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March 22, 2012

Repealing Same-Sex Marriage in New Hampshire

At this writing, the New Hampshire legislature has rejected an effort to repeal the state’s law allowing same-sex marriage. It’s unlikely that the repeal, should it have been enacted, would have withstood constitutional challenge in any event given the recent decision of the United States Court of Appeals for the Ninth Circuit, which held that California’s voter-initiated repeal of same-sex marriage, known as Proposition 8, failed even the most deferential form of judicial review.

This is because discriminatory laws must be examined in the context of their passage, and the Ninth Circuit found that California had no legitimate basis for taking away the right of same-sex couples to marry when that right had existed without a problem for years and when same-sex couples would continue to enjoy all the same benefits and responsibilities of marriage as opposite-sex couples. Supporters of Proposition 8 argued that the state’s interests in childrearing, responsible procreation, religious freedom, and the content of public school education regarding marriage all provided legitimate bases for eliminating the right of same-sex couples to marry, but they could not demonstrate that the availability of same-sex marriage had actually impaired any of these interests.

A repeal of New Hampshire’s law would have been similarly vulnerable. Following repeal, same-sex couples would have continued to receive all the benefits of marriage, but through civil unions rather than marriage. According to the author of the repeal bill, Representative David Bates, its singular purpose was to “move back, back to the true meaning of marriage.” But, as in California, supporters of the bill would have been hard-pressed to point to any harm created by the availability of same-sex marriage that repeal would have remedied. As the Ninth Circuit reasoned, a law that “operates with no apparent purpose but to impose on gays and lesbians … a majority’s private disapproval of them and their relationships” cannot be deemed valid.

Now, there is one difference between what happened in California and the proposed repeal in New Hampshire. Proposition 8 was a state constitutional amendment, which meant that its opponents would have had to seek another amendment of the state constitution in order to reverse its effect. If the New Hampshire repeal had been enacted, proponents of marriage equality would not have had to seek a constitutional amendment to reinstate the right to same-sex marriage; they would just have had to convince a simple majority of legislators that the repeal was ill-advised and that same-sex marriage should be reinstated.

Because a change in the law through new legislation is nominally easier to achieve than a change through the process of state constitutional amendment, a court might have concluded that a repeal in New Hampshire would not have had quite the same effect as it did in California. But that would not have resolved the question of harm: the state still would have had to come up with some legitimate basis for the repeal—something more, that is, than a mere desire to take away from one group of citizens a civil right they had previously enjoyed.

Lawrence Friedman