NonHuman Rights Project
As a young child, I was fascinated by nonhuman animals and felt a strong connection to them. When I saw these magnificent individuals confined in cages, I knew it was very cruel and very wrong. I agonized over the monkey kept in a cage at the local department store and the wild animals kept in the zoo for no reason other to amuse the public. I agonized over the stately elephant being made to perform circus acts—acts that are not natural to them– just to entertain and make a profit for their human owner. I was heartbroken to see what had become of these animals, to see the loneliness and fear in their eyes. Unfortunately, they have no voice and no choice because legally they are considered property, like a piece of furniture, with no legal rights.
Giving nonhuman animals legal rights does not mean giving them the right to vote, as is often cynically and sarcastically suggested. But it does mean granting them the right not to be abused, not to be taken from their natural habitats, and not to be kept in environments detrimental to their natural way of living.
Granting legal rights to nonhuman animals will enable their legal advocates to:
- Utilize the law to address injury done to them
- Have the court acknowledge and take account of that injury
- Gain legal relief in the court for their direct benefit
An evolution from property status with no rights to a new legal rights status can be achieved through the common law. A judge’s opinion in one case can change the common law status of great apes, elephants, dolphins, and whales from mere property (things) which lack the capacity to possess any legal right, to beings that possess such fundamental rights as bodily liberty and bodily integrity.
Most judges, however, are reluctant to move the law forward to fill a void in the law or to recognize a new right or one previously withheld. They make decisions grounded in precedent because a judge before them made a decision based on precedent – right or wrong.
But mindless faithfulness to precedent is not sufficient justification to support judicial decisions that are wrong in principle, or that no longer adequately serve the interests of justice. Precedents should not be used as a shield to deny rights to nonhuman animals. Rather common law permits adjustments and development in American law and is a powerful mechanism for change. Common law has the power to abandon principles when our courts conclude that the principle no longer is compatible with society’s norms or to modify principles when necessary to avoid injustice. This is the current posture of the law–counter to the arc of society’s norms and unjust– for nonhuman animals who have no rights.
Unfortunately, expansion of rights for nonhuman animals will always be met with the tired slippery slope argument. The slippery slope argument allows decision makers to promote the fears of their perceived allies and avoid what is possible today. Just as fear did not justify the delay in striking down school segregation, granting equal protection for women, and decriminalizing homosexuality, fear of potential abuse of our legal status quo cannot be a legally sufficient reason to deny an opportunity to correct an injustice today.
Not extending basic rights to nonhuman animals raises important ethical questions that are not easily dismissed. And as scientific research produces a more accurate picture of the planet, it often reveals ways that human attitudes and behavior are out of sync with a moral society and natural law.
But deficiencies and gaps in the law need not continue. The power and flexibility of common law empowers the courts to evolve and make just decisions to rectify archaic rules. In light of the social, moral, and scientific developments extant in American society today, property status that currently plagues nonhumans should no longer stand.
Courageous and empathetic judicial decisions by a single judge can fundamentally change the course of a court and a society. Through the writ of habeas corpus, protection and relief can be conferred on nonhuman animals if the court is willing to exercise its common law power to correct injustices and ensure that nonhuman animals’ living conditions and treatment are consistent with their level of autonomy.
Current law permits habeas reviews to obtain transfers to better quality and less restrictive facilities in other legal contexts and would be just as effective for nonhuman beings seeking a transfer to a sanctuary. Many sanctuaries throughout the United States allow nonhuman animals to live and socialize freely as their psychological and physical well-being demands, creating a positive, safe, and healthy environment for all of their residents.
Looking back on U.S. history, the rights of Asians, African-Americans, women, children, indigenous people, disabled, elderly, gays, and many others were deprived of basic rights because the courts and the law followed existing decisions. These decisions maintained the status quo of power and economic advantage. Likewise, today, the only reason nonhuman animals have no rights is because we have made a conscious choice to deny them rights.
Future generations will look at this time in history and wonder how we failed as human beings to take a stand for those who are still denied the basic right to be free from captivity and abuse, the right to live in their native and natural habitat.
We choose how we treat nonhuman animals under the law. We have made the choice to give legal rights to corporations, but not to nonhuman animals, even though science and research have confirmed that humans share almost 99% of DNA with that of chimpanzees.
Around the world, ships, religious idols, holy books, rivers, a national park, a mountain, and the Columbian Amazon have been granted legal rights. A chimpanzee in Argentina named Cecilia was transferred to a sanctuary and protected with legal rights via litigation modeled on Nonhuman Rights Project. https://www.nonhumanrights.org. More examples of nonhuman rights surface as humans evolve.
So, ask why U.S. Courts will not confer basic rights on nonhuman animals. Part of the answer might be found in Ted Kennedy’s eulogy of his brother Robert at St. Patrick’s Cathedral, New York City, June 8 1968.
“Few are willing to brave the disapproval of their fellows, the censure of their colleagues, and the wrath of their society. Moral courage is a rarer commodity than bravery in battle or great intelligence. Yet it is the one essential, vital quality for those who seek to change a world that yields most painfully to change.”
All of human history shows that the only way to protect human beings’ fundamental interests—even their bodily integrity—is to recognize their rights. It’s no different for nonhuman animals.
Senator Kennedy ended the eulogy by quoting his brother. “Some men see things as they are and say why. I dream things that never were and say why not.”
For nonhuman animals, the fight and the question remains. Why not?
Footnote: The term nonhuman animal rights and animal welfare are often used interchangeably, but their focus is very different.
Animal welfare focuses on improving the ways we treat animals without necessarily changing their underlying circumstances. For example, you might pass an animal welfare law that increases the size of an elephant’s enclosure in a zoo or circus. Clearly this is an improvement, but the elephant is still deprived of her liberty.
Nonhuman animal rights focus on the fact that nonhuman animals have their own inherent interests, just as humans do, and calls for these interests to be protected through the law.
Until nonhuman animals rights are protected by law, animal welfare laws are necessary to protect animals from human-caused harm. I am thankful for the thousands of animal organizations and individuals working around the clock, year after year, to protect animals and their welfare and am grateful for their dedication and count many of them as friends and allies.
For nonhuman animals’ rights, the fight continues in the courts by The Nonhuman Rights Project, the only civil rights organization dedicated solely to securing rights for nonhuman animals. For further information on NhRP litigation, legislation, advocacy, and education please contact https://www.nonhumanrights.org/.
Thank you for reading and thank you for all you do. Together, we will make a difference for nonhuman animals and, in turn, humans and our planet.
Pat Guter, JD
2501 M Street NW Unit 206
Washington DC 20037