Rights from Wrongs

A Movement to Grant Legal Protection to
Animals is Gathering Force

From E Magazine - March/April 2003 issue.




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?

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 anti-cruelty laws, but these laws have nothing to say about

an animal's "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 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 U.S. 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 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



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," 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. It's ironic given that long

history that we're now talking about eliminating their property



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). Darwin's 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 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, 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 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 America'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 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 Africa's 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." 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



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 says. Wise

adds 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 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 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 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 haven't made any real progress in

achieving standing for animals in the legal system. 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."


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



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



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 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 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 anti-cruelty 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 asks. "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 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, "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."


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. 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 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," says 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," says 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 points out, "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

admits. "We'd 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 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 says 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

says. 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 says. "If you

examine anti-cruelty 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, he says, is very small gains. He cites 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 says. "It is

a clear indication that welfarist reform is useless."


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 says, "and that can't mean making alliances

with anti-choice, 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 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, we'll 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 that's all

we can hope for right now.