This is a must-read piece in the Wall Street Journal. It’s a fascinating insight into a little-known aspect of the American legal system, and an exposé on a very dangerous recent legal invention – allowing the “unusually sensitive” to sue for being offended:
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.
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.”
This is dangerous. To understand why, suppose 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.