A tale of two doggies

I’m a dutiful reader of the New York Times print edition, mainly for the news, opinions, and sports. I glance over the other pages, where I occasionally find some feature of interest.

One such feature is called The Ethicist. A recent column addressed the following inquiry from a reader, who said his “good friend” (yeah, right) had an ethical problem. I’ll call his good friend “Zack.” Zack’s male dog (whom I’ll call “Zeke”) was “unneutered for health reasons.” One day at a park, before Zack could stop him, Zeke allegedly impregnated a female dog (whom I’ll call “Franny”), who was unspayed. A few weeks later, Franny’s owner (whom I’ll call “Frieda”) contacted Zack: “Your dog impregnated my Franny. You should share the costs of her pregnancy and care for the pups till they’re eight weeks old.”

I ran this by my tennis buddies. My doubles partner Andy quickly claimed the high moral ground, delivering a Sermon on the Mount, as it were: “If a human guy does this to a human gal, he needs to pay. Why should dogs be different?” I inquired whether he would also require Zeke to change the pups’ nappies and help with their homework.

The Ethicist took a different approach: since most owners usually neuter or spay their dogs, Frieda was entitled to assume that male dogs brought to the park were neutered. So, Zack should pony up, at least for the pregnancy and pup care. (The Ethicist did leave Zack with one final consolatory tip: get a paternity test; Franny might have been playing the field.)

But the plot thickens. Zack said he ‘offered instead to pay for the total cost of an abortion, but the woman was not comfortable with terminating the pregnancy, claiming that she was religious.’”

Must Zack pay for a doggie abortion?

Not so clear, according to the Ethicist, because “the major arguments against it — which involve the particular sanctity of human life, or the potential of a fetus to acquire personhood — don’t seem to apply to dogs.” Nevertheless, “the choice between abortion and going to term is up to [Frieda].”

My law-addled brain couldn’t help roaming to Roe, Dobbs, and the like. But thus far, no state action, so no constitutional issue.

So: let’s invent some state action.

Suppose Frieda sues Zack for expenses, Zack insists on an abortion, and the judge orders Frieda to get an abortion for Franny. Frieda appeals, and the case wends its way to the U.S. Supreme Court. What would they do?

You laugh. How could the 1st Amendment’s freedom of religion clause possibly be construed to protect dogs from abortion? Well, how could the 2nd Amendment be construed to protect machine guns – now a distinct possibility? (And what’s next? A constitutional right to Howitzers in the home? “Open carry” of Sherman tanks on Main Street? All protected under the Supreme Court’s new “history” test - just because it never occurred to our colonial foreparents to regulate these instruments of mass murder?)

The Supreme Court’s recent religion cases assume that one of the tenets of the litigant’s Christian denomination deplores abortion. However, as The Ethicist noted, “sanctity of human life, or the potential of a fetus to acquire personhood — don’t seem to apply to dogs.”

But suppose Frieda’s view on abortion for dogs is sui generis, derived from her unique reading of the Old Testament (or the New Testament, or the Koran, or the Torah). Call it “The Church of Frieda,” if you like. Does that count, under the First Amendment?

It might! The Supreme Court’s earlier decisions on what constitutes a “religion” take a rather broad view. For example, in U.S. v. Ballard (1944) 64 S.Ct. 882, the defendant was convicted of mail fraud for sending solicitations to join his “I Am” movement, which claimed that “the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard” - and those words enabled the defendant to cure diseases that medical science deemed incurable. The Court held that the trial judge properly instructed the jury that the First Amendment’s Freedom of Religion clause removed from consideration “all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents.”

But there are limits to one’s right to proclaim any set of beliefs as a “religion.” In U.S. v. Kuch (D.C. 1968) 288 F.Supp. 439, the defendant was charged with delivering marijuana and LSD. She claimed that she had delivered these drugs to her parishioners at the “Neo-American Church,” in her capacity as an ordained minister. According to the court:

[The church] claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area. To join the church a member must subscribe to the following principles:

(1) Everyone has the right to expand his consciousness and stimulate visionary experience by whatever means he considers desirable and proper without interference from anyone;(2) The psychedelic substances, such as LSD, are the true Host of the Church, not drugs. They are sacramental foods, manifestations of the Grace of God, of the infinite imagination of the Self, and therefore belong to everyone; (3) We do not encourage the ingestion of psychedelics by those who are unprepared.’ Building on the central thesis of the group that psychedelic substances, particularly marijuana, and LSD, are the true Host, the Church specifies that ‘it is the Religious duty of all members to partake of the sacraments on regular occasions.’

A Boo Hoo is ‘ordained’ without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a ‘spiritual crisis,’ administers drugs, and interprets the Church to those interested. The Boo Hoo of the Georgetown area of Washington, D.C., testified that the Church was pantheistic and lacked a formal theology.

The court rejected the defendant’s First Amendment claim, holding – in effect – “Give me a break, guys. This is b.s.”:

Those who seek constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them when participating in antisocial conduct that otherwise stands condemned.

In a complex society where the requirements of public safety, health and order must be recognized, those who seek immunity from these requirements on religious grounds must at the very least demonstrate adherence to ethical standards and a spiritual discipline.

Kinda like how Justice Stewart defined “obscenity”: “I know it when I see it.” And this ain’t it. The Kuch court explained:

There is little evidence in this record to support the view that the Church and its members as a body are motivated by or associated with any common religious concern. The fact that the use of drugs is found in some ancient and some modern recognized religions is an obvious point that misses the mark. What is lacking in the proofs received as to the Neo-American Church is any solid evidence of a belief in a supreme being, a religious discipline, a ritual, or tenets to guide one’s daily existence.

The desire to use drugs and to enjoy drugs for their own sake, regardless of religious experience, is the coagulant of this organization and the reason for its existence.

Reading the so-called ‘Catechism and Handbook’ of the Church containing the pronouncements of Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words, and totally irreverent in any sense of the term. Each member carries a ‘martyrdom record’ to reflect his arrests. The Church symbol is a three-eyed toad. Its bulletin is the ‘Divine Toad Sweat.’ The Church key is, of course, the bottle opener. The official songs are ‘Puff, the Magic Dragon’ and ‘Row, Row, Row Your Boat.’

In short, the ‘Catechism and Handbook’ is full of goofy nonsense, contradictions, and irreverent expressions. There is a conscious effort to assert in passing the attributes of religion but only for tactical purposes.

The defendant was not helped by the Church’s motto: “Victory over Horseshit.”

As you might have guessed, when I taught constitutional law, Kuch was one of my favorite cases. And my students considered it a rare treat among their usual fare.

So, if Frieda can convince the Court that she sincerely believes that her abhorrence of doggie abortions does indeed stem from something we might see as “religious” – and not just a gimmick to win her war with Zack – she might have a chance.