10/05/2011 02:52 pm ET Updated Jan 26, 2012

Why Is Georgetown Law Helping to Promote Cruelty to Animals?

Sunday's New York Times and Washington Post agree that the Supreme Court's new term is likely to be, to quote the Post's front page, "the most significant term of Chief Justice John G. Roberts Jr.'s six-year tenure." For those of us in the animal rights community, that's an understatement -- based solely on one case, National Meat Association v. Harris (PDF).

But first, allow me a moment to explain the philosophy of animal rights, which is often misunderstood: What we all know to be true is that all mammals, birds and fish are made of the same stuff -- flesh, blood and bone. We share the same five senses (your dog can hear, see, smell, touch and taste, just like you can). And we all feel pain -- in the same way, and to basically the same degree. Darwin taught us what we know to be true today -- that differences between humans and other species are differences of degree, not kind.

We have different intellectual capacities, of course, but for the same reason that we don't justify inflicting pain on humans based on intellectual capacity, we should similarly refuse to use intelligence as a justification for the abuse of other animals, whether for food, research, entertainment or whatever.

That's the animal rights argument in a nutshell, and it has some influential proponents -- from Princeton bioethicist Peter Singer (called by The New Yorker "the most influential philosopher alive") to anthropologist Jane Goodall to evolutionary biologist Richard Dawkins, who denounces what he calls "speciesist arrogance" -- the idea that anything goes with other species, simply because they are different from us and can't defend themselves. Past adherents included Pythagoras, Leonardo da Vinci, Mohandas Gandhi and Albert Schweitzer.

But on to NMA v. Harris: The case involves a California law that requires immediate euthanasia for pigs who arrive at their destination (e.g., a slaughterhouse) so sick or injured that they can't even stand up. It was passed in 1994, in response to an investigation by Farm Sanctuary (basically, we documented horrible abuse of animals at a USDA-inspected slaughterhouse). The law was strengthened in 2008, in response to another investigation by The Humane Society of the United States.

The law is being challenged by the National Meat Association, which argues that the it is preempted by the Federal Meat Inspection Act (FMIA) which explicitly prohibits state "requirements... which are in addition to, or different from those" in the FMIA. The Ninth Circuit held for the animals, noting that the FMIA governs the slaughter of animals but "doesn't preclude states from banning the slaughter of certain types of animals altogether" (e.g., animals so incapacitated by sickness or injury that they can't even stand up).

The issue is, from the vantage of the animals involved, a very big deal: Every year in the U.S., the pork industry estimates that hundreds of thousands of pigs arrive at slaughterhouses crippled and in so much pain that they are unable to stand. It is unconscionable that federal law does not require that we end their agony, which was caused by abusive treatment on the farm or during transport. Instead, federal law allows them to be kept for up to 24 hours for "monitoring," without pain relief. If they can be "coaxed" into standing up after 24 hours of unmitigated misery, into the food supply they go.

Undercover investigations have documented slaughterhouse staff beating and torturing animals in an effort to force them to stand up, and then dragging them, kicking and in agony, to their deaths.

Remember, these animals feel pain in the same way, and to the same degree, that you and I do. And we're talking about hundreds of thousands of crippled animals -- that represents an unfathomable amount of mistreatment.

I have been overseeing Farm Sanctuary's role in this case (as the group that prompted the original law) so when the Supreme Court Institute's oral arguments schedule came out, I was interested in the fact that it wasn't listed. I inquired and learned that Georgetown is mooting for the meat industry, and that the moot is closed to students.

While I understand that the Institute is non-partisan, and also that it operates on a "first come, first served" basis, still, the goal of the institute is to offer "expert assistance in oral argument preparation," so there is real value for the side that is offered the moot. And so it's troubling to me that the school will be helping in a case that, if successful, will support the unimaginable suffering of thousands of animals every single year.

And I have to wonder how the Institute would have reacted had Fred Phelps shown up, asking to defend his right to picket military funerals with loathsome signs disparaging homosexuals and our military for being, in his view, pro-gay. Or what if the United States had asked to moot its defense of "Don't Ask, Don't Tell," which famously kept military recruiters off the campus for some years? I suppose that the Institute would have agreed, though I would have supported it, had it refused to aid in the defense of such intolerance.

I polled some of my fellow 1E students, and almost 80 percent said that the Institute should moot any opinion that is before the court, according to its "first come" policy. So I know that I'm among the small minority of students who would argue against offering our assistance to those who are arguing in favor of bigotry or egregious cruelty.

But I'm in the unanimous majority (in my little unscientific poll) of those who believe that all moots should be open to students (absent some reason better than "the issue is controversial") if we're going to offer our assistance to homophobes or animal abusers, we should at least honor the mandate of the institute, "to promote a deeper understanding of the Supreme Court among students, academics, legal professionals, and the general public."

Put another way: If we're going to allow the meat industry to hone its pro-cruelty argument at Georgetown Law, we should not do it under dark of night -- the moot is not even listed on the moot calendar -- and should not close it to student attendees.

This piece originally ran in the Georgetown Law Weekly.