NH Repubs have an excuse

Timothy Kincaid

February 7th, 2012

There has been speculation (including my own) that New Hampshire Republicans don’t want to stir a hornets nest and reverse a marriage law that has been accepted and is now supported by a strong majority of New Hampshire residents. So far, they have avoided the issue by being far too occupied with advancing legislation that they believe will help their economy.

But now the Ninth Circuit Court of Appeals may have given them an ideal excuse. They can now say that while they had no obligation to advance marriage equality, now that the state has done so taking it away is an impermissible violation of the Fourteenth Amendment. So until that has been addressed by the Supreme Court, they’d best not reverse the law.

If, as I am guessing, they are looking for an excuse. And I rather suspect that our allies in the Democratic Party have already mentioned it.

Lindoro Almaviva

February 7th, 2012

Like I said in my comment on NOM Fleeces Its Followers with Falsehoods (again), this case while decided narowly has set some precenedts that are hard to ignore and this might be one of them.


February 7th, 2012

This could also have some effect on the upcoming referendum in Washington, which is actually located in the 9th Circuit

B John

February 7th, 2012

Steve, this could have an impact in Washington. If people believe the Ninth Circuit has OK’ed gay marriage writ large, some could assume they no longer need to keep up the pressure on lawmakers to pass marriage equality.

This does not grant gay marriage rights to anyone who hasn’t previously had the right. Lot’s of gay supportive people don’t get worked up over ENDA because they believe it is already illegal to discriminate against gay people in hiring and employment. We can’t let that happen with this ruling. We have to make it clear this applies mainly to California.


February 9th, 2012

B John,

Marriage equality is on its way to the governor’s desk for signature in Washington state. A referendum, if any, would be specifically an attempt to take away rights that had already been recognized: a close parallel to California.

Michael Ejercito

February 11th, 2012

This does give the Supreme Court a way to duck the big issue, granting cert to focus specifically on whether Romer v. Evans , 517 U.S. 620 (1996) was focused on the “retrospective application to existing ordinances”, or the “prospective effect” Citizens for Equal Protection v. Bruning , 368 F.Supp.2d 980 at 1003 (D. Neb. 2005) rev’d on other grounds , 455 F.3d 859 (8th Cir. 2006)* This is important because if Romer was judging the “prospective effect”, then its decision was based on “the state of the law”, not the “change in the law”. This means a reversal on this basis means the case simply goes back to the Ninth Circuit for a decision on whether, regardless of whether or not California recognized same-sex marriage in the past, it must do so if it recognizes traditional marriage.

* On reversal, the Eighth Circuit did not decide whether Romer was concerned with the prospective effect of the law.

Michael Ejercito

February 11th, 2012

Marriage equality is on its way to the governor’s desk for signature in Washington state. A referendum, if any, would be specifically an attempt to take away rights that had already been recognized: a close parallel to California.

I would agree. The mere fact that the right was not being enforced does not mean it did not exist.

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