The Volokh Conspiracy - N.H. governor will sign SSM bill if . . .

it includes broader religious exemptions. The statement Gov. John Lynch just released is 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 initially made a few weeks ago by several law professors and partly from language included in recently 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 (see, for example, here) that the substantive legal case for religious exemptions in SSM legislation is not very compelling. 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.

UPDATE: It appears New Hampshire Freedom to Marry, the main pro-SSM group, supports the governor's proposal. They're indicating that a legislative hearing on the proposal will be held Tuesday.

	[Dale Carpenter, May 14, 2009 at 9:37pm] Trackbacks N.H. governor will sign SSM bill if . . . it includes broader religious exemptions. The statement Gov. John Lynch just released is 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 initially made a few weeks ago by several law professors and partly from language included in recently 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 (see, for example, here) that the substantive legal case for religious exemptions in SSM legislation is not very compelling. 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. UPDATE: It appears New Hampshire Freedom to Marry, the main pro-SSM group, supports the governor's proposal. They're indicating that a legislative hearing on the proposal will be held Tuesday.