Legal Niches

Apparently, folks in Portland like to bring companion animals into food stores, a predilection that the Oregon Agriculture Department (Food Safety Division) wishes to discourage. The law states that only “service” animals may enter food stores. However, enforcement of the rule is complicated by a Catch-22 created by the Americans with Disabilities Act. The ADA bars business owners from questioning people about the nature of their disability. Though an animal may fall outside the category of service animal, the business owner cannot inquire if this is the case because that would involve asking why the animal’s presence is necessary. Thus, though non-service animals are banned, enforcing the ban is illegal.

This situation raises a host of legal and ethical issues. First, as a legal matter, the rule clearly is unenforceable. Unenforceable laws (or laws that are routinely disregarded) serve no social purpose and undermine the legal system. We must therefore ask: should this law be abolished?

Turning now to the ethical realm — should people have to leave their companion animals tied up outside or unattended in a vehicle when service animals are permitted inside the store? What rationale justifies this exclusion? The obvious reply might be that service animals enable some people to enter the stores. However, that response does not really answer the question posed. It explains why service animals gain entrance; it does not address why non-service animals get excluded.

Another reason to exclude non-service animals might be because they cause a lot of disruption. The Oregon Agriculture Department received 600 complaints in the past year. However, 600 complaints for 4,500 food stores that see millions of user-visits over the course of the year seems like a comparatively small number. Furthermore, it must be counterbalanced against the many people who either do not mind or actively support allowing animals in these establishments.

This may seem like a long post for a comparatively small matter but it offers a segue into murkier ethical waters into which I hope to venture soon. The question over whether to allow dogs in stores is a subsection of a larger debate about the role of dogs (and all service and companion animals) in society. Some in the animal advocacy community feel that the existence of these animals is inextricably linked to an exploitative relationship between humans and nonhuman animals. Consequently, a society in which animals enjoy full membership in the moral community is one in which such animals do not exist (no one advocates that they be killed but rather that no more be brought into being). Others believe that such an approach does an injustice to the animals — that they would prefer to live and propagate rather than go extinct. The fact that humans brought these species into existence does not give humans the right to decide whether that existence should continue.

In a forthcoming post, I hope to explore both the ethical and legal implications of these opposing positions.

–David Cassuto