WWS Calendar

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

Feb 13, 2017 04:30PM to 06:00PM
301 Marx Hall


Open to the Public
James E. Fleming *88, LAPA/Crane Fellow; Boston University School of Law. Commentator: Keith E. Whittington, Princeton University, Politics

LAPA's seminar format asks attendees to familiarize 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. Paper copies of the seminar paper are generally available a week before the talk in 416A Robertson Hall during regular hours.

Free and open to the public.
From Professor Fleming: 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,” including prohibitions of “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. 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. 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’ slippery slopes.
Contact Judi Rivkin, jrivkin@princeton.edu