Page 13 - Delaware Lawyer - Fall 2021

or referenda, and Article 5 of the U.S. Constitution is silent on recission.8 (The issue of whether such a vote could have occurred and/or been valid is a fascinating one, but beyond the scope of this article.) SB 577 passed in the Senate, but died in committee in the House.
In 1984, Sen. David McBride (no re- lation to the attorney and co-editor of this Delaware Lawyer issue) filed what appears to be the first attempt to add an “Equal- ity of Rights” provision to the Delaware Constitution. On May 10, 1984, he filed SB 445, which was eventually replaced by SB 524, filed on June 14, 1984. SB 524 read, “Equality of rights under the law shall not be denied or abridged by the state, by any unit of county or municipal government, or any school district on ac- count of sex.” The bill appears not to have seen action on the floor of the Senate.9
Attempts at Broad Equal Rights Bills
In 2016, efforts began in earnest to add equal rights provisions to Delaware’s constitution. As with many difficult pieces of legislation (death penalty repeal, gov- ernmental transparency, justice for victims of clergy sexual abuse), now-retired Sen. Karen Peterson (D-Stanton) led the way. Sen. Peterson filed SB 190 in May of 2016. It read: “Equal protection under the law shall not be denied or abridged because of race, sex, age, religion, creed, color, fa- milial status, disability, sexual orientation, gender identity, or national origin.” Sen. Peterson, who spent nearly three decades in the Delaware Department of Labor be- fore being elected to the Delaware Senate in 2002, based the language of SB 190 on the protected classifications already in state law — specifically, on the employment dis- crimination protections in Title 19, Chap- ter 7, of the Delaware Code. Although the bill had all 12 Democratic senators as co-sponsors, because constitutional amendments require a two-thirds vote, the bill required 14 votes in the Senate.10 Concerted opposition by Sussex and Kent Republicans, largely centered on allegations
that the bill would result in allowing men to dress as women to use women’s rest- rooms,11 peeled away hopes for any Re- publican votes. On June 14, 2016, after an opening statement from Sen. Peterson, the bill was tabled on her own motion.12
A Narrower Approach
Equal Rights: Sex
The next year, House Majority Leader Valerie Longhurst (D-Delaware City) filed HB 2, which used a non-enumerated ap- proach to equal rights. Rather than limit equal rights to the categories already pro- tected in Delaware law, as Sen. Peterson’s SB 190 had done, Rep. Longhurst’s bill read, “No person shall be denied equal rights under the law.” Despite having seven Republican co-sponsors on the bill, the votes necessary to reach the two-thirds super-majority were not there, and Rep. Longhurst struck the bill on June 6, 2017.
In 2018, Rep. Longhurst — never one to back away from a fight worth having — filed HB 299. With the 100th anniversary of women’s suffrage in the U.S. approach- ing,13 and since a broad approach to equal rights had not been successful, she took a narrower approach by proposing equal protections based only on sex, which could be completed in time for the anniversary. The decision would be solely that of the General Assembly members because, in- terestingly, Delaware is the only state that does not require a ballot referendum as part of the process to change its state con- stitution.14
HB 299 mirrored the language of the federal Equal Rights Amendment: “Equal- ity of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” After intensive negotiations with the Republi- can caucuses of both houses, HB 299 was left to sit in committee, and HB 399 was filed. As originally filed, it read, “Equality of rights under the law shall not be denied or abridged on account of the sex of the person,” with the phrase “of the person” eventually removed via amendment. HB 399 passed the House on March 29, 2018
by a vote of 34-5, with two absent.
HB 399 faced a much rockier time in the Senate. Three unfriendly amendments were filed; they dealt with, in order, explic- itly excepting out “separation of the sexes,” stating that “nothing in this section shall be construed to grant or secure any right relating to abortion or the funding there- of,” and limiting the application of the bill to Delaware and its political subdivisions. After lengthy debate on the floor, all three amendments were defeated. However, while a sufficient simple majority of votes existed to defeat the amendments, the 14 votes necessary to pass the bill did not. HB 399 was defeated in the Senate on May 9,
2018 by a vote of 11-9, with one absent. Intense work and negotiations fol- lowed, largely led on the Senate side by prime sponsor Sen. Stephanie Hansen (D- Middletown) and former Sen. Anthony Delcollo (R-Elsmere) — both, appropri- ately, Delaware lawyers. Also significantly involved was retired Judge Susan DelPes- co, who brought her deep subject-matter expertise to bear in assisting legislators to work out a compromise that would gain sufficient Republican votes while not los- ing Democratic ones. The compromise reached resulted in Senate Amendment 4, which added a set of findings to the bill. Those findings, while not appearing in the Delaware Constitution, serve as state- ments of legislative intent. They included the following acknowledgements: 1) that the amendment, and its placement within Delaware’s Bill of Rights, means that the amendment does not apply to private enti- ties; 2) that the government has no obli- gation to fund the exercise of rights, even though it may not impair such rights; and 3) that “there are circumstances when other compelling interests, such as privacy, may inform the State’s decision to support permissible single-sex services or program-
ming.”
On June 6, 2018, the prior Senate roll
call was rescinded,15 Senate Amendment 4 was passed unanimously, and SB 399 as amended was passed with a vote of 17-4,
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