freedom to marry - or not

On June 3, New Hampshire became the sixth state in the country to legalize same-sex marriage. Following a contentious debate over the last several months, the mood that day was highly energized, with hundreds of supporters and opponents congregating on the front lawn and crowding the halls and gallery of the State House in Concord. By late afternoon, Gov. John Lynch had signed three bills into law that redefine marriage and re-affirm religious freedom regarding marriage.

In this case, “religious freedom” means that while any organized religious entity is welcome to marry same-sex couples, they are not required to do so by law. House Bill 310 affirms the right of religious entities to not participate in a marriage ceremony that violates its beliefs. But it doesn’t go far enough for Gov. Lynch.

He threatened to veto House Bill 436, redefining marriage as between two people regardless of gender, unless stronger language was added to House Bill 73—the only one of the three bills still eligible for amendment at the time Lynch gave his position on the issue. A Committee of Conference from the House and Senate formed to hammer out a compromise to satisfy both chambers and get Lynch to sign all three bills together.

“It’s not new,” says Rep. Jim Splaine (D-Portsmouth), who sponsored House Bill 436, which he refers to as the “marriage equality law.”

“Religions indeed do have the right in America to be able to discriminate in almost any way they want.” He points to the Catholic Church’s authority to ex-communicate a member for any reason, and confirms that religious groups can even legally refuse to marry an interracial couple.

Splaine thinks many people don’t understand the full scope of American religious freedoms. “What would happen if we had laws preventing such discrimination and yet they wanted to discriminate? Would we ban them?” he asks rhetorically. “Of course not. That’s what they do in other countries,” he answers. One should be able to associate with others who share the same faith, Splaine says.

“The best way to protect our church’s freedom to marry us,” said Rep. David Pierce (D-Etna) in Wednesday’s House debate, is to also protect the freedom of other churches that won’t. His testimony included the story of his daughter’s baptism being denied at the church where he and his same-sex partner had been active for years. While heartbroken, they decided to simply find another church that would accept them fully.

Despite such conviction, others remain skeptical. Several House Republicans objected to both the wording of the amendment and the process of the Committee of Conference that crafted it. One word, in particular, does not sit well with them.

As amended, HB 73 gives religions “exclusive” control over who may marry within their faiths. This could be interpreted to trump state law, according to Rep. Robert Rowe (R-Amherst). And that could unintentionally open the door to marriages that are otherwise illegal, including polygamy, says Rep. William O’Brien (R-Mont Vernon).

O’Brien is also concerned about being out of step with federal law, pointing out a potentially crippling consequence for the New Hampshire Retirement System. He says the fund would be in danger of losing its tax-exempt status if it does not distribute benefits according to the federal Defense of Marriage Act that defines marriage as strictly heterosexual.

According to O’Brien, this complication is identified in a 2008 report from the Congressional Research Service, a nonpartisan division of the Library of Congress that provides analytical support to the U.S. House and Senate. “The drafters of HB 436 recognized this as a problem,” O’Brien says, citing a clause in that bill exempting the state retirement fund from recognizing same-sex marriages in their distribution of benefits.

But that’s no solution, O’Brien says, because if the retirement system doesn’t recognize same-sex marriage in order to meet federal tax-exempt requirements, it will be in violation of state law. Either way, he predicts, the fund will face a lawsuit from a same-sex spouse who is denied benefits and/or lose its tax-exempt status.

This potentiality, he suspects, was behind Gov. Lynch’s comments at the signing ceremony. Having hedged for months about his position on gay marriage, many were surprised when Lynch said that New Hampshire was simply making legal something that ought to be recognized the whole country over. Repealing the Defense of Marriage Act, O’Brien figures, would eliminate this very costly potential problem for New Hampshire.

O’Brien is clear that on principle, he does not condone same-sex marriage. “I think it’s disastrous for families and children,” he says. “But if you’re going to do it,” he says, “at least don’t do it in a way that causes problems.”

In perhaps the most impassioned and lengthy testimony of the day, Rep. Steve Vaillancourt (R-Manchester) expressed his own concerns about the extent of discriminatory rights afforded to religions in HB 73. But he implored the House to “pass this very bad bill,” nonetheless. Not doing so would effectively kill the marriage equality bill on Gov. Lynch’s desk—an alternative that is worse than bad, he said.

The House did pass it, 198 to 176. In a press conference following the vote, the openly gay Episcopal Bishop Gene Robinson called on supporters to next move on to transgender equality.

Splaine agrees with Robinson, and says that in the meantime he’ll work to ensure smooth implementation of the new marriage laws when they take effect on Jan. 1, 2010.

Front Door Politics is a weekly legislative update for everyone affected by New Hampshire laws. An online learning center, additional reporting, and a blog subscription are available at www.frontdoorpolitics.com.