A town in Kentucky has required all horses to wear diapers to avoid the deposit of manure on the streets, a clear attack on the Amish community, which utilizes horses and carriages as their mode of transport. The community is refusing to pay the fines, many have gone to jail, and more than 20 lawsuits have been filed. The matter is a burning legal issue in that state, according to The Wall Street Journal.
This raises an equally serious question for us here in Fresno. A recent entry in our Nextdoor Bullard neighborhood blog cried out in protest that there was dog poop visible on their neighborhood walkways, and called for restraint by the owners, or perhaps legislation.
As an attorney, I find this matter takes careful thought. In a world where all of our lawmaking functionaries seem immobilized in conflict, I would suggest that they address this odoriferous problem in lieu of their more frivolous activities.
First, one must look to precedent in our foundational English Common Law. It is reputed that Henry VIII and Queen Elizabeth both rode horses or took carriages to avoid dog droppings outside Parliament and on the very approaches to their royal residences. And John Knox in Edinburgh, Scotland, is said to have stepped in such a noxious substance leaving his church on the heights above his town. Clearly the Common Law would militate against any regulation.
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In the U.S., the first problem would be the Americans With Disabilities Act. Clearly the blind would have a problem with this for their guide dogs. How could a blind person be expected to clean up such a mess? Or put a diaper on their dog?
Similarly, think of the disabled. How could they be expected to clean up such a mess? Such a law would clearly be designed against them and therefore unlawful discrimination.
And the elderly have many pets. Studies show that seniors with pets live longer than those living alone. Could we restrain them in such a way? How could a 100-year-old man clean up his pet’s deposits? Or put a diaper on his dog? Such laws would clearly be age discrimination. The AARP has lobbied Congress to oppose any such law.
In addition, polls have found that LGBT folks are more likely to have pets, perhaps since they are less likely to have children. Indeed, one would expect demonstrations from this community opposed to this legislation clearly targeted at them.
A group of American Indians also have raised questions. They have had pets for generations and feel that any such law would have an impact on their native way of life. They feel that dogs will go to their Happy Hunting Ground less happy if they are restrained by diapers or if their owners are imposed upon to clean up after them.
Anti-gun groups have clashed with the National Rifle Association over this issue. Those opposed to guns think that any limitation on dogs, which they claim add to their safety, would require them to carry machine guns. NRA people favor the limitation, claiming that their dogs don’t engage in such nonsense on public property.
Christians have risen up against any limitation on their dogs. They claim that they need the protection of a dog to go to church or to evening prayer meetings and that requiring them to clean up after their pets or requiring the pets to wear a diaper would limit their religious freedom.
They cite passages in Psalms and Genesis to support their claims. God created dogs and Noah saved them, and any attempt to limit their excremental habits is an attack on the Holy Scriptures, their spokesperson, Cotton Smather, claims.
I feel this problem is overwhelming. I suspect the courts will be deciding it for decades. A divided U.S. Supreme Court will probably split over this issue, as well as a divided U.S. Congress in D.C. But I hope that our political figures address this. At least they would be doing something more productive than their current activities. And I would caution them, in the interim, to watch where they step!
Phil Fullerton of Fresno is a retired lawyer. Email him at Puyricard8@ sbcglobal.net.