The First State took two steps forward for LGBT rights last week.
The Delaware Senate rejected a measure that would have amended the state constitution to define marriage as between a man and a woman, and the House approved a bill that will add “sexual orientation” as a protected class in the state’s nondiscrimination law.
Hundreds of LGBT and ally individuals, as well as LGBT-rights opponents, gathered outside Dover’s Legislative Hall March 26 to await the results of both votes.
The Senate voted 11-9 against SB 27, proposed by Democratic Sen. Robert Venables, which sought to add the words, “Only a marriage between one man and one woman shall be a valid or legally recognized marriage in this state” to the constitution. The bill needed a two-thirds majority to pass.
A 1996 law already prohibits same-sex marriage in Delaware.
The legislation did undergo one amendment before it was brought up for a vote. The initial bill stated that opposite-sex marriage is the only “legal union” valid in the state, but legislators changed the wording so as not to prevent the consideration of the legalization of civil unions in the future.
The Senate held a public hearing on the legislation March 25, during which Drewry Fennell, executive director of the American Civil Liberties Union of Delaware, urged legislators to oppose the bill, which she posited was motivated by discrimination.
“Elevating a prohibition that isn’t based on one thing but discriminatory feelings is wrong,” Fennell said. “That’s not what we use the constitution for. I think it sends a message that many of you would not want to be sending.”
To amend the state constitution, SB 27 would have needed a two-thirds majority vote in both the Senate and House in this and the next legislative sessions.
Meanwhile, the House approved HB 5, which would prohibit discrimination based on sexual orientation in employment, housing, public-works contracting, public accommodations and insurance, in a 26-14 vote. House Majority Leader and Democratic Rep. Pete Schwartzkopf, whose constituency includes Rehoboth Beach, spearheaded the bill.
The Delaware House approved similar legislation three times previously, but HB 5 garnered the highest number of favorable votes the bill has ever seen.
HB 5 will now go to the Senate for a vote.
Bob Martz, president of Delaware Liberty Fund, which advocates for pro-LGBT legislators and legislation, expects the Senate to approve the bill.
“I think it will pass in the Senate,” Martz said. “We just have to get it to the floor for a vote.”
The three previous times the Senate has taken up the legislation, it fell victim to the so-called “desk-drawer veto,” in which the Senate President Pro Tempore Thurman Adams (D), a cosponsor of SB 27, had the power to set legislation aside and not assign it to a committee, effectively killing a bill.
At the beginning of this latest legislative session, however, the Senate passed new rules that stipulated that all bills must be assigned to a committee, which then has 12 legislative days in which to consider them.
Schwartzkopf said the old practice gave senators the option of petitioning Adams to release the bill to committee, but that many lawmakers who were supportive of the LGBT nondiscrimination bill were hesitant to take such action.
“It was looked at that if you had enough votes to petition a bill out of the drawer, then in theory you had enough votes to replace the Senate leader,” Schwartzkopf said. “This stymied people from wanting to jump on because it’s seen at as a challenge to the leadership.”
Under the new rules, if a committee leader fails to bring the legislation up for a hearing within the allotted time, senators can circulate a petition for a hearing.
“I know a couple of people who were very, very reluctant to sign a petition against the leadership of the Senate, but I don’t think they’ll be as reluctant to sign against the chairman of a committee,” Schwartzkopf said.
The Delaware legislature is in session three days a week and has a two-week break over the Easter holiday, so the 12-day period will expire in early May.
Schwartzkopf noted the legislation has been circulating for nearly 10 years and that he’s been a strong advocate of it since his 2002 election. He took over as prime sponsor of the bill when the House gained a Democratic majority this session.
“I represent a large gay community in my district, and I’m very much in tune with what’s going on from talking with members of the community, and there is still discrimination based on sexual orientation,” he said. “I was a police officer for 25 years, and I’ve seen what people can do to each other when discrimination is allowed.”
Schwartzkopf noted that the Senate should feel extra pressure to consider HB 5 since it brought SB 27 up for a vote.
“I don’t know what excuse they can use now to keep House Bill 5 from coming to the floor for a debate after they allowed Senate Bill 27 out of committee and onto the floor,” he said. “I don’t know what justification they can use now to keep it from getting to the floor. If they allowed that one, they have to allow this one.”
Martz commended the backers of HB 5 for speaking out against LGBT discrimination.
“The credit has to go to the sponsors of the bill and the people who’ve had the courage to stand up and do this,” Martz said.
Twenty states prohibit discrimination based on sexual orientation, 13 of which also cover gender identity or expression.
The Pennsylvania House State Government Committee recently voted in favor of a bill that would ban discrimination based on sexual orientation and gender identity in housing, employment and public accommodations. The bill is now awaiting a full vote in the House.