Wednesday, May 20, 2009

ADF threatens to challenge New Hampshire's same-sex marriage law if enacted; NH House rejects religious-liberty exemptions, seeks compromise

05/19/09 Union Leader (Source: ADF Alliance Alert) and 05/20/09 Union Leader:

The New Hampshire Senate Judiciary Committee defeated an amendment to the state's marriage equality legislation that two of its Republican members had proposed , even as the Committee approved narrower, religious-liberty exemptions (in HB75, as amended 05/19/09) on May 19th, and the Senate approved HB75 today. The House, however, today did not approve HB75 and asked the Senate to negotiate a compromise.

According to the 05/19/09 Union Leader, the Senate Judiciary Committee "voted down an amendment proposed by Republican committee members to further protect businesses and individuals who oppose gay marriage because of their religious beliefs." To learn more about the amendment, I contacted Kristy Roney, Minority Policy Director for the legislature's Republican Leadership Staff. She told me that the amendment is "a rough draft," and (despite public interest!) that it is unavailable to the public. She says that it would have exempted, from the state's public accommodation laws, caterers, florists, and others engaged in wedding business who deny wedding services to same-sex couples on grounds of religious conscience. The proposal appears to resemble the one (see pages 7-8) advanced by law professor Robin Wilson and several other religious-liberty scholars.

"Austin Nimocks of the Alliance Defense Fund said litigation will result if the bill [same-sex marriage legislation] passes." It's not a leap to infer that ADF would welcome opportunity to litigate on behalf of individual religious-conscience objectors involved in wedding commerce. Adoption of the Republican amendment might have invited ADF to reconsider its none-too-subtle threat of litigation; the Union Leader does not clarify what bearing its defeat has on ADF's position. Presumably ADF's threat of litigation stands if a negotiated compromise between the Senate and House does not exempt these individual relgious-conscience objectors.

05/20/09 Reuters
(Source: Alliance Defense Fund Alert)

"State Representative Steve Vaillancourt, a gay Republican from Manchester, was a leading voice against the amendment securing religious liberties ... Vaillancourt said an earlier bill that did not provide protections to clerics or religious groups was the one that should have been passed, adding that the amended bill would allow discrimination to be written into state law."

05/20/09 NY Times:

The state's marriage equality legislation "will now go to a joint committee of the legislature, which will try to come up with language acceptable to the House and Senate."

05/21/09 update

05/20/09 Nashua Telegraph (Source: ADF Alliance Alert):

Sen. Robert Letourneau, R-Derry, tried without success to give protection from a potential discrimination complaint to any private person or business that did not wish to play a role in a same-sex marriage or ceremony.

The committee rejected that change, by a 3-2 vote, with all Senate Democrats opposed and the two Republicans present voting in favor.

"We are protecting some people but not others, and I object to that," Letourneau said after the vote.

Austin Nimocks with the socially conservative Alliance Defense Fund said Lynch's changes fail to protect conscientious objectors based on religion and predicted the law would lead to lawsuits.


Mo Baxley, executive director of the NH Freedom to Marry Coalition, said Letourneau's proposal smacks of sanctioning discrimination like when merchants placed signs in their doors warning they would not serve African-Americans during the 1950s or certain ethnic groups decades earlier.

Is Baxley right, or does the analogy seem overstretched and, in fact, at odds with Baxley's purpose? Law professor Dale Carpenter has suggested that state anti-discrimination laws would not sustain a strict-scrutiny review if individuals engaged in wedding trade claimed a right to religious discrimination. Same-sex marriage laws therefore do not need a religious-liberty exemption, but given the political compromises these laws require, Carpenter proposes a "harship" exception to an exemption for individual religious-conscience objectors.

05/21/09 press release, Americans For Truth About Homosexuality:

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, said that HB75 "failed to garner enough votes because it contained a clause designed to protect clergy and religious institutions from being forced to conduct same-sex ‘marriages.’ This should be a wake-up call for people who cherish [religious] freedom."

05/21/09 Catholic League For Religious and Civil Rights (source: ADF Alliance Alert):

Leading the fight for gay marriage in New Hampshire is Rep. Steve Vaillancourt. He proves, beyond any shadow of a doubt, why champions of religious liberty must resist gay marriage: he worked to kill the bill because it insulated religious institutions from its reach.

In other words, it was not good enough for Vaillancourt to secure a win on gay marriage—he had to have it all. And having it all means denying the right of religious institutions not to sanction homosexual marriage. Indeed, he said the religious liberty amendment would “enshrine homophobia into the statutes of the New Hampshire legislature.”

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