Delaware Lawmakers Table Constitutional Amendment on Equal Protection

The Senate sponsor of an equal protection amendment to Delaware's constitution tabled the measure Tuesday after fellow lawmakers said they need more time to consider the proposal.

The amendment says equal protection under the law shall not be denied or abridged because of race, sex, age, religion, creed, color, familial status, disability, sexual orientation, gender identity, or national origin.

While many of those protections already exist under current law, Sen. Karen Peterson said her amendment would offer stronger, broader protection and serve as a statement that Delaware treats all people equally.

"There's no guarantee of equal protection for any Delawareans," said Peterson, who explained the proposal to fellow senators and offered supporting testimony from Delaware Law School Dean Rod Smolla, then tabled the legislation.

The amendment requires a two-thirds vote in the House and Senate, meaning majority Democrats in both chambers would need Republican support to pass the measure, which must also be approved in two consecutive General Assemblies. Peterson acknowledged she did not have enough votes for its passage on Tuesday.

"If the votes turn up for it, I'll lift it from the table and we'll vote on it," she said.

Peterson said the current statutory equal protection measures are outlined in only five sections of the state code, leaving hundreds of other laws not covered.

"People with disabilities are routinely denied the right to work, the right to an inclusive education, and the right to live in our communities," said Peterson, who also noted the mandatory retirement of state troopers at age 55.

Smolla said the absence of equal protection provision in Delaware's constitution is "striking," arguing that if free speech and the right to bear arms are constitutionally enshrined, equal protection should be as well.

But Sen. Ernie Lopez of Lewes, a potentially important Republican vote, said in a written statement that he was concerned about redundancies and possible unintended consequences, and that he would abstain from voting if the measure came to the floor.

"I simply disagree that it takes a constitutional amendment to achieve equal protection when the Delaware code clearly states in statute that the protections already exist," he wrote.

Lopez also expressed concern that some supporters of the measure were saying that its passage would mean that events like the weekend shooting at a gay nightclub in Florida would be less likely to happen in Delaware.

Lopez said no law, whether in the constitution or the code, would prevent "a hateful, angry person from inflicting harm on others."