Do Not Fear That Animal Protection Legislation Will Be Ruled Unconstitutional

In our blog of March 14, 2014, we wrote the following:

ISAR often hears that animal protection organizations are contemplating the preparation and introduction of pro-animal legislation, but fear that courts may rule that the bills won’t pass constitutional muster.

They worry unnecessarily.

The fact is that except for the most egregious bills (e.g., imposition of a $10,000 tax per animal levied on the custodians of companion animals), animal protection laws will be upheld against constitutional challenges. Doubters should consider what has become of other constitutional challenges to various animal protection laws.

For example, various levels of government throughout the United States are increasingly enacting laws that severely restrict, or even prohibit, the breeding and owning of cats and dogs; some of these laws are breed-specific, some apply generally.

There is, of course, substantial opposition to these types of laws, especially from organizations such as the American Kennel Club, which have a huge financial stake in the breeding of dogs. Among their many other arguments against anti-breeding laws, their opponents claim they are unconstitutional.

They are not.

Let’s examine anti-breeding laws and constitutional law to illustrate why.

The core of a typical anti-breeding law is its “findings,” which usually contain statements such as:

  • The euthanasia of unwanted cats and dogs is rampant, with totals annually in the millions of animals;
  • The destruction of these animals, though necessary, is immoral and not befitting a humane society;
  • The practice is not cost effective;
  • The root cause of this mass killing is the problem of overpopulation, which causes social and other problems beyond those created by mass euthanasia.

Based on findings like these, some laws provide for a moratorium on the breeding of cats and dogs. If the overpopulation problem in that jurisdiction isn’t reduced, then a mandatory spaying and neutering program is often provided as Plan “B.”

Equally important is the “Declaration of Intent” found in typical anti-breeding laws. For example:

The Board of Supervisors of the Town of Wherever hereby finds and declares that it intends to provide for the public health safety, and welfare, through a moratorium on the breeding of cats and dogs owned, harbored, or kept in this municipality in order to bring the population of abandoned and stray animals to an acceptable level for protection of the public health, safety, and welfare.

To understand why anti-breeding laws will be held constitutional if defended properly, as will mandatory spay/neuter and other animal protection laws, it is necessary first to understand something about the American system of government.

When the United States was founded, the Constitution created a new federal government possessing substantial power. Concern was expressed about whether any power was left to the states. To address that concern, the Tenth Amendment to the federal Constitution reserved to the states what is commonly referred to as the “police power” — not in the sense of law enforcement, but rather the power to legislate for the public’s health, safety, welfare and morals.

All state constitutions, in turn, delegate its police power from the state to various municipalities — e.g., cities, counties, towns, villages — which gives the latter power to pass laws related to the public health, safety, welfare and morals.

But those laws, like all legislative enactments made at every level of government must pass the test of constitutionality.

Laws affecting rights so fundamental that they are expressly protected by the federal and state constitutions — e.g., speech, press, religion — are tested by a very strict standard. In effect, laws affecting these kinds of fundamental rights (e.g., censoring media reporting, regulating church services) must advance an extremely important (i.e., “compelling”) governmental interest (e.g., not exposing to our enemies plans for the coming D-Day invasion), and be virtually the only way to accomplish that goal.

On the other hand, laws not affecting such fundamental rights are measured for constitutionality by a much less demanding test: Is there a problem properly within the government’s area of concern (e.g. teenage driving), and is the enacted law (e.g. requiring twenty-hours of classes and road testing) a rational way to deal with that problem? Put another way, it is a matter of legitimate “ends” and reasonable “means.”

Since, for example, anti-breeding — and mandatory spay/neuter and other animal protection laws — do not affect any fundamental rights, they would be tested by this lesser standard.

Clearly, following this example, 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” of mandatory spay/neuter and anti-breeding laws is entirely legitimate constitutionally.

Thus, the next (and last) question is one of “means”: Are anti-breeding and mandatory spay/neuter laws a reasonable way to deal with the problem? The “practical” answer is obvious: If there are too many unwanted cats and dogs, it’s certainly reasonable to prevent the breeding of any more in order to prevent the population from growing, allowing normal attrition to reduce the existing population.

The more basic answer is that the overpopulation problem is a moral outrage. Government has the constitutional power and the moral duty to solve it — to alleviate, if not eliminate, visiting the sins of irresponsible owners and breeders on innocent animals. When it comes to anti-breeding and mandatory spay/neuter laws, the end justifies the means –constitutionally and morally. The same can be said for most other proposed animal protection legislation. As the Supreme Judicial Court of Massachusetts opined in 1931, “[t]he natural, essential, and unalienable rights of men to acquire, possess and protect property are subject to reasonable regulation in the interest of public health, safety and morals.”

Indeed, a wide variety of statutes and ordinances affecting animals have been upheld against constitutional challenge. Some examples in the federal, state and other courts appear HERE.

Earlier this month, the United States Court of Appeals for the 6th Circuit affirmed a federal district court ruling that a recent Ohio statute limiting the private ownership of exotic animals easily passed constitutional muster.

Just as the State of Ohio was not intimidated by predictions that the proposed legislation would be ruled unconstitutional, no animal protection activists should fear unfavorable rulings — not if proposed animal protection bills are carefully drafted, and defended by competent constitutional lawyers.


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