06/28/2009 05:12 am ET | Updated May 25, 2011

"Letter from a Birmingham Jail" and Ted Olson and David Boies' Fight for Equal Rights

One of the most important events in the history of civil rights may have happened today. Theodore Olson and David Boies' lawsuit seeking to overturn Proposition 8, California's ban on same-sex marriage is one of the boldest, clearest actions taken on the issue, and Olson's role in Bush vs. Gore and position as solicitor general in the Bush administration gives him a powerful and surprising opportunity to draw broad support to the issue.

"Creating a second class of citizens is discrimination, plain and simple," said Olson, "The Constitution of Thomas Jefferson, James Madison and Abraham Lincoln does not permit it."

But instead of welcoming this historic day, liberal and gay groups (the same ones who lost their case in front of the California Supreme Court) immediately have criticized the effort, joining those who oppose gay marriage in opposing the lawsuit.

"We think its risky and premature," said Jennifer C. Pizer, marriage project director for Lambda Legal in Los Angeles.

Matt Coles, the "director of the LGBT project at the ACLU seemed defensive, telling the New York Times "It's not something that didn't occur to us," "Federal court? Wow. Never thought of that."

While Coles may have thought of it, Olson and Boies have over 80 years of legal experience between them and Olson has won 75 percent of the 55 cases he has argued before the Supreme Court.

With all due respect to the gay rights groups who have worked tirelessly and courageously for decades to advance this cause, perhaps it is time to stop thinking of this as a "gay" issue. That thinking helped these groups lose both the campaign against Proposition 8 and the legal challenge they waged at the California Supreme Court.

Perhaps these groups should recognize that believing that they "own" this issue plays exactly in to the strategy of those who want to stop them from having equal rights. The worst nightmare of the right-wing groups who sponsored Proposition 8 was that straight Americans would see the fight against it as their fight.

Perhaps these groups should read Martin Luther King's "Letter from a Birmingham Jail."

Written on April 16, 1963, King's letter answers many of the questions that people are asking about the lawsuit.

Early in the letter, King responds to those who criticize his involvement in Birmingham, speaking to those who have told him it is none of his business (similar to the criticism leveled at Olson and Boies for not being a part of the gay rights movement);

I think I should indicate why I am here In Birmingham, since you have been influenced by the view which argues against "outsiders coming in. But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco-Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

Then King addresses another primary criticism of his action (and Olson and Boies lawsuit)--that they should wait, be patient, and let change come:

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?

For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied.

And then comes the section that the ACLU and Lambda Legal Defense should read most carefully;

First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: "All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth." Such an attitude stems from a tragic misconception of time, from the strangely rational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co-workers with God, and without this 'hard work, time itself becomes an ally of the forces of social stagnation.

The fight for gay marriage is a fight for human rights. It's not an issue that belongs to gay rights organizations, or liberal non-profits--it belongs to all of us. The easiest thing for all of us--especially those of us who are allowed to be married to those we love--would be to wait and see what happens in legislatures around the country.

But all of us who care about human rights can't be "lukewarm in our acceptance." We can't "set the timetable for another man's freedom," and we can't tell our gay friends to wait for a "more convenient season" to wage this fight.

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