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29 Capital University Law Review 383 (2001)


There have been a number of legislative, caselaw and academic attempts at trying to resolve the conflict between the non-discrimination rights of gay and lesbian couples seeking housing and the free exercise rights of religious landlords who don't believe they should rent to unmarried couples. The academic writing often tries to resolve this conflict either by minimizing the harm to one of the parties (e.g., by categorizing the landlord's harm as merely commercial, or the tenant's as merely a problem of housing availability) or denying the relative importance of one of the party's rights. Others attempt a more positivist approach, arguing that the Free Exercise Clause or statutory demands or exemptions easily solve the problem. Most of these attempts presume that a liability approach is the only way in which such rights-vs-rights conflicts can be resolved: i.e., one party's rights are superior, entitling him or her to a full panoply of remedies. With a hotly contexted public moral issue, however, an all-or-nothing civil rights liabilities approach may exacerbate cultural conflict rather than moving society toward resolution. Exploring the gradually changing remedies approach of the Fair Housing Act as a possible model, this article argues that, in the early stages of recognizing the rights of gay/lesbian couples to non-discrimination in housing when such rights remain contested, awarding the right to the couple while significantly limiting their remedies is the best way to encourage dialogue in the midst of severe difference and eventually social resolution of these issues.