Do whales deserve constitutional protection against slavery? On February 8, a federal judge said 'no,' stopping a historic case filed by People for the Ethical Treatment of Animals against SeaWorld for violating the 13th Amendment on slavery. Five orcas were listed as the plaintiffs.
PETA filed the lawsuit in the U.S. District Court in San Diego last October, complaining that the whales "were forcibly taken from their families and natural habitats, are held captive at SeaWorld San Diego and SeaWorld Orlando, denied everything that is natural to them, subjected to artificial insemination or sperm collection to breed performers for Defendants' shows, and forced to perform, all for Defendants' profit. As such, Plaintiffs are held in slavery and involuntary servitude." PETA went on to request that the whales be freed and released to a habitat better suited to their needs.
On Wednesday, U.S. District Judge Jeffrey Miller dismissed the case, writing in his ruling that "the only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas."
Before the ruling, PETA's attorney Jeffrey Kerr told HuffPost that the animal rights group's argument was based on the belief that "slavery doesn't depend upon the species of the slave, any more than it depends upon the race, gender or ethnicity of the slave. SeaWorld's attempts to deny [orcas] the protection solely based on their species is the same kind of prejudice used to justify any enslavement. And prejudice should not be what determines constitutional rights in this country ... Because they can suffer from the prohibitive conduct of being enslaved, the 13th Amendment protection against that conduct should be extended to them."
Following the ruling, SeaWorld wrote in a statement provided to HuffPost, "The speed in which the Court issued its opinion provides reassurance of the sanctity of the 13th Amendment and the absurdity of PETA's baseless lawsuit ... SeaWorld remains the standard for zoological stewardship of marine animals and we reject any challenge to the conditions and quality of care for these remarkable animals."
Both groups did voice one shared observation -- the remarkable nature of these animals. Kerr described orcas as "the most social beings on the planet. They stay with their families their entire lives. Like us, they have cultures within their own pods and communities, they have their own languages, with each pod having their own distinct dialect which gets passed on from generation to generation." But in Kerr's mind, this means that "If animals are that complex and the science demonstrates they are suffering from enslavement, then these orcas deserve to be protected from that enslavement."
Miller praised PETA attorneys for striving to protect orcas, but still found that the 13th Amendment "affords no relief."
Taking a broader look at the challenges facing animal advocacy groups, a "big barrier" is the fact that animals are considered personal property, Valparaiso Law Professor Rebecca J. Huss told HuffPost before the ruling.
Huss, who served as guardian/special master in the Michael Vick dog-fighting case, explained, "no one's established that animals are legal persons. It doesn't mean we couldn't ... it's just something that we as a society have not decided to do yet. If we can establish corporations as persons, why can't we establish whales as persons?"
Analyzing the legal meaning of "person," Huss discussed her article in the 2002 Marquette Law Review, where she wrote, "just as with corporations, ships, and other nonhumans who have not always been treated as persons, it is possible to change the personhood status of animals."
Huss referred to the book "Animal Rights" by Cass Sunstein, President Obama's regulatory czar and Harvard professor, who wrote that animals' status as property "has prevented their personhood from being realized. The same was true of human slavery." He suggested, "We could retain the idea of property but also give animals far more protection against injury or neglect of their interests. Or we could say that animals are not property, as children are not property, but still give human beings a great deal of control over them, as parents have control over their children."
Huss admitted, "I think most people involved in animal advocacy would say if there's progress, it's very slow." She paused. "I'd like to think we've made progress ... We've made progress in the sense that there are individual situations where there has been progress for individual animals."
Kerr said in a statement following the ruling, "This historic first case for the orcas' right to be free under the 13th Amendment is one more step taken toward the inevitable day when all animals will be free from enslavement for human amusement."