EagleTribune.com, North Andover, MA

January 27, 2012

Editorial: Don't enshrine discrimination in state law

New Hampshire Republican legislators are taking their obsession with the lives of gays and lesbians a step further, this time with a bill that would allow individuals to refuse to provide goods or services for same-sex marriages.

The bill, HB 1264, titled "Freedom of Religion and Conscience in Marriage", would amend state law to allow individuals, businesses or employees to refuse to provide "services, accommodations, advantages, facilities, goods, or privileges" for the "solemnization, celebration or promotion of a marriage" if doing so would violate that person's conscience or religious faith.

The bill prohibit lawsuits or any state enforcement action against those refusing to provide marriage services for these reasons.

The bill does not mention same-sex marriages specifically, but such unions clearly are the target of the legislation.

Among the bill's sponsors is Rep. Frank Sapareto, R-Derry.

"Our definition of marriage is heterosexual," Sapareto told reporter John Toole.

Consideration of the bill comes as another measure that would overturn a 2009 vote and outlaw same-sex marriage altogether awaits action in the Legislature. That 2009 law already affirms the right of clergy and religious organizations under the state and federal constitutions to refuse to perform any marriage that violates the principles of their faith. So Sapareto's claim that his bill is needed to protect clergy from being forced into performing same-sex marriages is nothing but a red herring.

Much of the debate over the current bill centers on whether businesses have the same right to refuse to provide services on matters of principle.

A great deal of precedent, including several Supreme Court decisions, suggests that they do not. These high court rulings hold that those providing "public accommodations" must provide them without discrimination. The rulings uphold the civil rights legislation of the 1960s, which bars discrimination on the basis of race, religion, sex, or national origin.

Sexual orientation was not protected from discrimination in the civil rights legislation of that era. Indeed, the Supreme Court has ruled that organizations can bar homosexuals from membership — but only if that organization is engaged in "expressive association"; that is, opposition to homosexuality is among the "values" it seeks to transmit.

Many states, including New Hampshire, have their own laws prohibiting discrimination by public accommodations on the basis of sexual orientation. So Sapareto's bill runs afoul of both state and federal law.

Indeed, in its lack of specificity, it likely would not pass constitutional muster. There is nothing in Sapareto's bill that would prohibit a business from denying services to a black couple or a Jewish couple based on some spurious claim of religious faith.

"This really would open it up so all sorts of individuals could get out from under existing non-discrimination law," said Sarah Warbelow, state legislative director for the Human Rights Campaign, which advocates for gay marriage.

Is this where New Hampshire's Republican legislators want to lead the state? Back to the bad old days of "separate but equal"?

More than a half-century of civil rights struggle has established the American principle that "separate" is never "equal." New Hampshire's Republican legislators seem to have missed that message. Voters should make it clear to them in the next election.