April 30, 2007
Bureaucratic pain as rational basis for unconstitutional laws?
"One generation and out. We have no problem with the extinction of domestic animals. They are creations of human selective breeding."
I've written two posts about California's mandatory spay neuter bill (AB 1634), but I want to return to the law's philosophical and constitutional implications, not just because I think it's a bad law, but because this type of law goes to the very heart of the distinction between statism (collectivism) and individualism.
My worry is that aside from the people who are personally affected (such as dog owners and assorted special interest groups), only libertarians and small government conservatives have genuine philosophical objections to the law.
I think a good case can be made that mandatory spay neuter laws (and laws prohibiting animal breeding) are unconstitutional. But under which standard? Are we talking about a fundamental right? Or are we talking about the lower "rational basis standard?
Under the former (a much higher standard), the law would clearly be unconstitutional if it violates any of the fundamental rights as listed in the Bill of Rights, or such additional rights which (according to various the Supreme Court decisions) are said to flow from the enumerated rights.
I think AB 1634 violates several fundamental constitutional rights and should be subjected to strict scrutiny, and I'll try to examine them. I'll also try to explain why I think it fails even the lesser rational basis test as a public health measure. Please forgive the fact that this is written in a disorganized and spontaneous fashion (after all this is a blog post and not a law review article!)
By making it illegal to "own or possess" a "dog which has not been spayed or neutered," the law creates an unlawful status crime which, because it cannot be ascertained by mere appearance, invites and even requires an intrusive search. Thus, the existence of the law will grant heretofore unfettered police power to conduct searches, and make all dog and cat owners inherently suspect.
Not only would the law would force dog owners to incriminate themselves, it would not treat dog and cat owners equally.
California state law requires (as a public health measure) all dogs to be licensed, and to have licenses attached to their collars. Cats, on the other hand, are not required to be licensed. AB 1634 invites unequal treatment of dog and cat owners, because dog owners would be required to incriminate themselves annually (they'd be compelled to admit to having illegal unneutered dogs), while cat owners would not.
It is bad enough that the law requires self incrimination at all, but requiring only dog owners to self incriminate while exempting cat owners from self incrimination compounds self incrimination by violating the Equal Protection clause.
On what basis? Considering that far more cats are euthanized than dogs, it would seem that if a distinction is to be made, cats should be in a more suspect category than dogs and not the other way around.
Incidentally (and ironically), there is a rational basis for discriminating between dogs and cats under the licensing laws, and that is that cats are nowhere near as susceptible to rabies as dogs, and in the rare instances when they do contract the disease, they don't bite humans.
So, while this distinction might be fair to make in licensing because of rabies, the new law renders the licensing scheme discriminatory and self incriminating -- and (as I'll try to show) it does this without any rational (health-related) basis.
Due process, Equal protection, Unconstitutional taking of property:
Among the millions of animals owned by human beings in the state of California, only dogs and cats have been singled out for mandatory sterilization. Citizens are free to own, possess, and breed mice, rats, guinea pigs, gerbils, fish, pigs, goats, sheep, horses, cattle, chickens, pigeons, bees and other insects, and virtually any animal which is allowed to be kept in captivity. Dogs and cats have been singled out because the claim is made that there is an "overpopulation" problem. Yet this is defined not as dogs roaming the highways, but as "too many unwanted animals" (i.e., individual owners surrendering unwanted animals to animal control agencies). This is not overpopulation, as the reasons why individual owners might surrender pets to animal control agencies have nothing to do with how many animals there are in the state. Parents relinquish children to adoption agencies on a regular basis, but this is not done because of human overpopulation.
I don't think there has been any showing of overpopulation, much less a showing of any causal connection between overpopulation and privately owned animals. What I think is being called "overpopulation" is the fact that not all animals are wanted, and thus the animal control agencies are forced to euthanize the animals that no one wants. This is not overpopulation, but an aversion to animal euthanasia. Under what criteria does the fact that some surrendered animals are unadoptable and need to be euthanized get to be defined as "overpopulation"? An undeniable fact is that humans want puppies, not older dogs. And there is a documented puppy shortage -- which begs the question of what is overpopulation. Is the existence of older unwanted dogs really an issue of public health? Or is it just clever bureaucratic spin?
I am not saying that animal euthanasia is a good thing, but I do not see how the unpleasant nature of it -- or the reluctance to do it -- makes it a public health issue.
Yet the bill amends California's Health and Safety Code, and singles out individual dog owners by unconstitutionally restricting and harming their property, with a goal of preventing euthanasia on unwanted pets.
The question becomes this: Are unwanted pets a threat to the health and safety of Californians?
Can anyone explain how?
Most reasonable people would concede that it would be nice if no animals ever had to be euthanized. But in a state which allows breeding, slaughtering, and hunting of animals by the millions, I think it's a bit of a stretch to say that the euthanasia of unwanted pets constitutes a public health issue.
What this is is a euthanasia prevention campaign dressed up as a public health issue. People involved in animal control are simply claiming that they should have the right to restrict the rights of all pet owners so that they don't have to euthanize as many unwanted animals. Call it what you will, but it's not a public health issue.
If having a dog with intact genitalia is the equivalent of, say, having an abortion, buying a condom, or engaging in consensual homosexual sex, then the law would be unconstitutional on its face. Absent a showing that a dog is allowed to roam, I think that the privacy factor is at least as serious as that involved in abortion or consensual sex.
Public Health and Rational Basis:
Even under the weaker rational basis test, there still has to be a legitimate state goal which justifies the restriction, and a mere recitation of public health concerns is not enough.
The Institute for Animal Rights sees it differently:
...the number of unwanted cats and dogs causes significant social problems: senseless killing, health risks, wasted taxes, and more. Clearly, these problems raise important issues of public health, safety, welfare - and even morals. In other words, the "end" is entirely appropriate constitutionally."Senseless killing"? This argument underlines what is obviously the principal objection. If it is "senseless" to humanely euthanize an older animal that no human wants, then why isn't it just as senseless to hunt and slaughter wild animals and farm animals?
FWIW, I don't like euthanizing animals, OK? One of the worst traumas in recent memory was having to euthanize my dog Puff, and I put it off as long as I could, but finally I had to acknowledge that keeping him alive was bordering on being cruel to the animal I loved. The thing is, Puff did not know he was being put to death. He just died. Only I and the veterinarian knew what was being done to him. I think the same is true for all animal euthanasia. The people who perform it are the ones who suffer; not the animals.
And that, I think is the real [as opposed to covert and unacknowlegeable] basis for AB 1634, which really ought to be called the "Ease Mental Suffering of Animal Control Bureaucrats Act."
As to the health risks and costs, they are already dealt with by existing rabies and licensing statutes, and any costs are properly charged to people who are already required to buy the licenses.
I'm sorry, but regardless of what standard I apply, I see no constitutional basis for requiring me to cut out Coco's ovaries in order to help prevent stress in the animal control bureaucracy.
Here's the link to an organization that's dedicated to fighting this act, along with a logo I think is worth adding for those who want to fight this unprecedented encroachment on freedom:
It's not surprising that ovaries would come first.
UPDATE: This website has really done its homework on the statistics. Be sure to check it out, especially the charts.
Bottom line: "DOG OVERPOPULATION" IS A FRAUD.
MORE: Check out this graph:
AND MORE (05/02/07): Consider another side effect of AB 1634. If passed, California's existing dog licensing statutory scheme will be rendered self incriminatory and unconstitutional -- thus thwarting the state's otherwise legitimate rabies control efforts.
Anything that thwarts the control of rabies would only harm -- not help -- the public health.
This is another reason why the "public health" argument is deceptive.
MORE: Regarding the self-incrimination issue, the current language of proposed AB 1643 states, in pertinent part:
122336. For purposes of this chapter, the following definitions shall apply:In a search through the various current city and county dog licensing applications throughout the State of California I found not one which failed to ask whether the dog had been spayed or neutered. But remember, under current law as it stands, it is not self incriminating to answer that question on an official form, because it is not illegal to own an unneutered dog. Section 122336's mandate that the dog license shall constitute evidence of an "intact permit" means that the entire licensing scheme (and all license applications statewide) will have to rewritten to require owners of unneutered dogs to apply for dog licenses on forms which require them to disclose a crime or else be forced to commit the crime of having an unlicensed dog.
I'm also concerned about the language "a person shall not own or possess within the state," because there is no exemption for veterinarians or dog boarding facilities.
Wouldn't this also discourage citizens from seeking veterinary care for their animals?
posted by Eric on 04.30.07 at 10:12 AM
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