As a follow-up to my last post, today’s Times has a story on a memo written by Elena Kagan while she was in the Clinton administration on a California case involving the religious freedom of landlords to refuse to rent apartments to unmarried cohabiting couples. Kagan wrote that the court held that the state housing law in question did not “substantially burden” the landlord’s religion “because she could earn a living in some other way than by leasing apartments.”
“The plurality’s reasoning seem to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,” Ms. Kagan wrote. “Taken seriously, this kind of reasoning could strip RFRA of any real meaning.”
I tend to share Kagan’s views on this case. Others do not, of course. Regardless, it’s an interesting if minor data point.
Posted by Paul Horwitz on June 11, 2010 at 12:38 PM