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 remains risky.

It's easy to be lulled by Ted Olson's argument: Marriage is a fundamental right, the Supreme Court has said so.

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 unconstitutional.

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 transgender Americans.

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 revolution?

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.