Attorney Seeks Way to Give Animals Equal Protection Under Law

Fashion models without furs. Laboratory break-ins. Snappy slogans. That’s the animal rights movement, out front.

Behind the noise is an activist of a different sort, Boston trial attorney Steven Wise. While most attorneys in the movement lobby for anti-cruelty statutes or go to court on behalf of outraged pet owners, Wise stands apart in the belief that he can reshape the legal concepts of “person” and “property” through common law.

His goal is to win fundamental rights--or full “personhood”--for animals, though other specialists in animal rights scoff at the idea that common law can be used that way. Wise is soft-spoken but firm when he defends his approach as “the most likely way in which rights for animals will be achieved.”

Wise and his wife and law partner, Debra Slater-Wise, share their home with two mutts, including Marbury, a dog named for a landmark Supreme Court decision, Marbury vs. Madison (from 1803; it was the first time the court declared a federal law unconstitutional). For Wise, at least, his love of animals and his life’s pursuit began early.

At age 8, he saw rabbits crammed in small cages at a farmer’s market in Maryland and wrote a letter of protest to his state delegate. Today, at 47, he’s more public about his message.

Wise has been featured in the journal Science and the Journal of NIH Research, published by the National Institutes of Health. Surrounded by dogs, he was on the cover of the Journal of the American Bar Assn. And, with primatologist Jane Goodall, he addressed the bar’s senior lawyers.

A ferocious researcher, he spends much of his time preparing for his first courtroom challenge. For a decade, Wise has meticulously traced the legal history of animals, publishing often in Animal Law and other journals. In 1996, with his wife and a $5,000 grant from the National Antivivisection Society of Chicago, he founded a think tank, the Center for the Expansion of Fundamental Rights.

In summers, Wise teaches animal law at Vermont Law School, though he never took such a course as a law student at Boston University. His was the nation’s second law school course on the subject when he began it in 1990.

Through such scholarship, he hopes to win new status for animals. Why, Wise asks, should the legal protection of “bodily integrity and bodily liberty” apply only to humans? “These kinds of ideas, that fundamental legal rights do not necessarily need to be confined to human beings, are blossoming,” he says.

Common law, he insists, is the way to proceed. It’s more flexible than statutes and constitutions. Based on fairness and precedents, it allows judges to fashion old law into new.

In Wise’s perfect legal world, extending human rights to nonhumans would prohibit capture, confinement and acts of “touching,” including “any kind of invasive biomedical research.”

For now, Wise focuses on chimpanzees and bonobos, their smaller cousins. Links to humans, with DNA differing by about 1%, make these primates popular in high-profile research, including the hunt for an AIDS vaccine.

The attorney has some researchers worried. “All it takes is one or two cases to become deified as precedents,” says Dr. Fred Goodwin, director of the Center for Neuroscience, Medical Progress and Society at George Washington University.

Goodwin calls Wise’s efforts a “mindless pursuit of rights.” The doctor insists, “If you start assigning rights to beings that you cannot assign responsibilities to, then you’re increasing what is already moral widespread legal confusion.”

Gary L. Francione, a law professor at Rutgers University and one of the movement’s more prolific writers, doubts that Wise will ever succeed. He calls Wise’s common law idea “implausible, on the level of Santa Claus.”

Wise and Francione do, however, agree on history, and the 4,000 years of law that have separated man from other species. Ancient Hebrews, Greeks and Romans reflected their times by denying justice to nonhumans, Wise says.

Nonhumans, according to Aristotle, could merely perceive, while humans could think and reason. And though nonhumans might experience pain and pleasure, and even learn, they lacked true emotion.

The idea merged with Christian thought, though the world grew wider with physics, chemistry, astronomy and exploration. In 1871, when Darwin’s theory of evolution lowered man into the animal kingdom, the law remained stuck in ancient Rome.

“At the time of the Ancients, the law about animals was in line with what they knew about animals and never changed,” Wise says. “Today, the heart of this curious and imaginary physical world of the Ancients lies beating within the breasts of common law judges.”

To redefine the legal status of animals, Wise tracks precedents that reshaped the legal status of humans.

Consider the California Supreme Court, which in 1854 barred the testimony of Chinese against whites on the grounds that the Chinese belonged to a race that “nature has marked as inferior” and “are incapable of progress or intellectual development beyond a certain point.”

Or the U.S. Supreme Court that, in 1857, identified blacks as “beings of an inferior order,” far below whites “in the scale of created beings.” Or the Wisconsin Supreme Court, which in 1875 denied one woman’s hope to practice law, citing a departure “from the order of nature.”

Francione and Wise also share a belief that current statutes treat nonhumans unfairly.

People “claim that animals have certain ‘defects,’ such as the inability to use language or a supposedly inferior intelligence, that permit us to treat them instrumentally, as means to our ends,” Francione wrote in 1995. For him, change must be led by an enlightened public.

As a teacher, Wise, too, endorses education, but he doesn’t believe his revolution must be led by the people. Courtroom judges will be out front. “Realistically, this isn’t going to happen for 10 or 20 years,” he says.

He’s willing to wait.