COVER STORY

Rights From Wrongs

By Jim Motavalli, E Magazine - March April 2003; Pages 26-33

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?

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."

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.

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