CACR 34 seeks to amend the New Hampshire Constitution to ban any legal recognition of same-sex relationships in New Hampshire.

Tuesday, February 7, at 10 AM in the Representative's Hall, the House Judiciary Committee will hold a public hearing on CACR 34. This proposed amendment would not only prohibit same-sex couples from marrying in New Hampshire, it would prohibit the recognition of civil unions and domestic partnerships as well.

The New Hampshire Freedom to Marry Coalition (www.nhftm.org) claims that each of the eight Democratic committee members is already lined up to vote against CACR 34. To ensure that CACR 34 does not make it to the House floor, we need at least four Republican committee members to also vote against the resolution.

The measure will be defeated with a “no” vote of four Republicans on a committee with the following twelve Republican members:

Chairman Cynthia J. Dokmo
James E. Wheeler
Vice Chairman Tony F. Soltani
James P. Pilliod
Clerk Maureen C. Mooney
Donald R. Buxton
Robert H. Rowe
Nancy J. Elliott
Vivian J. Desmarais
Bea Francoeur
Richard W. Morris
Robert D. Mead
Gregory M. Sorg
John B. Hunt

Consider the following points about this proposed legislation:

NH Voters Strongly Oppose Amending the Constitution
The results of a February 2004 UNH Survey Center poll showed that almost two-thirds of New Hampshire voters (64%) oppose a constitutional amendment to define marriage. See . 49% of respondents were “strongly opposed.”

The poll also found that GOP voters — by a margin of 48% to 46% — oppose amending the Constitution. This is no doubt explained, at least in part, because New Hampshire is not as conservative on social issues like other states in which anti-marriage constitutional amendments have passed (e.g., Arkansas, Georgia, Kentucky, Mississippi, Montana, North Dakota, Oklahoma and Utah, each of which adopted anti-marriage amendments in 2004).

On the separate question of whether gays and lesbians should be permitted to marry, 55% were in favor and 41% were opposed. Each region of the state and each executive council district registered majority support for same-sex marriage. The North Country, often thought to be the most traditional region of the state, had the highest level of support with 61%.

Taken together, these poll results could provide moderate Republican committee members with political cover for a vote against CACR 34. While a 55% majority of voters supports same-sex marriage, a nine-point-greater majority opposes a constitutional amendment prohibiting it. The New Hampshire electorate thus appears to oppose tinkering with the Constitution generally, without regard to the strength of opinion on the underlying subject matter.

This is important because the vote on CACR 34 is not a vote to legalize same-sex marriage. New Hampshire law already prohibits a man from marrying another man or a woman from marrying another woman. See N.H. Rev. Stat. 457:1 and 457:2. These statutes will remain in place and same-sex marriage will still be prohibited in New Hampshire even if the Judiciary Committee rejects CACR 34. A “no” vote on CACR 34 is not a vote to repeal RSA 457:1 and 457:2.

In short, the only Judiciary Committee member who should vote in favor of CACR 34 is that member: first, who supports amending the Constitution despite 64% opposition to doing so and second, who opposes any legal recognition of same-sex relationships, whether in the form of marriage, civil unions or domestic partnerships. Any committee member who opposes either of these two positions should vote against CACR 34.

An Anti-Marriage Amendment Is Unnecessary Because It Would Do Nothing To Strengthen The Already-Existing Prohibition Against Same-Sex Marriage

RSA 457:1 and 457:2 already prohibit same-sex marriage in New Hampshire. An amendment to the New Hampshire repeating that same prohibition, then, would add nothing to the law.

Nonetheless, amendment proponents might argue that a constitutional amendment is necessary to protect 457:1 and 457:2 from being declared unconstitutional. If the state Constitution prohibits same-sex marriage, the argument goes, then a statute repeating that same prohibition cannot violate the state Constitution.

However, no provision of state law — whether a statute or a constitutional measure — can survive if it violates the United States Constitution. See Romer v. Evans, 517 U.S. 620 (1996) (Colorado constitutional amendment struck down because it violated constitutional guarantees under the federal Constitution). If the same prohibition of same-sex marriage in a constitutional amendment and repeated in a statute violates the US Constitution, it is irrelevant that the prohibition is stated in the state constitution. Both provisions would be stricken. An amendment, therefore, would not protect RSA 457:1 and 457:2. It is therefore unnecessary to create this redundancy in the law.

An Anti-Marriage Amendment Would Likely Violate The US Constitution

There has been only one court so far to even consider the constitutionality of an anti-marriage state constitution amendment. In the 2005 case Citizens For Equal Protection, Inc. v. Bruning, 368 F.Supp.2d 980, the United States District Court for the District of Nebraska held that the anti-marriage amendment to the Nebraska state constitution did violate the US Constitution in several significant ways.

It is critically important to note that the federal court did not consider whether a prohibition of same-sex marriage was unconstitutional. The decision did not mean that gay people could then marry, get a civil union or a domestic partnership. Its analysis was limited solely to whether the existence of the Nebraska amendment, and the unique burdens it imposed on gay people, was unconstitutional.

First, the federal court held that the Nebraska amendment violated the First Amendment to the US Constitution because it significantly burdened the rights of gays and lesbians to petition their government and participate equally in the political process. The Nebraska amendment altered the political process so that gays and lesbians were prohibited from simply lobbying the Legislature to secure rights and benefits that every other citizen enjoyed. The Nebraska amendment required that gays and lesbians take the additional step of first getting a majority of the electorate to repeal the amendment. Only then could gays and lesbians approach the Legislature for protective legislation.

Second, the Nebraska amendment violated the Fourteenth Amendment to the US Constitution because it denied gays and lesbians equal treatment under the law. The Nebraska amendment could not reasonably be expected to achieve its stated goal of “protecting” marriage (i.e., it left the divorce laws intact) and, thus, there was no basis for its discriminatory treatment of gays and lesbians.

Finally, the Nebraska amendment was found to be an unconstitutional bill of attainder. A bill of attainder is a legislative punishment, of any form or severity, of specifically designated persons or groups.

The same would be true for an anti-marriage amendment to the New Hampshire state constitution. It restricts gays’ and lesbians’ right to petition the government for rights and benefits that every other citizen enjoys. It would do nothing to “protect” marriage in New Hampshire, and thus cannot justify its targeting of gays and lesbians for special burdens. It would also amount to a bill of attainder, because the punishment it inflicts is targeted only to gays and lesbians.

No court has ever determined that an anti-marriage amendment is constitutional. The only court to consider the question found that it deprives citizens of basic and fundamental rights.

Conclusion

CACR 34 is unnecessary, discriminatory and would amend the New Hampshire Constitution to expand governmental power. It would for the first time in the state’s history restrict, rather than expand, individual freedom. Further, CACR 34 would do real harm to same-sex couples and their children, who already do not enjoy the vast majority of benefits and protections that heterosexual married couples enjoy.

It is not within our constitutional tradition to enact a law like CACR 34. Please do what you can to defeat CACR 34. Work to persuade at least four moderate Republican members of the House Judiciary Committee to vote “no” on CACR 34.