Neb. AG: City ordinances protecting gays illegal

Nebraska cities can't adopt ordinances protecting people from discrimination for being gay, lesbian, bisexual or transgender because the state's anti-discrimination laws don't extend to sexual orientation, the state attorney general's office said in a legal opinion issued Friday.

Voters can approve changes to city charters to extend protections to groups not covered by state law, but local governments lack the authority, the opinion said.

"Nebraska statutes do not authorize political subdivisions in Nebraska, including municipalities, to expand protected classifications beyond the scope of the civil rights classifications created in state statute," Attorney General Jon Bruning said in a statement after the release.

The opinion, which critics predicted would get shot down in court, was issued in response to a request by conservative state Sen. Beau McCoy, of Omaha, who introduced legislation this year that would have barred counties and cities from adopting anti-discrimination ordinances that go beyond statewide rules. The bill didn't advance out of committee.

McCoy said the opinion frees him of having to introduce the measure again next year.

"I believe that it not only backs up and supports what I have said for almost eight months now, but it probably goes further in outlining why civil rights and discrimination measures are state issues," he said.

Neither state nor federal laws expressly protect people from discrimination for being gay, lesbian, bisexual or transgender.

Omaha, Nebraska's most populous city, narrowly adopted an ordinance in March employers, employment agencies, job training programs, labor groups, public accommodations and businesses that contract with the city from discriminating on the basis of sexual orientation. It provides exemptions for religious organizations.

Omaha city attorney Paul Kratz said the city's legal team disagrees with the opinion, and he doesn't think it will have any effect on the new ordinance.

"If somebody sues us, we'll deal with it in court," he said.

The city council in Lincoln, the state's second biggest city, will vote on a similar ordinance on May 14, Mayor Chris Beutler said at a news conference Friday.

"The basic issue here is fairness. No one should fear losing their job because of sexual orientation," Beutler said.

He cited the state motto, "equality before the law," and said, "it's time to make those words ring true for everybody."

Jonathan Benjamin-Alvarado, a political science professor at the University of Nebraska at Omaha who joined with Equal Omaha in advocating for the ordinance, said the opinion is disingenuous given the protections that are starting to be granted to gay and transgender people under federal law.

"I don't believe his ruling, per se, would withstand further constitutional scrutiny," he said, suggesting the Republican attorney general is trying to rally conservative support for his U.S. Senate run.

Meredith Bacon, a transgender professor in the political science department, said she hopes the ordinance is taken to court, where she predicts it will prevail.

"Dozens, if not hundreds, of cities in the United States have done exactly what Attorney General Bruning says is not possible in Nebraska," she said.

Rev. Al Riskowski, executive director of the Nebraska Family Council, said "it affirms what we've been saying all along — that this should be a state issue."

His group has spoken against the two cities' efforts to pass the ordinances.

Riskowski said cities shouldn't be creating protected classes because there are no state standards for doing so, which leaves the door open for any group to become a protected class.

"Your imagination is your only limit," he said.