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liberty

February 23, 2017

To the Members of the Nebraska Legislature:

LB 173 is substantially flawed in many aspects. This paper analyzes three legal flaws, any of which
should be sufficient reason to defeat the bill.

1. No Protection for any Church Against Adverse Effects, Much Less for Any Other Nebraskan.

There exists no religious exemption whatsoever in the LB 173 itself.

The current religious exemption in the Nebraska Fair Employment Practice Act also would provide no
protection for religious organizations. It only exempts religious entities employing individuals of a
particular religion to perform work connected with its religious activities. Neb. Rev. Stat. 48-
1103. Courts consistently have ruled this only protects the hiring of co-religionists. For instance, a
Catholic school in Nebraska is allowed to hire only Catholics to teach religion class. But the school
would be coerced under this law to hire and retain an otherwise qualified, openly gay or transgendered
Catholic to teach that same religion class. And it would be coerced to hire an otherwise qualified
transgendered person of any religion to sit at the front desk of an elementary school or for any other
non-religious activity.

Aside from religious organizations, there obviously is no intent whatsoever in LB 173 to protect other
Nebraskans who operate their businesses in accordance with their religious or moral beliefs. These
Nebraskans are intended to be coerced to knuckle under to a trending ideology.

LB 173 (1) also applies to public accommodations (essentially, all businesses providing goods or
services to the public). Under Section 1, cities and towns can force Nebraska businesses such as
florists, photographers and bakeries with 15 or more employees to participate in gay weddings. This
coercion already has happened repeatedly in several other states that have adopted this coercive
measure.

At the Judiciary Committee hearing on February 22, 2017, Sens. Morfeld and Pansing Brooks
repeatedly stated either that public accommodations was not at all involved in LB 173 or, when it
was pointed out to them, that Section 1 would be removed. Section 1 was in the verbatim versions of
these bills introduced by both senators in 2015 and 2016 (LB 586), yet it was not in the previous 2013-
14 version (LB 485). Since Sens. Morfeld and Pansing Brooks inserted the public-accommodations
section for the first time in LB 586, it intentionally has been included now for three straight years, and
so public accommodations must now be dealt with unless that section is removed. Conscientious
objectors in Nebraska currently are threatened by it.

www.thomasmoresociety.org
Injustice anywhere is a threat to justice everywhere. Dr. Martin Luther
King
 www.thomasmoresociety.org
Injustice anywhere is a threat to justice everywhere. Dr. Martin Luther
King
 Page 2 of 2

2. Law Suits are the Inevitable Results of Creating New Protected Classes.

Who could state with a straight face that creating two new protected classes would not lead to
numerous new law suits? Law suits are the expected consequences of new protected classes.

Equal Omaha1 campaigned for the Omaha Ordinance in 2012, writing, The Williams Institute [a pro-
LGBT research group] found that complaints of discrimination on the basis of sexual orientation were
filed at an average rate of three to four per year for every ten thousand employees. 2 The total
nonfarm
employees in the state of Nebraska, as estimated by the Federal Reserve, was 1,026,200 as of
December, 2016.3 So if Equal Omaha and the Williams Institute are correct, we can expect
approximately 300 to 400 new law suits per year in Nebraska up to 4,000 new law suits in the next
decade. And that only considers sexual-orientation employment lawsuits, without counting
employment lawsuits based on gender identity or law suits involving public accommodations with
either protected class. That is an explosion of litigation, sure to burden Nebraska businesses.

Supporters of LB 173 repeatedly alleged at the Judiciary Committee hearing that there have not been
an overwhelming number of lawsuits filed due to the Omaha Ordinance. This is no surprise: city
ordinances are not widely used as the basis for law suits. Statewide laws routinely are.

3. Poorly Drafted Definitions are Likely to Make LB 173 Unconstitutional.

LB 173 defines sexual orientation and gender identity as actual or perceived. (20) What does
perceived mean here? Whose perception: the employers; the job applicants or employees? LB
173 does not say. That means LB 173 probably is unconstitutionally void for vagueness. But a
Nebraska business owner will have to litigate to be sure and will have to burn through a lot of
aggravation and attorney fees to prove the point.
Sponsors of LB 173 responded at the Judiciary Committee hearing that LB 173 would apply only when
the SO/GI individuals self-identify as such to employers. LB 173 does not say that at all. Courts will
consider the plain language of the LB 173, not the sponsors interpretation to the contrary. One
supporter also repeatedly claimed at the hearing that using the word, perceived, somehow is
considered best practice (a term which also was left undefined). Using a vague, undefined term
could never be a best practice in legal drafting.

Matthew F. Heffron
Thomas More Society

1 Now known as Equal Nebraska, funded by Human Rights Campaign, the largest LGBT advocacy and political lobbying organization in the United States.
2 http://voiceomaha.org/cms/wp-content/uploads/2012/02/EEO-FAQs-FINAL.pdf (last visited 2-22-17)
3 http://research.stlouisfed.org/fred2/series/NENAN (last visited 2-22-17)

www.thomasmoresociety.org
Injustice anywhere is a threat to justice everywhere. Dr. Martin Luther
King