Nebraska AG Bruning Says Local Non-Discrimination Laws Unconstitutional, Lincoln To Consider One Anyway

Attorney General Jon Bruning (R-NE)

Attorney General Jon Bruning (R-NE)

In an advisory opinion issued last week, Nebraska Attorney General Jon Bruning (R) said that he believes under the state’s constitution, local governments have no authority to enact non-discrimination ordinances. This opinion came at the request of State Senator Beau McCoy, who had proposed legislation earlier this year to strip localities of that power, arguing that uniform state laws for businesses are better than piecemeal local regulations.

Omaha, the largest city in the state, recently enacted an ordinance protecting LGBT citizens from discrimination in employment and public accommodations. Lincoln, the state’s capital, says it will continue its previous plans to consider a non-discrimination ordinance — a public hearing on the measure is scheduled for this afternoon. Lincoln’s city attorney has taken a different interpretation of the state’s constitution, arguing that the city has the authority to pass the measure.

In their non-binding opinion, Bruning and his assistant attorney general write:

[I]t is our opinion that while political subdivisions may pass ordinances or other laws on the same subject matter which are not inconsistent with the state’s civil rights classifications, political subdivisions are not authorized to expand protected classes beyond the scope of the civil rights provided for in the state statute.

Their reasoning? Nebraska is generally a “Dillon Rule” state. Based on the reasoning of 19th century Iowa Chief Justice John Dillon, several states take the view that localities may only enact laws when given explicit permission from the state government. Other states, known as “Home Rule” states, let localities make any decisions not specifically prohibited by the state government. The opinion argues that, while Nebraska laws give some Home Rule authority to local governments, this falls out of their scope. Only voters, amending their city charters by referendum — or the state legislature — could grant protections based on sexual orientation and gender identity.

This is not the first time localities have been big-footed by their state governments, undermining attempts to protect LGBT constituents. In Virginia, for example, a Republican Attorney General used the same principles to dissuade Fairfax County’s school board from enacting a non-discrimination rule. Last year, Tennessee enacted a law stripping localities of the right to enact non-discrimination protections beyond the state’s protected catagories. And a 1992 Colorado referendum — later ruled unconstitutional by the U.S. Supreme Court — sought to nullify all local protections based on sexual orientation.

In Nebraska too, the question may eventually be decided by the judicial system. Omaha’s city attorney has said that Bruning’s ruling will change nothing without a court order, telling the press “If someone sues us, we’ll deal with it in court.

Just 16 states and the District of Columbia provide legal employment protections for LGBT citizens (another 5 protect based on sexual orientation, but not gender identity or expression). That means that in most U.S. states, someone who is — or even seems to be — to be gay, lesbian, bisexual, or transgendered may legally be fired or not hired purely on that basis.

In a sense McCoy is right — this is not an issue that should be dealt with by piecemeal regulations. It is time for Congress to pass the Employment Non-Discrimination Act to ensure that no American is fired just for being LGBT.