshire was "the next
chapter" in a legislative history that included the enactment of a
sexual orientation nondiscrimination law and other gay-rights
legislation), available at http://www.nhhousegop.com
/Reports/MinorityRep21-40.pdf; Vermont Lawmakers Legalize
Gay Marriage, MSNBC, Apr. 7, 2009 (reporting that former
lawmaker celebrating passage of Vermont same-sex Marriage
legislation "recalled efforts to expand gay Rights dating to an
anti-discrimination law passed in 1992"), http://www.msnbc.msn.com/id/30089125/.
CompareNational Gay and Lesbian Task Force, Relationship
Recognition for Same-Sex Couples in the U.S. (last updated July
2009) (showing years that Vermont, New Hampshire, and Maine
redefined Marriage), available at http://www.thetaskforce.org/
downloads/reports/issue_maps/relationship_recognition_07_09_color.pdf,
withNational Gay and Lesbian Task Force, State
Nondiscrimination Laws in the U.S. (last updated July 1, 2009)
(showing years that Vermont, New Hampshire, and Maine adopted
sexual orientation nondiscrimination laws), available at http://www.thetaskforce.org/downloads/reports/issue_maps
/non_discrimination_7_09_color.pdf.
[53]Eskridge, supra note 3, at 115. See
alsoEskridge, supra note 28, at 357-58 (linking
Massachusetts's sexual orientation nondiscrimination laws and other
gay-rights measures to the "flourishing of an open LGBT culture in
the state" and associated "normative shift"); Button et al.,
supra note 11, at131 (stating that "laws protective of gay
and lesbian Rights have also modified behavior in ways that have
ultimately affected attitudes toward gays"); id. at 208 ("We
have found that gay Rights measures are often helpful in altering
behavior, attitudes, and institutions and thereby influencing
social change."); Carpenter, Spousal Rights by Increments,
supra note 13 (not discussing nondiscrimination laws but
stating in discussion of developments in California domestic
partnership laws that "[i]ncrementalism [] gives the public time to
adjust to each advance").
[54]William B. Turner, The Gay Rights State:
Wisconsin's Pioneering Legislation to Prohibit Discrimination Based
on Sexual Orientation, 22 Wis. Women's L.J. 91, 114 (2007).
See also Darren Lenard Hutchinson, The Majoritarian
Difficulty: Affirmative Action, Sodomy, and Supreme Court
Politics, 23 Law & Ineq. 1, 86-87 & n.468 (2005)
(explaining that Americans are less opposed to laws like ENDA than
to same-sex Marriage).
[55]Johnson, supra note 19, at 908.
[56]Volokh, The Mechanisms of the Slippery
Slopes, supra note 40, at 1100 (second quotation in
sentence only). In this instance, Professor Volokh is discussing
the mechanics of slippery slopes generally, not the slippery slope
to same-sex Marriage specifically. See id. ("Implementing
decision A may also lead people to see B as less extreme and thus
more acceptable.").
[57]Chai R. Feldblum, The Federal Gay Rights
Bill: From Bella to ENDA, inCreating Change: Sexuality,
Public Policy, and Civil Rights 178 (John D'Emilio et al. eds.,
2000) ("Washington politics are fickle. If an issue is perceived to
'have momentum,' more people will support it; conversely, if an
issue is perceived to have 'lost momentum,' people who should
support the issue will desert it."). See Volokh, Same-Sex
Marriage and Slippery Slopes, supra note 40, at 1183
(stating that "[s]wing-vote legislators are more likely to accede
to the demands of a movement that seems to have political momentum"
(internal quotations omitted)); see also Lou Chibbaro, Jr.,
Hate Crimes, ENDA Seen at Top Legislative Priorities, Wash.
Blade, Dec. 2, 2008 (reporting view of activist that "'more
challenging'" legislation can be addressed once "'Congress []
pass[es] the first one or two bills'" (quoting David Stacy, a
public policy advocate with the Human Rights Campaign)),
available at http://www.washblade.com/thelatest/thelatest.cfm?blog_
id=22742.
[58]See Volokh, The Mechanisms of the
Slippery Slopes, supra note 40, at 1124-25 ("Successful
movements often have paid staff who are enthusiastic about pushing
for further action, and unenthusiastic about losing their jobs. The
staff have experience at swaying swing voters, an organizational
structure, media contacts, volunteers, and contributors."); see
also James W. Button et al., Politics of Gay Rights at the
Local and State Level, inThe Politics of Gay Rights
286-87 (2000) ("The political push for civil Rights protection
proved to be an effective mobilizing strategy for gays and their
allies."); Button et al., supra note 11, at209-10 (stating
that "the adoption of gay Rights legislation has often increased
the political mobilization of gays and lesbians").
[59]Coles, supra note 29.
[60]Helms, supra note 30.
[61]Peter M. Cicchino et al., Comment, Sex,
Lies and Civil Rights: A Critical History of the Massachusetts Gay
Civil Rights Bill, 26 Harv. C.R.-C.L. L. Rev. 549, 629-30
(1991) ("For the gay and lesbian community, a selective withholding
of information--the presentation of a limited, culturally
non-threatening public persona--may be the precondition for
securing basic civil Rights in the present political
climate.").
[62]Evan Wolfson, Crossing the Threshold:
Equal Marriage Rights for Lesbians and Gay Men and the
Intra-Community Critique, 21 N.Y.U. Rev. L. & Soc. Change
567, 601 (1994-1995). In relating the story of the Trojan Horse to
the movement for same-sex Marriage, Mr. Wolfson explains that the
Greeks were able to get their horse inside the walls of Troy--and
thus achieve a "fairly radical" transformation--by persuading the
Trojans that breaching their walls was "the last thing the Greeks
would have wanted." Id. at 600-01. The point, writes Mr.
Wolfson, is that "sometimes the people arguing cases or battling in
the trenches are not best placed to say just anything or to reveal
everything." Id. at 601.
[63]ENDA to Be Separated Into Two Bills:
Sexual Orientation and Gender Identity, Advocate, Sept. 29,
2007-Oct. 1, 2007 (reprinting statement of Rep. Barney Frank about
passing version of ENDA that would elevate sexual orientation but
not gender identity to a protected status), available at http://advocate
.com/news_detail_ektid49439.asp. See also, e.g.,
Feldblum, supra note 57, at186 (stating that history of ENDA
shows "change usually occurs only in incremental steps"); Wolfson,
supra note 62, at 592 (stating that "social change occurs
through the possibilities enlarged by each gain in altered reality
and evolution"); Vic Basile, Editorial, The Long Road to
Equality, Wash. Blade, Nov. 2, 2007 (former executive director
of Human Rights Campaign stating that "political victories come in
small, incremental steps"), available at http://www.washblade.com/2007/11-2/view/editorial/11499.cfm;
Carpenter, Spousal Rights by Increments, supra note
13 (praising "gay lobbyists and openly gay legislators [who]
proceeded incrementally" in securing certain Legal recognitions for
homosexual unions in California); Coles Remarks, supra note
11 (describing an incremental path to same-sex Marriage
nationwide).
[64]See Bruce Mohl, Senate Approves
State Gay Rights Bill, Boston Globe, Oct. 12, 1989, at 1
(reporting that opponent of Massachusetts nondiscrimination law
"predicted the next legislative goal of the gay community will be
laws authorizing gay marriages"); cf. Editorial, A
Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30
(denying that Massachusetts sexual orientation nondiscrimination
law put Massachusetts on a slippery slope to same-sex Marriage or
domestic partnership benefits).
[65]Mass. Gen. Laws ch. 151B, § 4,
Historical and Statutory Notes; 1989 Mass. Legis. Serv. 516, §
19 (West). See Frank Phillips, Gay Rights Bill Wins;
Final House Approval, Boston Globe, Oct. 24, 1989, at 19
(reporting that opponents of Massachusetts sexual orientation
nondiscrimination law added an amendment "stipulating that the bill
does not authorize homosexual marriages").
[66]Goodridge v. Dep't of Pub. Health, 798 N.E.2d
941, 967 (Mass. 2003). See also Volokh, Same-Sex
Marriage and Slippery Slopes, supra note 40, at 1161
(stating that "part of [the court's] reasoning rested on the
legislature's decision to ban sexual orientation
discrimination").
[67]Conn. Gen. Stat. § 46a-81r(4) (repealed
2009). "Specifically, in 1991, when passing laws prohibiting
discrimination based upon an individual's sexual orientation, the
General Assembly stated...[that] [n]othing in [those laws] shall be
deemed or construed...to authorize the recognition of or the right
of Marriage between persons of the same sex." Letter from Richard
Blumenthal, Attorney General, State of Connecticut, to Diane Goss
Farrell, First Selectwoman, Town of Westport, Connecticut, and
Kenneth M. McKeever, Town Attorney, Town of Lyme, Connecticut (May
17, 2004) (Op. No. 2004-006) (internal quotations omitted), 2004 WL
1110332, at *2.
[68]See Kerrigan v. Comm'r of Pub. Health,
957 A.2d 407, 435, 447-48, 451-52 (Conn. 2008).
[69]2002 Sess. Law News of N.Y., ch. 2, § 1
(A. 1971).
[70]Hernandez v. Robles, 794
N.Y.S.2d 579, 606 n.35 (N.Y. Sup. 2005), rev'd, 805
N.Y.S.2d 354 (N.Y. App. Div. 2005), aff'd, 821 N.Y.S.2d 770
(N.Y. 2006). See also 821 N.Y.S.2d at 797 (N.Y. 2006) (Kaye,
C.J., dissenting) (citing legislative findings associated with New
York's sexual orientation legislation in concluding that homosexual
persons constitute a suspect class for purposes of equal protection
analysis).
[71]Iowa Code § 216.18A; 2007 Iowa Acts
Chapter 191, § 16.
[72]Varnum v. Brien, 763 N.W.2d 862, 891 (Iowa
2009) (explaining that construing the state's nondiscrimination
laws "to allow Marriage between persons of the same sex" was
"expressly forbidden in the Iowa Code").
[73]Id. at 892. The Iowa court also states
that laws and regulations protecting sexual orientation "reflect at
least some measure of legislative and executive awareness
that discrimination based on sexual orientation is often predicated
on prejudice and stereotype." Id. at 891 (emphasis
added).
[74]Employment Non-Discrimination Act of 2009, S.
1584, 111th Cong. § 8(c) (2009) (stating that "the term
'married' refers to Marriage as such term is defined in...the
'Defense of Marriage Act'"), available at http://frwebgate
.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s
1584is.txt.pdf; Employment Non-Discrimination Act of 2009,
H.R. 3017, 111th Cong. § 8(c) (2009) (same), available
at http://thomas.loc.gov/cgi
-bin/bdquery/z?d111:H.R.3017:. When ENDA was debated and
passed by the U.S. House of Representatives in 2007, lawmakers
considered but rejected a proposal to include more explicit
language that would have specifically prohibited courts from using
ENDA as a Legal predicate in litigation concerning the definition
of marriage. See 153 CONG. REC. H13228, H13250 (Nov. 7,
2007), available at http://frwebgate.access
.gpo.gov/cgi-bin/getpage.cgi?position=all&page=H13250&dbname
=2007_record. In opposing that proposal, Representative Barney
Frank (D-MA) argued the bill had already been modified to address
concerns that ENDA would affect marriage. See id. at
H13251 (statement of Rep. Frank) ("We have already today twice
voted overwhelmingly to repudiate any suggestion that this had
anything to do with marriage."), available at http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=
H13251&dbname=2007_record.
[75]The Connecticut Supreme Court thought a
provision in Connecticut's nondiscrimination law stating the law
did not express approval of homosexuality or same-sex Marriage
"perpetuate[s] feelings of personal inferiority and inadequacy
among gay persons," "stigmatizes gay persons," and "equates their
identity with conduct that is disfavored by the state." See
Kerrigan v. Comm'r of Pub. Health, 957 A.2d 448-49.
[76]Deb Price, Marriage Is Only Acceptable
Option, San Jose Mercury News, May 23, 2002 (stating that "some
gay-rights advocates felt the need to pooh-pooh the 'slippery
slope' argument by foes that we'd ultimately try to push beyond any
piecemeal Rights thrown our way and would be satisfied with nothing
less than full Marriage"). See also Volokh,
Same-Sex Marriage and Slippery Slopes, supra note 40,
at 1161 (stating that "slippery-slope arguments" regarding
gay-rights legislation were dismissed, "sometimes contemptuously");
Volokh May 15, 2008 posting, supra note 40 (stating that the
"tendency of some legislative decisions to affect future judicial
decisions" is "often pooh-poohed when the initial legislative
decision takes place" because "the decision's backers want to argue
that the decision is quite narrow" (quoting Price, supra,
later in same posting)).
[77]153 Cong. Rec. H13228, H13251 (Nov. 7, 2007)
(statement of Rep. Frank), available at http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi
?position=all&page=H13251&dbname=2007_record. In the
course of legislative proceedings concerning ENDA in 2007,
Representative Randy Forbes (R-VA) offered a motion to recommit
that "called for adding language that would prevent courts from
using ENDA to 'modify, limit, restrict or in any way overturn any
state or federal definition of marriage as between one man and one
woman, including the use of this act as a Legal predicate in
litigation on the issue of marriage.'" Lou Chibbaro, Jr., House
Passes ENDA in 'Historic' Vote, Wash. Blade, Nov 7, 2007,
available at http://www.washblade.com/thelatest/thelatest.cfm?blog_id=14845.
See 153 Cong. Rec. at H13250, available at http://frwebgate.access.gpo.gov/cgi
-bin/getpage.cgi?position=all&page=H13250&dbname=2007_record.
Representative Barney Frank stated the bill had already been
modified to address concerns about Marriage, characterized the
proposal as a "sham" designed to delay a vote on the bill, and said
he took the procedural tactic "personally." Id. at H13251,
available at http://frwebgate.access.gpo.gov/
cgi-bin/getpage.cgi?position=all&page=H13251&dbname=2007_record.
[78]See Feldblum, supra note 57, at
161 (quoting lawmaker in 1980 congressional hearing concerning
earlier federal gay-rights bill who stated that issue of same-sex
Marriage "'has nothing at all to do with this specific piece of
legislation'"); Paul Carrier, Voters Endorse Maine Gay Rights
Law; Reversing Previous Votes, Maine Becomes the Last New England
State with a Law to Protect Gays Against Bias, Portland Press
Herald, Nov. 9, 2005 (reporting that opponents of sexual
orientation nondiscrimination law in Maine argued it would pave the
way for same-sex Marriage but supporters of the law "countered that
the law had nothing to do with Marriage"); Editorial, Gay Rights
Bill a Landmark for Illinois, State Journal-Register, Jan. 12,
2005, at 6 (characterizing argument that Illinois gay-rights
legislation "was another step out onto a slippery slope that would
inevitably lead to same-sex Marriage" as one of the "usual
arguments" and asserting that "the legislation has nothing to do
with same-sex Marriage"); Emmet Meara, Question 6, Failure Looms
for Gay Rights, Bangor Daily News, Nov. 8, 2000 (reporting that
those in favor of gay-rights legislation "said the issue was
discrimination, not same-sex marriages"); Editorial, supra
note 64 (denying that the Massachusetts sexual orientation
nondiscrimination law "put Massachusetts on a 'slippery slope'
toward ['gay marriage' or 'domestic benefits' for homosexual,
lesbian or unmarried heterosexual couples]").
[79]See also Volokh, Same-Sex Marriage
and Slippery Slopes, supra note 40, at 1201 ("Slippery
slope risks are real risks...."); Volokh, The Mechanisms of the
Slippery Slopes, supra note 40, at1029 ("Slippery slopes
are, I will argue, a real cause for concern...."); Volokh May 15,
2008 posting, supra note 40 (stating that "slippery slope
risks have to be taken seriously"); Volokh April 6, 2009 posting,
supra note 40 ("I don't think it's credible at this point to
just casually dismiss the possibility of slippage in this area,
given how many slippery slope effects we have already seen.");
Volokh October 25, 2006 posting, supra note 40 (stating in
discussion of New Jersey civil unions decision that "one can't
dismiss the possibility that slippery slope effects, good or bad,
are indeed present here").
[80]These concerns include that: laws restricting
private discrimination represent a threat to civil liberties
generally, see generally, e.g., David E. Bernstein, You
Can't Say That!: The Growing Threat to Civil Liberties from
Antidiscrimination Laws (2003); laws like ENDA could impose
significant burdens on religious liberty, see e.g., The
Employment Non-Discrimination Act of 2007: Hearing on H.R. 2015
Hearing Before the Subcomm. on Health, Employment, Labor and
Pensions, H. Comm. on Education and Labor, 110th Cong. 90-92
(2007) (Letter from Thomas Berg, Professor, Univ. of St. Thomas Law
School, and Steven H. Aden, Senior Counsel, Center for Law and
Religious Freedom of the Christian Legal Society, to John Kline,
Representative, U.S. Congress (Sept. 4, 2007) (explaining how
nondiscrimination laws can burden religious liberty)), available
at /static/reportimages/FB5380C264777D7879F959195B68D8CD.cgi?dbname=110_house
_hearings&docid=f:37637.pdf, "chip away at the at-will
employment doctrine that has made the American Labor market so
strong and created so many jobs," Ryan Messmore and James Sherk,
Freedom of Religious Schools and Employers Threatened by
ENDA, Heritage Found. WebMemo (No. 1677), Oct. 24, 2007, at 2,
available at http://www.heritage.org/Research/Labor/
upload/wm_1677.pdf, and lead to a swell of expensive
litigation and impose significant costs on small businesses and
consumers, see id. at 36 (statement of Lawrence Z. Lorber,
partner, Proskauer Rose, LLP) (not stating whether or not
legislation should ultimately be passed but noting "that the
greatest single area of growth in federal civil litigation involves
employment and Labor law"); Volokh, Same-Sex Marriage and
Slippery Slopes, supra note 40, at 1200 (stating that
nondiscrimination laws can create "substantial litigation costs"
and "litigation avoidance costs"); and ENDA would represent the
highly invasive use of government power to address issues that
already are being handled effectively and efficiently by the free
market, see, e.g., The Employment Non-Discrimination Act
of 2007: Hearing on H.R. 2015 Hearing Before the Subcomm. on
Health, Employment, Labor and Pensions, H. Comm. on Education and
Labor, supra at 44 (Statement of Mark A. Fahleson, of
Rembolt Ludtke, LLP, and Adjunct Professor of Employment Law, the
University of Nebraska College of Law) (stating "it appears that
the free market and local regulators are already addressing the
issues raised by [the ENDA bill]"), available at http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=110_house_hearings&docid=f:37637.pdf;
Jeremy Quittner, Tempting Gay Employees, Advocate, Oct. 24,
2000 (reporting, in 2000, that "gay workers are in something of a
buyers' market"), available at http://advocate.com/issue_story_ektid20902.asp.
A version of ENDA that would elevate gender identity to an elevated
status just like race would, of course, raise several additional
issues that are not addressed in this paper.