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Five Orcas, Five Slaves or Five Persons?

• February 02, 2012 • 5:16 PM

PETA’s lawsuit on behalf of five orcas at SeaWorld could end in a splash or a belly flop for animal rights.

In late December we asked the provocative question “Should Animals Be Considered People?” in exploring the philosophy of legal scholar Steven Wise. Since 1984, Wise has followed a 25-year plan to have animals declared “legal persons” and afforded basic common law rights.

As we wrote then, “He hopes to bring the first lawsuit in 2012. A case, he says, will not be hard to find, although the exact plaintiff — circus elephant, research lab primate? — hasn’t been determined.”

An adjunct professor at Oregon’s Lewis and Clark Law School, Wise is the founder and president both of the Center for the Expansion of Fundamental Rights and the Nonhuman Rights Project, the world’s first nonprofit dedicated to achieving legal rights for nonhuman primates. The rights project currently comprises dozens of political scientists, sociologists, psychologists, lawyers, statisticians, cognitive scientists, primatologists, cetacean experts, public policy experts and others working quietly to ready the most powerful lawsuit they can. They are working to identify judges and jurisdictions that have previously shown themselves open to considering and embracing legal change. The lawsuit, Wise emphasized, had to be exactly right or it would be doomed to fail.

Last week Wise moved, not on his own lawsuit but as a so-called “friend of the court” in a previously filed case where the plaintiffs are “Tilikum, Katina, Corky, Kasatka and Ulises, five orcas.” And while the center’s amicus curiae motion and Wise’s individual affidavit have been accepted by the court, neither the defendants nor the group representing the plaintiffs want him involved.

In October 2011, the animal rights activists’ group, People for the Ethical Treatment of Animals, jumped the gun in Wise’s eyes by filing a federal lawsuit against SeaWorld and its theme parks in San Diego and Orlando claiming the orcas were subject to “involuntary servitude.” The orcas regularly entertain crowds at SeaWorld’s theme parks. And the PETA humans behind the lawsuit, three marine-mammal experts and two former trainers — the orcas’ “next friends,” in legal parlance — want to see the five relocated from confined spaces to suitable sanctuaries.

“All five of these orcas were violently seized from the ocean and taken from their families as babies,” PETA President Ingrid E. Newkirk was quoted in a statement. “They are denied freedom and everything else that is natural and important to them while kept in small concrete tanks and reduced to performing stupid tricks. The 13th Amendment prohibits slavery, and these orcas are, by definition, slaves.” That the 13th Amendment applies only to people, does seem to present a problem.

Wise agrees with PETA that the orca plaintiffs are, in moral terms, enslaved, and he sympathizes with PETA, but he is against the group’s constitutionally based case. He considers it ill conceived, impossible to win, and capable of damaging future animal rights law cases.

Wise explained in a statement that the Rights Project’s purpose is “to ensure that the orcas’ best interests are being properly represented, their legal status is advanced, and that an unfavorable ruling inflicts the least possible harm on the development of an animal rights jurisprudence.”

He’s not surprised at SeaWorld’s opposition to the Rights’ Project’s intervention in a case they might feel is already a slam dunk in their favor. SeaWorld has called PETA’s suit “baseless and in many ways offensive,” and a “publicity stunt.”

In his own way, Wise tends to agree with that latter point. He surmises PETA is plowing ahead because “it wants the case ‘to go down in history as the first time that a U.S. court considers constitutional rights for animals.’ Winning is beside the point.” But losing, he adds, won’t help the orcas and likely won’t aid in building a foundation for “viable animal rights jurisprudence.”

Since the five orcas were forcibly removed from the coastal waters of Iceland and British Columbia, Wise argues that those are still their legal domiciles. And he contends those nation’s laws must determine whether or not the orcas have the capacity to sue and are “incompetent persons.” For Corky, that means the law of British Columbia. For Tilikum, Katina, Kasatka and Ulises, it’s the law of Iceland. This, he says, would have to precede “the issue of whether the orcas are slaves within the meaning of the 13th Amendment.”

On January 26, over the objections of PETA and SeaWorld, District Court Judge Jeffrey T. Miller granted the Rights Project’s request. SeaWorld has moved to dismiss PETA’s case and on January 13, PETA filed a brief opposing its motion. Oral arguments will be heard Monday.

Sue Russell
Journalist Sue Russell's work has appeared internationally in such publications as The Washington Post, New Scientist and The Independent. She is the author of Lethal Intent, a biography of executed serial killer Aileen Wuornos.

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