Two New Hampshire lawmakers have reintroduced a bill to end their state’s recognition of out-of-state same-sex marriages as civil unions.

New Hampshire’s existing civil union law includes a recognition section, providing that a same-sex marriage or civil union “legally contracted outside of New Hampshire shall be recognized as a civil union in this state,” as long as the parties would have been eligible to enter into a civil union under New Hampshire law. Under this provision of law, a married same-sex couple from neighboring Massachusetts, for example, are treated in New Hampshire as if they had a New Hampshire civil union.

The new bill, H.B. 147 (see also the bill’s docket and status), would amend that recognition provision of the civil union law. As amended, the provision would continue to mandate recognition of out-of-state civil unions but would bar recognition of out-of-state same-sex marriages as civil unions. The married same-sex couple from neighboring Massachusetts would be regarded as complete legal strangers in New Hampshire.

H.B. 147 is similar to a bill that was introduced but later withdrawn last year, but this year’s version is narrower. (For coverage of that bill see the following blog entries: bill introduced, public hearing set, and bill withdrawn.) Last year’s bill would have amended the recognition provision to bar recognition of out-of-state same-sex civil unions as well as marriages. This year’s version of the bill would amend the provision to bar recognition of only out-of-state same-sex marriages. The new bill would retain the policy of recognition out-of-state same-sex civil unions.

Even though narrower than last year’s version, this amendment remains unnecessary and wrong-headed. New Hampshire has already made the decision to bestow a legal status on same-sex couples as a matter of its own internal law. Nothing in this bill would undo that public policy decision. Rather, this bill would have the state pick and choose which out-of-state same-sex legal statuses would receive legal recognition in New Hampshire, and that selection would turn on a matter of mere form: the name that the other state uses for the legal status. Out-of-state “civil unions” would continue to receive recognition in New Hampshire, while out-of-state “marriages” would not. Yet refusing to recognize out-of-state same-sex marriages puts residents of other states at risk when they are traveling in New Hampshire, and it would do so unnecessarily because New Hampshire’s public policy is not opposed to giving same-sex couples a legal status. The existing recognition provision is a salutary compromise: It gives effect to out-of-state legal statuses, but does not bestow the name “marriage” upon them for New Hampshire law purposes. It treats out-of-state same-sex marriages as “civil unions” for purposes of New Hampshire law.

The narrower focus of the bill and a change in circumstances since last year, however, give this year’s sponsors a colorable argument that was not available last year. They may credibly argue that recognizing out-of-state same-sex marriages as civil unions gives New Hampshire same-sex couples an incentive to formalize their relationships outside New Hampshire rather than in New Hampshire. Since neighboring Massachusetts recently repealed its law preventing out-of-state same-sex couples from getting married there, New Hampshire same-sex couples may now simply cross the state line and get married in Massachusetts. New Hampshire’s recognition provision ensures that their Massahcusetts same-sex marriages will be recognized in New Hampshire as civil unions. If a couple prefers a marriage to a civil union, they can choose to get married in Massachusetts rather than getting a civil union in New Hampshire yet still be regarded as legally joined in civil union in New Hampshire. Conceivably, the sponsors of the bill might formulate some public policy objection to a system under which many of the state’s same-sex couples avoid actually joining in civil unions at home and prefer to formalize their unions (as marriages) elsewhere. To the extent, for example, that joining in civil union at home allows New Hampshire to collect vital statistics on its population, that objective is undermined by a system that encourages New Hampshire residents to formalize their relationships elsewhere.

Still, states routinely give effect to out-of-state opposite-sex marriages, and straight couples often get married in places, like Niagara Falls, Las Vegas, of Hawaii, that market themselves as wedding destinations. In New Hampshire, those straight couples probably represent a larger number of people outright than the same-sex couples who would get married out-of-state, even if all New Hampshire’s same-sex couples took advantage of that opportunity. Thus the total loss of vital statistics data is probably greater with opposite-sex couples in New Hampshire than with same-sex couples, even if a larger proportion of same-sex couples than same-sex couples might choose to marry elsewhere. In fact, the collection of vital statistics is not a very weighty reason for imposing the tremendous costs associated with disregarding marriages that were valid where celebrated, including creating a situation in which a couple is married on one side of the New Hampshire-Massachusetts state line but has no recognized legal relationship at all on the other side of the state line.

At any rate, any concern about vital statistics could be readily addressed by requiring same-sex couples who are domiciled in New Hampshire to record their out-of-state same-sex union with the state of New Hampshire in order to receive recognition. Some civil law jurisdictions have that kind of system for registering foreign marriages.

In the final analysis, the bill is not likely motivated by any good government concern about vital statistics. Like last year’s bill, it is likely little more than an attempt to make a statement about same-sex marriage, creating significant interstate disruption in the process.