From E Magazine -
March/April 2003 issue.
<http://www.emagazine.com/march-april_2003/0303feat1.html>http://www.emagazine.com/march-april_2003/0303feat1.html
COVER STORY
By Jim Motavalli
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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
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," 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
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).
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
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 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
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.
"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.
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