Bruning opinion challenges gay rights ordinance


May 4th, 2012

Omaha, NE – Nebraska Attorney General Jon Bruning’s office released a legal opinion Friday that could challenge Omaha’s new ordinance protecting gay and lesbian workers. And it could throw a wrench in the city of Lincoln’s plans to consider a similar measure.

Attorney General Jon Bruning at a recent Tea Party rally. Bruning is running for U.S. Senate. (Photo by Hilary Stohs-Krause, NET News)

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 “sexual orientation and gender identity” 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 “not authorized to expand protected classes” 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.

Omahans packed City Hall in March for a public hearing on a controversial ordinance, which prohibits discrimination based on sexual orientation and gender identity. (Photo by Robyn Wisch)

The Legislature has enacted laws attempting to provide more local authority, but Bruning says that authority was intentionally limited. Bruning added Nebraska’s current “Fair Employment Practice Act” 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,” he wrote.

The Attorney General’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 “contrary interpretations” were possible, recommending lawmakers introduce further legislation to clarify.

Bruning said while his office continues to believe the history of the statutes don’t “provide an entirely clear answer,” investigation into the lawmakers’ intent shows state legislation was not intended to allow cities to expand protected classes.

It’s unclear what impact Bruning’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 Bruning’s opinion, as do Omaha and Lincoln’s city attorneys.

A spokesperson for Omaha Mayor Jim Suttle, Aida Amoura, said Bruning’s opinion is “non-binding” and won’t change anything on Omaha’s books. It would only come up as an issue in court if somebody sued the city, she said, and the city would “definitely defend it, and we’d win.”

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