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On “Slippery Slopes” Print E-mail
By Francis J. Beckwith   
Friday, 18 July 2014

My friend, Richard Mouw, a philosopher and former president of Fuller Theological Seminary, has raised an important challenge about the use of counterexamples when making one’s case on certain controversial moral and political questions. 

He shares one of the arguments he employs to explain to his friends why he opposes the legal recognition of same-sex “marriage” (SSM): “If we are to operate as a society on the assumption that any sincerely held view about what constitutes a marriage should be granted status in our laws and practices, I have asked, what would keep us from legalizing plural marriages, or even incestuous ones?” Mouw says that his question is often “met with disdain,” with the retort, “[C]an’t you do better than a ‘slippery slope’ argument?”

He finds the retort frustrating, since, “some slopes are indeed slippery, and we do well to approach them with caution.” In other words, if you advance the truth of principle X in order to justify practice Y, something that you support, why not also accept practice Z, something that you reject, since it too is entailed by principle X? 

So, for example, if you support the legalization of marijuana for competent adults on the principle that “one has a right to do whatever one wants to one’s body without directly harming others,” then that principle not only justifies marijuana legalization but also the decriminalization of hard drugs like heroin. 

A person who resists this entailment by saying it’s a slippery-slope fallacy is confusing the fallacious form (often called a “causal slippery slope”) with the legitimate form of the slippery slope (often called a “logical slippery slope”). To point out that a principle entails something undesirable is not a slippery-slope fallacy. It’s an acknowledgment that principles have a logic of their own, so to speak.

Mouw goes on to write that he is in full agreement with the recent Supreme Court decisions concerning Hobby Lobby and Wheaton College: “In each case, employers have resisted health insurance arrangements that violate their sincere opposition to funding abortions. I share their views, and have argued that these sincerely held convictions ought to be granted legal status – which is basically the perspective set forth recently by the majority of Supreme Court justices.”

Now comes Mouw’s challenge:

Suppose a company owned by Jehovah’s Witnesses refused to support a health plan for their employees that permitted blood transfusions? Or what if a Christian Science employer refused to provide any health insurance at all? Surely those are sincerely held convictions that have a right to be considered for protection in providing employee benefits.
 
The challenge is legitimate. And I don’t have an immediate response that settles the concern in any satisfactory manner. But I do take the challenge seriously. I have to – if I want the defenders of same-sex marriage also to take my challenge to them seriously. 
Let me take a crack at it.

First, the two cases are not symmetrical. There is no limiting principle even suggested in the case made for SSM by its advocates. The principles frequently offered are at such a high level of abstraction that it makes it next to impossible to exclude “marital” unions that people generally think ought not to be legally recognized, such as incestuous and plural ones. 

In the religious liberty cases, however, there is a limiting principle, which is built into the law on which Hobby Lobby and Wheaton College have relied: the 1993 Religious Freedom Restoration Act (RFRA). The part of the law relevant to our purposes here states: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

This means that it is not the case that “any sincerely held religious belief” is an automatic trump to any generally applicable law. If the federal government meets its burden, then it may pass a generally applicable law that limits a person’s religious liberty.

Second, you can raise a turn-about-is-fair play reply: the counterexamples in the religious liberty cases do not address the question of whether the critic who uses them can provide a limiting principle on the federal government.

Here’s what I mean. Suppose a future Secretary of Health and Human Services issues a regulation under the Affordable Care Act that would require all qualified physicians and nurses in the United States directly to perform euthanasia, infanticide, abortion, or gender-reassignment surgery on any patient or close relative competent and legally permitted to request the procedure.

If you say this violates the religious liberty of certain physicians and nurses, guess what? Defenders of the regulation will trot out the Jehovah’s Witnesses and the Christian Scientists. In that case, the problem is not with advocates of religious liberty trying to figure out its limits, but with its critics, who have yet to offer a principled limit to the federal government’s regulatory powers through its administrative agencies.

Thus, it is the adversaries of our first freedom, and not its defenders, who have the slippery-slope problem.

 
 
 
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Comments (11)Add Comment
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written by Paul Rodden, July 18, 2014
If nothing else, it's important 'to put a stone in their shoe', no? :)
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written by Michael Paterson-Seymour, July 18, 2014
Does not Employment Division v Smith provide the critics with just such a limiting principle, “It would doubtless be unconstitutional, for example, to ban the casting of statues that are to be used for worship purposes or to prohibit bowing down before a golden calf."?

Presumably, the government could prohibit the casting of any statues (not just religious ones) in lead or pewter, on general health and safety grounds, for this would be a "neutral law of general applicability," even if someone’s religious beliefs required the worship of a pewter calf, rather than a golden one.

Thus, the French Conseil d’État held that the headscarf ban (l’affaire du foulard) did not infringe their constitutional provision that “no one shall be disquieted on account of their opinions, even religious ones...” for “pupils’ freedom of conscience, which is an internal freedom, in no way gives them ‘the right to express and manifest their religious beliefs’ in educational institutions, for that involves external acts which improperly introduce religion into the public domain of the school.”
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written by Jack,CT, July 18, 2014
Well a little weak in the argument and
many as do I agree but still on weak
Foundation..
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written by Schm0e, July 18, 2014
As much as I admire what appears to be the rigor of the analysis, I am disappointed that it is being made at all, because it legitimizes the context, which I believe is illegitimate.

To wit: if you aren't satisfied with whatever portion of your compensation is provided in health insurance by the company that happens to be run by Jehova's Witnesses, you (still) have right to not work there. Or to negotiate an alternative compensation plan.

The premise that employers must provide health insurance and therefore that a universally "fair" body of legislation must be designed to support it is the thing we ought to be arguing against. Fighting against. Obliterating. Certainly not legitimizing or in any way accommodating.

While this idea is blasphemy to Kennedy Catholics and other secular collectivists, it's not blasphemy to the supreme law of the land - that being embodied in its founding documents and principles. Why, I have a hunch that some philosopher could even find it in the laws of Nature and Nature's God.
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written by Rich in MN, July 18, 2014
Is there any way to inject "reasonableness" back into life deliberations, and relegate "expediency" (such as that found in the 1992 Casey opinion) permanently to the back seat? When will a justice be able to render an opinion that begins, "It is empirically evident from the findings of science and medicine that human life passes along a trajectory that begins at conception and ends at death; therefore, the court deems it reasonable not to compel parties directly to finance the procuring of abortion at any stage. In addition, even those parties arguing that there is a natural teleology toward procreation intrinsic to the sexual act itself that should not be frustrated by artificial means must be shown some deference by this court, since that view, too, seems reasonable based on empirical biological and sociological evidence...."
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written by Bill Hocter, July 18, 2014
Concur with SchmOe. Why would I want to oppress a Jehovah's Witness?
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written by James Swetnam, S.J., July 18, 2014
From this person's admittedly personal point of view it would seem that there are problems underlying this column and the comments thereto which need authoritative clarification for the U.S. scene. The problems of abortion and contraception are problems of the public square, not the realm of faith as such. And all problems of the public square have to be thrashed out in the public square where reason, not faith, is the guide. One can arrive at conclusions proper to reason and the public square by way of faith as guidance, which right needs to be defended, obviously. But one can arrive at the same conclusions without faith. By insisting unilaterally on faith with relevance to abortion and contraception the U.S. bishops run the risk of having all those who arrive at conclusions in the public square pushed back out of the public square into the realm of faith, where we can stay and hold whatever we want according to secularists who claim the public square for their own. The whole matter is complicated of course by positive law, varying customs in various parts of this vast country, various views of the Christian faith, etc. But it would seem that some clarification about basic suppositions would be helpful. James Swetnam, S.J.
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written by Ben Horvath, July 18, 2014
"Suppose a company owned by Jehovah’s Witnesses refused to support a health plan for their employees that permitted blood transfusions? Or what if a Christian Science employer refused to provide any health insurance at all? Surely those are sincerely held convictions that have a right to be considered for protection in providing employee benefits."

The answer is: so what? In a supposedly free country people ought to do what they like with the business that they own, even if it is eccentric or weird.
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written by mike flynn, July 19, 2014
slippery SLOPE? we all know we are suspended off the precipice in thin air. no way you can continue to outlaw polygamy. Mormons been playing ball for 150 yrs. arabic islam and less savory types were handed polygamy on a platter when USA redefined marriage. maybe bestial marriage can be prevented, but only as being cruelty to animals in this twisted culture we are in.
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written by schm0e, July 19, 2014
@flynn: what you say.
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written by Lupe, July 19, 2014
This dilemma goes to the heart of the conservative objection to mandated healthcare: it is not a reasonable venue for government regulation. Because of its inherently personal nature it entails an endless entanglement of value judgments that should be left to the citizen alone. The philosopher's efforts to align these judgments with the good of society or constitutional considerations are handicapped at the outset. Good luck, guys!

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