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Thoughts on the hearing in PETA’s SeaWorld slavery lawsuit

By Michael Mountain

On February 6, 2012, a Federal Court in San Diego held a hearing on a Motion to Dismiss filed by SeaWorld in a case where PETA claimed that SeaWorld was enslaving orcas in violation of the Thirteenth Amendment to the United States Constitution. Natalie Prosin, the Executive Director of the Nonhuman Rights Project, which is an amicus curiae, or “Friend of the Court,” in the case, attended.

SeaWorld’s case: it’s about boundaries

SeaWorld’s counsel, Theodore Shaw (photo left), professor at Columbia Law School and former director-counsel and president of the NAACP Legal Defense and Educational Fund, began his argument with a word he would repeat: “boundaries.” The case, he said, was about the boundaries that have been established by the Constitution. The case was also about common sense. Later he would argue that the Court lacked authority to answer the question of whether the Thirteenth Amendment protected animals, as there was no jurisprudential support for the argument that an animal had Standing to sue.

The Court, Professor Shaw said, could ignore neither 125 years of case law applying the Thirteenth Amendment nor common sense. The issue was not whether animals should be subjected to abuse; there are statutes that govern the way animals may be taken or held by humans. Webster’s definition of “slavery,” he said, is the same definition that was used when the Thirteenth Amendment was adopted: slavery is the subordination of human beings by other human beings. The debate that surrounded the adoption of the Thirteenth Amendment was entirely about humans. Nowhere during the events that lead up to the adoption of the Thirteenth Amendment, including the Dred Scott case, was the issue of animals raised. While the Constitution has changed, and interpretations of the Constitution have changed, the issue of whether animals are considered under the Constitution has not changed. PETA’s complaint crossed all boundaries.

Moreover, Shaw said, the case opens a Pandora’s Box and would be “hell unleashed”, for a PETA victory would have far-reaching implications in that it would apply to all animals held in captivity including pets, those we eat, and bomb-sniffing dogs.

Professor Shaw addressed one of PETA’s written arguments by distinguishing Justice Souter’s concurrence in Glucksberg v. Washington, where the Justice cautioned courts to ignore “hysterical” slippery slope arguments. For the first time, Judge Miller asked a question then ended up stating that the way PETA characterized Justice Souter’s concurrence in its memorandum was inaccurate.

Professor Shaw said that SeaWorld would prefer the Court to rule directly on the Thirteenth Amendment issue that PETA had raised, but realized that other issues were involved. SeaWorld, he said, would take any victory, though it preferred to win on PETA’s Thirteenth Amendment claim. “There is no doubt,” he said, “that these kinds of cases have no place in the federal court.” The Founding Fathers, he argued, did not intend to include animals in the Constitution when they wrote “We the People.” PETA’s arguments, he said, have a tone deafness that zeal cannot explain.”

PETA’s case: it’s about civil rights

PETA’s attorney, Jeffrey Kerr (photo right), began his presentation with, “This case is the next frontier of civil rights.” He described the plight of the orcas, how they were born free, violently captured, kept in confinement, forced to work, forced to breed, and deprived of all their natural behavior. These conditions, Kerr argued, constituted slavery.

Judge Miller asked whether Attorney Kerr agreed that the purpose of the adoption of the Thirteenth Amendment was to protect humans from enslavement. Kerr replied that if the plaintiff orcas can suffer similarly to humans, they deserve Constitutional protection. The Thirteenth Amendment should be read expansively, Kerr said. Orcas are in the same position as women once were who were unable to practice law in the 19th Century, and he cited another case, Bradwell v. Illinois, to demonstrate that we should not prejudice orcas because of their species.

Judge Miller asked about the issue of Article III standing and cited the Cetacean Community v. Bush case that had been decided by the Ninth Circuit Court of Appeals. In that case, the Court held that cetaceans lacked standing. Attorney Kerr answered that the Cetacean Community holding applied only to the statutes that were in question in that case, and it didn’t preclude animals from having Article III standing in other cases.

Noting that under the Cetacean Community case, the orcas did not have standing under the Federal Endangered Species Act, the Marine Mammal Protection Act, and the Animal Welfare Act, Judge Miller asked how they would have standing today in the present case. Attorney Kerr replied that nothing prohibited orcas from having standing under Article III and that the orcas had a legally protected interest under the Thirteenth Amendment. There is no statute that solely addresses orcas.

Judge Miller asked whether dolphins used by the military are slaves under the Thirteenth Amendment. Attorney Kerr replied that PETA’s claims only referred to orcas used for amusement. Otherwise decisions would have to be made on a case-by-case basis.

Judge Miller asked whether animals used for experimentation or by the military would also be slaves under the Thirteenth Amendment. Attorney Kerr replied that this would depend on the degree of complexity of the being and whether he or she could suffer or feel pain. Again, decisions would have to be made on a case-by-case basis.

Judge Miller asked whether any decision would apply only to the orcas held captive by SeaWorld. What about orcas bred in captivity? Could they be used for research purposes? Attorney Kerr replied that this would depend upon the type of research.

Judge Miller asked what other Thirteenth Amendment contexts were appropriate for orcas other than amusement? What about the slippery slope? Attorney Kerr replied that the Thirteenth Amendment prohibited all forms of slavery.

SeaWorld’s rebuttal

Professor Shaw, in rebuttal, argued that the crux of their disagreement centered on boundaries and definitions. Slavery, he said, was the total domination of humans over humans and said that federal courts have never defined the relationship of animals and humans as slavery. Shaw distinguished the case of Bradwell v. Illinois, cited by PETA, by saying that Ms. Bradwell was a human being. He noted that Congress has not extended Article III standing to animals and that the Animal Welfare Act that sets the standards for which these animals should be treated. He cited Judge Richard Posner’s comments on Steven Wise’s book, Rattling the Cage: Toward Legal Rights for Animals, in which Posner argued that rights are connected with duties.

Shaw said that orcas are not persons and that the remedy for orcas being held improperly was under the Animal Welfare Act. The case was a slippery slope: first zoos and aquariums, then what? Even if animals are suffering, that does not mean they are entitled to constitutional rights. Nor does it mean they are enslaved.

After the arguments closed, SeaWorld’s lawyers retired to a fleet of black SUVs and left without giving any media interviews. In the course of giving numerous print and television statements and interviews, Attorney Kerr repeated again and again that the day had been a great victory for animals.

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