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Profoundly Confused by Analysis of the SCOTUS Oral Arguments on Gay Marriage

BEGIN TRANSCRIPT

RUSH: The Supreme Court had oral arguments today on Proposition 8 in California, same-sex marriage.  This is another thing that confused me, because what happened, people started sending me tweets from the SCOTUSblog.  Now, the SCOTUSblog, Supreme Court of the United States, is a blog run by people who apparently are excellent at interpreting the questions and comments made by the justices during oral arguments and then making predictions on how the case will end up based on that. 

So I'm getting all of these tweets, and they're very conflicting.  But I'm being told that they all mean the same thing, but I'm looking at 'em and they can't possibly mean the same thing.  Here's the upshot of it.  Oral arguments were held today, and the Bloomberg story on this -- and the SCOTUSblog people made note of this as well -- the US Supreme Court raised the prospect that it will decline to say whether the Constitution gives homosexuals the right to marry in an argument that reveals a deep divide among the justices. 

Now, the SCOTUSblog said unequivocally... This was not a prediction from these guys. They said that after oral arguments, there were not five votes to invalidate Prop 8. That's the first thing. They said that after they'd studied the oral argument questions and comments and so forth from both lawyers (all the justices that participated), that there were not five votes to essentially legalize same-sex marriage. There were not five votes to overturn Prop 8.

But then after that assessment was made, an assessment was made that Anthony Kennedy made it very plain that he doesn't want to rule on this at all and wants to dismiss the case. Justice Kennedy said, "I just wonder if the case was properly granted." He twice asked whether the most prudent course for the court would be not to rule at all. Now, if that happens, if the court doesn't rule, as I understand it -- and I'm not sure I do. If the court doesn't rule and essentially dismisses the case, it means that the last legal interpretation stands.

That would be the ruling of the Ninth Circus, which invalidated Prop 8. So what we're being told here is that Justice Kennedy (and this is one of these tweets from the SCOTUSblog people) just doesn't have it in him to invalidate Prop 8. He just can't bring himself to do it. But he would essentially do that by dismissing the case. If he votes to invalidate Prop 8, that means same-sex marriage becomes the law of the land in California, and the tweets all say he doesn't want to do that.

He wants to dismiss the case.

Well, if he dismisses the case, he's essentially invalidating Prop 8, because that lets the Ninth Circus ruling stand -- and the Ninth Circus, as you know, is why they're all there. The Ninth Circus overturned Prop 8. The Ninth Circuit said Prop 8 is unconstitutional; you can't deny homosexuals the right to marriage. If the Supreme Court decides they're not gonna hear this case, and if they do indeed decide to dismiss it, as I'm told and I understand it, then same-sex marriage is the law of the land in California.

The reason why I'm confused is because the same people are saying two different things. Let me explain it again. SCOTUS tweets. One tweet says Kennedy just doesn't have it in him to invalidate Prop 8. Meaning, he doesn't have it in him to tell the people of California they were wrong. This is what they say at the SCOTUSblog. Okay? So that means that Kennedy is uncomfortable invalidating it, right? He doesn't want to invalidate it. So then they say that Kennedy prefers to just dismiss the case, which would invalidate it, because it would let the Ninth Circus trump Prop 8.

You still confused? Okay. What are you confused about? See, this is what I mean. This is so damn convoluted -- and, by the way, there's no ruling today. There isn't gonna be a ruling on this 'til June, end of June, about the same time the next iPhone's announced. I can tell you what I'll be looking forward to more. The next damn iPhone release. That's the day before. That's what they say. They say Kennedy... First thing. They say that right now the SCOTUSblog, there are not five votes to tell the people of California to go to hell.

There are not five votes to give the same-sex marriage crowd what they want, right now. There are not five votes to uphold the Ninth Circuit. Does that help you? Okay. But if Kennedy succeeds in getting case dismissed, the Ninth Circus is upheld. (interruption) Well, Snerdley, yes, it limits the damage to California. But that's what the case is about, California. (interruption) Well, they can do three things. The court could reinstate California's ban and leave each state to make its own decision.

The court could issue a narrow ruling that would create a right to gay marriage in California only, maybe a few other states, or it could announce a constitutional right to gay marriage everywhere. They could do anything they want. It's the Supreme Court. Do you realize how stupid this is? Do you realize what the problem is with all of this? The problem is that, once again, nine exalted lawyers are determining something that has been a tradition since beginning of time. Nine exalted lawyers.

Folks, it's like I said yesterday. What really is going on here is the left is forcing their agenda on us. They don't care whether there are popular votes to support it or not. That doesn't matter. It's gonna be forced on us however, whichever, whenever. It doesn't matter. Pure and simple. Ah, of course there's more to this. I mean, one of the women that the case is about went to the microphones after the oral arguments. I think her name is Stier, S-t-i-e-r.

It's all about love from me, she says, and that's the argument that the pro-homosexual marriage are making. It's emotional. It's all about love. That's what is appealing to the young people. "Who can deny anybody love? Why, who should have that power? Why, nobody should be able to deny people love," and so forth. So on that's how they're selling it. But Kennedy, you know, he's kind of saying, "What the hell are we doing here? Why is this case before us? It's not what we're here for."

But in doing so, if they dismiss the case, then Prop 8 is invalid just like Prop 187 was. Just like every other election and every other proposition it seems lately in California, whatever the people there decide gets overturned by a judge somewhere, and that would be the case here if it is dismissed. Look, I'm sorry for sharing my confusion with you, because in the process now you're getting confused. I can tell by looking at Snerdley. You probably thought you had this understood from front to back, side to side; now you don't know what's going on. Well, join the club.

BREAK TRANSCRIPT

RUSH: So take the four justices here. It takes four justices to take up a case, but even if four justices agree to take the case, it doesn't mean that there are five justices to rule in favor of gay marriage. Now, if this Bloomberg story is correct -- and it does dovetail with the SCOTUSblog. In fact, SCOTUSblog could be the source for the Bloomberg story. It could well be that what we're looking at here is the Limbaugh Theorem applying to Justice Kennedy.

It could well be that way, because, folks, if Kennedy doesn't want to invalidate this but yet somehow manages to get the case dismissed, he does invalidate it. So it's a way of getting Prop 8 invalidated without him actually so ruling (i.e., his fingerprints wouldn't be on it). That's one possibility. The other possibility is he really doesn't think this case belongs there, that this is way beyond what the court's purpose is, and it could well be that there are some justices who do not.

As I said yesterday, this is a stretch, too. I know, but it's still possible. 'Cause if gay marriage ends up becoming legal all across the country without a corresponding vote of the people, we're going to have as roiled a society on that issue as we do on abortion. I made that point yesterday. So there are a number of possibilities that exist here to explain what's going on. Of course, we're not gonna know anything until June, late June, when the ruling is scheduled to be announced.

Much more straight ahead. 

BREAK TRANSCRIPT

RUSH:  Let me tell you, folks, why I'm frustrated about this.  Because there is something here at the root level of all this that needs reminding, and it is where we are in America today.  And that is the will of the people doesn't mean anything.  In California, there was a ballot initiative, Proposition 8, on which the people of the whole state voted, and by a large majority, despite a lot of money being spent on ads to the contrary, a large majority, the concept of same-sex marriage was defeated, in the whole state of California.  The will of the people was expressed in a perfectly legal and valid election. 

Well, the will of the people never would go the way of the left if the way of the left were clearly on every ballot.  The left knows this.  The will of the people -- we are a constitutional Republic.  This is a ballot initiative system in California where the people can engage in -- for lack of a better term -- direct democracy.  And they did, as I say, in a perfectly legal and aboveboard election, the people of California in a wide margin said "no" to same-sex marriage.  The opponents, not recognizing defeat, went to the Ninth Circus Court of Appeals, a friendly, radical extremist left-wing court where Proposition 8 was overturned on the grounds that it's unconstitutional. 

So then the will of the people of California, having been thwarted by a court yet again, proponents of Prop 8 then petitioned the Supreme Court to hear the case for the express purpose of overturning the Ninth Circuit.  At that point, four justices of the Supreme Court -- there have to be at least four justices to take up a case, have to vote to take up a case.  So in this case we know that there are at least four justices on the Supreme Court for gay marriage.  It only takes four to force the issue before the court. 

Now, we don't know if that's what happened, but it's certainly possible.  Now, Justice Kennedy, based on oral argument only, and that's tenuous at best, but the SCOTUSblog people claim to be expert at analyzing and predicting, Kennedy is saying, why is this case here in the first place?  In oral argument he made it clear he doesn't even know why they're deciding this case.  So it's conceivable at least that five justices will say there's no standing by the plaintiffs in this case, the pro-Prop 8 people, since there's no damage, that is, same-sex marriage is the court-ordered law in California by virtue of the Ninth Circuit invalidating proposition 8. 

Now, what the Supreme Court ought to do is reverse or overturn the Ninth Circuit and say it's a state constitutional matter or statutory matter, it's not a federal matter.  This is why all those Republicans who sign their public relations brief, that's what a lot of people are calling it, the PR brief, this amicus brief obviously don't believe in the Tenth Amendment.  This case ought not be at the US Supreme Court, and Kennedy instinctively knows this, by virtue of asking twice if the most prudent thing to do here would be not to rule on this at all, just dismiss it.  But that's the lazy way out.  Dismissing the case results in Prop 8 being overturned. 

What they ought to do is say, "We're sending this back. We're overturning the Ninth yet again. They had a totally legal election out there.  The will of the people has spoken, and it is what it is."  But the will of the people doesn't match what the left wants, and therefore it can't stand.  Here's, again, where we are.  According to oral argument analysis today, Justice Kennedy twice asked whether the best thing here would be just not to rule, i.e., dismiss the case.  A previous prediction from SCOTUS said of Justice Kennedy that he just doesn't have it in him to invalidate Prop 8. He can't bring himself to vote to invalidate it, i.e., agree with the Ninth Circus.  He believes in the will of the people.  That's what they're telling us.  It's a wild guess, it's an interpretation, 'cause he didn't ever say that.  They're just basing it on oral arguments, comments, questions, so forth. 

But in the process of invalidating it, or dismissing it, rather, then if the court says, "You know what, we're not taking the case, that's it, it's over with," then the last legal ruling stands, and that would be the Ninth Circus, which would mean in a Proposition 8 would be overturned, which would mean yet again the will of the people doesn't matter.  And that's what the United States Supreme Court will be saying if they dismiss the case, that the will of the people doesn't matter. 

Now, the Limbaugh Theorem may apply here.  The Limbaugh Theorem explains with ontological certitude how Barack Obama gets away with inflicting his agenda on the country without the people realizing it.  Same thing here.  Justice Kennedy may in fact want to invalidate Prop 8 but doesn't want fingerprints on it.  So, he can accomplish invalidation without voting on it by urging the court to dismiss it.  And that would be how the Limbaugh Theorem enters into this.  Proposition 8 was approved by a 52-47% margin.  And that number is even more remarkable when you consider that Obama won California with 61% of the vote.  Prop 8 went against the way the state voted for Obama. 

Now, there is another reason why they want to proclaim same-sex marriage a civil right.  You can overrule state laws if there is a civil right involved.  And the additional benefit to calling it a civil right is that people who oppose it are then bigots.  And nobody wants to be a bigot, and nobody wants to support bigots, and so therefore everybody that voted for Proposition 8 in California, i.e., to uphold the standard definition of marriage between a man and a woman, would be a bigot, and thereby bring public pressure, nobody wants to be a bigot, "Oh, no, no, no, no, okay, okay, I'll change my mind." 

California blacks, African-Americans voted overwhelmingly for Proposition 8 by 70%.  Seventy percent of African-Americans voted to affirm marriage as that between a man and a woman by over 70%.  Even California Hispanics voted to affirm marriage as that between a man and a woman by 53 to 47%, slightly higher than the general population.  So in every way you can analyze it, the will of the people in the state of California was to affirm marriage as that between a man and a woman.  But the will of the people doesn't mean jack diddly when the left wants something.  In fact, the vast majority of times when the left wants something, it must be against the will of the people. 

I would maintain to you that this country's being governed against the will of the people, if you look at every Obama issue.  A majority, minimum majority, 55% of the people oppose the Obama agenda.  They just don't associate that agenda with what's happening in the country.  Again, the Limbaugh Theorem explains that.  But what the court ought to do, because the will of the people should trump here -- nothing that happened was unconstitutional.  There was nothing that was illegal about the election.  There was no chicanery involved.  It was a clean, aboveboard election, will of the people, people of California spoke in a constitutional way in that state, the Supreme Court should just overturn the Ninth Circus ruling, say that it's a state constitutional matter or statutory matter, not a federal matter.  But they're not gonna do that, obviously, they're going to, one way or the other, if the SCOTUSblog is right, one way or the other, when this is over, same-sex marriage will be validated. 

Now, that doesn't mean that the same-sex marriage proponents are happy today.  I've got some sound bites, and they're a little bit frightening, just like they were after oral arguments in Obamacare.  And it's kind of interesting.  Jeffrey Toobin is in a sort of panic, because it's all on Kennedy here.  He's also a little bit upset because he thinks that Roberts was not sympathetic to his lesbian cousin.

END TRANSCRIPT

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