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RUSH: Let’s not forget one key element here. If the court dismisses the case, then it would avoid having same-sex marriage nationalized and imposed on every state. If the court dismisses and thus denies standing — saying the litigants have no standing — then they can’t issue a ruling if they dismiss it. They obviously can’t issue a ruling which would legalize gay marriage across the country. In that sense, you could say that having the case dismissed would be avoiding, or dodging, a huge bullet. So there is that. Now, we’ve got a litigator, an appellate litigator in Los Angeles on the phone named Anthony. Anthony, hi. I’m glad you called. Welcome to the Rush Limbaugh program. Hello.

CALLER: Hi, Rush. How you doing today?

RUSH: Confused as all get-out is how I’m doing about everything today.

CALLER: Okay. Well…

RUSH: I’m not sure it’s daytime.

CALLER: Maybe I can clarify a little but before I do, could I make a quick plea to your listeners? I haven’t read the oral argument transcript, but based on your recitation of it, it sounds like there were votes up for grabs. Now, what this means is between now and June, the left is gonna be writing articles nonstop saying that if the court affirms Prop 8, the court will be disregarded from the perspective of history.

RUSH: No question about it.

CALLER: So what conservatives need to do is they need to counter the campaign. They need to write articles. They need to get out there and say, “If the court invalidates Prop 8 or allows Prop 8 to be invalidated, the court will bestow upon this country an incredible harm that will have to be litigated for years like Roe v. Wade.”

RUSH: Exactly, exactly. The problem, Anthony, is there are a bunch of Republicans (not necessarily conservatives, although some of them are) who have signed on to the amicus brief for the Ninth Circuit version of this.

CALLER: Right, but there are plenty of experts in your audience that could write letters to the editor.

RUSH: That is true.

CALLER: Anyway, to the standing issue in the case. It’s kind of conflicted, but here’s the crux of the issue. When prop eight was determined, the opponents of Prop 8 went into federal court and they said, “This is unconstitutional.” The state at that point was required to defend the proposition, the state government, which was run by Jerry Brown at the time.

RUSH: Right.

CALLER: I believe it was Jerry Brown because he was the attorney general. They defended Prop 8. I’m not sure they put up a vigorous defense. It may have been halfhearted, I don’t recall, so I’m not gonna make any statements one way or the other. But the court ultimately said Prop 8’s unconstitutional. When the case went up on appeal, the State of California said, “We’re not gonna defend Prop 8 anymore,” and by the state of California dropping out, it created a question: Is there really a controversy anymore, because no one’s opposing the ruling below that said Prop 8 is unconstitutional?

So what the Ninth Circuit did was it said the proponents of the ballot proposition, the people who put the ballot proposition on the ballot could actually go into the appellate court and defend the proposition. The Ninth Circuit said, “They have standing to do that,” and once the Ninth Circuit made that standing determination, it went on to consider the merits of Prop 8, and it determined that Prop 8 was unconstitutional — and it fudged it a little bit. It didn’t declare Prop 8 unconstitutional because —

RUSH: Okay, I’ve got 30-seconds. Now, take me to the Supreme Court, what you’ve learned about what happened today.

CALLER: All right. Just based on your comments, what it seems like is either it’s one of two things would happen: The Supreme Court was considering to reverse the Ninth Circuit on the standing issue, which would mean the Ninth Circuit opinion would actually be vacated, and the only opinion left would be the trial court decision, but I don’t know what that means because this is such an odd situation.

RUSH: You’re right. This is all up for grabs, and it’s very premature because it’s all speculation. But I haven’t seen anything that at all refers to this court determining whether or not they’re gonna overturn the Ninth. They should, but I haven’t seen that that was interpreted by anybody watching this as something that was being considered by the Supreme Court.


RUSH: I really didn’t have enough time for Anthony to get to the point that he was really trying to make. What Anthony, our litigator from California, was saying was: The original litigants, the state of California, dropped out of the case as it went before the Ninth Circus and another group came in, and it is that case that the Ninth ruled on. So if this new group, as I understood Anthony’s point — and this could be all wrong, too. I’m just sharing with you. We had a caller, and you may not understood what his point was.

I’m trying to elucidate it for him since he didn’t have time to squeeze it in. Essentially this new group did not have standing, and if that is the basis of a Supreme Court ruling, then the Ninth Circuit case ruling would be invalidated and Prop 8 would be upheld. Now, all of this is why I am profoundly confused, because it’s all speculation. There’s nobody here today anywhere that can tell you what any of this that happened today means because there is no vote, and there’s not gonna be a vote until June.

So we are left to the analysis of so-called experts whose lives are devoted to analyzing what the justices say and mean during oral arguments and so forth. So the standing question, in other words, goes back to whether the original proponents of Prop 8 had a right to defend it in court once Schwarzenegger and Brown dropped the state from defending Prop 8, which is what Anthony said happened. The Ninth Circuit said that they did and then ruled against them.

But if they had no standing, then the Ninth ruling should go away, too. So it is possible — and this is why there’s confusion. It’s possible, as it’s known now, that dismissing the case could either uphold the Ninth Circus or invalidate it, and until I have a better grasp on the whole concept of standing in this case — who has it and who doesn’t or who the court might rule has standing and who doesn’t to even bring the case… Because Kennedy was saying, I just wonder if this case was properly granted.

That means, does anybody here have standing to even bring this case to us based on what he was hearing from the people participating in oral arguments. Now, the proponents of Prop 8, for what it’s worth, are called “the National Organization for Marriage.” Now, while all this is going on, the low-information voters out there are wondering what happened or is happening to Amanda Knox. We haven’t delved into that. So, anyway, I just wanted to clear up what Anthony, our caller from California, was talking about.

It does come down to this standing issue and who has it and who doesn’t, and what the court might rule. The original interpretation was that the Ninth Circuit could be upheld if they dismiss the case. But now Anthony said, “No, wait a minute. Wait a minute. It depends on who’s got standing here and who doesn’t.”


RUSH: Wayne in San Diego, next, great to have out program, sir. Hello.

CALLER: Hello, Rush. Mountain biking San Diego dittos to you today.

RUSH: Thank you, sir, very much.

CALLER: A quick point on the subject of thwarting the will of the people. Of course, in California we have a long history of that. I was pointing out to Bo Snerdley that this is the second time — or Prop 8 was the second time that we voted on that issue in California, and Prop 8 was a result of the first one being invalidated by the state court. So when they came back with Prop 8 it was an amendment to the California Constitution. So just a further example of the will of the people being thwarted on that.

RUSH: Just like Prop 187.


RUSH: Just like Prop 10. Like Prop 94. Well, Justice Roberts, I should point out since this whole standing issue has been raised, Justice Roberts today also questioned the standing of the defenders of Prop 8. Now, that’s important, because our caller from LA, Anthony, said that Prop 8, when it went before the Ninth Circus, the original proponents of the law didn’t show up to defend it, and others had to go in there, and they went ahead and heard the case anyway. And now the Supreme Court is saying, “Wait a minute, did the people that were defending Prop 8 before the Ninth Circus even have standing?”

Now, if that’s the question that they ultimately decide on, then I can see Anthony’s point. If the Supreme Court says that the argument before the Ninth Circuit was invalid because the proponents, the original proponents of the law were not there, then they could reject the Ninth Circus ruling. And if they did that, then of course Prop 8 would stand, it would be validated, until the bomb goes off somewhere or whatever next step the proponents would take, would be.

This is sort of like, folks, trying to predict the Oscars. It’s the same people basically trying to predict what the outcome of the Academy Awards is going to be. It’s interesting speculation, but we really won’t know anything until the next iPhone comes out.


RUSH: New Jersey. Jeff, welcome. Great to have you on the EIB Network. Hello.

CALLER: Good to speak to you, Rush. Your first caller was very good in terms of explaining the standing issue but I just wanted to add a couple of points. A couple of times he’d said that if they did reject the case or turn down the case because of the standing issue, the Ninth Court would not have standing also and therefore their decision would be vacated. That’s true. And I think a couple times you said that then Prop 8 would survive. Well, that’s sorta “no” and “yes.”

RUSH: Well, see, this is the reason I started out confused today, ’cause I’m reading both.

CALLER: Yeah, well…

RUSH: At the SCOTUS Blog, both analyses are being offered It does boil down, as best I can tell, to standing — who has it and who doesn’t — and therefore whether or not this case ought to be at the Supreme Court. Is that what you want to add to?

CALLER: Well, yeah, I wanted to add, at the district court level, which is like the trial court level for federal courts, they ruled in favor of the gay couple, Kristin Perry and I forget who her spouse was, and there was another male couple. So the district court ruled in favor of that. So if all those appellate courts get tossed out for lack of standing, the district court ruling would still stand. So Kristin Perry gets to get married, the other male gay couple gets to get married, but district court rulings don’t have any precedent beyond that particular court. Presumably if another couple went back into the Northern District of California again and go Judge Walker again, who was the judge in that case, they’d probably win again. But it has no legal standing as opposed to the Supreme Court, which handles all federal cases, and the Ninth Circuit, which would handle all the states that are in the Ninth Circuit.

RUSH: Well, what I understand happened — and our first caller was Anthony from LA. He said, essentially, that the State of California refused to defend the law.

CALLER: That’s true

RUSH: The state refused to defend it before the Ninth Circuit and that they’re legally required to defend it, and they didn’t do it. Therefore the Ninth Circuit ruling could be vacated? Is that what he was saying?

CALLER: Well, they did refuse to do it. They’re not required. It’s usually traditional because it’s the law of the state. It’s sort of like Obama refusing to defend DOMA, okay? It’s sort of common practice for the state or the federal government to defend their own laws, even if they don’t like the laws. However, there’s no constitutional requirement that they do so. Once a party decides not to appeal… Your listeners may be a little confused about this legalese about standing. Not any Tom, Dick, or Harry could go into a court and just argue a case. If I think, you know, Martha Stewart was unjustly convicted or something, I can’t go in there and appeal her case. She has to go in there, because she has an interest in the case.

RUSH: Right, so let’s keep it at Prop 8 and the Ninth Circuit. What happened there?

CALLER: Well, as your first caller Anthony said, the state refused to defend it. So at that point there’s nobody defending Prop 8. The proponents, the people that put it on the ballot — I forget the name of the group. You mentioned it before.

RUSH: National Organization for Marriage.

CALLER: Yeah. They said we want to step in and defend Prop 8 in court. The Ninth Circuit was a little queasy on that and they sent it to the California Supreme Court for certification as to whether, under state law, the proponents of the ballot initiative could step in the shoes of the state government and defend the case. The state Supreme Court came back and said, “Yes, they can,” and so the Ninth Circuit said, basically, “Well, good enough for us. We’ll let them defend it in the court.” What brings this up was about 15 years ago in a case, not exactly the same, but it was an Arizona case. I think it was Arizona. I forget the name of it now but it had to with an English. It was a ballot initiative in Arizona dealing with English only, and the proponents were trying to defend it in court, and the Supreme Court…

It wasn’t really on point to the case, but they raised the prospect that they weren’t too keen on giving standing to proponents of ballot initiatives, that it had to be the state. This one is sort of up in the air because, again, the state supreme court is saying, “Yeah, we don’t have a problem with the proponents stepping in our shoes,” but, on the other hand, it is a federal question so therefore it’s up to the federal courts to really say whether they have standing or not. And just to give you a little heads-up, Justice Scalia — I didn’t see the oral arguments today, but he — has had a history of not being loose with giving standing to organizations.

RUSH: Okay. Let’s make it simple for the laypeople here. If the Supreme Court decides that anybody at the Ninth Circuit, when this case was appealed there did not have standing, what does that mean?

CALLER: It means Kristen Perry and her bride or… I don’t know what you call two brides.

RUSH: Just keep it in terms of gay marriage. Does it stand or not?

CALLER: In California, the two couples that brought the case would be allowed to get married and everything else in terms of the law being strictly overturned, no. They would have to go back and bring another suit like a class-action suit.

RUSH: So Prop 8 would be overturned and anybody in California could get married?

CALLER: If they do it just on those grounds, no. It would just be… If they throw it out on standing, the appellate court case goes out. It’s thrown out and the Supreme Court basically says nothing about it, and the only thing that stands is the district court ruling and the only thing the district court effect has would be —

RUSH: I am more confused than ever now.

CALLER: I’m sorry I did that to you, Rush.

RUSH: (chuckling)

CALLER: (chuckling) Maybe you have to talk to The Great One. Maybe he can explain it better than I’m explaining it.

RUSH: No, I thought you were calling to confirm what Anthony said, and when I told you what Anthony said, you said, no. So that’s why I’m confused.

CALLER: No, no, I’m —

RUSH: Anthony said that there was no standing at the Ninth Circuit, that the state didn’t defend it, and therefore the case ought not even be at it Supreme Court.

CALLER: Right, I agree with that.

RUSH: The Supreme Court can say, “This case has no business being here because it wasn’t legally tried in the Ninth Circus. We’re throwing it out. We’re not hearing it.” At that point, Prop 8 is upheld because the Ninth Circus ruling is invalidated. That was his point.

CALLER: I can’t you, I agree with basically all of that with the one caveat that the two plaintiffs in this case, the real people, the ones nobody really cares about, ’cause everybody looks at this as a —

RUSH: Wait a minute! We love those people! Don’t say nobody cares about them!

CALLER: No, no, no, no. I didn’t mean as a group. I mean, everybody’s concerned about this case in terms of what does it mean for the country, what does it mean for California, what does it mean for Arizona, blah, blah, blah. There’s actually real people in this case, okay? There’s four people, a male couple and a female couple.

RUSH: Right here.

CALLER: Those people would get to get married in spite of the lost standing.

RUSH: Okay.

CALLER: The district court ruled in their favor.

RUSH: But nobody else could.

CALLER: It would not be overturned at this point. That’s correct. Now, what might happen is the next person who goes to court is gonna have to go back and say, “Look…”

RUSH: You know what all this means? You know what all this means? There is no reason any of this should be at the Supreme Court. This is preposterous. This whole thing is reductio ad absurdum or whatever the hell it is.

CALLER: (laughing)

RUSH: I can’t believe this, and I’ll bet Scalia can’t believe it.

CALLER: I agree it shouldn’t be, but I’m just clarifying. Thorough if they did do it on standing that would probably be a very, very big loss for the gay marriage community, because, again, even though that technically —

RUSH: That was Anthony’s point —


RUSH: — that it would be a huge loss, and even at that, the court apparently is gonna rule with this within the context of the state of California only. That’s the only thing that can happen in the ruling, but based on what the interpretation the oral arguments are today, they’re not gonna end this thing by proclaiming gay marriage the law of the land everywhere. So, okay. Well, look, Jeff, I appreciate the call. Thanks much. We’re wading through this. I knew I wasn’t wrong to be confused when this day started. I knew I wasn’t wrong. I’m just the epitome of normal here. Everybody else is confused, too.

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