By Steve Wise,
The Nonhuman Rights Project
But the Nonhuman Rights Project believes that a critical mass of judges will accept they are sufficiently similar to us in the cognitive ways that ought to count for legal personhood and such fundamental rights as bodily integrity and bodily liberty, as a matter of equality, and their species is a morally irrelevant trait. This is just one of many arguments we are prepared to make as we move towards filing our first lawsuits this year.
“Americans are so enamored of equality, they would rather be equal in slavery than unequal in freedom.” So Alexis de Toqueville observed in his 1840 volume Democracy in America. We Americans remain enamored 140 years on. Last week was a good week for equality:
Last Monday, President Obama emphasized the American commitment to equality in his Second Inaugural Address, illuminating its pre-eminent place in the Declaration of Independence, and applying it to black, poor, female, and gay Americans.
On Thursday, the United States Defense Department announced its intention to rescind the rule against women serving in combat roles.
On Friday, the United States Department of Education informed school districts across the country that they must give handicapped students equal access to extracurricular sports or lose federal funding.
Okay. It was a great week for equality.
Years ago, the Nonhuman Rights Project identified equality as a fundamental American value that courts recognize. Thus, we set up an Equality Sub-Working Group that compared the varying approaches to equality found throughout the English-speaking world.
Equality demands that likes be treated alike and unalikes be treated unalike. You are entitled to an equality right because you are sufficiently similar to someone else, in a relevant way, who already has that right. However, because we all are infinitely similar and infinitely different, when are we sufficiently similar or dissimilar “in a relevant way”?
There is no “right answer.” Each judge sees equality in her own way, and judges with different visions of equality may decide cases in very different ways.
The Nonhuman Rights Project liked the way a Singapore lawyer, Po-Jen Yap, set out several models of equality. The “Formal Model” is pure equality. All classifications are permissible and everyone who is alike must be treated alike within each classification. For example, this model permits females or Catholics to be discriminated against so long as all females or all Catholics are discriminated against. This model of equality is almost nonexistent in American law.
Like the “Formal Model,” the “Rational Connection Model” requires everyone who shares a relevant characteristic to be treated alike. But it goes a step further and deems arbitrary any action that lacks a rational connection between ends and means, so long as a classification furthers a legitimate state interest. For instance, a race-based legislative classification would be entirely acceptable as a matter of equality in a state that formally pursues a policy of racial segregation. A Rosa Parks would belong at the back of the bus.
The Nonhuman Rights Project is uninterested in either “Formal” or “Rational Connection” equality because most common law judges are likely to be uninterested in them. In the context of the cases we intend to bring, however, we are very interested in a third model of equality. In the “Normative Model”, the criteria used to decide which entities are sufficiently different to be treated differently must fit certain moral criteria. Importantly, it rejects differentiations that burden a plaintiff in a manner that reflects deeply personal social stereotypes that are biologically immutable or changeable only at unacceptable personal costs. And it prohibits classifications that consider morally irrelevant traits. This model of equality lies at the heart of the ongoing litigation in support of gay marriage.
A chimpanzee, similarly, is biologically immutable; they are who they are. But the Nonhuman Rights Project believes that a critical mass of judges will accept they are sufficiently similar to us in the cognitive ways that ought to count for legal personhood and such fundamental rights as bodily integrity and bodily liberty, as a matter of equality, and their species is a morally irrelevant trait. This is just one of many arguments we are prepared to make as we move towards filing our first lawsuits this year.