"Marriage is not something that states have ever been obliged to recognize if it's been against their own public policy," said Tribe, who has testified on the subject before Congress. "Same-sex couples in Massachusetts are neither better nor worse off with DOMA repealed except that the repeal of DOMA is a way of telling that couple that their marriage in Massachusetts is not going to be made the subject of a symbolic and ineffectual slam by the federal government."
The public policy exception cited by Tribe is a well grounded one.
But by staking out a position on DOMA that is decidedly to the left of his Democratic presidential rival and to the left of the last Democratic president, Obama could open himself up to the charge that he is not taking all possible steps to block the spread of same-sex marriage by judicial fiat.
Referring to Clinton's support for partially repealing DOMA, Kmiec said last year, "Clinton's position is the more logically consistent position: If an individual is in a state-recognized same-sex marriage, they will not [under Clinton's approach] suffer any different treatment [from heterosexual couples] under existing federal law."
"Whereas Obama's position," Kmiec continued, "not only gives an endorsement to same-sex marriage in the context of federal law, it also makes it less likely -- not more likely -- that the states that favor traditional marriage will be displaced in their judgment."
Tribe rejected Kmiec's warning last year by arguing that a court that feels compelled to recognize a same-sex marriage conducted in another state can do so even with DOMA in place.
Referring to DOMA.'s relationship to the Constitution's Full Faith and Credit Clause, Tribe said, "a state that fits professor Kmiec's hypothetical would be a state that would not be influenced by Congress anyway, because an act of Congress is subordinate to the Constitution."