Eugene Volokh is especially cogent with his slippery slope observation:
I did want to note one thing -- this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon. Even when there are conceptually quite clear distinctions that could be used to distinguish the first step A from the final step B, A may nonetheless help bring B about. Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights."
Yet the New Jersey Supreme Court's equal protection argument begins by citing such non-same-sex-marriage, non-civil-union gay rights laws (citations omitted):
In addressing plaintiffs’ claimed interest in equality of treatment, we begin with a retrospective look at the evolving expansion of rights to gays and lesbians in this State. Today, in New Jersey, it is just as unlawful to discriminate against individuals on the basis of sexual orientation as it is to discriminate against them on the basis of race, national origin, age, or sex. Over the last three decades, through judicial decisions and comprehensive legislative enactments, this State, step by step, has protected gay and lesbian individuals from discrimination on account of their sexual orientation.
Just off hand, I would note that slippery slope arguments are frequently offered by both sides in the gun control and abortion debates.
Meanwhile, back on gay marriage, Scott Lemieux of TAPPED is the opposite of cogent:
THE MAJORITARIAN DIFFICULTY. Glenn Greenwald makes a very important point about yesterday's judicial decision in New Jersey:
The decision today is entirely consistent with the democratic will of New Jersey residents. The New Jersey legislature already enacted a domestic partnership bill two years ago which recognizes, and grants a whole array of marital rights to, same-sex couples. But the way the laws were written, some rights were still assigned only to "married" couples. The court decision today simply requires that those same-sex partnerships have all of the rights which are given to married couples. But New Jersey voters, through their representatives, already approved of recognition of same-sex relationships two years ago.
Huh? Let me try for a Slightly Shorter Greenwald: Two years ago the NJ State Legislature approved gay domestic partnerships with many but not all of the rights of hetero marriage, thereby demonstrating majority support for recognition of gay domestic partnerships with all of the rights of hetero marriage. Sure, that makes sense.
It may well be the case that a majority of the good people of the great state of New Jersey support civil unions with rights equal to hetero marriage, but that recent legislation is not supporting evidence.
Mr. Lemieux shoots and misses again:
Whether the decision is right or wrong, it cannot be wrong because it's inconsistent with majority opinion in the state.
Groan. My personal opinion is that gay marriage or civil unions is fine if enacted by the state legislature but wrong if crammed down by judicial fiat. How would pollsters, or Mr. Lemieux, score that? Surely I am not alone in believing that process counts.
Mr. Lemieux links to this problematic poll from which I will accept this conclusion:
Regardless of the question order, about 65 percent of respondents supported civil unions, and 30 percent opposed them.