Tort law’s intersection with the rights of members of minority and historically oppressed groups is complicated, and its status as an instrument for the advancement of rights tenuous. Tort law embraces a “reasonable person” analysis, with liability circumscribed by the attitudes, impressions, beliefs, knowledge, and understanding of the fictional average member of “the community,” and reaches for majoritarian sensibilities to regulate human interaction. Tort law is also shaped by the common law process, and can be slow to evolve to changes in social structures, patterns of human relations, and the needs of members of growing minority groups that have not achieved dominant status. On the other hand, because of the evolving content of reasonableness and the common law process, tort law is equipped to change as society changes. This paper considers how tort law responded to a distinctive and powerful exogenous shock—the Supreme Court’s landmark 2015 decision prohibiting the restriction of same-sex marriage, Obergefell v. Hodges.
a. Harold A. Anderson Professor of Law and Values, the University of Toledo College of Law.
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