Abstract

This Article presents a new paradigm, premised on the equal protection principle, for the legal regulation of domestic animals: Equal Protection of Animals (EPA). EPA combines the insights of vulnerability theorists with the equal protection principle and capability theory, to create a mechanism for recognizing the equal claims of human and nonhuman animals to protections against suffering. Under such an approach, domestic animals, like humans, have claims to sufficient food, hydration, and shelter; bodily integrity (including avoiding pain); companionship; and the ability to exercise and to engage in natural behaviors. Existing animal welfare and anti-cruelty laws, despite their stated purposes, fail to adequately protect animals. This Article identifies the ontology of the problem as interest-convergence, famously described by Derrick Bell in the desegregation context. The privileged (humans in this case) protect the disadvantaged (animals) only when their interests align. Because humans profit economically and socially from the exploitation of animals, interests often diverge. When this divergence occurs, all protections for animals are placed in jeopardy. Unlike protections for other disadvantaged groups, there is no constitutional or other legal floor guarding the basic liberties of animals. Interest converge results in what I term “legal gerrymandering for human use,” or the redrawing of the natural baseline of protections for animals, to further human use of animals. In addition to undermining fundamental protections for animals against abuse and suffering, legal gerrymandering creates inconsistencies that violate legal norms of precedent and procedure. Specifically, I address differential treatment of animals of the same legal and species classes as well as different treatment of scientific evidence in the animal law as opposed to other legal contexts. While some scholars seek to address the problem of inadequate animal protections, their proposals - treating animals as legal persons or quasi property - suffer two shortcomings. First, under traditional rights- and interests- based reforms, strong human rights or interests in using animals will always trump animal rights or interests, even with regard to avoiding some types of suffering. Second, existing scholarship is entrenched in a paralyzing debate about whether categorizing animals as “persons” instead of “property” will improve their legal protections. EPA does not have these limitations. EPA seeks to maximize the basic capabilities of human and nonhuman animals within the same population, addressing the hierarchy problem. Human claims to maximize basic capabilities cannot be valued above nonhuman animal claims for the same. Further, EPA directly considers animal capacities without regard to category; there is no need to categorize animals as persons or as a special form of property.