HB 905 – AS INTRODUCED

2007 SESSION

07-0027

09/10

HOUSE BILL 905

AN ACT establishing civil unions as legally recognized relationships.

SPONSORS: Rep. Vaillancourt, Hills 15;

COMMITTEE: Judiciary

ANALYSIS

This bill establishes civil unions as legally recognized relationships.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

07-0027

09/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Seven

AN ACT establishing civil unions as legally recognized relationships.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Statement of Intent.

I. In the Declaration of Independence by the American colonies from Great Britain, arguably the most important political, social, and governmental document in the history of mankind, Thomas Jefferson penned those immortal words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The New Hampshire legislature, in adopting this act establishing civil unions, is attempting to bring our society, albeit somewhat belatedly, in harmony with Jeffersonian ideals. All men (and women) are created equal, whether heterosexual or homosexual.

II.(a) In the Jeffersonian spirit, the New Hampshire constitution, adopted June 2, 1784, reaffirmed in part 1, article 2, “All men have certain natural, essential, and inherent rights, among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting property; and, in a word, of seeking and obtaining happiness.” The New Hampshire Legislature finds that the most basic happiness is attained by 2 individuals falling so much in love that they desire to share their lives together, body, mind and soul. To deny 2 people the right to sanctify that love before God and man is to deny an expression of that happiness.

(b) In 1974, part 1, article 2 of the New Hampshire constitution was amended to include the words, “Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex, or natural origin.

(c) Part 1, article 10 of the New Hampshire constitution is very similar to an article in the Vermont Constitution in that it refers to common benefits.” In asserting the right of revolution, that article begins, “Government being instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family, or class of men...”

(d) Without having to be told by any court, as was the case in Vermont, Massachusetts, and New Jersey, the New Hampshire legislature recognizes its obligation to live up to the words of our constitution and to provide equal opportunities for all men (and women) to achieve happiness. To that end, this act is modeled on a plan adopted in Connecticut, a state which acted before being told to do so by any court.

III. While cognizant of public opinion, New Hampshire legislators acknowledge that their first obligation is to honor their oath of office, to act in accordance with the United States and New Hampshire constitutions. Therefore, even if opinion polls did not show that a majority of New Hampshire residents now favor laws establishing civil unions for homosexuals, the New Hampshire legislature would feel compelled to act.

IV. When the United States Supreme Court, in 1967, declared in Loving vs. Virginia that government could not prohibit whites and blacks from marrying, public opinion was very much against the decision. Today, however, few if any, would object to the wisdom of that decision. The New Hampshire legislature is convinced that, in a short time, the rights of homosexuals to officially declare their love in the form of a solemn union will also become universally accepted.

V. Since all men (and women) are created equal, the New Hampshire legislature is not concerned with the percentage of the state’s residents who happen to be homosexual, be it as low as 2 percent, as some suggest, or as high as 10 percent, as others suggest. Nor is the New Hampshire legislature interested in delving into the nature versus nurture argument, that is to say whether men and women are born homosexual or choose to become homosexual. Throughout history, approximately the same percentage of people on the planet has been homosexual. For whatever reason people are homosexual, they possess an unalienable right to be homosexual and they deserve equal protection under the law.

VI. The New Hampshire legislature rejects the argument that providing equality for homosexuals in solemnizing civil unions will lead to an expansion of marriage or unions to include multiple partners, relationships between close relatives, or unions with animals. Homosexuals deserve equal treatment and no more. The New Hampshire legislature would never think of allowing homosexuals expanded rights in the realm of multiple partners or unions with relatives or animals, any more than it would allow homosexuals to operate under an expanded or diluted set of traffic laws.

VII. While convinced that New Hampshire must not wait another year to provide equal rights for homosexuals, the New Hampshire legislature is also aware that a civil union law, to be successful, cannot get too far ahead of what society is willing to accept. While responsible for providing equal rights, the New Hampshire legislature does not see its role as redefining long-held dictionary meanings. Webster’s New International Dictionary defines marriage as “the state of being married or united to a person of the opposite sex as husband and wife.” Cognizant of that definition, the New Hampshire legislature chooses to adopt this act which provides homosexuals with absolute equality (and nothing more) in marital rights while not using the term “marriage.”

VIII. Rather than being a benefit simply for homosexuals, the New Hampshire legislature is convinced this bill will be a benefit for all of society and will strengthen the very institution of marriage itself. When 2 people are legally bound in a committed relationship, they are more apt to honor and maintain that relationship. Thus, incidents of infidelity and promiscuity, while not likely to disappear from the homosexual community, are sure to decrease. That is most assuredly a benefit to society at large.

IX. Although in the ideal world, both marriage and civil unions would last forever, the New Hampshire legislature acknowledges that mankind has yet to and probably never will achieve perfection. Therefore, this act contains a provision for dissolving civil unions similar to dissolving marriages by divorce.

X. As long as the state intends to sanction the institution of marriage, it must provide an equal alternative for homosexuals. This act manifests that alternative.

2 New Chapter; Civil Unions. Amend RSA by inserting after chapter 457 the following new chapter:

CHAPTER 457-A

CIVIL UNIONS

457-A Definitions. In this chapter:

I. “Civil union” means a legal relationship formed by 2 eligible persons pursuant to this chapter, which entitles those persons to receive all of the protections and be subject to all of the responsibilities of spouses.

II. “Spouse in a civil union” or “spouse joined in a civil union” or “party to a civil union” means a person who has established a civil union pursuant to this chapter and RSA 5-C and RSA 457.

III. “Certificate of civil union” means a document that certifies that the persons named on the certificate have complied with the laws of the state of New Hampshire to establish a civil union in compliance with this chapter.

457-A:2 Requisites of a Valid Civil Union. In order to establish a civil union in New Hampshire, the 2 persons seeking to form a civil union shall meet the following criteria:

I. The persons shall be of the same gender.

II. The persons shall not be in a civil union or marriage with a different person.

III. The persons shall not be under 18 years of age, unless age waivers are obtained in accordance with RSA 457:4-9 and RSA 5-C:45.

IV. The persons shall not be within the degrees of consanguinity prohibited by RSA 457-A:3.

457-A:3 Civil Unions Prohibited. A civil union between the following relatives is prohibited and void:

I. A woman may not enter into a civil union with her mother, her father’s sister, mother’s sister, daughter, sister, son’s daughter, daughter’s daughter, brother’s daughter, sister’s daughter, father’s brother’s daughter, mother’s brother’s daughter, father’s sister’s daughter, or mother’s sister’s daughter.

II. A man may not enter into a civil union with his father, his father’s brother, mother’s brother, son, brother, son’s son, daughter’s son, brother’s son, sister’s son, father’s brother’s son, mother’s brother’s son, father’s sister’s son, or mother’s sister’s son.

457-A:4 Benefits, Protections and Responsibilities of Persons Joined in Civil Union.

I. A civil union provides those joined in it with a legal status equivalent to marriage. All laws of the state of New Hampshire, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law, applicable to marriage shall also be applicable to civil unions.

II. Parties joined in a civil union shall have all the same protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law, as are granted to spouses in a marriage.

III. Spouses joined in a civil union shall be included in any definition or use of the terms “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” “husband,” “wife,” “widow,” or “widower” and other terms that denote the spousal relationship, as those terms are used throughout the law.

IV. The term “marriage” as it is used throughout the law, whether in statutes, administrative or court rule, policy, common law, or any other source of civil law, without limitation, shall be read, interpreted, and understood to include marriage and civil union.

V. Spouses joined in a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.

VI. The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance shall apply to parties to a civil union.

VII. The following is a nonexclusive list of legal protections and responsibilities of spouses in a marriage, which shall apply in like manner to parties to a civil union:

(a) Laws relating to title, tenure, descent and distribution, intestate succession, or transfer of real or personal property, including eligibility to hold real and personal property as tenants by the entirety.

(b) Causes of action related to or dependent upon spousal status, including actions for wrongful death, emotional distress, loss of consortium or other torts or actions under contracts, related to, or dependent upon spousal status.

(c) Probate and family law and procedure.

(d) Adoption law and procedure.

(e) Employment benefits for state and municipal employees, including but not limited to insurance, leave, pensions, and retirement benefits.

(f) Veterans’ benefits under state law.

(g) Workers’ compensation, as provided in RSA 281-A.

(h) Assignment of wages, as provided in RSA 458-B.

(i) Divorce procedures as provided in RSA 458.

(j) Prohibitions against discrimination based upon marital status, sex or sexual orientation under state law, including those under RSA 354-A, RSA 417-A, RSA 417-B, and RSA 420-C.

(k) Laws providing access to insurance and indemnity protection under RSA title XXXVII and RSA 259.

(l) Laws relating to emergency and non-emergency medical care and treatment, hospital visitation and notification, including the patient’s bill of rights under RSA 151.

(m) The marital communication privilege under Rule 504 of New Hampshire’s Rules of Evidence.

(n) The homestead rights of a surviving spouse under RSA 480, and exemption of homestead from levy and execution under RSA 529.

(o) Public assistance benefits under state law.

(p) Laws relating to the making, revoking, and objecting to anatomical gifts by others.

(q) Laws providing benefits to spouses of firefighters and police officers injured or killed in the line of duty.

(r) Laws relating to taxes imposed by the state or a municipality or county.

(s) Surrogacy law and procedure.

(t) Laws relating to the presumption or establishment of parenthood, including the right of a civil union spouse to establish parenthood through voluntary acknowledgement under RSA 168-A and RSA 168-B.

(u) Laws relating to disposition of remains, including those under RSA 290 and RSA 291-A.

457-A:5 Modification of Civil Union Terms. Parties to a civil union may modify the terms, conditions, or effects of their civil union in the same manner and to the same extent as married persons who execute a premarital agreement or other agreement recognized and enforceable under the law, setting forth particular understandings with regard to their union.

457-A:6 Dissolution of Civil Unions. The judicial branch family division established by RSA 490-D shall have jurisdiction over all proceedings relating to the dissolution of civil unions. The dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of marriage in accordance with the applicable state laws, including residency requirements.

457-A:7 Vital Records.

I. The division of vital records administration shall provide any and all forms, applications, intentions, worksheets, licenses, certificates, or other documentation as required to enter into a civil union to all city and town clerks in the same form and manner as provided for marriages under RSA 5-C and RSA 457.

II. The city and town clerks shall process, record, and transmit the information furnished to them and subscribed to regarding civil unions in the same form and manner as provided for marriages under RSA 5-C and RSA 457.

III. The division of vital records administration shall process and maintain records relating to civil unions and the dissolution thereof in the same form and manner as provided for marriages under RSA 5-C.

457-A:8 Incorporation of Federal Provisions. To the extent any New Hampshire laws adopt, refer to, or rely upon provisions of the federal law as applicable to New Hampshire, parties joined in civil unions shall be treated under the law of the state of New Hampshire as if federal law recognized a civil union in the same manner as the law of the state of New Hampshire.

457-A:9 Recognition of Out-of-State Legal Unions of Same-Sex Couples.

I. A legal union of 2 persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent to a civil union as defined in this chapter, shall be recognized as a valid civil union in this state regardless of whether it bears the name civil union.

II. Two persons of the same sex who have validly entered into a marriage in another state, a foreign country, or any other jurisdiction in conformity with the law of such state, foreign country, or jurisdiction shall have, in this state, not less than the same benefits, protections, and responsibilities as are granted to parties in a civil union in this state.

457-A:10 Protection of Freedom of Religion.

I. Consistent with the guarantees of freedom of religion set forth both in the First Amendment to the United States Constitution and part I, articles 5 and 6 of the New Hampshire constitution, each religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may be joined in a sanctioned union within its faith, and on what terms. No court or other state or local governmental body, entity, agency or commission shall compel, prevent, or interfere in any way with any religious institution’s decisions about the eligibility of persons to join in a union within that particular faith’s tradition.

II. Consistent with the guarantees of freedom of religion set forth both in the First Amendment to the United States Constitution and part I, articles 5 and 6 of the New Hampshire constitution, ordained clergy, ministers, elders, rabbis, or people called Friends or Quakers as described and authorized in RSA 457:31, RSA 457:31-a, RSA 457:32, and RSA 457:37 to officiate at a marriage or civil union shall not be obligated or otherwise required by law to officiate at any particular marriage, civil union, or religious rite joining 2 persons together.

457-A:11 Construction. This chapter shall be construed liberally in order to secure to eligible couples the option of a legal status with all the attributes and effects, and protections and responsibilities of civil marriage.

457-A:12 Severability. If any provision of this chapter is invalid, or if any application thereof to any person or circumstance is invalid, the invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

3 New Paragraph; Vital Records Administration; Definitions. Amend RSA 5-C:1 by inserting after paragraph VI the following new paragraph:

VI-a. “Civil union” means a legal relationship formed by 2 eligible persons pursuant to RSA 457-A.

4 New Subparagraph; Vital Records Administration; Definitions. Amend RSA 5-C:1, XXXVI by inserting after subparagraph (h) the following new subparagraph:

(i) Civil union.

5 New Subdivision; Application of Title V. Amend RSA 21-J by inserting after section 45 the following new subdivision:

Application of Title V to Parties to Civil Unions

21-J:46 Application of Title V to Parties to Civil Unions. The provisions of title V of the Revised Statutes Annotated, including RSA 72, RSA 77, RSA 77-B, RSA 78-B, and RSA 88-A, shall apply to parties to a civil union as if federal income tax law and federal estate and gift tax law recognized such a civil union in the same manner as New Hampshire law.

6 Estate Tax Apportionment Act. Amend RSA 88-A:9 to read as follows:

88-A:9 Coordination With Federal Law. Except as provided in RSA 21-J:46, if the liabilities of persons interested in the estate as prescribed by this chapter differ from those which result under the federal estate tax law, the liabilities imposed by the federal law will control and the balance of this chapter shall apply as if the resulting liabilities had been prescribed in this chapter.

7 New Section; Insurance Coverage for Parties to Civil Unions. Amend RSA 400-A by inserting after section 2 the following new section:

400-A:2-a Coverage for Civil Unions.

I. Insurance contracts and policies offered to married couples, spouses, and families shall also be made available to parties to a civil union as defined in RSA 457-A:1 and their families.

II. No insurance contract or policy offered in this state shall make or permit unfair discrimination between married couples and parties to a civil union, with regard to the offering of insurance benefits to a couple, a spouse, or a party to a civil union, or their family.

III. Notwithstanding any law to the contrary, insurers shall provide dependent coverage to parties to a civil union that is equivalent to that provided to married insureds. An individual or group insurance contract or policy which provides coverage for a spouse or family member of the insured shall also provide the equivalent coverage for a party to a civil union.

8 Effective Date. This act shall take effect January 1, 2008.

LBAO

07-0027

Revised 04/05/07

HB 905 FISCAL NOTE

AN ACT establishing civil unions as legally recognized relationships.

FISCAL IMPACT:

METHODOLOGY:

The Judicial Branch states this bill establishes civil unions, which are intended to provide a legal status equivalent to marriage. It also identifies the types of laws applicable to marriage and married couples that will apply to civil unions. Many of those statutes can give rise to court cases in the event of a dispute between parties. The greatest fiscal impact to the Branch comes from the section of this bill that gives the family division jurisdiction over proceedings related to the dissolution of civil unions. The Branch calculates the judicial and clerical costs of a routine domestic case at $397 and a complex domestic case at $494 using current salary levels. In the event that this bill results in more of such cases, it would increase state expenditures. However, the Branch is unable to predict the bill’s impact on the number of cases and therefore cannot determine the fiscal impact on expenditures.