New ConLaw Casebook--Is This Appropriate?

[DavidEBernstein at aol.com]

Well, the phrase "homophobia" literally means "fear of" homosexuals, which 
doesn't make much sense in most contexts where the word is used, unless you 
accept some rather deterministic Freudianism. It's taken on the broader meaning of 
"someone who strongly dislikes homosexuals."   I suppose in that latter sense 
"homophobia" could be grounded in religious belief, though if someone is 
opposed to renting to a homosexual couple on religious grounds, they are not 
necessarily "homophobic" in either sense.  

A much better way of phrasing the problem to avoid the issues raised by Rick, 
and also making it a far better problem, would have been to follow the actual 
facts of several cases I've read, and ask, "May a religious landlord, who 
believes that the teachings of his religion prohibit him from aiding and abetting 
fornication, including by homosexuals, be prohibiting from renting to a 
homosexual couple? Would it make a difference if the potential renter was an 
individual gay man or woman?  Would it make a difference if the refusal to rent 
under either circumstance was not advocated by the leaders of the landlord's 
religious group, but was the landlord's own interpretation of his religious 
obligations?"

In a message dated 3/1/2006 3:38:45 PM Eastern Standard Time, 
nebraskalawprof at yahoo.com writes:
I recently received received a copy of a new con law casebook--Weaver, 
Friedland, et al--and, like I always do, I immediately turned to the back of the 
book to check on its Free Exercise coverage. I was pleasantly surprised to see 
Lukumi covered as a principal case, but was shocked when I turned to the notes 
following Lukumi and found this on page 1244::

"4. The Homophobic Landlord. May the state prohibit a homophobic landlord, 
whose homophobia is grounded in his religious beliefs, from discriminating in 
property rentals?"

It is a good problem, but I have to say that equating reasonable and 
widely-held religious beliefs about sexual morality with a psychological or moral 
disorder amounts to a religious slur that I believe creates a hostile environment 
in the classroom for many Jewish, Catholic, Protestant, Islamic, and other 
students of faith.

I am not trying to stir up a debate about gay rights or same-sex marriage. I 
think there are reasonable people on both sides of those issues.

I am merely wondering whether I am alone in thinking that this problem 
unnecessarily uses slurs in the place of neutral language to describe the free 
exercise claim of the landlord. 

Rick Duncan





Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902



David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste
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