New ConLaw Casebook--Is This Appropriate?
DLaycock at law.utexas.edu
Wed Mar 1 19:03:43 PST 2006
David Bernstein writes: "and it also will in states that still use the compelling interest test for free exercise cases."
Which is to say, a majority of states, when you count both state RFRAs and interpretations of state free exercise clauses.
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
From: conlawprof-bounces at lists.ucla.edu on behalf of DavidEBernstein at aol.com
Sent: Wed 3/1/2006 8:19 PM
To: forwarding for fcross; nebraskalawprof at yahoo.com; conlawprof at lists.ucla.edu
Subject: Re: New ConLaw Casebook--Is This Appropriate?
As I wrote to someone off-list, I've never seen a case where a landlord argues "I don't like gays because my religion tells me not to, so I won't rent to them." I've seen several cases where landlords claim that their religion tells them they can't rent to gays (or cohabitating straights, for that matter) because of fornication concerns. Thus, if the students are to discuss a case in terms of how it will actually come before a court, the formulation in the problem is not only unnecessarily inflammatory, it disserves the students' education. I suppose it's theoretically possible to come up with a religious rationale as to why a landlord wouldn't rent to blacks or Jews, but I've never heard of such a case arising.
The fornication angle, moreover adds an important dimension to the case. Does the landlord rent to cohabitating heterosexual couples but not gay couples, even though both are engaged in fornication? One can then argue that the landlord is just using his religious belief as a cover for invidious discrimination against gays. Same thing if the landlord will rent to single heterosexuals, but not to single gays. Under Smith, none of this may matter, but in many contexts post-Dale, it will, and it also will in states that still use the compelling interest test for free exercise cases.
In a message dated 3/1/2006 7:28:33 PM Eastern Standard Time, crossf at mail.utexas.edu writes:
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.
David E. Bernstein
University of Michigan School of Law
George Mason University School of Law
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