Equal Rights Amendment fails in Senate

Stephanie Hansen

DOVER — A debate over amending the Delaware Constitution to guarantee women and men equal rights became bogged down in differences in interpretation fueled by politics and led to the bill failing Wednesday, despite both Democrats and Republicans agreeing with the core concepts.

The Senate spent more than an hour on the legislation, which ultimately fell short of the needed two-thirds supermajority.

After Democrats voted down three Republican amendments the GOP thought would make the intent of the bill clearer, every Republican in attendance save for one voted against the bill itself.

Members of both parties afterward said they were stunned by the bill’s failure and put the blame on the other side.

The prime sponsor, Sen. Stephanie Hansen, D-Middletown, called the vote “a slap in the face,” while Sen. Gerald Hocker, R-Ocean View, said Democrats were representing “the worst form of transparency we’ve had since I’ve been in the General Assembly” for trying to pass the legislation through committee and the chamber the same day.

The bill would add to the Delaware Constitution a line reading “Equality of rights under the law shall not be denied or abridged on account of sex.” It passed the House 34-5, with two absent, in March.

Things did not go so smoothly in the Senate, which saw 10 Democrats and one Republican vote for the measure, while eight members of the GOP opposed it. One Republican was absent, and one Democrat voted no for procedural reasons after it was clear the bill did not have the necessary support.

Members of the GOP cited concerns the measure could have unintended consequences that impact the private sector, force the state to run unisex prisons and require Delaware to fund abortions. Even if the intent is clear now, it could be interpreted differently in the future based on ambiguous language, Sen. Anthony Delcollo, R-Marshallton, said.

He attempted to add to the bill three amendments stating the measure would still allow simple separation of the sexes, would not mandate abortion funding and would only apply to state and local governments. All three were defeated on party lines.

But while he defended the amendments as important to address concerns of constituents and prevent any different interpretations, Sen. Hansen had a different view.

“I think he had a motive of trying to placate to the far-right of his constituency. He’s a Republican, so he has to play to that side of the field,” the visibly frustrated senator said afterward. “If he really supported this bill, and he really supported the principles behind it, he would have voted for it. And he didn’t.”

For his part, Sen. Delcollo said he had attempted to work out his concerns with Democrats ahead of time and was “mystified” by allegations he was simply playing politics.

“My goal is to see this addressed and passed, and my goal is to also fairly address the concerns of folks in my district, which I think are the very purposes of why we’re here, not so much politics,” he said shortly after the vote. “I mean, I am unconcerned with any sort of political gesture or something like that. I don’t even know what that’s supposed to mean.”

Democrats leaned on testimony from Widener University Delaware Law School dean Rod Smolla, who assured senators the bill would not impact the state in any way other than the intended meaning. Citing Mr. Smolla’s comments, supporters said amending the bill could weaken the substance.

“If we were to pass these, there might be three more in the House. And then they come back and add three more,” Sen. Dave Sokola, D-Newark, said of the amendments. “Something as simple and as clear and as compelling as nondiscrimination is something that we ought to keep clear and simple and concise and move forward just on that.”

Republicans countered that adding qualifiers would make it clear exactly what the bill is — and, more importantly, is not — trying to do.

“I’ve seen a lot of things sold to us as one thing that turned out to be another. A lot of things,” Sen. Colin Bonini, R-Dover, told colleagues on the Senate floor.

As evidence, both Sen. Delcollo and Senate Minority Whip Greg Lavelle, R-Sharpley, pointed to New Mexico’s Equal Rights Amendment, which a New Mexico court interpreted as requiring the state to fund abortions.

Meanwhile, Sen. Bryant Richardson, R-Laurel, lamented that the broadly written First Amendment to the U.S. Constitution “opens the door to … vulgar, public speech or widespread pornography,” saying it was originally intended to allow open criticism of the government.

But Democrats said adding specifications could actually add new limitations.

“The minute you begin to itemize the indices of equality you risk missing one,” Sen. Harris McDowell, D-Wilmington, said.

Gov. John Carney in a statement said he was dismayed by the vote, calling the bill “the right thing to do.” As a constitutional amendment, the measure needs to be passed in two consecutive General Assembly sessions and does not go to the governor.

The federal government attempted to amend the Constitution to prevent any form of discrimination on the basis of sex, but while it passed Congress in the early 1970s, the proposal was ratified by only 35 state legislatures, three shy of the number needed. Delaware was the third state to approve the federal Equal Rights Amendment.

The General Assembly has attempted to pass similar proposals in the past, most recently in 2017, but to no avail.

The future of the bill is unclear, with Sen. Hansen pegging its chances of passage at 50-50.

Because Majority Leader Margaret Rose Henry, D-Wilmington, voted against the bill, she can recall the vote if Democrats are able to reach a compromise with Republicans. Sen. Hansen said she hopes senators can come back to the measure in the near future after passions have calmed down and behind-the-scenes discussions have been had.

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