Eugene Volokh applies his theory of political slippery slopes to gay rights, noting that anti-gay bigots do indeed have something to fear from the end of government anti-gay discrimination, such as anti-sodomy laws.
The gay rights movement has won many victories, and has influenced many people even where it hasn't (yet) won -- such as in the gay rights debate -- by essentially asking "How does it hurt you?" How does it hurt me that two homosexual adults can have consensual noncommercial sex with each other in their own home? How does it hurt me that they can get married, or adopt children? (One can say that it may hurt their children, but many people, myself included, are skeptical about that.)
But that question ignores those gay rights proposals that would reduce the liberty of others—and it ignores the way the various proposals are, as a matter of practical politics, interconnected. As a logical matter, it’s possible to bar the government from discriminating based on sexual orientation, but to leave private parties free to do so. But as a psychological matter, many people’s judgments about what private people (or government officials acting in their private capacity) may do are affected by what the government may do. The more homosexual relationships are legitimized, the more many (not all, but many) people in the middle of the political spectrum on this question will condemn even private discrimination against homosexuals.
The analogy to race discrimination that gay rights advocates often cite is really quite apt here. People who oppose homosexuality are understandably worried that their views will become as stigmatized—and acting on those views will in many ways become as illegal—as racist views are now. And one way to fight this possibility is to fight it early, for instance in the marriage debate, rather than to wait until that’s lost and the gay rights movement moves even more firmly towards restricting the private sector.
Prof. Volokh sees the analogy to race discrimination, but in his final paragraph he goes on to say this:
So the result is pretty sad: Maybe we do have, as a practical matter, a choice between a regime that suppresses the liberties of homosexuals and benefits those who don't approve of homosexuality, and a regime that benefits homosexuals and suppresses the liberties of those who don't approve of homosexuality. Perhaps it's clear that one of the options, despite its flaws, is better than the other; as I said, I strongly support some parts of the gay rights program and tentatively support some others, despite the risks that I identify. [emphasis added]
Perhaps? Let’s alter that last paragraph a little:
So the result is pretty sad: Maybe we do have, as a practical matter, a choice between a regime that suppresses the liberties of blacks and benefits those who don't want to associate with blacks, and a regime that benefits blacks and suppresses the liberties of those who don't want to associate with blacks. Perhaps it's clear that one of the options, despite its flaws, is better than the other; as I said, I strongly support some parts of the civil rights program and tentatively support some others, despite the risks that I identify.
There are some libertarians who think that private employers, private businesses, and private landlords should be able to discriminate on the basis of race, while government should not. I disagree with this position (it’s at the top of my “Why I am not a libertarian” list), but I can respect it.
But if Prof. Volokh is right, and the slippery slope condemns us to one extreme or the other, restrictions on the liberty of racial minorities, or restrictions on the liberties of racial bigots, I can’t imagine a decent human being who would choose the former over the latter. And if it comes down to a choice between restricting the liberty of gays, and restricting the liberty of anti-gay bigots, it’s perfectly clear to me what the right answer is.
I sincerely hope you get that Federal judgeship you’re gunning for, Prof. Volokh. You’re smart, fair-minded, and seem to be a first-rate legal scholar. If I were President, I’d nominate you.
But I also sincerely hope that when you get it, you’ll grow a spine, and start denouncing bigotry for what it is.