Religious Torts: Applying the Consent Doctrine as Definitional Balancing

Abstract

Tort actions based on religiously motivated conduct necessitate delicate balancing between the governmental interest in providing redress to injured plaintiffs and the Constitution’s guarantee of religious free exercise. This Comment argues that when plaintiffs were members of defendant churches at the time of the alleged tort, a definitional balancing standard is the most appropriate means of measuring the competing interests. The proposed standard is based on the traditional tort law consent doctrine. The standard’s definitional element shifts the burden of proving lack of consent to member/plaintiffs.

Keywords: tort, Constitution, religion, religious, church, free exercise, consent, litigation, First Amendment