New York Times Room for Debate Forum on West Hollywood’s Ban on the Sale of Fur

A few days ago, I was asked to participate in the New York Times Room for Debate forum on West Hollywood’s recent enactment of a law banning the sale of fur clothing. Here is an excerpt from my contribution:

West Hollywood’s ban on the sale of fur clothing is ultimately trivial because it will have little effect. Local residents who want to buy fur coats will simply drive to a neighboring town. Nonetheless, the law will raise an important constitutional issue: Whether it is permissible for the state to ban an economic transaction that does not harm any person or pose a threat to the community.

Under current Supreme Court precedent, the government can ban or restrict virtually any economic activity so long as there is some “rational basis” for the law, which could be almost anything. The Court even allows the government to make up justifications after the fact that the legislature did not consider when it enacted the regulation.

This highly permissive approach has allowed state and local governments to enact numerous laws that benefit organized special interests at the expense of the general public…..

In recent years, some federal courts have begun to recognize that the Fourteenth Amendment’s protection for “liberty” should have at least some teeth in economic liberty cases. There is growing recognition that economic freedom was one of the most important rights that the framers of the amendment sought to protect….

If the [West Hollywood] law is challenged, judges will probably conclude that there is at least some “rational basis” for it, such as the need to protect fur-bearing animals from overhunting….

Nonetheless, the debate over this case and others like it could help increase public awareness of the need to enforce constitutional protections for economic liberty.

Because I had only about 300 words to work with, I chose to address the constitutional economic liberty aspect of this issue, while leaving the animal rights question to other participants in the forum. For what it’s worth, my general view is that most animals (with the exception of highly intelligent primates, whales, and a few others) do not have rights that are binding on humans. However, for reasons I described here, I have some doubts about the validity of my view. It could be that my judgment on this issue is corrupted by self-interest – not because I particularly like fur clothing, but because I love eating meat. And if it is wrong to kill animals to make (nonessential) clothing, it seems equally wrong to kill them for the purpose of eating them if doing so isn’t necessary for our own survival. A possible way out of the dilemma is to conclude that killing animals for food or clothing is moral so long as we do so in ways that aren’t “cruel.” But it seems to me that any animal that has a right to be free of human-inflicted pain would also logically be entitled to a right to life.

None of this changes my view of the West Hollywood law. Even if animals are entitled to greater rights than I currently believe, that law still restricts economic liberty without providing any real benefits to either animals or humans. But the broader question of animal rights is a genuinely difficult moral issue that I continue to struggle with.