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Will the New Hampshire religious exemption become a model for new marriage laws? | Hunter of Justice

Will the New Hampshire religious exemption become a model for new marriage laws?

by on July 2, 2009  •  In Marriage, Religion

From The National Journal:

…When the New Hampshire law goes into effect Jan. 1, it will override the state's employee nondiscrimination laws that protect gays and lesbians. Religious organizations will be able to deny gay couples housing designated for married people and marriage counseling, and fraternal societies like the Knights of Columbus won't have to offer benefits to their employees' same-sex spouses, according to Robin Fretwell Wilson, a law professor at Washington and Lee Law School who lobbied for the New Hampshire protections.

In the Granite State, such exemptions were crucial to the bill's passage. Gov. John Lynch, who personally opposes gay marriage, refused to sign the bill until wide-ranging religious exemptions were added….

"At some point you've got to say, 'We're gonna get that law, and we've got to salvage religious liberties as the next best option,'" said William Duncan, president of the conservative Marriage Law Foundation….

Leading the charge on conscience exemptions are a half-dozen lawyers, some of whom support gay marriage and others focused on safeguarding religious freedoms. They lobbied Lynch this spring and even pressed for broader exemptions that would have allowed small-business owners to deny services to gay couples …

In a May 22 letter to Lynch, law professors Andrew Koppelman (Northwestern), Michael Perry (Emory) and Douglas Laycock (University of Michigan), along with Marc D. Stern of the American Jewish Congress, argued that the exemptions would not "enshrine bigotry" but rather "enshrine religious liberty and the live-and-let-live traditions of the American people."

Many of those same lawyers and others are trying to push the needle this summer in New York, where they are encouraging lawmakers to include religious protections in a same-sex marriage bill there….

"In California, you only needed to flip 2 percent of voters," Laycock said, referring to Proposition 8's victory last November by a 52-48 margin. "If you put in the religious exemption, I think you flip that 2 percent."

That still leaves a sizable minority who support marriage restrictions, and talk of a truce may be premature. "This doesn't go to our deepest concern, which is that changing the definition of marriage is bad for society, because we believe children need a mother and a father," Duncan said. "I think the ideological polarization is a little bit sharper than some people think."…

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2 Responses to Will the New Hampshire religious exemption become a model for new marriage laws?

  1. Prup (aka Jim Benton) July 3, 2009 at 12:59 AM

    If there has to be a limited religious exemption — and I think there should be, not because I am religious — I’ve been an atheist for 43 years — but because I believe in freedom of conscience and no more think a religious group opposed to gays should be forced to hire one than I think an observant Jewish butcher should be forced to sell pork and shrimp — I think it has to include the Delaware ‘exception to the religious exception’ that Leonard Link discusses.

    That is, such a religious exemption does not apply to a for-profit business operated by a religion that does not have a specific religious function. Thus a Church that owned a religious publishing house need not hire a gay editor, and maybe not even a gay Director of Marketing, but if they owned a bakery or a shoe store, they would be subject to the ordinary anti-discrimination laws that other businesses were subject to, despite their ownership.

    (And I think the burden of proof that this was a ‘solely religious enterprise’ should be on the church rather than on the complainant.)

  2. Nan Hunter July 3, 2009 at 9:15 AM

    Very good point, although I think for-profit business ventures owned by a religious group would not be entitled to the New Hampshire exemption either. NH language is here: link to hunterofjustice.com. Only if a church were renting space for a wedding ceremony, for example, would the NH law allow it to decline to rent to same-sex couples.

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