Page 12 - Delaware Lawyer - Fall 2021

FEATURE
Shall Be Denied
Lisa B. Goodman1
No Person
The Delaware Constitution and equal rights
Delaware has had four constitutions, enacted in 1776, 1792, 1831 and 1897.2 None of them, until the evening of January 16, 2019, contained an explicit guarantee of equal rights or protections under the law for any class of Delawareans. This article traces the evolution of the Delaware General Assembly’s position on equal rights, from its failure to ratify the 13th, 14th or 15th Amendments post-Civil War, to successful attempts since 2016 to add equal protection provisions to the Delaware Constitution.
Federal and State Constitutional Equal Rights Prior to 2016
We often do not acknowledge the depth of Delaware’s Southern sympa- thies during the Civil War and beyond. The 14th Amendment to the U.S. Con- stitution was passed by the U.S. Senate on June 8, 1866, and ratified two years later, on July 9, 1868.3 In addition to ad- dressing other post-Civil War issues, the 14th Amendment granted citizenship to all persons “born or naturalized in the United States,” including formerly en- slaved people. It also prohibited the de- nial of “equal protection under the laws” for all citizens. The Delaware House, by a vote of 15-6, rejected ratification of the 14th Amendment on February 7, 1867.4 Delaware also failed to ratify the 13th Amendment (abolishing slavery) and the
15th Amendment (voting rights).
In 1868, prior to the ratification of the 14th Amendment, 19 out of 37 states had some form of equal protection or equality language in their state constitutions.5 Dela-
ware was not among them.
In contrast to its failure to ratify the
13th, 14th or 15th Amendments (the ratification finally occurred — symbolically — in 1901),6 Delaware was the third state to ratify the federal Equal Rights Amend- ment (ERA) in 1972.7 However, in 1980, then-President Pro Tempore of the Senate, Richard C. Cordrey, filed SB 577, which would have placed the following question on the 1980 general election ballot: “Do you favor rescinding Delaware’s ratifica- tion of the Equal Rights Amendment?” The Delaware Constitution does not explicitly provide for statewide initiatives
10 DELAWARE LAWYER FALL 2021