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Chris Beutler

Lincoln Mayor Chris Beutler. (ERIC GREGORY/LJS file)

The Lincoln City Council will continue with efforts to pass an expansion of the city's civil rights ordinance to cover gay and transgender people despite a Nebraska attorney general's opinion that the council does not have that power.

Mayor Chris Beutler said Attorney General Jon Bruning's opinion has no binding effect on cities.

And the Lincoln city attorney has a different opinion from the attorney general, Beutler said at a Friday afternoon news conference.

Attorneys for both Omaha and Lincoln are in agreement that "there are lots of things about this opinion that are not correct," Beutler said of the attorney general's opinion released Friday morning.

Bruning said cities cannot broaden their anti-discrimination laws without asking voters to expand the city charter, or getting the Legislature to expand the state's civil rights laws.

Now, anti-discrimination protection for gender identity or sexual orientation is not a part of either the Lincoln city charter or state law.

The Bruning opinion was released just days before a Lincoln City Council public hearing on a proposal to add gender identity and sexual orientation to the classes of people specifically protected against discrimination in employment, housing and public accommodations. That hearing will be part of the Monday 3 p.m. council meeting.

The Omaha City Council recently added similar anti-discrimination protection for gay, lesbian, bisexual and transgender people to its civil rights ordinance.

The statute used by the attorney general to argue that cities don't have the authority to go beyond state law actually includes words allowing cities to pass ordinances that are more comprehensive than state law, Lincoln City Attorney Rod Confer said at the news conference.

"This is an issue of basic fairness," Beutler said. "No one should live in fear of losing a job or housing because of sexual orientation or gender identity.

"Lincoln is the capital city of the state whose motto is 'Equality before the law.' It's time to make those words ring true."

Opponents of the Omaha and Lincoln proposals say the attorney general's opinion verifies what they believed all along.

"You just create a very difficult environment in the state if you start allowing various cities to have new protected classes," said the Rev. Al Riskowski, executive director of the Nebraska Family Council.

The attorney general feels strongly that state law does not allow city councils to create new protected classes. But someone may have to take that to court, he said.

It is indisputable that a vote of the people is required to change city charter, Riskowski said.

The Bruning opinion came in response to questions by Omaha Sen. Beau McCoy, who introduced legislation last year that would have prohibited cities and counties from creating protected classes beyond those found in state law.

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That bill did not get out of the Judiciary Committee and died when the session ended last month.

This is not a new issue. In previous years, Lincoln and Omaha have added other protected classes to city laws that are broader than what is in state law or the city charter, Beutler pointed out.

Lincoln already offers more protection in the areas of familial status, age, disability and national origin than is provided in state law, Confer said. And none of these categories are part of the city charter, he said. 

The Bruning opinion released Friday contradicts a 1981 attorney general's opinion that concluded cities could expand their civil rights ordinances beyond in state law.

But that opinion left some room for doubt. It suggested an alternative interpretation also is feasible and recommended changing state law to eliminate any doubt.

The most recent opinion refers to the 1981 opinion but comes down on the other side. 

"While we continue to believe as we did in 1981 that the legislative history does not provide an entirely clear answer ... it also seems to us that other aspects of the relevant statutes, which we did not discuss in 1981, indicate that the authority of political subdivisions to legislate ... is limited to the civil rights enumerated in state statute, absent changes in a home rule charter."

The Lincoln City Council expects to vote on the expanded protected classes at its May 14 meeting.

"We believe this opinion is in error," said Councilman Carl Eskridge, who sponsored the Lincoln amendment and has said he has support from a majority of the council. "We believe we are on the right ground, the high ground. So we will move on."

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