Briefing Report: Set the Orcas Free!

Wednesday, February 29, 2012

Animal rights have been a matter of controversy for a number of years. Many of its advocates pursue an incremental approach to securing those rights.  A recent case was filed on the novel legal theory, “Shamu’s descendants are slaves!” Unfortunately, the judge’s decision contains unnecessary language, which might advance that agenda.

The Lawsuit

On October 25, 2011, People for the Ethical Treatment of Animals (PETA) and five individuals (collectively Next Friends) filed a complaint in federal court in San Diego against two Sea World entities on behalf of the orcas (Tilikum, Katina, Corky, Katsaka and Ulises) which perform at Sea World locations in California and Florida.  They alleged the retention of the orcas in captivity violates the slavery and involuntary servitude provisions of the Thirteenth Amendment.  Next Friends contend that the orcas are being held as slaves because they are (1) held physically and psychologically captive; (2) without the means of escape; (3) separated from their homes and families; (4) unable to engage in natural behaviors and determine their own course of action or way of life; (5) subjugated to the will and desires of Sea World; (6) confined in unnatural, stressful and inadequate conditions; and (7) subject to artificial insemination or sperm collection for the purposes of involuntary breeding.

Motion to Dismiss

Sea World filed motions to dismiss the complaint based on the arguments that (1) the court lacked jurisdiction because the plaintiff orcas were not people protected under the Thirteenth Amendment and (2) the complaint failed to state a claim for relief.

Arguments on the Motion

The Next Friends, in opposition to the motion to dismiss, conceded that the Thirteenth Amendment, until now, only applies to persons, but asked the court to broaden its scope to include orcas.  However, in arguing for the creation of new rights for the orcas, Next Friends identify that constitutional principles have been extended over the years to apply to changing times and conditions.  They cite numerous authorities in the context of the right to privacy, separate but equal doctrine, sex discrimination, and evolution of constitutional protections for criminal defendants.

The primary difficulty with Next Friends' argument for the expansion of the scope of the Thirteenth Amendment is that the Amendment is not reasonably subject to an expansive interpretation.  For example, the above cited authorities challenged the Fourteenth Amendment's "due process" or "equal protection" clauses, or the Eighth Amendment's “cruel and unusual punishment” clause.  As noted by Next Friends, what constitutes "due process," "equal protection," or "cruel and unusual punishment," are fundamental constitutional concepts subject to changing conditions and evolving norms of our society.  However, that is not the case with the Thirteenth Amendment.  Unlike the other constitutional amendments relied upon by Next Friends, the Thirteenth Amendment targets a single issue: the abolition of slavery within the United States. The Amendment's language and meaning is clear, concise, and not subject to the vagaries of conceptual interpretation - "Neither slavery nor involuntary servitude…shall exist within the United States or any place subject to their jurisdiction."  As "slavery" and "involuntary servitude" are uniquely human activities, there is simply no basis to construe the Thirteenth Amendment as applying to non-humans.

Judge’s Decision

In deciding the motion to dismiss, the judge observed Next Friends "are asking the Court to find that the specific acts of domination, exploitation, and coercion to which they [the orcas] are subjected are repugnant to the Thirteenth Amendment."  The court began its inquiry into the Thirteenth Amendment by looking at the Amendment's plain and ordinary meaning, historical context, and judicial interpretations.

The Amendment gave Congress the power to enforce this article by appropriate legislation. This court's inquiry is straight-forward. The only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas. Both historic and contemporary sources reveal that the terms "slavery" and "involuntary servitude" refer only to persons. In 1864, the term "slavery" was defined as "the condition of a slave; the state of entire subjection of one person to the will of another."  The Supreme Court made clear that the phrase "servitude" applies only to persons and noted that "servitude" is qualified by the term "involuntary" - "which can only apply to human beings."  The clear language and historical context reveal that only human beings, or persons, are afforded the protection of the Thirteenth Amendment.

Further support that the Thirteenth Amendment applies only to persons is found in the qualifying phrase "except as a punishment for crime." The Supreme Court noted that the "punishment for crime" language "gives an idea of the class of servitude" or slavery that is meant by the Amendment. As only persons are subject to criminal convictions, the Amendment was designed to apply to persons.

Judge Miller concluded “even though plaintiffs lack standing to bring a Thirteenth Amendment claim, that is not to say that animals have no legal rights; as there are many state and federal statutes affording redress to plaintiffs, including, in some instances, criminal statutes that ‘punish those who violate statutory duties that protect animals.’ While the goal of plaintiffs in seeking to protect the welfare of orcas is laudable, the Thirteenth Amendment affords no relief to plaintiffs.”

Animal have rights really?

Although Judge Miller decided this bizarre case correctly, his ultimate paragraph provides a basis for further litigation when he wrote “that is not to say that animals have no legal rights.”  Animal rights activists intend to proceed incrementally to attain recognition of animals’ rights.  The laws to which he refers confer no “right” on an animal, instead they merely limit the rights of how humans can treat animals.  For example, animals should not be treated cruelly or with undue pain.  Many cases which are characterized as “creating rights for animals” in reality actuate and fulfill a human’s right to dispose of property.  A prime example is the case in which a woman, in her will, provided millions for the care and treatment of her surviving dog.  The court followed probate and trust law precedents to recognize her right to dispose of her property but it did not recognize the dog’s rights to it.

Ultimately, we cannot know how courts will decide this argument.   Will the recognition of animal rights, to any extent, result in the lowering of the rights of humans?  It seems to be a reasonable concern.  Steven Wise, a prominent advocate for the rights of animals, has written that “the law’s traditional dichotomy between humans and animals is a vestige of bad science and of a hierarchical tendency that put men over animals just as it put free men over slaves.”  What kind of a philosophy or law sees an animal park orca as the equivalent of a human?  The kind that sues to free orcas from slavery, which could lead to a frightening future.

For more information on this report or other Judiciary issues, contact Mike Petersen, Senate Republican Office of Policy at 916/651-1501.