The state House has approved a bill to legalize gay marriage in a narrow 23-18 vote April 23. Opponents of the measure argued it does not protect individual First Amendment rights.
House Bill 75, which would repeal Delaware’s prohibition on same-sex marriage enacted in 1996, now heads to the Senate for consideration. If the Senate passes the bill, Gov. Jack Markell has said he would sign it into law.
The measure requires equal treatment of same-sex couples and their children currently affording to straight couples and their children. It eliminates civil unions, and all civil unions performed in the state would be converted into marriages by July 1, 2014.
HB 75 also includes protection for religious groups – any religious society is free to choose which marriages it will solemnize; religious societies, clergypersons and ministers of any religion would not be required to perform marriages it does not condone.
If HB 75 were signed into law, it would become effective Monday, July 1.
House Speaker Pete Schwartzkopf, D-Rehoboth Beach, a sponsor of the bill, was the only Sussex County legislator to vote in favor of the measure.
Head sponsor Rep. Melanie George Smith, D-Bear/Newark, said in a statement, “This bill is about equality and treating all couples in a loving, committed relationship with equal respect and dignity. It protects religious freedom by giving churches the freedom to choose whether to marry a same-sex couple or not.”
But opponents argued the bill does not adequately protect businesses that choose not to serve same-sex couples.
Alliance Defending Freedom Attorney Jordan Lorence, who testified before the House, said HB 75 does not protect Delaware citizens’ First Amendment rights. “The protections in this bill are not adequate,” he said. “You’re going to have some real victims, I think, if you pass this bill,” he said.
If the bill is passed, wedding vendors could be sued for discrimination if they refuse to service a wedding for a same-sex couple, Lorence said. “They will not have protections,” he said.
Lorence said he is currently defending Elane Photography of New Mexico for refusing to work at a same-sex wedding.
If the bill is passed, Lorence said, adoption agencies could face legal charges if they refuse to allow gay couples to adopt a child. He said some might decide to shut down, leaving fewer children the opportunity for adoption.
In Massachusetts, where gay marriage is legal, Catholic charities have closed the doors to their adoption agencies, Lorence said.
Lorence also said the Clerk of Peace would be forced to preside over same-sex marriages if the bill is passed. “I think this is grossly unconstitutional,” he said. “Just because they’re elected officials, doesn’t mean they sacrifice their constitutional rights.”
State-licensed marriage counselors, even some with religious affiliations, could also be sued if they refuse service to a gay couple, Lorence said.
In a statement after the vote, Delaware Attorney General Beau Biden took a different stance. "I want to congratulate Rep. Melanie George Smith and all of the legislators who supported marriage equality, and I look forward to working with Sen. David Sokola to help the bill pass in the Senate,” Biden said. “Everyone is equal under the law, and all Delawareans should be free to marry the person they love.”
Hours before the vote, Delaware Republican Party Chairman John Sigler issued a press release quoting the Republican Party’s official position on marriage equality.
“It has been proven by both experience and endless social science studies that traditional marriage is best for children,” he said. “Furthermore, the future of marriage affects freedom. The lack of family formation not only leads to more government costs, but also to more government control over the lives of its citizens in all aspects.”
Despite the official position, one Republican, Rep. Mike Ramone, R-Middle Run Valley, voted in favor of the legislation; five Democrats voted against it. To read HB 75, go to delaware.gov.