Page 14 - Delaware Lawyer - Fall 2021

FEATURE | NO PERSON SHALL BE DENIED
three more votes than needed. The House then re-passed the bill as amended, 35-6. The next year, with the start of the new 150th General Assembly, the identical bill was introduced as HB 1, and was passed by the House on January 10 and by the Senate on January 16. Upon passage by the Senate, the Delaware Constitution had its first equal rights language.
Equal Rights: Race, Color, National Origin
On February 28, 2020, SB 191 was in- troduced in the 150th General Assembly. SB 191 proposed to add the categories of race, color and national origin to the newly created equal rights clause in the Delaware Constitution.
On May 25, 2020, George Floyd, a Black man, was murdered by a white Min- neapolis Police Officer, Derek Chauvin. Chauvin knelt on Mr. Floyd’s neck for over nine minutes,16 as the result of a call about a counterfeit 20-dollar bill. Chauvin was eventually convicted of murder. Pro- tests against racial bias in policing exploded across the country, fueled by the death of not only Mr. Floyd, but of many others, such as Breonna Taylor, Tamir Rice, Phi- lando Castile and Eric Garner. Black Lives Matter, a movement first created in 2013 in response to the acquittal of George Zimmerman for the death of Trayvon Martin,17 served as a uniting banner for the protests.
In an increasingly rare show of bipar- tisanship, both the Delaware Senate and House passed SB 191 unanimously in June of 2020, and — as required — again in January of 2021. Section 21 of Ar- ticle 1 of the Delaware Constitution thus reads, as of September 2021, “Equality of rights under the law shall not be denied or abridged on account of race, color, nation- al origin, or sex.”
Equal Rights: Sexual Orientation, Gender Identity, Disability
On June 17, 2021, Rep. Valerie Lon- ghurst introduced HB 199. Co-primed by Sen. Sarah McBride (of relation to our co-editor), HB 199 seeks to add sexual
orientation, gender identity and disability to Delaware’s constitutional equal rights provision. It is expected that the bill will be worked on in the upcoming 2022 session. If passed, it is believed that Delaware will be the first state to add equal rights pro- visions for sexual orientation and gender identity to its state constitution.
NOTES
1. Valeria Coverdale, Government Relations Fellow for Hamilton Goodman Partners, pro- vided essential research assistance for this article. 2. For digitized and transcribed versions of
all Delaware Constitutions, see: https://oll. libertyfund.org/title/thorpe-the-federal-and- state-constitutions-vol-i-united-states-alabama- district-of-columbia#lf1514-01_head_627.
3. https://www.senate.gov/artandhistory/his- tory/common/generic/14thAmendment.htm 4. 3 D.E. House Journal. 1867. 74th General Assembly, 1st sess. 6 February. Pg. 223-226. http://udspace.udel.edu/handle/19716/22138 5. Texas Law Review, Vol 87:7, 2008 Indi- vidual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? Steven G. Calabresi & Sarah E. Agudo.
6. Delaware Senate Joint Resolution No 13, “Joint resolution ratifying certain amendments to the Constitution of the United States” Janu- ary 30, 1901.
7. 6 Gladstone, Leslie W. Equal Rights Amendment (Proposed), report, July 8, 1982; Washington D.C. (https://digital.library.unt. edu/ark:/67531/metacrs8412: accessed August 13, 2021), University of North Texas Libraries, UNT Digital Library, https://digital.library. unt.edu; crediting UNT Libraries Government Documents Department. See also: https://nyti. ms/3xIKiNx (Hawaii, New Hampshire and Delaware all ratified the ERA on March 23, 1972. Nebraska also attempted to ratify on the same date, but had to correct an error later and so technically ratified at a later date.)
8. Although five states attempted to rescind their ratifications of the ERA prior to the 1982 deadline, none of the attempts were recog- nized as valid. https://www.brennancenter. org/our-work/research-reports/equal-rights- amendment-explained, see also: https://www. equalrightsamendment.org/faq, https://www. alicepaul.org/equal-rights-amendment-2.
9. Senate Journals from both 1980 and 1984 have not been located. Information has been obtained from the bills themselves, and from the Senate Bill Books from 1980 and 1984. Thanks to Joel Rudnick, Legislative Librarian for the Delaware General Assembly, for his help with the research for this article.
10. Article XVI of the Delaware Constitution governs the procedure to amend the Delaware Constitution. Amendments require a two-thirds vote of both houses in successive General As- semblies. Each General Assembly meets for two years. http://delcode.delaware.gov/constitution /constitution-17.html#P1000_159475
11. “For more than 100 years, Americans have projected their most profound fears about social change onto public restrooms.” https://www. politico.com/magazine/story/2016/05/2016- bathroom-bills-politics-north-carolina- lgbt-transgender-history-restrooms-era-civil- rights-213902. See also https://www.pri.org/ stories/2016-05-12/why-1920s-legal-move- responsible-gender-segregated-bathrooms-we- have-today. The use of public restrooms was used to stoke fear regarding desegregation in the Jim Crow South (see Turner v. Randolph, 195 F. Supp (1961), where the City of Memphis argued that segregated restroom facilities were neces- sary to avoid the spread of contagious diseases from Black Tennesseans to white Tennesseans. Phyllis Schafly infamously campaigned against the federal Equal Rights Amendment by claim- ing it would lead to danger in public restrooms, arguing that gender equality would allow men to enter women’s restrooms. https://www.vox. com/2015/12/30/10690802/bathrooms- equal-rights-lgbtq; https://www.pennlive.com/ news/2016/05/bathrooms_culture_wars_ front_l.html
The alleged “ruinous” expense of building ac- cessible restrooms was advanced as an argument against passage of the Americans with Disabili- ties Act of 1990. https://socialwelfare.library. vcu.edu/issues/disability/george-bush-and-the- americans-with-disabilities-act
Restrooms have most recently been weapon- ized against transgender Americans, with the most recent surge in activity in 2017, when 16 states introduced bills restricting access to public restrooms. https://www.ncsl.org/research/ education/-bathroom-bill-legislative-track- ing635951130.aspx
12. Senator Peterson, Address at the 148th Dela- ware General Assembly, Senate Chamber. (June 14, 2016.)
13. The United States Congress passed the
19th Amendment on June 4, 1919. It was rati- fied by three/fourths of the states on August 18, 1920. House Joint Resolution 1 Regarding the 19th Amendment; 5/19/1919; (HR 66A- B6); Bills and Resolutions Originating in the House, 1789-1974; Records of the U.S. House of Representatives, Record Group 233; National Archives Building, Washington, DC. https:// www.docsteach.org/documents/document/ house-nineteenth-amendment
14. See: Council of State Governments, The Book of the States, 2005. Table 1.2. https://knowledgecenter.csg.org/kc/system/ files/table_1.2_5.pdf
15. Delaware Senate Rule 12, Senate Resolution 2, 149th General Assembly, passed on January 10, 2017. “Any motion for reconsideration must be made by a member of the prevailing side within 3 legislative days following the original action.” Because the General Assembly meets only Tuesday-Thursday, and because there was
a three-week legislative recess in between defeat and reconsideration, reconsideration on June
6 was within the rules. Special thanks to Mark Cutrona, Director of the Division of Research, Delaware lawyer, and all-around Legislative Hall genius.
16. https://www.nytimes.com/2021/03/30/ us/derek-chauvin-george-floyd-kneel-9-minutes- 29-seconds.html
17. https://library.law.howard.edu/ civilrightshistory/BLM
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