What is Pet Guardianship?

Jun 2nd, 2001

guard·i·an·ship:

- noun
1. the position and responsibilities of a guardian, esp. toward a ward.
2. care; responsibility; charge.

The definitions above don’t quite capture guardianship as it pertains to pets. Pet guardianship as a concept is actually quite simple to grasp, however. It is the removal of property rights an owner of a pet prior had to his/her pet (i.e. property) supposedly in the interest of giving the animal its own set of “rights.”

Animal rights activists and even some pet owners have asked why pet guardianship as a concept is received by breed fanciers and constitutionalists with such disdain. These activists and pet owners argue that treating our pets as property doesn’t quite capture what our pets have come to mean to us. Pet guardianship, they say, establishes a special relationship between humans and pets much like that of a parent to a child, and you don’t own your child do you?

It is understandable why animal rightists would push the view that animals are entitled to rights like that of a child, but many pet owners are quick to subscribe to the concept of pet guardianship simply because they have maintained for many years that their pets were “like their children.” These pet owners don’t understand that in order to give animals rights, the rights given to animals must be taken from their human owners first.

Perhaps if we can understand where the concept of viewing our pets as children (i.e. pet guardianship) came from, we can understand where it is headed. According to the Animal Council:

“In 1977, Joyce Tischler, then a law student, wrote a ‘Comment’ (term for student written law review articles) at 14 San Diego Law Review 484, Rights for Nonhuman Animals: A Guardianship Model, for Dogs and Cats. Her first sentence, ‘The idea that nonhuman animals should have rights is amusing to many people’ is still true. Ms. Tischler wrote that the ‘chief obstacle to recognizing legal rights for nonhumans has been the difficulty of delineating logical boundaries.’ The comment concluded that nonhumans should be ‘recognized as holders of legal rights’ and went on to propose that existing guardianship laws providing formal legal protection for incompetent or human minors be the basis for protecting rights of animals. She cited the advantages of well-established basic principles based on care and compassion ‘and an acceptance of responsibility for both the physical and mental well being of the ward.’ She concluded that ‘It is time for a drastic reevaluation of their present status in our legal system.’ That was 30 years ago.”

Yes, and in that 30+ years since, animal rights activists have learned how to lobby, gotten more brazen, more well-funded, and more covert.

So, since we now know what pet guardianship as a concept is and where it came from, we can easily surmise what guardianship legislation will do. Pet guardianship legislation “legalizes” the negation of pet owners’ property rights under the 14th amendment rendering former pet owners mere “guardians.” And why do pet owners need to retain property rights to their pets in order to retain their pets? Because as mere “guardians,” former pet owners only care for their pets and can no longer make any legal claim to them. Therefore, if, for example, the city in which you live thinks you are abusing your dog because you leave it tethered outside in your yard, even for a reasonable amount of time, or because you use a prong collar, or because you’re doing something, anything, with your pet that the city defines as “abuse,” your pet can be confiscated. You will have no right to contest that confiscation in court, and you will quite possibly never see your pet again.

There are also often provisions in guardianship legislation which allow citizens to inform on pet “guardians” if pet “abuse” has been observed. Think of all the ways such a provision could be abused. Animal rights activists could go around reporting that citizens are “abusing” their pets if the pet “guardian” is simply unaware that, as in the prior example, a tethering ordinance has just been passed and dogs are no longer allowed to be tethered in their yards. In this scenario, the dog would most likely be confiscated and the pet “guardian” would have no due process rights with which to get their dog back. Similarly if your neighbor just doesn’t like you, s/he could simply lie and say they saw you “abusing” your pet, your pet could be taken away and again, you would have no legal recourse since under guardianship legislation your pet would no longer be considered your property.

So what does the Constitution say about property exactly? The 14th amendment states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If we apply the 14th amendment to guardianship laws, we can so clearly see how pet guardianship unconstitutionally negates pet owners’ property rights as well as their due process rights by simply declaring that pets are no longer the property of their owner, but the property of the city or state. In doing so, the city or state has also abridged, or reduced in scope, the privileges, meaning rights, and immunities of its citizens.

Pet guardianship laws also infringe on the 4th amendment right to privacy. The 4th amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Pet guardianship laws — which often have as a component the allowance of surveillance of pet “guardians” by citizens and/or animal rights activists supposedly to ensure compliance — are a flagrant violation of the right to privacy. Worse, privacy and the right to be secure in one’s property, protected by the 4th amendment, are not to be infringed upon without probable cause and a warrant, and are certainly not to be infringed upon by private citizens or animal rights groups.

So, while guardianship has the appearance of giving pets a more worthy designation, it actually negates the very property rights that keep our pets safe from governmental intrusion. To put it even more vividly, what do you think would have happened if pet owners in Louisiana hadn’t had property rights to their pets after Hurricane Katrina and had been considered mere guardians? Do you think Hurricane Katrina victims would have gotten their pets back, or do you think Hurricane Katrina pets would simply have been confiscated by the state of Louisiana to do with as they so chose including giving them to a supposedly more suitable “guardian” or simply euthanizing them?

And to make it even clearer still why pet guardianship as a concept is meant only to remove your property rights to your pet, look at what some animal rights groups spokespersons have said about pet ownership:

“We have no problem with the extinction of domestic animals. They are creations of human selective breeding.” Wayne Pacelle, Humane Society of the United States, Animal People, May, 1993.

“It is time we demand an end to the misguided and abusive concept of animal ownership. The first step on this long, but just, road would be ending the concept of pet ownership.” Elliot Katz, In Defense of Animals, Spring 1997.

“In the end, I think it would be lovely if we stopped this whole notion of pets altogether.” Ingrid Newkirk, People for the Ethical Treatment of Animals (PETA), Newsday, 2/21/88.

“Let us allow the dog to disappear from our brick and concrete jungles–from our firesides, from the leather nooses and chains by which we enslave it.” John Bryant, Fettered Kingdoms: An Examination of A Changing Ethic, Washington People for the Ethical Treatment of Animals, (PETA), 1982, p. 15.

If pet guardianship was a mere theory in the 70s, 80s, and 90s, well, it is coming to fruition as law in the 21st century. (For instance, in 2007 Washington D.C. sneakily tried to pass a guardianship ordinance under the guise of a mandatory spay/neuter ordinance.) You can see that pet guardianship has nothing to do with esteeming your pet as more worthy than the supposed lessened label of property and that the real agenda here is to remove your pet from your ownership and from you entirely.