Today the New Hampshire state Senate Judiciary Committee is expected to add the language that Governor Lynch has requested to an unrelated bill and bring it to the full Senate for a vote tomorrow. If it passes the Senate, the plan is that the House also would vote on it tomorrow. If Governor Lynch signs the bill, it will take effect January 1, 2010.
UPDATE: The Judiciary Committee adopted the language below by a 3 to 2 vote. It rejected an amendment offered by Republicans to extend the exemption to commercial businesses and merchants who claim that providing marriage-related services would violate their religious beliefs.
What does the new language mean? Is a trojan horse or meaningless redundancy?
Following is the proposed amendment being offered today, which repeats the language proffered by Governor Lynch:
In addition, fraternal benefit societies operated, supervised or controlled by or in conjunction with a religious organization are not required to provide insurance benefits to any person if it would violate the society's free exercise rights under the federal or state constitutions.
The source of this language is two other New England marriage laws, the ones from Connecticut and Vermont, that contain very similar provisions. The New Hampshire proposal essentially combines language from those two laws to produce the fullest scope for a religious exemption yet enacted in a marriage equality bill.
When you break down its density, the primary impact of the exemption will be to:
- Exempt a church, temple, mosque or a closely-related ("operated, supervised or controlled by or in conjunction with") non-profit from performing, permitting, facilitating, recognizing or accepting a same-sex marriage (or any other marriage to which they object).
- Exempt any religiously-affiliated school or university from opening married student housing (if they have such) to same-sex married couples, and probably also exempting it from recognizing the marriage in other ways related to programs or benefits for married couples.
- Bar state and local governments from penalizing or withholding benefits from any religious entity or closely-affiliated non-profit because it refuses to serve, rent to, recognize, etc., same-sex married couples.
There are lots of good questions, however, about what various phrases mean. (See discussion at Bilerico.) The central ones are these:
How broadly will courts define which entities fall within the scope of "operated, supervised or controlled by or in conjunction with a religious organization"? For example, will hospitals qualify? I would think that some will and some won't, depending on the tightness of the current connection. There was a lot of buying and selling of hospitals in the 1990's. "Jewish Community Hospital" might now be owned by a big corporation, while "St. Mary's" may still be connected with the Catholic Church. 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.
What about an organization like the YM/WCA? I'm not an expert about the Y system, but I think that they are, now at least, operated independently of a religious organization. A Boy Scout troop sponsored by a church, on the other hand, (as many are) might well fall within the scope of the exemption. There could be many such questions, about many organizations, and the answers will be highly fact-specific to each.
Will commercial transactions by churches, etc. also be exempt from the marriage law? Yes, religious entities that rent facilities or charge for various services would be able to decline to rent to, etc., same-sex couples if the event was related to their marriage.
Will commercial businesses be able to claim a religious exemption? No – the exemption would apply only to non-profit organizations that are affiliated with a religious entity.
What is "promotion of marriage through religious counseling programs, courses, [or] retreats"? This seems much less problematic to me, so long as the "through" phrase defines and limits the term "promotion." If that is the case, this activity should be protected already through both the free speech and free exercise of religion clauses of the First Amendment.
Will this exemption affect employment? On the face of it, the language seems unrelated to employment issues, unless a job-related benefit falls within "services, accommodations, advantages, facilities, goods or privileges." However, every state law that prohibits discrimination based on sexual orientation in employment has a religious exemption of some sort, so these questions would presumably be covered by that other state law.
What is the scope of "penalize or withhold benefits"? Specifically, can a government agency withdraw its contracts with a social services or health care provider, if that entity refuses to include same-sex married couples eligible for whatever services it provides to married couples? What if the contracts are simply not renewed rather than terminated? This could produce a huge set of problems, and is deeply troubling, since the language seems to assume that receiving funds from the government cannot be the basis for insisting that a religious entity providing care must adhere to the secular law on marriage.
Perhaps these questions will be clarified in the legislative process or in regulations. If not, I predict litigation.