02 May 2003
By Jim Motavalli, E/The Environmental Magazine

Does a pig packed into a tiny factory cage waiting to be killed have any rights in the United States? Should it have?

And what about the chimpanzee, who 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? Isn't that like slavery?

The fight to give animals legal rights barely registers on the environmental agenda, but perhaps it should. This isn't simply an endless philosophical debate but a gathering global force with broad implications for our planet's future, including how we use our natural resources. If animals had rights, we probably couldn't 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 don't 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 anticruelty laws. These laws have nothing to say, however, about an animal's "right" not to be slaughtered or used for any number of human purposes.

In 2003, however, a new movement is gathering force that is trying to afford some genuine legal rights for animals. Buoyed by a growing awareness about animal intelligence and capacities, the courts, state governments, and the general public (in statewide referenda) are 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 mankind's 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 United States date back as far as the Massachusetts Bay Colony's 1641 "Bodies of Liberties" ("No man shall exercise any Tirranny or Crueltie towards any Bruite creature which are usuallie kept for man's use," it said). But the use of the phrase "man's use" is telling: The 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 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 in getting a constitutional amendment on the inhumane treatment of "factory farm" pigs onto the November ballot. 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 "nonhuman hominids." There are loopholes that allow for testing if it is "in the best interests of the nonhuman 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. It's 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 don't. 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 can't make any plans or intend anything.

"Some anthropologists say that animals were the very first private property," said 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. It's ironic given that long history that we're 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 nonhuman 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. Darwin's theory of evolution did much to advance the idea that animals were not mere automata. The antivivisection movement, which opposes the use of animals in medical experimentation, gathered force in Britain and the United States after the Civil War and shared some of the rights concepts imbued in the abolitionist movement. The concepts of women's 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, Colo.; and Amherst, Mass., have changed the legal definition of pet owners to "guardians," and the Los Angeles City Council is considering a similar move.

Peter Singer's 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 U.S. law schools, 25 of which now offer courses in animal rights law (up from five in the mid-1990s). The Chimpanzee Collaboratory's Legal Committee hosted a symposium at Harvard Law School last September that featured several reknowned scholars of the law. Professor Alan Dershowitz opined that "rights grow out of wrongs." Cass Sunstein of the University of Chicago 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 said that animals may "cross the river" to legal rights over the "stepping stones" of incremental change. And acclaimed primatologist Jane Goodall said that legal rights might prevent the poaching and habitat destruction that is threatening Africa's great apes with extinction.

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."

Wise's 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 they'll 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 he's making. "These values already exist," he said. "I'm not trying to foist new values on anyone." Wise added that any judge's decision in favor of animals having rights is likely to be appealed and that he's 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 said. "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 said, 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 said, "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 Barney's case: The appeals court reversed Richey's order to create new regulations, but it upheld Jurnove's 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 they're upset by the poor conditions of a scenic overlook. "We're trying to create incremental changes in the law," she said.

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, the freedom to live their lives according to their own needs, and the overall right to life. "Unfortunately,we have't made any real progress in achieving standing for animals in the legal system," he said. "We're 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, it's just a farce. It's reminiscent of previous decades, when women and blacks couldn't get court standing."

Paul Waldau, who teaches the Harvard course in animal rights law previously taught by Wise, quotes Will Rogers 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 said, "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 United States, in England it was overturned not by swords but by well-honed fountain pens, in the courts with a body of laws based on fundamental human rights.

Dominion author Matthew Scully agrees with Wise that the great apes may be the best starting place to establish legal rights for animals. "There's a certain logic to that," he said 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 said. "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 animal's 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 anticruelty statutes.

In reviewing Wise's 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 asked. "Specific and well-enforced protections from the people who harm them — those engaged in the exotic wildlife trade, for example, or the vicious people who to this day still hunt elephants for trophies," he answered.

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, said, "It's 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 [Wise's] stuff and talk about what you're 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."

Tibor Machan, a philosopher and professor of business ethics at Chapman University in California, argues that morality should be the dividing line. "Such rights would only arise if animals developed into moral agents, which they haven't," he said. "Notice how no one is expecting animals to be kind, compassionate, or considerate of their own victims, or to stop being carnivorous if they are." Of course, many human beings would fail this same litmus test too.

Report from the Field

Wayne Pacelle, the activist vice president of the Humane Society of the United States (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 Web sites. "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. Sportsmen's Alliance posted an editorial accusing HSUS of "lies and deception" and Pacelle of "duping" Washington state voters.

It's not surprising that HSUS in general and Pacelle in particular inspire such ire, since the group's 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 the 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 they're 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 victory — one of the first to regulate a factory farming practice on cruelty grounds — as "pure good," adding, "I'm 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," said Pacelle, "and they can thwart the popular will, making it difficult to get bills passed. It's 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 he's 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 November's 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," said ALDF President Steve Ann Chambers. "It's 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 Chicago's Cass Sunstein said, "As more people in academia start discussing animal law and more law schools add courses on the subject, you're going to see more people practicing law who are committed to the well-being of animals. And that's going to have a huge impact."

The record is less successful on the legislative front, Chambers admitted. "We'd like to see the interests of animals recognized in the legal system, with enforceable penalties," she said. There is no body of civil law that protects animals; as long as basic needs are cared for and there's 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 Moe's 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 said 19 states now have laws recognizing animals as beneficiaries of estates; silly, perhaps, but a possible step in recognizing their standing in court.

The Naysayers

It's 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 don't want a few nonhuman animals to be regarded as honorary humans. We want to get rid of humanness as the basis for rights," she said.

And then there's 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. "They're structurally similar in that they favor the owner's interests, as the slave laws did," he said. "If you examine anticruelty laws carefully, what you see is that the laws don't provide any more protection than is necessary for efficient exploitation of the animal. It's crazy to argue that we're 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 is very small gains, he said, citing PETA's celebration of the Burger King veggie burger and Peter Singer's favorable comments about McDonald's decision to give battery hens more cage space. "Maybe Peter finds that thrilling; I do not," Francione said. "It is a clear indication that welfarist reform is useless."

He also dismisses a recent victory by the group Farm Sanctuary in gaining protection for "downer" cows in California. "The meat industry joined with Farm Sanctuary in supporting that bill," he said. "Why? Because the American people will now feel better about eating meat. The law itself is weak and full of loopholes and doesn't give Farm Sanctuary any authority to remove downed animals. It's theoretically and practically ridiculous." Francione also pointed out that some ballot initiatives are reversed by state legislatures or blocked by the courts.

Francione also denigrates the Chimpanzee Health Improvement, Maintenance, and Protection (CHIMP) Act, signed by President Clinton in 2000, which requires retired laboratory chimpanzees to be provided with retirement shelters. "The law says the chimps can't be killed — unless the Secretary of Agriculture says it's necessary to do so," Francione said. "What's more, it creates a centralized database that makes it easier for researchers to keep track of animals they might want to use in their own work. It's worse than not having legislation at all."

One of Francione's 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 said, "and that can't mean making alliances with antichoice, pro-military politicians like Elizabeth Dole and Bob Smith."

He also deplores PETA's "I'd 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 (Francione's 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 said. "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, we'll be waiting a long time."

Chambers would love to see more rapid change, but she cited reasons to be hopeful, such as Tennessee becoming, two years ago, the first state to authorize damages for the loss of the "noneconomic" value of animals, such as their companionship and affection. "There is a trend in state law to recognize the interests of animals, and in some states there are provisos for the appointment of a representative to look after their protected interests," she said. "These are all promising developments that indicate the law is advancing in the right direction for animals."

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. These small steps forward will advance many environmental causes, which depend on our ability to put aside self-interest and care about the fate of future generations. Perhaps that's all we can hope for right now.

Jim Motavalli is editor of E/The Environmental Magazine.

Related links:

http://www.aldf.org/
http://www.animalrightslaw.org/
http://www.greatapeproject.org/
http://www.humaneusa.org/

Source: E/The Environmental Magazine