Civil Division/New Castle County
The Honorable Robert L. Venables, Sr.
State of Delaware
Dover, Delaware 19903 D580C
Re: House Bill 99
Dear Senator Venables:
In your letter of June 6, 2001, you have asked for clarification of three issues pertaining to House Bill 99 which had been addressed in our Atty. Gen. Op. No. 01-IB08, dated May 7, 2001. Specifically, you now ask:
1. How the enactment of House Bill 99 would affect Delaware's constitutional obligations under the Full Faith and Credit and Equal Protection Clauses of the United States Constitution;
2. How a court in Delaware can deny spousal benefits to homosexuals in a way that does not discriminate on the basis of sexual orientation; and
3. Whether a two thirds vote is needed to pass the proposed legislation.
I. Presumption of Constitutionality of Duly Enacted Federal Legislation
In 1996, the United States Congress enacted the Defense of Marriage Act ("DOMA"), 28 U.S.C. §1738(c), which is part of Title 28, "Judiciary and Judicial Procedure." Title 28 U.S.C. §1738 provides for the full faith and credit of acts, records and judicial proceedings between states. Section 1738(c) is a federal enactment which limits a State's obligation to extend full faith and credit to homosexual marriages entered into in other States. First, you question whether the DOMA might be constitutionally challenged. Certainly, we cannot preclude that. We do, however, presume the constitutionality of the Act in our response. There is a presumption of constitutionality for acts of Congress. Federal Election Com'n v. Political Contributions Data, Inc., 943 F.2d 190, 191 (2d Cir. 1991)( "It is a cardinal principle of statutory construction that Congress is presumed to have passed statutes which are constitutional.")
Your also inquire as to the interaction between the DOMA and the Full Faith and Credit Clause of the United States Constitution, Article IV, Section 1, which provides as follows:
"Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such
Acts, Records and Proceedings shall be proved, and the Effect thereof."
While States are to give full faith and credit to the judgments of other States, The Full Faith and Credit Clause does not compel "a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Baker by Thomas v. General Motors Corp., 522 U.S. 222, 232 (1998).
The second sentence, commonly referred to as the "Effects Clause," has been construed to explicitly give Congress the authority to prescribe the "effect" of a State's public acts, records, and judgments on another State. Proceedings and Debates of the 104th Congress, Second Session, Monday, September 30, 1996, 142 Cong. Rec. §12015-01, 1996 WL 553938 (Cong.Rec.). Congress invoked the "Effects Clause" in enacting the Defense of Marriage Act. Patrick J. Shipley, Constitutionality of the Defense of Marriage Act, 11 J. Contemp. Legal Issues 117 (October 1999); Daniel A. Crane, The Original Understanding of the "Effects Clause" of Article IV, Section 1 and Implications for the Defense of Marriage Act, 6 Geo. Mason L. Rev. 307 (Winter, 1998). To date, while there has been some debate as to whether DOMA exceeds congressional authority, there has been no successful challenge to the legislation on constitutional grounds and it continues to be the law of the land. See the recent lengthy discussion of the interaction between the DOMA and the Full Faith and Credit Clause in the Alabama Atty. Gen. Op. No. 2000-129, found at 2000 WL 33310632 (Ala.A.G.)(April 20, 2000)(also found on the Internet at www.ago.state.al.us/pdfopinions/2000-129.pdf).
House Bill 99 does not deal directly with
the issue of same sex marriages in any context other than, arguably, in
the area of spousal benefits. Therefore, the Equal Protection inquiry you
raise is discussed in the section of this letter relating to spousal benefits,
II. House Bill 99 and the Denial of Spousal Benefits
You have inquired whether the denial of spousal benefits implicates the Equal Protection Clause. Under federal case law, sexual orientation has not been deemed a suspect or quasi-suspect classification requiring heightened scrutiny. Romer v. Evans, 517 U.S. 620, 631 (1996)("If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.") A subsequent federal appellate decision found that in so ruling, the Supreme Court "resolved that the deferential 'rational relationship' test, that declared the constitutional validity of a statute or ordinance if it rationally furthered any conceivable valid public interest, was the correct point of departure for the evaluation of laws which uniquely burdened the interests of homosexuals." Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997), cert denied, 525 U.S. 943 (1998).
In Cape Shores Associates v. City of Lewes, Del.Super., 1999 WL 743674 (August 10, 1999), aff'd, Del. Supr., 748 A.2d 913 (2000), a Delaware court, citing to federal law, summarized the rational basis analysis as follows:
In Delaware, the rational basis test has been employed in constitutional challenges relating to economic benefits. The Supreme Court in Lowicki v. Unemployment Ins. Appeal Bd., Del.Supr., 460 A.2d 535, 539 (1983) held that[R]ational-basis review in equal protection analysis "is not aCiting to Heller v. Doe, 509 U.S. 312, 319-20 (1993).
license for courts to judge the wisdom, fairness, or logic of
legislative choices." Nor does it authorize "the judiciary [to]
sit as a superlegislature to judge the wisdom or desirability
of legislative policy determinations made in areas that neither
affect fundamental rights nor proceed along suspect lines."
For these reasons, a classification neither involving fundamental
rights nor proceeding along suspect lines is accorded a
strong presumption of validity. Such a classification cannot
run afoul of the Equal Protection Clause if there is a rational
relationship between the disparity of treatment and some
legitimate governmental purpose. Further, a legislature that
creates these categories need not "actually articulate at any
time the purpose or rationale supporting its classifications."
Instead, a classification "must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classifications."
House Bill 99, if enacted, would 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.(1) Section 20 of the proposed legislation provides that nothing in the legislation is to 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." In order to qualify for spousal benefits, one must first be a legally recognized spouse, and under both State (13 Del.C. §101) and Federal (1 U.S.C. §7) law, a spouse must be a husband or wife of the opposite sex. In Delaware there is "a strong judicial tradition that supports a presumption in favor of the constitutionality of legislative enactments." State v. Baker, Del.Supr., 720 A.2d 1139, 1144 (1998) and one who challenges the constitutionality of a statute has the burden of overcoming the presumption of its validity. Justice v. Gatchell, Del.Supr., 325 A.2d 97,102 (1974).Economic legislation which does not contain a "suspect
classification" or limit a "fundamental right" must be reviewed
for equal protection violations under the rational basis test...
Under the rational basis test, legislation will be deemed
constitutional if the legislative means are rationally related
to a legitimate governmental objective or purpose. Moreover,
such legislation carries with it a presumption of rationality that
can be overcome only by a clear showing of arbitrariness and
irrationality. [citations omitted].
While one may not predict with certainty how a Delaware court would rule where the question pertains to entitlement to spousal benefits, case law from jurisdictions which have addressed the issue suggest that a Delaware court would find the requirement of legal marriage to be rationally related to the provision of such benefits. See cases referred to in that section of the May 7, 2001 Atty. Gen. Op. No. 01-IB08 under "Spousal Benefits and Other Protections."(2) Therefore, our opinion is that the Delaware courts would find that an employer may deny spousal benefits to employees who seek such benefits for their homosexual partners without violating the Equal Protection Clause. In this respect, homosexual partners are treated the same as unmarried heterosexual partners.
III. Two-thirds Vote
While our research did not reveal a case precisely on point to the situation presented by House Bill 99, there is case law that has been instructional in determining whether a supermajority vote is required. The case which most closely resembles the present facts is State v. Cloud, Del.Supr., 159 A.2d 588 (1960). In Cloud, the Supreme Court addressed whether Article IV, Section 28 authorized the General Assembly to confer blanket jurisdiction over misdemeanors upon the inferior court (City of Wilmington Municipal Court) or whether such jurisdiction could only be granted by a statute or statutes which specifically enumerated the misdemeanors. Although the facts of that case are distinguishable from House Bill 99, we may look to its reasoning and holding for guidance on the Constitutional Debates and intent of the framers in including Article IV, Section 28. After reviewing the proceedings of the Constitutional Convention of 1897, the Court concluded that the debate at the Convention over Article IV, Section 28 centered around the right of appeal from the inferior courts and that whether the jurisdiction to hear misdemeanors was granted by name or generally was not important. It held:The supermajority voting provision is found in Article IV, § 28 of the Delaware
Constitution, which provides as follows(3):
The General Assembly may by law give to any inferior courts
by it established or to be established, or to one or more justices
of the peace, jurisdiction of the criminal matters following,
that is to say --assaults and batteries, carrying concealed a deadly
weapon, disturbing meetings held for the purpose of religious
worship, nuisances, and such other misdemeanors as the General
Assembly may from time to time, with the concurrence of
two-thirds of all the Members elected to each House, prescribe.
The General Assembly may by law regulate this jurisdiction, and
provide that the proceedings shall be with or without indictment by
grand jury, or trial by petit jury, and may grant or deny the privilege
of appeal to the Superior Court; provided, however, that there shall
be an appeal to the Superior Court in all cases in which the
sentence shall be imprisonment exceeding one (1) month, or a fine
exceeding One Hundred Dollars ($100.00).
It was of no apparent concern to the Convention, nor can we see
any useful purpose to be served by requiring of the General
Assembly separate acts to confer jurisdiction over misdemeanors
upon the statutory courts. We can conceive of no reason why
the conferring of jurisdiction generally over all misdemeanors
would encroach upon the liberties of the citizens. Those liberties
and rights are preserved by the right of appeal guaranteed by the
It concluded 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..."(4) It is our opinion that, as in Cloud, a Delaware court would likely conclude, on these facts, that a two-thirds vote is not necessary because the inferior court has already been given criminal jurisdiction over misdemeanors arising out of violations based on discrimination in the affected subject areas.
House Bill 99 would amend various sections of the Fair Housing, Landlord-Tenant, Equal Accommodations, County Recording, Insurance, Procurement and Employment laws, and would add "sexual orientation" to the list of protected categories already covered by those statutes. The Court of Common Pleas has original criminal jurisdiction throughout the State over all misdemeanors except where jurisdiction over the offense is vested exclusively in another court. 27 Del.C. §2701(b). The legislation establishing the Court of Common Pleas (58 Del. Laws c. 497), making it a court of statewide jurisdiction (59 Del. Laws c.133), and transferring to it jurisdiction previously exercised by the Municipal Court of the City of Wilmington (71 Del. Laws c. 176) all carried a two-thirds voting requirement in their enactment clauses. The Court of Common Pleas currently exercises criminal jurisdiction over statutory violations and enforcement proceedings under these laws and would continue to do so in the proposed legislation, with the addition of the category of sexual orientation (in the absence of Senate Amendment 1, which would place jurisdiction in the Superior Court.)
The question is whether to interpret violation of the proposed sexual orientation anti-discrimination provision as the addition of a new crime or as part of the Court's existing jurisdiction over violations of the relevant anti-discrimination provisions. The Superior Court, in Brooks v. Taylor, Del.Super., 150 A.2d 188 (1959), held that where the act abolishing capital punishment was not passed by a two-thirds vote, it was ineffectual to increase the jurisdiction of the Family Court over a rape case where the defendant was a juvenile. Although the case had dicta to the effect that a two-thirds vote is required when a bill enlarges the jurisdiction of an inferior court, whether it be "intentionally or unintentionally, directly by grant or indirectly by redefinition of an offense," 150 A.2d 192, this dicta was not adopted by the Supreme Court on appeal. The Supreme Court, in Brooks v. Taylor, Del.Supr., 154 A.2d 386, 391 (1959) held that a two-thirds vote was necessary where a Legislative act resulted in "a wholesale transfer from the Superior Court to the Family Court of jurisdiction over the four crimes that were formerly punishable by death." However, the Brooks case, involving a broad transfer of jurisdiction from a constitutional court to an inferior court, is inapposite, since House Bill 99 does not entail such a transfer of jurisdiction.
If House Bill 99 were to include Senate Amendment 1, placing jurisdiction in the Superior Court, the supermajority vote would not be an issue, as the constitutional provision applies only to inferior courts. Under 11 Del. C. §2701(c), the Superior Court has original and concurrent jurisdiction over all crimes except where jurisdiction is exclusively vested in another court.
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
Malcolm S. Cobin
cc: The Honorable M. Jane Brady, Attorney
Philip Johnson, Opinion Coordinator
1. The following States have similar provisions extending anti-discrimination protections on the basis of sexual orientation in the areas of employment and housing: California, Connecticut, District of Columbia, Hawaii, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New York (employment in Court system), Rhode Island, Vermont and Wisconsin.
2. Lilly v. City of Minneapolis, Minn.Ct.App., 527 N.W.2d 107, 112 (1995), involved the question of whether amendment of the Minnesota Human Rights Act ("MHRA") to prohibit discrimination based on sexual orientation had an impact on whether spousal benefits to same sex domestic partners had to be made. The Court referred to the Senate Floor debate, where this issue was discussed, and found that the MHRA, as it stood without inclusion of such benefits, did not violate the statute's prohibition against discrimination based upon sexual orientation.
3. The great majority of States, while requiring legislative action for the establishment of new courts, do not specify, in their constitutions, the vote necessary for such action. A few other State constitutions, including those of Arkansas, Colorado, Ohio and Michigan, provide for a two-thirds vote of their Legislature for establishing new courts or increasing civil jurisdiction monetary amounts. We have found no other State constitution which requires a two-thirds vote to add new crimes to the jurisdiction of existing courts.
4. Note that in amending various sections of the
law, House Bill 99 affects misdemeanors only.
BACK TO INDEX