Bruning opinion challenges gay rights ordinance
May 4th, 2012
Omaha, NE – Nebraska Attorney General Jon Bruningâ€™s office released a legal opinion Friday that could challenge Omahaâ€™s new ordinance protecting gay and lesbian workers. And it could throw a wrench in the city of Lincolnâ€™s plans to consider a similar measure.
The opinion was written in response to a request from State Senator Beau McCoy of Omaha. (to read the opinion in full, click here) McCoy asked for a legal opinion as to whether cities have the authority to extend legal protections to people who are not protected under state statute. The Omaha City Council added â€œsexual orientation and gender identityâ€ in March to a list of protected classes under city code, and the Lincoln City Council is scheduled to debate a similar measure next week.
In the opinion, Bruning says his office studied Nebraska statute and found political subdivisions are â€œnot authorized to expand protected classesâ€ beyond those included in state law.
Looking back at a history of back-and-forth between the courts and lawmakers over civil rights in the 1960s and 1970s, Bruning said the Nebraska Supreme Court ruled consistently that authority over employment law and anti-discrimination rules lie with the state.
The Legislature has enacted laws attempting to provide more local authority, but Bruning says that authority was intentionally limited. Bruning added Nebraskaâ€™s current â€œFair Employment Practice Actâ€ specifically excludes homosexuality from protections, along with a list that includes sexually deviant behavior like pedophilia.
Bruning said adding protected classes to a city ordinance could only be presented as a charter amendment and voted on by the public. “Such an amendment indisputably requires a vote of the people,â€ he wrote.
The Attorney Generalâ€™s office released an opinion in 1981 after a similar request for clarification from former State Senator David Landis. That opinion concluded state law was not entirely clear and â€œcontrary interpretationsâ€ were possible, recommending lawmakers introduce further legislation to clarify.
Bruning said while his office continues to believe the history of the statutes donâ€™t â€œprovide an entirely clear answer,â€ investigation into the lawmakersâ€™ intent shows state legislation was not intended to allow cities to expand protected classes.
Itâ€™s unclear what impact Bruningâ€™s opinion will have in Omaha or Lincoln. Lincoln Mayor Chris Beutler called a press conference saying the city will continue its plans to consider the ordinance, telling reporters he strongly disagrees with Bruningâ€™s opinion, as do Omaha and Lincolnâ€™s city attorneys.
A spokesperson for Omaha Mayor Jim Suttle, Aida Amoura, said Bruningâ€™s opinion is â€œnon-bindingâ€ and wonâ€™t change anything on Omahaâ€™s books. It would only come up as an issue in court if somebody sued the city, she said, and the city would â€œdefinitely defend it, and weâ€™d win.â€
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