Who's right in the debate over gay
marriage? Legally speaking, either side could prevail in a
courtroom. Opponents of gay marriage have won their fair share of
legal battles. That's why a federal challenge on gay marriage
It's easy to be lulled by Ted Olson's
argument: Marriage is a fundamental right, the Supreme Court has said
Olson is the conservative lead attorney
in a lawsuit that has dived head first into the federal courts
arguing that Proposition 8, California's high-profile gay marriage
ban narrowly approved by voters in November and upheld as
constitutional by the state's highest court in May, is
He reasons that since the Supreme Court
has upheld the rights of gays and lesbians, striking down sodomy laws
in 2004 (Lawrence v. Texas), and has called marriage a
fundamental right, it follows that the nine-member panel would strike
down gay marriage bans as unconstitutional.
Not so quick, came the chorus from
three prominent gay rights groups: SCOTUS is too conservative!
Those groups – the National Center
for Lesbian Rights, Lambda Legal and the American Civil Liberties
Union (ACLU) – have been at the forefront of the decades-old legal
battle of securing civil rights for gay, lesbian, bisexual and
Yet, they call the case risky business.
The legal pioneers of gay rights and champions of gay marriage
remain skidish about approaching the Senate-approved justices.
Last week, however, their point was
proven, in a most unusual place: Portugal.
The sea-side country bans
discrimination based on sexual orientation within its constitution.
Still, last week its Constitutional Court denied a lesbian couple the
right to marry. The conservative judges said the constitution does
not provide for gay marriage specifically.
While the nomination of Justice Sonia
Sotomayor raised questions of impartiality and the rule of law,
nobody is foolish enough to believe that the court is insulated from
personal bias and politics.
And what Olson will ultimately ask the
court to do is historic: overturn the laws of a large majority of
states. The cry from states that have approved gay marriage bans –
either by law or constitutional amendment – will be deafening. The
shriek from social conservatives, media pundits and anti-gay
politicians will be unlike anything ever heard in this country
before. The threat of impeachment will certainly rear its ugly head.
Behind Olson and co-counsel David Boies
is a buttoned-up man who appeared on the scene last year as
Proposition 8 was being debated, Chad Griffin. Griffin pulled heavy
Tinseltown strings to deliver big Hollywood endorsements against the
anti-gay marriage amendment that eventually passed.
The three men are basically unknown in
the gay rights world, and Olson, the conservative lawyer, looks
decidedly out of place. Their May announcement was met with a
torrent of skepticism. Some have even leveled the charge that the
plan is to double-cross gay marriage by purposefully losing before
the high court, creating a nearly insurmountable legal firewall for
others to climb.
Griffin is 36, remarkably young for
such an important task, and we know he's committed to delivering a
gay rights win. He appears confident and energetic as he makes
history, as he risks it all.
Yet, risking everything is an
eventuality in this high-stakes game, isn't it? If not now, when?
Is it even moral to ask people to wait for their civil rights?
As we debate, dither and argue, we've
nearly forgotten that the train has already left the station; Olson,
Boies and Griffin are happily waving away.
And we – frozen by indecision –
remain behind on the platform, do we dare not board our own
While a federal gay marriage lawsuit
risks everything, it can no longer be set aside. After their loss in
the Portugal Constitutional Court, the two women called it a victory
because they had lost by only 1 vote, but I suspect they were feeling
good because they had set aside their fears and approached the bench.
The time to get on board is now. To
believe we can make the dream whole.