The Right to Personhood: One Professor’s Fight for Animals

What if dogs were more than just “man’s best friend?”

That’s an over-simplified version of the question being asked by animal rights lawyers like Justin Marceau, the Brooks Institute Faculty Research Scholar of Animal Law and Policy at the Sturm College of Law.

Essentially, some activists and legal scholars are arguing that some animals—like dogs and elephants—should be granted “legal personhood.” A legal person is defined as “a human or a nonhuman legal entity that is treated as a person for legal purposes.” Some business organizations, like corporations, have been deemed legal persons, but generally, animals are not. 

Marceau says while it might seem radical to say that animals should be granted legal personhood, most animal rights activists argue that animals should be treated with basic decency.

“They’re not actually trying to have them vote in the next presidential election,” he says. “They're just saying, with [legal personhood] comes certain obligations to treat them in a way that respects their rights and ability.”

Does it matter that ‘an elephant never forgets?’

In January, the Colorado Supreme Court ruled against an animal rights group’s attempt to compel the Cheyenne Mountain Zoo to transfer its five elderly elephants to a “suitable elephant sanctuary.” The group claimed that the zoo mistreated the elephants to the point of “chronic frustration, stress, physical disabilities and brain damage.”

“The basic claim was that the confinement of animals of this level of intelligence is not permissible, and they used a legal vehicle called habeas corpus,” Marceau says. 

“Habeas corpus” is a legal framework used to determine if the detention of a person—usually a prisoner—is valid. Ultimately, the Colorado Supreme Court ruled that habeas corpus does not apply to “nonhuman animals,” only to a “person.”

This case, Marceau says, gets to the heart of animal rights groups’ argument that some animals should be designated as legal persons. 

“What these lawyers were essentially saying is—for certain beings for whom the science is particularly strong—that they have autonomy in the truest sense,” Marceau says. “They have a theory of mind. They're able to kind of reflect on the past. I mean, one of the elephants passed the mirror test.”

Marceau is referring to a 2005 experiment, done on Happy the Asian elephant, which purported to prove that elephants are self-aware. 

“Happy faced her reflection in an 8-by-8-foot mirror and repeatedly used her trunk to touch an "X" painted above her eye,” NBC News described. “The elephant could not have seen the mark except in her reflection. Furthermore, Happy ignored a similar mark, made on the opposite side of her head in paint of an identical smell and texture, that was invisible unless seen under black light.”

What about Fido and Mittens—or Charlotte’s friend Wilbur?

As for the animals we hold nearest and dearest—dogs, cats, birds, lizards and other “companion animals” in our lives—they are the most protected species under the law. The Preventing Animal Cruelty and Torture (PACT) Act of 2019 makes the “crushing, burning, drowning, suffocating, impaling or sexual exploitation” of animals a federal offense. And many states have state-level laws that protect companion animals specifically.

Not all species are protected, even if some are domesticated and considered companion animals. It differs by situation.

“You could take an animal—like a pig. A pig could be a pet, and if you were raising a pig, you would be fully required to follow all the laws just as though she was your dog,” Marceau says. “If she was a wild pig, it would be totally different.”

Wild pigs, in many states, can be legally hunted and killed.

The state-level animal welfare laws that apply to companion animals like dogs and cats often have exemptions. Colorado’s animal protection laws provide some exemptions for people participating in “accepted animal husbandry practices”—breeding—for both livestock and companion animals.

And some of the “standard practice” exemptions that apply to livestock can be extreme, Marceau alleges.

“You might have a pig that's small and use blunt force trauma to the head to kill the animal, because he's not going to grow into a big pig. It's not going to be profitable,” he says. “That would be cruel to do to a dog. But it's not to a pig, because it's standard practice.”

“Nobody would think this is okay.”

In a recent decision handed down by the 16th circuit court in the state of Wisconsin, a judge granted the request of animal rights activist groups to appoint a special prosecutor in a case against a local commercial dog breeding facility called Ridglan Farms.

“Petitioners have shown that there is probable cause to believe that Ridglan has committed crimes under Wisconsin’s animal cruelty laws,” the order reads. 

Marceau is involved in the case by way of Sturm’s Animal Activist Legal Defense Project (AALDP), which is representing the animal rights groups in the case. Marceau co-founded and helps to direct the clinic. 

The case in Wisconsin outlines graphic details about how AALDP claims the dog breeders have been treating the dogs, including confining them to small spaces and performing medical procedures without anesthesia. 

“It's horrific,” Marceau says. “Nobody would think this is okay, but this happens hundreds and hundreds and hundreds of times. I think people don't understand that this kind of thing exists and is out there. We're trying to show that these dogs are a form of legal person.”

Marceau’s big-picture case for animal rights

While Marceau does love animals, he says his fight for the rights of nonhuman beings is about more than advocating for furry friends. It began with his work on death penalty cases after law school.

“I've always been interested in beings who have been at the bottom of the barrel in the legal system, and the legal system has, in many ways, either failed them, or there's nothing else for them to do,” he says. “Beings who are suffering and that the law seems to have turned its back on—that's always just been a draw for me.”

He remembers hearing people on death row being described in ways that did away with their humanity: “They always had to be othered in a way that animalizes; ‘They’re cockroaches. They’re rats. We have to treat this person like a beast.’’’

Marceau says he sees animal rights as inextricably linked to the rights of all beings—humans, too.

“I don't think we're going to achieve justice for humans if animals keep suffering,” he says.