Nebraska's attorney general and representatives of the state's two largest cities are at odds over whether municipalities have the right to protect gay and transgender residents from discrimination.
In an opinion released Friday, Attorney General Jon Bruning said cities have no authority to create or enforce laws for protected classes not included in state law. Yet city attorneys in Omaha and Lincoln say they believe state law and their own home rule charters give them such authority.
Amid the legal debate, national and local gay rights activists accused Bruning — a Republican candidate for the U.S. Senate — of using the legal opinion as a political tool days before the May 15 GOP primary.
Bruning's legal opinion comes as the Lincoln City Council prepares for a public hearing Monday on a measure to include gay and transgender residents as protected classes in the state's capital city.
In March, the Omaha City Council narrowly approved a similar measure, exposing rifts in the city's business and religious communities.
“We strongly disagree” with the attorney general's opinion, Lincoln Mayor Chris Beutler said Friday. “I can think of no reason to stop moving forward with this ordinance, and I can think of many reasons we need to get this ordinance on the books.”
The attorney general's opinion does not invalidate the recently approved changes to Omaha's anti-discrimination laws, City Attorney Paul Kratz said.
However, the opinion could embolden groups opposed to such policies and accelerate moves to overturn them in court or at the ballot box.
“If the City of Omaha attempts to impose this ordinance upon businesses in the Omaha area, Omaha will find itself liable to a lawsuit by that business stating that the city is attempting to do something that the Nebraska Constitution says is unconstitutional,” said Al Riskowski, executive director of the Nebraska Family Council.
Riskowski stopped short of saying legal action was imminent.
“It's very clear in some ways,” he said of Bruning's opinion. “It's not very clear in others.”
Friday's legal opinion stems from a request for review by State Sen. Beau McCoy of Omaha, who introduced a proposal this past legislative session that would explicitly bar cities from creating their own protected classes. The bill didn't make it out of committee.
McCoy, who requested the attorney general's opinion Wednesday, said he asked for it to determine whether he should reintroduce the measure.
“This shows the legislation I brought probably isn't needed,” he said.
McCoy said his concern is that a patchwork of differing anti-discrimination ordinances would be a burden to businesses.
Bruning wrote that cities only have the power to create ordinances pertaining to protected classes already defined by state law.
Regardless, Bruning's office said, such decisions should be left to voters.
“Even if one discounts the analysis that follows in this opinion, it remains the case that such an expansion at the city level must be pursuant to an amendment to a city's charter,” which requires voter approval, the opinion says.
Omaha and Lincoln are the only two cities in Nebraska that have home rule charters, essentially constitutions approved by their voters giving them independent authority to enact policies dealing with local issues.
The Nebraska Constitution allows cities of 5,000 people or more to establish home rule, said Lynn Rex, executive director of the League of Municipalities.
However, most cities have opted not to adopt a home rule charter, she said, because court cases over the years have fogged the distinction to the extent that home rule charters establish few significant powers beyond those granted in state law.
Kratz and Lincoln City Attorney Ron Confer said state law and the cities' home rule charters grant the authority for the cities to create new categories for protection against discrimination.
“We have done this in the past without going to a vote of the people,” Kratz said. “And again, that's part of our representative government. You simply can't take everything to a vote of the people.”
In fact, Confer said, Lincoln already has enacted other protections against discrimination based on age, family status and disability that are not included in state law.
Confer, during a Friday press conference, was asked about an opinion issued by a previous city attorney that concluded Lincoln lacked authority to protect gay residents from discrimination.
He said much has changed since that opinion was delivered in 1982, including a Nebraska Supreme Court opinion that affirmed home rule charter cities' authority to enact more comprehensive provisions than are spelled out in state law.
Another section of state law also says cities can adopt ordinances equivalent to state fair employment and fair housing laws, or laws that “are more comprehensive than such acts and sections.”
Bruning's office noted that, in 1981, the then-attorney general said that portion of state law could be interpreted to mean cities had authority to go beyond existing state law — but that the opposite conclusion was also feasible.
“Not withstanding the attorney general's opinion, the plain language of that statute allows us to do what we've done,” Kratz said.
Bruning's office said the law is intended to apply only to “more comprehensive protections within existing state classifications.”
Meanwhile, local and national rights organizations denounced Bruning's opinion.
“Nebraska Attorney General Jon Bruning's opinion is motivated by politics rather than sound law,” said Sarah Warbelow, state legislative director for the Human Rights Campaign.
VOICE Omaha, a local coalition that backed Omaha's gay rights ordinance, said the opinion was “pure political pretext.”
Bruning's campaign declined to comment.
World-Herald staff writers Martha Stoddard and Leslie Reed contributed to this report.
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