LGBTQ+ Rights, Anti-Homophobia and Tort Law Five Years after Obergefell

52 Pages Posted: 26 Feb 2021 Last revised: 29 Apr 2021

Date Written: February 25, 2021

Abstract

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 tort liability is 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.

Suggested Citation

Rapp, Geoffrey Christopher, LGBTQ+ Rights, Anti-Homophobia and Tort Law Five Years after Obergefell (February 25, 2021). University of Illinois Law Review, Forthcoming, University of Toledo Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3793117 or http://dx.doi.org/10.2139/ssrn.3793117

Geoffrey Christopher Rapp (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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