Delaware ERA bill fails in state Senate

A proposed equal rights amendment to the Delaware Constitution was defeated in the state Senate on Wednesday even though several lawmakers who voted against the bill said they support the legislation.

A last-minute procedural ploy by Sen. Margaret Rose Henry, D-Wilmington, means the bill could be called up for a re-vote before the end of the legislative session on June 30.

But the 11–9 vote dealt a serious setback to women's rights in the state, supporters of the measure said. As a constitutional amendment, the legislation needed two-thirds of the Senate or 14 yes votes to pass.

The defeat marked at least the fourth time an ERA bill failed to win passage in the last three decades.

"I am extremely frustrated," said Sen. Stephanie Hansen, D-Middletown. "We keep coming to the same point over and over again ... Here we are again in 2018 and it's the same result."

The bill sought to add a single sentence to Delaware's highest law: "Equality of rights under the law shall not be denied or abridged on account of the sex of the person."

Supporters argue that amendment would provide key protections for women facing discrimination by extending protections now provided in only a few sections of Delaware law. Incorporating those changes into the state constitution also would make it much harder to alter those guarantees.

Republicans in the state Senate, however, said they heard concerns from hundreds of their constituents who raised questions about the possible unintended consequences of the bill — ranging from co-ed prisons to mandatory state funding for abortions.

Sen. Anthony Delcollo, R-Elsmere, repeatedly said he supported the intent of the bill, stating that "we as a society should roundly reject bigotry and discrimination."

He then proposed a trio of amendments that he argued would help the courts understand the legislative intent of the ERA.

One sought to clarify that "the mere separation of the sexes" would not be considered discrimination. A second stated nothing in the bill should be construed "to grant or secure any right relating to abortion." And the third clarified that the amendment would only apply to state government and its political subdivisions.

"There are multiple things that are done specifically for women that I think are very laudable that I do not want to see dealt a blow by litigious efforts ... in some cases coming from outside our state by activists," he said.

Rod Smolla, dean of Widener University's Delaware Law School, warned that Delcollo's efforts to clarify the bill's intent could detract from the bill's plain legal language.

"Trying to imagine every potential problem that a broad provision might later implicate ... in that generic sense, you weaken the substance and symbolic importance of the principle," he said.

One by one, Democrats — who hold a one-vote advantage in the Senate — knocked down Delcollo's proposed amendments.

But their objection to those changes might have only stiffed opposition to the bill.

Immediately after those votes, Senate Minority Leader Gary Simpson, R-Milford, accused Democrats of feeding into the concerns raised by constituents. Sen. Colin Bonini, R-Dover, said the majority party's resistance to the "reasonable" amendments felt political.

The final vote on the actual bill then fell largely along political lines. Sen. Ernie Lopez, R-Lewes, was the only Republican to vote in favor of the bill. Sen. Cathy Cloutier, R-Arden, was absent despite being a co-sponsor of the measure.

At the last moment, Henry also switched her vote from yes to no — a tactical move that will allow her to call the bill up for a re-vote at a later date.

Afterward, supporters of the bill blasted Delcollo for trying to introduce amendments on the floor, leaving no time for Democrats to research their impact. Republicans, meanwhile, sniped at the majority caucus for moving the ERA bill for a full vote barely an hour after it was heard in committee.

"There has to be a way to bridge the impasse," Hansen said afterward. "I think what needs to happen now is tempers need to cool, discussions need to happen and let's see if there is a way we can get past this."

The bill's defeat marked the latest failure for an equal rights amendment in a nearly 100-year fight for stronger equality laws at both the federal and state level.

First introduced in Congress in 1921, it took 50 years to win passage. Delaware was one of the first states to ratify the proposed amendment to the U.S. Constitution, which ultimately came up three states short of the 38 needed to become law.

Since then, 24 states have passed equal rights amendments to their own constitutions, including Pennsylvania, Maryland and New Jersey. But similar measures have failed to gain traction in Delaware's General Assembly, including attempts in 2016 and 2017.

The current proposal made history in March by clearing the Delaware House for the first time. An ERA bill did pass the state Senate in 1984, but was not successful in the House.

Gov. John Carney said he was disappointed by the defeat of the latest bill. To become law, it would have needed to pass the Senate this year and then pass both chambers again next year.

"This legislation is an opportunity for us to lay out clearly in the Delaware Constitution the importance of equal rights for women," he said in a Tweet. "We owe it to all Delaware women to pass this legislation."

Contact reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.