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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2 Responses to Willy’s 1983 Claim: PETA’s Allegations of Unconstitutional Whale Enslavement

  1. David Rutenberg says:

    Agreed. I too am an animal defender, but I wonder who, outside of the organization itself, is PETA trying to appeal to in students like this. Certainly there are going to be the hardcore PETA followers – but they’re already part of the fold. So are they trying to appeal to people who believe in the issue who are just not engaged? To moderates on the issue?

    It seems to me that for most everyday people who care about animals – the dog owners, the people who will stop traffic for a family of duckings – these tactics will alienate them from the cause. If actions like these are what people sitting on the fence see as the median animal rights activism, it will endure them to get off the fence and onto the other side.

    I am sure that PETA has a more silent lobbying arm or also files complaints based on relevant law, but I wonder if the organization hurts animal rights more than helps it in cases like this.

  2. Joanna Collins says:

    As someone who cares deeply about eradicating animal cruelty, I find lawsuits like this to be truly offensive and counterproductive. In my personal estimation, it is unlikely that PETA filed this claim in good faith, as there is no real support for extending existing law to cover animals in this way. While the goal of drawing attention to the issue of animal cruelty may be admirable, the court system is not the appropriate avenue to do so. Unless PETA believed in good faith that there was a reasonable basis for a claim of “animal enslavement”, it should not misuse the Constitution in this manner.

    If PETA had filed the claim under relevant animal cruelty laws, rather than the Thirteenth Amendment, this lawsuit would not be such an affront to the Constitution and the California court system. However, to suggest the use of the Thirteenth Amendment in this way seems to cheapen to function it serves in protecting human freedom.

    Thank you for such an interesting and provocative read!