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The New New Hampshire Marriage Provision

Timothy Kincaid

May 15th, 2009

Governor John Lynch of New Hampshire has released the language that he will require to be added to the marriage bill before his signature will allow New Hampshire to join five other states in providing marriage equality. In my opinion, this strikes a fair balance between providing civil equality and allowing churches their own autonomy.

I. 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.

II. The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members pursuant to RSA 418:5, and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society’s free exercise of religion as guaranteed by the first amendment of the Constitution of the United States and part 1, article 5 of the Constitution of New Hampshire

III. Nothing in this chapter shall be deemed or construed to limit the protections and exemptions provided to religious organizations under RSA § 354-A:18.

IV. Repeal. RSA 457-A, relative to civil unions, is repealed effective January 1, 2011, except that no new civil unions shall be established after January 1, 2010.

These changes are expected to be implemented quickly and the first same-sex marriages in New Hampshire will occur in January 2010. (Boston Globe)

“I applaud the governor for keeping an open mind,” Senate president Sylvia Larsen said in an interview last night. “The language that we will be addressing only improves the protections for religious organizations and individuals.”

Representative James Splaine, the primary sponsor of the same-sex marriage legislation, said: “We can find a way to do that in the next week or two, and then we’ll have marriage equality.”

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Priya Lynn
May 15th, 2009 | LINK

I’m no lawyer and I only got halfway through that stuff before my eyes glazed over but I don’t trust those of you who are saying this is no problem. I think its disgusting and no way should we be making exceptions for the religious to discriminate. No one would think its a good idea to allow them this language to discriminate against interracial couples and its just hypocrisy to say its no problem to allow them this to discriminate against gay couples.

Bruno
May 15th, 2009 | LINK

Priya: The fact is, similar language was included in Vermont and Connecticut to very little fanfare. Not that that necessarily justifies any of it, but that fact remains.

I say we let things happen and then see how it affects marriages. Having marriage rights at all is the top issue right now.

occono
May 15th, 2009 | LINK

I wonder if some people will have wished to stick with Civil Unions in the end.

fannie
May 15th, 2009 | LINK

I think it’s pretty disgusting too, how far these people have to go to make sure they don’t have to provide any sort of services to same-sex couples seeking marriage. But, if it’s important to them, I don’t mind this being explicitly stated in the law. I wouldn’t utilize such services anyway, and gay people shouldn’t support businesses who are anti-gay. Besides, in all likelihood, many of these “religious protections” already existed anyway because of the First Amendment.

Later on down the road, these people are going to be remembered for requiring these provisions that allow them to not have to serve the icky gays. Their bigotry is going to be codified. Have fun with that.

CPT_Doom
May 15th, 2009 | LINK

Here’s my basic question – can a Catholic hospital refuse to recognize the marriage of two men, one of whom is an impatient, thereby preventing visitation or medical decision-making?

Secondly, can the same hospital refuse to provide spousal benefits for a lesbian nurse’s wife?

Those are the kinds of issues that can get squirrelly with this kind of language. It seems overly broad to me.

Timothy Kincaid
May 15th, 2009 | LINK

CPT_Doom,

I am not an attorney. But by my reading of the language – which seems pretty clear – a hospital would have some limited rights. Taking the above, I’ve removed the flowerly language to get the following:

[A]ny nonprofit institution (hospital) operated by a religious organization (the Franciscans) shall not be required to provide services to an individual if such request for such services is related to the solemnization of a marriage [if it] is in violation of their religious beliefs and faith.

It appears to me that a Catholic hospital could refuse to allow a wedding ceremony on the premises. The language does not seem to me to suggest that they could refuse to recognize the next of kin which is a legal status and not related to solemnization, celebration, or promotion.

Were a Catholic hospital to refuse to recognize the wishes of the person designated by the state to have medical desision power, that would be a problem that would put them in a very strange legal position. I don’t think we have to worry about that.

Jarred
May 15th, 2009 | LINK

I echo CPT_Doom’s concerns. I also note that at first blush, there seems to be no clause stating that to receive such exemptions, said religious organization or religiously-run non-profit organization must receive no money from the government.

Jason D
May 15th, 2009 | LINK

I, like others am cautious about this language. If this is a redundancy, an enumeration of relgious protections that already exist via state/federal constitution, and or legal precedent — then I am fine with it.

If however, it allows a Methodist Hospital to refuse to recognize next of kin — or emboldens them to ATTEMPT to refuse visitation or ignore orders from a spouse — then we have a huge problems. In a life or death situation, there is no time for court orders, I don’t want any LGBT person to die without family because a hospital thinks they have the right to prevent access.

The Lauderdale
May 15th, 2009 | LINK

Jason D:
“If however, it allows a Methodist Hospital to refuse to recognize next of kin — or emboldens them to ATTEMPT to refuse visitation or ignore orders from a spouse — then we have a huge problems.”

People will be emboldened to attempt all kinds of things, whether rightly or wrongly, based on the rights they already do have under the constitution. There is no such thing as totally safe.

TJ McFisty
May 15th, 2009 | LINK

Sounds just so easy, polite and full of good intentions. I’m told by certain religious folk where those intentions lead.

Caution: Christian Privilege Ahead.

Priya Lynn
May 15th, 2009 | LINK

Timothy said “[A]ny nonprofit institution (hospital) operated by a religious organization (the Franciscans) shall not be required to provide services to an individual if such request for such services is related to the solemnization of a marriage [if it] is in violation of their religious beliefs and faith.

It appears to me that a Catholic hospital could refuse to allow a wedding ceremony on the premises. The language does not seem to me to suggest that they could refuse to recognize the next of kin which is a legal status and not related to solemnization, celebration, or promotion.”.

It appears to me that such a hospital could refuse to recognize the next of kin because such a determination would be solely due to the solemnization of a marriage that is in violation of their beliefs. I think its pretty much a given that some religous hospital will interpret it that way because they can.

Timothy, seems to me you’re overly quick to call this language “fair” when you admit yourself you don’t know the consequences that might arise from it.

Christopher Waldrop
May 15th, 2009 | LINK

Priya, that’s a good point, but I wonder if there aren’t other existing laws that protect the rights of patients that would prohibit hospitals from refusing to recognize someone’s stated next of kin. I don’t know the law, but a patient’s right to declare a next of kin or to grant power of attorney to someone should trump the hospital’s policy.

Speaking hypothetically, let’s say that a hospital has a policy of refusing to acknowledge interracial couples. (I know it would cause outrage, at least now, but it’s a hypothetical example.) Would they then have the right to refuse visitation rights to a spouse who was of a different race? Could they refuse to consult with the spouse regarding medical decisions because they don’t want to acknowledge him or her?

I understand no one wants to have to go to court in a life-or-death situation, or even with a loved-one in a hospital, but if some hospital really wants the legal and public relations disaster that it would be, let ‘em have it.

Matt
May 15th, 2009 | LINK

Tweet!

15 yard penalty on Gov. Lynch for effusive legalize.

That nothwithstanding, I’ll say this: if you don’t want to get married in a Catholic Church, don’t get married there.
Come to a Unitarian church and you’ll be fine. Most Episcopal and UCC churches will also be fine.

If you’re concerned that a Catholic/Methodist hospital would refuse to treat you, don’t go there. Or do, and quote the passage of the Pharisee at them as a reminder.

Priya Lynn
May 15th, 2009 | LINK

Christopher said “a patient’s right to declare a next of kin or to grant power of attorney to someone should trump the hospital’s policy.”.

It should, but it doesn’t always. There was the case of a lesbian couple in, I believe, Florida, they were about to go on a cruise with their children when one of them got ill and was near death and despite having a power of attorney the hospital refused to let the well partner in the room as she was dying and refused to let her make medical decisions for her. Legally they were required to honour the power of attorney but they didn’t see it that way and didn’t. I’m sure something similar could happen with this extremely broad language giving any affiliated religious institution the right to reject any services based on marriages they don’t recognize- and a court may well back that up.

It reminds of the marriage law/amendment that I believe was passed in Michigan. Prior to the passage the religionists claimed this would not affect the rights of domestic partners to get medical insurance and then once it was passed they immediately went to court to deny domestic partner’s medical insurance. The lesson is that if a law can be interpreted broadly to deny gays and lesbians any right, it most definitely will be.

Christopher said “Speaking hypothetically, let’s say that a hospital has a policy of refusing to acknowledge interracial couples. (I know it would cause outrage, at least now, but it’s a hypothetical example.) Would they then have the right to refuse visitation rights to a spouse who was of a different race? Could they refuse to consult with the spouse regarding medical decisions because they don’t want to acknowledge him or her?”.

I’m certain that that would never happen to an interracial couple. Yet somehow people who would be aghast at giving religious people the right to treat an interracial couple that way somehow think its all well and good to give them the right to treat gay couples that way.

Matt said “If you’re concerned that a Catholic/Methodist hospital would refuse to treat you, don’t go there.”.

Well, that’s a nice theory, but may not work out so well in practice. There are not unlimited choices of hospitals and one may find oneself in such a hospital for reasons beyond one’s control. For example, let’s say there is a medical emergency, time is of the essence and the Catholic/Methodist hospital is the one closest to you and in order to save your life the one you best go to. Or perhaps you need access to some specialized equipment/personnel and the only hospital that has the service available in a timely manner is the Catholic/Methodist one. This isn’t like getting a cup of coffee where if one business doesn’t want to serve you its no big deal to go to another. And would you have told the blacks back in the day of Jim Crow “If a business doesn’t want to serve you, just don’t go there.”?

John
May 15th, 2009 | LINK

Hospitals are required in CA to ask patients being admitted to the hospital if they have an advanced directive or power of attorney for healthcare decisions. Not sure if this is a state or federal mandate. Even though marriage is in limbo in CA, these forms and patient decisions are not.

Hospitals are generally pretty risk averse. I am familiar with the Florida case. I am sure that the hospital will settle with the surviving family. They really don’t have a defense for their actions. I was pretty shocked reading the case that reasonable heads didn’t prevail much earlier in the process (even in Florida).

I don’t think you will find many hospitals (religious or otherwise) trying to make a name for themselves by becoming a plaintiff in one of these sorts of lawsuits, as I am sure that the Florida hospital wishes they weren’t caught up in the middle of their nightmare case. The bad publicity alone would hurt them, let alone the cash payout on losing.

Matt
May 15th, 2009 | LINK

Priya,

I’m not sure what I would have said in Jim Crow times, but I don’t think there was as much sentiment behind Jim Crow as opposed to just outright racism and bigotry.

As for the hospital situation, I quote the Hippocratic Oath- “First do no harm”. Any doctor, hospital or medical provider that does what this hospital in Florida did is guilty of a grave breach (no pun intended) of that code and rightfully should be raked over the coals for it.

Priya Lynn
May 15th, 2009 | LINK

Matt, I’m not sure what you mean by “I don’t think there was as much sentiment behind Jim Crow as opposed to just outright racism and bigotry.”. I’m quite confident that most people who are bigoted against gays are that way because they find gays icky, not out of any sense of sentimentality.

Here is a relevant article on how some hospitals have treated some gay couples despite the rights they should have had by law:

http://well.blogs.nytimes.com/2009/05/12/how-hospitals-treat-same-sex-couples/?hp

Timothy (TRiG)
May 16th, 2009 | LINK

Priya Lynn, that’s a fascinating and frightening article in your link. Thanks for posting it.

TRiG.

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