(There are Qs of the Day in this post as well.)

Bush v. Gore adversaries Ted Olson and David Boies appeared on Larry King last night to make their case why it’s the right time to pursue a federal decision on marriage equality arguing that Prop 8 violates the U.S. constitutional guarantee of equal protection and due process.

They present a logical argument on why the Prop 8 ban on marriage equality is wrong, citing that marriage is a basic human right and states should not be allowed to discriminate.  For instance, when they appeared later on CNN with John King (transcript isn’t up yet), Olson asked whether Dr. Martin Luther King would have stated the country should pursue equality on a state-by-state basis, or that desegregating the schools was a state’s rights issue and we’ll wait until the people catch up to change matters. BTW, Olsen said that

consult with LGBT orgs, which all urged them not to pursue this case at this time, but are moving forward using the reasoning that the four couples they represent should not have to wait for fundamental rights based on the U.S. Constitution.

You can’t disagree with the merit of these arguments, really. What is causing a great deal of consternation in LGBT organizations is the approach and timing—the orgs strongly disagree with this case because they feel it is too soon to bring the matter up on a track to be heard by the current U.S. Supreme Court at this time, which is why you see the speedy press release from the coalition of orgs restating its strategy (see my earlier post).

The groups released a new publication, “Why the ballot box and not the courts should be the next step on marriage in California.” This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised “Make Change, Not Lawsuits,” which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits.

This approach has merit as well—on the basis that incremental change allows people to learn, on a personal basis, that there is no threat to our country or any one else’s marriage because gay and lesbian couples simply want the same rights as they do.

OK, now there is another reason why it can be argued that a federal case has merit at this time, and it needs discussion. Regardless of the timing of the case, part of what is going on here is by filing at the federal level it is a direct challenge to this White House. The Obama admin has tried mightily (and ridiculously) to keep this a states’ rights issue —to the point of believing there’s no reason to even have to publicly recognize the progress and setbacks.

In my opinion, this is also a part of the motivation behind the Olsen/Boies lawsuit. After all—how can you have a President of the United States who is a constitutional scholar out there saying “God is in the mix” and tossing off “it’s an issue best left to the states”? After all, his parents’ relationship was illegal in many states, and Loving v. Virginia was needed to nullify all of those state bans.

Again, this is a political problem of candidate and President Obama’s own making that is now blowing up in his administration’s face. I’m not surprised that this is happening; I am kind of surprised it’s happening so soon—but we, the LGBT orgs, and the big brains at 1600 Pennsylvania Avenue do not have the ability to shut down the constant equality questions being bombarded at Robert Gibbs or a lawsuit like this.

I’m not arguing that Boies and Olson are pursuing the right strategic path, mind you, but I understand the sentiment and frustration behind it—I’m just tossing this out there as a discussion point, since we are all tired of the disingenuous BS coming out of the Obama White House through the clownish, embarrassing dodges of Press Secretary Robert Gibbs nearly every day. Also, we don’t see

of the LGBT orgs criticizing the non-answers and evasive maneuvers coming out in the name of our “fierce advocate” at these pressers—do you think this silence would have occurred under Bush?

So this is where we are, and it’s a complete mess. Anything remotely representing a planned strategy is obliterated; now everyone has to deal with the reality at hand, including the fact that the most recent polls show a drop in support for marriage equality from last month (see chart below), a result quickly picked up by the fundies. Of course looking at the progression over the years, the change in level of support has risen dramatically, which underscores the fact that those who oppose equality are going to lose this battle in the long run:

But, there’s an obvious question lurking there that represents the underpinning of the federal lawsuit—why do polls matter at all, other than for political cover? Everyone participating in this kabuki dance knows we’re dealing with a fundamental right—and civil rights should never be determined by polls, the ballots or politicians. This will be determined by the U.S. Supreme Court.

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