Putting the Shoe on the Other Foot

Today was a milestone day for me. I have initiated my first true law review article submission. I’ve actually dipped a toe into these waters before, but this is the true, real deal — going on ExpressO, checking off a bunch of journal names, being a professor and thus a real candidate to have my piece actually read — the whole shebang. I feel like I’m applying to college all over again, except with the expectation of a 5% acceptance rate. I need to work on a better metaphor….

Anyway, the piece is entitled Sticky Slopes (you can download a copy on SSRN). A sticky slope is the opposite of a slippery slope: Whereas in a slippery slope a shift in policy lubricates the path towards other, perhaps more controversial, reforms or measures, in a sticky slope a social movement victory acts to block instead of enable further policy goals.

The article actually originally started its life as a blog post following California’s 2008 gay marriage decision. At the time, Eugene Volokh wrote that the case proved true conservative fears that various gay rights advances — things like civil unions and employment discrimination protections — would create a “slippery slope” towards gay marriage. In making its ruling, California relied in part on the presence of such laws, which (in the court’s view) showed that anti-gay discrimination is no longer tolerable, that social views have evolved, and that the general structure of equal protection now must be understood to include marriage equality for gay and lesbian individuals.

California was indeed an example of a slippery slope. But the example rang a bell for me, because I recalled a similar passage in Maryland’s gay marriage decision, Conaway v. Deane. There, too, the court recited Maryland’s litany of statutes, regulations, and judicial opinions which bolstered the equal status of gay and lesbian persons. But unlike California, the Maryland court pivoted to use these as an argument for rejecting the plaintiffs’ claims. The presence of these pro-gay provisions, the Maryland majority argued, demonstrated that gays and lesbians were well-protected in the political arena, and that courts should thus step aside and allow the democratic process to control. Same basic factual predicates, opposite outcomes. And this new dynamic — where the prior victories by the gay rights movements were used to stymie future advances — I termed a “sticky slope”.

The article expands well beyond the case of gay rights, however. It articulates the conceptual underpinnings of a sticky slope and the different manners through which it can occur, traces several types of sticky slope as they have appeared in American law (particularly anti-discrimination law), and then tries to answer the all-important question: Do sticky slopes matter (spoiler alert: yes, I think they do)?

All professors have pieces they like more and those they like less, but I can honestly say I’m very enamored with this one. It’s gotten wonderful (and useful!) feedback at various workshops and conferences, and seems to fill a void in naming a concept most people intuitively understand but that, until now, had not been truly explored. It’s a project that I anticipate returning to even after this article is published, as it opens the door to several different research paths and points of inquiry that I’m eager to explore.

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2 Responses

  1. Anon says:

    How does a “sticky slope” differ from “backlash,” which is a conventional trope and widely studied in political science?

  2. David Schraub says:

    A backlash is a version of a sticky slope, but it’s not the only one.

    The dynamic I talk about above in Maryland wasn’t really a backlash — it wasn’t the courts rebelling against “special rights” for gay people or deciding things had gone too far. Rather, it was an application of a specific legal doctrine (San Antonio Ind. Sch. Dist. v. Rodriguez‘s determination for when a classification deserves heightened scrutiny — one factor being its “political powerlessness”) that was used to turn prior victories against the group.

    Another I talk about is the “wrong argument” sticky slope, where political claims are pressed using a specific sort of principle or claim, which is later revealed to be inadequate for securing all parts of the movement’s long-term agenda. Color-blindness, for example, was very useful for winning early civil rights movement, but has become more of a barrier to them (or at least certain groups’ conception of them) in recent years. But, having relied on the argument to win so many prior claims, it is often hard to pivot away from it — the argument itself has earned capital, been used to develop precedent, etc., and has its own disciples — which make those victories hindrances later on.