Banning Foie Gras and the Illusion of “Balance”
As the panel proceeded, I was struck by the salience of two positions that the Justices embraced. The first position was that nonhuman animals have personal rights against torture and harm that are entitled to weight, even when honoring those rights might have a negative impact on farmers and consumers. In expressing his affinity for this position, Justice Rivlin’s concurring opinion in the case eloquently stated that “As for myself, there is no doubt in my heart that wild creatures, like pets, have emotions. They were endowed with a soul that experiences the emotions of joy and sorrow, happiness and grief, affection and fear. Some of them nurture special feelings towards their friend-enemy: man. Not all think so; but no one denies that these creatures also feel the pain inflicted upon them through physical harm or a violent intrusion into their bodies.” Hearing these words from a high court judge is gratifying and far too rare, given their self-evident truth.
The second position was that the animal’s right must be balanced against the human being’s right to use the animal to meet human food-consumption needs. This position struck me as both morally unpersuasive and logically inconsistent with the first position. If in fact an animal has any right at all not to be subjected to pain, then it follows necessarily that a human being’s pleasure in consuming the animal’s flesh cannot be “balanced” against that right without rendering the right itself is virtually meaningless. People do not need to eat and drink animals or their eggs or their milk to survive or to thrive. The reason people nonetheless consume such products is that they enjoy consuming them, just as some people enjoy watching buildings explode. People have a “taste” for flesh (or for butter or eggs or whatever). Just imagine balancing a different non-absolute right in this way. Say you purchased the last copy of a book at the store, and I see that book, and I really want to read it. I cannot just take it out of your bag, because however much I want to read it, I do not need it to survive (I could, if someone threatened to kill me if I did not immediately provide that book, lawfully steal it and hand it over to the assailant).
When Mike raised an argument about the absurdity of balancing the right to live against the right to enjoy the flavor of the one holding the right to live, the response was quite disappointing. Justice Strasberg-Cohen said that she “respects” the right to the vegan lifestyle but that Mike must understand that many people eat meat, and we need to find a happy medium. How the endorsement of such a happy medium is consistent with placing any independent value on an animal’s right against torture and death was nowhere in evidence. Perhaps such exchanges demonstrate that the step-by-step approach I provisionally endorsed in a recent column is bound to fail. And yet, Justice Rivlin’s words are moving, and I am glad that there is some empathy for animals (however unrealized) rather than none.Posted by Sherry Colb