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On PETA’s SeaWorld orca slavery lawsuit

By Steven Wise

“Hey kids, let’s put on a show!”

“We can use my Dad’s barn!”

Mickey Rooney and Judy Garland played out scenes similar to this one from Babes in Toyland in half a dozen films. Inevitably, within a few days, a Broadway-quality smash always emerged within Dad’s decaying barn.

I was reminded of these scenes when I read that PETA had filed a complaint in a California federal district court alleging that SeaWorld was enslaving its captive orcas in violation of the orcas’ rights under the Thirteenth Amendment to the United States Constitution. Section One of that Amendment provides that “(n)either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The Associated Press reported that PETA’s team of five lawyers believes their suit was the first ever filed in federal court seeking constitutional rights for members of a nonhuman animal. There are good reasons why no one has ever filed such a suit. Alas, it is a sure loser, one more likely to set back the struggle to establish genuine legal rights for nonhuman animals than to protect the orcas in SeaWorld’s control. Instead PETA decided to “put on a show.”

The idea of suing under the 13th Amendment is not original. I have been teaching “Animal Rights Law” and “Animal Rights Jurisprudence” at law schools across the United States, including Harvard Law School, for 21 years. Each time I teach, a couple students come up with the not-very-novel idea that, perhaps, someone should file a lawsuit that claims that a nonhuman animal is being enslaved in violation of her rights under the Thirteenth Amendment. I patiently wait for this suggestion to be made each semester, so that the entire class can discuss it and conclude for itself why it’s not a good idea.

I began my book Rattling the Cage – Toward Legal Rights for Animals with the story of Jerom, a teenage chimpanzee who died a terrible death after being infected with the AIDS virus at the Yerkes Regional Primate Center. Professor Laurence Tribe wrote in his review: “Clearly Jerom was enslaved. I am not suggesting that judges would so read the Thirteenth Amendment.” Professor Tribe was stating a truth most lawyers understand: the same word may mean different things in different contexts and there may be a world of difference between what a word means in its common usage and what it means when used in a constitution. The claim that an orca is enslaved within the meaning of the Thirteenth Amendment is unlikely even to receive a single vote from a federal appellate court in 2011. It is unthinkable that the present United States Supreme Court would agree.

There are three major problems with filing such suits as “a show.” 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.

Here at the Nonhuman Rights Project we have spent years preparing the real McCoy. Dozens of volunteers from the disciplines of law, sociology, political science, natural science, mathematics, and others have invested more than 25,000 hours researching, writing, and vigorously debating how best to extend the status of “legal person,” the capacity to possess any legal right at all, to even a single nonhuman animal. Early on we dismissed the idea of claiming that a nonhuman animal had rights under the Thirteenth Amendment in the early 21st Century as counter-productive.

Instead, we have long focused on the sufficiently difficult task of persuading an American state high court that a specific nonhuman animal should be entitled to legal personhood under that state’s common law, which is the law judges make and consciously harmonize with the demands of changing human experience, scientific knowledge, and public morality. In selecting the first of these nonhuman animal plaintiffs, we have been focusing on an orca or dolphin, a chimpanzee, an elephant, or an African Grey Parrot, as scientists have learned that all of these species are conscious, likely self-conscious (know they have minds), may have a theory of mind (understand other minds exist), are autonomous, use language or language-like communication, and display other behaviors that require complex cognition.

Our substantive arguments will echo those that common law judges commonly encounter: liberty, equality, habeas corpus, rational decision-making. Our procedure will not chase the presently-impossible dream of the Thirteenth Amendment. Instead the Nonhuman Rights Project will follow the path that others, English villeins, English and American black slaves, indentured servants and other unfree have won through the centuries in their successful fights for legal rights. The Nonhuman Rights Project is preparing up to ten law review articles for publication that will help lay the necessary legal groundwork for winning.

Our goal is to break though the ancient legal barrier that separates all humans from every other animal and persuade high court judges that it would not only be arbitrary to deny at least some nonhuman animals certain fundamental legal rights, but to refuse to do so would undermine the reasons we humans have fundamental rights.

The Nonhuman Rights Project will be filing its first lawsuits in 2013; more will follow. We are well-prepared, well-researched, well-argued, competent, and deadly serious. There is a lot at stake, too much for “a show.”

PETA’s wipeout this week in the US District Court in San Diego in Tillikum v. SeaWorld was as predictable (the Nonhuman Rights Project predicted it and tried to head it off) as it was complete. It did not have to happen. Here are ten suggestions on how to avoid a repetition.

  1. The thread of the legal thinghood of nonhuman animals is woven into our legal fabric. Unless you are fully prepared to unravel it, don’t file a lawsuit. You will lose and undermine the work of those who are determined to win. Full preparation will take four people working full-time for four years; and not just lawyers, but natural scientists, mathematicians, sociologists, and historians.
  2. The key to winning legal rights for nonhuman animals is to persuade high courts that at least one nonhuman animal can be a “person” with the capacity to possess any legal right at all.
  3. There are no shortcuts to proving “personhood.” Nor are there ways to avoid having to persuade high courts that “personhood” is the key to obtaining a legal right for a nonhuman animal.
  4. The struggle to obtain a legal right for any nonhuman animal will be unlike any other. Even the classic six-decade legal struggle against “Separate But Equal” that culminated in Brown v. Education began with the acknowledgement of the United States Supreme Court that black people were “persons” within the meaning of the Fourteenth Amendment to the United States Constitution.
  5. The manner in which the struggle to obtain a legal right for nonhuman animals is conducted will be unlike any previous struggle. It will bear little resemblance to the normal day-to-day ways in which lawyers try cases.
  6. The answer to how one may obtain “personhood” for any nonhuman animal will not be found in a law library or on Westlaw or Lexis or at a law school.
  7. Stay out of Federal Court. Please.
  8. Stay away from the US Constitution. Pretty please.
  9. Sometimes it is better to do nothing than to do something.
  10. Telephone. Email. Twitter. Facebook. Letter. Don’t be a stranger. Contact us at the Nonhuman Rights Project. Dozens of us have focused for years on how to solve the narrow problem of how to win legal rights for nonhuman animals in a courtroom. We may have to something helpful to say.

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