The “Live Free or Die” State is about to choose option B for its LGBT citizens. In November Republicans were elected in veto-proof majorities to both Houses of their Legislature — 19-5 in the Senate, 298-102 in the House — and it is their stated intention to repeal the marriage equality law that went into effect a year ago today. Taking away their citizens' freedom to marry, the state's motto leaves them but one other choice: death.
Already four Legislative Service Requests (precursors to formal bills) with intent to redefine marriage solely between a man and a women have been filed by members of the new legislature. It seems all but certain that one such bill will be brought up and passed in the coming session, vetoed by Democratic Governor Bill Lynch, and then a veto override attempted.
What will it take to sustain the Governor's veto? Assuming all remaining Democrats would vote to sustain the veto, it would take four Republican Senators, for a total of 9 votes of out 24, or 32 Republican House members, for a total of 134 votes of out 400 to deny a two-thirds supermajority. My understanding is that the former (finding four Republican Senators) is considered extremely unlikely, leaving it to defenders of marriage equality to round up at least 32 House Republicans (and possibly more, if there are Democratic defectors) — approximately 11% or one in every nine Republican House members.
I certainly don't know if that can be done, and nothing I've read on the subject is making any predictions at this point. But according to SeaCoastOnline, Jim Splaine, who sponsored the existing law, has done some calculations:
Splaine looked at the numbers and said, if those who support marriage equality can find 50 or 60 Republicans “who will join the Democrats in upholding any veto,” he believes they will succeed.
That's seriously depressing, if true, but math doesn't lie: it mean that he believes that at least 18 Democrats would defect and vote for repeal.
So what happens if such a law is enacted?
While the bill to legalize same-sex marriage in New Hampshire did not take effect for more than six months after it was passed, there is no guarantee that there would be any such delay if a repeal were to become law. In New Hampshire, each bill contains the date that it will take effect; there is no mandatory waiting period.
No one knows yet whether the language in such a law would completely annul existing same-sex marriages, turn them into civil unions or leave them as is. The language may be vague enough, as was California's, to force a court to ultimately decide what the fate of the approximately 3,000 same-sex couples who have been married since January 1, 2010 is to be.
Another question is whether enacting such a law will trigger a new federal suit, similar to Perry v Schwarzenegger. It too would claim that revoking marriage equality violates the United States constitution. Unfortunately, it seems like such a claim would be a lot harder to make stick, since it will be much harder to point to animus on the part of the Legislature than it was in the Perry trial. In Perry, the defendant-intervenors were the group that organized and campaigned for the Proposition 8 ballot initiative. Unlike Perry, there will be no television ads seething with hatred to cite, no innuendo that gays are out to steal children for their agenda to point at, and no campaign websites spouting lies and bigoted attitudes to present as evidence.
If the Republicans touting this bill are sane (which they will not be, and thank something for that) all there will be will be speeches of the floor of the New Hampshire House and the Senate defending the 'sanctity of traditional marriage.' Seems hard to prove animus in a court of law from just that. Are national LGBT organizations or others willing to sponsor such a lawsuit without as strong a case, despite the success (so far) of Perry v Schwarzenegger?
Perhaps more importantly, are national LGBT organizations up to fighting these bills-to-be before they become law in any sort of serious way? So far I've seen little to suggest that national organizations like the Human Rights Campaign or the Courage Campaign are focusing effort on New Hampshire. Did they fail to learn the lessons of California in 2008, and then again, of Iowa in 2010 where the battle was never even joined?
From notes on their web site, the New Hampshire Freedom to Marry group seems to be organizing, but I suspect they will be outgunned, outspent and outpeopled by NOM and other hate groups unless there is aid and assistance from national groups.
Opponents of equality will stop at nothing to gain the victory they so desire: a rollback of human rights in New Hampshire. It's time for the LGBT Community and supporters to wake up from the pleasant dream that was the vote on Don't Ask, Don't Tell's still-to-be-realized repeal and smell the stench that is about to rise in New Hampshire. However badly I mix metaphors.
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