Thursday, May 31, 2012

Lincoln, NE's LGBT protection ordinance; opponents turn in four times the signatures needed to block measure, but petition language is shaky; equivocation by mayor; the plot thickens

Pastor Tim Kemnitz "We made a reference to Sodom out of love.
We're not trying to single out any single sin, like homosexuality..."
UPDATE: Mount Olive stirs the homophobe pot. Video here.
     To see all AKSARBENT posts about Lincoln's new LGBT ordinance, click the label at bottom of this post.
     Specific concerns about the legality of the petition circulated by Focus on the Family Nebraska affiliate Family First and the Nebraska Family Council now have surfaced.
     It started when prominent Lincoln attorney Vince Powers personally delivered a letter to the Mayor's office on May 22, expressing skepticism about the petition's compliance with Nebraska's single-subject rule regarding voter initiatives.
     While legislative bodies may enact laws addressing multiple subjects, voters may not.
     Lincoln's new ordinance makes discrimination on the basis of TWO separate criteria unlawful: sexual orientation and gender identity. That means that two additional protected classes were added to the code. Here is the actual language in the ordinance:
  • Sexual Orientation means the actual or perceived heterosexuality, homosexuality, or bisexuality.
  • Gender Identity shall mean the actual or perceived appearance, expression, identity, or behavior of a person as being male or female, whether or not that appearance, expression, identity, or behavior is different from that traditionally associated with the person’s designated sex at birth.
     Powers pointed out that some people opposed to discrimination on the basis of sexual orientation might nevertheless not want protection on the basis of gender identity. (This is quite true; many people who testified at the measure's hearing were obsessed with supposed and lurid scenarios of future sex offenses committed by people they evidently feel would receive carte blanche by gender identity protection to visit the restrooms of either sex in order to perpetrate sexual assaults, even though there is zero evidence that transgender people are more prone to this than anyone else.)
     Dave Bydalek, Executive Director of Family First and a former Nebraska Assistant Attorney General under Don Stenberg, claims that Power's concerns are "a stretch" because the petition concerns a "single city ordinance with a single title."    
     Powers, who is certified to argue cases before the US Supreme Court and has had the highest peer review rating (AV) bestowed by Martindale-Hubbel for the last 15 years, says the distinction DOES matter and noted that the Nebraska Supreme Court set aside a referendum election in North Platte last year because it addressed multiple subjects.
    The Council can repeal the ordinance targeted by the petition, or put it on the ballot as is. Mayor Chris Beutler, who seems to have gotten cold feet, now appears to want to fix errors in the petition for the anti-gay right-wingers who proposed it by having the council repeal the amendment, then submit a proposed charter amendment to voters with the same types of discrimination protections.
“Allowing the ballot issue to proceed with this fundamental flaw would give voters a false choice and create an unfair election,” he said. “If we initiate litigation and win, then the petitioners are denied the vote. We do not want that result even though it does follow from their own errors.”
Dave Bydalek, Executive
Director of Family First
Deena Winter of Nebraska Watchdog, said Powers accused the petition organizers of spreading falsehoods about the ordinance by claiming, for example, that making an idle comment about opposing homosexuality at work could result in a lawsuit.
     “Any competent lawyer would tell you this isn’t true,” Powers said. 
     “These are smart people who are blinded by their fear of homosexuality.”
     Bydalek said that was ridiculous and that Powers is the one being blinded by his support for the ordinance.
     Powers doesn’t expect anyone would sue under the ordinance because it included no provisions for damages or remedies...
     [Bydalek] thinks the mayor is considering lumping together on a ballot several protected classes that are already in city ordinance but not in the city charter – which Bydalek said would cause an uproar.
     “I would not put it past them,” he said.
 Below: Lincoln Attorney Vince Powers in a video posted by his firm:

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