On the November 18 broadcast of The Radio Factor, while discussing the campaign for Proposition 8 to ban same-sex marriage in California, host Bill O'Reilly asserted that if states allow same-sex couples to marry they would be required, “under equal protection,” to allow polygamous marriages. In fact, the California Supreme Court explicitly stated that its May 15 decision that California's ban on same-sex marriage violated the state's constitution did not extend to polygamous marriages. Moreover, O'Reilly suggested that equal protection principles could be applied to require the state to recognize polygamous marriages if same-sex marriage is allowed but did not explain why those principles do not require states to recognize same-sex marriages to the same extent that they recognize opposite-sex marriage.

O'Reilly said to Fox News contributor Mike Huckabee, "[A] lot of evangelicals, a lot of Christian groups -- Focus on the Family -- they worked against gay marriage in California. And I'm -- you just -- I'm always interested in why they opposed it." Huckabee responded, in part, "[I]f they change the definition [of marriage], then where does it stop? Do we tell the people in West Texas, whose cult believes that a man can have 27 wives, that he can't do that? And the answer would be: Why can't he do that?" O'Reilly replied, “Right. Well, that's true. Under equal protection, you'd have to extend that. All right, that's pretty much what I believe, too.” Seconds later, co-host Lis Wiehl stated, “No, you could just say, 'between two people,' ” to which O'Reilly replied, “You can't. Not under equal protection.” He added, “If you're going to change it, then it's gotta be changed, and the blanket is gotta -- the umbrella's gotta go everywhere. You just can't say, 'Well, we're going to make an adjustment here for two people.' Why? Then you have to explain why it's not three or four. And, you know, that's logical.”

In fact, the California Supreme Court's majority opinion striking down the ban on same-sex marriage, in part on the basis that the ban violated the state constitution's equal protection clause, stated: "[T]he constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous relationships." The majority opinion also stated: "[O]ur conclusion that it is improper to interpret the state constitutional right to marry as inapplicable to gay individuals or couples does not affect the constitutional validity of the existing legal prohibitions against polygamy and the marriage of close relatives."

From the California Supreme Court's May 15 ruling:

We emphasize that our conclusion that the constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous relationships. Past judicial decisions explain why our nation's culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry. (See, e.g., Reynolds v. United States (1878) 98 U.S.145, 165-166; Davis v. Beason (1890) 133 U.S. 333, 341; People v. Scott (2007) 157 Cal.App.4th 189, 192-194; State v. Freeman (Ohio Ct.App. 2003) 801 N.E.2d 906, 909; Smith v. State (Tenn.Crim.App. 1999) 6 S.W.3d 512, 518-520.) Although the historic disparagement of and discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment. (Accord, e.g., Potter v. Murray City (C.D. Utah 1984) 585 F.Supp. 1126, 1137-1140, affd. (10th Cir. 1985) 760 F.2d 1065, 1068-1071, cert. den. (1985) 474 U.S. 849; People v. Scott, supra, 157 Cal.App.4th 189, 193-194.) Thus, our conclusion that it is improper to interpret the state constitutional right to marry as inapplicable to gay individuals or couples does not affect the constitutional validity of the existing legal prohibitions against polygamy and the marriage of close relatives.

From the November 18 broadcast of Westwood One's The Radio Factor with Bill O'Reilly:

O'REILLY: OK, why are you against gay marriage?

HUCKABEE: It's not about being against gay marriage, it's about being for traditional marriage. I always, you know, try and say that this isn't about what we're against, it's about what we're for. And we know that if we're going to have a future generation, it's required to have a male and a female give 23 chromosomes each to create the new DNA --

O'REILLY: Yeah, but gays aren't going to -- gays aren't going to infringe on heterosexual marriage. I mean, they're just going to do what they do and then most people are heterosexual, and they'll continue to propagate the race. But a lot of evangelicals, a lot of Christian groups -- Focus on the Family -- they worked against gay marriage in California. And I'm -- you just -- I'm always interested in why they opposed it.

HUCKABEE: Well, I think that if we are going to hold true that words matter and definitions really do matter -- and surely they do -- marriage has historically only meant one thing in all of human civilization. It's meant male-female relationship in the context of creating a new generation and then training replacements. Even in the most definite days of the Greek and Roman Empire, when homosexual behavior was pretty prevalent, they never changed the definition of marriage.

And if they change the definition, then where does it stop? Do we tell the people in West Texas, whose cult believes that a man can have 27 wives, that he can't do that? And the answer would be: Why can't he do that?

O'REILLY: Right. Well, that's true. Under equal protection, you'd have to extend it. All right, that's pretty much what I believe, too. We're losing you on your cell, but I want to plug your book again. The book is Do the Right Thing: Inside the Movement That's Bringing Common Sense Back to America -- Governor Mike Huckabee. And we appreciate it, governor, very much.

You know, that's pretty much my answer, too. You get a -- you get to a situation where if you're going to change the definition of marriage for gays then you have to change it across the board for everybody.

WIEHL: No, you could just say, “between two people.”

O'REILLY: You can't. Not under equal protection. If you're going to change it, then it's gotta be changed, and the blanket is gotta -- the umbrella's gotta go everywhere. You just can't say, “Well, we're going to make an adjustment here for two people.” Why? Then you have to explain why it's not three or four. And, you know, that's logical. All right, we'll be back with your calls and comments.