After inaccurately predicting that the Supreme Court would uphold California's Proposition 8, Fox News host Bill O'Reilly launched a series of flawed right-wing critiques of the Court's marriage equality decisions.
During the July 1 edition of his show, O'Reilly criticized the Supreme Court for its decisions on California's Proposition 8 and the Defense of Marriage Act (DOMA), suggesting that the Court relied on "loopholes" to override public opinion and defending the merits of both measures:
O'Reilly's diatribe is a good example of what happens when a right-wing pundit tries to pass off partisan talking points as serious legal analysis.
He blamed Justice Anthony Kennedy for finding a "loophole" in the Proposition 8 case in order to overrule the will of California voters, even though Kennedy actually dissented in that decision (Chief Justice John Roberts and Justice Antonin Scalia - hardly outspoken proponents of marriage equality - agreed that the plaintiffs lacked standing, with Roberts writing the majority opinion).
While discussing the decision with Fox News political analyst Juan Williams, O'Reilly also seemed to suggest that, if DOMA was really unconstitutional, it would have been struck down by the Supreme Court when it was passed in 1996:
O'REILLY: What happened in '96, Juan? Why wasn't this challenged then on a constitutional basis?
WILLIAMS: If it had been, the Court might have ruled that way.
O'REILLY: Well it wasn't...
WILLIAMS: We don't know what would have happened.
O'REILLY: But it wasn't challenged then. It wasn't by anyone.
O'REILLY: Alright? But now, suddenly something's changed. And now, Bill Clinton's a bigot, as [Ralph] Reed said, and all the other people are bigots because they wanted to uphold a traditional marriage tenant that they felt strengthened the country.
O'Reilly's argument, of course, is a pretty frightening defense of judicial stagnancy. Courts evolve in their thinking, just like societies evolve. American history is filled with examples of erroneous, discriminatory, and even bigoted court decisions (think Dred Scott) that are thankfully reversed over time. The fact that anti-gay discrimination was at one time widely accepted in America does not make laws like DOMA any more legally defensible.
O'Reilly then devolved into his favorite "slippery slope" attack on marriage equality, warning that the Court's decision in DOMA might pave the way for polygamy. It's a popular right-wing horror story, despite never making much legal sense.
In February, O'Reilly uncharacteristically stated that the conservative argument against marriage equality "wasn't strong enough." He certainly seems to be proving his point.