The Magazine

So Three Cows Walk into Court .  .  .

Animal-rights extremism in the Obama entourage is no joke.

Jul 20, 2009, Vol. 14, No. 41 • By WESLEY J. SMITH
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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: