In reviewing Wise’s book Drawing the Line for the Wilson Quarterly, Scully observed that dolphins can correctly press levers marked "yes" and "no" in response to questions about whether a ball is in their tank, an African gray parrot named Alex can correctly identify objects, shapes, colors and quantities of up to six, and elephants are resourceful problem solvers. "What would legal personhood for, say, elephants amount to?" Scully asks. "Specific and well-enforced protections from the people who harm them--those engaged in the exotic wildlife trade, for example, or the vicious people who to this day still hunt elephants for trophies," he answers.

None of the available evidence adds up to a case for legal rights, say some scholars. Richard Posner, a federal judge and lecturer at the University of Chicago Law School, says, "It’s just not feasible to equate animals with humans. There are too many differences." The biomedical community defends its work as simply necessary. "It is pretty easy to sit around a table and intellectualize about [Wise’s] stuff and talk about what you’re willing to give up," Frankie Trull of the Foundation for Biomedical Research told The Daytona Beach News-Journal, "until you or somebody you care about is hit with some terrible disease."

Report From the Field

Wayne Pacelle, the activist vice president of the Humane Society of the U.S. (HSUS), points out that between 1940 and 1990 only one statewide initiative protecting animals was approved by voters (it was a mourning dove hunting ban in South Dakota, later reversed). But since 1990 there have been 38 statewide ballot campaigns, with the pro-animal forces winning in 24 of them.

Pacelle, who was personally involved in 22 ballot campaigns (17 of which won), describes them as "demonstrating our political strength. They pay many dividends and serve as a training ground for activists." Pacelle is a much-hated figure in the hunting, trapping, game fighting and biomedical research communities, and his pronouncements are frequently posted on their websites. "Are you supporting the HSUS ‘one step at a time’ political agenda?" asks Americans for Medical Progress, which quotes Pacelle as envisioning the use of the initiative process for "companion animal issues and laboratory animal issues and other issues that are appropriate." The U.S. Sportsmen’s Alliance posted an editorial accusing HSUS of "lies and deception" and Pacelle of "duping" Washington State voters.

It’s not surprising that HSUS in general and Pacelle in particular inspire such ire, since the group’s legal campaigns (run in coalition with many other organizations and local supporters) have been singularly successful. Since 1990, voters across America have approved measures, propositions and proposals to ban steel-jawed traps, prohibit airborne hunting of wolves, ban bear baiting, prohibit cockfighting, outlaw slaughter of horses for human consumption and prevent the expansion of greyhound racing tracks.

A major victory for animal groups last November was the 55-45 percent win on a Florida amendment to ban hog farm gestation crates, which confine pigs to two-foot by seven-foot cages while they’re pregnant. The crates, animal supporters said, "inhibit practically every normal pig behavior," give rise to crippling foot and leg injuries and produce sores and infections. When Elephants Weep author Jeffrey Masson calls the Florida victory--one of the first to regulate a factory farming practice on cruelty grounds--as "pure good," adding, "I’m convinced that 500 years from now it will be illegal to kill any farm animal."

Why appeal directly to the voters? "Special interests often control key committees in the state legislature," says Pacelle, "and they can thwart the popular will, making it difficult to get bills passed. It’s better to get it done with voter initiatives."

HSUS and other groups have tried to get national legislation passed, but Congressional lobbying makes that nearly impossible. Most of the measures attached to the recently approved federal farm bill, which went after so-called "puppy mills" (which produce large numbers of dogs under poor conditions for a quick profit), opposed killing black bears for their gall bladders and attempted to legislate treatment of the "downer" cows that are handled by slaughterhouses, were eviscerated or turned into "studies" during House-Senate conferences. Only provisions combating cock and dog fighting were left.

HSUS and the Fund for Animals jointly sponsor a Humane Scorecard that rates politicians for their voting records on animal issues, a process that has led the group to endorse many Republicans, including Elizabeth Dole in her successful North Carolina Senate race. Republican U.S. Senators with pro-animal voting records include Robert Byrd of West Virginia, Bob Smith of New Hampshire (no longer in office) and John Warner in Virginia. Former veterinarian Wayne Allard, a Colorado Republican, has won the animal groups’ favor for sponsoring legislation against cockfighting, though he’s no friend of the environment. (His 2001 League of Conservation Voters score was 13 percent.) Major animal rights groups sponsor Humane USA, a political action committee whose fondness for Republicans helps explain its relatively rosy view of last November’s elections: 17 of its 23 Senate picks won, as well as 205 of its 214 House choices.

The Animal Legal Defense Fund has an equally successful record, and a 20-year history. Founded by Joyce Tischler in 1979 as Attorneys for Animal Rights, it held its first conference on animal rights law in 1980. Highlights of its two decades of fighting for animals include helping to block the importation of 71,500 rhesus monkeys from Bangladesh for use in research (1983), challenging veal farming in Massachusetts (1984), suing to prevent the Navy from using dolphins in defense work (1989), petitioning to have birds, rats and mice used in research protected by the Animal Welfare Act (1990), founding the first of what are now two dozen student-based college chapters (1993), working to prosecute purveyors of animal "crush" videos (1999) and suing to block wild horse roundups (2001). It is just starting work on a body of animal protection laws in China.

"Animal rights law is just now catching on," says ALDF President Steve Ann Chambers. "It’s being taught in 25 to 30 law schools and is cited in legal textbooks. Mainstream law is no longer laughing at us." The University of Chicago’s Cass Sunstein points out, "As more people in academia start discussing animal law and more law schools add courses on the subject, you’re going to see more people practicing law who are committed to the well-being of animals. And that’s going to have a huge impact."

The record is less successful on the legislative front, Chambers admits. "We’d like to see the interests of animals recognized in the legal system, with enforceable penalties," she says. There is no body of civil law that protects animals--as long as basic needs are cared for and there’s no obvious cruelty, owners have the final say in how animals are treated. She cites the case of Moe, a 32-year-old chimpanzee who was kept for decades in a small cage in a Los Angeles suburb. ALDF tried unsuccessfully to get itself appointed as Moe’s representative in the case (as a "Guardian ad Litem") when Los Angeles finally seized the chimp. (The story has a happy ending anyway: Moe ended up in a sanctuary.)

The law makes very slow progress. Chambers says 19 states now have laws recognizing animals as beneficiaries of estates; silly, perhaps, but a possible step in recognizing their standing in court.

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