New ConLaw Casebook--Is This Appropriate?

Frank Cross crossf at
Wed Mar 1 16:27:35 PST 2006

Well, it comes down to the appropriate baseline.  There has certainly in 
the past been religious beliefs that would have prevented renting to blacks 
or Jews.  Would it have been appropriate for a book at that time to refer 
to the landowners' beliefs as racist or anti-Semitic?  In retrospect, sure.

I probably would have eschewed using the term homophobic as unnecessarily 
inflammatory and distracting.  But there is certainly a non-trivial 
argument that contemporary discrimination against gays is parallel to the 
past discrimination against blacks or Jews.  The author gets to make that 
call, along with the adopter.

At 04:33 PM 3/1/2006, Rick Duncan wrote:
>I think David's formulation of the problem is both fair and neutral.
>The legal problem under Smith & Lukumi is whether the housing 
>discrimination laws are generally applicable? If so, they can be enforced 
>even against a landlord whose violation is based upon sincerely held 
>religious beliefs. If not--if for example the law contains exemptions that 
>render it substantially underinclusive and thus not generally 
>applicable--the religious landlord will have a free exercise claim that 
>triggers strict scrutiny.
>There is no more need to describe the landlord's religiously motivated 
>conduct as "homophobia" than there is to use slurs to describe the sexual 
>conduct of the tenants (imagine the reaction to a casebook that called the 
>tenants "blankety blanks").
>I guess I see this problem as the authors using a slur merely for the sake 
>of using a slur--i.e. as intenti! onal disrespect for people of faith who 
>sincerely believe in traditional sexual morality. I like a lot of things 
>about this casebook, but I could never adopt it, because I respect my 
>students too much to allow many of them (not to mention their parents, 
>friends, and loved ones) to be called names by casebook authors who know 
>nothing about them.
>I often use a similar example--involving a religious pacificist who 
>refuses to rent commercial real estate to a gun dealer because he does not 
>wish to facilitate the sin of  violence--to help students understand the 
>crisis of conscience many religious landlords face when the law requires 
>them to facilitate sexual conduct they believe is sinful. Is the pacifist 
>landlord "a gunophobe?" Of course not. He is merely someone who is trying 
>to avoid facilitating what he considers to be sinful conduct. Students who 
>boycotted corporations that did business in the old South Africa should 
>also b! e able to understand how a landlord might wish to avoid 
>facilitating certain kinds of "sinful" conduct of others.
>Frankly, I am shocked that the editors at Aspen allowed the 'homophobe" 
>slur to slip through he editorial process.
>Cheers, Rick Duncan
>DavidEBernstein at wrote:
>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 
>religi! ous 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 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
>George Mason University School of Law
>Rick Duncan
>Welpton Professor of Law
>University of Nebraska College of Law
>Lincoln, NE 68583-0902
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Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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