Abstract
In his article, Homosexuality and the Constitution,' Professor Cass Sunstein does an admirable job elaborating the strengths and weaknesses of various legal theories for attaining federal constitutional protection for lesbians and gay men. To a gay activist, what is most notable about his discussion is his repeated insistence that the federal courts act cautiously in deciding cases that raise the theories he discusses. In particular, he suggests that "the judicial role is properly limited in this context, especially because of a need to limit the clash between public judgments and judicial judgments in so sensitive an area."' Citing the divisive aftermath of Roe v. Wade4 as an example, he fears that precipitous judicial action might lead to backlash that would harm the gay rights movement.' To the extent that Professor Sunstein' is simply arguing that controversial cases should be decided upon the narrowest possible ground, his caution is unobjectionable. But to the extent he is recommending that federal courts refrain from finding antigay state action unconstitutional because of a concern for the long-term good of the gay rights movement, his analysis is subject to at least three levels of criticism. At a doctrinal level, courts need not handle equal protection analysis with the kind of caution appropriate for nontextual rights such as the right to privacy. At an institutional level, the lower federal courts are ill-equipped to judge whether society is "ready" for a particular constitutional result, and probably should not rely on such a judgment to decide particular cases in any event. Finally, at a personal level,