Was Justice Scalia Right about the Slippery Slope to "the End of All Morals Legislation?" After Same-Sex Marriage, Is Polygamy Next?

James E. Fleming, LAPA Fellow; Boston University School of Law

Mon, 02/13/2017 - 4:30pm
301 Marx Hall
Event Category: 

Please join us for a LAPA Seminar with James E. Fleming *88, LAPA Fellow and Professor of Law at Boston University School of Law. The commentator is Keith Whittington, William Nelson Cromwell Professor of Politics at Princeton and currently director of graduate studies in the Department of Politics.

LAPA’s seminar format assumes that seminar participants have familiarized themselves with the paper in advance. The commentator opens the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. The seminar will end with a brief reception, giving everyone a chance to mingle and meet.

Abstract:  "The paper is an excerpt from a book project on the legal enforcement and promotion of morals and public values. In U.S. politics and constitutional law, many have argued that recognizing constitutional rights of gay men and lesbians puts us on a slippery slope to protecting . . . [fill in the blank with your chosen horrible outcome]. For example, in Lawrence v. Texas (2003), which recognized a right of gay men and lesbians to intimate association, Justice Scalia protested in dissent that the case “effectively decrees the end of all morals legislation.” Is Scalia right that there is really no distinction between same-sex intimate association and, to quote his list, “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity”? Similarly, in Obergefell v. Hodges (2015), which recognized the right of gay men and lesbians to marry, Chief Justice Roberts suggested in dissent that the decision puts us on a slippery slope to protecting a right to plural marriage or polygamy.   Analyzing Lawrence and Obergefell, I show how a careful articulation of the rights in question can avoid problems like Scalia’s as well as Roberts’s slippery slopes.  First, I make some observations about slippery slope arguments in general and demonstrate that we have many tools available in our constitutional practice to get some traction on such slopes. Second, I rebut Justice Scalia’s argument about the slippery slope from same-sex intimate association and marriage to “the end of all morals legislation,” insisting that we can draw some significant distinctions between same-sex intimate association and marriage, on the one hand, and the horribles on his list, on the other. Finally, I criticize Chief Justice Roberts’s argument about the slippery slope from same-sex marriage to polygamy. I do not argue against a right to plural marriage. Rather, I argue that Roberts was wrong to suggest that it would have been a smaller step to plural marriage than to same-sex marriage and to imply that Obergefell itself makes the case for protecting plural marriage."

James E. Fleming
2016-2017 LAPA Fellow
Boston University School of Law

James E. Fleming *88 is The Honorable Paul J. Liacos Professor of Law at Boston University School of Law, where he teaches courses in constitutional law, jurisprudence, torts, and remedies. He is author or co-author of several books, including most recently Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms(2015); Ordered Liberty: Rights, Responsibilities, and Virtues (2015) (with Linda C. McClain) and American Constitutional Interpretation (5th ed., 2014) (with the late Walter F. Murphy and Stephen Macedo of Princeton University and Sotirios Barber). Fleming is the newly-elected president of the American Society for Political and Legal Philosophy. He previously served as editor for four volumes of Nomos, the annual book of the Society. He received a Ph.D. in Politics from Princeton University and a J.D. from Harvard Law School after earning his A.B. at University of Missouri. Before becoming a law professor, he spent five years as a litigator. He also spent a year as a Faculty Fellow in Ethics in the Harvard University Center for Ethics and the Professions (now the Safra Center).

Keith Whittington
Politics, Princeton University

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University and currently director of graduate studies in the Department of Politics. He is the author of Constitutional Construction: Divided Powers and Constitutional Meaning, and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (which won the C. Herman Pritchett Award for best book in law and courts and the J. David Greenstone Award for best book in politics and history), and Judicial Review and Constitutional Politics, and American Political Thought: Readings and Materials. He is the editor (with Neal Devins) of Congress and the Constitution and editor (with R. Daniel Kelemen and Gregory A. Caldeira) of The Oxford Handbook of Law and Politics and editor of Law and Politics: Critical Concepts in Political Science.  He has published widely on American constitutional theory and development, federalism, judicial politics, and the presidency. He has been a John M. Olin Foundation Faculty Fellow and American Council of Learned Societies Junior Faculty Fellow, and a Visiting Scholar at the Social Philosophy and Policy Center, and a Visiting Professor at the University of Texas School of Law.  He is a member of the American Academy of the Arts and Sciences. He is editor (with Gerald Leonard) of the New Essays on American Constitutional History and editor (with Maeva Marcus, Melvin Urofsky, and Mark Tushnet) of the Cambridge Studies on the American Constitution