James Fisher

The News Journal

A precedent-setting amendment to the state constitution that would bar discrimination in the law based on sexual orientation, gender identity, race, sex, age and several other factors was tabled Tuesday before it could come up for a vote in the Senate.

"There were some people who thought it was moving too fast, although it was introduced a month ago," said Sen. Karen Peterson, D-Stanton, the sponsor of SB 190. "If I had taken it to a vote today, the votes would not have been there."

As constitutional amendments go, Peterson's is short, adding one sentence: "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."

Sen. Ernie Lopez, R-Lewes, one of the moderate Republicans in Dover, said in a statement he'd be recorded as "not voting" on the bill if a vote was held Tuesday because the amendment's protections are already enshrined in state laws. He praised the amendment for trying to "create more of an atmosphere of equality and protection for those among us who feel most vulnerable," but said it was a "false choice" and redundant.

Peterson referenced the mass shooting at an Orlando gay nightclub over the weekend. "Violence against women has reached epidemic proportions, and hatred and intolerance of gays and transgenders is still very much with us, as Sunday's events have shown," she said.

But Lopez, in a statement, said the Orlando shooting should have delayed a vote on SB 190. "In the wake of Orlando, there should have been a pause and time for reflection," he said.

Many states, including Delaware, have passed laws in recent years widening legal protections for gay, lesbian, bisexual and transgender people. But enshrining those nondiscriminatory norms in state constitutions requires even more votes than passing a bill does.

Thirty-one states had passed constitutional amendments banning gay marriage, but the Supreme Court's 2015 decision finding that the U.S. Constitution grants same-sex couples the right to marry invalidated those amendments.

"Much is left uncovered by legislation," said Peterson, who stunned colleagues in the Senate Tuesday when she announced she would not run for a fifth term in the state Senate. "I've seen bills sail through the General Assembly in less than a week. That's how fast laws can change and protections can disappear unless they're in the state constitution."

Every Senate Democrat is a sponsor of the amendment, but Democrats need some Republican allies because constitutional amendments require a two-thirds vote. In the Senate, the 12 Democrats need two Republicans to support the amendment for a total of 14 favorable votes; Peterson told reporters there is currently support from "13 and a half" members.

In the 41-member House, 28 votes are necessary. And to succeed, two General Assemblies in a row will have to support the amendment by two-thirds margins.

STORY: Constitutional amendment proposed on equal protection

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Rodney A. Smolla, dean of the Delaware Law School, testified in favor of the amendment, saying the rights people consider most crucial, like freedom of speech and freedom of religion, are locked in by constitutional definition.

"They have more presence and more resiliency" than regular statutes, Smolla said.

The Delaware Family Policy Council, which unsuccessfully fought the process that made same-sex marriage legal in Delaware, opposes the amendment. "The idea that laws should be fair to all citizens, regardless of who they are, should unite us on common ground. But SB 190 singles out specific classes to protect, while excluding others," said the group's director, Nicole Theis, in a statement. "This is not true equality."

Peterson, the state’s first openly gay state lawmaker, was a leading champion of the same-sex marriage law that passed in 2013. She announced her decision not to run again after noting her wife, Vikki Bandy, was in the Senate chamber.

“I wanted her to be with me as I announce my retirement. I will not be running for re-election this year,” Peterson said as several colleagues gasped in surprise. “You just know in your heart when it’s time. And it’s true. For me, it’s time.”

Sen. F. Gary Simpson, R-Milford, praised Peterson as an honest, sincere legislator.

“Sen Peterson and I probably disagree on a few things that have come before us this year,” Simpson said. “I could always count on what she said to me to be her heartfelt analysis of the issue before us, and I always respected her for that.”

No other candidate has filed for Peterson’s seat in either party. Candidates have until July 12 to declare an intent to run. Peterson’s decision puts pressure on the Democratic caucus to find a candidate who can hold the seat and not erode the Democrat’s three-vote majority in the Senate.

Contact James Fisher at (302) 983-6772, on Twitter@JamesFisherTNJorjfisher@delawareonline.com.