AVIAN WELFARE CORNER Let's Look at Using the Legal Term "Guardian" Rather Than "Owner" Is This a Necessary, or Even a Good, Idea?


"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficial. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding. "

Louis D. Brandeis, Justice of the

United States Supreme Court


Animal Rights activists are pushing nationwide for federal, state, and local laws that use the term "Guardian" rather than "Owner" with respect to our relationship with our animals. What does this mean to us as animal owners and keepers? Is it important that we understand the legal and practical ramifications of the words "Guardian" and "Owner?" I believe that it is.


I have no argument with anyone who wants to see animals kept in a humane way, and I support legislation that is truly designed and implemented to protect animals and ensure their welfare. However, the humane treatment of animals is really not the issue when we look at what is behind this push to substitute the term "Guardian" for "Owner" in the minds of the public and in our legal system.


The animal rights public argument is that this kinder, gentler term "Guardian" more accurately reflects the position which humans should occupy with respect to animals. They say that it will make people more responsible for the animals in their care. However, despite the appealing packaging

and propaganda, animal rights activists who have an understanding of the law understand the legal and practical applications of the term "Guardian," and they use it to advance the animal rights agenda of no use of animals by man - not for food, fiber, research, entertainment, or as pets.

In legal terms, the rights and obligations of a "Guardian," and the Guardian's abilities to resist intrusion from outsiders, are limited when compared to the rights and abilities of an "Owner." A person who owns property has rights under the U. S. Constitution not to be deprived of that property without Due Process of Law. In contrast, a "Guardian" does not enjoy the same level of Constitutional protections afforded to an "Owner."

Due Process can require a much higher standard of proof and more structured and stringent legal


procedures to remove an animal from an "Owner" than from a "Guardian." A "Guardian" can be easily and quickly appointed, and just as easily and quickly removed, by a judge, often without a hearing or a trial.

In some courts, a simple state" ment by an "interested party" can suffice to allow the judge to appoint or remove a Guardian. Again, in contrast, an Owner cannot be so appointed and removed, although the physical custody of the owner's animals can be taken from him if he neglects or abuses his animals. In such a case the owner is entitled to participate in, and oppose, legal proceedings regarding his animals - legal proceedings in which he is entitled to know the evidence against him and in which he is entitled to present a defense. Despite claims by animal rights activists that tell us otherwise, an "Owner" does not have the absolute right to neglect or abuse his animals, and in most jurisdictions in this country there are laws against animal abuse and neglect. Where there are not such laws, there should be, and I support enacting such legislation in those jurisdictions.

In essence, if we are "Guardians" rather than "Owners" of our animals, it is the State (i.e. the government), and not the individual, who owns the animal.

If we are "Guardians" rather than owners, then ultimately it will be the State, and not the individual, who has the power to say who will care for the animal, how it will be cared for, where it will reside, what medical treatments it will or will not undergo, and who will make all the other decisions regarding the health, welfare, life and death, or destruction, of that animal. I do not believe animal ownership and care is a function which is, or which should be, properly exercised by the State. Further, when we say the "State" is the owner of the animal, it is unclear which arm of the "State" will have and exercise this ownership. If the federal, state, and local jurisdictions all have "Guardianship" laws, and if they conflict, who will prevail and


which laws will be effective? The confusion about who is ultimately responsible for the care of animals subject to "Guardianship" laws can lead to more hardship and suffering of the animals who are allegedly neglected or abused by their owners. Also, the humans who are subjected to these conflicting laws, who care about their animals, will also suffer as decisions regarding the care and custody of their animals remain in legal no-man's land.

At this time there is no State that has the financial or practical ability to assume this role as animal owner, or to carry it out in a way that would benefit animals. If history provides us any lessons, history has shown us that when a State is unprepared to carry out a role that has been imposed upon it, the State delegates that function. So, if the State becomes the owner of our animals, when that delegation takes place, who will the States delegate to? The former "Owners?" The citizenry at large? Animal Control? USDA? Animal Rights organizations?Local or national rescue organizations? What is the point of making the State the owner of animals if the State is not prepared to perform this function and must delegate this right and duty? It seems pointless to me to engage in this kind of useless legislation, if in fact the goal is to make things better for animals. But as I have said, that is not the real purpose behind the push for Guardianship" for animals.

So, what is the true purpose behind this push for using the term "Guardian"? From my legal perspective I see that purpose to be to achieve public acceptance for the concept of animal "Guardians" in a general sense, so that the door can be opened to animal rights activists who don't believe humans should have or keep animals and who seek the removal of animals from their owners on simple, perhaps unfounded, allegations of abuse or neglect.