To their credit, 20 Nebraska state senators voted to adopt Legislative Resolution 399. Add to their credit the fact that to do so they stuck around into the early evening on a day that not only was a “get-away day”—the last legislative day of a week—but also the 59th day of the 60-day, 2014 session. When the vote was taken, 25 of their colleagues had been excused.
LR 399 was a resolution introduced by veteran legislator John Wightman from Lexington to have the Legislature on record urging Nebraska’s congressional delegation to become involved with affirmative actions for fixing the nation’s broken immigration system.
Pursuant to the Unicameral’s rules, adoption of a resolution such as LR 399 requires a majority of those present and voting. After a motion to adjourn failed, followed by an hour or so of some rather heated debate, LR 399 was adopted on a 20-3 vote, with one abstention.
Opponents of the resolution, primarily Senators Beau McCoy and Jim Smith from Omaha, argued that the resolution pushed “amnesty” for immigrants who are lawbreakers. Fortunately, Senator Wightman, assisted by strong words from Omaha Senator Steve Lathrop, pointed out that the resolution was not about, and did not call for, “amnesty,” but rather that Congress do something to fix the broken system, preferably with comprehensive legislation.
The 20 legislators who voted for LR 399 were: Greg Adams (York), Brad Ashford, Tanya Cook, Sue Crawford, Burke Harr, Sara Howard, Rick Kolowski, Lathrop, Heath Mello, Jeremy Nordquist (all Omaha), Kathy Campbell, Ken Haar, Amanda McGill (all Lincoln), Mike Gloor (Grand Island), Tom Hansen (North Platte), John Harms (Scottsbluff), Paul Schumacher (Columbus), Kate Sullivan (Cedar Rapids), Norm Wallman (Beatrice) and Wightman.
On another matter in the closing days of the now-adjourned session, to their credit, 22 state senators voted against a motion to invoke cloture and thus helped to stop LB 485 from getting any closer to enactment than eight hours of floor debate. The motion needed 33 votes to be approved; it tallied 26.
This legislation, expanded by an amendment recommended by five members of the Judiciary Committee, proposed to add “sexual orientation” and “gender identity” as two, new, separate categories on the basis of which any judgment or decision deemed to be discriminatory with regard to any of hiring, firing, compensation, terms, conditions or privileges of employment would be an unlawful employment practice precipitating civil penalties under the Nebraska Fair Employment Practices Act. The Act applies to employers of 15 or more employees. The legislation also proposed to apply the same prohibitions to all contractors and subcontractors of the state and political subdivisions, regardless of the number of employees.
Had this unnecessary, flawed, unbalanced revision of public policy been enacted, individual employees would have had license in the workplace to be as open, aggressive, outspoken, braggadocios and politically and socially active regarding sexual conduct outside the context of marriage between a man and a woman as they would want to be. Employers would have been subject to coercive authority of the state to penalize any judgment or decision about such conduct, including sexual lifestyles contrary to the employer’s deeply held convictions.
Both the Omaha World Herald and the Lincoln Journal Star repeatedly reported that the proposed protection for “sexual orientation” and “gender identity” would not have applied to employment by religious organizations. That was incorrect, inaccurate reporting; it continued even after the misinformation was pointed out to the reporters.
In fact, for purposes of excluding religious organizations (other than educational institutions) from any provisions of the Fair Employment Practices Act, LB 485 would have relied upon current law, section 48-1103(1) of the state statutes. That law, enacted in 1965 to model the federal Civil Rights Act of 1964—decades before “sexual orientation” and “gender identity” were even contemplated—does not exclude religious entities from the FEPA altogether, but only “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on…of the (entity’s) religious activities.”
The law permits religious entities to make judgments or decisions on the basis of religious affiliation (but only as applied to religious activities); the permission does not extend to any of the other protected categories, e.g., race, color, sex, disability, marital status or national origin; nor would it extend to “sexual orientation” or “gender identity” as proposed by LB 485. There is no sound reason to think that under the FEPA as proposed to be amended by LB 485 the Equal Employment Opportunity Commission would not have had jurisdiction or authority to take action against a religious organization on a complaint of discrimination based upon sexual orientation or gender identity.
The state senators whose votes against cloture led to the appropriate demise of LB 485 were the following: Dave Bloomfield (Hoskins), Lydia Brasch (Bancroft), Tom Carlson (Holdrege), Mark Christensen (Imperial), Tommy Garrett (Bellevue), Tom Hansen (North Platte), John Harms (Scottsbluff), Charlie Janssen (Fremont), Jerry Johnson (Wahoo), Bill Kintner (Papillion), Tyson Larson (O’Neill), Beau McCoy, John Nelson, Pete Pirsch, Jim Smith (all Omaha), John Murante (Gretna), Jim Scheer (Norfolk), Ken Schilz (Ogallala), Les Seiler (Hastings), Kate Sullivan (Cedar Rapids), Dan Watermeier (Syracuse) and John Wightman (Lexington).
