Today, more than two thirds of American households own pets. Annually, they spend more than $50 billion on their care, giving their dogs birthday presents and having professional photographs taken. In fact, according to some studies, many Americans grow more concerned when they see a dog in pain than when they see an adult human suffering. It’s as though household pets have become part of the family. And now, the law is starting to catch up.
Last year, the Illinois state house passed a law that would force divorce courts not just to divvy pets up between their “parents” in a custody battle, but to think about their well being, too. “It sort of starts treating your animal more like children,” says Illinois State Senator Linda Holmes, the legislation’s sponsor.
Illinois is only the second state to adopt a law that would consider the well being of animals in custody battles. A year ago, Alaska became the first to amend its divorce statutes so that judges are now required to consider it in their judgments. They can also assign joint custody over an animal. And while these state laws may at first seem limited, animal rights lawyers say that they are a step forward in the recent push to recognize the rights of animals—not as property, as they have historically been seen in the eyes of the law, but as sentient individuals, entitled to certain rights of their own.
“In the last five years or so, it’s gone from sort of this very fringe area of the law to very mainstream,” said Tony Eliseuson, a senior staff attorney at the Animal Legal Defense Fund. Not only could new laws recognizing animals as individuals spread to other states, but they might also provide a precedent for novel interpretations of the law, rippling out into other areas from veterinary malpractice to agricultural and entertainment industries, as activists challenge what they see as inhumane treatment of animals kept in captivity.
The idea that animals might have rights of their own is a relatively new one. For much of the twentieth century, the law considered pets, or companion animals, to be property—akin to a rug or a toaster. Before that, pets had even fewer protections: Someone could steal and kill a pet without facing any penalties. According to an article by Joyce Tischler, the co-founder of the ALDF, in the Stanford Journal of Animal Law and Policy, it wasn’t until the 1970s that the first animal rights cases were tried: In 1973, New York attorney Hank Holzer sought to stop religious ritual slaughter (which is allowed under the Humane Slaughter Act of 1958) and several years later, the abysmal condition of animals in New York City’s zoos. He lost both cases, but managed to draw public awareness—becoming, according to Tischler, the first animal rights lawyer in the United States.
Even though pet ownership has spiked in the intervening years (it’s increased 30 percent since 1988, when the first surveys were conducted), some activists say the American judicial system is lagging behind. A flurry of recent articles have made this case: The Huffington Post says, “Re-Classifying Dogs as Sentient Beings: It’s Time, America, It’s Time”; “Dogs are people too,” wrote Gregory Berns, a professor of neuroeconomics who scanned conducted MRI scans of dogs’ brains, in The New York Times; “If Canis lupus familiaris can be shown to have emotions, and a level of sentience comparable to that of a human child, there is a moral imperative to reassess how they are treated under law,” writer Susan McDonald argued in The Guardian. Similar arguments have been made for wildlife as well, particularly chimpanzees because of their high intelligence.
The United States wouldn’t be the first country to declare animals “sentient.” The European Union recognized animals as “sentient beings” in 2009 as an Article in the Treaty of Lisbon. United Kingdom environmental secretary Michael Gove promised to consider amending British law to recognize the EU’s article on animal sentience in November, after ministers sparked social media backlash for voting not to include this recognition in the EU Withdrawal Bill. The French National Assembly adopted the same recognition for animals in 2015, although the change was criticized as more symbolic than revolutionary. And the same year, both New Zealand and Quebec officially recognized animals as sentient beings, with New Zealand going so far as to ban the use of animals in cosmetic testing.
The new Illinois state law doesn’t go quite as far: It avoids explicitly using the term “sentient.” But according to Eliseuson, the law nonetheless has “formally recognized the sentient interests of companion animals and given the power to the court to put the rights and interests of animals ahead of their guardians”—one step closer to recognizing what other countries have acknowledged.
It’s easy to imagine activists pushing the law further. There are already inconsistencies that lawyers might leverage in a push to make the law more inclusive of animals. All 50 states have laws on the books to prevent cruelty against animals. Even though animals are still seen as property in many states, if someone murders their cat, they could be liable for a felony. This isn’t the case for other kinds of property; you can’t be held liable for hurting a toaster.
Some lawyers are already pushing the law to its extremes. Last July, for example, the ALDF asked a federal court to consider whether an animal is an individual in its attempt to get government documents about Tony, a tiger who lived at truck stop in Louisiana and suffered, according to the ALDF’s complaint, from “potentially severe health issues.” (Tony died three months after the case was filed.) The ALDF’s case, which is still pending before the Northern District of California, hinged on Freedom of Information Act requests, which can, according to federal law, be expedited in cases that “pose an imminent threat to the life or physical safety of an individual.” If animals are considered individuals, maybe they too should be accorded the same privilege, if their lives are in danger, the ADLF argued. To make their case, the lawyers looked not to abstract philosophy or moralism, but rather to Merriam-Webster’s dictionary, which not only did not define an individual as human, but even explicitly used a tiger in one of its usage examples: “The markings on tigers are unique to each individual.”
The Nonhuman Rights Project, a nonprofit organization, has adopted an even more revolutionary argument: that animals should be entitled to the right to not be unlawfully detained under habeas corpus. It has been filing writs of habeas corpus on behalf on wildlife, such as chimpanzees and elephants, to request that they be moved from captivity to an animal sanctuary. The organization’s founder Steve Wise has yet to win a case on this argument, but the argument isn’t totally without precedent: A court in Argentina granted a writ of habeas corpus for an orangutan named Sandra in 2014. But it’s still a long way off here in the United States. The consequences of giving animals personhood could just be too radical. “We kill millions of animals a day for food,” Richard Epstein, a law professor at NYU, told Harvard Magazine. “If they have the right to bodily liberty, it’s basically a holocaust.” (Epstein told Harvard that he advocates for giving animals protections without giving them rights.)
If any of these suits were to gain traction, perhaps the people most impacted would be veterinarians and kennel owners. Pet owners currently cannot typically collect damages beyond the economic value of their pet (no more than a few thousand dollars in most cases). If the law changed so that pets were no longer classified as property, vets could find themselves vulnerable to lawsuits demanding hefty damages for, say, loss of companionship or pain and suffering. (That’s why organizations like the American Veterinary Medical Association and the American Kennel Club have historically opposed efforts to bestow additional rights on animals.) And if animals were given full “personhood” rights, its ripple effect could extend well beyond the pet care industry, into every sector of the economy that works with animals, from agriculture and cosmetics to zoos and parks that hold animals in captivity, like SeaWorld.
“We should not fool ourselves into minimizing the implications of these lawsuits by thinking that they are, in the long run, only about the smartest animals,” wrote Richard L. Cupp, an animal law professor at Pepperdine, in 2015 in a legal journal. “How many species get legal personhood based on intelligence is just the start.”