The Scholarly Commons

 

The Outrageous God: Emotional Distress, Tort Liability, and the Limits of Religious Advocacy

Jeffrey Shulman, Georgetown University Law Center


This Faculty Working Paper has been updated and posted within the Georgetown Law Faculty Publications series in the Scholarly Commons. It is currently available at http://scholarship.law.georgetown.edu/facpub/459/

Abstract

When Matthew Snyder died fighting for his country, his memory was celebrated, and his loss mourned. The Westboro Baptist Church conducted a celebration of a different kind by picketing near Matthew’s funeral service. The church held signs that read, “You are going to hell,” “God hates you,” “Thank God for dead soldiers,” and “Semper fi fags.” In the weeks following the funeral, the church posted on its website, godhatesfags.com, an “epic” entitled “The Burden of Marine Lance Cpl. Matthew Snyder.” Matthew’s burden, as the church saw it, was that he had been “raised for the devil” and “taught to defy God.” Matthew’s father, Albert Snyder, brought a civil action against the Westboro Baptist Church in federal district court, asserting a claim for intentional infliction of mental and emotional distress (among other causes of action). He was awarded $10.9 million in compensatory and punitive damages.

That judgment, as such judgments against religious entities are wont to do, occasioned protest from First Amendment advocates concerned that, under the open-ended standard of outrageousness, “[l]iability easily ends up turning on how much juries condemn the speaker’s viewpoint.” Cautioned by the Supreme Court that “‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it,” courts hearing outrage suits are on guard against breaches of objectivity that would disadvantage minority religions. However, to avoid the appearance of religious viewpoint discrimination, judges often resort to fine, almost scholastic, distinctions between what is secular and what is religious; between what is central to a religion’s belief and practices and what is theologically insignificant; and, even more tenuously, between what is belief and what is conduct. This is caution to a fault. These distinctions have produced a results-oriented jurisprudence that, paradoxically, involves the courts in precisely the kind of entanglement with religious affairs they seek to avoid, and does so while leaving ill defined the threshold that separates protected religious advocacy from religiously motivated conduct subject to tort liability.

This essay argues that emotional distress claims are well suited to suggest the outer limits of civil tolerance for religious advocacy. Such tort suits serve socially valuable punitive and prophylactic functions, providing vulnerable individuals with a remedy against the most offensive and intrusive forms of religious conduct. That protection need not come at the cost of constitutional privilege for religious entities. Where no intra-church dispute is involved, the only question a court is obligated, and entitled, to consider is whether the religious entity’s conduct was of a type that no decent society should tolerate. Tort liability is not premised on the judgment that a religious belief is somehow “fundamentally flawed” or not worthy of constitutional protection. To the contrary, whether religious advocacy was meant to and did inflict severe emotional distress is a question that can be adjudicated by the neutral and generally applicable principles of tort law.