Marriage equality legislation introduced in D.C.; religious liberty exemption follow those of New Hampshire's law, with notable exceptions

D.C. Religious Freedom and Civil Marriage Equality Amendment Act of 2009

Today, David Catania and other members of the District's Council introduced marriage equality legislation. The proposed language includes more than just recognition of First Amendment protection of those who decline to solemnize same-sex marriages for religious reasons. Here is the clause that especially interests me. My red highlighting provides basis for a comparsion.

Sec.1283a.(e):
"Notwithstanding any other provision of law, a religious organization, association or society, or a nonprofit organization which is operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, facilities or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of marriage, that is a violation of the entity's religious beliefs, unless the entity makes such services, accommodations, or goods available for purchase, rental, or use to members of the general public. Any refusal to provide services, accommodations, facilities or goods in accodance with this section shall not create any civil claim or cause of action, or result in any District action to penalize or withhold benefits from such entity, unless such entity makes such services, accommodations, facilities, or goods available for purchase, rental, or use to members of the general public.

Compare this language an exemption provision of New Hampshire's marriage equality law, N.H. Public Act 09-317, Sec.61:2. I use red highlighting to underscore the differences:

III. 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 his or her 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.

This comparison supports three observations. First, the proposed D.C. law would not extend protection to individuals who otherwise provide wedding services, but deny them same-sex couples for religious reaons. Second, the D.C. legislation would leave undefined the scope of the "promotion of marriage," so that a court would have to interpret whether, for example, a religious university violates the law by denying housing to a same-sex couple. (Such scenarios seem unlikely to arise often.) Finally, the legislation would bar a religious organization from doing what a Methodist Church did in New Jersey, when it would not rent its beach pavilion for a civil-union ceremony, even though it had rented the property for secular uses. See what law professor John Culhane has said in favor of just this type of restriction.