In May, Maine's legislature and governor made marriage equality the law of the state. In June, New Hampshire's government did the same.
We all know what happened in Maine last week. And almost immediately, questions started flying about New Hampshire, especially if you read Politico and Political Wire, both of which ran posts selectively raising the possibility that the state would follow in Maine's footsteps.
New Hampshire, though, isn't Maine. That's true in a few ways. For one, we know that marriage equality is an issue on which opinions vary widely by age cohort. Maine's population is 15.1% over the age of 65. New Hampshire's is 12.9%. Given that older people vote more, that's a noteworthy difference.
More importantly, though, New Hampshire and Maine have different mechanisms for changing laws. That's what many of the national stories raising the issue didn't make clear.
There are two ways equality could be overturned in New Hampshire. One is legislation overturning June's equality bill. Defending Democratic majorities in New Hampshire's House and Senate must therefore be a priority for 2010.
The other way we could lose equality
is a constitutional amendment that would charge voters with deciding if "the state shall only recognize the union of one man and one woman as marriage."
Shades of California and Maine? Not really. Yes, equality could ultimately end up on the ballot. But...
Part II, Article 100 of the constitution provides for the following two methods of proposing amendments to the constitution:
General Court
A 3/5 vote of each house of the General Court is required to send a proposed constitutional amendment to the people at the next biennial November election. A 2/3 vote of the qualified voters participating in an election is required to adopt a new amendment.
Constitutional Convention
A majority vote of both houses of the General Court is required to place the following question on the ballot: "Shall there be a convention to amend or revise the constitution?" If such question has not been submitted to the people in ten years, the Secretary of State is required by Pt. II, Art. 100 to place the question on the ballot. A majority of qualified voters participating in an election is required to convene a convention. At the next election the delegates are elected by the people, or earlier as provided by the General Court. A 3/5 vote of the number of delegates is required to send a proposed constitutional amendment to the people at the next biennial November election. A 2/3 vote of the qualified voters participating in an election is required to adopt a new amendment.
So, marriage equality was passed in the New Hampshire state legislature by a vote of 198-176 in the House (yes, it's a very large legislative body) and 14-10 in the Senate. And repealing it would require either that those two bodies vote to do so and the governor sign such a bill, which will not happen:
Lynch wouldn't support repealing the gay-marriage law if it reached his desk, spokesman Colin Manning said. "It was carefully crafted legislation, now law, that protects the rights of all of our citizens and the governor would not support changing it," he said.
Or it would require a supermajority vote of that same legislature, followed by a supermajority vote of the people of New Hampshire. That's not going to happen. In fact, in July, Daily Kos had Research 2000 poll marriage equality in New Hampshire. At that point, 49% of people disapproved while 41% approved. But following the Maine loss, New Hampshire Democratic Party Chair Ray Buckley said that:
Our internal polling...
Show marriage equality in NH 8 pts ahead, there is zero evidence this will be a factor here in 2010.
Those of us who want to see civil rights advanced have to be constantly vigilant, and get way out in front of any threat to equality. We know that history is on our side and that even the horrible votes that have been taken in the past few years will be mostly overturned within a generation. But every setback injures people now, and injures justice itself. So it is absolutely right to turn our eye to New Hampshire and prepare for NOM and the rest of the bigots to make an effort there. Luckily, it doesn't seem likely to go anywhere -- even if it's a more attention-getting story the other way.