The Government Has a Moral Obligation to be Correct

We Americans grant our government the power to regulate different things differently, provided that the claimed differences between groups of persons, activities or property are real, and rationally related to some problem we want to solve. For example, we limit the age at which you can drive a car or purchase an alcoholic beverage.

We also accept change in our society and expand our rights. We have amended our Constitution three times to expand the voting franchise.

Roughly 80 million dogs – of all sizes, breeds and mixes of breeds – live in American households.

As we reported previously, the U.S. Eighth Circuit Court of Appeals ignored or dismissed the mountain of scientific evidence that undermines discrimination based on presumed breed or appearance. The court set an extremely high threshold for evidence for repeal of breed-specific legislation (BSL) but tolerated a very lax one as adequate for its defense.

BSL does not reflect how people now feel about their pets. Law and judicial precedent, dating from earlier times, defined pets as property. Most 21st century Americans embrace their pets as members of the family. In 2021, Americans spent more than $120 billion on their pets, more than one quarter of that on veterinary care and services.

Millions of us no longer consider veterinary care for our pets to be discretionary, that is, an expense we feel free to incur or not.

It is health care for a member of the family.

Government should reflect the feelings of the governed and the knowledge that supports such feelings. The scales of justice must be rebalanced, in recognition of the human-animal bond.

Judicial tolerance for a yawning disparity of standards between outdated beliefs and peer-reviewed science can never result in enlightened policy or increased community safety. Doing their duty as a check or balance against governmental overreach, courts should not insulate the executive and legislative branches from misguided, misinformed laws. Courts can set so low a standard for a rational relationship to a public safety issue that it may become no standard at all. Such a low basis does not bode well for community safety and well-being, with respect to responsible owners and their companion dogs, or otherwise.

Courts make a mistake if they rule that discriminating against responsible dog owners need have no basis in science. Objective truth matters. People’s relationships with their dogs matter. Science advances, and scientific advances count. What we thought was true about dogs in decades past, and what a few are still hanging on to, is not so, and never was.

We hold these truths to be the best, most accurate understanding of our canine companions. There is no genetic predictor of aggression. Breed is not a reliable predictor of a dog’s behavior, particularly regarding agonistic behavior, the scientific term for behaviors we categorize in ordinary language as aggression. Breed identification by visual inspection is highly inaccurate, so that we can’t correlate dog bites with presumed breed. We can correlate dog bites with preventable factors in control of dog owners and guardians.

Nor has anyone, anywhere, shown that BSL reduced dog bite-related injuries. Studies show a lack of BSL’s positive effect on community safety in the United States, and around the world. 

Our knowledge of the world is always changing.

Recognizing that reality, Supreme Court Justice Harlan Stone wrote that: 

The constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist

We may reasonably ask ourselves whether any facts ever existed that supported BSL. And the progress of science has certainly been such as to earn dog owners the right to make the showing Justice Harlan suggested.

The government Americans expect does the right thing regarding people and their dogs. In America we should regulate the same things the same and hold each other to the same standards.

We all want safe, just, and humane communities for people and pets. Community safety is a product of our humane care, custody, and control of all dogs. Government should enact and enforce rules that are based on facts, and that are the same for all.

This is America. In America, government has a moral obligation to be correct.