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The Religious Beliefs of Tort Victims: Religious Thin Skulls or Failures of Mitigation?

Published online by Cambridge University Press:  13 April 2016

Marc Ramsay
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A Jehovah’s Witness suffers severe injuries in an automobile accident, and these injuries result from another person’s negligent driving. The victim refuses to accept standard medical treatment, which includes blood transfusions. Had she accepted standard treatment, the victim would have been returned to a near normal life. As a result of her decision, she now faces the prospect of life in a wheel-chair. Should the tortfeasor be held liable for the additional damages that result from the victim’s religious decision, or should the victim’s religious choice be treated as a failure of reasonable mitigation? I support the former option, arguing that the thin skull rule should be extended to include religious choices such as the refusal of blood transfusions. Our constitutional commitments to religious freedom and equality require us to treat these choices as reasonable ones, and this supports the notion of religious thin skulls. The argument provided here fits neatly with the structure of tort, and with the major Canadian precedents regarding the evaluation of victim behaviour.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 20 , Issue 2 , July 2007 , pp. 399 - 427
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Copyright © Canadian Journal of Law and Jurisprudence 2007

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References

I would like to thank the members of the CS-IVR who read and commented on an earlier version of this paper at our annual meeting in London, Ontario in 2005. In particular, I would like to thank Samantha Brennan, Nathan Brett, Susan Dimock, Dennis Klimchuk, Michael Milde, and Chris Tucker for their comments. Members of Acadia's philosophy and political science reading group also commented on the paper in the fall of 2006. I would like to thank Stephen Ahern, Paul Abela, Andrew Biro, Steve Maitzen, Greg Pyrcz, Ian Stewart, Anna Wilks, and Ian Wilks for their comments. Vaughan Black provided many helpful suggestions through e-mail discussion of the subject, and his comments, along with those of Dennis Klimchuk, convinced me to abandon certain lines of argument. Ken Cooper-Stephenson, Gary Davis, David Cheifetz, and Neil Foster provided helpful comments on relevant cases through the Obligations Discussion Group mailing list. I have also profited from discussing the subject of religious thin skulls with students Chris Graham, Patrick LeGay, Neil Foley, and Erin Wright. Patrick LeGay also provided research assistance. Finally, I would like to thank an anonymous referee from CJLJ for extensive critical comments and suggestions that have, I think, led to dramatic improvements in the quality of this paper.

1. This story is drawn from the facts of Williams v. Bright, 658 NY.S.2d 910 at 912 (App. Div. 1997), 230 A.D. 2d 548 [Williams].

2. Ibid. at 914.

3. Calabresi, Guido, Ideals, Beliefs, Attitudes, and the Law (New York: Syracuse University Press, 1986) at 47.Google Scholar

4. Williams, supra note 1.

5. Calabresi, supra note 3 at 22.

6. Ripstein, Arthur, Equality, Responsibility and the Law (New York: Cambridge University Press, 1999) at 128.Google Scholar

7. This does not rule out the possibility that losses to the victim’s projects should receive some consideration in the calculation of damages. Perhaps the victim should receive some compensation for the costs involved in changing his plans. What is clear is that this victim is not entitled to impose the costs of forgoing medical treatment on the tortfeasor. Weak perfectionism, which I describe below, precludes us from accepting the idea that the victim’s projects are of greater value than the victim’s life and health. So a victim who chooses his projects over his life and health will not be considered reasonable and his decision will not be treated as a thin skull. However, this does not entail that the costs to the victim’s projects have zero value in the calculation of damages; perhaps we should consider the value of what the victim loses by pursuing standard medical treatment. I cannot pursue this issue further here. I thank an anonymous referee for drawing my attention to this point.

8. Rescuers choose to intervene on behalf of tort victims, but the tortfeasors are still liable for the injuries that rescuers sustain in reasonable rescue efforts. Moreover, liability is not extinguished or capped at the point where a rescuer’s injuries exceed the extent of the injuries or losses faced by the initial victim. That the plaintiff’s actions can be described as matters of choice is the beginning of argument on this issue, not the end of it. Equality, Responsibility and the Law, supra note 6 at 126-27.

9. [1773] 95 E.R. 1124 (K.B.); Ripstein, supra note 6 at 129. A comparable principle was endorsed by the Supreme Court in Athey v. Leonati [1996] 3 S.C.R. 458 [Athey].

10. (1961), [1962] 2 Q.B. 405, [1961] 3 All E.R. 1159 [Smith].

11. Ibid.

12. Smith is sometimes said to stand for the idea that a tortfeasor is held liable for a foreseeable loss or injury even if that loss does not occur in a foreseeable manner. Death and serious injury was a foreseeable result of the employers’ poor precautions and safety measures, so it does not matter whether the particular manner in which Smith’s death resulted was foreseeable. My view is that the initial injury, the burn, was foreseeable and that the manner in which it occurred was also foreseeable. The wall built to protect Smith was inadequate and, not surprisingly, spatter made it over the wall, burning his face. After this, it no longer matters whether the resulting cancer was foreseeable. What matters is whether the cancer results from the interaction of the burn with Smith’s thin skull (his susceptibility to cancer). Had the burn occurred in an utterly freakish manner, I would not necessarily think that Smith should be held liable for it, let alone Smith’s cancer.

13. Coltic v. Gray, [1983] 2 S.C.R. 2, aff’g (1981), 33 O.R. (2d) 356 at 387. Quoted in Linden, Allen M., Canadian Tort Law, 7th ed. (Markham, ON: Butterworths, 2001) at 354.Google Scholar

14. 282 N.Y.S2d. 858 (Ct. Cl. 1967), 54 Misc.2d 448 [Friedman].

15. I thank Vaughan Black and Dennis Klimchuk for pointing this out.

16. The intentional tort of wrongful confinement is actionable regardless of whether a victim suffers any material loss. Does this carry over to negligence? Whether negligent confinement/imprisonment is treated as actionable per se is unclear to me. I am not sure what lessons should be drawn from cases involving negligent actions by police or medical practitioners as these cases raise distinct questions about the fiduciary duties of these professionals. See Smith v. Iffla (1881), 7 V L.R. 435 S.C. (Vic.) and Heffey, Peter, “Negligent Infliction of Imprisonment: Actionable ‘Per se’ or ‘Cum Damno’?” (1983) 14 Melbourne U. L. Rev. 53 Google Scholar. Perhaps these professionals, owing to their special duties and authority, should be answerable for negligent confinement even where such confinement does not result in material loss. Should the same hold for other instances of negligent confinement or imprisonment?

In Sayers v. Harlow Urban District Council (1958), [1958] 1 W.L.R. 623 (CA.), a plaintiff who was negligently confined in a public toilet cubicle attempted to climb out and was injured returning to the ground after she abandoned the attempt. The plaintiff recovered damages for her injuries, although these were discounted by 25% because she was careless in her attempt to return the ground. The tortfeasor was held at least in part, responsible for the plaintiff’s attempt to escape the situation. I thank Gary Davis for drawing my attention to this case.

Even if negligent confinement is not actionable per se (there are no damages for the mere fact of confinement), the tortfeasor may be responsible for reasonable responses to the fact of imprisonment. Perhaps we should think of negligent imprisonment as engaging the thin skull rule even if we are not willing to provide compensation for the confinement alone. In any case, I don’t think one can rule out the possibility that Friedman’s situation provides for the activation of the thin skull rule.

17. As Neil Foster reminded me, the possibility that a plaintiff might jump from a ski-lift after being abandoned overnight may be regarded as foreseeable in a general way even if Friedman’s particular motivations for doing so are not foreseeable. If a plaintiff who simply panicked as a result of being abandoned for such a long time would have a cause of action against the lift-operators, then perhaps it doesn’t matter whether Friedman’s choice is considered reasonable. If the plaintiff should not be held responsible for “irrational” choices because of her strained circumstances, then perhaps Friedman should be compensated regardless of what we have to say about religious thin skulls. Moreover, as an anonymous referee points out, it might actually be prudent for one of the parties to jump from the ski-lift in order to avoid being left overnight in the dark.

18. An anonymous referee suggested that I use this example rather than a more fanciful one involving a hypothetical sun-worshipper.

19. Calabresi, supra note 3 at 62-64. Calabresi seems to use this line of argument to bolster support for a move to comprehensive public accident insurance. In such a system, both victims would be guaranteed compensation.

20. Ripstein, supra note 6 at 129.

21. Weinrib, Ernest, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 177–79 Google Scholar.

22. I thank Erin Wright for suggesting the comparison with subjective liability.

23. The Supreme Court of Canada has resisted what I called knee-jerk attempts to limit the extent of a tortfeasor’s liability. See the decision in Athey, supra note 9.

24. This assertion has an affinity with Ripstein’s account of reasonable foreseeability. According to Ripstein, a victim’s unreasonable behaviour does not become foreseeable just because it is statistically likely. Drunken victims cannot, by their persistent actions, generate a special duty of care that requires drivers to be on the lookout for drunken pedestrians. Likewise, those who fail to show reasonable attention to the security interests of other persons cannot make themselves reasonably foreseeable to their potential victims. Ripstein, supra note 6 at 111-13.

25. The first example was posed by an anonymous referee, the second by Ian Stewart.

26. It may be even more difficult for the aspiring musician to satisfy this requirement than it is for nature lover to satisfy it. The aspiring musician’s commitment to music may be apparent, but he must also show that that his pre-accident values dictate that this particular opportunity to study music is more important than his health. As important as this opportunity may be, the musician must still weigh this opportunity against all future opportunities for study and practice that will be compromised by his failure to accept timely medical treatment.

27. I use the term “perfectionism” because this notion is used to rank or evaluate conceptions of the good. The qualifier offered by “weak” takes account of the fact that the degree of perfectionism is quite minimal, requiring only that persons pursue goals that will allow them to maintain life and physical health over the long term.

28. The idea that weak perfectionism can intrude into the private law is, I think, the only way for us to make sense of the doctrine of pure victim contributory negligence. Pure victim negligence occurs when a victim takes actions that increase the risk of harm to himself, but not the risk of harm to other persons. Kenneth W Simons has questioned how we can make sense of the doctrine of pure victim negligence in terms of corrective justice. He asks how the victim’s self-regarding behaviour, which is the victim’s own business, can be used to eliminate or diminish a tortfeasor’s liability. Again, I think it is the public expectation that a victim show a certain level of care and concern for his own well-being—weak perfectionism—that makes sense of pure victim negligence. See Simons, Kenneth W., “The Puzzling Doctrine of Contributory Negligence” (1995) 16 Cardozo L. Rev. 1693.Google Scholar

Of course, weak perfectionism demands more than a certain level of attention to one’s health. It imposes its preference for life and health even where the victim’s risky or unhealthy actions are grounded in projects sincerely valued by the victim. The nature lover claims that he cannot find value in a life that cannot be lived in the wilderness, but weak perfectionism expects him to accept that a life—at least one that is not hampered by constant pain or other debilitating conditions—is better than no life at all. The Supreme Court of Canada’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519 is reflective of weak perfectionism. With the exception of Cory J., even the justices who sided with Rodriguez did not go so far as to recognize a constitutional right to suicide. They found that since able bodied persons enjoy a de facto right to suicide, the criminal ban on assisted suicide violated Rodriguez’s right to equality under s. 15. McLachlin J. (as she was then) used similar reasoning, although she chose to frame her arguments in terms of s. 7 of the Charter. Even the exceptions that Lamer C.J. (as he was then) would have applied to allow for Rodriguez’s assisted suicide were tailored to situations in which a person could demonstrate a severe and irreversible illness.

29. In a previous version of this paper, I argued that religious thin skulls are based on our recognition of Rawlsian disagreement about morality and the good. Victim choices that fall within the scope of reasonable disagreement about morality and the good should be treated as thin skulls. However, as an anonymous referee points about, both the nature lover and the aspiring musician seem able to describe their decisions as based in a sincerely held conception of the good. Thus, the argument for religious thin skulls must be based on a more constrained account of the scope of reasonable disagreement; the scope of reasonable disagreement about morality is constrained by the commitment to weak perfectionism. Ripstein appears to have something like this distinction in mind, as he notes that in religious thin skull cases the tortfeasor’s actions increase the costs of “conscience.”

30. Autonomy (comprehensive) liberals typically maintain that individuals should regard their moral or religious conceptions as subject to critical reflection and revision. At the same time, these liberals typically recognize (or at least pay lip service) to the idea that these commitments to do not change easily or overnight. For the most part, individuals must decide for themselves when critical reflection is appropriate. Moreover, there is no predicting whether or not an individual who engages in critical reflection will ever alter his standing commitments. See Kymlicka, Will, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989)Google Scholar at ch. 1. Thus, liberals move back and forth between two global perspectives on people’s commitments, subject to change and not subject to change. Unfortunately, these global perspectives do not encourage consideration of differences within standing commitments. There is some general sense in which liberals must regard all commitments as subject to change. However, we need to recognize that certain types of standing commitments are more resilient (perhaps more demanding) than others. There is a difference between my firm belief that a certain course of action is, for me, the most deeply fulfilling—or perhaps the only truly fulfilling—path in life and the belief that a certain type of action is proscribed because it either demeans my humanity or violates moral requirements that I regard as binding. Asking a person to forgo what he finds most fulfilling is not the same thing as asking him to do that which he regards as monstrous.

31. [1985] 1 S.C.R. 146 [Janiak].

32. [1958] S.C. (N.S.W.) 341 [Blackstock].

33. [1973] 1 NZLR 152 Ct. App. [Stephenson].

34. Ibid. at 168.

35. Ibid. at 161.

36. Both experts agreed that an unknown infection entered the plaintiff through the hand wound. However, while one doctor maintained that the victim’s subsequent disabilities were the product of neurological damage caused by the infection, the other maintained that the plaintiff’s disabilities resulted from an adverse psychological reaction to the wound infection, and related hospital time. It is not clear to me that the second opinion would be sufficient to ground a psychological thin skull argument consistent with the precedent set by Janiak. Stephenson, supra note 33 at 155.

37. An anonymous referee suggested that I consider this analogy with Stephenson.

38. An individual is still responsible for his beliefs to the extent that those beliefs impose wrongful costs on others, and liberals maintain that individuals should revise their commitments to make them consistent with the legitimate rights of other persons. Treating beliefs as causal products seems to suggest that these beliefs are impediments, externally imposed constraints for which an individual is not fully responsible. Moreover, treating beliefs as causal products—external impositions—also suggests that individuals are to be merely excused for acting on these beliefs. However, when action under these beliefs is appropriate, we should not say that such action is merely excused; we should say that it is justified.

39. 187 N.W.2d 511 (Mich. Ct. App. 1971), 31 Mich. App. 240 [Troppi]; Calabresi, supra note 3 at 52-56.

40. I am not saying that Troppi could not satisfy this pre-existing requirement condition. However, it seems clear that many women in her position would be unable to do so.

41. Earlier in the development of this paper, I thought that the pre-existing condition requirement should be used to distinguish between legitimate religious thin skulls and failed thin skull candidates. But an anonymous referee has convinced to abandon this position.

42. Calabresi, supra note 3 at 45-47.

43. Calabresi’s conception of the gravitational effect of freedom of religion is somewhat different from mine. Again, he appears to believe that the commitment to freedom of religion establishes that religious beliefs—and religiously motivated action—must be treated as reasonable when they influence the acts of injurers, not just victims. For Calabresi, the problem posed by religious injurers is solved by a move to a comprehensive form of public accident insurance. While the religious injurer is immune to negligence liability, his victims are guaranteed compensation by a public system that cares for all. Moreover, Calabresi maintains that a system of public insurance should absorb the additional costs of choices by religious victims. According to Calabresi, a particular injurer has no interest in my maintaining my religious practices, but society as a whole has a collective commitment to the value of freedom of religion. Therefore, it makes sense that the public subsidize the costs of religious action. See ibid. at 60-66.

As I have already argued Calabresi is wrong in maintaining that we cannot draw a distinction between victim choices and injurer choices with respect to religion. Allowing the injurer to define reasonableness with reference to his religious beliefs fails to respect the autonomy of the victim. Treating a victim’s religious beliefs as reasonable does not pose this problem. Moreover, I reject Calabresi’s public insurance for religious choices. Providing public insurance for religious beliefs requires people to subsidize particular religious beliefs that they do not endorse (beliefs that they may regard with some hostility). Freedom of religion must be interpreted in a way that maintains both our commitment to the protection of other people’s choices and our own right to disagree with their choices (even where these choices are, from a public perspective, reasonable). A general requirement that requires me to subsidize particular religious beliefs threatens to violate my own freedom of religion by requiring me to support practices that I do not agree with. My duty to pay for the costs of a victim’s religion should engage only where I am responsible for the increased cost of that religion. Here it is inappropriate for me to invoke my freedom of religion, since I have failed to give due consideration to autonomy of my victim.

44. Weinstock, Daniel, “Constitutionalizing the Right to Secede” (2001) 9:2 J. Pol. Phil. 182.CrossRefGoogle Scholar

45. Obviously, this broadly Rawlsian notion of reasonable disagreement about morality is somewhat attenuated here, because weak perfectionism rules out the reasonableness of conceptions of the good that do not place sufficient weight on life, health, and the kinds of projects that can be pursued without compromising life and health. Here the scope of reasonable disagreement is restricted to the kinds of beliefs discussed in the following sections.

46. Maleííe v. Shulman (1990), 72 O.R. (2d) 417 (CA.).

47. Rawls, John, Political Liberalism (New York: Columbia University Press, 1996) at 191–94 Google Scholar.

48. Williams, supra note 1 at 914.

49. I thank an anonymous referee for suggesting this comparison.

50. Klimchuk, Dennis, “Causation, Thin Skulls, and Equality” (1998) 11 Can. J. L. & Jur. 115 Google Scholar at 138.

51. R. v. Malmo-Levine, [2003] 3 S.C.R. 571 [Malmo-Levine].

52. This is not to say that there are no secular analogs to religious thin skulls. A moral objection to treatments developed through what the victim regards as the immoral treatment of animals could also count as a thin skull (unlike the racist victim discussed at the end of Part 2, the animal rights activist recognizes our fundamental notion of human equality; because the activist’s account of moral standing is expansive as opposed to under-inclusive, I think his beliefs should count as reasonable). I am sure that a woman’s rejection of abortion as a path to mitigation should be recognized as a thin skull as this involves her conception of morally permissible action. However, I should note that in Kealey v. Berezowski, (1996) 30 O.R. (3d) 37 (Gen. Div.), a case involving the negligent performance of a sterilization procedure and a subsequent unplanned pregnancy, Lax J. afforded the plaintiff damages for the pregnancy and loss of income, but not for the costs of raising the resulting child. I thank Vaughan Black for drawing my attention to this case.

53. Egan v. Canada, [1995] 2 S.C.R. 513 at 528.

54. Malmo-Levine, supra note 51.

55. Janiak, supra note 31. There is no serious discussion of whether Janiak’s choice should be considered reasonable. Rather, the discussion focuses on whether or not Janiak’s fear of the surgical procedure should be considered a psychological thin skull.

56. [1997] 2 S.C.R. 539 [Arndt].

57. Here, the question is not whether the victim dealt with her initial loss as a reasonable person would have. This question helps to determine the extent of a tortfeasor’s liability (how much of the loss must the injurer answer for). However, in non-disclosure cases such as Arndt, the hypothetical question of what a reasonable person would have chosen determines whether a victim has any claim to compensation. Nonetheless, Arndt illustrates another kind of case in which a victim’s damage claims are determined, at least in part, with reference to the choices of a reasonable victim. I see no reason why the basic conception of reasonableness applied to victims should vary between these types of cases.

58. Ripstein, supra note 6 at 129-30; Calabresi, supra note 3 at 61-62.

59. [1990] 3 S.C.R. 697 [Keegstra].

60. An anonymous referee suggests another example concerning the victim’s conception of permissible/impermissible action. Suppose that the victim is an elderly utilitarian who believes that the medical resources that would be used to save his life should be put to a more efficient use; he believes that it would be wrong for him to access these resources. Unlike the Jehovah’s Witness who refuses a blood transfusion the elderly utilitarian finds nothing intrinsically objectionable about the act (or acts) involved in standard medical treatment. His objection is based on counter-factual calculation (or speculation) about alternative resource usage. The public decision to afford him access to the medical resources in question is based on a rival moral/political decision (we may think of it as made of both utilitarian calculations and deontological considerations). Because his decision is strongly rooted in empirical beliefs about resource usage, it does not enjoy the same protection from evaluation as the Jehovah’s Witness belief about blood transfusions. Moreover, if the elderly utilitarian is convinced that medical resources would be better spent elsewhere, he should also question whether the consumption of social resources involved in pursuing satisfaction from his injurer is utility maximizing. It’s also worth noting that, even if he refuses medical treatment, the elderly utilitarian cannot guarantee that the resources saved will be used in one of the ways he regards as more efficient than the saving of his own life.

61. Still one may wonder how we are to set the scope of what is covered by religious freedom for the purposes of religious thin skulls. The problem seems great if we insist on testing the notion of religious thin skulls against all possible hypothetical doctrines. Even here, limits will be placed by the need to specify a foreseeable initial injury, one that is not defined with reference to a plain tiff’s particular religion. However, I think it that is a mistake to test the notion of religious thin skulls against such examples. Wild and imaginative counter-examples may be useful in more abstract moral theory—in setting the basic distinction between utilitarianism and deontology—but setting the details of people’s legal rights and duties by use of merely hypothetical counter-exam ples is less appropriate. Our legal rules should anticipate the possibility of change but they should also be designed to deal with conceptions of morality and religion that appear to enjoy stable long term support within our society. It is unlikely that the recognition of religious thin skulls will lead to deluge of new religions with peculiar vulnerabilities akin to those found in Jehovah’s Witnesses or Christian Scientists. Both of these groups, while small, are now firmly established as falling well within the bounds of protection provided by freedom of religion.

For political purposes, I think there can be only two conditions or tests for determining the reasonableness of moral and religious conceptions. First, those conceptions must be consistent with the rights of others; one cannot use one’s religious as a justification for denying the basic liberties or other claims of justice enjoyed by other persons. Second if doctrines that pass this first test enjoy stable support over a long period of time—in a liberal political system—then we must at some point acknowledge their reasonableness. By conceding that religious and moral issues admit of reasonable disagreement—bounded by respect for justice—liberals deprive themselves additional tests for determining the acceptability of moral and religious doctrines. Moreover, if liberals also believe that conditions of liberal freedom and justice provide the best environment for accommodating and maintaining appropriate religious diversity, it is hard to see how they can deny the reasonableness of doctrines that enjoy stable support in this environment.

62. Williams, supra note 1 at 912.

63. Ibid. at 915-16.

64. See Pomeroy, Jeremy, “Reason, Religion, and Avoidable Consequences: When Faith and the Duty to Mitigate Collide” (1992) 67 N.Y.U. L. Rev. 1111 Google Scholar. Of course, one might respond that we should be realistic about the attitudes of juries. In fact, the Judge Wallach ex Presses the concern that if the jury is not made aware of the victim’s religion, “the jury would be left with the fact of her refusal, without any explanation at all.” Williams, supra note 1 at 915. Because of their discretion regarding damages, juries are, as a practical matter, quite free to penalize a plaintiff that they regard as lazy or unsympathetic; the penalties juries impose may not be limited to a fair minded consideration of reasonable mitigation. Better, then, that a jury know about a plaintiff’s religion. That way the Jehovah’s Witness victim will be treated only as poorly as the lazy victim ought to be treated not as poorly as the lazy victim is likely to be treated. However, these considerations could be taken into account by allowing the jury to be informed of the plaintiff’s religion, but reminding them of the fairness of the requirements of the “reasonably prudent person standard.” There is no need to provide the jury with a general license to consider the relevance of the plaintiff’s religious beliefs.

65. I thank an anonymous referee for emphasizing this last point. Courts may think that the endorsement of a jury is less problematic as members of juries are less likely to be perceived as agents of the state than judges. Likewise, since juries are not bound of the decisions of other juries, it is possible that no general pattern of “endorsement” will emerge. However, it’s hard to see how such a lack of uniformity in the treatment of religious beliefs could be a desirable result.

66. Williams, supra note 1 at 915.

67. I thank an anonymous referee for correcting my understanding of Judge Wallach’s concerns.

68. The Court of Appeals seems to think that judging religious beliefs to be unreasonable in their application to children would entail that these beliefs are unreasonable in all other contexts. It appears that the court seeks to avoid this problem by paying lip service to religious belief in the context of children’s issues, while contorting the relevant beliefs to avoid unpalatable conclusions about parental liability.

69. Of course, one might argue that the decision to treat the direct application of religious beliefs to children as unreasonable undermines the believer’s understanding of his beliefs. From the comprehensive perspective of the devout Jehovah’s Witness or Christian Scientist, the prohibition against blood transfusions or standard medical treatment does not apply only to competent adults. Therefore, imposing parental liability for failure to provide medical care (and the related Canadian decision to allow public authorities to impose blood transfusions in the face of parental objections, B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 [B. (R.)]) does conflict with parents’ religious beliefs. Does this not show that these beliefs are, for legal purposes, unreasonable? I think not. As Charles Larmore notes, it is legitimate to expect people to revise their comprehensive commitments, if these commitments conflict with the basic rights of others. But the reconciliation of comprehensive religious commitments and basic justice can be accomplished in a variety of ways. The relevant beliefs may be jettisoned but they may also be attenuated or revised to accord with basic justice. I do not say that any Jehovah’s Witnesses have revised their beliefs in light of decisions such as B. (R.), but the door must be left open for them to do so. If religious freedom is a shared commitment, we should be slow to make public (legally recognized) evaluations of people’s religious choices in cases where these choices do not threaten the basic rights of others. If we do go beyond this point—and worse, if we pretend not to do so by spreading a veneer of religious tolerance and respect over decisions that actually ex Press a contempt for minority religions—then members of those religions are right to doubt our commitment to religious equality. See Larmore, Charles, The Morals of Modernity (Cambridge: Cambridge University Press, 1996) at 140.CrossRefGoogle Scholar

70. Calabresi, supra note 3 at 24-25.

71. The name of the student now escapes me. As I later discovered Calabresi considers this possibility in a footnote. Ibid. at 174-75, n. 280.

72. I thank an anonymous referee for emphasizing this point. Even if the particular act or activity in question is not particularly important or crucial to Friedman, a general principle that requires her to bear the cost of her vulnerability whenever she is doing something “non-essential” or participating in some niche activity seems overly burdensome.

73. Vaughan Black and Dennis Klimchuk have led me to the conclusion that these questions are probably not ones that can be answered with a sufficient degree of precision.