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SCOTUS Questions on Gay Marriage Would've Been a Sanity Test in Earlier Eras

BEGIN TRANSCRIPT

RUSH: You know, I got a note from a friend last night and this is a really good point. This guy, he was in California about the same time I was. I was in Sacramento from 1984 through 1988. I remember -- and I'm sure all of you who were of adult years paying attention back then, which seems like yesterday to me -- the eighties seem like yesterday to me. It does not seem like ancient history. It's tough for me to realize, but, to a lot of people, the '70s and '80s are ancient history. I loved them. I mean, they seem like yesterday to me, still like I'm living them in a sense.

Anyway, I can remember, I was in Sacramento and one of the world's most famous feminazis came to town, this babe named Andrea Dworkin. Whenever she went to a restaurant, they had to expand the door. They had to send a carpenter in there and enlarge the doorway so she could get in. Anyway, she came in and she was one of the roving band of feminists that was preaching against marriage, as slavery. She was a lesbian, and sex in marriage was rape. And remember the law professor at the University of Michigan, the otherwise erstwhile famous feminist, Catharine MacKinnon? This is, what, 25 years ago, was teaching that even sex in a loving marriage was rape because it involved the subjugation of women.

Now look where we are. Now the same people who were out there trying to tell everybody that all marriage was slavery, now look at the big reversal that's taken place. Now what do you think explains the difference? Off the top of my head, I mean, I could come up with a couple of different theories, but I hadn't thought about it until last night when I got the e-mail. Because the note from my friend pointed out that five, ten years ago the whole notion of gay marriage hadn't even been heard of, I mean not popularly. There might have been pockets of places in the country where it was bubbling up and being talked about, maybe 15. But clearly it wasn't that long ago where not only was gay marriage not on the docket, but marriage itself was impugned and blasphemed and criticized all over the place in modern liberal doctrine.

And now look at the massive reversal that we've had. There has to be a reason for it. And, of course, all of this coming under the umbrella of love is simply the marketing. And, boy, I tell you, I've had a chance now to look at some of the oral arguments, and some of the liberal justices had some of the most penetrating, sensible questions yesterday. Like the wise Latina, the Associate Justice Sonia Sotomayor. She was saying (paraprhasing), "You know, we don't have any experience with this. We have no way of knowing and we've got countless centuries, multiple centuries, of experience with opposite sex marriage." (laughing) Opposite sex marriage. "But we don't know anything about same sex marriage." 

She went on to say, "Given the terms in which you are..." She made more sense than Ted Olson made. She said, "Given the way you are selling this --" this is my word, not hers " -- given the way you are selling this, how are there any limits on this behavior, as long as this is a right.  Where are there any limits on this in terms of who can marry who and how many times and so forth." And Olson started arguing (paraphrasing), "Well, it's a right based on behavior." And that caused her to, well, not flip her wig, but she nailed the guy. I mean, it was classic. Here it is. Judge, Justice Sotomayor: "Mr. Olson, the bottom line that you're being asked -- and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what state restrictions could ever exist?"  And the wise Latina is right, at least on this one implied point. If this restriction is unconstitutional, what restrictions are not unconstitutional?

For example, marriage, you look it up in the dictionary. It's a union of a man and a woman.  But, all of a sudden, it isn't going to be. It's going to be a union and a man and a man, a woman and a woman, or -- that's her point -- where are the restrictions. If marriage no longer means what it means, what state restrictions with respect to the number of people? This is the liberal justice asking this question: "What state restrictions with respect to the number of people that could get married, the incest laws, the mother and child, assuming that they are the age -- I can accept that the state has probably an overbearing interest on protecting a child until they're of age to marry, but what's left?"
She's basically asking the advocates, "Where do you stop here?" The argument that many people on the right have made, "Well, okay, what's to stop somebody from marrying their dog?"

"Oh, don't be silly! We're talking about people here."

This judge, this liberal justice, asked the lead lawyer for the proponents of gay marriage that question. Folks, I must say: As I was skimming the transcript from some of the oral arguments yesterday, some of the questions that the justices asked seemed to me like the kind of questions that only used to come up on sanity tests in saner times. I mean, they were asking, as Justice Sotomayor did, "Is there any reason why a man can't marry four women? Is there any reason why a woman couldn't marry her child?"

Now, these are the kinds of questions that courts used to use to establish that somebody's a lunatic, because everybody agreed they were crazy ideas. Now they're being asked seriously, with the request carrying a desire for an intellectual answer, when it used to be thought of as absolute wacko to even consider this stuff. Now the proponents are being asked, "Well, where are the limits? If you say that marriage is a fundamental right, what state restrictions could ever exist?"

See, one of the problems that has... Well, that's not the correct way to phrase this because most people don't even have a problem with this, but it still is a problem. One of the problems with this is the total ignorance -- or if not ignorance, the willful ignoring -- of the fact that rights don't come from courts and that rights don't come from other people and that rights don't come from governments.

Whether Justice Sotomayor knows it or not, that really is the root of her question when she says, "If you say that marriage is a fundamental right, what state restrictions could ever exist?" There really can't be any state restrictions on a right. A right comes from God. A right is natural law. There's a right to be free, the natural yearning of the human spirit as established in our founding documents. Rights are not laws created by government. Rights are deduced by natural existence, natural law.

That's been totally lost. As far as the low-information crowd's concerned, rights come from law, from government, from your side winning and giving you permission to do stuff. Rights have become non-judgmental behavior, largess. But I just found this fascinating. "Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing."

This is what Olson's saying. "[I]f a state prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status." That is nonsense. That is utter nonsense. Now, it sounds brilliant to people that have no understanding of where rights come from. How is a man marrying a man any more or less conduct than a man marrying two women? They're both conduct, but these people say, "No, no, no. The restriction would apply to them."

Well, why?

Once we're redefining it here, where does the redefining stop?

A liberal justice, the wise Latina, was asking that question. She made more sense than Ted Olson did about this. It is clear the court doesn't want any part of this right now. That's the one thing that's clear. You read the oral argument transcripts and it's clear they don't want any part of this. They don't want to touch this yet. They are not comfortable with it, and I think... Well, not all of them because some of the liberal justices can't wait to proclaim this, the new latest, greatest, hip right and so forth.

But even then some of them just, if they could, would kick this down the road. I think they are regretting they took the case. So it is going to come down to standing probably and whether or not, since the state of California doesn't defend it before the Ninth Circus, the people who did in arguing it at the Ninth Circus have standing before the Supreme Court. Ted Olson, the lawyer arguing for homosexual marriage, "said banning gay marriage was 'picking out a group of individuals to deny them the freedom (the court) said is fundamental.'"

Well, banning polygamy would also be picking out a group.

You know that there are people who would marry their pet if they could. I mean, they leave their estates to them. They are just engaging in "behavior." So it is a can of worms that gets opened up, but none of that matters. All that matters is that love is involved here, and love trumps everything. Love conquers all. When there's love involved, nobody has a right to say no to it! Nobody has a right to say anything about it. There's not enough love as it is in the world and who are we to stand in the way of decent, good, productive love? We're just a bunch of fuddy-duddies, just a bunch of people that want to deny people a good time.

BREAK TRANSCRIPT

RUSH: Anyway, folks, the bottom line is that all of this is academic. This is going to happen. Whether it happens now at the Supreme Court or somehow later, it is going to happen. It's just the direction the culture is heading. There is hardly any opposition to this. The opposition that you would suspect exists is in the process of crumbling on it. There is a gay Mafia that has inflicted the fear of death, political death in the Republican Party, for example.

There's a lot of money. They donate most of it to the Democrats, but the societal peer pressure on this is immense, and it's one of these things that people say, "This is not worth the political fallout of opposing. It's not worth trying to educate people as to what problems might result from this. It's not worth the historical explanation of why there is marriage and what its purpose is. It just isn't worth it! It's not worth standing up and fighting it." It will be like the Republicans and every budget deal: "Well, you know what? We'll let Obama have this, but we'll stop him the next time."

It's just going to be one of these things kicked, cans kicked, down the road. 

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