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Marriage Equality, NH-2009: A Fascinating Process To Watch

by: Rep. Jim Splaine

Thu May 14, 2009 at 23:28:05 PM EDT


( - promoted by Dean Barker)

It's been an interesting ride.  And to be pleased with where we are, it might be good to see where we've been, how far we've come, and what's ahead of us.

Anyone who has been paying attention to the progress of House Bill 436 and marriage equality knows the train track it's been on.  Almost all along, it's been a balancing act, sort of like walking along the top cliff trails of the Presidentials.  

Introduced formally on January 8th, HB 436 had a great 3-hour public hearing in the House Judiciary Committee on February 5th.  That Committee voted a 10-10 tie on the bill, giving "no recommendation" to the House floor.  The legislation initially failed on a 182-183 vote in the House on March 26th, then passed on a 186 to 179 vote.  It went to the State Senate and had another great public hearing -- this one over 5 hours -- in front of the Senate Judiciary Committee, with over 500 people, most of them supporters, filling the State House chambers.

House Bill 436 received a 3-2 recommendation from that Committee that it be "inexpedient to legislate," or killed.  However, our Democratic Senators worked to craft an amendment and on April 29th they approved the bill by a vote of 13-11.  Back in the House last week on May 6th, HB 436 passed in final form by 178-167.  Because of absences, if all those who we know supported the bill were present, it would have likely received 203 votes.  

Rep. Jim Splaine :: Marriage Equality, NH-2009: A Fascinating Process To Watch
After all that, HB 436 had one more stop -- the Governor's Office.  With a signature, it will become law.  However, Governor John Lynch has long said he supported marriage only between a man and a woman, so he had to make up his mind about what to do with HB 436.  He heard from over 10,000 telephone callers during the past week, and received thousands of E-Mails and letters and petitions.  This has been probably the most written about, talked about bill in over a decade, and more.  

Yesterday, John Lynch made up his mind.  His decision shows his patience with the issue, the listening and learning process he has gone through, and his commitment to find a way to make this "change" work for everyone's benefit.  And what he did next illustrated the best brand of leadership that a Governor can provide.  

This morning, he called several of us together to meet with him in his office.  Included were Speaker Terie Norelli, Senate President Sylvia Larsen, Senate Leader Maggie Hassan, House Leader Mary Jane Wallner, and myself, along with three members of his staff.

As he announced publicly later, he detailed his decision, and the process that led him there.  He said he decided to support marriage equality.  He would sign House Bill 436, but had a belief that language was needed in our state statutes further clarifying and protecting the freedom and independence of religious institutions and Churches, as well as the people who work for those organizations.  

We talked for over half an hour, and his real concern for our state came through in the way he expressed his desire to make marriage equality work.  He said he was determined to find a way in statutory language to provide equality for our tens of thousands of gay and lesbian residents, yet protect those New Hampshire residents who have religious affiliations.  He wanted to make sure everyone's rights were protected.  As Governor, that's his job.  He told us that he had taken a look at the marriage equality laws of Vermont and Connecticut, and offered to us language that he thought would do the job.  

After meeting with the Governor, we went to the House Speaker's Office and met for another hour with the Governor's legal counsel, joined by the House and Senate legal counsels -- rather smart people in their own rights, and needless to say, detail-oriented.  

The plan at the moment is that we will continue reach out to include all members of the House and Senate in the discussion.  This has to be a bipartisan effort, working with those who have supported marriage equality, but also those who have not.  

There is a bill, House Bill 73, regarding the solemnization of marriage, that will have a public hearing in front of the Senate Judiciary Committee this coming Tuesday at 1:45 PM in Room 103 of the State House.  

At that time language to meet the Governor's request for clarification of religious freedom and independence will be offered.  If the Committee agrees, the Senate and House could pass HB 73, with the new language, and send that to the Governor as a "companion bill" along with House Bill 436.  He says he will then sign HB 436 into law.  

What I think we should all do right now is let the process work out.  It will be an open, inclusive, step-by-step process during the next several days which very well could result in marriage equality being successfully realized within the next couple of weeks.

It's been a long journey since the middle of last September when the bill was first requested to be drafted, and in fact even back to two years ago when the initial steps for marriage equality were taken with the work we did to adopt Civil Unions.  Despite being "separate and unequal," Civil Unions have provided benefits and a higher level of fairness for 675 same-gendered couples, as of this week.

Those who helped us adopt Civil Unions in 2007 should be thanked for their work.  So many people in and outside of government and politics have worked for so long for many years to get us to this point.  

And those who are helping us get to full marriage equality still have some work to do.  Contact your State Senators and House members and ask them to continue to work to make marriage equality a reality.

Governor John Lynch is sure to hear more, and in mega-doses, from our opponents during the next few days.  He's come down on our side.  So, we have to work hard to make this work.  This is our best chance.  We have come so far.  Just a few more days to go, and we'll be there.

Equality.  2009.  With one signature.  We can do this.  

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There may be some problems... (0.00 / 0)
From the comments section of the Union article:

As a long standing Republican supporter of gay marriage (one of seven), I will vote to override the Governor's veto, but I will not vote for any further changes done not in the interest of equality for all people but done for Lynch's opinion poll numbers and his attempt to be on both sides of an issue at once. If the "fix" bill fails to get Republican support, it will fail. It will not have my support. If he vetoes, we should override, not keep tinkering.

Rep. Steve Vaillancourt, Hills. 15
- steve vaillancourth, manchester

http://www.unionleader.com/art...



Republican support: (0.00 / 0)
The bill's vote by party:

Yes: 171D, 8R
No: 16D, 151R
Absent: 36D, 18R

(That's the House. In the Senate there were 0 Republican supporters.)

If Vaillancourt gets the other seven Republican supporters to play politics on this, their votes can be made up.


[ Parent ]
I think (0.00 / 0)
It'll be hard for Democrats, even those who opposed equality, to oppose this language protective of religious institutions and individuals. It's also a nasty issue to have come up in a hard-right primary—"my opponent voted against legislation to protect our churches' delicate sensibilities from the scourge of Teh Gays!". We'll get the Governor's language or close to it, with votes from nearly all Democrats, nearly all Republican equality supporters, and some additional Republicans voting for "protecting religion."

PS. I know We're Number Two! in nonreligion, but it still irks me that Episcopal Church, Unitarian Universalist Association, United Church of Christ, and many other religious organizations that I can't think of at the moment get left out in this discussion of "protecting religion..."


[ Parent ]
The Republicans & Vaillancourt (4.00 / 2)
I only counted 7 Republicans voting Yes on the last HB436 vote.  (There was at least one "r&d" who voted Yes: that would be Janet Wall of Madbury.)

One was Vaillancourt;s fellow Manchsterite Irene Messier.

The others were: Peter Bergin (R-Amherst), Tony DiFruscia (R-Windham), Cynthia Dokmo (R-Amherst), Ken Gould (R-Derry), and Priscilla Lockwood (R-Canterbury).  DiFruscia is a swing vote on the House Judiciary Committee, who often ends up siding with the Democrats on the committee.  I am not sure why the others flipped.

The vehicle for Lynch's proposed changes is HB 73, which was originally a simple bill changing the phrase "minister of the gospel" to "member of the clergy." Vaillancourt did vote for it in its original form, as did the other 6 Republicans I just mentioned.


[ Parent ]
That has nothing to do with the proposed language (0.00 / 0)
And everything to do with Vaillancourt trying to settle scores for perceived slights, trying to cause trouble, and generally acting out of spite.

I hope no one tries to defend him here anymore, this statement confirms that marriage equality is not a priority for him.  

   

"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    


[ Parent ]
Mea culpa (4.00 / 1)
Sorry for my earlier defense. I stand by the spirit of my remarks of last week about how this should be an open community and so forth, but I'm beginning to see the light on this specific case.  

[ Parent ]
The spirit of your comment (0.00 / 0)
was dead on. Please continue to advocate for inclusion.

The giant blogs for progress.


[ Parent ]
John Dad Sununu: Small Hard Drive, No RAM (4.00 / 2)
John Dad Sununu seemed cranky this morning on WGIR.  He spent his time blasting Governor John Lynch and Ray Buckley.  If he had spent his time talking about his reason(s) why gays and lesbians should continue to be discriminated against in our state laws, perhaps we'd learn a little more.  But he's just focused on the politics of the issue.  

While he was spewing his diatribe, I was trying to remember what he did as Governor.  Granted, I'm forgetting a few things as I get older, but I'm sure I should remember something -- I was very active in State Senate at that time.  But I draw a blank, other than that he was the first Governor to use a computer.  Maybe that's his problem:  he's still using that first computer of his, cir 1982, small hard drive, no RAM, one floppy disk slot.  


An honest question about the amendment. (4.00 / 1)
Scenario:

A company with more than 6 employees owns a Lakeside catering hall & grounds, and holds itself out for receptions, parties, rentals, etc.  Currently, under the current scenario, anti-discrimination laws would apply and I could hold a party there and enter into my Civil Union there without fear of being turned down.

Under the Governor's amendment, should I call my ceremony a marriage, both the facility and/or its workers could refuse to serve us.

Is this correct?  
If not, what am I missing?
If so, is this not a step backwards? Surely NO ONE would support a 'conscience' clause to allow people with deeply-seated convictions to refuse to serve interracial couples in such a situation, and as we know, churches themselves are already protected under the Federal and State Constitutions.

I feel like we are getting a bone thrown at us in the word 'marriage,' and losing on other fronts.
This is an honest question, not political posturing.  I want what is best.


[ Parent ]
my understanding (0.00 / 0)
having read the language and such...they can only legally refuse to serve in the case that that small organization is affiliated with (i.e., run by) a religious organization, and its employees are funded by that religious organization.

Otherwise, they would be subject to the same public accomodation laws as everyone else.

If I'm wrong, someone intervene, please, I'm always here to learn.

A lot of people are making hay on the left of what I see as relatively straightforward, simple boilerplate religious protection language which more or less reiterates what's already Constitutionally protected. If this neuters some of the wingnut talking points and gets us marriage equality, bring it on.


[ Parent ]
No (4.00 / 1)
The two exemptions apply to:

1.  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 and
2.  a fraternal benefit society to determine the admission of members pursuant to RSA 418:5, and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment of the Constitution of the United States and part 1, article 5 of the Constitution of New Hampshire

People need to read the actual language; misinformation is being circulated, some of it by people who haven't read the proposal, and some by Republican trolls who are trying to sabotage the legislation, whether because they are anti-equality, or because planting seeds of Democratic destruction are more important to them than equality.

Some people call this the Knights of Columbus exception.  If the Knights, which is a Catholic affiliate, owns a hall, then they can turn down the request.  This is very similar to what Vermont did in its legislation. But they can already discriminate - I can't be a Knight, because I am not a man. I can't be a Mason, either.

Seriously, beware of those who are trying to defeat this amendment - ask what their motivations are. The people who have been workding the hardest to make this happen, lke Jim Splaine and Mo Baxley say this works. Trust their judgment.

"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    


[ Parent ]
Following through on this... (4.00 / 1)
So...If the Knights of Columbus reserve their hall for their own members, there is no issue (then, now, or inthe future).

But if they choose to rent it to the PUBLIC, then they WILL have the right to refuse rentals to ceremonies involving two men...yes?  (In other words, this is to get around the New jersey case where a religious organization opened itself to public ceremonies and was prohibited from discriinating once they went public.)



[ Parent ]
Not how I read it (0.00 / 0)
but if so, it can be fixed next year or by the courts. If it's what it takes to get this through, then fine.

No shame in incrementalism.

Classical Liberal since 1983


[ Parent ]
Fixing by the courts? (4.00 / 1)
Thats hardly an excuse to pass unfair or illegal legislation, dont you think? At this point, all we get is the right to call our relationship a 'marriage,' while losing rights on the discrimination front.

I hate to say it, but right now, current civil unions and current anti-dsicrimination laws look like a better package.


[ Parent ]
The discrimination here is extremely narrow in scope (0.00 / 0)
Fraternal organizations are extensions of their churches.  If they want to restrict the use of their facilities and services according to their religious beliefs, they should be able to do so as long as they are not receiving special government treatment for providing "public accommodations".

They need to have their "space" and we need to respect their boundaries, we just shouldn't let them put a boundary around us.

support marriage - call your House Rep to support Lynch's amendment

Sign the Petition http://www.nhftm.org/action/pe...


[ Parent ]
Re: Legal issues (4.00 / 1)
Hi Jim, first let me express my sincere gratitude for all the hard work you've done on behalf of the GLBT community in NH. The fact that NH is on the brink of becoming the 6th state to recognize marriage equality is, simply put, tremendous.

To piggyback off Thom's comment, I read the proposed language and as a lawyer I do have a particular concern.  It's my understanding that the House and Senate leaders will be working with the Governor's office before Tuesday to finalize the language, so this may end up being moot, but I did want to flag the issue.

Do you have any ideas as to why the term "promotion of marriage" was inserted?  I noted that the "solemnization" and "celebration" prongs are present in the Vermont law (which the Governor looked to as a model), but not the "promotion" prong.  This is new.

Since this is part of the proposed provision's limiting clause, I'm concerned about the vagueness of the term "promotion."  I understand protecting religious liberty, but one must also be cognizant of not gutting NH's antidiscrimination protections for business conducted in the public sphere.

My hope is that the finalized language is more precise.  


[ Parent ]
I was bothered by promotion as well (0.00 / 0)
but when  went to comment on it, I thought, oh, they're talking about invitation designers and wedding planners, right? I don't think it's intended to broaden protection to anyone looking to be all "we won't rent to you because that would 'promote' your so-called marriage." I would prefer a different word, though...

[ Parent ]
Re: Legal issues (0.00 / 0)
Hi Mormo,

I agree that was likely the intent behind inserting the "promotion" language (e.g., covering advertisements, invitations of a wedding) but given the relative vagueness of the word, I hope either a more precise word is chosen or the finalized provision better clarifies the intended scope of the term.  


[ Parent ]
yes indeed (0.00 / 0)
I'm hopeful that there is clarification; or, alternatively, it is of course possible that there is legal history/precedent on this particular word of which I am unaware...

[ Parent ]
Read it again (0.00 / 0)
You need to read the whole sentence; promotion is limited to promotion through religious counseling, retreats, courses, and housing intended for married individuals. It is not just "promotion of marriage" but promotion in very limited circumstances by religious organizations, etc.  

"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

[ Parent ]
nothing to do with invitation designs, etc. (0.00 / 0)
Please read the language,it has nothing do with designers and planners.

"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

[ Parent ]
It has a very limited scope (0.00 / 0)
Even if you interpret the word "promote" broadly, it still only applies to churches and fraternal organizations.


support marriage - call your House Rep to support Lynch's amendment

Sign the Petition http://www.nhftm.org/action/pe...


[ Parent ]
wow (4.00 / 2)
In reading this site for quite some time now, Rep. Splaine (mostly as a lurker), I think this is the first cat hiss I've really read from you. You go.

Thank you for working so hard for equality. That one sentence just doesn't cover it.


[ Parent ]
Thoughts from away (0.00 / 0)

Over at Blue Mass Group:

Dale Carpenter, the eminently reasonable law professor and advocate of same-sex marriage, has been having a fascinating exchange over the last few weeks with several other prominent law profs about same sex marriage and religious liberty. You can see all of the posts in that exchange on one page and the whole thing is really worth reading if you want a detailed, rigorous look at the issue.
...

Carpenter does not object to such exemptions, but he does think they need to be written correctly. "We agree," he says, "on the general principal, I think, that for private parties (including individuals, like wedding photographers, and groups, like the Knights of Columbus) fairly broad exemptions should be available to protect religious scruples when the exemptions won't impose any substantive (as opposed to symbolic) hardship on married gay couples and families. How you draft an exemption to implement that general principle -- no more, no less -- is the hard part."

He doesn't think they're terribly necessary because of existing court precedents and RFRA legislation in many states, but he does recognize their political value. But he asks some important questions, and receives important answers from his fellow law profs, that illustrate exactly the kind of careful, objective reasoning that should be brought to bear on the subject.



The giant blogs for progress.


NH's non-discrimination laws would not change (0.00 / 0)
There have been a few comments here suggesting that Lynch's amendment would alter the non-discrimination laws.  It does not.  The reason is that the law contains many exceptions, specifically including churches and fraternal organizations.

It also exempts businesses with fewer than 6 employees.  The vast majority of photographers, flower shops, etc. out there have always been exempt from all of NH's non-discrimination laws.

Taken from the statutes:

"Employer" does not include any employer with fewer than 6 persons in its employ, an exclusively social club, or a fraternal or religious association or corporation, if such club, association, or corporation is not organized for private profit, as evidenced by declarations filed with the Internal Revenue Service or for those not recognized by the Internal Revenue Service, those organizations recognized by the New Hampshire secretary of state. Entities claiming to be religious organizations, including religious educational entities, may file a good faith declaration with the human rights commission that the organization is an organization affiliated with, or its operations are in accordance with the doctrine and teaching of a recognized and organized religion to provide evidence of their religious status. ""Employer'' shall include the state and all political subdivisions, boards, departments, and commissions thereof.  

support marriage - call your House Rep to support Lynch's amendment

Sign the Petition http://www.nhftm.org/action/pe...


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