Spencer Lo
There is no question that, in the ordinary sense of the word, a great many non-human animals are slaves, forced to exist in extremely deleterious conditions to fulfill the wishes of their human masters. Most are untroubled by this fact—slavery over animals has been widely accepted in society for a 
very long time. Last October, in an effort to reverse this norm, PETA made a radical (some say outrageous) move. They filed a lawsuit against SeaWorld on behalf of five orcas, creatures who have been forced to live in highly confined, unnatural environments, to their detriment, all for the purpose of performing cheap tricks. Their decades-long captivity, according to PETA, violates the constitutional prohibition against slavery (aka the Thirteenth Amendment).
While it may be common sense that the orcas are slaves, from a legal standpoint, PETA is asserting a very radical claim. Is it too radical? PETA is essentially contending that the oracas are full legal persons entitled to constitutional rights. For the Nonhuman Rights Project (NhRP), an organization dedicated to changing the legal status of non-human animals from “things” to “persons,” the move is too soon; the lawsuit “is dangerously premature” and “will damage future animal rights law cases” if it is decided on the merits. NhRP has been allowed to appear as an amicus curiae in the case, and is seeking to have it decided on non-constitutional grounds, rather than on the merits of the Thirteenth Amendment claim. The question then is why: why is failure on the merits so bad or counterproductive from the viewpoint of animal rights advocacy? Although PETA is unlikely to prevail, how could it hurt to try?
Steven M. Wise, president of the Center for the Expansion of Fundamental Rights, Inc. and director of NhRP, finds PETA’s lawsuit to be a “show,” by which he means the suit is “a sure loser” undertaken primarily for publicity. There are three major problems with filing such “show” suits, he explains:
First, they create unfavorable law where no law previously existed and erect an obstacle that lawyers who are not putting on a show, but who are litigating to win, will be later forced to overcome. Second, the public, including perhaps some judges, may confuse “a show” with the real McCoy. Third, the PETA suit was sloppily drafted, twice confusing common law with the Supreme Court’s interpretation of the 13th Amendment. Securing legal personhood and legal rights for any nonhuman animal will be a struggle. Judges need to believe they can depend upon us to educate them.
These concerns (especially the first) need to be taken seriously, but I am uncertain whether they justify writing off lawsuits like PETA’s. The prospect of success on the merits may not be all that dismal, contrary to Wise’s contention; PETA doesn’t think so. In their recent opposition brief, PETA cites “more than 200 years of U.S. Supreme Court precedent…to establish that the orcas’ species does not deny them the right to be free under the 13th Amendment and that long-established prejudice does not determine constitutional rights.” They seem to have at least an arguable case. Interestingly, PETA’s impressive legal team includes renowned civil rights attorney Philip Hirschkop, who argued and won Loving v. Virginia—a landmark decision cited in PETA’s brief. If nothing else, I am encouraged by the remarks of Harvard law professor and constitutional scholar Laurence H. Tribe, who views the lawsuit as a valuable catalyst for “natural reflection and deliberation” about animal treatment. He says: “People may well look back at this lawsuit and see in it a perceptive glimpse into a future of greater compassion for species other than our own.”
So is PETA v. SeaWorld a bad idea? I don’t know. I like to think that even if it were, we would be able to learn from PETA’s mistakes and use them to surmount obstacles going forward.
Filed under: animal advocacy, animal law | Tagged: 13th Amendment, animal abuse, animal advocacy, animal law, animal rights, animal welfare, PETA, SeaWorld, slavery, Steven Wise |
Animal Blawg 
Yeah it’s an interesting argument on both sides. I’m reminded of the 2008 proposal in Spain to grant great apes legal rights as persons, including the right not to be exhibited in circuses, etc. (although I think zoos could keep the apes they had…I don’t recall the particulars). I’m not sure that law ever passed, but it did raise some good questions, among them very real concerns about what the law would mean for nonhuman species *other* than great apes. In that case, since the law was kind of couched in the language of great ape’s “similarity” to humans on cognitive and genetic levels, it may have actually been an obstacle for less “similar” species to be considered worthy of legal consideration. As some commentators said, it may just redraw the old “scala naturae” with great apes included in with humans and the rest of nonhuman species relegated to the lower rungs.
I don’t know if the orca legal argument (I will need to read your hyperlinks and/or do some more research), rests on orcas’ cognitive abilities as making them worthy of “rights” or not. If so, if decided on the merits, it *could* prove an obstacle down the road for legal protections for other species. It also could, as Tribe says, become a sort of catalyst for more deliberation. I would, of course, hope for the latter.
In the meantime, it’s probably doubtful that the court will even reach the merits. But definitely worth watching…
If PETA had any real class it would be working with Steven Wise and his NHRP as they have long put in the bulk of the work and effort needed in their fight for legal personhood for animals; Wise gives convincing arguments why PETA’s “show” is destined to fail and damage possible future success for the planned NHRP lawsuit on behalf of chimpanzees and bonobos; PETA just doesn’t have the “brains” to go with all of its money but knows how to put on a show to promote its own agenda…
While PETA may or may not have an arguable case, I have trouble seeing the real damage in the slavery claim. Sure the orcas ultimately belong in the wild, Free Willey, and all that, but to some extent they’re there because they were at one point hurt and couldn’t be returned. PETA is against all forms of animals in captivity and humans should basically leave them alone. I grew up loving orca whales and when I went to Sea World in October, I was stunned by how beautiful and big they were. I probably won’t have any other opportunity to see them in my lifetime (unless I go to Sea World), but I find it hard to believe they are oppressed. Training them and working with them gives the whales an opportunity to do something else in their captivity.
It’s an issue that can be argued back and forth. Yes, I enjoy seeing them, but I do feel sad that they are contained for their lives. It might be selfish. I’m interested to see if PETA makes any grounds on this. Also, what happens to the whales if the case is found in their favor? Are they let loose into the wild where they probably won’t survive because of their captivity? Interesting.
erinfitzi also raises a good point: Orcas (and other sea mammals such as dolphins) that have been raised in captivity often don’t do very well when released into the wild. However, that practical issue only calls into question the morality of capturing these animals in the first place, it doesn’t make the argument for different legal treatment any less compelling (although it should temper the outcome for *these* particular orcas, who have already been in captivity).
As someone who has read the complaint and the briefing in this case, I respectfully disagree with Wise’s comments that the drafting was sloppy (especially compared to the vast majority of obscenely inadequate federal court filings in the view of this former law clerk to a district judge); I also believe this case is not frivolous—it presents legal issues that are, at the very least, worthy of debate. This obviously involved a lot of preparation and thought. I find it difficult to believe that is mere publicity stunt. However, I do wonder about the legal consequence of this case being decided on the merits. Assuming it is decided against PETA (the chances are likely), will a lone non-binding case in the Southern District of California have a real impact on future cases? I’m not so sure. I’m still hopeful that, at the very least, this case could result in dicta and generaly issue-framing favorable to animals in the long run.
“A Fall From Freedom” (the untold story behind the captive whale and dolphin industry) will lay to rest misperceptions that only previously injured animals who can’t be returned to the wild are forced into human entertainment, and that the animals are not oppressed. I wrote the following after viewing the video for possible inclusion in a peace & justice film series:
A Fall From Freedom – exposes the brutal capture process (many don’t survive) of dolphins and whales for the marine park industry. SeaWorld is pretty much the heavy in this documentary narrated by Mike Farrell (BJ from M*A*S*H). Examines the stress these animals live under in marine parks–trained through domination to perform on command, the stress of “swimming with dolphin” programs, the terrible lives of those who are warehoused for whatever reason, their unnaturally short life spans compared to wild animals. Breifly looks at the true story of rehabbing Keiko, the Free Willy whale, who was released to the wild. Also focuses on how the marine mammal display industry has successfully lobbied for less oversight. This film is high quality, recently released, and runs 80 minutes.
You can watch a 3 minute trailer AND/OR the entire film here:
http://afallfromfreedom.org/
PETA has been very successful in bringing attention to cruelty which in most cases has helped other organizations try new things. I wish all animal organizations supported each other (united we stand, divided we fall, etc.) instead of criticizing what each does to accomplish the same. Any attorney worth his/her salt should not be afraid to overcome some precedent. We embrace the challenge and with sufficient conviction and good prep. we can argue to end this monstrouosity which we have created from time immemorial by enslaving non-human animals exclusively for our benefit, much of it thanks to most religions.
Using terms like “slavery” and “personhood” in reference to animals is ludicrous.
That said, the principle of keeping a large, intelligent, social and naturally wide-ranging species of predatory animal in captivity is enough to give me pause.
I would be curious to visit with a biologist or other marine mammal expert regarding the state of these creatures. In an expert’s opinion, do they seem stressed out, miserable, chronically bored, etc.? And that would be just for starters.
In other words and in short, as a land dweller who has spent virtually no time around marine wildlife, I would need far more information from many more sources before making my mind up on this issue. Biased material from idealogical sources with an axe to grind hardly gives a complete or clear picture.
Not understanding (or intentionally denying) the link between the enslavement of non-human animals and the enslavement of humans is ludicrous. The connection is clear, real, and undeniable. The justifications used to oppress and subjugate African slaves, women, and children in the U.S. and the Jews under the Nazi’s are identical to the arguments and justifications used to enslave and oppress animals today. In each case, the legal system was used to justify the treatment of the subjugated class as inferior and classify them as a form of “property,” thus denying them status and rights as “persons” under the law. The law was manipulated to justify the conclusion that the majority class had the right of property to “own” the oppressed minority, and stare decisis ensured that this right was held inviolate for centuries. Likewise, identical religious justifications are employed; today, we see this in the case of non-human animals when humans claim a right to oppress non-human animals because the non-human animals lack a “soul” or are somehow subordinate to the so-called “moral superiority” of humans. How ludicrous to even suggest that! In any event, all of these arguments and justifications failed over time, of course, as the oppressed minorities found their voice and advocates challenged the time-worn platitudes and successfully changed the legal precedents that enabled and facilitated the oppressive mechanisms. These same tattered old arguments are still wheeled out again and again but just as they were in the past, advocates will in time ensure they are discredited and rejected as well, and animals will inevitably acquire rights that will mandate respect for the autonomy of non-human animals. Of course, not everyone will be happy with the inevitable result: they will continue to decry their inability to oppress, like it was some inalienable right they possessed. But, in the words of MLK, “the arc of history is long but it bends toward justice.” And animals will one day have justice, despite the preciously clever arguments and claimed moral superiority of those who seek to deny it.
HAL, using terms like “ludicrous” when you admit you don’t know the factual arguments is not a particularly intelligent way of debating a point.
If you really want expert opinions about marine mammals I suggest you read some work by Dr. Lori Martino who has studied them intensively. You also may try to educate yourself further by reading Thomas White’s _In Defense of Dolphins_.
Verne, I’ve heard that sermon before. Sorry, but I don’t attend that church, so quit assuming your moral code is universal, much less logically defensible.
Lorien, my ignorance is not regarding the “factual arguments.” (in other words, ARA rhetoric regarding so-called “slavery.”)
I admitted ignorance regarding marine biology. Hence, regarding this issue, I would be interested in talking to biologists, the Orca’s keepers, marine mammal experts and others regarding whether captivity is taxing on these particular animals.
I do know that the predatory animals I’m most familiar with — dogs and cats — will get bored and stressed and depressed if they are confined for too long without the opportunity to range and experience a spectrum of stimulation.
But, to project what I know about dogs and cats onto the condition of Orcas at Seaworld would be mere conjecture on my part.
I highly recommend the following for those who may not have read these excellent books on the topic: 1) “Rattling The Cage:Toward Legal Rights For Animals by Steven M.Wise 2) “Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy” by Matthew Scully and3) “Creatures of the Same God: Explorations in Animal Theology” by Andrew Linzey; as for PETA, the truth is that they KILL many more animals than they save,especially strays and ferals and many other animals they believe don’t have a right to live or that they maintain are better off dead (including your pet!) and they repeatedly launch attacks on NO-KILL advocates such as Alley Cat Allies and Nathan Winograd of the No-Kill Advocacy.
HAL 9000’s dismissal of arguments favoring “personhood” for non-human animals is representative of all the oppressors of sentient beings (i.e. slavemasters) who have come before him in the past 3 centuries. Of course the slavemasters of the 18th and 19th century would dismiss the idea as “ludicrous.” The slavemaster of old, just like our contemporary slavemaster, would consider “personhood” for anyone other than himself or his kin as “ludicrous.” Arbiter of the laws of the universe, our slaveowner thinks he knows all, sees all, surveys his dominion with confidence, clairvoyance and omniscience; he is holder of all the cards, he considers himself supreme over all he would deem “subordinate,” or “inferior;” he is absolute master of his domain. Or so he thinks.
In this case, the subjugated property of our contemporary slaveowner is non-human animals. But of course history proves that identical thinking supported the subjugation of other beings once deemed to be “subordinate” or “inferior” by law and society: slaves, women, children, and religious minorities, for example. Like all other oppressors before him, our contemporary slavemaster deigns to loosen the manacles a bit on his slaves, now and then, if it pleases him; or not, if it doesn’t. So, perhaps he will enlarge the cage a bit, or enrich the “thing’s” environment so “it” can swim or swing with a few more toys. Or, perhaps he won’t. It’s all arbitrary, depending on our slaveowner’s whims. But whatever he does, he sleeps soundly, considering himself a humane, wise, and generous sort of fellow.
Fortunately, history proves that this oppressive ideology is doomed to extinction and will end up relegated to the dustheap of history, excoriated in the end by a more enlightened society for its cruelty and ignorance. But lest we judge these oppressors and their odious thinking too harshly, consider this. All the intricate mechanisms of society — the law, the arts, the media, and religion – they have always been complicit in perpetuating slavery in the past and enabling the slavemasters, and they continue to facilitate the enslavement of non-human animals today. It is a massive undertaking to dismantle this apparatus. But again, history proves it can and will be done.
Ultimately, the entire spectrum of animal rights activism (yes, even the PETA SeaWorld case,even if I disagree with its timing or tactics) will contribute to the inevitable outcome of advancing the cause of animal rights. Because in the end, history proves, rights for animals is absolutely undeniable and assured, and it will take a multitude of approaches and strategies to secure it.
Sure, the slavemasters are still around, and they still weigh in on the blogs, editorials, pulpits, legislatures, and talkshows, spouting their easily refutable speciesist message. But that’s ok; indeed, their reactionary responses to our efforts are welcome. They probably don’t know it, but they are simply part of the process of the synthesis of a new paradigm of animal rights. We’ve seen it before. They forget, or willfully ignore, that we animal rights advocates have history on our side.
We’ve already won. It’s merely a matter of time.
Reblogged this on Cove Blue for Jiyu and commented:
I wanted to share this reasoned evaluation with my readers. A very worthwhile read. Thank you, Spencer Lo.
Verne,
Thank you for another impassioned sermon, I’m sure the choir appreciated it.
That said, again, I would be interested in researching what biologists and other experts from across a broad spectrum (and not just a singular ideology) have to say about the implications of keeping these creatures in prolonged captivity.
Do they become stressed, bored, depressed? How does it affect their physical health and longevity?
HAL 9000, let’s just say for the sake of argument, that you were kidnapped from your home, placed in a tiny sterile cage thousands of miles away from home, denied any opportunity to interact with or communicate with your family or friends, knowing you have no hope of escape for the rest of your life, and forced to do clown-like tricks that you didn’t want to do while people watched you contort yourself into unnatural positions. Hmm… feeling a little stressed, are you? Bored? Depressed? Don’t you think this deprivation and torture would affect your physical health and longevity? Slavemasters don’t get it; they never have and never will. They don’t have a clue what they do to their slaves.
Verne,
I’m not interested in hyperbole and anthropomorphic conjecture.
I would prefer to get information from those most familiar with Orcas and their behavior.
As I said, viewing the situation from both a figurative and literally geographic distance, I question the practice of keeping such large, social, intelligent, predatory and naturally wide-ranging animals captive.
But, I’m also cautious about my own perceptions and presumptions, given my relative lack of knowledge in the matter.
The excellent references cited above should make it plain for anyone with eyes to see that Seaworlds are an appallingly cruel and barbarous ‘entertainment’. That’s so clear it’s hardly worth repeating.
On the narrower question of tactics, I’m not qualified to comment on the legal ramifications of PETA’s lawsuit, but something must be said in general terms about the deplorable thing called PETA. Now far advanced in its dotage, it has become a boon for all animal exploiting industries. If its top echelons had been taken over by a fifth column of cunning propagandists, they wouldn’t have been able to devise better ways of tarnishing the noble cause PETA claims to serve. For years, its grotesque antics have done more to bring the very notion of animal liberation into contempt than anything that could be done by its opponents. Almost every time they’re in the news (I refer not to the Seaworld suit, but to their many acts of self-parodying buffoonery) , it seems they’ve scaled greater heights of imbecility and found new, more senseless, more spectacular ways to cause gratuitous offense, debase their message, and alienate the broadest possible swathes of public opinion. Is it too hopeful to wish that some day soon it will collapse under the weight of its own absurdities, and leave the field open for the many highly-principled activist groups who are doing such valiant work in behalf of our animal victims? To PETA: ‘Depart, and let us have done with you! In the name of God, go!’
Kathleen, today I dredged up this blog, whose comments had escaped me, and found your news of and link to the film “A Fall From Freedom.” I sent the vimeo URL for the full-length film to a few friends, and thought I saw that it is 57 mins. long. Now, upon re-reading your comment, I see you mention 80 mins. Is this the link you were referencing? http://vimeo.com/38569606
If not, which one, please? The home page shows the trailer, then takes you to that vimeo screen…..
Thanks, Kathleen.
Lorien, a belated answer is better than none, right? According to Steven Wise, great apes were *not* granted rights in Spain: http://www.nonhumanrightsproject.org/2012/03/05/ask-the-animal-rights-lawyer-%E2%80%9Cdo-great-apes-have-legal-rights-in-spain%E2%80%9D (gosh, copy/pasting this hyperlink created lots of % signs and numbers that aren’t in the actual URL).
Also, though this has nothing (at least directly) to do with PETA’s lawsuit, I just found another reason to dislike SeaWorld: http://www.nationofchange.org/inequity-private-equity-hustlers-1335359225
The lesson: animal-enslavers exploit anyone who breathes. SeaWorld and its owners double-bilk the public — by forcing us to subsidize this debt-inflated enterprise and by fooling us into purchasing tickets to marine shows that we mistakenly believe the orcas enjoy performing.