Equal protection in Delaware (Whipple)

There is no “equal protection” clause in the Delaware constitution, and some people say it’s time to change that. See, e.g., “The elephant in the room [illustrated by an accompanying picture of the back end of an elephant, possibly meant to symbolize the GOP’s lack of support]: Inequality,” Dean Rod Smolla of the Widener University Delaware Law School, News Journal, 6/19/16.

The rationale is kind of a “keep up with the Joneses” type argument. We all believe in equality, surely, and there is an equal protection clause in the 14th Amendment of the federal Constitution and in the constitutions of many states. Therefore, Delaware should get with the program and put an equal protection clause (EPC) in its constitution too.

As it happens, the federal EPC was adopted a century and a half ago and the wording is a bit less specific than one might wish.
No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.

The proposed wording for a Delaware EPC [introduced in this session as Senate Bill (SB) 190] would “place the First State back in the constitutional lead in America,” says Dean Smolla, “declaring Delaware’s commitment to banning a broad spectrum of discrimination across the spectrum of human identity and experience.”
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.

Hmm, sounds like SB 190 should pass by acclamation. Yet the bill was tabled on June 14 by the bill’s sponsor [Senator Karen Peterson (D. 9th Dist.)] because it wasn’t expected to get the requisite votes for a constitutional amendment (2/3 vote in both houses, to be repeated in the next session). And although opposition to the EPC has been panned in some quarters, e.g., attributed to unwarranted fears about men being allowed to “indiscriminately use women’s bathrooms,” there are some solid reasons for it.

Naming numerous characteristics that cannot serve to justify discrimination could create a negative inference re the legal implications of other, unnamed characteristics. Thus, would discrimination be permissible based on height, weight, physical attractiveness, or intelligence, as the EPC says nothing about them? If too many characteristics were referenced, however, the EPC might begin to seem ridiculous. There’s something to be said for forbidding discrimination against “any person” and letting it go at that.

More fundamentally, proponents of the EPC (Dean Smolla’s column was followed by several others) are not driving for equality of opportunity – which is assured by the federal Constitution already and is not seriously questioned by anyone. The real objective seems to be mandating state intervention to achieve more equal outcomes, as is illustrated by the claims of inequality being made:

•GENDER: Pay gap (78¢ for women vs. $1.00 for men is cited, or 64¢ for black women and 53¢ for Latinas) – workers who can’t become pregnant favored for certain jobs – “violence against women at epidemic proportions” (1/3 women will experience violence in their lifetime, 1/5 will be raped). Since women are currently not “a protected class,” they have had “varied and sometimes no success in obtaining redress” in court cases. The EPC would “provide important guidance to decision makers in all three branches of government, legislative, executive and judicial.” It’s time to commit to sex equality in Delaware, Alicia Kelly (professor, Delaware Law School) & Suzanne Moore (founder of ERANow),

•DISABILITIES: People with disabilities face disadvantages, e.g., a poverty rate of 28.5% vs. 12.3% for people without disabilities. There has been some helpful legislation, “but much is left uncovered by legislation, and even that which is covered has been subject to the whims of a hostile [US] Supreme Court. A state guarantee of equal protection [could fill] some of the void.” Equal protection for people with disabilities, Robert Hayman & Daniel Atkins (both associated with Delaware Law School, Hayman as an emeritus professor and Atkins as an adjunct professor),

•RACE: “Discrimination based on race runs rampant today in our society.” For example: (1) At hearings of the Delaware Faith in Action’s Committee on Racism in State Government, over 100 minority state employees recounted repeated instances of discrimination, unfair treatment and retaliation. Additional complaints came in on a telephone hotline and by e-mail, bringing the total number of complaints to over 200. (2) Of over 190 complaints lodged with state agencies between 2012 and 2015, through existing grievance procedures, “only one was found to have cause.” Unfortunate news, Linwood Jackson (Wilmington),

It seems unlikely that passage of the EPC would do much to alleviate these alleged inequities. But rest assured that there would be more government rules and regulations, more complaints, and a boom in litigation. Great for the legal profession, but a big minus for most of us.

Note: SB 190 remained on the table at the close of the 148th legislative session.

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