Last week we started the conversation about non-human intelligences, mostly by examining the historical reasons why humans have been treated differently by the legal system for pretty much as long as it’s existed. We also looked at some of the philosophical problems involved in coming up with some kind of bright-line rule for deciding what gets counted as a person and what doesn’t.
This time we’re going to look at some of the law that would probably get a workout if a non-human ever sued for the violation of its alleged civil rights (or someone brought suit on its behalf).
Before we start, we’ll again set the parameters of the problem we’re examining. A fictional legislature could, in its wisdom, simply pass a law granting various rights to, e.g, Kryptonians, at least as far as the Constitution would allow. Or a constitutional amendment could be ratified that says Kryptonians count as people for all legal purposes. Thing is, it’s all well and good to pass a law giving a certain species (e.g. Kryptonians) status as persons, but what if the legislature or the constitutional convention wanted to draft a more all-encompassing rule so they wouldn’t have to do it every time we ran across a new intelligent species? Then we’re back to square one. So that’s not the issue here. The issue here is whether there is a judicially workable way to include non-human intelligences in our concept of a person without invoking the political branches, i.e. the executive and the legislature.
I. The Constitution
The Constitution you say? Doesn’t say anything at all about human beings as such, does it?
Well, no, not directly, but section one of the Fifteenth Amendment reads “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
This Amendment, along with the Fourteenth, forms the core of federal anti-discrimination legislation and jurisprudence focused on race, at least with respect to voting. The Commerce Power is frequently invoked for things like employment discrimination, gender discrimination, etc., but race is recognized as a sort of “uber-protected” class by virtue of it actually appearing in the Constitution while aside from gender in the Nineteenth Amendment, most other classes simply do not.
So if Superman were not assumed to have been born in Kansas, as is the case in a number of continuities, and if, for example, someone were to refuse him service at a public accommodation or otherwise discriminate against him by virtue of his not being human, he would potentially have a viable suit suit under 42 U.S.C. § 1983, the federal statute which creates a private cause of action for such situations. If that happened, his attorney would probably bring up the Fourteenth and Fifteenth Amendments, arguing that denying Superman the status of a person, in addition to just being kind of silly, would constitute a violation of those provisions of the Constitution.
How? Well “race,” as a term, is generally thought of has having to do with the classification of humans into more-or-less distinct populations or groups, at least partly on the basis of genealogy and/or geography. There are genetic differences between “racial” groups, but the definitions are pretty fuzzy around the edges and work much better in describing population groups than in sorting individuals. “Race” is, in short, a wildly controversial term which some people argue is entirely socially constructed and others argue is at least somewhat biological.
If there’s one thing the Supreme Court generally doesn’t like doing, it’s handing down official legal definitions for socially controversial terms when there is any way to avoid it, so it’s a good bet that the Court would air some of these arguments and then basically ignore them to come up with as broad and uncontroversial a definition as it can. Which could very well be something along the lines of “genetic ancestry,” i.e., we aren’t going to discriminate against you or deprive you of civil rights because of who your parents were or weren’t. And under that definition, the presumption would be towards granting civil rights to non-human intelligences, at least for biologicals. Exactly how this would play out for the various categories of non-human intelligences, and how the standard would be applied to groups as well as individuals, will be discussed next time. But if it is established, as it may well be, that “race” is not limited to “the human race,” pretty much the entire weight of federal racial anti-discrimination statutes comes into play.
II. Federal statutes
We’ve already mentioned § 1983, which permits private citizens to sue for alleged violations of their civil rights. But it is important to understand that all federal anti-discrimination laws, from the Civil Rights Act to the ADA, are not blanket prohibitions against anything that looks discriminatory. We have already discussed the fact that the ADA would not require an employer to give the Hulk a customer service job, as there is no way to reasonably accommodate his tendency to level the building every time someone pisses him off. Similarly, a non-human would not be able to use racial anti-discrimination statutes to gain an advantage over other citizens.
When a plaintiff brings a discrimination lawsuit, he has to prove that he is being discriminated against on the basis of his membership in a protected class, in this case for being non-human. If the defendant can demonstrate to the fact-finder’s satisfaction that the alleged discrimination is actually on some other basis, one which is not prohibited, then the claim fails. For example, if a woman is fired and alleges that it’s because she was a woman, but the employer brings in evidence that she was stealing from the till, the gender discrimination claim is probably going to fail (unless she can show that men who stole were treated differently). Similarly, if a non-human claims that he was not hired because he isn’t human, but the employer points out that the job posting requires a qualification that the non-human doesn’t have, that case is also going to fail.
But even if the plaintiff proves his case, the defendant may raise a variety of defenses, including the argument that the discrimination is precisely on the basis of the plaintiff’s being a member of a protected class because the members of that class are somehow incapable of doing what the situation requires. It’s okay to not hire Anthony Hopkins to play Othello. Dude’s not black. Likewise, it’s okay not to hire a black guy to play a white character. And a non-human wouldn’t win a suit alleging that he was prohibited from donating to the local blood bank, because it would have absolutely no use for whatever passes for blood in non-human bodies. Similarly, an aquatic entity would have a hard time convincing courts to extend the ADA to require the installation of facilities to permit swimmers to access public buildings.
Note that judges and juries aren’t stupid. Just because an employer or other alleged discriminator can come up with some reason why the subject action is permissible doesn’t mean that he’s going to win. The courts regularly see through pretenses, and there is a general privilege of substance over form throughout the judicial system these days. So yes, it may be that the non-human does not have a high school diploma, which your job theoretically requires, but if he’s smart enough to build his own starship and fly here from heaven knows where, he’s probably smart enough to man that phone, as it were.
III. A Word About Animal Rights
One area of the law which would not provide much guidance is the area of animal rights, particularly past attempts to involve animals in the legal system. Animals are, for good or ill, property. Domestic animals are owned by their respective owners, and wild animals are not owned by anyone until they are taken captive, though there are statutes in most countries restricting the legality of capturing at least some kinds of animals (endangered species, etc.) Animals have no rights before the law, and if one is killed, the only available remedy is the cash value of the animal, and even that can be hard to establish in the case of domestic pets. While it’s true that there have been attempts to bring non-humans to the witness stand (usually talking parrots who were alleged to have overheard and repeated important evidence), those cases do not provide much guidance, not least because as far as we know such attempts have been unsuccessful. The better way to view those cases is as an attempt to introduce evidence akin to a tape recorder than as an attempt to put a competent witness on the stand. (Besides, wouldn’t a talking parrot’s testimony be hearsay anyway?)
Furthermore, relatively few animal rights supporters would put animals on precisely the same legal footing as people (e.g. consider trial by jury, the right to an education, and the 13th Amendment). Also, in the comic book world, the non-human intelligent beings are not only significantly smarter than even the most intelligent animals, they also tend to be powerful enough to effectively demand equal legal treatment. Frankly, that changes the political reality in a way that would no doubt motivate a comic book judge to try very hard to accommodate non-human intelligences. The judiciary should not be controlled by politics but neither can it afford to be blind to it. This fact, along with the preference for substance over form, would likely strongly influence how courts handled non-human intelligences. We’ll discuss more of these issues, like precisely how the law is likely to treat each of the major categories of non-human intelligences, in a later post, and animal rights in particular will likely appear in our discussion of artificial intelligences.
There’s far more that can be said here, and depending on how things go, there might be another post like this one before we start looking at specific examples. But thus far, we’ve aired a possible constitutional argument for classifying non-human intelligences as persons, touched very briefly on the limits of some anti-discrimination laws, and at least mentioned the issue of the way animals are treated by the law. Again, more to come.