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New Hampshire approves marriage equality

June 3, 2009

The New Hampshire legislature today narrowly approved an amendment to their gay marriage bill clarifying religious exemptions, and Gov. John Lynch signed it into law despite being personally against same-sex marriage. That makes New Hampshire the sixth state in the country to recognize gay marriages (seven if you count California, which later undid that change through a referendum). You can read all the details at The New York Times.

I was overwhelmed with the number of text messages I received, both informing me of the news and congratulating me on it. It’s nice to know I’m not the only one who recognizes the importance of out-of-state politics on issues like this. But really, what seems particularly significant about this event is the lackluster response it’s received. When Massachusetts became the first state to recognize same-sex marriages, my friend woke me up with a phone call to break the news to me, and it was a huge media event. Today I had to search a bit to find the Times’ story on it, and couldn’t find one at all at the sites of some major media sites. I don’t expect to see this plastered on the front page tomorrow morning, either, yet another sign we’re gaining acceptance faster than I could have imagined a decade ago.

There was a lot of hand-wringing in New Hampshire about religious exemptions, and the governor refused to sign the bill until the addition of a bit of new language clarifying religious exemptions, something about which I’m of two minds. On the one hand, I don’t think any religion should be forced to perform a marriage it doesn’t believe in. Indeed, that seems pretty unconstitutional to me. But on the other hand, I’m not okay with writing into law cases in which discrimination is considered acceptable. Correct me if I’m wrong, but I don’t think there are any religious exemptions in any laws against racial discrimination, for instance.

In the end, though, marriage is a civil contract, and that’s what really concerns me. As more of America starts to see us as normal (which we are, by the by), I expect religious issues to work themselves out. It’ll take work, of course, but I think we can declare today a relative victory for the movement, and certainly a welcome change of pace after the latest with Prop 8. Thanks, New Hampshire!

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7 Comments leave one →
  1. Johanna permalink
    June 4, 2009 8:03 am

    Civil marriage and religious marriage should be two different things, so I’m not worried about allowing some religious groups to not perform religious marriages for same-sex couples. Freedom of religion means that the State should neither force the Catholics to marry two men, nor prevent the Quakers from marrying two men. However, civil marriage is civil marriage. What worries me is the part of the law which would allow religious organizations to refuse to cover legally married same-sex spouses of their employees under their healthcare benefits, etc. That is writing discrimination into the law. Either cover all spouses, or none.

    (I don’t think there’s any law about it, but I really don’t think the State could force a church to marry an inter-racial couple. The State has to marry them civilly, but there’s nothing I know of that says a church would be forced to perform that marriage. Please correct me if I’m wrong.

    • June 4, 2009 9:39 am

      This is what I get for posting so late at night!

      Yes, what’s ultimately upsetting is religious organizations’ to broadly discriminate against gays and lesbians. Just as you said, I don’t know if they’d have to marry any couple, but I’m fairly sure they couldn’t say their religious convictions prevent them from giving health care to an employee’s black husband, for instance. It seems to me allowing for these kinds of exceptions for gay and lesbian couples may be opening Pandora’s box–can a religious hospital ignore one spouse’s right to visit or make decisions for the other?–though I’d love to have one of my many law student readers weigh in. (Preferably not at 1 a.m.)

      I agree completely on civil and religious marriage, but as long as they’re intertwined this way (and I don’t think that’s changing any time soon), I think both sides can agree things are a bit murky.

    • Jennifer DiIorio permalink
      June 4, 2009 5:22 pm

      I would say religious organizations can broadly discriminate period. For example, as a super duper Catholic school girl until college the Church openly discriminates against women all the time. I’m not just talking about the whole, “they can’t be clergy thing” either. One example from my work as a Pharm Tech would be the refusal of the Church to pay for any forms of birth control, since they find it sinful. They do not, however, have a problem paying for viagra for men. I also found their insurers gave us a hard time about pre-natal vitamins (although to be fair I’m not sure if that was Church related or just the insurers being jackasses). In addition, the Church can refuse to recognize heterosexual spouses if one or both partners had been divorced. And, as a Catholic marrying a Jew I can tell you that neither religion will recognize our marriage as religiously “valid” or sanctified even though they will perform the ceremony. I’m not sure if this means that they would refuse to recognize us as spouses for insurance purposes, but I suspect they might try and pull the same stunt (and I know they’ve done so for previously divorced heteros). I’m not trying to justify discriminiation, I’m just trying to point out that religious groups have been given free reign to discriminate against pretty much anyone they dislike.

  2. June 4, 2009 11:11 am

    I took a look at what I *think* was the final version of the NH bill, and the religious section looked pretty benign to my non-lawyer eyes. First, that section said nothing about gender: just that clergy and the equivalent didn’t have to solemnize *any* marriage that would violate their religious freedom. Second, it looked pretty explicitly about solemnization, not general recognition, so it does not appear to be grounds for churches to not give health care to their office managers’ husbands.

    • June 4, 2009 11:39 am

      Could you send me a link?

      • June 4, 2009 11:49 am

        As far as I can tell, it’s this: http://www.gencourt.state.nh.us/legislation/2009/HB0436.html though I’ll trust it more once it shows up at http://www.gencourt.state.nh.us/bill_status/Misc/Chaptered_Final_Version.aspx

        The religious bit is:

        457:37 Affirmation of Freedom of Religion in Marriage. Members of the clergy as described in RSA 457:31 or other persons otherwise authorized under law to solemnize a marriage shall not be obligated or otherwise required by law to officiate at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion protected by the First Amendment to the United States Constitution or by part I, article 5 of the New Hampshire constitution.

        There’s one weird bit of discrimination left (though I prefer the gay version, honestly): The existing law required males getting married to be 14 and females to be 13; this is clarified to be the restriction for opposite-sex marriage only and both parties need to be 18 for a same-sex marriage.

        • June 4, 2009 3:05 pm

          OK, it’s not *quite* as good as I suggested: In addition to HB436 there is also HB73 http://www.gencourt.state.nh.us/legislation/2009/HB0073.html

          It still is generic (nothing specific about same-sex marriage, just about marriages that a religion doesn’t like) but in addition to applying to marriage rites themselves, it also applies to “the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals”. So it looks like this would explicitly make it OK for religious groups to offer housing to opposite-sex but not same-sex spouses of their clergy (or for that matter, “same-religion but not other-religion spouses”, etc). But probably would stop them from discriminating in other benefits like health care.

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