Amicus Curiae Brief — National Pork Producers Council, et al., Petitioners v. Karen Ross, in Her Official Capacity as Secretary of the California Department of Food & Agriculture, et al.

NO. 21-468

In the

Supreme Court of the United States

________________

NATIONAL PORK PRODUCERS COUNCIL, ET AL.,

Petitioners,

v.

KAREN ROSS, IN HER OFFICIAL CAPACITY AS SECRETARY

OF THE CALIFORNIA DEPARTMENT OF FOOD &

AGRICULTURE, ET AL.

________________

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

BRIEF FOR O. CARTER SNEAD, MARY

EBERSTADT, AND MATTHEW SCULLY, AS

AMICI CURIAE SUPPORTING RESPONDENTS

________________

Megan M. Wold

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

mwold@cooperkirk.com

Counsel for Amici Curiae

August 15, 2022

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORTIES ........................................ ii

INTEREST OF AMICUS CURIAE............................. 1

INTRODUCTION & SUMMARY ............................... 2

ARGUMENT ............................................................... 5

I.

KEY PHILOSOPHERS, THEOLOGIANS,

AND OTHER MAJOR CONTRIBUTORS TO

WESTERN CIVILIZATION HAVE

CONSISTENTLY ARGUED THAT HUMAN

DECENCY REQUIRES BASIC RESPECT

FOR ANIMALS................................................. 5

II.

PROPOSITION 12 REFLECTS THE

GROWING MORAL CONSENSUS THAT

PRODUCTS RESULTING FROM IMMORAL

PRACTICES—LIKE EXTREME

MISTREATMENT OF PREGNANT PIGS—

ARE THEMSELVES IMMORAL. .................. 14

III.

PROPOSITION 12 SERVES A LEGITIMATE

LOCAL INTEREST PREMISED ON

CONSUMERS’ SENSE OF MORAL

COMPLICITY. ................................................ 24

CONCLUSION .......................................................... 32

ii

TABLE OF AUTHORITIES

Page

CASES

Burwell v. Hobby Lobby, Inc.,

573 U.S. 682 (2014) ............................... 4, 5, 31, 32

Little Sisters of the Poor Saints Peter and Paul

Home v. Pennsylvania,

140 S. Ct. 2367 (2020) ......................................... 32

Pike v. Bruce Church Inc., 397 U.S. 137 (1970) 24, 25

Thomas v. Review Bd. of Indiana Empmt.

Sec. Div.,450 U.S. 707 (1981) ....................... 31, 32

CONSTITUTIONS AND STATUTES

19 U.S.C. § 1307 ........................................................ 27

19 U.S.C. § 1308(b)(1) ............................................... 27

19 U.S.C. § 3901 .................................................. 25, 26

19 U.S.C. § 3903(a) .................................................... 26

2022 H.R. 714, 2022 Gen. Assemb., Reg. Sess.

(La. 2022).............................................................. 29

FLA. CONST. art. 10 § 21 ............................................ 19

410 ILL. COMP. STAT. § 620/17.2 (2020) ..................... 29

515 ILL. COMP. STAT. § 5/5-30 (2013) ........................ 28

ALA. CODE § 26-23F-5 (2016) .................................... 29

2022 ARIZ. REG. TEXT § 604242 ................................. 29

ARIZ. REV. STAT. § 13-2910.07 (2012)........................ 19

CAL. FISH & GAME CODE § 2022 (2012) ..................... 28

CAL. FISH & GAME CODE § 2021-2021.5 (2012) ......... 28

iii

CAL. HEALTH & SAFETY CODE § 25990 (2018) ..... 19, 29

CAL. HEALTH & SAFETY CODE § 25991 (2018) ........... 19

COLO. REV. STAT. § 35-50.5-102 (2008) ..................... 19

COLO. REV. STAT. § 35-21-201 (2021) ........................ 29

DEL. CODE ANN. tit. 7 § 928A .................................... 28

FLA. STAT. § 379.2426 (2021) .................................... 29

GA. CODE ANN. § 26-2-160 ......................................... 30

HAW. REV. STAT. § 188-40.7 (2010) ........................... 28

HAW. REV. STAT. § 321-30.4 (2022) ........................... 29

IDAHO CODE § 39-9306 (2017) ................................... 29

ILL. COMP. STAT. ANN. §§ 357/5, 357/10 (2022).......... 28

IND. CODE § 35-46-5-1.5 (2016) ................................. 29

KAN. STAT. ANN. § 65-67a04 (2000) .......................... 29

KY. REV. STAT. § 436.026 .......................................... 29

LA. STAT. ANN. § 14:87.3 (2018) ................................ 29

MASS. GEN. L. ANN. ch. 130 § 106 (2014) .................. 28

MASS. GEN. L. ANN. 129 App. §

1-2, 1-3, 1-5 ............................................... 19, 20, 29

MD. CODE ANN. HEALTH-GENERAL

§ 21-259.3 (2022) .................................................. 29

MD. CODE ANN. NAT. RES. § 4-747 (2017) ................. 28

ME. REV. STAT. ANN. tit. 7 § 4020 (2011) .................. 19

ME. REV. STAT. ANN. tit. 10 § 1500-M (2021) ........... 29

MICH. COMP. LAWS § 287.746 (2020) ................... 19, 29

N.D. CENT. CODE § 14-02.2........................................ 29

iv

N.J. STAT. ANN. § 23:2A-13.2 (2014) ......................... 28

N.J. STAT. ANN. § 23:2A-13.3 (2014) ......................... 28

N.J. STAT. ANN. § 23:2B-23 (2020) ............................ 29

N.Y. ENV’T CONSERV. LAW § 11-0535-a (2014).......... 28

N.Y. ENV’T CONSERV. LAW § 13-0338

(McKinney 2020) .................................................. 28

N.Y. GEN. BUS. LAW § 69-a (McKinney 1938) ........... 30

NEV. REV. STAT. § 583.239 (2022) ............................ 29

NV NRS ch. 597 § 2-3 ................................................ 29

OHIO ADMIN. CODE. § 901.12-8-01 (2011) ................. 19

OHIO ADMIN. CODE. § 901:12-8-02 (2011) ................. 19

OHIO REV. CODE § 2919.14 (1974) ............................. 29

OR. REV. STAT. § 498.257 (2012) ................................ 28

OR. REV. STAT. § 632.835 (eff. Jan. 1, 2024) ....... 29, 30

OR. STAT. § 600.150 (2008) ........................................ 19

R.I. GEN. LAWS § 4-1.1-3 ............................................ 19

R.I. GEN. LAWS § 20-1-29 (1956).......................... 28, 29

S.D. CODIFIED LAWS § 34-23A-17 (2016)................... 29

TEX. AGRIC. CODE § 149.002 (1991) .......................... 30

TEX. PARKS & WILD. CODE § 66.2161 (1981) ............. 28

WASH. REV. CODE ANN. § 69.25.107 (2019) ............... 30

WASH. REV. CODE ANN. § 77.15.770 (2014) ............... 28

RULES AND REGULATIONS

81 Fed. Reg. 36387 (July 6, 2016) ............................. 26

50 C.F.R. § 17.21(b) ................................................... 26

v

50 C.F.R. § 17.40 ....................................................... 26

OTHER AUTHORITIES

J. Berkman, Toward a Thomistic Theology of

Animality (2009) .................................................... 7

CHARLES CAMOSY, FOR LOVE OF ANIMALS:

CHRISTIAN ETHICS, CONSISTENT ACTION

(2013) ................................................ 7, 9, 10, 11, 12

Catechism of the Catholic Church .................... 8, 9, 11

Caroline Christen, Top Pork Producing States:

Who Is the Largest Pork Producer in the U.S.?,

SENTIENT MEDIA (Jan. 29, 2021), available at

https://bit.ly/3JKxm1f ......................................... 23

T. Cone, Burger King Vows Cage-Free Chicken and

Pork, NBC NEWS (April 25, 2012) ....................... 21

D. Grumett, Aristotle’s Ethics and Farm Animal

Welfare, 32 J. OF AGRIC. & ENV’T ETHICS 321

(2019) .................................................................. 6, 7

Hatfield statement,

available at https://bit.ly/3pgtnjv .................. 21, 22

Hormel Foods statement, available at

https://bit.ly/3AcpimM ......................................... 22

Thomas Kelch, A Short History of (Mostly) Western

Animal Law: Part I, 19 ANIMAL L. 23 (2012) ........ 8

Laudato si (2015),

available at https://bit.ly/3BTglQF...................... 10

C.S. LEWIS, THE PROBLEM OF PAIN: HOW HUMAN

SUFFERING RAISES ALMOST INTOLERABLE

INTELLECTUAL PROBLEMS (1962) ......................... 12

vi

L. Marino and C. Colvin, Thinking Pigs: A

Comparative Review of Cognition, Emotion,

and Personality in sus domesticus,

INT’L J. OF COMPAR. PSYCH. 28(1) .................. 18, 19

Tom Polansek, U.S. Pork Producer to Resume

Shipments to California After Farm Animal

Law Delayed, REUTERS (Feb. 8, 2022),

available at https://reut.rs/3QytNxl .................... 23

Sira Abdul Rahman, Religion and Animal Welfare—

An Islamic Perspective, Animals (2017), available

at https://bit.ly/3QeXm7l ..................................... 13

Lewis Regenstein, Commandments of Compassion:

Jewish Teachings on Protecting Animals and

Nature, available at https://bit.ly/3QzGA2u . 12, 13

Gerald Root, Ph.D., C.S. Lewis as an Advocate for

Animals, available at https://bit.ly/3QvMFgv..... 12

S.D. Rosen, Physiological Insights into Shechita,

154 VETERINARY REC. 759 (2004) ........................ 13

Matthew Scully, A Brief for the Pigs: The Case of

National Pork Producers Council v. Ross,

NAT’L REVIEW (July 11, 2022),

available at https://bit.ly/3zMGzBH.................... 20

Matthew Scully, DOMINION: THE POWER OF MAN,

THE SUFFERING OF ANIMALS, AND THE CALL TO

MERCY (2002) .............................. 14, 15, 16, 17, 18

Deena Shanker, Why It’s Difficult to Find Organic

Pork, BLOOMBERG (Nov. 1, 2018), available at

https://bloom.bg/2OllYdP ..................................... 21

Smithfield 2021 Sustainability Impact Report,

available at https://bit.ly/3JKvUfj ................. 23, 24

vii

Solicitudo rei socialis, Pope John Paul II (1987),

available at https://bit.ly/3bCyojz.................... 9, 10

Stephanie Strom, Demand Grows for Hogs That Are

Raised Humanely Outdoors, NY TIMES

(Jan. 20, 2014), available at

https://nyti.ms/3dnPzFV ................................ 20, 21

Tyson Foods, Q3 2021 Earnings Call (Aug. 9, 2021),

available at https://bit.ly/3P9p980 ...................... 23

Writings of St. Francis ................................................ 7

1

INTEREST OF AMICUS CURIAE

Amici are scholars and public intellectuals with

experience speaking and writing on morality, ethics,

and public policy. 1

O. Carter Snead is Professor of Law, Concurrent

Professor of Political Science, and Director of the de

Nicola Center for Ethics and Culture at the University

of Notre Dame. He is the author, most recently, of

WHAT IT MEANS TO BE HUMAN: THE CASE FOR THE

BODY IN PUBLIC BIOETHICS (Harvard Univ. Press

2020).

Mary Eberstadt is the author of numerous books

commenting on ethics, morality, and public policy.

She is a frequent contributor to First Things,

America’s foremost ecumenical journal of religion and

public life. She has written about the demands of

human decency related to the ethical treatment of

animals.

Matthew Scully has been a contributor to

National Review for more than thirty years and

served as a senior speechwriter to President George

W. Bush. He is the author of DOMINION: THE POWER

OF MAN, THE SUFFERING OF ANIMALS, AND THE CALL TO

MERCY (St. Martin’s).

Amici write to explain the deep roots of moral and

philosophic concern for the welfare of animals,

particularly the view—consistently held by key

1 No counsel for a party authored this brief in whole or in

part. John and Timi Sobrato have made a monetary contribution

to fund the preparation and submission of this brief. All parties

have consented to the filing of this brief.

2

philosophers,

theologians,

and

other

major

contributors to Western civilization—that human

decency requires basic respect for animals. Amici also

write to explain that states and the federal

government often enact laws that express moral

priorities, and doing so serves a legitimate local

interest. Here, Proposition 12 limits the in-state sale

of products derived from the most extreme

confinement of pregnant pigs, and amici think it clear

that California’s voters acted in furtherance of a

legitimate local purpose when by enacting Proposition

12.

INTRODUCTION AND SUMMARY

Proposition 12 excludes from California’s

markets products that the State’s citizens view as

immoral—pork produced using extreme and cruel

animal confinement methods. Petitioner and the

United States, as amicus, make the extraordinary

claim that Proposition 12 serves no legitimate local

interest because the cruel treatment of pregnant pigs

held in close-confinement gestation crates takes place

outside of California. Pet’r’s Br. 47, U.S. Amicus Br.

20. Such an argument defies the bedrock principle

that laws are legitimately justified by moral claims,

including moral beliefs about the permissibility of

contributing to others’ immoral conduct. If accepted,

the argument that Petitioner and the United States

venture would call into question many existing (and

unchallenged) laws that legislate based on precisely

analogous moral judgments.

Proposition 12 rests on the moral judgment not

just that some treatment of animals is inhumane, but

also—critically—that consumers act immorally if they

3

facilitate that inhumane treatment by purchasing the

products it generates. Such a moral claim is not novel

but has deep roots in the history of Western

civilization. Western philosophy and religious thought,

including from the ancient Greek, Catholic,

Protestant, Jewish, and Muslim traditions, has long

understood that human decency requires affording

animals a basic measure of respect. This belief does

not depend on any notions of equality between

animals and humans—quite the opposite. It is

precisely because animals are vulnerable at the hands

of humans that humans are morally bound to treat

them decently and honorably. Nor is it mere

sentimentality to extend concern to animals; the

obligation to treat them decently requires

conscientious effort and self-restraint. Just as human

beings in the Western tradition are required to

moderate other natural appetites that can lead to

harmful and unjust conduct, so too must humans

moderate their appetite for products generated

through the exploitation of vulnerable animals.

Proposition 12 specifically addresses products

made by subjecting pregnant pigs to closeconfinement in gestation crates, which is an extreme

abuse and clearly contrary to longstanding beliefs

about the decency humans owe to animals. Closeconfinement gestation crates make it impossible for a

pregnant pig to lie down freely or turn around,

essentially immobilizing her for long periods, and

depriving her of all opportunities for natural physical

and social behaviors. Because of the cruelty of this

treatment, states are increasingly moving to ban the

use of close-confinement gestation crates. Voters have

banned close-confinement gestation crates every time

4

the question has been put on the ballot, including in

states that differ in their political composition.

Consumers, too, are growing in their awareness of the

inhumane origins of some pork products and are

demanding more humane farming methods in

increasing numbers. For this reason and because of

laws like Proposition 12, pork producers in the United

States (including some of the nation’s largest

producers) have announced that they have or will

phase out close-confinement gestation crates for some

or all their product lines.

Proposition 12 therefore clearly serves a

legitimate and local interest premised on the moral

culpability of consumers whose point-of-sale

transactions would otherwise facilitate the inhumane

treatment of pigs. This is in all relevant respects the

same as the moral justifications that underlie federal

laws banning the importation of conflict diamonds,

African elephant ivory, cat and dog pelts, and

products made from forced labor abroad—laws that no

one doubts serve a domestic interest and do not

regulate extraterritorially. So too, many state laws

spring from moral concern about complicity, including

laws banning in-state ivory transactions, the in-state

transfer of aborted fetal tissue even when obtained

out-of-state, and state sales bans on eggs from cage

facilities, cosmetics tested on animals, horsemeat,

dogmeat, and goods produced through child labor.

All of these laws and others like them “implicate[]

a difficult and important question of religion and

moral philosophy, namely, the circumstances under

which it is wrong for a person to perform an act that

is innocent in itself but that has the effect of enabling

5

or facilitating the commission of an immoral act by

another.” Burwell v. Hobby Lobby, Inc., 573 U.S. 682,

724 (2014). In answering that difficult and important

question, Californians have confined themselves to a

wholly intrastate regulation that restrains only

intrastate acts (the purchase of pork that has been

produced through the use of inhumane, closeconfinement gestation crates). Californians’ choice

serves a legitimate local purpose premised on their

moral judgment. This Court should uphold that choice

and affirm the judgment of the Court of Appeals.

ARGUMENT

I.

KEY PHILOSOPHERS,

THEOLOGIANS, AND OTHER MAJOR

CONTRIBUTORS TO WESTERN

CIVILIZATION HAVE

CONSISTENTLY ARGUED THAT

HUMAN DECENCY REQUIRES BASIC

RESPECT FOR ANIMALS.

While Proposition 12’s ban on the sale of certain

products of animal cruelty is itself a recent enactment

by California voters, it reflects concerns of ancient

lineage in Western moral thought. Western

philosophers and religious leaders have considered

the treatment of animals to be an appropriate and

important subject of inquiry for millennia. They have

explained how human decency demands that animals

be treated with basic respect for their needs, natures,

and dignity as living creatures, and why humans are

morally bound not to participate in or facilitate

animal abuse.

6

1. Much of Western thought about the welfare of

animals traces to the works of Aristotle. Fully onesixth of Aristotle’s surviving works focus on animals,

including the Generation of Animals (De generatione

animalium), the History of Animals (Historia

animalium), the Movement of Animals (De motu

animalium), the Parts of Animals (De partibus

animalim) and the Progression of Animals (De incessu

animalium). D. Grumett , Aristotle’s Ethics and Farm

Animal Welfare, 32 J. OF AGRIC. & ENV’T ETHICS 321,

322 (2019). From those works, it is apparent that

Aristotle regarded animals as ethically significant,

discerning that each strives to flourish in its own way,

according to an internal governing principle (in

Aristotle’s terminology, a “soul”). Id. at 323. For

Aristotle, an animal’s “soul” guides the animal to the

ends that it seeks in life—an animal’s telos. Id. at 326,

327. An animal’s telos is apparent from observing its

natural behavior, as Aristotle did at length. For

example, Aristotle observed that pigs flourish on a

varied diet; they love roots; and their fattening is

promoted by wallowing in mud. Id. at 325.

Among animals, Aristotle believed, farmed

animals occupied a higher status than wild animals.

Id. at 327. Farmed animals fulfill their telos more fully

than wild animals because farmed animals’ lives are

humanly ordered, from birth to death. Id. at 327. Yet

far from advocating a despotic human rule over

animals, Aristotle set forth a vision of harmonious

human-animal relations that depended on humans

facilitating an animal’s natural behaviors, in pursuit

of the animal’s telos. Id. “For Aristotle, farming

systems are functional only if they promote natural

animal behaviors, and this principle significantly

7

delimits the range of acceptable systems” by which

animal husbandry should be practiced. Id. at 328.

2. While Thomas Aquinas had comparatively less

to say about animals, his views were broadly

consistent with Aristotle’s. Aquinas believed that the

entire physical universe, including plants, birds, and

mammals, is ordered towards “ultimate perfection,”

which is in turn ordered toward God. J. Berkman,

Toward a Thomistic Theology of Animality, 24 (2009).

Animals manifest God’s goodness by living according

to their own telos, and each species makes a necessary

contribution to the perfection of the universe by doing

so. Id.

3. Many other Christian authorities and figures

exhibited particular care for animals, motivated by

God’s creation of them and the human duty to love

what God loves. The Bible itself begins with God’s

creation of the universe, including God’s proclamation

that his created animals are “good,” even without

reference to humans, and indeed, even before God has

created humans. CHARLES CAMOSY, FOR LOVE OF

ANIMALS: CHRISTIAN ETHICS, CONSISTENT ACTION, 4546 (2013). In keeping with this earliest understanding

of the goodness of creation, Saint Francis of Assisi

lived with now-famous compassion for animals. In his

well-known laud, St. Francis praises God alongside

his created animals: “Praise be to Thee, my Lord, with

all Thy creatures.” Writings of St. Francis, 152. While

the prayer is now commonly called the Canticle of the

Sun, it was originally known as the “Praises of the

Creatures,” being introduced as follows: “Here begin

the praises of the creatures which the blessed Francis

made to the praise and honor of God.” Id. at 150, 152.

8

Saint Catherine of Sienna wrote powerfully of

God’s love for his creatures and the obligation for

humans to love them, too: “We love God’s creatures

because we see that God loves them supremely. It is

the very nature of love to love everyone and

everything that our beloved loves.” Thomas Kelch, A

Short History of (Mostly) Western Animal Law: Part I,

19 ANIMAL L. 23, 43 (2012) (cleaned up). Similarly,

Saint Bridget of Sweden wrote in God’s voice, “People

should therefore fear me, their God, above all things,

and treat my creatures and animals more mildly,

having mercy on them for the sake of me, their

Creator.” Id.

4. St. Bridget’s injunction to mercy continues to

reverberate in the Catholic teachings of the modern

church. The Catechism of the Catholic Church states

that the Seventh Commandment “enjoins respect for

the integrity of creation.” Catechism of the Catholic

Church (2415). And although “[a]nimals … are by

nature destined for the common good of past, present,

and future humanity,” their use “cannot be divorced

from respect for moral imperatives” because “[m]an’s

dominion over inanimate and other living beings

granted by the Creator is not absolute.” Id. Indeed,

man owes some basic duties to animals, even when

they live in service of man:

Animals are God’s creatures. He surrounds

them with his providential care. By their mere

existence they bless him and give him glory.

Thus men owe them kindness. We should

recall the gentleness with which saints like St.

Francis of Assisi or St. Philip Neri treated

animals.

9

Id. (2416). (emphasis in original).

Additionally, in the Church’s view, “[i]t is contrary

to human dignity to cause animals to suffer or die

needlessly.” Id. (2418) (emphasis added).

5. The three most recent popes have also

commented directly on the obligation of humans to

treat animals with kindness and mercy. In a 1990

address on the World Day of Peace, Pope John Paul II

expressed his “hope that the inspiration of Saint

Francis will help us to keep ever alive a sense of

‘fraternity’ with all those good and beautiful things

which Almighty God has created,” and asked that God

would “remind us of our serious obligation to respect

and watch over them with care.” Camosy, 67 (original

text available at https://bit.ly/3p8tmhA) 2. He rejected

the idea that man’s dominion over creation entitled

man to treat living things in any way that serves him:

The dominion granted to man by the Creator

is not an absolute power, nor can one speak of

a freedom to ‘use and misuse,’ or to dispose of

things as one pleases. The limitation imposed

from the beginning by the Creator himself and

expressed symbolically by the prohibition not

to ‘eat of the fruit of the tree’ shows clearly

enough that, when it comes to the natural

world, we are subject not only to biological

laws but also to moral ones, which cannot be

violated with impunity.

2 All

2022.

links cited throughout were last visited on Aug. 12,

10

Solicitudo rei socialis, Pope John Paul II (1987),

available at https://bit.ly/3bCyojz (last visited Aug. 12,

2022) (cleaned up).

Pope Benedict XVI echoed the same ideas. When

asked whether man is “allowed to make use of animals,

even to eat them?” he responded:

“This is a very serious question. At any rate,

we can see that they are given into our care,

that we cannot just do whatever we want with

them. Animals, too, are God’s creatures … .

Certainly, a sort of industrial use of creatures,

so that geese are fed in such a way as to

produce as large a liver as possible, or hens

live so packed together that they become just

caricatures of birds, this degrading of living

creatures to a commodity seems to me in fact

to contradict the relationship of mutuality

that comes across in the Bible.”

Camosy, 74-75.

Similarly, Pope Francis has written that “we are

called to recognize that other living beings have a

value of their own in God’s eyes.” Laudato si (2015),

available at https://bit.ly/3BTglQF. “In our time, the

Church does not simply state that other creatures are

completely subordinated to the good of human beings,

as if they have no worth in themselves and can be

treated as we wish.” Instead, the Catechism rejects

such an approach: “Each of the various creatures,

willed in its own being, reflects in its own way a ray of

God’s infinite wisdom and goodness. Man must

therefore respect the particular goodness of every

11

creature, to avoid any disordered use of things.”

Catechism (339).

6. The injunction to treat animals with mercy

comes from their inherent inequality with humans.

Just as God, in Judeo-Christian teaching, enjoins

humans to show mercy to all who are vulnerable, so

“[w]e have a duty to treat … animals with kindness, …

not because they are our equals, but in a sense

because they are not our equals.” Camosy, 77. Being

so thoroughly subject to human power, and thus so

helpless against abuses of that power, animals are a

test of character, and call on our empathy because

they are so vulnerable.

Nor do these beliefs arise out of mere

sentimentality or “softness” for animals. Catholic

doctrine, in particular, depends not on softness, but on

the discipline required to live in accord with God’s will.

“Disciplining our appetites so that we do not

participate in injustice is anything but soft.” Camosy,

77. Just as the Church expects Christians to discipline

our natural appetites for wealth, consumption,

comfort and ease, or sexual satisfaction, so too are

Christians called to “[r]esist[] our culture’s addiction

to unjust use of nonhuman animals for food,” which

“requires countercultural commitment, determination,

and strength.” Pope Francis has confirmed that

respect for animals “cannot be written off as naïve

romanticism, for it affects the choices which

determine our behavior.” Laudato si, para. 11. “If we

no longer speak the language of fraternity and beauty

in our relationship with the world, our attitude will be

that of masters, consumers, ruthless exploiters,

unable to set limits on their immediate needs.” Id.

12

8. These ideas have been embraced by prominent

Protestant thinkers, too. William Wilberforce is best

known for his advocacy to abolish slavery, but he was

also a prominent advocate for the welfare of animals

and was a founding member of the Royal Society for

the Prevention of Cruelty to Animals. Camosy, 67-68.

C.S. Lewis, too, cared deeply about the welfare of

animals. Much of his children’s fiction, including the

Lion, the Witch, and the Wardrobe, contains

memorable depictions of animals imbued with human

speech and rationality, prompting child readers to

better see the worth of animals in their own world.

Gerald Root, Ph.D, C.S. Lewis as an Advocate for

Animals, at 7, available at https://bit.ly/3QvMFgv.

Lewis also penned an essay opposing vivisection, id.

at 15-21, and wrestled at length with the question of

why animals feel pain in his book, The Problem of

Pain, id. at 8-11. Lewis called animal suffering at

human hands a “question of justice,” and asked, in

connection with cruelly treated animals, “What shall

be done for these innocents?” C.S. LEWIS, THE

PROBLEM OF PAIN: HOW HUMAN SUFFERING RAISES

ALMOST INTOLERABLE INTELLECTUAL PROBLEMS, 136

(1962).

9. Other religious faiths in the Western tradition

instruct adherents on humanity’s proper obligations

toward animals and also advocate compassion and

mercy. Judaism strictly forbids cruelty to animals and

requires that animals be treated with compassion.

Lewis Regenstein, Commandments of Compassion:

Jewish Teachings on Protecting Animals and Nature,

at 4, available at https://bit.ly/3QzGA2u. These views

date back at least as far as the 12th and 13th centuries

and stem from the Torah’s discussion of animals as

13

created by God and pronounced good. Id. at 3-4. Jews

are prohibited from working animals on the Sabbath,

thereby granting a day of rest even to beasts, yet “to

relieve an animal of pain or danger” is an injunction

of such weight that it supersedes the Sabbath

observance. Id. at 9. Kosher laws prohibit the

consumption of animals not slaughtered in keeping

with principles of shechita, which has the intention of

commanding a quick and merciful slaughter and

reducing animal suffering. S.D. Rosen, Physiological

Insights into Shechita, 154 VETERINARY REC. 759, 75960 (2004).

The Islamic tradition also demands the humane

treatment of animals. One hadith quotes the Prophet

Muhammad as saying “A good deed done to an animal

is as meritorious as a good deed done to a human

being, while an act of cruelty to an animal is as bad as

an act of cruelty to a human being.” Sira Abdul

Rahman, Religion and Animal Welfare—An Islamic

Perspective, Animals (2017) at 2, available at

https://bit.ly/3QeXm7l. Many other hadiths also speak

of man’s obligation to treat animals with gentleness

and mercy. Id. at 3. Halal butchering requires that an

animal be humanely treated before slaughter and

prescribes methods of slaughter that are designed “in

such a way that its life departs quickly, and it is not

left to suffer.” Id. at 4.

The moral sentiments that motivated California

voters to pass Proposition 12, addressing the severe

abuses of pregnant pigs, find their roots in

longstanding beliefs held among religious thinkers

and philosophers throughout Western civilization.

14

II.

PROPOSITION 12 REFLECTS THE

GROWING MORAL CONSENSUS

THAT PRODUCTS RESULTING

FROM IMMORAL PRACTICES—LIKE

EXTREME MISTREATMENT OF

PREGNANT PIGS—ARE

THEMSELVES IMMORAL.

When the voters of California enacted Proposition

12, they voted to prohibit the sale of pork products in

their state that were obtained through some of the

most extreme and inhumane abuses perpetrated

against domesticated animals today: the practice of

confining pregnant female pigs in metal crates so

cramped that they cannot so much as turn around.

Californians were hardly alone in reviling this

inhumane treatment: a growing chorus of states have

passed laws banning the same abuses. Consumers

themselves have even begun demanding products

derived by better treatment of pigs, and in such

numbers that many pork producers have diversified

their product lines to cater to consumers’ growing

insistence on humane animal husbandry. In short,

Proposition 12 is not radical legislation seeking to

reorder an industry; it is a public reaction to a radical

form of cruelty, expressing a basic moral belief that

humans should not, through their consumption,

participate in the abuse of animals.

1. Matthew Scully, one of the undersigned,

observed the inhumane treatment of pregnant pigs

firsthand while researching his 2002 book, DOMINION:

THE POWER OF MAN, THE SUFFERING OF ANIMALS, AND

THE CALL TO MERCY. At a confinement facility in

North Carolina, Scully observed pig husbandry the

15

way it is practiced at farming enterprises in the

United States and, indeed, throughout much of the

developed world. In a “Gestation Barn,” six hundred

pregnant pigs are housed in individual metal crates

essentially fitted to size around each animal. Id. at

265. Within these structures, the animals “are

encased, pinned down,” and unable to walk, turn

around or lie down freely. Id. These pregnant mothers

remain in their confinement crates for sixteen weeks

before receiving their only opportunity for exercise:

when they are driven or dragged to the Farrowing

Barn for a week to ten days of further confinement,

during which time they birth their piglets. Id. They

are then returned to the Gestation Barn for another

sixteen weeks, then back to the Farrowing Barn again,

and so on until, in the words of an employee, “[w]e get

rid of them after eight litters.” Id.

These pigs’ entire existence is artificial, from the

climate-controlled

building

(unpenetrated

by

sunlight), to the heat lamps and misters, and even to

the scientifically formulated pelleted food, rich in

antibiotics (to ward off disease), laxatives (since pigs

will otherwise become constipated to avoid fouling

their own confinement crates), and even the rendered

remains of other pigs (“recycled” for their brethren to

eat). Id. at 266.

In the Gestation Barn, each pig weighs

approximately 500 pounds, while each iron crate is

seven feet long and less than two feet wide. Id. at 267.

To say that the arrangement restricts movement is an

understatement. Mere inches, if that, separate each

animal from the iron bars to her front and rear, and

along each side. Somehow the animals manage to lie

16

down—“a powerful inclination during months of

confinement in twenty-two inches of space”—but not

freely, of course. To accomplish this, the pregnant pigs

“try to put their legs through the bars into a

neighboring crate,” with the predictable result that

“their legs get crushed and broken.” Id. These

conditions are made worse by the animals’ fragility,

having been engineered to an abnormally large weight

but deprived of exercise. Id. “About half of those pigs

whose legs can be seen appear to have sprained or

fractured limbs, never examined by a vet, never

splinted, never even noticed anymore.” Id.

Beyond this, the pigs suffer from “vices,” as they

are termed in the industry: physical, mental, and

social maladies brought about by their close

confinement and the absence of opportunity for

natural movement or behavior.

Sores, tumors, ulcers, pus pockets, lesions,

cysts, bruises, torn ears, swollen legs

everywhere. Roaring, groaning, tail biting,

fighting … [f]renzied chewing on bars and

chains, stereotypical ‘vacuum’ chewing on

nothing at all, stereotypical rooting and nest

building with imaginary straw. And ‘social

defeat,’ lots of it, in every third or fourth stall

some completely broken being you know is

alive only because she blinks and stares up at

you.

Id. at 267-68.

Even the Farrowing Barn provides no respite from

these conditions. The confinement crates there

remain essentially the same, only that “beside each

17

crate is a little area where pigs are deposited from the

womb, slipping out one by one onto concrete and with

great labor crawling back to suckle from their

immobilized mothers, who can hardly turn to see

them.” Id. at 274. This arrangement is seen as

necessary because without it, mother pigs would fall

or lie on their piglets and crush them. Id. But this

makes sense only if one has already accepted as

normal the privations pregnant pigs go through up to

this point. Id. Of course a creature will lose physical

coordination if released from prolonged confinement,

with an unnaturally large body due to genetic

manipulation, and with fragile or broken bones from

injuries and lack of exercise. Id. The offense comes not

from the clumsy mother pig, but from the industrial

conditions in which she has been kept.

Under such conditions, it is no surprise that not

all animals survive to their useful, eight-litter life.

The “cull pen” awaits for dying and dead animals—

those who are lame, or are losing weight, who are now

aborting pregnancies, or who are sick with pneumonia.

Id. at 269. In an industrial operation, “[m]ost of the

culls go to market, … but the ones with disease …

are … trash.” Id.

2. Of course, none of this is natural for a pig. Pigs

like to root in dirt to find food and roll in mud to stay

wet and cool, since they lack sweat glands. They have

olfactory powers far superior to a human (after all,

they can sniff truffles ten feet underground), and do

not leave their droppings near where they live and

sleep. Id. at 266. Breeding pigs in particular are

known to build a series of communal nests in a

cooperative way, to farrow and raise their young

18

together. Id. at 273. Pigs form close social bonds and

even special relationships, “for example, a pair of sows

would join together for several days after farrowing,

and forage and sleep together.” Id. at 273 (internal

citation omitted).

Scientific research further reveals that pigs are

highly intelligent creatures, similar to such beloved

species as dogs and dolphins. Pigs are highly social

animals who rely on their tactile and perceptive

snouts to engage in social interactions and who can

use their sense of smell to discriminate between the

identities of other pigs. L. Marino, and C. Colvin,

Thinking Pigs: A Comparative Review of Cognition,

Emotion, and Personality in sus domesticus, INT’L J.

OF COMPAR. PSYCH. 28(1), at 3 (2015). Pigs display a

robust ability to discriminate between objects and to

recall objects even over long periods of time, much as

dogs do. Id. at 5. They perform tasks associated with

symbolic language comprehension in the same way as

dolphins, including by exhibiting complex threechoice object discrimination and discrimination

among action commands. Id. at 5-6. Pigs are naturally

playful and curious, being “best stimulated by diverse,

complex, hands on, and renewable objects and

materials.” Id. at 9 (emphasis in original). This need

is so important that pigs who are deprived of it

develop behavioral abnormalities. Id.

One study designed to investigate time

perception in pigs holds special relevance in the

context of Proposition 12 and the industrial use of

confinement crates for pigs. In the study, female pigs

were given a choice between two crates that differed

in the duration of confinement they imposed. One

19

crate imposed 30 minutes of confinement while the

other imposed 240 minutes of confinement. “The pigs

showed an overall preference for confinement in

crates associated with short durations instead of those

associated with longer durations.” Id. at 6. It would

seem that even as Petitioners claim that confinement

crates “reduce[] sow stress, injury, and mortality,” the

available scientific evidence (not to mention common

sense) suggests the opposite is true. Pigs are

intelligent and naturally social, playful, and curious,

and they thrive best when allowed to pursue these

natural inclinations and behaviors freely.

3. Given the extreme conditions in which

pregnant pigs are kept in industrial farming

operations, and particularly in light of the wide

disparity between such treatment and the natural

behaviors and intellectual capacities of pigs, it is no

wonder that an increasing number of states have

passed laws banning close-confinement gestation

crates. Ten states, including California, ban closeconfinement gestation crates for pregnant pigs. ARIZ.

REV. STAT. § 13-2910.07 (2012); CAL. HEALTH &

SAFETY CODE § 25990, 25991 (2018); COLO. REV. STAT.

§ 35-50.5-102 (2008); FLA. CONST. art. 10 § 21; ME.

REV. STAT. ANN. tit. 7 § 4020 (2011); MASS. GEN. LAWS

ANN. ch. 129 App. §§ 1-2, 1-5 (2016); MICH. COMP.

LAWS § 287.746 (2020); OHIO ADMIN. CODE § 901.12-801, 901:12-8-02 (2011) (phased in by Dec. 31, 2025);

OR. REV. STAT. § 600.150 (2008); R.I. GEN. LAWS § 41.1-3 (1956).

Among those laws are the only five ballot

measures proposing bans on close-confinement

gestation crates that have been put to voters in the

20

last twenty years (Arizona, Florida, Massachusetts,

and California—twice,). Despite the political diversity

among these states, all five efforts succeeded by a

significant margin, revealing that voters strongly

support bans on close-confinement gestation crates

when they are asked directly.

Additionally, like California’s Proposition 12,

Massachusetts’ law forbids the intrastate sale of pork

products if those products are derived by use of closeconfinement gestation crates. MASS. GEN. L. ANN. ch.

129 App. §§ 1-3, 1-5.

It is telling, too, that in opposing laws like these,

Petitioners have preferred to conceal the reality of

close-confinement gestation crates from voters, rather

than defend such confinement on its merits. In 19 of

the 26 amici states supporting Petitioners here, the

pork and other farming industries have advocated—

and sometimes succeeded in passing—so-called “ag

gag” laws, which criminalize the mere photographing

or filming of pigs and other creatures in confinement,

even by news agencies and investigative reporters.

Matthew Scully, A Brief for the Pigs: The Case of

National Pork Producers Council v. Ross, NAT’L

REVIEW

(July

11,

2022),

available

at

https://bit.ly/3zMGzBH.

4. Yet consumers do know, increasingly, that pork

produced through extreme confinement raises serious

animal welfare concerns, and as a result they are

demanding humanely-raised pork in ever-greater

numbers.

Cage-free pork is a growing segment of U.S. pork

production, spurred by the fact that “[c]onsumers are

21

increasingly aware of and concerned about the

conditions under which livestock is raised, and

somewhat more willing to pay higher prices for meat

certified to have come from animals that were

humanely raised.” Stephanie Strom, Demand Grows

for Hogs That Are Raised Humanely Outdoors, NY

TIMES

(Jan.

20,

2014),

available

at

https://nyti.ms/3dnPzFV. Some chain restaurants,

like Chipotle, already sell only meats from humanely

raised animals, and other large food businesses have

pledged to stop selling pork from pigs raised in closeconfinement gestation crates, including Burger King,

Oscar Mayer, and Safeway. Id; T. Cone, , Burger King

Vows Cage-Free Chicken and Pork, NBC NEWS (April

25, 2012).

Demand in the humanely-raised segment of U.S.

pork production is so high that producers must

expand their capacity to meet it. One producer who

supplies humanely-raised pork to Chipotle has stated

that “[w]e could sell 20 percent more than what we

have in no time.” Id. And a representative of

Applegate Farms, the organic and natural meats

brand owned by Hormel Foods, told a reporter that

“[i]t is a challenge to supply organic pork. There just

aren’t enough organic-, animal welfare-certified

producers in the U.S. to supply the quantities we

need.” Deena Shanker, Why It’s Difficult to Find

Organic Pork, BLOOMBERG (Nov. 1, 2018), available at

https://bloom.bg/2OllYdP.

5. As states continue to pass laws forbidding closeconfinement gestation crates, and as consumers

demand humanely-raised pork in greater numbers, it

is perhaps no surprise that individual pork producers

22

(despite Petitioner’s protestations here) have

confirmed that they can and will adapt their supply

chains to abandon close-confinement gestation crates

for some or all product lines and will raise pork that

complies with Proposition 12.

x

Hatfield/Clemens Food Group: “[Clemens

Food Group] made the decision based on its

research to transition company owned sows

to a group housing system with open pen

gestation. … [A] sow must be placed in an

open pen where she has freedom of

movement, social interaction, and access to

sufficient feed and water. … Hatfield plans

to offer a variety of pork products across our

portfolio of bacon, marinated, and fresh

pork items that meet the [California] ‘Prop

12’ and [Massachusetts] ‘Question 3’

statutory

requirements.”

Hatfield

statement,

available

at

https://bit.ly/3pgtnjv.

x

Hormel Foods: “Hormel Foods has assessed

Proposition 12 and … the company is

preparing to fully comply when the law

goes into effect … The company’s Applegate

portfolio of products already complies with

Proposition 12. Hormel Foods has

confirmed that it faces no risk of material

losses from compliance with Proposition

12. … We … expect a full range of

Proposition-12 compliant products to be

available in both retail and foodservice.”

Hormel Foods statement, available at

https://bit.ly/3AcpimM.

23

x

Seaboard Foods: “Seaboard Foods, the

second-biggest U.S. pig producer … said it

is converting some farms to comply with

[Proposition 12] and expects to have pork

for sale to California this year that complies

with Proposition 12.” Tom Polansek, U.S.

pork producer to resume shipments to

California after farm animal law delayed,

REUTERS (Feb. 8, 2022), available at

https://reut.rs/3QytNxl.

x

Tyson Foods: “Tyson is currently aligning

incentivizing suppliers where appropriate

[to comply with Proposition 12]. We can do

multiple

programs

simultaneously,

including Prop 12. … [W]e can certainly

provide the raw material to service our

customers that way.” Tyson Foods, Q3 2021

Earnings Call (Aug. 9, 2021), at 15,

available at https://bit.ly/3P9p980.

x

Smithfield:3 “As a leader in group housing

gestation, Smithfield will comply with

[Proposition 12 and Massachusetts’

Question 3], is assessing these new

requirements and ways to mitigate sow

stress levels and injuries, and is evaluating

options to ensure the continuity of our pork

supply in California and Massachusetts.”

3 Smithfield,

a wholly-owned subsidiary of WH Group of

China, is the largest pork producer in the United States. Caroline

Christen, Top Pork Producing States: Who Is the Largest Pork

Producer in the U.S.?, SENTIENT MEDIA (Jan. 29, 2021), available

at https://bit.ly/3JKxm1f.

24

Smithfield 2021 Sustainability Impact

Report, available at https://bit.ly/3JKvUfj.

Ultimately, Proposition 12 addresses only the sale

of products derived through the most extreme abuses

against pregnant pigs on modern industrial farms—

the practice of encasing these animals in crates so

small they cannot freely lie down or turn around—and

it does so with the force of a growing consensus among

citizens and consumers that such treatment is

inhumane. Every time voters have been asked to ban

close-confinement gestation crates in the last twenty

years, they have done so. And pork producers,

including some of the largest pork producers in the

U.S., have acknowledged that they can and will

comply with Proposition 12’s basic protections for the

welfare of pregnant pigs. Proposition 12 is not

extreme or out of step with commonly held views

about the basic protections that should be afforded to

animals.

III.

PROPOSITION 12 SERVES A

LEGITIMATE LOCAL INTEREST

PREMISED ON CONSUMERS’ SENSE

OF MORAL COMPLICITY.

Proposition 12 serves a legitimate local interest

premised on California voters’ sense of their own

moral culpability when participating in commerce

within their state: that furnishing a market with meat

from inhumanely-raised animals makes them

complicit in that inhumane treatment. See Pike v.

Bruce Church Inc., 397 U.S. 137, 142 (1970) (“Where

the statute regulates even-handedly to effectuate a

legitimate local public interest … it will be upheld

unless the burden imposed on such [interstate]

25

commerce is clearly excessive in relation to the

putative local benefits.”). This type of complicity

justification is recognized as real and legitimate

throughout this Court’s jurisprudence and in federal

and state law, yet incredibly, Petitioner and its

amicus, the United States, dismiss it out of hand. See,

e.g., U.S. Amicus Br. 20 (California has “no legitimate

interest in protecting the welfare of animals when

they are located outside the State”); Pet’r’s Br. at 47

(“We have explained that Proposition 12’s purported

benefits are invalid or non-existent,” and “even if

there are cognizable local impacts, they are flimsy.”).

But if Californians’ regulation of intrastate meat sales

premised on the immorality of consuming products

produced through animal cruelty is “illegitimate,”

such a rule would cast doubt on the legitimacy of all

kinds of other morals-based legislation adopted at

both the state and federal levels. The Court should not

second-guess Californians’ view that an animal’s

inhumane treatment is morally relevant at the point

of sale and should recognize that regulating such sales

serves a legitimate local purpose.

1. Numerous federal laws ban domestic sales or

the importation of an item based on its provenance,

and yet no one regards these domestic sales bans as

extraterritorial regulations or as laws lacking a

legitimate domestic purpose.

For example, the United States bans the

importation of conflict diamonds. 19 U.S.C. § 3901, et

seq. The impetus for the law is that “[f]unds derived

from the sale of” conflict diamonds “are being used by

rebels and state actors to finance military activities,

overthrow

legitimate

governments,

subvert

26

international efforts to promote peace and stability,

and commit horrifying atrocities against unarmed

civilians.” 19 U.S.C. § 3901(1). Federal law does not

ban the importation of diamonds outright, but makes

a selective choice to ban the importation of diamonds

that raise human-rights and humanitarian concerns

while allowing importation of diamonds certified

conflict-free by the Kimberly Process Certification

Scheme. Id. § 3903(a).

The United States also bans nearly all ivory

importation out of concern for the protection of

African elephants abroad. 50 C.F.R. §§ 17.21(b), 17.40;

see also 81 Fed. Reg. 36387, 36390-91 (July 6, 2016)

(describing very limited circumstances in which ivory

importation is allowed). Here again, there are

exceptions rather than a wholesale ban of ivory

imports, and the exceptions depend on the provenance

of the item. 81 Fed. Reg. at 36390-91 (identifying such

exceptions as ivory obtained in law enforcement and

for genuine scientific purposes, and certain worked

ivory that meets specific conditions and is contained

in a musical instrument). These regulations aim to

ensure that “the U.S. ivory market is not contributing

to the poaching of elephants in Africa.” 81 Fed. Reg.

at 36387.

In the case of both conflict diamonds and African

elephant ivory, the United States excludes certain

items from being sold or imported into the country

based not on the item’s nature but on its provenance,

which the U.S. has deemed to be illegitimate. Cf. U.S.

Amicus Br. 28 (distinguishing Proposition 12 from

“blanket bans” on a product, which the U.S. argues the

dormant commerce clause would permit). While the

27

dormant commerce clause has nothing to say about

such laws directly, these laws nonetheless confirm

that jurisdictions have an interest in preventing the

sale within their borders of items immorally produced

abroad. These provenance-based laws depend on

moral judgments, and no one doubts they serve a

domestic

purpose

and

do

not

regulate

extraterritorially. The U.S. has elected to remove

itself from the international market for conflict

diamonds and African elephant ivory, based on the

illegitimate and morally tainted ways in which these

restricted items would otherwise enter commerce in

the U.S. Those laws address a domestic concern based

on a belief about complicity in immoral acts.

Also relevant are federal laws that ban the

importation of certain products even when those

products are made legally in the jurisdiction where

they originate. For example, while the killing of dogs

and cats for their fur might be legal in foreign

countries or even within certain U.S. states, federal

law bans the “import into … the United States [of] any

dog or cat fur product” or their introduction “into

interstate commerce.” 19 U.S.C. § 1308(b)(1). Federal

law also prohibits the importation of “[a]ll goods,

wares, articles, and merchandise mined, produced, or

manufactured wholly or in part in any foreign country

by convict labor or/and forced labor or/and indentured

labor under penal sanctions,” including “forced or

indentured child labor,” regardless of whether such

forced labor (like penal labor) was legally permissible

where the goods originated. 19 U.S.C. § 1307. Here

again, these laws do not implicate the dormant

commerce clause directly, but they are nonetheless

powerful examples of U.S. laws that reflect a moral

28

judgment about the importation of products even if

those products are lawfully created in their places of

origin. No one doubts that these laws serve a

legitimate domestic purpose or thinks that they

regulate extraterritorially. Yet the United States

freely claims that Proposition 12 is not “directed

toward a legitimate in-state interest” because it is

“based on a philosophical objection to animal-welfare

policy in other States.” U.S. Amicus Br. 21.

2. Many state laws are of a kind with these federal

examples, and under the erroneous reading of the

dormant commerce clause that Petitioner and the

United States advocate, these morals-based state

laws would serve “no” legitimate local purpose.

California, New Jersey, Illinois, and New York

have passed bans on in-state ivory transactions above

and beyond the requirements of federal law (while

allowing for the same exceptions provided in federal

law). CAL. FISH & GAME CODE § 2022 (2017); N.J. STAT.

ANN. §§ 23:2A-13.2, 23:2A-13.3 (2014); ILL. COMP. STAT.

ANN. §§ 357/5, 357/10 (2022); N.Y. ENV’T CONSERV.

LAW § 11-0535-a (2014) All four states define “ivory”

to include mammoth ivory, which federal importation

bans do not restrict.

Fourteen states ban the possession and sale of

shark fins. HAW. REV. STAT. § 188-40.7 (2010); WASH.

REV. CODE ANN. § 77.15.770 (2014); OR. REV. STAT. §

498.257 (2012); CAL. FISH & GAME CODE § 2021-2021.5

(2012); MD. CODE ANN. NAT. RES. § 4-747 (2017); 515

ILL. COMP. STAT. § 5/5-30 (2013); DEL. CODE ANN. tit. 7

§ 928A; N.Y. ENV’T CONSERV. LAW § 13-0338

(McKinney 2020); MASS. GEN. LAWS ANN. ch 130 § 106

(2014); TEX. PARKS & WILD. CODE § 66.2161 (1981); R.I.

29

GEN. LAWS § 20-1-29 (1956); NV NRS ch. 597 § 2-3; N.J.

STAT. ANN. § 23:2B-23 (2020); FLA. STAT. § 379.2426

(2021).

Nine states ban the in-state transfer of aborted

fetal tissue for all or some purposes, whether the

tissue was obtained in- or out-of-state. ALA. CODE §

26-23F-5 (2016); IDAHO CODE § 39-9306 (2017); IND.

CODE. § 35-46-5-1.5 (2016); KAN. STAT. ANN. § 6567a04 (2000); KY. REV. STAT. ANN § 436.026 (West);

LA. STAT. ANN. § 14:87.3 (2018); N.D. CENT. CODE §

14-02.2; OHIO REV. CODE § 2919.14 (1974); S.D.

CODIFIED LAWS § 34-23A-17 (2016).

Nine states (California, Hawaii, Illinois,

Louisiana, Maine, Maryland, Nevada, New Jersey,

and Virginia) ban the in-state sale of cosmetics that

have been tested on animals. CAL. CIV. CODE §

1834.9.5 (2020); HAW. REV. STAT. § 321-30.4 (2022);

410 ILL. COMP. STAT. 620/17.2 (2020); 2022 H.R. 714,

2022 Gen. Assemb., Reg. Sess. (La. 2022) (enacted);

ME. REV. STAT. ANN. tit. 10 § 1500-M (2021); MD. CODE

ANN. HEALTH-GENERAL § 21-259.3 (2022); NEV. REV.

STAT. § 598.993 (2020); VA. CODE ANN. § 59.1-572

(2022).

Eight states (Arizona, California, Colorado,

Massachusetts, Michigan, Nevada, Oregon, and

Washington) ban the sale of eggs from cage facilities.

2022 Ariz. Reg. Text 604242 (NS) (eff. Oct. 1, 2022)

(phased in by Jan. 1, 2025); CAL. HEALTH & SAFETY

CODE § 25990, et seq. (2018); COLO. REV. STAT. § 3521-201, et seq. (2020) (phased in by Jan. 1, 2025); MASS.

GEN. STAT. 129 App. § 1-3, et seq. (2022); MICH. COMP.

LAWS § 287.746 (phased in by Dec. 31, 2024); NEV. REV.

STAT. § 583.239 (2022) (phased in by Jan. 1, 2024); OR.

30

REV. STAT. § 632.835 (eff. Jan. 1, 2024); WASH. REV.

CODE ANN. § 69.25.107 (2019) (phased in by Jan. 1,

2024).

Texas bans the in-state sale of horsemeat for

human consumption, even if the horses were

slaughtered out-of-state. TEX. AGRIC. CODE § 149.002

(1991). Georgia bans the in-state sale of dog meat,

regardless of whether the dog was slaughtered out-ofstate. GA. CODE ANN. § 26-2-160 (2010). New York

bans the in-state sale of goods produced “through the

use of child labor” anywhere. N.Y. GEN. BUS. LAW § 69a (McKinney 1938).

All of these state laws reflect moral judgments

about in-state product sales and transfers, even when

the products (and their moral taint) originate out-ofstate. These laws and others like them serve

legitimate in-state interests premised on the moral

culpability of participating in the relevant product

market, even at the point of sale.

The United States resists this obvious conclusion,

claiming that “[t]he respective sovereignty of each

State that is embodied in our Constitution … means

that voters in pork-producing States must determine

what constitutes ‘cruel’ treatment of animals housed

in those States—not voters in California.” U.S.

Amicus Br. 20 (cleaned up). Transferring this

principle to another context reveals its deficiency.

Each of the fifty states sets the age at which a person

can consent to sexual conduct, anywhere from 16 to 18

years old. Some states have also adopted exemptions

from their age-of-consent laws for sexual partners

who are close in age, commonly known as “Romeo and

Juliet” laws. But no one seriously believes, as the

31

United States’ argument would logically imply, that a

state would have no legitimate interest in banning the

in-state sale or transfer of child pornography even if

that material featured a 16- and 17-year old partner

in a state whose age-of-consent or “Romeo and Juliet”

laws permitted the sexual contact depicted. Contrary

to the United States’ argument, each state’s

“respective sovereignty” permits that state to make

moral judgments about in-state activities—including

in-state sales and transfers—regardless of the moral

judgments made by the laws of states where

prohibited products originate.

3. This Court has also confronted and legitimated

moral claims based on the chain of causation leading

to objectionable conduct, even against assertions that

such claims are too attenuated to have legal

significance.

In Hobby Lobby, the petitioners believed that

“providing [contraceptive] coverage demanded by …

HHS regulations is connected to the destruction of an

embryo in a way that is sufficient to make it immoral

for them to provide the coverage.” 573 U.S. at 724. The

Court acknowledged that “[t]his belief implicates a

difficult and important question of religion and moral

philosophy, namely, the circumstances under which it

is wrong for a person to perform an act that is innocent

in itself but that has the effect of enabling or

facilitating the commission of an immoral act by

another.” Id. The Court refused to second-guess the

petitioners’ sincere belief on that serious moral

question. Id; see also Thomas v. Review Bd. of Indiana

Emp. Sec. Div., 450 U.S. 707, 715 (1981) (holding that

“it is not for us to say that the line [the petitioner]

32

drew” regarding what work was consistent with his

religious beliefs and what work made him complicit in

immorality “was an unreasonable one”); Little Sisters

of the Poor Saints Peter and Paul Home v.

Pennsylvania, 140 S. Ct. 2367, 2391 (2020) (Alito, J.,

concurring) (accepting, for himself and Justice

Gorsuch, petitioners’ assertion that self-certifying

their religious objections was itself a substantial

burden on religious exercise because, in petitioners’

sincere view, it triggered morally objectionable

contraception coverage).

The Court is no better equipped to second-guess

the moral judgment of Californians in enacting

Proposition 12. The purchase of inhumanely obtained

pork is surely “an act that is innocent in itself but that

has the effect of enabling or facilitating the

commission of an immoral act by another,” and it

indeed “implicates a difficult and important question

of religion and moral philosophy.” Hobby Lobby, 573

U.S. at 724. In answering that difficult and important

question, however, Californians have confined

themselves to a wholly intrastate regulation that

restrains only intrastate acts (the purchase of pork

that has been produced through the use of closeconfinement gestation crates). Just as the Religious

Freedom Restoration Act provided no legal means to

question a religious belief acknowledged to be sincere,

neither does this Court’s dormant commerce clause

jurisprudence allow—let alone require—the Court to

question the moral foundations of a State’s wholly

intrastate regulation.

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CONCLUSION

The undersigned amici urge the Court to affirm

the judgment of the Court of Appeals.

August 15, 2022

Respectfully submitted,

Megan M. Wold

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

mwold@cooperkirk.com

Counsel for Amici Curiae