Posted by Dale Carpenter:
N.H. governor will sign SSM bill if . . .
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242348294
it includes broader religious exemptions. The statement Gov. John
Lynch just released is [1]available on his website. It will infuriate
SSM opponents and puzzle many supporters. Lynch initially said he
opposed same-sex marriage and thought the state's civil unions law
passed two years ago was good enough for gay couples. Now he says
he'll sign the same-sex marriage bill recently passed if the state
legislature adopts additional protections for religious objectors.
Otherwise, he'll veto it.
His proposal includes this key provision, borrowing partly from a
religious-exemption proposal made a few weeks ago by several law
professors and partly from language included in successful Maine and
Vermont SSM laws:
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.
On the whole, this would be the broadest religious exemption yet
adopted as the price for allowing gay couples to marry. There is quite
a bit to chew on, and I'm interested in reactions from those with
expertise in antidiscrimination law.
Here are a couple of initial thoughts. First, as broad as it is, the
governor's proposed language does not apply to state workers. Second,
it does not apply to "any individual," but only to those individuals
"managed, directed, or supervised by or in conjunction with" a covered
religious entity. Both of those are commendable limitations on the
reach of the exemption, for reasons I've discussed previously. But the
"in conjunction with" phrase -- covering individuals and nonprofits
associated in some way with covered religious entities -- is
potentially quite broad. Unlike other exemptions, it's not clear to
whom it's supposed to apply.
I've previously argued that the substantive legal case for religious
exemptions in SSM legislation has not been made. But these exemptions,
it seems to me, are primarily political in the sense that they allow
legislators (and in this case, a governor) to tell both sides how much
they've done to protect their interests. Governor Lynch could be
expected to demand an especially high price since he must be given
cover to explain his reversal.
If I were a state legislator, I'd be inclined to accept Lynch's
proposal. Accepting the proposal means that gay couples can marry now
and that New Hampshire will become the sixth state to authorize it.
The actual imposition on same-sex couples will probably be small and
largely symbolic, though I'd want to know more about its expected
application. Rejecting the proposal may mean no SSM in New Hampshire
for years, at least until this governor is gone or can be persuaded to
relent.
With the passage of each new SSM bill, the pressure to adopt specific
religious exemptions and to expand their coverage is growing. Make no
mistake: a baseline is being established in New England.
References
1. http://www.governor.nh.gov/news/2009/051409same.html
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