SeaWord Slavery of Whales - Revisited

Possibly the most entertaining case of 2012 was the lawsuit instigated by PETA alleging that SeaWorld’s Orca exhibits constitute slavery under the 13th amendment to the United States Constitution. This action was actually filed in 2011 with a decision issued in February of 2012. This was not the first lawsuit ever filed attempting to obtain constitutional rights for animals. A similar unsuccessful lawsuit was filed in Australia on behalf of a chimpanzee in 2008.

A successful ruling would have had a tremendous impact on the zoo and aquarium industry. If Orcas had been deemed to have constitutional rights, then other animals almost certainly would be entitled to the same protections.  Providing any form of constitutional or other similar legal rights to animals would have opened a Pandora's box with ramifications for agriculture, pets and almost any aspect of today's life (imagine being required to give rats -which are highly intelligent animals- a trial before exterminating them for invading a home).

 It is unlikely that PETA actually believed that its lawsuit against SeaWorld would be successful. This action was filed shortly after a highly publicized incident in which one of the Orcas at SeaWorld killed a trainer. This action was probably filed by PETA in an attempt to continue the adverse publicity which SeaWorld suffered as a result of this unfortunate death. In that regard, this case is an important reminder of the importance of following proper safety protocols and properly maintaining animals in zoos and aquariums in order to avoid giving animal-rights activists the opportunity to generate publicity from bad outcomes.

In its complaint PETA described the social habits of Orcas in the wild and attempted to analogize those to cultural traits. In addition, PETA described SeaWorld’s breeding program for Orcas as further evidence of voluntary servitude and bondage.  The Complaint reads in part like a bodice-ripper novelized description of the treatment of female slaves in the Old South.

In the substantive portion of its Complaint PETA argued that the 13th amendment to the United States Constitution which prohibits slavery should be applied to the Orcas.  In support of that argument, PETA relied upon cases which have held that the 13th amendment prohibition against slavery is not limited to descendents of African slaves. However those cases simply applied the 13th amendment to other oppressed minorities. PETA was attempting to extend the logic which was used to extend anti-slavery concepts from African slaves to Chinese and Mexican immigrants, to apply to animals. PETA also argues that because the 13th amendment does not specifically uses the word “person”, it should not be so limited and should be applied to a non-person or animal.

The District Court had very little difficulty in rejecting PETA's argument. Both historic and contemporary sources analyzed by the Court made clear that the terms “slavery” and “involuntary servitude” as used in the 13^th Amendment apply only to persons. Furthermore prior U.S. Supreme Court cases (including some of the same cases PETA attempted to rely on) have made clear that the term involuntary servitude can only be applied to human beings.   The Court also relied upon the language of the Emancipation Proclamation to support its conclusion that the terms “slavery” and “involuntary servitude” only apply to persons.  The Emancipation Proclamation states in relevant part that it applies to “all persons held as slaves within the State or designated part of the State”.  While noting that animals may be entitled to protection under certain animal-rights statutes and that the goals of PETA to protect Orcas might be laudable, the Court made clear that the protections available to or for the benefit of animals are limited to those arising under specific animal protection statutes, and that non-persons are not entitled to constitutional protection.

In an interesting twist, a separate animal-rights activist group known as “The Center for the Expansion of Fundamental Rights, Inc.” (“CEFR”) attempted to intervene in the case as an amicus curiae on behalf of the Orcas.  Apparently, the position argued by CEFR was too extreme even for PETA.  PETA opposed CEFR’s motion to intervene and asked the Court not to consider its arguments. 

 

In effect CEFR argued that because the whales in question had been captured in Iceland (and one in British Columbia) and had been forcibly removed from their country of “residence”, that their rights should be decided under the laws of their countries of residence.  In other words, CEFR argued that the laws of Iceland and British Columbia should be applied in deciding the rights of these whales. While the Court granted CEFR’s request to intervene as amicus curiae and allowed it to file its brief, it otherwise ignored CEFT.   The Court did not allow CEFR to appear at oral argument and did not respond to the arguments set forth in CEFR's brief in its ruling.