By Jim Motavalli
Does a pig packed in a tiny factory cage waiting to be killed have any rights in America? Should it have? And what about the chimpanzee, which shares 99 percent of its active DNA with humans? Should anyone be allowed to own an animal with so many of our own attributes, including the ability to reason, use tools and respond to language? Isnt that like slavery?
The fight to give animals legal rights barely registers on the environmental agenda, but perhaps it should. This isnt simply an endless philosophical debate but a gathering global force with broad implications for our planets future, including how we use our natural resources. If animals had rights, we probably couldnt continue to eat them, experiment on them with impunity or wear their skins on our backs. Our fundamental relationship would change.
But precisely because our way of life depends on exploiting them, animals dont really have any significant rights in America, although Congress passed the Humane Methods of Slaughter Act (which requires simply that animals be rendered insensitive to pain before being killed) in 1958 and the Animal Welfare Act (which sets limited standards for humane care but exempts small laboratory animals) in 1966. All states afford animals some small measure of protection through anti-cruelty laws, but these laws have nothing to say about an animals right not to be slaughtered, or used for any number of human purposes.
In 2003, however, a new and growing movement is trying to afford some genuine legal rights for animals. Buoyed by a growing awareness about animal intelligence and capacities, the courts, state governmentsand the general public in statewide referendaare enacting and enforcing new legislation. Animal rights are back on the agenda, at least partly due to the release of the new book Dominion by an unlikely author, White House speechwriter Matthew Scully. The book might have gotten some attention even if the writer came from the ranks of known animal sympathizers, but the fact that Scully is a self-described conservative and a Bush insider got it widely reviewed and discussed. Scully describes the Animal Welfare Act as a collection of hollow injunctions, broad loopholes and light penalties when there are any at all. Animals, writes Scully, are a test of our character, of mankinds capacity for empathy and for decent, honorable conduct and faithful stewardship.
The stewardship concept has a long history. Legal prohibitions against cruelty to animals in the U.S. date back as far as the Massachusetts Bay Colonys 1641 Bodies of Liberties (No man shall exercise any Tirranny or Crueltie towards any Bruite creature which are usuallie kept for mans use, it said). But the use of the phrase mans use is tellingthe statutes have always been limited to preventing unnecessary or unjustified pain, which leaves the laws subject to broad differences in judicial interpretation. But killing animals for food, sport, clothing or for scientific research has almost always been upheld by the law.
In 37 states, cruelty to animals is now a felony, and four new laws were enacted in 2002. Concerned Floridians succeeded last November in passing a constitutional amendment on the inhumane treatment of factory farm pigs. Also before voters in November: a ban on cockfighting in Oklahoma (it passed), a plan to issue special license plates to pay for spaying and neutering of pets in Georgia (it also passed) and a ban on animal cruelty in Arkansas (it was defeated).
In Europe, Germany has amended its national constitution to protect the natural foundations of life for people and animals. In 1992, Switzerland acknowledged that animals were beings through a constitutional amendment. In 2000, the High Court of Kerala in India handed down an opinion that states, It is not only our fundamental duty to show compassion to our animal friends, but also to recognize and protect their rights If humans are entitled to fundamental rights, why not animals?
The Great Ape Project, founded in 1993 to include the nonhuman great apes within the community of equals, giving them fundamental protections of life, liberty and bodily integrity, has won its first great victory in New Zealand, which in 1999 banned most experimentation on non-human hominids. There are loopholes that allow for testing if it is in the best interests of the non-human hominid.
Peter Singer, cofounder of the Great Ape Project, a professor at Princeton and a pioneer in animal rights philosophy, said that the New Zealand law may be a small step forward for great apes, but it is nevertheless historic. Its the first time that a parliament has voted in favor of changing the status of a group of animals so dramatically that the animal cannot be treated as a research tool. There are more than 3,000 great apes in captivity around the world, and Singer called on other national parliaments to take up the initiative and carry it further.
A History of Denial
It may seem silly to have to argue that animals feel pain, make decisions and experience desires, but some theorists posit that they dont. According to R.G. Frey, author of the 1980 book Interests and Rights: The Case Against Animals, they might experience some pleasant or unpleasant sensations, but have no real preferences, wants or desires, lack memory and expectation and cant make any plans or intend anything.
Some anthropologists say that animals were the very first private property, says Jim Mason, an attorney, animal advocate and author of the book An Unnatural Order. Before the concept of money existed, they were a major measure of wealth. Its ironic given that long history that were now talking about eliminating their property status.
Since the 17th century, when philosopher René Descartes argued that animals had no souls and could neither think nor suffer, a consensus has been emerging that non-human creatures actually function on a much higher plane than was previously believed.
While Western religions have denied that animals have souls, an ABC News poll in 2001 found that 43 percent of respondents disagreed (and 17 percent were undecided). Darwins theory of evolution did much to advance the idea that animals were not mere automata. The anti-vivisection movement, which opposes the use of animals in medical experimentation, gathered force in Britain and the U.S. after the Civil War (and shared some of the rights concepts imbued in the abolitionist movement). The concepts of womens rights and, later, gay rights also advanced wider conceptions of legal protection. The emerging fact that higher animals share much of their DNA with humans was certainly influential.
Recent animal rights law cases have turned on such questions as the rights of students to opt out of dissecting frogs or cats, and the privacy rights to the medical records of animals in zoos. Such cities as Berkeley and West Hollywood in California, Boulder, Colorado and Amherst, Massachusetts have changed the legal definition of pet owners to guardians, and the Los Angeles City Council is considering a similar move.
Peter Singers influential book Animal Liberation, which has sold 500,000 copies, offered a philosophical argument on behalf of animals that has been extended by such philosophers as The Case for Animal Rights author Tom Regan, who argues that Singer did not go far enough. Regan says that all uses of animals for food and experiments should be legally enjoined.
The Case for Reform
Animals are attracting a high-profile group of sympathizers these days, particularly at Americas law schools, 25 of which now offer courses in animal rights law (up from five in the mid-1990s). The Chimpanzee Collaboratorys Legal Committee hosted a symposium at Harvard Law School last September that featured such scholars of the law as Professor Alan Dershowitz (who opined that rights grow out of wrongs), Cass Sunstein of the University of Chicago (who argued that animals regarded as property can still have rights under the law, and that our culture is much more interested in protecting animals than our laws are), David Favre of Michigan State (who said that animals may cross the river to legal rights over the stepping stones of incremental change), and acclaimed primatologist Jane Goodall (who said that legal rights might prevent the poaching and habitat destruction that is threatening Africas great apes with extinction. See the interview with her in this issue).
Another influential voice arguing for legal protection for animals is attorney Steven Wise, a former Harvard animal rights lecturer, a speaker at the chimpanzee symposium and the author of Rattling the Cage: Toward Legal Rights for Animals and Drawing the Line: Science and the Case for Animal Rights. Wise makes what he calls the liberty argument. He says that some nonhuman animals, including great apes, have a kind of autonomy that judges should easily recognize as sufficient for legal rights. He also makes an equality argument, pointing out that children born severely retarded and dependent are automatically granted full human rights, and that the principle of equality requires us to give [the same rights] to a bonobo who has high levels of cognition and a great deal of mental complexity. Wises work is in part based on new research that finds, for instance, that some parrots are probably self-aware, can grasp abstractions, imitate and use a sophisticated proto-language. A report in Science magazine earlier this year offers new evidence that orangutans and other apes exhibit cultural behavior.
Wise believes that the body of common law at the heart of American jurisprudence is flexible and based on fundamental values of liberty and equality. When judges look at the principles of why humans have basic rights, I think theyll see that at least some nonhuman animals are entitled to rights for the same reason, Wise said in an interview. To deny that is to be involved in arbitrary decision-making, which the common law frowns upon.
Wise points out that judges may be conservative, but so are the arguments hes making. These values already exist, he says. Wise adds that any judges decision in favor of animals having rights is likely to be appealed, and that hes really aiming to be heard on the appellate and state supreme court levels. His chances to succeed in the high courts, he believes, are enhanced by changes in public values (including a growing awareness of primate intelligence) and new scientific findings.
A major problem in making progress with animal rights law is the question of standing in the courts. Animals cannot generally be plantiffs in lawsuits. But Wise argues that the law makes many exceptions already. Most judges already know that under the law as it stands, membership in any species is not enough by itself to entitle any being to legal personhood, he says. It is the dignity that derives from the ability to wield what I call a realistic, or practical autonomy that is sufficient. Once any one legal right is given to any one nonhuman animal, the legal inquiry for basic rights can begin to shift from the question of are you a human being? to do you have the necessary realistic autonomy? The best initial candidate species, I believe, are the great apes, particularly chimpanzees and bonobos.
Steve Ann Chambers, president of the Animal Legal Defense Fund (ALDF), points out that ships, municipalities, trusts and, increasingly, multinational corporations (through what Kalle Lasn describes in Culture Jam as their own global charter of rights and freedoms, the Multinational Agreement on Investment), have the standing in the courts that is denied to animals. We need to expand legal rights beyond humans, she says, adding that the law as currently written refuses animals legal standing, but also makes it nearly impossible for human plantiffs to have standing on their behalf. Chambers points to a case in which ALDF sued the U.S. Department of Agriculture (USDA) for three counts of violating the Animal Welfare Act. The lower court upheld our contention that violations had occurred, she says, but when the government appealed, assisted by the biomedical industry, the appellate court said that ALDF had no standing.
A similar case involving Barney, a 19-year-old chimpanzee held by the Long Island Game Farm, had a bittersweet resolution. ALDF sued the USDA on behalf of Marc Jurnove, a frequent visitor to Barney who was disturbed by his isolation and neglect (contrary to 1985 provisions of the Animal Welfare Act that call on the agency to protect primates psychological well-being). U.S. District Judge Charles Richey agreed that Barney had been abused, and he chided the USDA for not creating enforceable statutes for roadside zoos.
The government appealed, and it was during that process, in 1996, that Barney apparently got tired of waiting for justice. He fled his cage when someone forgot to lock it, scaled a seven-foot fence and was promptly dispatched with a shotgun. Three years later, there was finally a ruling in Barneys case: The appeals court reversed Richeys order to create new regulations, but it upheld Jurnoves right to be involved in the case. According to Joyce Tischler, executive director of ALDF, Jurnove won what is called aesthetic standing, similar to the right people have to sue their local park because theyre upset by the poor conditions of a scenic overlook. Were trying to create incremental changes in the law, she says.
For Regan, professor emeritus at North Carolina State University and author of the new book, Empty Cages: The Future of Animal Rights, animals should have the right to bodily integrity, freedom to live their lives according to their own needs and the overall right to life. Unfortunately, he says, we havent made any real progress in achieving standing for animals in the legal system. Were still in a situation where you have to argue that something constitutes cruelty, which is very hard to prove. If you look at how the Animal Welfare and Humane Slaughter Acts work and are applied, its just a farce. Its reminiscent of previous decades, when women and blacks couldnt get court standing.
ogers as saying, People who love sausage and respect the law should never watch either being made, and he describes the latter as an ugly process dominated by monied interests. One of the biggest barriers to reform for lab animals is the National Institutes of Health (NIH) which, he says, is not about to lose its right to use animals like chimpanzees in research. The NIH is opposed to even the most reasonable improvements. Chimpanzee language pioneer Roger Fouts says some arrogant scientists think of apes as hairy test tubes.
Will overturning centuries of human dominion over animals be difficult? Wise admits it will be, but he notes that slavery was as deeply ingrained in the collective consciousness and that while it took a civil war to dislodge it in the U.S., in England it was overturned not by swords but by well-honed fountain pens, in the courts.
Dominion author Matthew Scully agrees with Wise that the great apes may be the best starting place to establish legal rights for animals. Theres a certain logic to that, he says from the Bush White House, where he resumed speechwriting duties last December. Scully believes that existing laws already enshrine some protections for pets. The law has some contradictions in regarding your dog as property, but also allowing that same dog to be the victim of crimes, including felonies, he says. The law places moral boundaries around that animal, and makes some moral claims around it. That limits your rights of property and defines you as the animals guardian. Scully believes that the law may eventually set aside the entire concept of animals as property and replace it with the legal guardian status implied in the anti-cruelty statutes.
In reviewing Wises book Drawing the Line for the Wilson Quarterly, Scully observed that dolphins can correctly press levers marked yes and no in response to questions about whether a ball is in their tank, an African gray parrot named Alex can correctly identify objects, shapes, colors and quantities of up to six, and elephants are resourceful problem solvers. What would legal personhood for, say, elephants amount to? Scully asks. Specific and well-enforced protections from the people who harm themthose engaged in the exotic wildlife trade, for example, or the vicious people who to this day still hunt elephants for trophies, he answers.
None of the available evidence adds up to a case for legal rights, say some scholars. Richard Posner, a federal judge and lecturer at the University of Chicago Law School, says, Its just not feasible to equate animals with humans. There are too many differences. The biomedical community defends its work as simply necessary. It is pretty easy to sit around a table and intellectualize about [Wises] stuff and talk about what youre willing to give up, Frankie Trull of the Foundation for Biomedical Research told The Daytona Beach News-Journal, until you or somebody you care about is hit with some terrible disease.
Report From the Field
Wayne Pacelle, the activist vice president of the Humane Society of the U.S. (HSUS), points out that between 1940 and 1990 only one statewide initiative protecting animals was approved by voters (it was a mourning dove hunting ban in South Dakota, later reversed). But since 1990 there have been 38 statewide ballot campaigns, with the pro-animal forces winning in 24 of them.
Pacelle, who was personally involved in 22 ballot campaigns (17 of which won), describes them as demonstrating our political strength. They pay many dividends and serve as a training ground for activists. Pacelle is a much-hated figure in the hunting, trapping, game fighting and biomedical research communities, and his pronouncements are frequently posted on their websites. Are you supporting the HSUS one step at a time political agenda? asks Americans for Medical Progress, which quotes Pacelle as envisioning the use of the initiative process for companion animal issues and laboratory animal issues and other issues that are appropriate. The U.S. Sportsmens Alliance posted an editorial accusing HSUS of lies and deception and Pacelle of duping Washington State voters.
Its not surprising that HSUS in general and Pacelle in particular inspire such ire, since the groups legal campaigns (run in coalition with many other organizations and local supporters) have been singularly successful. Since 1990, voters across America have approved measures, propositions and proposals to ban steel-jawed traps, prohibit airborne hunting of wolves, ban bear baiting, prohibit cockfighting, outlaw slaughter of horses for human consumption and prevent the expansion of greyhound racing tracks.
A major victory for animal groups last November was the 55-45 percent win on a Florida amendment to ban hog farm gestation crates, which confine pigs to two-foot by seven-foot cages while theyre pregnant. The crates, animal supporters said, inhibit practically every normal pig behavior, give rise to crippling foot and leg injuries and produce sores and infections. When Elephants Weep author Jeffrey Masson calls the Florida victoryone of the first to regulate a factory farming practice on cruelty groundsas pure good, adding, Im convinced that 500 years from now it will be illegal to kill any farm animal.
Why appeal directly to the voters? Special interests often control key committees in the state legislature, says Pacelle, and they can thwart the popular will, making it difficult to get bills passed. Its better to get it done with voter initiatives.
HSUS and other groups have tried to get national legislation passed, but Congressional lobbying makes that nearly impossible. Most of the measures attached to the recently approved federal farm bill, which went after so-called puppy mills (which produce large numbers of dogs under poor conditions for a quick profit), opposed killing black bears for their gall bladders and attempted to legislate treatment of the downer cows that are handled by slaughterhouses, were eviscerated or turned into studies during House-Senate conferences. Only provisions combating cock and dog fighting were left.
HSUS and the Fund for Animals jointly sponsor a Humane Scorecard that rates politicians for their voting records on animal issues, a process that has led the group to endorse many Republicans, including Elizabeth Dole in her successful North Carolina Senate race. Republican U.S. Senators with pro-animal voting records include Robert Byrd of West Virginia, Bob Smith of New Hampshire (no longer in office) and John Warner in Virginia. Former veterinarian Wayne Allard, a Colorado Republican, has won the animal groups favor for sponsoring legislation against cockfighting, though hes no friend of the environment. (His 2001 League of Conservation Voters score was 13 percent.) Major animal rights groups sponsor Humane USA, a political action committee whose fondness for Republicans helps explain its relatively rosy view of last Novembers elections: 17 of its 23 Senate picks won, as well as 205 of its 214 House choices.
The Animal Legal Defense Fund has an equally successful record, and a 20-year history. Founded by Joyce Tischler in 1979 as Attorneys for Animal Rights, it held its first conference on animal rights law in 1980. Highlights of its two decades of fighting for animals include helping to block the importation of 71,500 rhesus monkeys from Bangladesh for use in research (1983), challenging veal farming in Massachusetts (1984), suing to prevent the Navy from using dolphins in defense work (1989), petitioning to have birds, rats and mice used in research protected by the Animal Welfare Act (1990), founding the first of what are now two dozen student-based college chapters (1993), working to prosecute purveyors of animal crush videos (1999) and suing to block wild horse roundups (2001). It is just starting work on a body of animal protection laws in China.
Animal rights law is just now catching on, says ALDF President Steve Ann Chambers. Its being taught in 25 to 30 law schools and is cited in legal textbooks. Mainstream law is no longer laughing at us. The University of Chicagos Cass Sunstein points out, As more people in academia start discussing animal law and more law schools add courses on the subject, youre going to see more people practicing law who are committed to the well-being of animals. And thats going to have a huge impact.
The record is less successful on the legislative front, Chambers admits. Wed like to see the interests of animals recognized in the legal system, with enforceable penalties, she says. There is no body of civil law that protects animalsas long as basic needs are cared for and theres no obvious cruelty, owners have the final say in how animals are treated. She cites the case of Moe, a 32-year-old chimpanzee who was kept for decades in a small cage in a Los Angeles suburb. ALDF tried unsuccessfully to get itself appointed as Moes representative in the case (as a Guardian ad Litem) when Los Angeles finally seized the chimp. (The story has a happy ending anyway: Moe ended up in a sanctuary.)
The law makes very slow progress. Chambers says 19 states now have laws recognizing animals as beneficiaries of estates; silly, perhaps, but a possible step in recognizing their standing in court.
Its not only animal exploiters who have a problem with this incremental legal strategy. There are also detractors from the left, such as Animal Equality author Joan Dunayer, who criticizes Wise for not extending his rights concept to, among other things, honeybees. We dont want a few nonhuman animals to be regarded as honorary humans. We want to get rid of humanness as the basis for rights, she says. And then theres Rutgers law professor Gary Francione, author of such books as Rain Without Thunder: The Ideology of the Animal Rights Movement. Until 1999, Francione directed the Rutgers-based Animal Rights Law Clinic, but he closed it down, claiming that the American animal rights movement has collapsed and become reformist, rather than radical.
Francione takes on nearly everyone. Though he once served as attorney for People for the Ethical Treatment of Animals (the most influential rights group today), he is now openly critical of the group for not being radical enough. He also has issues with ALDF, Steven Wise, Peter Singer, Wayne Pacelle, Tom Regan and most of the other animal activists cited in this story.
Francione compares the laws governing animal ownership to those regulating slavery. Theyre structurally similar in that they favor the owners interests, as the slave laws did, he says. If you examine anti-cruelty laws carefully, what you see is that the laws dont provide any more protection than is necessary for efficient exploitation of the animal. Its crazy to argue that were ever going to get significant legal change from common law courts. If Congress passed a law making factory farming illegal, for instance, it would drive up the price of meat and people would be in the streets. The result, he says, is very small gains. He cites PETAs celebration of the Burger King veggie burger, and Peter Singers favorable comments about McDonalds decision to give battery hens more cage space. Maybe Peter finds that thrilling; I do not, Francione says. It is a clear indication that welfarist reform is useless.
One of Franciones more interesting complaints is against the legal reformers willingness to work with Republicans who are otherwise terrible on progressive issues. The only way we make sense is as a movement of the left, he says, and that cant mean making alliances with anti-choice, pro-military politicians like Elizabeth Dole and Bob Smith. He also deplores PETAs Id Rather Go Naked Than Wear Fur campaign as sexist, a view many other animal activists share.
Steve Ann Chambers has heard from Francione and other critics many times before and she thinks they offer no realistic solutions, since the American people are not likely to embrace the strict no-meat, no-dairy diet called veganism (Franciones choice and his basis for change) any time soon. I find it more productive to work positively with what we have within the existing legal system, and build upon it, she says. If we refuse to do anything about the problems that exist for animals until society has decided it is no longer proper to eat meat, well be waiting a long time.
OK, so fast food veggie burgers, larger confinement crates and standing for animals in court are not going to dramatically change the world or save the environment. But it can help us regain our empathy and alleviate some measure of suffering. Perhaps thats all we can hope for right now.