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Bench Memos

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The Gradual End of Human Exceptionalism



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Wesley Smith has written extensively and critically about the misguided but growing efforts, in certain circles, to equate humans with nonhuman animals. While this animal/human equation is often presented by its proponents as an elevation of animal dignity, the consequence would necessarily be a downgrading, even elimination, of the notion that humans are uniquely valuable. Animal welfare or “rights” could then trump human rights. As the character Dash from The Incredibles might have phrased it, if all animals are “special,” then none are.

This trumping is already happening, mostly under the radar. Just last month, for example, the state supreme court in Massachusetts held that the protection of nonhuman animals can justify even “a serious intrusion into one’s privacy,” specifically police breaking into one’s residential property without a warrant.

Naturally, the decision – Commonwealth v. Heather M. Duncan (Mass. Sup. Jud. Ct. Apr. 11, 2014) – involved sympathetic facts: two dogs dead, another starving and freezing to death in the backyard of a house. Such cruelty to animals is, of course, a crime and would justify issuance of a warrant to enter the property. Had the police obtained a warrant, the case would be no big deal.

But the police did not get a warrant. Instead, after unsuccessfully attempting to contact the residents, the police simply removed the padlock on the fence, entered the yard, and removed the dogs. One of the residents, Heather Duncan, was then charged with animal cruelty.

Duncan objected that the police had violated her federal constitutional right, under the Fourth Amendment, against warrantless searches and seizures. The police responded by invoking the “emergency aid exception” which “permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm (emphasis added)”.  The state supreme court thus faced the question of “whether warrantless searches of a home are permissible where they are intended to render emergency assistance to protect nonhuman animal life . . . Stated differently, the question is whether the public interest underlying the emergency-aid exception, in facilitating immediate first-aid response to those in danger of harm or physical injury, applies with equal force to animals (emphasis added)​.” 

Ponder this for a minute. Police can break down someone’s door to save a child or adult in imminent danger of life-threatening abuse. That’s understandable: we sometimes sacrifice privacy for the sake of precious human life. But what about when police break down the door to save a mistreated animals? Do we really want the government using its full power to superintend human treatment of pets?

Another question arises: Which animals merit protection to a sufficiently high degree that can trump human privacy? The Duncan case involved dogs. The state supreme court said in its ruling that “the species of the animal in need” was a proper consideration in such cases. But that means the courts will now be formulating a list or hierarchy of protected animals. Dogs presumably get more protection than crickets. But what about pet rats? Lizards? Frogs? Can the police break into your home when you are on a camping trip because you did not leave enough food behind for the newts?

Remarkably, the state supreme court identified several other courts — in Rhode Island, Washington, D.C., Montana, and California — that the court claimed had reached similar results in other animal protection cases. Tellingly, none of these cases predates the year 2000; i.e., this is indeed a recent trend, but a trend nonetheless.

 Everyone wants to protect cute puppies and other animals against the sort of horrendous mistreatment at issue in Duncan. But the price of that protection should not be the dilution of uniquely human rights.

— Walter M. Weber is senior litigation counsel at the American Center for Law and Justice. 



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