So Three Cows Walk into Court…

Original Article

Imagine you are a cattle rancher looking for liability insurance. You meet with your broker, who, as expected, asks a series of questions to gauge your suitability for coverage:

  • Have you ever been sued by your cattle?
  • If the answer is yes, what was the outcome of that suit?
  • Have you received any correspondence or other communication from your herd’s legal representatives threatening suit or seeking to redress any legal grievance?

If you think that’s a ridiculous scenario, that animals suing their owners could never happen, think again. For years, the animal rights movement has quietly agitated to enact laws, convince the government to promulgate regulations, or obtain a court ruling granting animals the “legal standing” to drag their owners (and others) into court.

Animals are not (yet) legal persons or rights-bearing beings, hence, they lack standing to go to court to seek legal redress. That procedural impediment prevents animal rights activists from attacking animal industries “from within,” as, for example, by representing lab rats in class action lawsuits against research labs. This lack of legal standing forces attorneys in the burgeoning field of animal law—who are dedicated to impeding, and eventually destroying, all animal industries—to find other legal pretexts by which to bring their targets directly into court.

In 2006, the Humane Society of the United States—which has no affiliation with local humane societies—brought a lawsuit against Hudson Valley Foie Gras contending the company permitted bird feces to pollute the Hudson River. The Humane Society of the United States isn’t an environmental group, so why were they suing about pollution? The answer is that the animal rights group considers its legal adversary to be a “notorious factory farm.” But because it had no standing to bring a private case against Hudson Valley as guardians for the farm’s ducks, but still wanting to impede the farm’s operation, the Humane Society availed itself of the private right to sue directly as permitted under the Clean Water Act.

But imagine if the farm’s ducks could sue the farm. The Humane Society or any other animal rights group‚who, after all, would be the true litigants—could sue the company into oblivion. Indeed, if animals were granted legal standing, the harm that animal rights activists could do to labs, restaurant chains, mink farms, dog breeders, animal parks, race tracks, etc., would be worse than the destruction wrought by tort lawsuits against the tobacco industry. No wonder animal rights activists salivate at the prospect of animals being allowed to sue.

Animal standing has friends in some surprisingly high places—including potentially at the highest levels of the Obama administration. Senator Saxby Chambliss of Georgia, ranking Republican member of the Senate Agriculture Committee, recently announced he was holding up the confirmation of law professor Cass Sunstein—a close friend of the president rumored to be on the fast track for the Supreme Court—as the White House’s “regulations czar.” The reason: Sunstein explicitly advocates animals’ being granted legal standing.

In a 2004 book which he edited, Animal Rights: Current Debates and New Directions, Sunstein wrote:

It seems possible . . . that before long, Congress will grant standing to animals to protect their own rights and interests. . . . Congress might grant standing to animals in their own right, partly to increase the number of private monitors of illegality, and partly to bypass complex inquiries into whether prospective human plaintiffs have injuries in fact [required to attain standing]. Indeed, I believe that in some circumstances, Congress should do exactly that, to provide a supplement to limited public enforcement efforts.

It is worth noting that Sunstein’s commitment to animal standing has been sustained over time. He made a similar argument in an article published in the UCLA Law Review in 2000. His support for animal rights also extends to an explicit proposal in a 2007 speech to outlaw hunting other than for food, stating, “That should be against the law. It’s time now.”

The idea of giving animals standing seems to be growing on the political left, perhaps because it would be so harmful to business interests. Laurence H. Tribe, the eminent Harvard Law School professor, has spoken supportively of the concept. On February 8, 2000, less than a year before his Supreme Court appearance on behalf of Vice President Al Gore in the aftermath of the Florida vote controversy, Tribe delivered a speech praising animal rights lawyer Stephen Wise and arguing on behalf of granting animals the right to sue:

Recognizing that animals themselves by statute as holders of rights would mean that they could sue in their own name and in their own right. . . . Such animals would have what is termed legal standing. Guardians would ultimately have to be appointed to speak for these voiceless rights-holders, just as guardians are appointed today for infants, or for the profoundly retarded. . . . But giving animals this sort of “virtual voice” would go a long way toward strengthening the protection they will receive under existing laws and hopefully improved laws, and our constitutional history is replete with instances of such legislatively conferred standing.

But animal rights lawyers aren’t waiting until the law is changed before enlisting animals as litigants. While these efforts have so far been turned back by the courts, they have received respectful hearings on appeal. In 2004, an environmental lawyer sued in the name of the “Cetacean Community”—allegedly consisting of all the world’s whales, porpoises, and dolphins—seeking an injunction preventing the federal government from conducting underwater sonar tests. When a trial court found that the “Community” had no standing, the case was appealed to the Ninth Circuit Court of Appeals, where anything can happen. The court refused to grant the whales and dolphins standing, but in language that must have warmed every animal liberationist’s heart, it stated that theoretically, animals could attain the right to sue:

It is obvious that an animal cannot function as a plaintiff in the same manner as a juridically competent human being. But we see no reason why Article III [of the U.S. Constitution] prevents Congress from authorizing suit in the name of an animal any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles and mental incompetents.

Of all the ubiquitous advocacy thrusts by animal rights advocates, obtaining legal standing for animals would be the most damaging—which makes Sunstein’s appointment to the overseer of federal regulations so worrisome and Senator Chambliss’s hold on the nomination so laudable. Chambliss plans to meet with the nominee personally “to provide him the opportunity to fully explain his views.” Chambliss said:

Professor Sunstein’s recommendation that animals should be permitted to bring suit against their owners with human beings as their representatives, is astounding in its display of a total lack of common sense. American farmers and ranchers would face a tremendous threat from frivolous lawsuits. Even if claims against them were found to be baseless in court, they would still bear the financial costs of reckless litigation. That’s a cost that would put most family farming and ranching operations out of business.

But animal standing would do more than just plunge the entire animal industry sector into chaos. In one fell swoop, it would both undermine the status of animals as property and elevate them with the force of law toward legal personhood. On an existential level, the perceived exceptional importance of human life would suffer a staggering body blow by erasing one of the clear legal boundaries that distinguishes people from animals. This is precisely the future for which animal rights/liberationists devoutly yearn.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.