Can the Reasonable Person Be Religious? Accommodation and the Common Law

Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, many petitioners have argued, and many courts have accepted, that the existence of but one secular exemption eliminates the neutrality and general applicability of a law. As such, strict scrutiny is applied. For those who would prefer to return to the free exercise jurisprudence that predated Employment Division v. Smith, this result may seem welcome, even a victory. This Note, however, suggests that such an approach should raise concern.

This Note argues that this aggressive exemption free exercise theory requires the reasonable person standard of torts to accommodate parties’ religious beliefs. Many courts that have addressed the issue have found the same. This Note then surveys the three responses courts have taken to accommodate religious belief in tort law: the “objective” approach, “the reasonable believer” test, and the “case-by-case” method. Fundamental Free Exercise and Establishment Clause problems with the “objective” and “reasonable believer” approaches demonstrate the superiority of a “case-by-case” analysis. That any accommodation is required, however, should give pause.

It is not the specific contours of tort law that give rise to the required accommodation, but rather the heavily individualized decision-making process that tort law uses. Individualized decision-making is not a symptom, but rather a feature, of the common law. As such, finding a required religious accommodation to tort law has broad ramifications for our standards-based legal system. This Note argues that this outcome suggests a fundamental flaw with the Court’s aggressive exemption free exercise jurisprudence.


Marbury v. Madison teaches us that the judicial branch has the power to review the constitutionality of governmental acts.1.5 U.S. (1 Cranch) 137, 177–78 (1803).Show More This power of review comes up most frequently when congressional or state legislative acts run afoul of the Constitution. But what happens when someone claims that the common law, a product of judges and purportedly applied uniformly to all citizens, burdens a constitutional right? Can people demand exemptions from a tort standard solely because of a claim of individualized burden? Consider the following scenarios:

In May 1991,2.Verdict Form, Williams v. Bright, 632 N.Y.S.2d 760 (N.Y. Sup. Ct. 1995) (No. 17261/92), 1994 WL 16200195.Show More Gwendolyn Robbins was traveling through upstate New York with her father when he swerved their vehicle off the road and into a culvert at sixty-five miles per hour. Mrs. Robbins, severely injured in the crash, was rushed to a local hospital for surgery. Once there, however, she learned that proper treatment would require blood transfusions. She refused on grounds that it would violate her religious beliefs as a Jehovah’s Witness. In the face of increased medical expenses and a reduced quality of life, Mrs. Robbins remained steadfast in refusing surgery. She later pressed for damages and the cost of continuing care in a negligence suit against the owner of the car.3.Facts consolidated from trial and appellate court decisions. Williams v. Bright, 632 N.Y.S.2d 760, 762–63 (N.Y. Sup. Ct. 1995), rev’d in part, 658 N.Y.S.2d 910, 911 (N.Y. App. Div. 1997).Show More

In August 1963, sixteen-year-old Ruth Eider was in a chairlift traveling down a mountain when the operator negligently stopped the lift. It was late afternoon and she and her nineteen-year-old male companion were stuck. After fifteen minutes of yelling, it became clear that no one was coming to help. Raised in an ultra-orthodox Jewish household, Ms. Eider had been taught that spending the night with a man in a place inaccessible to a third party was an overwhelming moral sin. Facing this prospect, Ms. Eider jumped from the lift. She eventually sued the State of New York (the operator of the mountain) for the cost of the injuries sustained in the jump.4.Friedman v. State, 282 N.Y.S.2d 858, 859–63 (N.Y. Ct. Cl. 1967), modified, 297 N.Y.S.2d 850 (N.Y. App. Div. 1969).Show More

In March 2006, Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. Shortly thereafter, his father scheduled a funeral to commemorate his life for close friends and family. Members of the Westboro Baptist Church, a fundamentalist Christian sect, used this funeral as an opportunity to highlight their condemnation of homosexuality. They protested outside the ceremony carrying signs with slogans like “Thank God for dead soldiers,” “God hates you,” and “Semper fi fags” to spread their message. Mr. Snyder’s father sued the Church for intentional infliction of emotional distress (“IIED”). In response, the Westboro Baptist Church claimed complete immunity from tort liability on both free speech and free exercise of religion grounds.5.Snyder v. Phelps, 533 F. Supp. 2d 567, 569–70 (D. Md. 2008), rev’d, 580 F.3d 206 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011). The district court dismissed the free exercise claim, distinguishing statutory and criminal restrictions on religious practice from other types of restrictions. Id. at 579. This Note suggests that the case law and logic of free exercise jurisprudence do not support such a distinction.Show More

Although these three incidents, separated by over four decades, would seem to have little in common, the tort suits they spawned had to grapple with a question that has beguiled courts for years: In determining culpability, to what extent can tort law be modified to accommodate the strongly held religious beliefs of a party?6.The first court to address this question was the Supreme Court of Errors of Connecticut in Lange v. Hoyt,159 A. 575, 577–78 (Conn. 1932). Understanding the difficulty of the issues raised, “[n]ot surprisingly, the Connecticut trial court ducked the issue and the Connecticut Supreme Court (of Errors as it then was) affirmed the ducking” by allowing the jury to consider that the plaintiff’s religious beliefs were widely held in determining reasonableness. Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem 47 (1985). Modern courts have similarly struggled with this question. SeeMunn v. S. Health Plan, Inc., 719 F. Supp. 525, 526 (N.D. Miss. 1989) (“This wrongful death case [involving a decedent who refused a blood transfusion on religious grounds] presents some of the most difficult questions which this court has ever been asked to resolve.”); Rozewicz v. N.Y. City Health & Hosps. Corp., 656 N.Y.S.2d 593, 594 (N.Y. Sup. Ct. 1997) (“[T]he issues before me dealing with the deceased’s refusal to accept blood transfusions raise[] some of the most difficult legal issues I have been faced with during my years on the bench.”).Show More That is, when, if ever, can religion be a valid justification for ignoring the purportedly generally applicable standards of the common law?

At first glance, the answer to that question would seem to be never. The basic command of tort law is to “be reasonable.”7.“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.” Restatement (Second) of Torts § 283 (Am. L. Inst. 1965).Show More Reasonableness permeates the legal system in one form or another, a lodestar which guides court decision-making,8.See Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2135–46 (2015) (detailing the many permutations of reasonableness).Show More and is determined “objectively.”9.See Vaughan v. Menlove (1837) 132 Eng. Rep. 490 (C.P.) (discussing the importance of an objective standard of reasonableness and rejecting inquiry into subjective motivation).Show More This would appear to foreclose any consideration of parties’ subjective religious motivation. Over the years, however, a number of courts and commentators have realized that the answer is not that simple, particularly when “objective” reasonableness conflicts with the Religion Clauses of the First Amendment.10 10.Seesupra note 6; see, e.g., Jeremy Pomeroy, Note, Reason, Religion, and Avoidable Consequences: When Faith and the Duty To Mitigate Collide, 67 N.Y.U. L. Rev. 1111 (1992); Note, Medical Care, Freedom of Religion, and Mitigation of Damages, 87 Yale L.J. 1466 (1978) [hereinafter Medical Care].Show More In response, these courts and commentators have wrestled with a framework for accommodating religious belief in reasonableness calculations. Most of these approaches, however, arose well before the Supreme Court’s modern free exercise jurisprudence came into focus in Employment Division v. Smith.11 11.Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872 (1990).Show More Consequently, they do not deal with current developments in First Amendment law. Furthermore, they fail to grapple with the serious Establishment Clause concerns raised by exempting individuals from complying with a reasonableness standard.12 12.See Anne C. Loomis, Thou Shalt Take Thy Victim as Thou Findest Him: Religious Conviction as a Pre-Existing State Not Subject to the Avoidable Consequences Doctrine, 14 Geo. Mason L. Rev. 473, 505–09 (2007) (purporting to address Establishment Clause concerns but failing to consider the full gamut outlined infra in Part II).Show More In our common law system, which is built upon a similar edifice of individualized reasonableness determinations, these considerations could reverberate broadly. This Note will attempt to address these issues.

Part I will argue that the Supreme Court’s First Amendment jurisprudence after Smith not only allows, but requires, religious accommodation where application of the reasonable person standard burdens sincerely held religious belief. In reaching this conclusion, this Part will first show that the reasonable person standard lacks the neutrality and general applicability required under Smith and its Free Exercise Clause companion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.13 13.508 U.S. 520 (1993).Show More This Part will then demonstrate that a lack of neutrality and general applicability can and will undermine any compelling interest the state could put forth in application. Thus, a religious adjustment is necessary.

Part II will discuss the three approaches that courts have taken to adjust the reasonable person standard for sincerely held religious belief. It will first address the “objective” test, which purports to reject consideration of subjective thought and prohibits courts from including religious belief in reasonableness determinations. The requirement of some accommodation under Smith and Lukumi makes this approach unworkable. This Part will then address the “reasonable believer” test, in which courts treat religion as an immutable characteristic of the party, similar to the “eggshell skull” rule in torts. It will reject this test on both Free Exercise and Establishment Clause grounds. Finally, this Part will discuss the “case-by-case” approach in which religion is one of many equally weighted factors used to determine the reasonableness of an action. It will contend that this approach alleviates some of the Free Exercise and Establishment Clause problems of the “reasonable believer” standard and is the best option given the demands of the Supreme Court’s First Amendment jurisprudence.

In the admittedly small arena of “failure to mitigate damages” cases, this outcome may seem palatable and even appropriate. But the implications of finding a required adjustment are far-reaching. If something as generic as a reasonableness standard is susceptible to required religious accommodation, what other purportedly generally applicable laws or standards are similarly vulnerable? Take, for example, Snyder v. Phelps, the Westboro Baptist Church case discussed above.14 14.See supra text accompanying note 5.Show More Although the Supreme Court decided the issue in the Church’s favor on free speech grounds,15 15.Snyder v. Phelps, 562 U.S. 443, 461 (2011).Show More suppose, instead, that it had tackled the free exercise question.

Should the tort of IIED be subject to required religious accommodation because it has exemptions for speech protected under the First Amendment’s Free Speech Clause? An aggressive exemption strategy to religious accommodation under Smith and Lukumi may suggest that the answer is yes. That outcome seems unsettling. It also begs for clarity on what laws or standards, if any, are so fundamental as to avoid required religious accommodation. This Note uses the finding of a required religious accommodation to the reasonable person standard to suggest the fundamental inadequacy of the Court’s aggressive exemption jurisprudence under the Free Exercise Clause.