This article was published in Scientific American’s former blog network and reflects the views of the author, not necessarily those of Scientific American
Americans take their rights seriously. But there is a lot of misunderstanding about what actually constitutes a 'right.' Religious believers are correct that they have a right to freely express their beliefs. This right is protected under the First Amendment to the US Constitution that prohibits Congress from making any "law respecting an establishment of religion, or prohibiting the free exercise thereof." However, as a result, devout believers feel it is a violation of their rights when intelligent design creationism is forbidden in the classroom or when prayer during school sporting events is banned. After all, shouldn't the First Amendment prohibit the government from interfering with this basic right?
The answer is no and represents an important distinction when understanding what a right actually is. Because public schools are government-run institutions, allowing prayer during school activities or promoting religious doctrines in the classroom is a direct violation of the First Amendment. These activities infringe on the rights of those who do not share the same religious beliefs (or any at all). The key point is that rights are obligations that require governments to act in certain ways and refrain from acting in others. The First Amendment obligates the government to protect the rights of all citizens from an establishment of religion. You may have the right to freely exercise your beliefs, but that doesn't give you the right to impose your views on others in public school.
It was just this understanding of rights as obligations that governments must obey that formed the basis for a declaration of rights for cetaceans (whales and dolphins) at the annual meeting of the American Association for the Advancement of Science held in Vancouver, Canada last month. Such a declaration is a minefield ripe for misunderstanding, as the BBC quickly demonstrated with their headline, "Dolphins deserve same rights as humans, say scientists." However, according to Thomas I. White, Conrad N. Hilton Chair of Business Ethics at Loyola Marymount University in Los Angeles, the idea of granting personhood rights to nonhumans would not make them equal to humans. They would not vote, sit on a jury, or attend public school. However, by legally making whales and dolphins "nonhuman persons," with individual rights under law, it would obligate governments to protect cetaceans from slaughter or abuse.
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"The evidence for cognitive and affective sophistication—currently most strongly documented in dolphins—supports the claim that these cetaceans are 'non-human persons,'" said White. As a result, cetaceans should be seen as “beyond use” by humans and have “moral standing” as individuals. "It is, therefore, ethically indefensible to kill, injure or keep these beings captive for human purposes," he said.
This is not as radical an idea as it may sound. The law is fully capable of making and unmaking "persons" in the strictly legal sense. For example, one Supreme Court case in 1894 (Lockwood, Ex Parte 154 U.S. 116) decided that it was up to the states "to determine whether the word 'person' as therein used [in the statute] is confined to males, and whether women are admitted to practice law in that commonwealth." As atrocious as this ruling sounds, such a precedent continued well into the twentieth century and, in 1931, a Massachusetts judge ruled that women could be denied eligibility to jury status because the word "person" was a term that could be interpreted by the court.
Such a flexible interpretation of personhood was demonstrated most dramatically in 1886 when the Supreme Court granted personhood status to the first nonhuman. In this case it was a corporation and Southern Pacific Railroad (part of robber baron Leland Stanford's empire) snuck in through a legal loophole to gain full personhood rights under the 14th Amendment. Such rights have now been extended to all corporations under the Citizens United ruling in 2010, which is what allowed Mitt Romney to confidently declare "corporations are people, my friends."
But prior to 1886, dating back to the 1600s, corporations were viewed as "artificial persons," a legal turn of phrase that offered certain rights to the companies but without the full rights of citizens. By using the wording of the 14th Amendment (intended to protect former slaves from a state government seeking to "deprive any person of life, liberty, or property, without due process of law") it was ruled that corporations should enjoy the same status. As a result, between 1890 and 1920, out of all the 14th Amendment cases that came before the Supreme Court, 19 dealt with African-Americans while 288 dealt with corporations. With the legal stroke of a pen, artificial persons were granted all the protections of citizens.
But that would be unlikely to happen with whales, dolphins, or even great apes. A "nonhuman person" would have a definition similar to this earlier tradition of "artificial person," one that grants limited rights that a government is obligated to protect. Furthermore, according to White, the term would only apply under very specific criteria for nonhumans that had self-awareness, complex social as well as emotional lives, and evidence of conscious awareness (so, for example, ants would never be considered persons under law). According to White, these criteria have been met in the case of dolphins and whales and our legal institutions should incorporate this evidence into American jurisprudence.
"One of the most important aspects of science is that scientific progress regularly raises important ethical questions," said White. "As scientific research produces a more accurate picture of the universe, it often reveals ways that human attitudes and behavior may be out of synch with these new facts."
This has already been established in some parts of the world. In 2008 the Spanish Parliament came to a similar conclusion for great apes that would grant limited personhood rights to nonhuman animals for the first time so that, according to The Guardian newspaper, they "should enjoy the right to life, freedom and not to be tortured." This ruling came one year after Austrian animal rights advocates had attempted, and failed, to adopt the chimpanzee Hiasl so that he couldn't be sold to a zoo or laboratory. The judge in that case decided that chimpanzees were defined as property and therefore couldn't be adopted (something that the law allows only for "persons"). However, as the history of this term suggests, there is nothing inherent to modern legal frameworks that would prevent a different judge from coming to another conclusion.