- The Washington Times - Sunday, December 1, 2002

The ancient sport of cockfighting, once the pleasure of Indian rajahs and now the base pursuit of gamblers and thrill-seekers, has moved from the barnyard to the ballot box to the courtroom.
For the uninitiated, cockfighting is a game in which two fighting roosters are placed in a pit to fight, almost certainly to the finish. The promoters saw off the roosters' natural spurs and replace them with razor-sharp knives about 3 inches long, as well as with ice-picklike metal objects called "gaffs," designed to puncture and tear flesh. The birds are then pumped with a cocktail, consisting of strychnine, caffeine, amphetamines anabolic steroids and epinephrine, to make them more aggressive, while at the same time blocking the pain so that they fight on to the death.
Both combatants are severely mutilated. Even the "winner" is usually fatally injured. The melodrama is played out in a kind of theater in the round. The floor of the stage is covered with a mixture of sand and sawdust known as "grit" before a crowd of excited atavistic spectators who usually wager large sums of money on the outcome of each contest.
Roosters have been classically disliked for their supposed arrogance. George Eliot derisively referred to one of her friends as being like a "cock who thought the sun had risen to hear him crow." Nevertheless, the gamecock has had legal protection for over a century both here and in England. Cockfighting has been illegal in all but two states, Louisiana and New Mexico (where it is banned in 11 counties and at least 27 municipalities). The District of Columbia, like most of the states, did away with the practice in the late 1800s.
Proponents of cockfighting say that its danse macabre is thrilling to watch, steeped in ethnic tradition, providing an opportunity to study the results of proper breeding and training by bird owners. Cockfighting, they say, actually promotes family togetherness. Animal rights activists, however, see cockfighting as a "barbaric practice," a cruel and unnatural blood sport, connected to the illegal drug trade, and an arena where children are stimulated to violence at an early age.
Actually, cockfighting is all about money money from gambling and money from the multimillion-dollar business of raising gamecocks.
Recently, the cynosure of controversy shifted to Oklahoma where the electorate by a margin of 54 to 46 percent margin declared cockfighting, as well as raising fighting roosters and owning cockfighting equipment, a felony punishable by a prison term. The Oklahoma Coalition Against Cockfighting, an umbrella organization, consisting of anti-gambling and animal rights types, petitioned to put the bill on the ballot.
The state's cockfighting industry, which claims annual revenues of 1 billion dollars, mostly from exports of fighting cocks to the Philippines, was quick to put on its "gaffs" and fight back by bringing litigation under the U.S. Constitution to invalidate the referendum.
Oklahoma gamecock breeder Kelly Barger, owner of about 100 roosters bred for cockfighting, declared, "The way the law is written, the sheriff's department [has] the authority to come to our house and arrest us for owning a chicken." Indeed.
The farmers' argument found favor with Oklahoma state court Judge Willard Driesel who sits in the state's McCurtain County, a rural area where cockfighting is so much a part of the culture that children under 12 are admitted to the spectators' gallery free of charge.
Judge Driesel ordered a temporary restraining order pending further consideration of the constitutionality of the new ban. The jurist said that the law is filled with questions as to "whether or not constitutionally protected actions and freedoms are being prohibited or invaded." He also questioned whether the law interferes with commerce or deprives game fowl breeders of property without due process an argument that could be made with no less force by the owner of a heroin plant or a counterfeiting press.
Judge Driesal is scheduled to consider the matter further tomorrow, when he is to decide whether the temporary restraining order will be further extended and become a preliminary injunction.
Cockfighting has indeed existed through the ages. The first cockfight was said to have been in Persia some 6,000 years ago. A stone carving at Angkor Wat provides evidence of cockfighting in Southeast Asia a millennium ago. Woodcuts of the famous Hyde Park cockfighting pits remind us that English aristocrats not too long ago matched their roosters against those of other members of the nobility for status and, of course, for money.
Washington, Jefferson and Jackson were well-known "cockers" who bred gamecocks for the sport and, most certainly, the income. But the world has changed since the days of the Medes and the Persians or even the founding of the republic.
There is precedent for quarrels over chickens shaping the Constitution. In the landmark 1935 "sick chicken case," a unanimous Supreme Court declared unconstitutional President Roosevelt's New Deal measure, the National Industrial Recovery Act, on the ground that, although chickens had crossed state lines, they came to permanent rest in New York and therefore were no longer part of interstate commerce to be regulated by Congress. It is unlikely the court would rule the same way today.
Modern courts are reluctant to strike down regulatory legislation adopted by Congress under the commerce clause of the Constitution. Therefore, a state measure regulating local conduct under the police power would almost certainly pass constitutional muster. Yet, the controversy over fighting cocks rages on.
Judge Driesal is clearly wrong on the law and his order, if made final, should be reversed on appeal. There is ample legal precedent for a state's "police power" right to outlaw cockfighting.
Meanwhile, until the Oklahoma picture is clarified, those who would like to get a bet down on a good cockfight may try New Jersey, where it is illegal and notoriously conducted underground or, if they are risk averse, Louisiana or certain parts of New Mexico. Abroad there is Mexico, where the cockfight, or peleas de gallos, retains its popularity. Then, if one dares to go, there are always the Philippines to see the feathers fly.

James D. Zirin is a partner in the New York office of Sidley Austin Brown & Wood LLP.

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