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Further reflections on PETA’s Seaworld slavery lawsuit

By Michael Mountain

The animal rights organization PETA is accusing SeaWorld of keeping its famous “Shamu” killer whales in conditions that violate the 13th Amendment’s ban on slavery. The suit – filed on behalf of Tilikum and Katina at SeaWorld Orlando, and Corky, Kasatka and Ulises at SeaWorld San Diego – demands that the orcas be released to the custody of a legal guardian who will find a “suitable habitat” for them.

If only a judge could be persuaded so easily.

Certainly, we all want orcas and other animals to be released from what are, indeed, conditions of slavery at these marine circuses. But it is exceedingly unlikely that any judge is going to agree that the 13th Amendment applies to nonhumans.

That’s because, just for starters, no animals other than humans have ever been given a legal right of any kind, much less a constitutional right. Nonhuman animals are viewed by the law as “legal things” –property that can be “owned” by legal “persons”, with no legal right not to be abused, tortured, put on show, or anything else.

Until such time as a court is persuaded that a nonhuman animal – one single nonhuman –can be considered a “legal person,” they will all remain invisible to the law. Until that happens, all you can do on their behalf is pass laws requiring people to be less cruel to their “property.” And most of those laws will continue to be weak and full of loopholes.

Ironically, as Stephen Colbert explained in a humorous commentary right after the announcement, while Tilikum, Corky and Katina are not persons, SeaWorld itself – the corporation – is indeed considered a person. (Yes, Mitt Romney was right: Corporations are people.)

So, what can be done to breach the legal wall that separates humans from nonhumans?

One attorney and legal scholar is hard at work on this.

Steven Wise, co-founder and former president of the Animal Legal Defense Fund, is preparing the first serious case to persuade an American state high court that a nonhuman animal can be considered a legal person with the capacity for a specific legal right.

In one of his books, Though the Heavens May Fall, Wise tells the gripping story of the legal case that led to the end of human slavery in the Western world. In 1769, the slave James Somerset was brought to England by his American owner Charles Steuart. At that time, slaves were considered to be “things” that could be owned as property.

Somerset escaped and was recaptured, but by the time he was imprisoned on a slave ship bound for the Jamaican slave markets, he had gained some defenders. They went to court, claiming that Somerset was not a “legal thing” who could be owned, but a “legal person” in his own right.

Against vigorous opposition from his “owners”, including that Somerset’s freedom could lead to the downfall of the entire Western economy, Lord Mansfield, the great Justice of the Court of King’s Bench, accepted the argument that Somerset was indeed a person, and he set him free.

This one case, involving just one man, was the beginning of the end for slavery in the Western world. It would be another hundred years before the issue was settled in the United States, but it all began with one human “thing” being declared a legal “person.”

The Nonhuman Rights Project is setting out to accomplish the same thing for a single nonhuman animal. She may be a chimpanzee or a dolphin, or maybe an orca or an elephant – depending on which animal, in which jurisdiction and before which judge, may have the greatest chance of success.

“I’m not trying to get rights for all animals,” he said. “I’m working to get one legal right for one single animal.”

Various animal rights fundamentalists have accused Wise of being “speciesist” in that he isn’t making the case that all animals have legal rights.

“But that’s never going to happen in court,” he said. “Great minds can argue philosophy. But that’s not how the law works. It starts with persuading a single American state high court to agree that a single nonhuman animal meets certain specific conditions, just as it did when Lord Mansfield declared that James Somerset was a legal person.”

Right now, Corky and Kasatka and their fellow orca slaves have no more legal rights than a chair or an automobile does … or James Somerset did.

The Nonhuman Rights Project team is preparing the case meticulously. They’ve already spent 25,000 hours researching the law in different states around the country. When they file their first suit in 2013, it will be no publicity stunt. Rather, it will be the first in a series of cases that, one by one, will gradually eat away at the legal wall that separates humans from other animals. Step by step, that wall will crumble.

And one day, our children and grandchildren will look back at how all nonhumans were once treated as “things” with the same bemusement as when we look back at a legal system that once viewed entire ethnic groups of humans as pieces of “property.”

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