Civil Division/New Castle County
 

The Honorable Robert L. Venables, Sr.
Senate
State of Delaware
Legislative Hall
Dover, Delaware 19903 D580C
 

Re: House Bill 99
 

Dear Senator Venables:
 

You have asked for an opinion relating to the constitutional effects of House Bill 99 if enacted into law. Specifically, you have asked:

1. whether Delaware can constitutionally refuse to recognize the marriage of a homosexual couple legally entered into in another state even though House Bill 99 prohibits discrimination based upon sexual orientation;

2. whether Delaware can constitutionally prohibit an employer from discriminating between providing spousal benefits to a heterosexual couple legally married in another state and a homosexual couple legally married in another state and whether House Bill 99 provides any additional protections over and above those currently afforded by Delaware law; and

3. whether passage of House Bill 99 would require a two-thirds majority vote in both the House and Senate.

House Bill 99 proposes to add sexual orientation non-discrimination clauses to various sections in the Delaware Code where such non-discrimination clauses already appear with regard to race, color, national origin, religion, creed, sex, marital status, familial status, age or handicap. These include statutes relating to Fair Housing, Landlord-Tenant, Equal Accommodations, County Recording, Insurance, Procurement and Employment.

I. Recognition of Out-of-State Homosexual Marriages

In recent years, several states have been confronted with legal challenges relating to the legal status of same-sex relationships under state law. In 1993, the Hawaii Supreme Court, in Baehr v. Lewin, Haw.Supr., 852 P.2d 44 (1993) indicated that under Hawaiian law, which did not forbid same-sex marriage, discrimination on the basis of sexual orientation was subject to strict scrutiny. It remanded the case for further proceedings and to provide the State with an opportunity to address the issue of the statute's constitutionality. In response to that opinion, and before the legal question was finally resolved, the Hawaii state legislature proposed an amendment to the State constitution limiting marriage to opposite-sex couples. The constitutional amendment was passed by referendum (1997 Haw. Sess. Laws 1246). Also in response to the Hawaii case, in 1996 Congress enacted what is referred to as the Defense of Marriage Act ("DOMA"), 28 U.S.C. §1738(c). In so doing, it acknowledged that "the prospect of permitting homosexual couples to 'marry' in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States...[DOMA] anticipates these complicated questions..." H.R. Rep. No. 104-664, at 2 (1996). DOMA provides that:

No State...shall be required to give effect to any public act, record,
or judicial proceeding of any other State...respecting a relationship
between persons of the same sex that is treated as a marriage under
the laws of such other State... or a right or claim arising from such
relationship.

In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word 'marriage' means only a legal
union between one man and one woman as husband and wife, and the
word 'spouse' refers only to a person of the opposite sex who is a
husband or a wife.

A similar question arose in Nebraska, prompting its Office of the Attorney General to render an opinion in 1996 concerning the Hawaii court decision, DOMA and possible legislation in Nebraska to prohibit same-sex marriages. 1996 WL 739040 (Neb.A.G.)(1996). Attorney General Don Stenberg concluded that new legislation expressly prohibiting or excluding recognition of same-sex marriages under Nebraska law was necessary if Nebraska was to be protected under DOMA.

Delaware, which pursuant to statute does not itself recognize same sex marriages, is protected by DOMA and does not have to recognize same sex marriages or unions entered into in other states. The enactment of House Bill 99 would not impact the prohibition in 13 Del. C. §101 against same-sex marriages.

II. Spousal Benefits and Additional Protections

In order to qualify for spousal benefits one must first be a legally recognized spouse. Under both state and federal law, a spouse must be a husband or wife of the opposite sex (see Section I, above). Therefore, an employer may deny spousal benefits to employees who seek such benefits for their homosexual partners. In this respect, homosexual couples are treated the same as unmarried heterosexual couples. See, Lilly v. City of Minneapolis, Minn.Ct.App., 527 N.W.2d 107 (1995)(inability of employee to extend employee health insurance benefits to domestic partner is result of Minnesota's marriage law restriction against same-sex marriages and is not result of claim of sexual orientation discrimination in employment); Beatty v. Truck Ins. Exchange, Cal.App.3d, 8 Cal.Rptr.2d 593 (1992)(insurer's refusal to issue joint umbrella policies to homosexual couples under same terms as offered to married heterosexual couples was not violation of California statute which forbids discrimination on the basis of sexual orientation- homosexuals are part of the larger class of unmarried person).

Other state court cases have addressed issues relating to employment benefits and same-sex partners. In Rutgers Council of AAUP Chapters v. Rutgers, the State University, N.J.Super.Ct.App.Div., 689 A.2d 828 (1997), cert. denied N.J.Supr., 707 A.2d 151 (1998), University employees appealed the State Division of Pension's denial of health insurance coverage to employees' same-sex domestic partners. The Appellate Division found that even though New Jersey's Law Against Discrimination prohibits an employer from discriminating against an employee in compensation or in terms, conditions or privileges of employment because of sexual orientation, employee benefit plans were excluded from its coverage. It also rejected appellant's arguments based on equal protection grounds and a State Executive Order barring discrimination on the basis of sexual orientation. See also, Robin Cheryl Miller, J.D., Annotation, Validity, Construction, and Application of State Enactment, Order, or Regulation Expressly Prohibiting Sexual Orientation Discrimination, 82 A.L.R.5th 1 (2000) and cases referred to therein, including Ross v. Denver Dept. Of Health and Hospitals, Colo.Ct. App., 883 P.2d 516 (1994)(not a violation of Colorado statute forbidding sexual orientation discrimination in state employment to deny State employee use of "family sick leave" to care for same sex partner); Phillips v. Wisconsin Personnel Commission, Wisc.Ct.App., 482 N.W.2d 121 (1992)(although Wisconsin Fair Employment Act prohibits discrimination on basis of sexual orientation, not a violation for same-sex partners of State employees to be denied health insurance coverage; Court found claim was not about sexual discrimination in employment, rather about effect of marriage law that does not recognize same-sex marriage); Hinman v. Dept. Of Personnel Administration, Cal.App.3d, 213 Cal.Rptr. 410 (1985)(denial of dental insurance coverage for same-sex partners upheld despite Executive Order banning sexual orientation discrimination in State employment).

Section 26 of House Bill 99 states that the intention of including the words "sexual orientation" in the proposed legislation is to ensure equal rights. More specifically, Section 20 provides that "[n]othing in this subchapter shall be interpreted to require employers to offer health, welfare, pension or other benefits to persons associated with employees on the basis as such benefits are afforded to the spouses of married employees." Therefore, on its face, House Bill 99 does not confer any greater benefits or protections upon homosexuals than it provides to the other categories of persons included within the amended sections of the law.

III. Two-thirds Vote

Under the Delaware Constitution, legislation need only be approved by a simple majority unless it comes within the specific sections of the Constitution requiring a two-thirds or three-fifths vote. Article IV section 28 of the Delaware Constitution of 1897 requires a two-thirds vote of all Members elected to both Houses in the event the General Assembly gives an inferior court jurisdiction over certain enumerated misdemeanors (not relevant to the present inquiry) and "such other misdemeanors as the General Assembly may from time to time prescribe." Pursuant to 11 Del. C. §2701, the Justice of the Peace Court has jurisdiction over misdemeanors only when expressly conferred by law. The Court of Common Pleas has original jurisdiction over all misdemeanors except where jurisdiction over such offenses is vested exclusively in another court.

While House Bill 99 would amend various sections of the Fair Housing, Landlord-Tenant, Equal Accommodations, County Recording, Insurance, Procurement and Employment laws, it does not add to the jurisdiction of any inferior court. The criminal jurisdiction of the court had already been established in the original legislation with regard to these previously enacted sections. Specifically, the Court of Common Pleas has jurisdiction over the unclassified misdemeanor of intimidation against protected individuals in the Fair Housing context, under 6 Del.C. §4619. House Bill 99 merely adds sexual orientation to the list of protected individuals, rather than adding a new unclassified misdemeanor. Similarly, jurisdiction to enforce the criminal penalties found in the subpoena enforcement sections of the Equal Accommodations Law (6 Del. C. §4510(e)) and the Fair Housing Act (6 Del. C. §4611(d)); the posting requirement section of the Employment Practices statute (19 Del. C. §716); and the neglect of duty section found in the recording of real property instruments (9 Del. C. §9616) is not increased by the proposed legislation. Subpoena authority already exists to aid in the investigation of violations of the Fair Housing and Equal Accomodations statutes, and the category of sexual orientation is simply being added to the pre-existing protected groups. Likewise, jurisdiction already lies in the Court of Common Pleas to impose fines for wilful violations of the posting requirement in the employment practices section (19 Del. C. §716) and to fine a county recorder for recording an instrument in violation of 9 Del.C. §9605(b). Both of these statutes presently extend protection to enumerated classes of people, and House Bill 99 merely adds sexual orientation to the enumerated classes. The jurisdiction of the inferior court is not being expanded under these circumstances. See, State v. Cloud, Del.Supr., 159 A.2d 588 (1960)("We thus conclude that by reason of Article IV, Section 28 it lies within the power of the General Assembly to confer jurisdiction upon inferior courts over all misdemeanors without the necessity of naming them severally...").

In any event, an amendment sponsored by Senator Winslow would grant Superior Court exclusive original jurisdiction over all criminal violations of Title 6, Chapters 45 (Equal Accommodations) and 46 (Fair Housing) and Title 19, Chapter 7, Subchapter II (Employment) and thus would remove any issue as to whether a super-majority is required by Article IV section 28 of the Delaware Constitution. The proposed amendment also deletes Section 12 of the original bill pertaining to possible fines for the Recorder of Deeds (9 Del.C. §9616), so that criminal fines imposed upon the Recorder where sexual orientation is at issue would also be moot. However, even in the absence of the Senate Amendment, we do not believe House Bill 99 requires a super-majority vote.

Should you have any additional questions or comments, please do not hesitate to contact this office.
 

Very truly yours,
 
 

Ilona M. Kirshon
Deputy Attorney General
 
 

APPROVED:
 
 

Malcolm S. Cobin
State Solicitor
 

cc: The Honorable M. Jane Brady
Attorney General

Philip Johnson
Opinion Coordinator

1. See Recent Legislation- Domestic Relations- Same-sex Couples, 114 Harv.L.Rev. 1421 (February, 2001) at footnote 4, stating that as of June 20, 2000 thirty states had passed similar laws, known as "mini-Domas." BACK TO INDEX