Pondering a messy approach

Theodore Olson and David Boies have filed a lawsuit in federal court saying the Calif. marriage ban (and those in all other states?) are illegal because of the national constitution equal protection clause. Yes, that sets the course for the national Supremes. The reason why I mentioned the names of the two men is because they were before the Supremes on opposite sides of Bush v. Gore back in 2000. To have Bush lackey Ted Olson supporting gay marriage is huge. In a press conference, Olson said,

If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution.

The big gay rights organizations are unanimously against this case, saying it's too soon. We don't yet have a favorable majority on the court. We're making steady progress without the Supremes weighing in. We don't want to muck it up with an unfavorable ruling, especially since the Supremes are very reluctant to overturn a previous ruling. They offer two publications on strategy, one about how the ballot box is better than the courts (at the moment), the other about how it is important to continue efforts to change public opinion. I haven't read either one.

That got a few people wondering about Olson's past and they detected an odor of dead fish. If Olson was a Bush lackey (he held positions in the Bush administrations), he surely got a bit of schooling in Rovian tactics. Might an attempt to get an unfavorable Supreme ruling be intentional to throw a wrench in our progress?

This brings up a whole host of questions and competing ideas:
* There is doubt about the conspiracy theory since Olson and Boies are funded by a gay rights organization, the American Foundation for Equal Rights (one that I'm not familiar with).

* Would lawyers of the stature of Olson and Boies intentionally go before the Supremes in order to lose? Would their reputations take much of a hit if they lost? Would their book deals be enhanced with a loss? Are they doing it for the publicity? Neither of them is gay.

* Since gay marriage exists in several states (through both court order and legislative approval) and since the Olson/Boies challenge will go through the liberal 9th Circuit Court (likely to rule in our favor) will the Supremes, even with the current configuration, have a hard time ruling against us? Could they rule for us if more than 40 states are against us?

* One can't argue the merits of the case. While some states offer gay marriage, a large number of others don't. And that is in violation of Equal Protection. Rights shouldn't depend on which state boundary you cross. Which leaves us pondering approach and timing.

* Which approach is better? Does the state-by-state method get people used to the idea on a more personal level so they understand the sky won't fall? Should we start the road to the Supremes because the case has to end up there anyway? Several states in the South aren't going to permit gay marriage until they absolutely have to. In the meantime gays in those states have to deal with discrimination.

* Timing is about waiting until the court makeup shifts in our favor. Then we're back to the issue of always waiting until the situation is ideal and it never is.

* But since this case will first go through the appeals court it could be several years before it gets to the Supremes. The roster of justices will likely change by then as will public opinion (and opinion does influence justices, if only in the cases they choose). If we wait the time lag could take the case beyond Obama's tenure and the possibility of a GOP prez. adding someone to the court.

* Might this be an effort to embarrass the Obama administration, who has been way too silent on gay issues? They didn't even offer a reaction to the Calif. ruling. When Obama was born his parents' marriage was illegal in several states. His press secretary is dodging frequent questions on gay issues and making the whole thing messier than it needs to be.

* Perhaps it is an effort to embarrass the major gay rights organizations, who have been way too timid in challenging Obama's silence?

This case is being argued on the 14th amendment's equal protection clause. Take a look now at the Supremes' ruling on gays:
The 1992 Colorado Amendment 2 (saying gays had no recourse if discriminated against) went to the Supremes and was overturned 6-3, but not on equal protection grounds. The 2003 Texas sodomy case was also in our favor 6-3, but on due process grounds. Will the favorable justices extend their favor to marriage? Can we trust them on equal protection for gays? Is nominee Sotomayor on our side? It seems too risky.