Justin Marceau | Vox

Can dogs be considered “persons” under the law ?

2026-03-06T16:47:18-05:00

A dog inside Ridglan Farms photographed as part of an investigation by the animal rights group Direct Action Everywhere. | Direct Action Everywhere

Outside the rural town of Blue Mounds, Wisconsin, about 2,000 dogs await their fate in small wire cages. They are confined at Ridglan Farms, a large-scale breeding operation that supplies beagles for research labs across the country. The current law treats the dogs as property of the company. We and others suggest that the conditions of their confinement have been so bad that their own legal rights should prompt their release.

Ridglan Farms has come under increasing scrutiny for nearly a decade, based on allegations of serious animal mistreatment. In 2024, a special prosecutor was appointed to consider felony cruelty charges. After finding substantial evidence to back these accusations, prosecutors agreed to not pursue the charges on a single condition: Ridglan would close its sale and breeding-for-sale operations by this July (but keep its license to breed dogs for its own research purposes).

This is a major victory for animal advocates and for animal law. But it is a pyrrhic one for the thousands of beagles still confined there; many may be killed or sold to other laboratories before the July shutdown takes effect.

One of us (Justin Marceau) has been involved with the case from its early days, including helping to arrange for the appointment of the special prosecutor. Once the settlement was reached, as animal law scholars, we wondered what legal possibilities there might be for helping to transfer the remaining dogs before their fates were sealed. A law clinic founded by Marceau, the Animal Activist Legal Defense Project, run through the University of Denver Sturm College of Law, teamed up with the Nonhuman Rights Project to bring a seemingly radical case to the courts: These dogs should be considered legal persons too.

This may at least hold true for these dogs, who are being kept in such well-documented cruel confinement. The basis? A habeas corpus petition. One of the oldest common law writs, it harnesses a court’s power to demand of a jailor justification of a person’s imprisonment.

Such cases have so far failed to result in the release of chimpanzees and elephants, where the goal has been to have them transferred to sanctuaries. This new case, filed on behalf of the dogs at Ridglan Farms, brings a new approach, arguing that they have a legal right to a hearing on whether they are being held illegally based on the special prosecutor’s finding that a felony-level animal cruelty charge was justified and could have been brought. It is a novel approach and may open new opportunities for animals and their advocates.

Can animals be treated like persons under the law?

The origins of habeas corpus as a legal claim for humans predate even the Magna Carta (from 1215). As a law, it was formally codified in the UK in the 17th century and carried over to North America by English colonists as an important way to protect against illegal imprisonment. It became a standard feature of US state-level laws and constitutions by the mid-19th century. In the case of Wisconsin, habeas corpus is as old as the state itself, having been included in its original state constitution in 1848.

Under a habeas corpus claim, a judge can order someone holding an imprisoned body (the “corpus” part of habeas corpus) to justify the confinement, specifically to show that it is not unlawful.

The Nonhuman Rights Project — founded by pioneering animal lawyer Steven Wise — has been bringing habeas petitions for chimpanzees and elephants since 2013, arguing that, due to their cognitive complexity, these animals have enough “practical autonomy” to make them a deserving recipient of this old and venerable process, a privilege that to date has been reserved for human beings. The group’s most famous case involved an elephant named Happy living at the Bronx Zoo. Originally from Thailand, Happy had been at the zoo since 1977, where she was living without elephant companionship since 2002. Happy famously passed the mirror self-recognition test, what many scientists see as an important demonstration of human-like self awareness. Ultimately, Happy was not released, and in 2022 the courts — as they have in each case of this sort to date — ruled that only humans can be “persons” for purposes of habeas corpus relief.

Up until now, the legal strategy of pursuing habeas for animals has hinged on animal cognition or some rough comparisons to human abilities. The claim is not exactly that human-like capacities are prerequisites for relief, but they are emphasized as a sufficient basis for relief. So the cases often focus considerable scientific attention on developing the claim that the animal in question is sufficiently autonomous and advanced so as to justify being treated legally as a person — rather than a mere piece of property. Such cases continue to garner public and judicial attention, quite rightly, in no small part because they marshal an impressive scientific record in support of recognizing animals as legal persons.

The new case on behalf of the beagles matters not only because it may represent a last-ditch effort to save the dogs, but also because it materially expands the scope of animal rights litigation by the Nonhuman Rights Project. For the first time the group has pursued a legal strategy that does not hinge on animal cognition or what preeminent moral philosopher Martha Nussbaum has called “so like us” comparisons to human abilities. Instead it rests on the straightforward claim that animals held in violation of statutory duties (more on that shortly) may seek their freedom through habeas corpus.

Wise himself thought dogs did not reach the benchmark for practical autonomy when he published Drawing the Line: Science and the Case for Animal Rights in 2002. His plan was, after taking on elephant clients, to move to orcas, always showing that these animals have unique cognitive capacities that are rigorously substantiated by expert research. This new case makes no such claims of scientific support and does not turn on the cognitive or human-like sensibilities of dogs.

This shift opens up a fresh and potentially transformative way of thinking about animal rights in law. Here, the idea is that the right of an animal to not be treated cruelly, at least in exceptional circumstances such as these, can be vindicated through habeas corpus.

What this means for these dogs — and other animals

Wisconsin law technically should prevent cruelty to animals, as it asserts that “No person may treat any animal…in a cruel manner” (Wisconsin Statutes Section 951.02). Allegations of mass confinement of thousands of dogs and puppies in cages in an unsanitary environment, without exercise/enrichment causing extreme stress and trauma, without proper veterinary care, etc., seems like it ought to fit that bill, but it becomes challenging when the “person” in question is a faceless company, and the “animal” numbers in the thousands. Each animal in this case is an individual and at a species level is no different in terms of his or her makeup than the ordinary family dog even if it is difficult to wrap one’s mind around the logistics of trying to help all of them. Why should we feel compelled to do it? What do we owe to dogs anyway?

Dogs’ attachment to humans makes them quite reliant on us, whether as pets in the home or stray dogs who rely on the food scraps and sheltering opportunities created by human settlements. As Wise himself wrote, “Dogs have become extremely attached, even dependent, upon us, as our children are, sensitive to our desires and feelings, because for millennia we bred them to be that way.” Philosophers Sue Donaldson and Will Kymlicka argue in their book Zoopolis: A Political Theory of Animal Rights that the dependency of domesticated animals in turn bestows upon us especially strong duties toward them. Such duties arising out of a species-wide dependence or connection might provide a case for recognizing animal rights that is no less strong than one grounded in cutting-edge animal cognitive science.

Beagles are prized in research precisely because they are gentle and compliant; they have a unique willingness to trust and submit. As University of Toronto bioethicist Kerry Bowman put it after revelations about inducing hours-long heart attacks in otherwise healthy dogs in a hospital in London, Ontario, dogs and beagles in particular “are very, very trusting and very willing to work with people, be with people and attach with people, and it is that very behavior in the dog that they take advantage of because they can then manipulate the dogs with all these very invasive, nasty procedures.” At Ridglan, that trust was met with allegations of brutal treatment — including a lack of stimulation or play, no access to the outdoors, and invasive procedures, such as “cherry eye” removal surgeries, performed without anesthesia or proper veterinary supervision, that amount to cutting swollen eyelids off with scissors. The dogs who remain there reportedly live amid constant barking, packed into small wire cages that cause chronic foot injuries and visible psychological breakdowns, including endless pacing in tight circles — a classic sign of severe distress. They are at risk of such surgeries (or worse ones) being performed on them again at a new research facility if they are sold and subjected to further experimentation.

The case against Ridglan offers a chance to translate some of our duties toward these dependents into legal ones. The case for freeing these dogs held in what appear to be classically cruel conditions we think is compelling in a number of ways.

First, prior habeas cases for nonhuman animals challenge the confinement of animals at facilities like zoos, where the judges may assert — often incorrectly — that the conditions are adequate and even enjoyable for the animals. As a result, the litigation asks courts to disrupt socially normalized, familiar institutions. The legal arguments must contend not only with doctrine but also with ingrained, inaccurate cultural assumptions about zoos as benign places. By contrast, the legal filing against Ridglan contains images of beagles in the facility that would be impossible to see as anything other than a violation of the most basic of animal rights.

Second, the Ridglan case requires no special sanctuary transfers and there are no debates about whether one or the other environment is only marginally better or worse for the animal. Lawyers for zoos holding elephants are famous for (often incredulously) defending their enclosures and arguing that moving the elephants to a larger sanctuary is a small improvement at best, and may actually be harmful to the elephant given the rigors of transport or their current poor state of health due to the length of their confinement. By contrast, it’s highly doubtful that the beagles crammed into tiny cages with no toys or companionship or access to the outdoors will be better off than if they are released to ordinary homes with people who will give them a chance at a normal doggie life. In this sense, it is easier to understand what upholding the beagles’ rights would mean for the dogs.

Lastly, it is worth noting that by focusing on the domesticated and dependent nature of the animals — and their right not to be cruelly treated in confinement — the litigation may offer animal rights lawyers an opportunity to move beyond criticism that prior litigation has focused too much on the abilities of animals, and in the process privileged certain traits or even certain species of animals — namely the ones we’ve characterized as super smart. Feminist legal scholar Maneesha Deckha has probably done the most to highlight that this strategy problematically creates a benchmark that some humans might not meet and most animals will never be able to reach. It’s like saying that among all the humans, the only ones who really get to be protected by the law are able-bodied, white, male, and cisgendered. Focusing on dependency will allow the field to embrace what philosopher Jennifer Nedelsky has called “a relational theory of self, autonomy, and law” in which we see ourselves as living fundamentally in relation to others.

To be sure, Wise and the Nonhuman Rights Project had a principled reason for initially focusing on just a few species, and doing so based on their proven cognitive capacities. Such a strategy is a way of threading the needle between the human and animal world, and a way of attempting to attract judges. The cognitive approach has gained traction with some judges, notably two dissents in Happy’s case, a concurrence in a case regarding chimpanzees, and an earlier case in which the judge recognized legal personhood is a legal fiction and it was a matter of policy, not biology, who is included in it and gets to count under the law — but didn’t think it was a decision she could issue. No court in the United States has yet granted the release of an animal under the cognitive capacity approach to habeas and most of the judges have reacted poorly to comparisons to human groups.

At the end of the day, Wise was an iconoclast precisely because he dared to think about new ways to protect animals through law. But he was not dogmatic. By seeking to vindicate the rights of dogs who are confined in documented cruel conditions, it is possible to conjure a theory of animal rights that is not particularly shocking to judges or the public. The Ridglan freedom-from-cruelty suit continues Wise’s bold vision, challenging the legal system by asking a question that is at once both radical and modest: Do animals have a right to be free from cruelty, at least some aspects of which, a prosecutor was prepared to find was felony-level illegality?

Where the case stands now

Only a week after the case was filed late last month, a Wisconsin trial judge dismissed it. But an appeal will be immediately pursued once the court issues a written judgment.

Important to the appeal will be a response to the question why the settlement agreement between the prosecutor and the company should not be the end of the matter, dealing definitively and conclusively with the claims of all parties. The answer? That settlement agreement is not one the dogs agreed to. They were not a party to it despite the fact that they are the ones most directly affected. Like the victims in a human criminal case, they should not be left where the crimes occurred, facing ongoing cruel conditions and high risk of new abuses, just because the government and the company have worked out something they can both live with. What about what the dogs can live with? Shouldn’t the agreement also require their consent or some reasonable stand-in for it? The groups bringing the action are effectively asking to be the “guardian ad litem” or guardian for the lawsuit, helping the dogs speak up to say that they did not consent to the agreement and being left at the facility.

Representatives for Ridglan Farms noted that, “If successful in this case, the animal activism community will undoubtably [sic] use this same justification to repeatedly seek to halt the use of animals for food, research, hunting, fishing and other activities that involve animals,” according to a statement they provided to a local ABC news station.

Pointing to a slippery slope and marching out a supposed parade of horribles that would ensue if the law were to protect these particular animals, while a typical reaction, steers the public away from what actually could occur if the habeas petition is honored. Granting habeas corpus in this case would have no impact on what humans can eat because the case is not about animals used for food, who are regulated differently from animals used in research. The case also does not argue that no dogs can ever be held by humans, or even that other types of animals cannot be confined for other purposes. And it wouldn’t enable someone to “liberate” your dog; the government would still control such a prosecution in the case of alleged mistreatment. These particular dogs would be “persons” only for the very limited purpose of a hearing to determine if their living conditions at Ridglan Farms violate their right to be free from criminal cruelty and its ongoing threat. They would effectively be made legal persons for a limited purpose and with limited effects, to challenge the conditions of their confinement, not confinement per se for other animals in other situations.

The larger claim in the lawsuit, ultimately, is still a relatively small one: Lawyers should be able to use the courts to challenge captivity that is arguably illegal, and have a court determine whether the animals should be freed so as to avoid breaking the law. By requiring a justification, the captor must appear publicly to defend their actions, telling the court — and everyone listening — why what they are doing is okay. This is important when a lot of people do not seem to know what these dogs’ lives are like, the conditions they live in and risks to which they are routinely exposed.

The court that dismissed Happy the elephant’s case made a lot of grand gestures toward the supposedly robust protections that exist for animals in US law today. At that time we wrote about how this was “almost laughable” given the realities of so many animals’ lives and the ways in which the laws (including those which are supposed to protect them) routinely facilitate their use and abuse. This case with the dogs at Ridglan offers a chance to give proper effect to protection laws that do exist and for a judge to use habeas to do the right thing for the animals, these particular animals, who have a shot at a very different fate.

At the end of the day, if there was enough evidence of felony-level animal cruelty found to justify shuttering this breeding-for-sale facility, then so too it seems like it should warrant the release of the dogs. They are the parties at the heart of the matter. They should not be left out of the process and its resolution, as if the matter doesn’t concern them at all when nothing could be further from the truth. It should be all about them.

43 lab monkeys escaped in South Carolina. They have a legal claim to freedom.

2024-11-12T20:39:17-05:00

Monkeys at the Alpha Genesis research facility in Yemassee, South Carolina.

Last week, 43 monkeys, all of them young female rhesus macaques, escaped from the Alpha Genesis research laboratory in Yemassee, South Carolina, when an employee failed to properly secure the door to their enclosure.

It wasn’t the first time something like this happened at Alpha Genesis, a company that breeds and uses thousands of monkeys for biomedical testing and supplies nonhuman primate products and bio-research services to researchers worldwide. In 2018, the US Department of Agriculture (USDA) fined the facility $12,600 in part for other incidents in which monkeys had escaped. “We’re not strangers to seeing monkeys randomly,” a nearby resident and member of the Yemassee town council told the New York Times.

Alpha Genesis is now working to recapture the macaques, who are each about the size of a cat; over the weekend, 25 of them were recovered. Meanwhile, the animal protection group Stop Animal Exploitation Now, which for years has filed federal complaints against the facility, has called on the USDA to prosecute Alpha Genesis as a repeat violator of its duty to keep the animals secure.

“The recovery process is slow, but the team is committed to taking as much time as necessary to safely recover all remaining animals,” a Facebook post from the Yemassee Police Department said, attributing the comment to Alpha Genesis CEO Greg Westergaard.

In one way, this is a story about what looks like a corporate failure. But there is another way to understand this situation, both legally and morally. What if these intrepid macaques, who the lab has said pose no threat to the public and carry no infectious diseases, have a legal claim to freedom?

The legal status of wild animals is more contested and malleable than ever, evident in the recent court case arguing that Happy, an elephant living at the Bronx Zoo, was a legal person entitled to freedom, the phasing out of animal use at entertainment venues like circuses, and the end of US lab experimentation on chimpanzees. While Alpha Genesis may have a strong financial incentive to recapture the escaped monkeys, longstanding legal doctrines suggest that the 18 monkeys still at large may not belong to the company as long as they remain free and outside of its custody.

When a captive animal becomes free

For many people, the idea of a lost animal becoming the property of another person might seem absurd. Certainly, no one would imagine forfeiting the companionship of a beloved dog or cat because the animal got out of the yard and was found by someone else. Neither law nor morality treats the escape of a domesticated animal as tantamount to a forfeiture of all claims to the animal.

But when it comes to wild animals, the law is different.

When a captive wild animal escapes, their captor generally remains liable for any damage the escaped animal creates to persons or property, but they may lose ownership of the animal, especially if the creature integrates into an existing wild population (sometimes called “reverting to the common stock”). That might sound unlikely for rhesus macaques in the US — the species is native to South and Southeast Asia and has been exported around the world for lab testing. But it turns out that it’s perfectly possible to live as a free-roaming rhesus macaque in South Carolina, where a more than four-decade-old population of the monkeys resides on the state’s Morgan Island, also known as “Monkey Island.”

Originally relocated from Puerto Rico between 1979 and 1980, the Morgan Island macaques now serve as a kind of reservoir of lab monkeys for the US government. Last year, Alpha Genesis won a federal contract to oversee the monkey colony there — in fact, the 43 escaped macaques had originally lived as “free-range” monkeys on the island before they were taken to be used for testing and research purposes, the US Centers for Disease Control and Prevention told CBS News in a statement. While these monkeys may not be able to rejoin the Morgan Island colony on their own, the fact that they came from a wild population strengthens the view of them as animals who not only can live in the wild but who deserve to be free.

Our modern understanding of animals’ legal status derives from 19th-century American common law cases, which adopted the classical Roman legal approach to wild animals, or ferae naturae. Under that system, wild animals were a special type of property known as “fugitive” property because they could move freely and weren’t owned by anyone before being captured by a human. This created unique legal challenges — for example, conflicts between two hunters claiming the same animal — that can help us understand the case of the escaped monkeys.

The 1805 New York Supreme Court case Pierson v. Post, sometimes considered the most famous property case in American law (and about which one of us has written a book), is the starting point for understanding who legally owns a wild animal. In a dispute between two hunters, one who had been in hot pursuit of a fox and one who swooped in to kill the animal, the case held that the property interest of the latter was stronger. The court made clear that a definitive capture, and not pursuit alone, was necessary to establish and retain ownership of a wild animal.

In 1898, another New York case, Mullett v. Bradley, went further by recognizing that capture alone is not sufficient to claim ownership of a wild animal if the animal is able to escape and regain their liberty. The court found that a sea lion who had been brought by rail from the Pacific Ocean to the East Coast and later escaped from an enclosure in Long Island Sound was legally free until he was captured by a different person two weeks later. Cases like these gave rise to a doctrine that legal scholars now call “the law of capture,” which holds that if a captive wild animal escapes and control over them is lost, they no longer necessarily belong to the party who had previously captured them.

This line of legal reasoning generally works to the detriment of animals, ensuring that each generation of law students learns that animals are ours to possess and use for our own ends. But in the case of the escaped South Carolina monkeys, the law of capture raises doubt about whether the lab retains ownership of the animals unless and until it recaptures them.

A more recent Canadian case suggests that the law of capture may indeed offer a path to rescue for escaped animals like the South Carolina lab monkeys. In 2012, Darwin, a Japanese snow macaque, became a worldwide media sensation when he was found roaming through an Ontario Ikea store wearing a shearling coat and a diaper. While Darwin had been kept as a pet, a Canadian court ruled that he was a wild animal, and his owner lost her rights to him after he escaped from her car. Toronto Animal Services captured Darwin inside the store and transferred him to a primate sanctuary, where he could live among other macaques.

Still, one could argue that the escaped lab monkeys in South Carolina are effectively domestic animals who belong to their owner. Alpha Genesis has put resources into housing and raising them, including managing the monkey population on Morgan Island. But unlike pets who have been domesticated over many generations to live safely among humans, these rhesus macaques retain their wild instincts — they’ve been described as skittish, and food is being used to lure them into traps.

If the monkeys were to return on their own, like a house cat coming home after a day of adventure, the legal case for viewing them as domestic animals would be stronger because wild animals, once they stray, must have no animus revertendi, or intention to return. So long as these monkeys express their desire to remain free by evading capture, they should be considered wild animals. A 1917 Ontario court case, Campbell v. Hedley, involving a fox who had escaped a fur farm, established a similar principle, finding that the animal remained wild and thereby became free after fleeing the farm because they belonged to a species that “require[d] the exercise of art, force, or skill to keep them in subjection.”

There are, to be sure, cases in which common law courts have found losing control of an animal does not result in a loss of ownership. A 1927 Colorado case, Stephens v. Albers, held that a semi-domesticated silver fox who escaped from a fur farm still remained the property of that owner. And questions about the ownership of wild animals are infinitely debatable, as any good student of Pierson v. Post will tell you.

While these past cases offer important insight into the treatment of wild animals under common law, none of them took place in South Carolina, so courts in that state could consider them for guidance but wouldn’t be required to follow them when deciding who owns the escaped Alpha Genesis monkeys (and nothing in this piece should be construed as legal advice).

The moral meaning of animal escapes

Yet the law of capture aside, the plight of these monkeys is also interesting to us as legal scholars because it highlights one of many disconnects between the law and our moral intuitions about animals who have escaped and who are seeking or being afforded sanctuary. As journalist Tove Danovich has written, there is often great public sympathy and compassion for animals who escape painful confinement or slaughter at zoos, factory farms, or research labs — even among people who might otherwise tolerate the very systems that normalize those animals’ suffering. The public’s outrage when a single cow who escapes slaughter is gunned down by authorities is palpable and crosses ideological lines.

There is something enchanting and powerful, even romantic, about the idea of an animal escape, especially if it results in the animal’s rescue from confinement. Yet the law generally fails to recognize the moral tug that these escapes place on our collective conscience.

In a recent high-profile case in upstate New York, two cows wandered onto an animal sanctuary after escaping from a neighboring ranch. Unlike the South Carolina monkeys, these were straightforwardly domesticated animals, and the response from local law enforcement was harsh.

The sanctuary owner, Tracy Murphy, was arrested, shackled, and faced criminal liability for taking the cows in and refusing to immediately turn them over for slaughter (one of us, Justin, was defense counsel for Murphy, whose case was dismissed last month after a two-year legal battle). Her aid to two escaped cows was widely vilified by her neighbors and by local law enforcement because our legal system continues to treat many animals as property without any recognized rights or interests of their own.

The law is unlikely to swiftly abandon the archaic notion of human ownership over nonhuman animals. But we believe the law does implicitly recognize a right to rescue escaped animals, at least those who are lucky enough to make it on their own steam. We hope that the case of the escaped South Carolina monkeys will inspire conversations about the right of at least some animals to liberate themselves from exploitation and harm at human hands. Escapes are rare, but when they happen against all odds, we might ask ourselves, on both legal and moral grounds, whether the animals have a claim to freedom.

The Supreme Court’s ruling on Prop 12 is a win against factory farming. But the pigs’ lives will still suck.

2023-05-12T14:40:30-04:00

Pigs confined in gestation crates on a pork farm in Canada, photographed in 2022. | Jo-Anne McArthur/We Animals Media

The US Supreme Court rarely has occasion to hear an animal law case. Laws having to do with animal treatment are primarily matters of state law, and, historically speaking, precious few of them have threatened industrial animal exploitation to a degree that major federal lawsuits emerged. But California’s Proposition 12, a 2018 ballot measure that was approved by more than 62 percent of voters, sufficiently rankled the US pork industry that it filed a federal lawsuit and, after repeatedly losing, appealed all the way to the Supreme Court.

Prop 12 bans the sale of pork in California from farms anywhere in the country that confine pregnant pigs in “gestation crates” — cages barely bigger than their bodies — for almost their whole lives. This is standard practice in modern pork production, which meant that California’s requirement that female pigs kept for breeding simply have enough space to lie down, stand up, turn around, and stretch their limbs was regarded as an existential threat by the US pork lobby.

A divided Supreme Court upheld the California law yesterday, in a ruling that holds important implications for judicial power under the Commerce Clause of the US Constitution. The case also reflects a vast gulf in US animal law, between those who seek to make the law actually reflect animal well-being and the meat industry officials who usually get to determine what constitutes acceptable animal treatment on factory farms across the country.

In the animal welfare movement, the case has been closely watched and hugely consequential. Had Prop 12 been struck down, as many feared it would, given the Court’s conservative majority, it would have erased years of hard-won progress for animal protection and foreclosed the power of progressive states to regulate products produced under the cruelest factory farm conditions. Now, the US animal movement has the opportunity to further empower ordinary citizens to make decisions about animal treatment democratically, rather than letting corporations decide what counts as animal cruelty.

The pork industry argued for a constitutional right to unaccountability

Within hours of the Supreme Court’s decision, Chuck Grassley, the senior US senator from Iowa, by far America’s top pork-producing state, had taken to Twitter to proclaim that the decision was “an attack on your breakfast.” Although Prop 12 only requires about 24 square feet of space per pig, a minor improvement over current standards of about 14 square feet in gestation crates, pro-factory farming commentators declared that the decision amounts to a “major blow to the pork and ag sector.”

Disappointing news the Supreme Court upheld 9th circuit decision to allow California to regulate how pork reaches ur plate Prop 12 is an attack on your breakfast U can expect to pay more for bacon California’s liberal regulations impact pork producers nationwide
— Chuck Grassley (@ChuckGrassley) May 11, 2023

Histrionics aside, it’s revealing to unpack what was actually going on in the decision. At the heart of the case was the National Pork Producers Council’s argument that they enjoyed a constitutional right to raise pigs in extreme confinement — in conditions that “cause profound, avoidable suffering and deprive pigs of a minimally acceptable level of welfare,” according to a brief filed to the Court by 378 veterinarians and animal welfare scientists — and then sell those products to consumers. The pork industry demanded that the Constitution should insulate them from the growing political power of people who care about the treatment of animals raised for food.

Animal protection advocates are accustomed to being told by the factory farm industry that no one knows how to care for animals better than those who raise them. Good animal welfare, their narrative goes, is an inherent part of any successful animal production facility; otherwise, the business would be unviable.

A pork industry website called “We Care” emphasizes that “pig farmers know that producing safe and healthy animals starts with them and you can trust farmers will do what’s best for their family and yours.” Yet pork producers have now spent years and likely hundreds of thousands (if not millions) of dollars arguing that they have a constitutional right to sell meat from facilities that confine pigs in ways that are intolerable to the average consumer.

The industry’s actual legal claim before the Supreme Court was not precisely that there is a constitutional right to confine animals in minuscule spaces, but rather a challenge to any limits on its ability to sell meat from such facilities in California under an arcane constitutional doctrine called the Dormant Commerce Clause (DCC). The DCC is a judge-made constitutional law, not actually in the text of the Constitution, understood to be a limit on the power of states to regulate interstate commerce. The Constitution gives Congress the power to regulate commerce between states, which judges have understood to imply a corresponding limit on state authority to do the same. Because California imports almost all of its pork from other states, the industry argued, it was unconstitutionally using Prop 12 to regulate out-of-state businesses.

The DCC has traditionally been interpreted to prohibit state laws that excessively limit commerce between states, particularly through measures that disadvantage out-of-state businesses relative to in-state businesses. A classic example is a tax on the sale of certain goods only if they come from out-of-state businesses, or a ban on the sale of products from out-of-state producers. For Justice Neil Gorsuch and a bare majority of the Supreme Court, California’s import restriction did not raise constitutional concerns because it applied equally to products from in-state and out-of-state pigs. Prop 12 holds California pork producers, however few of them there are, to the same gestation crate ban as out-state-producers.

As Gorsuch put it, writing for the Court majority, “while the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on the list.”

Can Prop 12’s bigger cages be a path to no cages?

Prop 12’s advocates have described it as the most significant piece of farm animal protection legislation ever passed in the US, because it prohibits some of the extreme forms of confinement used on millions of intelligent, socially complex animals raised for food every year. The Humane Society of the United States has gone so far as to call it the “strongest law in the world for farm animals.”

The Supreme Court’s validation of Prop 12 is undoubtedly a win for the animal movement, but for the pigs themselves, the improvement is marginal: They’ll still be confined in small spaces inconsistent with their needs as cognitively complex creatures, and they’ll still be repeatedly impregnated, only to have their piglets swiftly taken away and slaughtered. Whether this can be called a meaningful victory for animals depends on one’s perspective on how social change happens.

On one hand, that the industry vigorously fought Prop 12, deploying members of Congress to scare the public about the prospect of expensive bacon, may be enough to conclude that the Supreme Court ruling represents an important breakthrough against factory farming. It’s doubtful that a $28 billion-per-year industry doesn’t know what’s good for its bottom line. Prop 12 may also, as agricultural economists wrote in a brief to the Court, slightly reduce pork consumption in California by raising the costs of production, which may begin to erode the industry’s economic and political power.

Still, it’s hard to look past the fact that pigs raised on Prop 12-compliant farms will continue to have terrible lives, even as California consumers are given the impression that pork sold in their state is now high-welfare. Few consumers even know that many pork products aren’t covered by the law. Only whole, uncooked pork cuts, like bacon or tenderloin, have to be Prop 12-compliant, while all other products, like ground pork, precooked pork, or deli meat, representing about 42 percent of pork consumption in the state, don’t. Animal protection groups and the pork industry have both downplayed this fact in their messaging about Prop 12, because both have had an interest in depicting it as stronger than it really is.

These weaknesses have brought to the fore one of the longest-running debates at the core of animal law and animal rights. Will giving animals bigger cages chip away at the meat industry and diminish consumer interest in animal products over time? Or, as the legal philosopher Gary Francione has argued for decades, will reformism just make people more comfortable consuming the products of animal exploitation? Do laws like Prop 12, particularly when followed by high-profile legal battles, act as a release valve that alleviates some of the mounting social pressure and consumer guilt over factory farming? Or might this victory portend a range of even more far-reaching protections for animals across an ever-greater number of states?

These are empirical questions that we don’t yet know the answer to. Only time and research can tell whether incremental law reform projects will increase public concern about the consumption of pig meat or prematurely end the debate. But what’s beyond question is that the Prop 12 case represents a watershed moment for the growing political power and potential of animal protection activism. Part of the opinion, joined by three justices, recognized that “in a functioning democracy, those sorts of policy choices…belong to the people and their elected representatives.” This liberates animal advocacy of all stripes from constitutional constraint, representing a victory both for those who pursue total animal liberation (like Francione) and for those who would settle for better animal welfare laws.

The question, then, is whether the outcome will embolden animal protection groups to pursue bolder law reform projects. In the past few years, activists from the grassroots animal rights group Direct Action Everywhere (DxE) have exposed previously little-known horrors of animal agriculture, like the suffering of pigs who are gassed with carbon dioxide at slaughterhouses, or the millions of animals who have been culled via heatstroke using a method the industry calls “ventilation shutdown.” Would it be unthinkable for a state to ban the sale of products from meat producers who use ventilation shutdown? Could we imagine a world in which the idealized notion of the small, humane family farm is legally enforced to some extent by, for example, banning the almost immediate separation of calves from their mothers in the dairy industry, or the common practice of removing animal tails or testicles without anesthesia?

With Prop 12 now successfully defended, similar laws, like Massachusetts’s Question 3 (which has been on hold pending the Supreme Court litigation), can move forward, while more ambitious, yet-to-be-imagined laws can be proposed. The legal work it took to defend Prop 12 — fighting not just the industry but the Biden administration, which sided with the pork producers, as well as numerous pro-industry states — is not a complete victory for animals, and it’s not clear that bigger cages inevitably will lead to no cages. But had the case gone the other way, if even a small, incremental reform proved impossible, it would have unleashed a sense of despair across the field of animal law, making it hard to imagine, much less strive for, a future in which animal exploitation is less pervasive.

It is no small thing to consider that what was at stake in this case is as fundamental as whether local laws can, as the Court majority put it, interfere with the meat industry’s “preferred way of doing business.” Because the answer to that question is now a resounding yes, perhaps this decision will provide an overdue inspiration for animal advocates to push the envelope of what is possible in legislative limits on factory farming.

As US Rep. Tracey Mann (R-KS), chair of the House agriculture subcommittee on livestock, dairy, and poultry, said following the ruling, “This decision opens the door to [the] unthinkable. … Today it’s the pig pen, tomorrow it’s the whole barnyard.” For the animals’ sake, we can only hope this will be just such a call to action for advocates across the country.

Justin Marceau is the Brooks Institute professor of law at the University of Denver, Sturm College of Law, and the faculty director of the university’s Animal Law Program. He is the author of the book Beyond Cages, published by the Cambridge University Press in 2019, and the co-editor with Lori Gruen of Carceral Logics (2022). He is also the co-author of a forthcoming book on undercover investigations titled Truth and Transparency (with Alan Chen).

Doug Kysar is Joseph M. Field ’55 professor of law at Yale Law School and faculty co-director of the law, ethics, and animals program. His teaching and research areas include torts, animal law, environmental law, climate change, products liability, and risk regulation.