More than three decades after an Equal Rights Amendment was first proposed in Delaware, the General Assembly again failed to pass an ERA bill Wednesday.
The move to amend the Delaware Constitution to ensure equal rights and guard against sex-based discrimination passed the House in March. But legislators in the Senate couldn’t agree on the legislation’s language, and it was defeated 11-9 with one member absent. The measure need a two-thirds majority, or 14 votes.
“We keep coming to the same point over and over again,” said state Sen. Stephanie Hansen, D-Middletown, a sponsor. “We came here in 1984 with Senator [David] McBride, we came here in 2016 with Senator [Karen] Peterson and here we are again in 2018, and it’s the same result. This is really frustrating. We have to get past this.”
Several states have passed ERA legislation. But neither the U.S. Constitution nor the Delaware Constitution explicitly protect women’s rights.
There are some anti-discrimination laws in Delaware that protect women. For example, women can’t be discriminated against when seeking employment, housing, financial aid or transportation.
But there is no broad protection for women in the Delaware code.
Under the bill, this sentence would be added to the state constitution: “Equality of rights under the law shall not be denied or abridged on account of the sex of the person.”
Supporters say an amendment in the constitution is necessary to ensure gender issues continue to be addressed as they evolve in the future, and prevent the state from passing laws that are discriminatory.
On Wednesday, state Sen. Anthony Delcollo, R-Elsmere, introduced three amendments to clarify the bill’s intent. Those amendments would ensure that mere separation of the sexes would not be considered discrimination, that it does not allow the state to fund abortion and that the ERA only applies to the state and its political subdivisions.
Democrats shot down the amendments, arguing they could weaken the bill and that language should be clear and simple.
Rodney Smolla, dean of the Delaware Law School of Widener University near Wilmington, had previously testified that checking off a list of what the General Assembly intends and does not intend lessens the substance and symbolic importance of the principal of the ERA.
Republicans said they would have supported the legislation had the Democrats supported the amendments.
Most who voted against the bill argued that judges could misconstrue the true meaning of the legislation. They pointed to New Mexico’s Supreme Court, which ruled the state must fund abortion after its interpretation of the state’s ERA.
Hansen said Delcollo was playing politics.
“This is incredibly disappointing that they would throw away a broader principal such as the equality of rights in order to play to the far right. I can’t believe this,” she said. “I thought we were a little more progressive, a little more thoughtful and a little less partisan than that.”
Delcollo denied her claim.
“This is trying to do nothing more, nothing less, than taking legitimate concerns of folks in my district and legitimate concerns of lawyers I’ve spoken to who say there are these grey areas and resolve them so we can vote on the thing and get it through,” he said.
Democrats also scolded Delcollo for waiting until the last minute to introduce the amendments. Hansen said he didn’t meet her to discuss them, while Delcollo argued she was in committee meetings all afternoon.
Prior to the vote on the Senate floor, the legislation was heard in an Executive Committee meeting, where several women, including lawyers, judges and former state Sen. Karen Peterson, spoke in favor of the legislation.
State Sen. Margaret Rose Henry, D-Wilmington, switched her vote from yes to no, a procedural move that will allow Democrats to resurrect the bill.
Following the vote, Gov. John Carney, D-Delaware, announced his disappointment in the failed vote.
“This legislation is an opportunity for us to lay out clearly in the Delaware Constitution the importance of equal rights for women,” Carney said.
“It is the right thing to do. We owe it to all Delaware women to pass this legislation. I want to recognize all the legislators who stood up and voted for this legislation. I hope the Senate finds a way to reconsider this amendment this session.”