New ConLaw Casebook--Is This Appropriate?
7barksda at jmls.edu
Wed Mar 1 19:21:04 PST 2006
I don't have a problem with your revisions as an additional hypo - but I
do think that it changes the original hypo considerably. If a landlord
is against fornication in general - then his policy is not really a
policy against homosexuals - so this is really different problem. You
are right, if the only fornicators he cares about are gay, then there
clearly a strong case that he is just anti gay.
But I think the problem as described wanted to focus on the landlord who
has a policy of not renting to gay people because he is morally (here on
religious grounds) opposed to homosexuality. Another example would be a
landlord who is opposed to drinking (alcohol) on religious grounds
requiring a dry house.
As to the use of the term "homophobia" - I agree that from the
perspective of the religious person who believes that homosexuality is a
sin, "homophobia" is not descriptive. However, from the perspective of
the gay person who can't rent the room, the landlord is homophobic,
regardless of the reason for his or her homophobia.
Of course, I agree that neutral language avoids this issue - but I am
not sure the casebook authors were necessarily insensitive by using the
language (assuming of course - that in their discussion of religious
freedoms, they are equally sensitive to the sensibilities of persons
with strongly held religious beliefs.
Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
DavidEBernstein at aol.com
Sent: Wednesday, March 01, 2006 8:20 PM
To: crossf at mail.utexas.edu; 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
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
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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