And then there were six. The New Hampshire legislature has voted to recognize same-sex marriage joining five other states with such recognition in a continuing and encouraging trend among the states. Gov. John Lynch signed the bill soon after it was passed by the legislature. The question now is whether religious conservatives will try to stop states from determining their own matrimonial laws by passing a federal constitutional amendment.
One last minute snag was the original language of the bill that exempted members of the clergy from having to perform same-sex weddings. Gov. Lynch insisted that the legislature also exempt religious groups and their employees from having to participate in such ceremonies. It was a wise move that likely avoided at least one difficult issue in litigation and protected the rights of those who oppose such marriages on religious grounds. There was also a controversy involving the replacement of a Republican member by the Senate president, Sylvia B. Larsen, when he would not sign off on changes to the language (which requires unanimity under state rules).
The addition of New Hampshire will increase arguments by the religious right that other states will be forced to recognized thousands of such marriages under the full faith and credit clause. They will note that, even when California upheld Proposition 8 in banning same-sex marriage, the California Supreme Court preserved the marriage of thousands in that state that were completed before the proposition was passed. I do not agree that the full faith and credit clause clearly demands such recognition and it would be a political advantage for gays and lesbians not to push the issue at this time. There has been a long debate over existence and scope of an unexpressed exception under the clause for public policy differences between the states.
Of course, with Republican power on the wane, the religious right may try to rally the forces around a federal constitutional amendment — the ultimate rejection of state rights and federalism values in my view.
Currently, Iowa, Massachusetts, Connecticut, Vermont, and Maine are states that recognize same-sex unions or marriages. Washington, D.C. has also voted to recognize such marriages. California does recognize marriages that occurred before Proposition but no longer allows such marriages to occur.
As I have written before, I believe that the solution to this debate is to be rid of the term “marriage” in public records and to adopt a universal “civil union” standard for all couples.
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