New ConLaw Casebook--Is This Appropriate?

Rick Duncan nebraskalawprof at
Thu Mar 2 18:14:29 PST 2006

Fred Phelps is loathesome, and the gay/AIDS activists who invaded St.Patrick's Cathedral, disrupted Mass, spit out communion wafers, and called Cardinal O'Connor a "homophobe" and a "Nazi" are also loathesome. (See the documentary Stop the Church for 90 minutes of this loathesome attack on the Church and religious liberty).
  But a landlord who refuses to facilitate sexual sins on his own property is not "less loathesome." He is not at all loathesome. He is a person of good will and deep faith.
  The authors of this casebook have a right to use whatever slurs they wish to use to describe people of faith. And con law professors have a right (perhaps even a duty to their students) to avoid adopting a book that uses such religious slurs.

David Cruz <dcruz at> wrote:
  On Wed, 1 Mar 2006 DavidEBernstein at wrote:

> Frank,
> 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." [snip]

Evelyn Thomas was not Fred Phelps, but I think it also does no one a
service to pretend that the Fred Phelps of the world do not exist. When I
went to Cambridge to talk to people when the very first finally officially
sanctioned marriages of same-sex couples were performed, folks from the
Westboro Baptist Church ("God Hates Fags") were out in force. They are
just as entitled to raise free exercise defenses to antidiscrimination
laws as are less loathesome people of faith.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071

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  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

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