I am disappointed to report that our appeal of California’s ban on trade in nearly all forms of ivory was denied. The Appellate Court did not agree with us that California’s law is unconstitutional and ought to be voided for vagueness. The decision came down yesterday afternoon.
We are now consulting with a number of outside attorneys on whether they think we have grounds to bring the issues we raised to the attention of the California Supreme Court.
Because of the dismissive way the court dealt with the issue of ivory black in oil paintings, and the imprecision of determining the volume of an object made with ivory, the Ivory Education Institute feels an obligation to use the splendid platform of a Supreme Court challenge to try to bring some understanding of this culturally important material to those who continue to demonstrate their ignorance.
Of the matters that still concern us is the legal nicety of the difference between “facial” and “as applied” constitutional challenges.
The court held that we did not prove the unconstitutionality of the law on its “face” even if we believe it would be held unconstitutional when “applied.”
We still strong question whether a citizen really ought to have to wait for a situation to unfold to determine the constitutionality or unconstitutionality of a law.
After all, Sec. 2022 of the California Fish and Wildlife Code, comes with heavy fines and jail time. It seems to us that a citizen ought to be able to challenge the constitutionality of a law and not have to wait to be arrested, have a court hearing, go to trial and receive a verdict to know whether he has actually broken the law or the law itself is unconstitutional.
The Court dismissed our point that Sec. 2022 is really a revival of the colonial attitudes of the 19th Century, that Westerners know what is best for Africa, that white man still has a burden to tell Africans how to utilize their natural resources.
What would Americans say — judges included — if South Africa refused to buy any California agricultural products until we managed our herds of wild horses or packs of wolves better?
What if Kenya boycotted California almonds out of concern for condors that are still being poisoned by pesticides? We would smile at their audacity and then totally ignore them.
We still think there is an underlying racist attitude in the idea that Californians can ban trade in all forms of ivory —even mammoth and mastodon ivory — to protect elephants in Africa.
We still hold that this is not properly the business of the government of California.
The fact that many elephant populations are in overabundance in Southern Africa and are causing great harm to their habitats as well as to the people who live among these animals is a detail that Californians continue to ignore as an inconvenient truth.
The California legislature never invited anyone who knows anything about the CULTURAL value of ivory to testify before the law was approved.
The 20-page opinion denigrated the historical references in our brief. I argue that most people see any ivory object as the end product of a dead elephant and refuse to recognize that elephants have died of natural causes and from disease and mating disputes since time immemorial.
All those dead elephants — along with other non-endangered ivory producing species — provided ivory that got carved into culturally important objects.
But reality offers complications that the fanatics in the animal rights groups do not want to deal with and a detail that the legislature is happy to ignore for the emotionally satisfying vote to “save” elephants.
If you think that continuing the fight to bring some reason to the issue of ivory is important, please let us know. We have only a relatively few days to decide before notifying the California Supreme Court of our intention to appeal.