With the passage of SB 121, is Delaware headed right straight down the highway toward legalized gay marriage?

House Majority Leader Peter Schwartzkopf, D-Rehoboth Beach, says no, at least as it concerns HB5, which was similar to SB121.

But most likely Schwartzkopf is wrong. It is true that neither SB121 or HB5 mention gay marriage. It also is beside the point. Part of the problem here is that legislators didn’t listen to the lawyers who told them about unintended consequences. One suspects, without any polling data, that a big majority of Delaware voters oppose same-sex marriage.

When last November’s voters opted for a liberal Democrat for governor and then upended two decades of Republican majorities in the House, you get a liberal outcome. Further, by increasing the Democratic majority in the Senate by electing a couple more liberals in heretofore Republican districts, the voters diminished the ability of (the late) Senate President Pro Tem Thurman G. Adams Jr., D-Bridgeville, to stop things like HB5.

So what happens. Thurman Adams dies after a long illness one day and just a couple days later, the Senate turns its back on his lifetime of opposition and passes the thing overwhelmingly, though mostly on a party-line vote. Their proponents say they’re not. But if you ask me, this enactment is merely the runup to legalizing gay marriage in Delaware.

Lawyers tell us that this enactment engrains in Delaware law the notion that sexual orientation or preference is somehow on a par with race, gender or physical handicap. Nearly anyone knows that there has been plenty of discrimination over the years on the basis of race and gender. We even had slaves in Delaware before slavery was repealed by the 13th amendment to the U.S. Constitution. But there is no empirical evidence that there is discrimination against a person on account of sexual orientation.

The most immediate danger from this bill is that it will loose a flood of lawsuits against small businesses and landlords. For example, you didn’t get the job you applied for at the XYZ Company, and you say it is because the employer perceived that you are gay. You sue and the business has to prove that you didn’t get the job because the employer perceived you are gay. This is mind-reading.

This sounds like the plaintiffs’ lawyers full-employment act of all time.

Moreover, the real danger, according to a lawyer friend, is that once sexual orientation is engrained in state law, the Delaware Supreme Court may feel impelled to rule as the high courts of Massachusetts, California and Iowa have. This is based on state constitutional provisions concerning equal protection of the laws.

One might even be surprised that this happened in Iowa, hardly a true-blue state. But the Iowa court, with two justices appointed by conservative Republican governors a few years ago, ruled unanimously in favor of gay marriage. Gay and lesbian weddings began there on April 24. And yes, the ruling was on the basis of equal protection of the laws.

In California, it took a ballot initiative to overturn that state court’s ruling. But there is no "initiative and referendum" in Iowa or Delaware.

We have a state law prohibiting same-sex marriage in Delaware.

However, now it may be unconstitutional.

Anti-discrimination legislation approved after long fight

Delaware State News

DOVER — Although some members of the General Assembly tried to delay the passage of the anti-discrimination bill with long-winded discussion and the introduction of various amendments, the legislation cleared both chambers Wednesday evening, ending a decade-long battle.

"Today is a great day," said Rep. William A. Oberle, R-Beecher’s Lot. "This day is long overdue."

For years, Rep. Oberle had championed the issue, which would ban discrimination based on sexual orientation.

The legislation passed on Wednesday, Senate Bill 121, would add the term "sexual orientation" to the already-existing list of prohibited practices of discrimination.

It would forbid discrimination against a person on the basis of sexual orientation in housing, employment, public works contracting, public accommodations and insurance.

And while over the last decade similarly worded legislation would typically pass in the House, it would die by desk-drawer veto in the Senate.

Just a few months ago, it appeared the legislation would once again not become law.

A duplicate bill, House Bill 5, was voted down in the Senate Executive Committee after passing in the House.

After some behind-the-scenes work by Sen. David P. Sokola, D-Newark, the legislation re-emerged earlier this month.

It was released from the Senate Insurance Committee last week and supporters said it had the votes to pass in the Senate.

On Wednesday, although it passed decisively with a 14-5 vote, it encountered a good deal of opposition.

Sen. Robert L. Venables, D-Laurel, tacked on three amendments that bill sponsor Sen. Sokola identified as being unfriendly.

The first amendment would have spelled out that the bill did not allow same-sex marriages, the second would have prohibited schools from acknowledging or teaching about homosexuality and the third would have given an exemption to those whose religious beliefs put them in opposition to the law.

Sen. Venables and Sen. F. Gary Simpson, R-Milford, each called multiple witnesses to the stand to discuss each of those amendments, leading the floor debate to last for more than three hours.

"Certainly in my heart, I have no animosity toward anybody," said Sen. Venables. "These are just guarantees."

After much discussion, all three amendments were defeated.

At 7:30 p.m., the much-awaited and anticipated vote occurred, and the bill passed.

"It was time," said Sen. Karen Peterson, D-Stanton. "Some good things take a long time. I’m delighted."

Those from the other side said they were discouraged by the vote.

"I’m disappointed," said Sen. Colin R.J. Bonini, R-Camden. "Show me where the problem was."

House members, who had finished the rest of their work hours earlier, had waited around so they could take up the legislation after it passed in the Senate. Moments after the vote in the Senate was tallied, the bells signifying the reconvening of the House started to toll.

In the House, similar amendments were once again filed, but the discussion went much quicker.

After less than an hour of debate, the bill had passed.

"I’m very happy," said House Majority Leader Rep. Peter C. Schwartzkopf, D-Rehoboth Beach. "The bottom line is, the bill is going to the governor and when he signs it, it becomes law."

And for those who worked on the legislation over the past decade, Wednesday was the day they had been dreaming about for years.

"When you believe something is right, it isn’t hard to maintain focus and energy," said Drew Fennell, executive director of the Delaware branch of the American Civil Liberties Union. "I’m grateful for the outcome. I know it’s been a lot of work for a lot of people."

The legislation now travels to Gov. Jack A. Markell’s office. He has said he will sign the bill.