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Bar News - June 8, 2007

Tying Legal Knots: NH Has New Civil Union Law



Gov. John Lynch signs into law RSA 457-A which establishes the recognition of same-sex civil unions in the State of New Hampshire

Same-sex couples in New Hampshire will enjoy “the same rights, responsibilities and obligations as married couples” starting New Year’s Day 2008. Gov. John Lynch signed into law RSA 457-A, on May 31, which establishes such unions in the state.


During the signing ceremony, Lynch called the new law a matter of conscience and fairness. “This is the New Hampshire way,” he said in signing the bill into law. He said the law reflects the state’s history of opposing discrimination, dating back to New Hampshire’s role in the abolitionist movement.


With the new law, gay spouses may find themselves navigating some complicated legal channels when it comes to benefits, pensions and estate planning.


Attorneys specializing in those areas of the law are watching with interest and wondering how New Hampshire will measure up to other states, such as Vermont and Massachusetts, in the development of this new contract.


How such legal arrangements will be dissolved is another question, said Douglas R. Chamberlain, an attorney at Sulloway & Hollis with extensive practice in employee law. He is interested in how a pension, for example, will be divided up or allocated for either a working or a non-working partner.


“We’re definitely on a learning curve, and we’re not that far up it,” said Chamberlain.


Besides dissolution of a civil union, Susan Hassan, an attorney at Getman, Stacey, Schulthess & Steere with expertise in estate planning and probate work, questions the applicability of the law in a case in which a company based in a state that does not recognize civil unions handles the distribution of benefits for civil-union spouses of field agents based in New Hampshire.


As far as health insurance benefits go, there are also potential tax liabilities for a spouse or partner because the amount it costs for a partner’s health benefits is not taken as pre-tax like the employee’s portion is. The attorneys interviewed for this story had yet to see the ultimate language of the bill, which at the time was pending final processing.


“Of course we have no idea how the courts [will] interpret the language,” Hassan said.


There may be much less confusion than when Vermont passed a civil unions statute and Massachusetts, facing a ruling of its Supreme Judicial Court, established gay marriage, according to State Rep. Jim Splaine, D-Portsmouth. A co-sponsor of the law, Splaine said lawmakers were careful in drafting the bill so that the state did not have to do much rewriting.


“It’s very streamlined,” said Splaine, an openly gay lawmaker. “There have been complications in other states because they tried to rewrite everything.”


His bill spelled out the “rights, responsibilities and obligation” of married couples as defined under RSA 457. Another section refers to RSA 458, the state’s divorce law.


It holds that “civil unions shall only be allowed between one unmarried man and another unmarried man or one unmarried woman and another unmarried woman, both of whom are at least 18. The secretary of state will produce forms for the civil union. And nothing in the law will require the sanction or performance of a minister or clergy member. The law will recognize a civil union or a gay marriage that is legally contracted outside of the state as a civil union in New Hampshire, according to the legislation.


Splaine notes that civil unions are not marriage, and there are rights under federal law that same-sex couples in New Hampshire will not have. For example, federal benefits for a same-sex spouse do not include access to social security, the ability to file a joint tax return, or other benefits such as unlimited gifting to a spouse and the passing of an estate to a spouse.


Chamberlain also references the overarching federal law, the Defense of Marriage Act. He notes that the civil union development is not completely unplowed ground, citing businesses offering and municipalities incorporating domestic partnership benefits into contracts in recent years. Still, he said, “There’s a tremendous amount that employers will have to get up to speed with.”


Marla Brettschneider, a professor of political science and women’s studies at the University of New Hampshire, said the bundle of rights provided with a civil union contract does not necessarily transfer across state lines, leading to a hodge-podge of laws across the country. She said the new law may inspire an array of litigation, both from supporters and opponents of civil unions.


During the legislative debate earlier this year, several civil rights advocates said that a civil union was still less than the equal justice provided by marriage. Whatever it is called, it is an involved arrangement.


“It’s a highly complicated legal contract,” said Brettschneider, who is also coordinator of the UNH Queer Studies program.


The states’ policy developments may have influenced public opinion on the matter. A poll by the University of New Hampshire Survey Center found 58 percent of adults polled supported gay marriage. Director Andrew Smith said the issue of “passive consent” was an issue of great interest. The survey found 74 percent of all adults polled said it would not bother them if gays and lesbians could get a marriage license in New Hampshire.


And when people are asked what they think are the most important issues facing New Hampshire, he said gay marriage does not come up. In the political arena it is another matter; critics believe the issue will be reflected in the results of the next election.


Even prior to signing the new law, the governor’s indication last month that he would approve civil union legislation has already had an impact in the state. The state policy sea change led the New Hampshire Attorney General’s Office in May to drop the state’s appeal in a lawsuit filed by two state employees seeking benefits.


The employees, Patricia Bedford and Anne Breen, sought the same benefits for their same-sex partners and their children as their married co-workers received. The two women work for the state technical college system. They were represented by the Gay and Lesbian Advocates and Defenders (GLAD), which argued successfully at Merrimack County Superior Court that the denial of benefits violated the state’s anti-discrimination law.


“You now have a clear ruling on the books in New Hampshire,” said Karen Loewy, staff attorney for the Boston-based GLAD. She was co-counsel in Goodrich v. Department of Public Health, the case in which the Massachusetts Supreme Judicial Court ruled in 2003 that prohibiting civil marriage for same-sex couples is unconstitutional. She said there is not as much case law on the issue as people might think.


“[RSA 457-A] is a really important step forward for New Hampshire,” said Lowey.


Dan Touhy is a freelance reporter who frequently writes for Bar News and other regional publications.

Editor's Note:  The Gay & Lesbian Advocates and Defenders (GLAD) has published a 40-page informational guide to the new law, New Hampshire Civil Unions  including pointers on when couples should not take advantage of the civil union process.

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