Animal Law Committee Newsletter
Fall 2015
ANIMAL DOCKET:
Practice tips for animal law cases
CONSTITUTIONAL ANIMAL LAW
By: Bruce Wagman
Introduction
While issues of a constitutional dimension
can surface in many areas, a new line of cases
has developed in which animal law-based issues
are combined with traditional constitutional
considerations. In these cases the courts must
incorporate the theories that underlie the development
of animal law into the centuries of constitutional law
doctrine, whether they are express or implied in the
decisions. These judges are pioneers in creating a
body of law that can be utilized by litigants facing
similar situations.
The majority of opinions addressing constitutional
issues in animal law have come up in two general
DUHDV² IHGHUDO FRXUW VWDQGLQJ XQGHU Article
III, Section 2, Clause 1 of the Constitution, and (2)
challenges to anti-cruelty statutes. In the non-animal
context, hundreds of cases are already on the books
focusing on standing and statutory challenges on
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precedents where animal interests are concerned only
go back about forty years,1 and most of the important
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The standing doctrine has been extensively
addressed in judicial opinions, law reviews, and legal
treatises. The body of case law on that issue provides
most practitioners with all they need to cover the
standing issue. The more recent developments have
come in cases challenging animal protection statutes.
And while an extended law review article could be
written on the development of this new niche in
constitutional law, this piece will just provide an
overview of the type of claims that are being brought
in the statutory challenge/defense cases.
Proceed with Caution
Constitutional law doctrine, given its history
as old as the Nation, has been developing for
hundreds of years. Therefore, if you pick up a
case with constitutional law issues, expect either
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the expansive case law, or perhaps to contact
someone with expertise in the area. However,
if you obtain advice from someone with no
animal-related constitutional law experience,
you may miss an important part of the analysis
and argument that could be very valuable for
your approach to the case. While constitutional
principles remain well-founded in case law, the
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law matters have not been largely considered, and
the pronouncements by the courts in those cases
may be compelling, even where they represent
non-binding precedent to the court in which your
case is venued.
A Summary of Statutory Challenge/Defense
Claims in Animal Law
The most recent development in the constitutional
law area involve defendants challenging animal
protection statutes. Generally the challengers fall into
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charged under an anti-cruelty law, whose challenges
typically are based in due process. These defendants
allege the statutes at issue are unconstitutionally
vague because they do not provide adequate notice
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somewhat traditional challenge to penal codes in
the non-animal arena as well. But the examination
for the parties and the courts in these cases falls on
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interpretation of the statutes by the courts. In most
cases, the question is whether the statute at issue is
impermissibly vague in all its applications. In other
Continued on page 23
Animal Law Committee Newsletter
Animal Law Docket: ...
Continued from page 15
words, is there any reasonable construction of the
statute based on its language? Given that relatively
deferential standard, most statutes are upheld in
response to a vagueness challenge.
Fall 2015
municipalities) “as part of the historic police power
of the States.”9 Moreover, the Animal Welfare Act
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to regulate in the area,10 and thus the preemption
argument should fail.
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and embodied in hundreds of animal protection
The second group of challengers to state anti- statutes, also defends attacks on animal cruelty
cruelty statutes is industry groups whose businesses laws based on the Commerce Clause. One inquiry
are affected by laws that govern the ways in which in a Commerce Clause challenge is whether the
animals are treated in food production. For example, SXWDWLYHORFDOEHQH¿WVRXWZHLJKDQ\LPSDFWRQWKH
in the past eight years we have seen challenges to interstate market in the affected items. Because
laws: prohibiting the slaughter of horses for human animal protection is a well-established facet of
consumption, on Commerce Clause and Supremacy public policy,11 the challengers must prove an
&ODXVHJURXQGV4 prohibiting the sale and possession overwhelming, and probably discriminatory, impact
RI VKDUN ¿QV RQ (TXDO 3URWHFWLRQ 'XH 3URFHVV on interstate commerce in order to prevail on their
&RPPHUFH&ODXVHDQG6XSUHPDF\&ODXVH*URXQGV5 Commerce Clause challenge.
requiring that egg-laying hens be given enough
In the cases challenging retail sales bans of
space to stand up, lie down, and stretch their wings
“puppy mill” puppies, plaintiffs (national breeding
without hitting another bird or the sides of their
groups as well as local pet stores directly affected by
enclosures, on Due Process, Supremacy Clause,
the ordinances) also raise the federal Constitution’s
DQG &RPPHUFH &ODXVH JURXQGV6 prohibiting the
Contracts Clause which states that “[n]o State shall
sale of foie gras from ducks who were force fed on
… [pass any] Law impairing the Obligation of
Due Process, Supremacy Clause, Equal Protection,
Contracts…”12 Plaintiffs allege that the ordinances
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effectively prohibit contracts already in place for
prohibiting the sale in retail pet stores of animals
sale of puppies (and kittens and sometimes rabbits)
raised in “puppy mills,” on Due Process, Supremacy
to local pet stores. But again, the twin notions that
Clause, Equal Protection, Contracts Clause and
preventing animal cruelty serves a valuable purpose,
Takings Clause grounds.
and that exercise of that purpose is in the jurisdiction
This list emphasizes the new set of challenges of local governments, overrides the Contract
surfacing in courts throughout the country, due in Clause’s prohibition because of the reasonableness
part to the introduction over the past decade or so RI WKH RUGLQDQFHV LQ OLJKW RI WKH LGHQWL¿HG JRDOV
of laws taking new approaches to the protection of EHKLQGWKHVHODZV²DQLPDOZHOIDUHFRQFHUQVSXEOLF
animals, by regulating the way they are treated in KHDOWK DQG VDIHW\ FRQFHUQV DQG LPSDFW RQ WKH
food production. And in each case, the particularities municipal budget because of the increased costs to
of these laws, because of their underlying purposes, local shelters.
become vital points of discussion in the constitutional
At this point, there have been a number of
analysis.
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For example, plaintiffs often challenge these protection groups defending the anticruelty laws.
laws based on their claim that the federal Animal There is a growing body of published appellate
Welfare Act governs the treatment of animals and court decisions and many of the successes in the
therefore local authorities cannot impose additional trial court are pending on appeal. So this is an area
and more restrictive standards than the federal of great interest and contemporary attention in the
law. This preemption objection to local statutes courts. By 2020 there will be a whole new set of
invokes a key concept for the regulation of animal cases discussing these traditional constitutional
FUXHOW\²WKH ORQJVWDQGLQJ SULQFLSOH WKDW LVVXHV RI law issues with a view through the looking glass of
animal welfare are reserved to the states (and local animal law and issues that only are relevant where
Animal Law Committee Newsletter
the treatment of animals is part of the calculus.
Perhaps by 2025 a law review article will be
published, tracing the progress of constitutional law
cases addressing animal interests that will write the
next chapter in this developing area.
Fall 2015
drafting, education, and counseling), representing both
individuals and animal protection organizations. He teaches
animal law at three Bay Area law schools, is coeditor of the
Animal Law casebooN, now in its ¿fth edition, and coauthor of
A Global Worldview of Animal Law, published in 2011.
Bruce Wagman is a partner with Schiff Hardin LLP with an
almost exclusive practice in animal law (litigation, legislative
1 See, e.g., Sierra Club v. Morton86 (foundational standing case for environmental and animal welfare plaintiffs discussing parameters of “aesthetic
LQMXU\´Jones v. Butz)6XSS6'1< (challenging Humane Methods of Slaughter Act on First Amendment grounds).
2 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)GHFODULQJOLPLWVRQVWDQGLQJLQFDVHVEURXJKWE\DQLPDOZHOIDUHJURXSVChurch of the Lukumi Babalu Aye
v. City of Hialeah86)LUVW$PHQGPHQWFKDOOHQJHWRORFDORUGLQDQFHEDQQLQJDQLPDOVDFUL¿FHHumane Society of the United States v. Jewell, 2014 WL
''&'HF (reinstating endangered species status for gray wolves in the Great Lakes).
See, e.g., American Society for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus)G'&&LU (standing for former
FDUHJLYHURIHOHSKDQWVLQFLUFXVAnimal Legal Defense Fund v. Glickman)G'&&LU (establishing standing for zoo visitor concerned about treatment
RIDQLPDOVAlternatives Research & Dev. Found. v. Glickman)6XSSG''&VWDQGLQJIRUVWXGHQWZRUNLQJLQDQLPDOUHVHDUFKODERUDWRULHVHumane
Society of the United States v. United States Postal Service)6XSSG''& (standing for animal welfare group based on its work assisting in responses
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4 See, e.g., Cavel Int’l, Inc. v. Madigan)Gth&LUXSKROGLQJ,OOLQRLVODZEDQQLQJKRUVHVODXJKWHUIRUKXPDQFRQVXPSWLRQEmpacadora de Carnes de
Fresnillo, S.A. de C.V. v. Curry)GWK&LU (Texas law).
5 See, e.g., Chinatown Neighborhood Ass’n v. Harris)GWK&LU (upholding California law prohibiting sale, possession or distribution of detached
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6 See, e.g., Cramer v. Harris)HG$SS[WK&LU (upholding California’s Proposition 2).
See, e.g., Ass’n des Eleveurs de Canards et D’oies du Quebec v. Harris)GWK&LU (rejecting Commerce Clause challenge to law prohibiting sale of
foie gras produced by force feeding of birds).
See, e.g., Missouri Pet Breeders Ass’n. v. County of Cook:/1',OO$XJXSKROGLQJUHWDLOVDOHVEDQLQ&RRN&RXQW\,OOLQRLVPuppies “N
Love v. City of Phoenix:/'$UL]-XO\ (upholding Phoenix ban).
9 DeHart v. Austin)GWK&LUsee also Leibowitz v. City of Mineola, Tex.)6XSSG('7H[ (“Ordinances, including those
regulating the ownership, possession and control of dogs are a proper exercise of a municipality’s police power if they are designed to secure the safety, health and welfare
of the public.”)
10 See 86&†EDXWKRUL]LQJWKH6HFUHWDU\RI$JULFXOWXUHWRFRRSHUDWHZLWKVWDWHDQGORFDORI¿FLDOVWRFDUU\RXWWKHSXUSRVHRIVWDWHODZVSURWHFWLQJDQLPDOV
11 See United States v. Stevens, 559 U.S. 460, 469 (2010) (“[T]he prohibition of animal cruelty itself has a long history in American law, starting with the early settlement
of the Colonies.”).
12 U.S. Const., Art. I, Sec. 10.
See, e.g.FDVHVFLWHGLQQRWHVsupra.
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