by Neil H. Buchanan
[Note to readers: I published a new Verdict column this past Friday, August 26: Trump Throws Off the Last Pretense That His Campaign Is Not About Bigotry. Our standard practice on Dorf on Law is to write a companion post when we publish a new piece on Verdict, unless we feel that we have said all that we care to say about the topic. I in no way claim to have had my last say about Trump's bigotry, but I have chosen not to devote today's Dorf on Law post to that issue. I encourage our readers to take a look at my Verdict column at their leisure, and I will certainly return to Trump's retrograde views in future writing.]
I became a vegan in the summer of 2008. Each summer since then, I have written what I now call my a veganniversary post, marking an important turning point in my life by discussing various social, intellectual, economic, legal, and other issues related to veganism. Although my post last summer indicated that I would discontinue such annual posts, I later thought better of it. Here are links to my previous veganniversary posts: 2015, 2014, 2013, 2012, 2011, 2010, 2009, and my two original posts from 2008 (here and here).
A common theme across not only my posts on veganism but in the more numerous (and more interesting) posts by Professors Colb and Dorf -- to say nothing of their fantastic new book, Beating Hearts: Abortion and Animal Rights -- are questions of political strategy. In a country where vegans account for something like one percent of the population, how much change can people who believe in animal rights hope to effect? How soon? Through what means?
Back in January of this year, I wrote two Dorf on Law posts (here and here) in which I discussed some issues that arose during a panel at the Association of American Law Schools (AALS) annual meeting in New York. Professors Colb and Dorf were among the six panelists. The issue that I addressed in my posts was whether it is unwise to litigate issues that might blow up in activists' faces.
The Rev. Dr. Martin Luther Kind, Jr. was surely right that the arc of the moral universe bends toward justice, but he was also right that it can be quite long. Activists care about whether it is possible to speed things up, and whether there are dangers to trying. Put simply, a central question is whether trying to vindicate rights in courts or legislators can be damaging if activists try to achieve too much, too soon.
Professor Dorf, in his remarks on the AALS panel, pointed out that it is probably not possible to create a litigation strategy that gets the timing just right. And even if it were possible, anyone can file a lawsuit, so the lawyers who view themselves as guardians of a movement ultimately cannot prevent anyone else from filing a suit that risks spoiling the best laid plans.
That is what could have happened when same-sex marriage was litigated in the state and federal courts over the last few years. People with the very best of intentions were petrified that, for example, the Boies-Olson case (which led to the Supreme Court's Hollingsworth v. Perry decision) would boomerang and set back gay rights by years, if not decades. The go-slow strategists hoped that same-sex marriage would be achievable within the lifetimes of younger activists, but they were convinced that moving too soon would create a backlash that would delay justice even further.
Yet the outcome of the same-sex marriage cases is exactly what any activist group would dream about. A goal that seemed like a far-off fantasy was taken seriously in court, and the litigants demonstrated that theirs is a fundamentally just cause. They won, and the public quickly accepted the new reality and moved on (with some stragglers, of course). As I put it in January: "If there is a general rule that heedlessly-rapid litigation is going to
cause huge setbacks, same-sex marriage would seem to be a rather
dramatic exception to that rule."
If unexpected wins in the courtroom and a rapid change in society's acceptance of same-sex marriage are the upside of what could have been a too-much-too-soon strategy, what is an example of the downside? The usual answer is abortion rights. Justice Ginsburg and others say that Roe v. Wade was the quintessential too-much-too-soon outcome, so that winning became losing for pro-choice activists. Professor Dorf and others say that this is a misreading of history, and I agree.
All of which leaves me where I was after the AALS session, thinking that the two highest-profile examples that have been used to counsel cautious, measured activism either fail to prove the point or even prove the opposite. That, however, cannot possibly mean that it is never wise to hold back, that one should never strategically choose not to proceed with cases that might be winnable later but that are sure losers now.
Even if there is nothing to replace marriage equality and abortion rights as "everybody knows" examples of what can go wrong, the logic seems unassailable that timing has to matter enough to be a legitimate concern as activists' develop their strategies.
The related question, however, is whether losing cases by bringing them too soon is actually damaging in the sense of slowing things down -- or, in the extreme case, moving things backward. Maybe losing unripe cases is simply part of the process of throwing things at the wall and seeing what sticks. No guts, no glory.
Moreover, the public can become excited about issues that take everyone by surprise. Back in 2005, conservative activists were stunned by the reaction among their supporters when the Supreme Court issued its decision in Kelo v. City of New London, a takings case. Suddenly, takings became a huge issue for conservative (and especially libertarian) activists, even though no one had been anticipating the Court's decision in that case, and accordingly no one had mobilized around it.
This further reminds us that not only might losing cases not be bad for an activist group, but it is always possible to turn a loss in court into a win in the court of public opinion. To be clear, the public reaction to Kelo was badly misinformed, and in my opinion the majority in that case reach the correct decision. But that makes the point even more strongly, because even bad logic can sometimes lead people to move in what activists view as the right direction.
So where does that leave animal rights activists? To be clear, I am not including myself in that group. I do think that ethical vegans can rightly be thought of as animal rights activists in an important sense. After all, we believe that the use of animal products causes horrific suffering followed by needless death on a massive scale, and we make personal choices accordingly. We hope that legislatures, courts, and the public in general will change their ways.
But I am asking here about the strategic thinking of what we might call "active activists" or simply real activists, that is, the people who are dedicating personal and professional resources toward changing reality in a way that would not happen without their activism. What lessons should they draw from any of this?
One legal case that has divided animal rights activists is the so-called "Tommy the chimp" case, which The Non-Human Rights Project brought in a New York State court to remove a chimpanzee from his human owners (or captors). An appellate court ruled in December 2014 that Tommy was not a person for legal purposes.
On the other hand, in April 2015 a judge caused a bit of a furor by seeming to maybe, possibly issue a writ of habeas corpus to two chimpanzees who are confined in a laboratory at SUNY-Stony Brook. Even thought the judge later clarified her order to say that she was not issuing the writ, she did allow the attorneys to proceed with the case to fight the chimpanzees' detention.
Those cases generated quite a bit of controversy, and because the litigation involved trying to extend human rights to animals, the public's reaction was predictably not going to be uniformly positive. (Understatement alert!) The Washington Post article about Tommy, for example, stated that the attorney "argued that animals with high intelligence deserve basic human rights,
despite the fact that they don't actually belong to the species." Zing!!
There are many aspects of these cases that one could discuss. For example, it is highly contestable whether animal rights are advanced by creating a high intelligence/low intelligence distinction. Because I view ethical veganism as based on the moral requirement not to inflict pain, I find that distinction troubling. I do, however, understand that someone could believe in good faith that this is the good kind of slippery slope, starting with chimpanzees and moving from there.
The bigger issue is, however, whether these cases are classic too-much-too-soon litigation. And the logic need not be limited to court cases. One could make the argument that any kind of public call to highlight the plight of animals might lead to snarky, negative responses, such as the reactions to PETA's recent request to create a permanent roadside memorial for a truckload of chickens that died in a crash in Saskatchewan.
The underlying worry in all of these cases, I think, is that the progress of animal rights is undermined when activists do something that elicits eye rolls from the population at large. It is arguably important to be seen as serious, and that means being sensitive to what the public, legislatures, and judges might be willing to hear.
Again, I am definitely one of the people who worries about these things. I understand why animal rights activists lose sleep over the possibility of doing inadvertent damage by taking actions that reinforce the social stereotype of vegans as a bunch of kooks. If I were on a steering committee, I would take all of this very seriously, and I would probably be one of the small-c conservative voices when voting on strategy.
I am not, however, convinced that I am right. I might, after all, be worried about something that ultimately does not matter. Even though the "chimpanzees as people" cases brought forth the predictable sarcasm in the public conversation, I am not sure that those cases have done any actual harm. At most, they could have reinforced a negative view of animal rights activists, but even if they did, I am not sure how we would know whether that reinforcement actually makes anything more difficult to accomplish in the future.
Moreover, much like the Perry case (and the Kelo case, in its own way), I have to consider the possibility that lightning can strike, and people's reactions could be surprisingly positive. I could well imagine a judge issuing an opinion saying that chimpanzees can experience pain and other emotions in ways that justify extending certain human rights to non-humans. And even though I could picture a ridiculously negative response, I could also picture most people saying, "Yeah, come to think about it, it's crazy that we treat chimpanzees so badly." The latter outcome has an ex ante lower probability, but it is not out of the question.
An extreme conclusion from this argument -- which, again, I most definitely do not endorse -- would simply be to say that it is a waste of time to think strategically about how and when to sue, to propose laws, to protest, and so on. Although I reject that conclusion, I am willing to consider -- more than I have been in the past -- that there might be a bias against taking relatively bold actions, and that such a bias might be very difficult to defend, no matter how intuitively correct it feels.