COMMENTARY: Delaware ERA a tool for progressive agenda

A proposed Equal Rights Amendment to Delaware’s state constitution is a misunderstood measure with a hidden agenda.

As presently constructed, House Bill 399 seeks to add to the state constitution: “Equality of rights under the law shall not be denied or abridged on account of sex.”

The wording is identical to the proposed federal Equal Rights Amendment (ERA) that failed nearly four decades ago.

While the measure was recently dealt a setback in the Senate when it did not garner the required majority to complete the first leg of the process, it is expected to be restored and voted on again in early June.

Regardless of its fate next month, the legislature will be dealing with it again — either next year for its second required consideration or soon afterward when proponents reintroduce it.

19dsn lawmakers Rich Collins by .

Rich Collins

Delaware ERA supporters assert it is needed to protect women and place them on an equal footing with men, but during the House debate supporters could not cite a single instance of discrimination the proposal would eliminate.

The equality of women is (rightfully) protected under multiple state and federal statutes. The Delaware Discrimination in Employment Act prohibits discrimination in employment based on sex (including pregnancy), marital status, sexual orientation, or gender identity.

Sex is also defined as a protected class in the Delaware Code.

Additionally, Section I of the 14th Amendment to the U.S. Constitution states, in part, that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

What many have failed to understand is that the proposed Delaware ERA, as a constitutional amendment, would solely apply to state, county and local governments — not the private sector. As such, it would not address the alleged “pay gap” issue, which ERA supporters have repeatedly cited as a prime reason for its adoption.

In fact, inequitable pay based on sex has been illegal for 55 years under the federal Equal Pay Act of 1963. A 2009 study conducted for the U.S. Department of Labor — “An Analysis of the Reasons for the Disparity in Wages Between Men and Women” — found that women accounted “for 51 percent of all workers in the high-paying management, professional, and related occupations.” It concluded that where pay differences existed, they were largely the result of occupational decisions and life choices — not sexual discrimination.

During House debate, Delaware Law School Dean Rod Smolla testified that “sex,” as it is understood in the amendment, would not be synonymous in Delaware law with the terms “gender identity” or “sexual identity.” Other supporters affirmed that the amendment would not have any bearing on nonprofit organizations, private businesses, same-sex schools, groups operating same-sex programs, or access to abortion.

When the House of Representatives approved the first leg of the measure, I opposed it. Having had experience in civil litigation, I was still concerned the amendment could be misinterpreted by the courts.

Sen. Anthony Delcollo clearly shared some of those same apprehensions. He authored three Senate amendments to address the bill’s perceived ambiguities. The first would have specified that the mere separation of the sexes would not be considered discrimination. The second would have specified that the ERA could not be used to grant or secure any right or funding related to abortion. The last would have specified that the ERA would apply solely to the State of Delaware and its political subdivisions.

These modest addendums would have only codified what ERA supporters claimed was already the case.

Yet when it came time to vote, all 11 Democrats in the Senate united to defeat the amendments — an unmistakably clear indication that supporters’ earlier statements about the amendment’s scope and impact were disingenuous.

The Equal Rights Amendment is a “win-win” political scheme launched by Delaware progressives. Legislators who vote against it will find themselves targeted by progressive challengers claiming the incumbents do not support equality for women. If enacted, the ERA will provide progressives with a powerful tool for achieving in the courtroom what they could not otherwise accomplish in the state capitol.

This has already happened elsewhere. In 1998, the New Mexico Supreme Court, citing that state’s Equal Rights Amendment, struck down a regulation restricting state-funded abortions. Backers of our ERA — which has wording almost identical to that of New Mexico — said the amendment could not be used for such a purpose. Apparently, they were unfamiliar with this well-documented case.

Judges are less interested in legislative intent than they are in interpreting the law for themselves. Since legislative debate is not binding on the courts, it is conceivable that a Delaware ERA could be used to advance controversial causes, while eliminating legal presumptions that presently aid women in the workplace and in the areas of alimony and child support.

The Delaware ERA is a wolf in sheep’s clothing that Delaware progressives are putting forth to advance their own extremist agenda — taking a lot of well-intentioned Delawareans along for an unsuspecting ride.

State Rep. Rich Collins is a Republican representing the areas of Millsboro, Dagsboro, Frankford, Selbyville and the unincorporated Gumboro.

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