New Hampshire will become the sixth state to allow same-sex marriages, effective the first day of 2010. The legislation's principal legal effect is a name change - it uses the word "marriage" instead of "civil unions," which have existed in New Hampshire since January 1, 2008. The institution of civil unions will cease to exist in 2011, at which point all remaining civil unions in the state will be converted to marriages.
The earlier civil union law already provided to same-sex unions all the same rights and benefits provided to married couples under state law. The passage of gay marriage, therefore, will not alter the legal landscape in terms of the benefits that state agencies and private employers will have to provide from the changes that occurred last year.
Under the civil-unions bill, employers have had to provide to members of civil unions - and same-sex couples married outside New Hampshire - the same employment benefits that they provided to married individuals. Employers should review their internal policies to ensure that all state-mandated or voluntary policies (ie., all non-federally-created rights) extend to partners of civil unions and spouses in both same-sex and opposite-sex marriages. State-created benefits include workers' compensation and New Hampshire's law governing continuation of health coverage (RSA 415:18); employer-created voluntary benefits include bereavement leave. Once civil unions are phased out in 2011, any reference to "spouse or partner" in employee handbooks can revert back to "spouse."
The federal Defense of Marriage Act, passed in 1996, prohibited the extension of any federal benefits allowed to married couples to same-sex couples. DOMA, therefore, means that the passing of gay marriage will not change any employer requirements under federal law - such as requirements of federal tax laws, ERISA, COBRA, the Family and Medical Leave Act, or social security benefits - to same-sex spouses in New Hampshire. DOMA also permits other states to decline to recognize New Hampshire's same-sex marriages.
Note that because of DOMA, the fair market value of health benefits for a same-sex spouse or partner must be treated as income, rather than excluded under IRC 106(a). (For a full discussion of this issue, see Good Company, "Changes to NH Law Regarding Insurance Coverage for Dependents and Civil Unions Have Federal Income Tax Implications," July 24, 2007 and "Changes to New Hampshire Law Regarding Insurance Coverage for Dependents and Civil Unions," Oct. 25, 2007.)
Exemptions for Religious Organizations
The New Hampshire gay marriage law obtained Gov. Lynch's signature only after the legislature added statutory language protecting to religious organizations from having to participate in gay marriage. The act says that religious organizations, or individuals or non-profits related to religious organizations, are not required to provide any services related to gay marriage if it would violate their religious beliefs. This means, for instance, that churches cannot be sued for refusing to marry same-sex couples. The compromise amendment provides similar insulation for fraternal benefit societies, stating that gay marriage does not alter their right to choose their members or to provide insurance benefits that would violate their religious beliefs. (Most likely, religious organizations were already protected before the compromise bill from the reach of the gay marriage law by constitutional and statutory privileges.)
The legislature did not pass proposed language that would allow non-religious businesses and individuals who provide wedding services, like wedding photographers or florists, to refuse services to same-sex couples. State anti-discrimination laws, like RSA 354-A:17, prohibit businesses from discriminating on the basis of sexual orientation.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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