Prof. Somin has a post at VC about Stamvosky v. Ackley, which happens to be the first case I was ever assigned in law school, and a case that continues to bother me to this day. The dispute involved the purchase of a “haunted” house: the buyers complained that its “haunted” status had not been disclosed to them, and therefore that they’d been injured. The court agreed.
Amusing, yes, but the case involves a serious problem: to what degree should courts address the alleged injuries arising from people’s irrational subjective beliefs? Suppose my neighbor puts a voodoo curse on me, and sure enough, the next day, I break my leg. Should I be able to sue him for battery?
I see two or three answers here. First, you can say no: an objectively irrational belief or fear should never receive the sanction of law—thus I have no standing. I would tend to agree with this view, but it has some real problems, as I’ll discuss in a moment. Second, you could say yes: if I believe I’ve been injured, that psychological injury is all that is required, regardless of the objective validity of the complaint. Third, and relatedly, you could say yes, I can bring a case, but then I would have to prove causation, which I couldn’t do, because voodoo doesn’t exist. This third answer, however, is really the same as the first answer: because as an objective fact, voodoo is nonsense, no liability lies.
The problem with argument number 2 is that it opens the door to any number of irrational claims—not only brought by sincere fools, but also by people who just want to use their irrationality as a sort of heckler’s veto, as in City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). In that case, the Court found that it was irrational for the government to ban the opening of a halfway house for the mentally handicapped, because “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like.” Id. at 448. And the Court cited Palmore v. Sidoti, 466 U.S. 429 (1984), a case where the Court found that government could not discriminate on the basis of race when making adoption decisions, even where that discrimination was made on the basis of the general public’s attitude toward mixed-race families. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Id. at 433. A fine sentiment—or so it seems. But of course, manygovernment actions embody private biases, and are seen as perfectly legitimate in doing so. Giving government employees religious holidays, for instance.
In Everett v. Paschall, 61 Wash. 47 (1910), the court held that the unsubstantiated fear of infection by patients was enough to allow the government to prohibit the creation of a convalescent home. “The question is, not whether the fear is founded in science, but whether it exists,” the court said. Id. at 51. That does seem to make sense, since the fear itself does lower property values in the area and therefore would create the sort of liability on the part of innocent property owners that ought to be addressed by nuisance law. But that is the same excuse that has always been used to write irrational prejudices into the law—as when real estate agents considered it a violation of professional ethics to move members of racial minorities into white neighborhoods. On the other hand, in McPherson v. First Presbyterian Church, 120 Okl. 40 (1926), the court rejected the Paschall approach, holding that “[t]o enjoin a threatened nuisance...the evidence must be clear and convincing, not of a possibility or apprehension, but of a reasonable probability, that the injury will be done.” Id. at 45. But this is also problematic, since it means that the cost of irrational prejudice is borne by the innocent homeowner who is unlucky enough to be situated next to a neighbor who uses his land in a manner that is objectively safe, but universally reviled. That homeowner may not share the irrational prejudice himself, but he suffers the cost because the rest of the community does. (“Ew, you’re the guy who lives next to the such-and-such!”)
But the problem with answers 1 and 3 is the public policy problem of the courts determining what sets of unprovable beliefs are and are not objectively irrational. On one hand, courts have even gone so far as to take judicial notice of the irrationality of certain beliefs. See, e.g., United States v. Downing, 753 F.2d 1224, 1238 n. 18 (3d Cir. 1985) (courts may take judicial notice of the invalidity of phrenology or astrology). But on the other hand, taking a step in this direction threatens important Establishment Clause and Free Exercise rights. That’s why in United States v. Ballard, 322 U.S. 78 (1944), the Court found that it could not inquire into the scientific validity (or lack thereof) of faith healing, in a case involving a mail fraud prosecution. If courts can determine that certain beliefs with regard to ghosts are objectively irrational and untrue, then what about religious beliefs (which are, in fact, objectively irrational and untrue)?
I wish I knew the answers to these questions.