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New Hampshire, Marriage Equality, and Religious Exemptions

June 4th, 2009 3 comments

Late yesterday, New Hampshire became the sixth state to extend marriage equality to same-sex couples (seventh, if you include the now-you-have-it, now-you-don’t case of California). Here‘s a good, objective story about the law. It’s noteworthy that this isn’t even front-page news; at least in the tiny enclave of New England, equality is now the norm. Wait — Did I just write “Equality is now the norm.”? Who’d a thunk, just a couple of years ago?

The new battleground, apparently, is to be the scope of religious exemptions for those opposing marriage equality. Existing constitutional, legislative, and decisional law already make clear that no church is to be forced to marry a couple whose marriage offends its tenets, so the exemptions seek to go beyond that. New Hampshire’s, in fact, was required by the governor before he’d sign it. What does it do?

The text of the amendment is here. In sum, it bestows broad privileges on religious organizations and their affiliates to refuse to have anything to do with the celebration or solemnization of marriages that violate their precepts, and grants further protections with regard to promotion of these marriages in other contexts. For example, a religious university could exclude a validly married same-sex couple from student housing otherwise offered to married couples if the beliefs of that religion so demanded.

Some say the bill doesn’t go far enough, and should have also exempted those who provide services in connection with weddings; for example, florists, caterers, and the like.  Some of these advocates would go yet further; Tom Berg, for example, would allow even state employees, such as licensing clerks, to refuse to issue a marriage license to same-sex couple as long as another clerk was available to process the application.

There are many problems and issues with the breadth of these amendments, real and proposed, and I’ve committed to a more substantial post for another blog on this issue. For now, I want to address the very limited issue of allowing government workers to refuse to participate in this process. Here’s my bottom line: This is a very bad idea.

What makes denial of marriage equality so offensive in the first place? It’s that the state, without justification, is withholding a benefit to some that it grants to others. So those employed by the state — and who therefore represent it, certainly while on the job — should have to follow the rules that apply to everyone. Otherwise, the state is continuing to send the message of inequality.

Perhaps this dramatic (and admittedly unlikely) example will make the point: Imagine that New York passes a marriage equality bill that exempts marriage license clerks who have religious objections to same-sex marriages from having to perform their otherwise required duty. Further imagine that there’s one such clerk in the Manhattan office, and that there are ten available windows at which licenses are issued. To speed things up, and to avoid unpleasantness when same-sex couples walk up to the window, the city decides to post a sign at the one window where the religious objector is working: “Opposite-sex Marriages Only.” Would doing so be OK, in the interest of convenience?

Presumably, this example would make even advocates of the exemption uncomfortable, because it calls to mind “Colored Only” water fountains, rest rooms, lunch counters — you get the idea. But by allowing the clerk to refuse his or her civic duty, the state is allowing, in a more subtle way, exactly this sort of discrimination. The clerk’s actions are the city’s actions.

Given these comments, I’ll now try to surprise you by saying that I wouldn’t oppose other actions by this office to respect this worker’s religious beliefs. One option would be reassignment to an office that issues different kinds of licenses. I can’t see a cost there to either side, but I wouldn’t require the office to try doing so. Less formally, an objector who observed a same-sex couple waiting in line, or filling out an application, might step aside before his or her presence became known, and allow another clerk to take over temporarily. This might happen in any case, with or without legislation.

It’s very hard for me to be sympathetic to these kinds of beliefs, I should confess. Yet they’re deep and sincere in many cases, and I’m not opposed to efforts to respect them. But not when it comes to those employed by the government itself; then, the discrimination must either be eliminated, or somehow circumvented. Some things, I don’t want to know.