New Hampshire gay marriage bill stalled over religious exemption

I saw yesterday (via the Mirror of Justice) that the Democratically-controlled New Hampshire House of Representatives blocked passage of a bill that would have allowed same-sex marriages in the state. You may have seen news reports that New Hampshire Governor John Lynch promised to sign the bill if a provision was added to allow clergy to decline to perform such marriages. Here’s the significant portion of the added language:

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.

As Minnesota Law prof Dale Carpenter pointed out, the language is fairly broad but it could be broader. It doesn’t cover state employees, for example, or private individuals who are not actually managed or directed by a religious entity.  But it’s definitely the broadest protection included in same-sex marriage legislation so far, and it will likely set the pattern for states in the future. This is the first concrete attempt I have seen to reconcile the conflict between religious liberties and the gay rights movement, and though I oppose same-sex marriage, I found it quite hopeful. It even seemed to reinforce the argument of Dave Banack of Times & Seasons that the LDS Church should focus on defending religious liberties rather than opposing same-sex marriage.

But the New Hampshire House killed the bill. At first glance it appears that same-sex marriage proponents were willing to have the bill defeated before conceding any ground. This is not a productive approach, and it is precisely the type of behavior that has created the clash between religious groups and same-sex marriage supporters. As an opponent of same-sex marriage, perhaps I should be glad that the measure was defeated. But I’m really disappointed that the New Hampshire legislators were so unwilling to recognize appropriate accomodations to First Amendment religious rights.

For more information on the intersection of religious rights and gay marriage, see the Pew Forum’s Question & Answer session today with George Washingoton Law professors Chip Lupu and Robert Tuttle.

Photo credit: NASAVideographer.

1 thought on “New Hampshire gay marriage bill stalled over religious exemption”

  1. This touches on exactly what my fears are with gay marriage, that it will ultimately be forced upon religious organizations.

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