BOSTON (CN) — Claiming that cockfighting is “perhaps the ultimate expression of Puerto Rico’s cultural identity,” supporters of the sport tried Tuesday to persuade the First Circuit to remove the federal ban against it.
The plaintiffs — a diverse group of gamecock owners and breeders, cockpit owners and judges, a trade association and private fighting enthusiasts — argue that Congress trampled the Commerce Clause of the U.S. Constitution in passing the ban because cockfighting on the island doesn’t affect interstate commerce.
But since no one had actually been charged with violating the law, the judges seemed bewildered about how to measure interstate commerce. Again and again they peppered the Justice Department’s lawyer, Jeffrey Clark, with questions trying to pin him down on who could be prosecuted.
“The government is supposed to know what the statute means,” an annoyed U.S. Circuit Judge David Barron told Clark. “It’s your statute to defend; you tell us what it means.”
Clark seemed blindsided and unsure if the government could prosecute someone who sponsored an event, or promoted it, or exhibited there. At one point he suggested that a sponsor and an exhibitor were the same thing.
But U.S. Circuit Judge Sandra Lynch, a Clinton appointee, disagreed. An employee might be an exhibitor if “he’s not an actual sponsor but by God he’s holding up the animals and strutting around,” she suggested.
Barron, an Obama appointee, grumbled: “We have to write an opinion. I’m just trying to get help from the government. We have actual plaintiffs in an actual case. Which ones face a credible risk of prosecution?”
Without a clearer understanding of who is affected, “it’s not clear to me that there’s interstate commerce,” Barron said. Does the law apply to “any cockfight, even a little one in a backyard? That raises a much harder question.”
The plaintiffs claimed in their brief that Congress passed the law out of a belief that cockfighting was immoral, but made no effort to demonstrate a connection to interstate commerce. In fact, they said, since cockfighting was already illegal in all 50 states and Congress just extended that rule to territories such as Puerto Rico, there couldn’t be any effect on interstate commerce.
Cockfighting was introduced on the island by the Spanish in the 16th century and was officially established in 1770 by the Spanish governor. It was so popular that many Puerto Rican towns built cockpits before they built churches, and at one point a Catholic bishop prohibited fights at certain times because they were reducing Mass attendance.
The activity was banned in 1898 after the U.S. took control, but in 1933 the U.S. governor reversed course and declared it an official sport of the island. It remained legal until 2018.
In 1985, some 1.5 million people attended cockfights at 132 licensed arenas in Puerto Rico, according to island government figures. But even before the ban, annual attendance had been dropping because of economic troubles, falling to 330,000 in 2016. The next year Hurricane Maria destroyed some 20 cockpits, leaving just 63 across the island.
Nevertheless, “cockfighting is a multimillion-dollar industry,” said Gerardo Mora, the Puerto Rican official who was in charge of regulating the island’s cockfighting venues. In 2010 the Puerto Rico legislature voted to recognize the sport as “an integral part of the island’s folklore and patrimony.”
Cockfighting generated at least $65 million for Puerto Rico’s economy each year and provided 3,447 direct jobs and another 3,827 indirect jobs, according to a survey sponsored by the plaintiffs.
But those figures were disputed by Wayne Pacelle of Animal Wellness Action in Washington, D.C.
“They are wildly exaggerating the economic value,” he said. “Watching animals slash each other just for human entertainment and gambling is not judged as a legitimate enterprise by mainstream people.”
The ban was lobbied for by the Humane Society of the United States. According to the plaintiffs, it was “proposed and passed to appease animal-rights activists without any fear of political backlash, as Puerto Rico has no real representation in Congress and its residents cannot cast a vote in the presidential election.”
The ban was met with widespread opposition on the island. “Here in San Juan, no city police officer, no city employee will intervene to stop a cockfight,” the city’s mayor, Carmen Yulín Cruz, told a cheering crowd. “If federal agents want to, they’ll have to do it alone!”
Meanwhile the president of Puerto Rico’s Senate spent $36,000 to have a bronze sculpture of a rooster installed on the lawn of the capitol building.
The plaintiffs raised other claims as well. Edwin Prado-Galarza of Prado Núñez in San Juan told the court that the ban violated the First Amendment because cockfighting has “expressive communicative value.”
“Gamecocks are a symbol of masculinity and self-determination,” he said. “Owners express their honor and prestige.”
And María Domínguez of DMRA Law in Guaynabo, Puerto Rico, argued that the law violated due process because “Puerto Rico has no meaningful representation in Congress.”
But the panel, which included U.S. Chief Circuit Judge Jeffrey Howard, a George W. Bush appointee, was fixated on the Commerce Clause issue.
The panel’s decision will be a political lightning rod in Puerto Rico because the ban “has salted the wound of resentment felt by many Puerto Ricans” over their lack of representation in Congress, according to the plaintiffs’ brief.
Cockfighting has been historically important, wrote island historian Juan Llanes Santos, because, “through their birds, in the arena, slaves could defeat their masters, blacks could defeat whites, Criollos could defeat Peninsulares.”
Of course, to many people a bloodsport in which birds are trained to viciously attack and kill each other isn’t a symbol of cultural patrimony; it’s simply animal cruelty.
As Mora asked, however, “you want to talk about cruelty?”
“You have millions of hunters in the United States who shoot a deer, decapitate it and then mount its head on the wall as a trophy and nobody says anything about it,” he said. “But we have people in Congress who don’t even know where Puerto Rico is and they’re going to take away our cockfighting industry?”