New ConLaw Casebook--Is This Appropriate?
DavidEBernstein at aol.com
DavidEBernstein at aol.com
Wed Mar 1 12:54:23 PST 2006
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
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
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.
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
David E. Bernstein
University of Michigan School of Law
George Mason University School of Law
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