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New Hampshire's Unique, Complicated Path To Same-Sex Marriage

Brady Carlson

  When organizers planned Portsmouth’s first Pride festival, they expected a few hundred participants. In the wake of the Supreme Court's decision on marriage, they got thousands. At times those on hand in Market Square seemed to surprise themselves with their numbers and their enthusiasm. Some of the speakers, like Jake Sandlin and Nicki Sinclair, could hardly find the words to describe the moment: 

"This is like the biggest thing I’ve ever been a part of in my entire life other than school band," Sandlin told the crowd. "This is incredible - what the heck is going on right now? It's like a dream!" Sinclair added. 

Portsmouth Pride was originally supposed to celebrate LGBT youth on the Seacoast. But the high court's ruling quickly became the new focus of celebration. Portsmouth Deputy Mayor Jim Splaine, who had sponsored New Hampshire’s same-sex marriage law as a state representative, noted both the practical and the philosophical aspects of the Court’s decision.

"As of yesterday, since 2009 there have been 3,384 same sex marriages in New Hampshire," Splaine said. "Now all of our friends nationwide are going to be able to join in the fun and celebration that we have had." 

Splaine noted one more change: "As of yesterday," he said, "I stopped referring to it as g-a-y marriage, it is marriage."

New Hampshire’s story is unique when it comes to marriage. This state was the fifth to legalize marriages for same-sex couples, and it did so through the legislative process – not through the courts. But there were twists and turns along the way that aren’t always remembered today. For example: in the wake of the 2004 court decision that legalized same-sex marriage in Massachusetts, New Hampshire lawmakers set up a commission to study the issue. But there were deep divisions among its members. After holding a series of public meetings and taking testimony from hundreds of citizens, a majority of the commissioners quickly voted to recommend a constitutional amendment defining marriage as between a man and a woman.

Speaking in 2005, the panel’s chair, Republican representative Tony Soltani of Epsom, said he wanted to protect traditional marriage as well as the rights of gay and lesbian couples. "What I have heard from the same sex community all along is that there is a very small minority who want marriage the same as diverse couple marriages. It is the majority that is interested in the rights and responsibilities which we are going to do, and which we are going to recommend. The title of the name doesn't matter. It's what the meats and potatoes are."

Several panel members said that vote showed the commission was only paying lip service to securing rights for gays and lesbians. Republican state representative Steve Vaillancourt of Manchester co-authored the commission’s minority report. 

"This commission was formed to go into all aspects of same-sex marriage or unions, and how NH could implement laws that would make this a fair process," Vaillancourt said at the time. "That's what our charge was on this commission, and we chose to ignore that charge, and delve into the realm of homophobia instead. Fifty years from now, when gay marriage has become a fait accompli, and everybody realizes it's something that should've happened a lot sooner, history will look back in shame with what this commission has decided to do."

Several years later, Democrats won majorities in the State House and Senate for the first time in decades. And in April 2007, they approved a civil unions bill – the first without a court case or the threat of one – and then-Governor John Lynch signed it into law.

Gay rights advocates largely cheered the new measure – but they noted the federal Defense of Marriage Act meant there were sharp limits on civil unions. “It has some legal protections but it’s certainly not equal," said Mo Baxley of New Hampshire Freedom to Marry as civil unions took effect in 2008. "There’s certainly a lot of legal protections that don’t come with it so people are finding those out and making serious decisions.”

Credit Brady Carlson / NHPR
Portsmouth Deputy Mayor Jim Splaine speaks at Portsmouth Pride, June 27, 2015. As a state representative, Splaine sponsored the same-sex marriage law legislators enacted in 2009.

  With that, a broad push for full marriage equality in New Hampshire began, though Portsmouth’s Jim Splaine says at first it didn’t look like the legislation he sponsored would pass. "There was some reluctance after civil unions in 2007 to even deal with the issue two years later," he said. "The governor didn’t want to, he had campaigned against gay marriage being passed when he rain in 2008, saying let’s give civil unions a try… and when it got to the Senate there was still reluctance to deal with it because we had a recession and some other issues. Eventually it did pass, 13 to 11."

The first vote in the State House actually rejected the marriage bill, by one vote. Democrats called a recess to persuade opponents to change their vote; when the measure came back up it narrowly passed.

The wildcard was Governor Lynch, who had declined to comment on the marriage bill as it worked its way through the legislature. Once, when asked his stance on an amendment to a bill, the governor said, "I haven't read the amendment - I'm really here talking about the swine flu. That's all I'm going to focus on." 

Lynch eventually did read the bill, and said he would only sign the measure if it included new language exempting church-affiliated entities from being required to participate in same-sex weddings. Lawmakers agreed to the changes, and Lynch not only signed the marriage bill into law, but said there needed to be federal legislation on the issue. “Unfortunately the federal government does not extend the same rights protection that New Hampshire provides same sex families," he said at the signing ceremony. "And that should change.”

Opponents vowed the 2010 election would bring a backlash on marriage. Voters that year gave House and Senate majorities to Republicans, whose party platform supported repealing the marriage law. But GOP leaders said repeal wasn’t their first priority, and when it did finally come up for a House debate in 2012, it failed 211 to 116.

The lead sponsor of the repeal effort, Representative David Bates of Windham, pointed toward political dynamics as one cause for the outcome. "There is a significant number of Libertarians, you know they ran as Republicans, and don’t feel any particular compulsion to vote consistent with the Republican platform," he said. "That’s really what I think we saw materialize there.”

Something else was materializing as well: public attitudes about marriage were changing. New Hampshire had seen several high profile stories up close: Charlie Morgan, a New Hampshire National Guard member who sued to overturn the Defense of Marriage Act to see that her wife could receive survivor benefits after her death, and Gene Robinson, elected the first openly gay Episcopal bishop and a vocal backer of same-sex marriage. In 2011 the UNH Survey Center found only 29 percent support for repealing the marriage law, while 51 percent were strongly opposed – numbers that were unthinkable a decade before. The political dynamic changed, too; according to the state’s bill tracker, no lawmaker has introduced a repeal measure since the Bates bill fell in the House in 2012.

But marriage equality advocates say neither that vote, nor the Supreme Court ruling last week, is the end of the story for the LGBT community. Ryan Richman is co-chair of the New Hampshire chapter of the Gay, Lesbian and Straight Education Network, known as GLSEN-NH. "Is the fight over? Far from yes, even in this state," Richman said. "There are no protections for trans individuals. If you identify as trans, you can still be fired from your job, just for being trans; you can be denied housing for being trans. So our trans youth are growing up in a very scary world still.

"In many states in this country, you can you can be fired for being gay. In many states in this country you can be denied housing because you’re gay. Yes, this is a huge victory and it needs to be celebrated, but there’s a lot of battles that we still need to fight."

That, Richman says, will come in time. But he says this moment is worth celebrating. So did Ed Smith of Haverhill, Massachusetts, a member of the Portsmouth-based group Seacoast Gay Men. The 61 year old said many people his age didn’t expect this day to come in their lifetimes. Now that it’s here, he says, the feelings are somewhat bittersweet.

"It’s a little bit of sadness, too, to think that I’ve lived all these years waiting for things like this to happen," Smith said. "Trying to live my gay life has been very challenging under the social constraints of people trying to guess who you are, what you are, instead of just accepting me as I am." 

"Now," he adds, "it’s there. It's a socially accepted fact of law. And it makes a big difference."

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