In responses to a questionnaire from the Human Rights Campaign on LGBT issues, 2008 Democratic presidential candidates agree that the U.S. Congress should repeal section 3 of the federal Defense of Marriage Act, which defines marriage for federal purposes as exclusively the union of one man and one woman, and that the U.S. government should recognize same-sex unions established under state laws.

Although this issue does not involve a traditional, interterritorial conflict of laws, it does involve an analogous, interhierarchical conflict, one between the laws of different levels of government in a federal system. In the old Adams v. Howerton case, involving the federal government’s recognition of a putative same-sex marriage celebrated in Colorado, the federal district court borrowed principles developed in the interterritorial context for resolving that interhierarchical conflict. (In fact, there was no actual conflict because Colorado does not authorize same-sex marriage, but the federal court assumed for purposes of decision that Colorado would regard the licensed same-sex marriage celebrated in its borders as valid.)

The HRC questionnaire did not ask candidates about interterritorial recognition. Section 2 of DOMA purports to override the Full Faith and Credit Clause of the federal Constitution and permit one state to deny recognition to same-sex marriages validly celebrated in another state. Presumably, the candidates support section 2 of DOMA. The candidates’ responses offered the following language that may bear on this question:

1. Senator Clinton: no reference at all, although her response specifically said she would “support repealing the provision of DOMA that may prohibit the federal government from providing benefits to people in states that recognize same[-]sex marriage.” A negative inference would be that she does not support repeal of the interstate provision of DOMA, although she did also express strong support for “ensuring [that] people in stable, long-term same[-]sex relationships have full equality of benefits, rights, and responsibilities.” Having one’s marital or civil union status change from state to state would not achieve the “full equality” she endorses.

2. Senator Barack Obama: In elaborating that he would oppose federal efforts to prevent states from establishing same-sex marriages, he stated that he “would oppose any effort to stifle a state’s ability to decide this question on its own.” An extension of this logic would lead to support for section 2 of DOMA, as it purports to leave to each state the power to decide whether to recognize non-local same-sex marriages. But Senator Obama’s response also included the ambiguous statement that he would oppose a bill “like the Defense of Marriage Act” because it would “stifle a state’s ability to decide” whether to allow same-sex couples to marry. The second statement is ambiguous because neither of the operative sections of DOMA prevents any state from allowing same-sex couples to marry under its own laws.

3. Senator Edwards: no reference at all, although his response specifically said he would “support repeal of the [DOMA] provision that prevents the federal government from recognizing same-sex relationships.” A negative inference would be that he does not support repeal of the interstate provision of DOMA.

4. Gov. Richardson: “In terms of marriage and family relations, states have generally recognized other states’ family laws and the federal government should do so as well.” Section 2 of DOMA would not prohibit states from recognizing non-local same-sex marriages, but it does purport to relieve them of the hypothetical constitutional obligation to do so under the Full Faith and Credit Clause. Nothing in this statement indicates a desire to repeal section 2 and encourage constitutionally compelled interstate recognition. The implication that state will generally recognize non-local unions, however, was intriguing.

5. Senator Biden: “Senator Biden supports letting states determine how to recognize civil unions and how to define marriage. He believes that legal recognition should not be denied to same-sex couples.” The principle here seems to be that states must recognize same-sex couples one way or another but that they should have the option of choosing the route of civil unions or civil marriage. Left unclear, though, is whether Senator Biden would be willing to use the Full Faith and Credit Clause or federal power under that Clause to mandate interstate recognition in one form or another.

6. Senator Dodd: “While I believe that marriage is between a man and a woman, I believe with all of my heart that same-sex couples must be afforded all the rights and obligations of heterosexual couples.”

7. Congressman Kucinich: He supports full marriage rights, which presumably would include repealing section 2 of DOMA and facilitating, if not federally mandating, interstate recognition.