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The debate over “originalism,” or how much weight should be given to the original intent of the Framers when interpreting Constitutional text, is the subject of countless academic debates and Con Law classes. An ostensible flaw with originalist thinking is the inherent difficulty in determining exactly what a large group of men were intending when they wrote the Constitution hundreds of years ago.
But just this once, it might be safe to say that when the Thirteenth Amendment was drafted prohibiting “slavery” and “involuntary servitude,” the Framers were thinking of actual human beings and not, well, whales.
Nonetheless, PETA (People for the Ethical Treatment of Animals) recently filed a complaint in a San Diego United States District Courthouse, alleging that Sea World was enslaving orca killer whales in violation of their right not to be enslaved under the Thirteenth Amendment.
The complaint is filed by the “next friends” of the plaintiffs, five SeaWorld owned whales. The next friends is a group of activists that includes Ric O’Barry, a former orca trainer and star of the documentary film about dolphin killings, The Cove, a marine biologist, an animal rights activists, and two former sea world trainers. In the complaint, this group alleges that they have standing because the whale-plaintiffs are “inaccessible and incapacitated.”
SeaWorld has called the complaint “baseless and in many ways, offensive” for attempting to extend the Thirteenth Amendment’s “solemn protections” in this manner.
It seems pretty clear that this complaint is going to be dismissed. Standing alone is an issue, as courts typically focus on the legality of human conduct in animal rights cases without recognizing animals as plaintiffs or defendants. Obviously the larger issue is whether a federal court, and ultimately the Supreme Court, is going to expand the protections of the Thirteenth Amendment to include non-humans.
The answer to this question is almost definitely “no,” although PETA makes an effort to argue otherwise in its complaint. PETA points out that the Thirteenth Amendment does not explicitly use the words “person.” Further, it cites precedent showing that the Supreme Court considers the Thirteenth Amendment to be broader than its historical context of African Slavery, and now “addresses morally unjust conditions of bondage and forced service existing anywhere in the United States.”
Although these facts may be true, it is unlikely that a Court is going to overlook a copious amount of precedent and extend the protections of the Thirteenth Amendments to animals that are arguably being ”cared for,” at least not harmed, fed, and kept alive. Constitutional expansion aside, given the prevalence of animal servitude in the United States, the Supreme Court is unlikely to wade into this issue at all. If whales are deemed valid plaintiffs for the purposes of the Thirteenth Amendment, what about carriage horses in New York City? If the line can be drawn at entertainment, what about drug sniffing dogs or horses used by the police? Or finally, what about household pets? It will be hard for PETA to argue that this issue is not more appropriately left for the legislature.
Ultimately, PETA probably knows that this complaint will be dismissed and is using this lawsuit to draw attention to an issue that they feel is important, a point SeaWorld has alluded to in its press release. There does seem to be a growing body of evidence indicating that keeping whales who are used to swimming hundreds of miles a day constantly surrounded by their families, in solitary tanks sometimes only two or three times their size is unspeakably cruel. The case of Tilikum, one of the five plaintiffs in PETA’s lawsuit, is especially troubling: since his captivity, Tilikum has become increasingly anti-social and aggressive, and he is now responsible for the deaths of 3 trainers. But at the end of the day–as SeaWorld has pointed out–they are in compliance with all relevant licensing and thus not breaking any laws. I for one would be interested to see legislation that deals directly with this issue. Hopefully, this complaint will give PETA or other animal activists the momentum they need to bring this legislation to congress.
– Alexandra Pichette
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