Law professor Nan Hunter on the scope of religious-liberty exemptions in New Hampshire's proposed marriage equality legislation

05/19/09 hunter of justice:

Georgetown University Law Professor Nan Hunter raises several questions about the scope of religious-liberty exemptions (HB75, as amended 05/19/09) that New Hampshire Governor John Lynch requires to sign the state's marriage equality legislation. (Today the Senate Judiciary Committee approved HB75, as amended.) For example, she asks,

How broadly will courts define which entities fall within the scope of "operated, supervised or controlled by or in conjunction with a religious organization"?

Law professor Dale Carpenter disputes the substantive grounds for religious-liberty exemptions, but accepts their political necessity. He favors a "'hardship exception' for gay couples who cannot readily and easily find the goods (like flowers) or services (like a caterer) elsewhere." The proposed religious-liberty exemptions do not include this exemption. Here is a consequence Hunter fears:

If a hospital does qualify for the exemption, the real life problems could be horrific -- for example, if it makes an institutional decision not to treat married same-sex couples as married, and if it is the only hospital in the region or if someone is taken there in an emergency.

She predicts litigation with respect to this question and several others, unless the legislative process or regulations provide clarification.