Of course the book covers far more than just Marriage law, but something about the coverage of recent arguments at the 9th Circuit caught my attention. Plaintiffs Smelt & Hammer are two gay men with a perfectionist legal strategy that is causing headaches among the 'team players' at the ACLU, Lambda, and GLAD:
If the high court ruled in favor of Gilbert's clients, the case would bring same-sex couples instant and nationwide marriage recognition, the crown jewel of the gay rights movement.
But some gay rights leaders would rather see Gilbert's case go away.
"The understanding we have, having done this for a long time, is that some steps lead well to other steps, and if you try to bite off too much all at once then you choke," said Jennifer C. Pizer, senior counsel for Lambda Legal's western regional office.
The thing is, Gilbert and his clients are clearly Perfectionists, while Pizer and Lambda is pursuing a decidedly Minimalist strategy, on the belief that 'some things are inevitable' (my words, not hers). And SSM may well be inevitable, I cannot read that future. But whether it happens by Minimalist, or by Perfectionist grounds, one thing it will not be: Democratic.
Professor Sunstein makes a good case against Fundamentalism, in that returning constitutional law back to 1930 would be terrible for America -- radical even. And in that sense, he's right -- constitutional fundamentalists are just like the perfectionists. But it is my opinion that we never would have arrived where we are, so divided, if the 'Consent of the Governed' had been respected all along. Perhaps these old decisions should be repealed in a very minimalist way, rather than a perfecto/fundamentalist way ala justices Thomas and Scalia... But when it comes to the Constitutional law of the future, shouldn't we begin to restore respect for democracy, by letting the people speak with one loud voice on constitutional amendments? We should do this more frequently, not less, in my opinion.
Here's why:
The long-term legal strategy of GLBT.inc is to wear down the existing moral spirit of America, whereas ratifying a constitutional amendment is a popular uprising of the people! There's got to be value in that! And if we make a mistake with zealous exuberance, as we have in the past, we can repeal it with righteous indignation, as we have in the past.
A minimalist approach to constitutional law merely takes advantage of our collective apathy. It pushes the moral spirit of America from what we once demanded, to what we will now endure. Personally, I'd much rather have a cause to believe in, than one I can barely stomach.