Alex Blaze

New Hampshire marriage religious exemption

Filed By Alex Blaze | May 16, 2009 12:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: gay marriage, john lynch, lesbian, LGBT, marriage, marriage equality, New Hampshire, polling, religious exemption, same-sex marriage

New Hampshire governor John Lynch yesterday determined that he would sign a bill to legalize same-sex marriages if and only if the state legislature created a religious exemption to the bill.

The governor released language for that exemption. It would prevent the state's anti-discrimination laws from being enforced on any religious organization, person or nonprofit that is managed at least partly by a church that refused to provide services to the "solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith." That just for religious organizations. Individual people and businesses would not be allowed to deny services to weddings, and it appears as though those same organizations would have to give benefits to same-sex partners of married employees, unless "promotion of marriage" is determined to have a really expansive definition and include things like health care.

What do you all think?

To me, this seems fairly limited compared to what the Religious Right actually wants in terms of a religious exemption, and that would be for anyone to claim that their religion forces them to be conscientious objectors to the horror of same-sex marriage. New Hampshire Freedom to Marry has given it an OK.

What Granite Staters think is still unknown, as Don Sherfick emailed me:

Meanwhile, please try and check as many of the 432,000 households between now and tomorrow morning for their reaction

Indeed, the gold standard for polling New Hampshire is now calling everyone up in two days. But I don't think that The Bilerico Project will be bankrolling that endeavor.

Full text of the proposed exemption:

I. Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

II. The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members pursuant to RSA 418:5, and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment of the Constitution of the United States and part 1, article 5 of the Constitution of New Hampshire

III. Nothing in this chapter shall be deemed or construed to limit the protections and exemptions provided to religious organizations under RSA § 354-A:18.

IV. Repeal. RSA 457-A, relative to civil unions, is repealed effective January 1, 2011, except that no new civil unions shall be established after January 1, 2010.


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well, I'm not thrilled about it, but there's something interesting going on here.

the religious folks have been using religious tolerance as the theme of their opposition. the problem with that theme is this: it doesn't speak to the validity of same-sex marriage to begin with.

so, for example, in the NOM ad, they sort of abandon the idea that SSM itself might be objectionable, focusing on its ramifications for religious liberty.

so now, moderate forces have been calling their bluff -- and suddenly they're left with no argument, because they've gotten what's reasonable (though obviously perhaps undesirable in terms of a "gay-only" exception) in terms of religious liberty.

is it any surprise, then, that they're going to go back to a "it harms kids!" argument -- one that we can't so easily refute with a legislative work-around?

sow, then reap...

Is there any hope that the Lynch Mods would be struck down as being overly broad and unclear?

Can some legal scholars clarify?

a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society,

How broad is this? Does it explicitly include groups and individuals who were not already covered under the first amendment to the US constitution?

shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual

ut oh. This sounds ominous.

if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals,

So, say, Notre Dame could prevent a married couple from staying in housing for married couples?

II. The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members pursuant to RSA 418:5,

So the Elks, Moose, Rotary Club, etc. can deny membership to the spouse of a member because they don't think the member should have married a man/woman/Jew/Christian/Buddhist/Wiccan/Zarathuthran/atheist/older person/younger person/tall person/short perso/caucasian/african/asian/etc. ?

and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment of the Constitution of the United States and part 1, article 5 of the Constitution of New Hampshire

So (for people involved with such institutions) we still don't get insurance benefits? Equal in name only?

III. Nothing in this chapter shall be deemed or construed to limit the protections and exemptions provided to religious organizations under RSA § 354-A:18.

I'm guessing this is just superfluous, right?

IV. Repeal. RSA 457-A, relative to civil unions, is repealed effective January 1, 2011, except that no new civil unions shall be established after January 1, 2010.

Not sure what this does.

Methinks this seems like a great bargain. We get our right to marry and the religious right only gets what the First Amendment really entitles them to.

I wholeheartedly concur with the first person. By signing onto this deal, we are denying the religious right their argument that somehow we are taking away their rights. And as far as the problems which are raised in the second comment - troubling as they are they cannot be fixed through the use of force. The First Amendment's establishment clause forbids us the option of correcting their behavior and the First Amendment's free exercise clause protects their right to discriminate against those who do not live in accordance with their religious precepts.

That said there is a concern and this regards the charitable choice provisions of the welfare reform act of 1996 (signed by the dear and beloved Bill Clinton) sigh. If the government contracts out its welfare programs to religious organizations we can expect it to provide us with its secular equal (or a pro-gay religious alternative).

I assume this cautiousness applies only to same-sex couples, right? Because there has been very little hand wringing and blood curdling fear squirting out of the Christianists in regard to divorce or the serial "opposite" married couples.

Those exceptions to religious rules - the mortal sins that are tickets to hell - are legal, legitimate practices that are not held up to the same scrutiny as same-sex relationships are and yet there is no language necessary to protect religious freedoms from the scourge of the multiply wed.

If this wording is necessary in order to uphold the principle of equal protection - truly the heart of the marriage equality matter - then we need to ask AND get some answers to some tough questions:

Are same-sex couples the only group that religious institutions need to be protected from? Who else is threatening the freedom of religion by being granted full citizenship?

Why did this uproar not occur in regard to the divorced and couples involved in subsequent marriages? Do Catholic schools also need to be protected from being forced to enroll Jewish children?

How exactly is the protection of religious institutions in this manner NOT just more legislative bigotry?

Should we reconsider the rights of religious (or even secular) institutions to racially (or religiously) segregate if they are not comfortable with upholding the law? Maybe the Knights of Columbus is no longer comfortable allowing blacks to use the same restrooms as non-blacks.

While this is definitely about gays, I think the language is broad enough that if any religion had a specific objection to interracial marriage, or marriages between faiths, or divorcees remarrying, then they could deny them. I doubt they would, tho.

The language for the most part expresses the existing laws on how religions can act based on their religious doctrines. Religions can today deny interracial couples or couples of other denominations. If you realize this is existing law, and not really going to change much regarding that existing law, then it's hard to become offended. Unless one's offense is that religions can discriminate, that's a different issue that marriage equality. I am not trying to change religions. I am trying to change marriage equality.

In this instance "one's" offense is based in the fact that although religions can deny interracial and interfaith couples the right to marry, there is no specific language in legislation that spells it out like there would be here.

There never has been a test to the religious freedoms you describe, has there? Has an interracial or interfaith couple tried to be married in a church they were not welcome and been denied? Have they sued? Has a divorcee been to the Most Holy Redeemer church and demanded to be married a second or third or fourth time...and been denied...and sued?

Are they somehow less threatening that we are?

Has there been any legislation created or passed that would protect churches from those instances or has it been understood that pre-existing law allowed churches to have exemption from secular law?

Why start now?

If it looks like bigotry and it smells like bigotry, its probably bigotry...no matter how it's justified or excused.

I am in agreement with most everyone here. Pretty much "re-grants" the krazy kristian kooks what the Constitution already provides, and as observed by the first commenter, takes away their primary argument of opposition.

They have always tried to claim that some how gay marriage will destroy the institution entirely, but most people now consider that pretty laughable. They seem to make some headway with the claim that we'll invade their churches and demand that their ministers provide the marriage sacrament. While not true, I can see how the masses would fall prey to the argument.

So, take it away, and they aren't left with much.

I would have preferred that he sign the bill as it was amended by the Senate, however as a NH resident, I'll take this compromise. It's better than a veto. We've all worked really hard to get this bill through the NH House and Senate, I certainly don't want to start the entire process over again next year. It's bad enough that HB415 was killed and we have to do that all over again.

You live in NH? I have to ask, did Cornerstone Policy Research call you last week to ask you what you think about same-sex marriage?

Alex,

Yes we got a call from Cornerstone last week, my partner answered the phone. It was an automated poll and the questions were quite biased. We also received a call a few weeks ago, It was before the Senate voted on the bills, and before the special election to replace the Senator who resigned. I answered that one, and it included a very leading question about what did we think about boys who thought they were girls going into girl's restrooms at school. This was followed by a statement about how Jeb Bradley stood for marriage between one man and one woman, and questioning if I would vote for him. I wasn't at all amused by their shameless tactics.

I'm not sure how this proposed amendment would square with existing nondiscrimination law in New Hampshire since it includes sexual orientation. Doesn't the amendment set up a contradictory set of rules?

Of course, transgender people would be affected by the amendment even if same sex couples were given an exemption on the basis of New Hampshire nondiscrimination law. Could that be the governor's real intention?

I'm just speculating here, I don't know the law well enough to say either way. Is there a better educated opinion out there?

This language for religious protections is ridiculous. When civil rights were enacted into law, the religious "nuts" didn't lake that either. But, you didn't see lawmakers and politicians writing exemptions to allow continued segregation by religious institutions, did you?

Just how far do these exemptions go?

If a church owns rental property, can they refuse to rent to a gay couple?

Can the YMCA offer "family" discounts to straight families and deny them to gay families?

Can a Catholic hospital refuse spousal rights to a gay couple when one is admitted? What if the Catholic hospital is the only medical facility in the area? No rights for teh gays in that town?

Just EXACTLY does the term the "promotion of marriage" mean, anyway? Unless the word "promotion" has some specific legal meaning, I would think you could claim most anything family related as the "promotion of marriage".

I'd hold off thinking this was anything to accept without some answers to these kinds of questions.

For me, that's the big question too. "Promotion of marriage," as I read it, would mean counseling services and church retreats and things like that.

But I do remember a case described in Nancy Polikoff's recent book about marriage in which a straight teacher sued the school district (I think Chicago) because they were giving health benefits to married partners and unmarried partners of gay teachers. The teacher wasn't married to her boyfriend but he needed the health care benefits anyway and she said that they met all the relationships requirements of the gay domestic partners so why couldn't her partner get health care? She said it was discrimination along the lines of sexual orientation.

Anyway, the court decided that the school could create the benefit just for gay employees because those employees could never get married. It said that the school district had a compelling interest in giving the benefits only to opposite-sex couples who were married because the benefits promoted the institution of marriage.

I don't know if I have all the details right, but from what I remember it sounded a lot like the court ruled that health care benefits were part of the "promotion of marriage."

christophe | May 16, 2009 8:03 PM

It would be nice if there were no need for this, but there are people out there who would readily sue or take legal action against a church if this rider were not added. I myself can't understand how any couple would want to have services thru a Church that didn't want them, but considering things like how e-harmony was sued because they didn't provide love connections for gay people (something I consider ridiculous), there is obviously a reason to put this in.

I don't know if the eharmony lawsuit would be in the scope, since that site seems to be in the business of promoting relationships rather than marriage. Although what would I know.

I think this would be more along the lines of that lawsuit in Ocean Grove, where a church owned a lot of property along the beach and they wouldn't let a lesbian couple rent their pavilion to be civil unioned. Although that was a little complicated since they weren't paying property tax on that property and nondiscrimination was a condition of the tax break, if I remember correctly.

Dale Carpenter at the Volokh Conspiracy says that there's never been a lawsuit that would have been prevented by one of these exemptions. I don't know if he's right.

http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241641694

Would this allow the discrimination that was ruled illegal in NJ, when the a facility owned by a religious group but operated as a public accommodation would not rent to lesbians?

I have read bluehampshire.com and every blog I could find on this, and still have not gotten a definitive answer.

The language seems very broad to me.

If it just guarantees First Amendment protections, fine. If it is an end run around antidiscrimination law, to hell with Lynch and his preconditions. Let him veto and pay the consequences.