Why DOMA was unconstitutional

The following column was written on July 2 by Abu-Jamal, a political prisoner at SCI Mahanoy in Frackville, Pa.

It made history, surely, when the U.S. Supreme Court struck down, on equal protection grounds, the Defense of Marriage Act of 1996.  It found that the section of the law which prohibited federal benefits to gay and lesbian couples, married in states where such unions were legal, violated the Constitution.

While the decision was typical for Justice Anthony Kennedy, who is given to florid prose and grand gestures, and also one who has assumed the role of the Court’s coveted swing vote, its very narrowness may make it short-lived.

But, as in any small group — and the Supreme Court is ultimately a group of nine people — conflicts arise among personalities as well as political ideologies.

While equal protection has historical and heartstring appeal, DOMA could’ve been resolved on other grounds that might have achieved more unity on the Court. That principle was important in the historic Brown v. Board of Education 1954 case, condemning school segregation under the late chief justice, Earl Warren.

In the original Constitution, Article IV is set the “Full Faith and Credit” clause, which directs states to respect the laws, court rulings and legislation of other states.

Even an avowed originalist like Antonin Scalia would be hard-pressed to deny the clear language of this clause, and conceivably — conceivable — if Justice Scalia were intellectually honest — the logic of Article IV would compel all of DOMA to be reversed.

If that were the reasoning of the Court, their decision may’ve been 8 to 1 (given Justice Thomas’ deep intransigence), instead of 5 to 4, and thus, on stronger, more sustainable constitutional ground. It also is a lesson on the nature of our political class; a Congress that passes and a President Bill Clinton — a constitutional law professor, no less! — that signs a law so obviously unconstitutional.

What does that say of such a system, except that it’s broken?

Finally, marriage needs no defense; and the best defense is good jobs and good schools. But that’s too much for Congress to concern itself with.