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 nondiscrimination law.
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 unions.
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 Constitution.
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 potential."
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 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. Massachusetts lawmakers clarified that nothing in the legislation should "be construed so as to legitimize or validate 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 state.
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 heightened scrutiny.
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 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," 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 dismissed.
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.
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.
Thomas M. Messner is a Visiting Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.