[guest post by Dana]
Further and onward we go into this brave new world. And though we may momentarily stumble as we try to keep our balance under the sweeping wave of progress, we have not arrived here with disbelief or shock, but rather with a hard, savvy understanding of precisely what is happening and why it is happening. Because we have not been caught off guard or unaware. We have all along been watching the shift in the cultural and political landscape and pushing back in resistance. This especially as we have always known where that long trail of bread crumbs, the size of red flags which mark the leftward path of our nation, would lead. Admittedly, the opposition’s tactics may be surprising but the outcome certainly isn’t. So here we are. We have entered the mothballing season of the “reasonable man”.
With that, the legal elite continue apace in this mad season of progress:
A group of judges, attorneys and law professors recently voted to make tapping the shoulder of a Muslim woman to ask for directions potentially punishable in a U.S. court of law. This group, the American Law Institute, is an elite private organization that includes the justices of the U.S. Supreme Court, the chief judges of the U.S. Courts of Appeal and the highest state courts, most law school deans, some law professors and private attorneys.
Here is the background. The American Law Institute periodically issues “restatements” that attempt to codify the common law—but also shift the law in the direction the institute wants it to go. In 1964, for example, the institute’s Restatement of Torts established the liability of sellers to consumers for defective products regardless of fault. At the time only 16 states had taken this position. Now it is the law everywhere.
The Arizona Supreme Court has ruled that American Law Institute restatements are law in all subsequent decisions when there is no state statute to the contrary. The U.S. Supreme Court on average cites the institute at least once a month.
On May 20 the American Law Institute approved, by a very close vote, significant changes to the section of its new Restatement of Torts dealing with assault and battery. The changes will have far-reaching, and extremely troubling, social and legal ramifications—including favoring some religious beliefs over others.
The institute’s restatement defines the tort of battery as any contact with another person that “offends a reasonable sense of personal dignity” or—the new addition—contact that is highly offensive to another person’s “unusually sensitive sense of personal dignity, and the actor knows that the contact will be highly offensive to the other.”
To be a battery, the contact or touching must be offensive. That’s to exclude the occasional bumps we experience walking through a crowd. And the law always measured what constituted an offense based on the views of a reasonable person. That way a judge can dismiss a frivolous claim. However, the American Law Institute now proposes that personal contact is a tort if the defendant knows that it will be offensive to someone who is “unusually sensitive.”
The writer explains the danger this presents:
[S]uppose a patient tells a hospital, “I don’t want any Jewish doctors or nurses to touch me.” An earlier draft of the institute’s restatement said, “if the patient had demanded that she not be touched by a nurse or doctor of a particular race or religion, the hospital and medical staff have no obligation to respect that preference” because it violates “public policy.” But the final accepted draft eliminates the words, “or religion.”
So if a hospital does not obey a religious bigot’s demand, it risks a lawsuit, jury trial and punitive damages. And insurance does not often cover a battery. Thus if the trial takes place in a community with a significant Muslim population, the hospital will be more likely to settle—an outcome that will encourage religious bigotry.
Further, how this “restatement” would favor one religion over the other:
Consider John Doe, waiting at a bus stop, who taps a woman wearing a Muslim veil on the shoulder to get her attention and ask for directions. The institute’s restatement suggests that Mr. Doe might be liable for committing battery. A jury might find that a reasonable person would know that males aren’t supposed to make bodily contact with females not in their family. But if the woman touches Mr. Doe, she’s not liable, because he follows a different religion or no religion at all.
As a result, the change would be enormous:
In North Carolina, an employee sued his supervisor for assault and battery because the supervisor, in his own office, smoked a cigar. There was no company rule against that, but the employee had warned the supervisor that he found cigar smoking “obnoxious.” A state court dismissed the case (McCracken v. Sloan, 1979) because the employee’s “mental distress” was not enough for assault and battery. The American Law Institute says: “This case would very likely result in liability today.”
A final warning:
No court ever has adopted the concept, as a widely used casebook put it, that an individual with an “abnormally acute sense of personal dignity” could make another liable for battery. Nor has the American Law Institute—until now.