Friday, July 16, 2021

Selective Prohibitions on Cruelty to Animals and a Thought on Targeting in Equality Cases

 by Michael C. Dorf

My latest Verdict column discusses a recent certiorari petition seeking to invalidate the application of a federal cockfighting ban to Puerto Rico. I argue that the Supreme Court should deny cert because the First Circuit rightly held that the ban falls within the power of Congress to regulate interstate or foreign commerce. That court did not reach the question whether, as applied to Puerto Rico, the law is also a valid exercise of the Territories Clause of Article IV, Section 3. I believe that it is, notwithstanding the suggestion by Justice Sotomayor (in a concurrence last year in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment) that the 1950s Compact between the U.S. and Puerto Rico permanently divested the former of some of its power with respect to the latter. I think she's wrong about that, but regardless of one's views about the question, its awkward relation to the Commerce Clause issue makes the cockfighting case a poor vehicle for addressing the Commerce Clause question--which is the only one raised by the cert petition.

So much for the powers of Congress. My Verdict column also addresses a question of ethics: whether it is not hypocritical to ban a marginal practice that involves cruelty to a few thousand chickens while billions of chickens are cruelly raised and slaughtered to feed nearly all the members of Congress and their constituents? I conclude that it is hypocritical but, citing Professor Colb's 2007 discussion of the Michael Vick case, that vegans and other animal rights activists should not therefore oppose these small symbolic measures; instead, we should use them as a wedge to open up discussions that challenge the much more widespread practices.

I reach that conclusion even though I acknowledge that the cockfighting ban's "application to a territory in which most inhabitants are members of a traditionally disadvantaged ethnic minority . . . raises troubling questions about America’s colonial legacy." Here I want to dive a little deeper into that point. I'll eventually shift my focus to religious exceptions. I hope the discussion will be timely in light of this past Term's decision in Fulton v. Philadelphia, which suggests that the meaning of free exercise of religion and religious discrimination is now somewhat up for grabs.

The federal cockfighting ban does not employ a facially race- or ethnicity-based classification. It applies to everyone. Under standard equal protection doctrine, therefore, it would not trigger any kind of heightened judicial scrutiny unless it could be shown either that: (a) it was adopted for the purpose and has the effect of disadvantaging persons based on race or some other illicit criterion; or (b) it is deliberately enforced in a discriminatory manner. I don't think there is any suggestion that (b) is present with respect to the cockfighting ban. As for (a), that's a bit more complex.

A fascinating article in the 2016 California Law Review by Professor Kathryne Young details her extensive ethnographic study of the people engaged in cockfighting in Hawaii. She finds that engaging in cockfighting is strongly tied to identity, but at least in Hawaii, the relevant divide is not ethnic or racial so much as local/non-local, with a class component. To be sure, even had Professor Young found strong evidence that there is an ethnic or racial dimension to who participates in cockfighting, that would not necessarily trigger any kind of heightened scrutiny under standard equal protection doctrine if the disparate impact were not intended--if the impact were, in the words of the relevant cases, despite rather than because of ethnicity or race. And even as applied to Puerto Rico, where there surely is an ethnic dimension to the disparate impact because there is an ethnic dimension to the application of any law to Puerto Rico, there isn't clear evidence that Congress eliminated the exception to the cockfighting ban because it would disparately impact Latinx persons.

And yet . . . as I note in the column, there is a sense in which there is a deliberate singling out here. Cockfighting is aberrant. So is the Orthodox Jewish custom of Kaporos, which involves the ritual use of chickens in expiating sin. There have been protests against Kaporos on the ground that it involves cruelty to chickens, but as Professor Colb explained in a 2014 Verdict column, the opposition--at least when coming from people who eat chickens and their products--seems more like it focuses on the fact that Kaporos is "weird" or deviant. And where there is a strong tie between the weird practice and a protected group--such as one defined by religion or ethnicity--perhaps that should be more problematic than current law allows. Here's how Professor Colb put it with respect to Kaporos: "when we single out a minority practice that is admittedly evil but the evil of which is morally indistinguishable from that in which the vast majority of critics themselves engage, it is difficult to provide a meaningful account of the protest that does not at least invite and enable anti-minority prejudice."

Put differently, as a matter of equality, even if the relevant government actor or body lacked a mental state of animus towards a religious, racial, or ethnic minority, singling out a practice associated with that minority despite its moral indistinguishability from what the mainstream does should be problematic. In cases like Church of the Lukumi Babalu Aye v. Hialeah, the selectivity--going after "ritual sacrifice" but not other forms of animal slaughter--can be part of the evidence of animus (as it was with respect to Santeria practitioners in that case), but there need not be animus at all. The singling out of the "weird" practice could itself be the problem.

In saying that, I want to be clear that I do not endorse the approach of Fulton, nor of Tandon v. Newsom in which the per curiam opinion said that the relevant question was whether religious activities and "comparable" non-religious activities were treated similarly but in fact compared activities that posed different health risks. Moreover, even to the extent that some failures to grant religious exceptions might be unjustified relative to secular exceptions, that does not mean that the government has singled out religion.

Accordingly, I think there is probably room for acknowledging that targeting practices simply because they are weird when they are closely associated with some group defined by race, ethnicity, religion, sexual orientation, or some other illicit basis ought to be deemed problematic, even though failure to give what is sometimes called "most favored nation" status to such practices or groups should not be so deemed. Whether that conclusion is consistent with my tentative endorsement of the one-step-at-a-time approach to cockfighting in my Verdict column is a question I leave as an exercise for the reader.