By Mark David Blum, Esq.

The Majority of Judges who sit on New York’s Highest Court, the Court of Appeals, lost their spine and instead stood their Decision on Gay Marriage upon the backs on children. I verily believe that history will show how this Court’s opinion will rank right up there with Dredd Scott as a seminal exemplar of how ignorance and religious zealotry were wrapped in the cloak of legal justification.

In a case brought by 44 couples; same gender adult couples who wanted to marry here in New York, their issue was completely ignored by the Court in its opinion. These folks rightfully argued that a legal block to their marriage was a violation of their Equal Protection and Due Process rights. “All men are created equal” declared our independence. The Fourteenth Amendment to our Constitution guarantees to all citizens the right to equal protection of the law.

Our Court of Appeals ignored these questions raised by adults. Instead, the entirety of their lecture was focused upon children. Mentioned more than 25 times, the words “child” or “children” formed the basis for every argument; however circular.

Consider these excerpts:

“A person's preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State's interest in fostering relationships that will serve children best.”

“The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only. There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.”

“Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”

I recently got into an email war with an attorney in Washington D.C. who continually writes for the ultra rightwing conservative blogs. He premised an article on how we should ignore the United States Supreme Court because he, the lawyer claimed, that the Court had no legitimacy in its’ decision on Hamdan … the case recently decided declaring the President’s ‘commissions’ to try prisoners to be illegal. Despite my continual lectures on Marbury v. Madison and on co-equal branches of government and on how the Supreme Court is the Supreme law of the land, this attorney posed a question. “I have a question for you: Can you think of *any* decision by the Supreme Court, however hypothetical, that you would agree should not be obeyed? If not, then you believe we live in a judicial tyranny. But if you can think of such a decision, then the real debate is over the particulars of this case.”

To date I had not responded because it is indeed a very tough question. Or so I thought. Unequivocally I can state that the United States Supreme Court could issue no decision which I feel should not be obeyed. To disobey that Court would be akin to disobeying the law itself; disregarding a statute by Congress or ignoring a command issued by an armed member of the Executive. Many have been the decisions of that Court with which I have disagreed. Most notably of late was Bush v. Gore. But the Supreme Court is the Supreme Law of the Land. So, when I respond to that attorney, I will have to respond in the negative.

To New York’s Court of Appeals; the same question should hold. “I have a question for you: Can you think of *any* decision by the Court of Appeals, however hypothetical, that you would agree should not be obeyed? If not, then you believe we live in a judicial tyranny.”

I do believe we have entered an era of tyranny. It is not the tyranny of the Judiciary or the tyranny of totalitarianism. The United States has entered an era of tyranny by religious extremism. What is passing for “law” nowadays is nothing more than the dogmatic evangelical ideologies of a handful of loudmouthed Christians.

When the Court of Appeals said in its Decision that, “[i]ntuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.” Did the Court really feel that gay parents raising a child would isolate that child from all members of the opposite sex? Do not children come into contact with members of each gender every moment of their public lives? Ignorance and presumptions drove the Court’s opinion.

But the ultimate Christian tyranny was shown in the Decision when the Court stated that, “Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.” If memory serves, the same arguments were advanced by the Church to quiet Gallileo. Once upon a time, the entirety of human existence believed that the earth was flat, that dragons ruled the seas, and that White Anglo Europe was the entirety of humanity. Ours is a nation with the memory of a gypsy moth. Ask Mr. Korematsu.

So now that the Court has established the precedent that marriage is but a minor and insignificant social option with little or no legal protection. Who can and cannot be married will go forward for another generation based solely upon the criteria of Christian extremists.

Make no mistake: Limiting marriage to a man and a woman is a religious belief. It is one founded in Christianity and for so very many years has become the norm. Worse, it has wormed its way into civil law in that no State presently sanctions marriage for other than one man and one woman. States like Vermont have created a new legal animal called ‘civil unions’ that give marriage-like rights and benefits to non-heterosexual couples. But, such unions miss the main point of the issue. The doctrine of ‘separate but equal’ died with Ms. Plessy.

Society has no interest in assuring that marriage remains a heterosexual relationship. We cannot succumb to claims that marriage is about procreation when we tolerate couples to be legally married who do not intend to have children, who cannot have children, or who are post-childbearing. There is also no basis that marriage has to be between man and woman “because that is the way it has always been done” when we live in a world where slavery, pedophilia, and imperialism were likewise once the norms.

You would think the nine justices of the Court of Appeals who wear the robes of being the final arbiter of the law here in New York would exercise their power and enforce the law. That Court was the last line of defense for citizens against a corrupt and tyrannical government. Rather than do its job, the Court manufactured as many excuses as it could for a legislative justification for mandating mixed gender marriages. ‘Marriage’ was gutted from being a fundamental privacy right and turned into a monster which serves at the whim of the government. In its final paragraphs, the Decision wimpishly cries, “hey its not our job” and turns to New York’s Legislature for a solution.

With all State Offices up for grabs this election cycle, the question is now out there.

Where do your candidates stand on this issue? Are they members of the Flat Earth Society or are they visionaries?

The future happiness of your children and grandchildren depend on it. This is especially so since you do not know if any of them will be gay. Will you be the coward that our Vice President is and turn your back on your children or will you take a stand now and fight for their happiness?

Let us be the great People that we are. Let us learn to accept and tolerate those who do not think or live as we do. We are a pluralistic nation and as such, there has to be room for more than one idea. My idea is that we allow anybody to get married to anyone they choose. From those unions, our nation will thrive and grow and find enlightenment.