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.