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Equal Rights/Rites, Responsibilities, and Respect for New Hampshire Families

By Jack M. Balkin

On June 3, Governor John Lynch signed legislation that makes New Hampshire the sixth state in the U.S. in which same-sex couples may enter into civil marriage. His signing statement declares: ?Today, we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities ? and respect ? under New Hampshire law.? As have some other New England governors, he stated that he previously supported civil unions for same-sex couples, but now believes that ?a separate system is not an equal system.? The warp speed of this development in New Hampshire ? just two years ago, the governor signed the civil union law (enacted by the legislature without any prod of a judicial ruling) - indicates a significant shift, in some states, of understanding of the demands of equality. As various states enacted civil unions, legislators and governors spoke of them as honoring a state?s commitment to equal rights and civil liberties while preserving its religious and cultural traditions about marriage. Now, however, they view this as a compromise that fails to accord the families formed by same-sex couples equal dignity and respect. Same-sex couples, Governor Lynch said, had made ?compelling arguments? about why separate was not equal. Will this emerging rhetoric of equal rights, responsibilities, and respect have an impact on other states that do not currently afford any legal recognition to the relationships of same-sex couples? Will it shape the debate over whether the federal government should accord such recognition for purposes of federal law? Will opponents of opening up civil marriage view the religious freedom protections as adequate?

The civil union strategy addressed religious freedom concerns by preserving traditional definitions of marriage. New Hampshire?s new strategy, like that of other New England states that recently moved from civil unions to civil marriage, is to distinguish civil and religious marriage and cast the legislation in terms both of extending marriage equality and affirming religious freedom. New Hampshire is ?standing up,? Governor Lynch explains, both for civil liberties of same-sex couples and for religious liberties. Civil unions, as it were, were an important step to a fuller realization of New Hampshire?s tradition of ?opposing discrimination? and of ?tolerance for all.? Civil marriage takes the necessary further step. At the same time, to satisfy the governor?s insistence on protecting religious freedom, the bill affirms the ?exclusive control? by religious entities of their own doctrine about who may marry and also exempts religious organizations, associations, or societies, or individuals ?managed, directed, or supervised? by such institutions from solemnizing marriages and from a wide range of activities connected with celebrating and promoting marriages, when such marriages violate their religious beliefs. How these ?conscience protections? will play out in everyday life (for example, may a religiously devout employee of a secular florist shop assert them because his faith ?directs? him?) and whether they will lessen opposition to opening up civil marriage remains to be seen.

What about implications for the federal debate? President Obama, after all, favors states enacting civil union law as the means to accord equality to same-sex couples, rather than marriage, because of his personal understanding of what marriage is. And his civil rights agenda includes support for repealing the Defense of Marriage Act and enacting legislation making the numerous federal benefits and rights linked to marriage available to same-sex couples in civil unions and other legally-recognized unions. Will this message from New Hampshire and other New England states that separate is not equal in terms of dignity, respect, and legitimacy call into question the civil union solution? Should it?

Full post as published by Balkinization on June 04, 2009 (boomark / email).