Menus Subscribe Search

Follow us


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.

More From Sue Russell

A weekly roundup of the best of Pacific Standard and PSmag.com, delivered straight to your inbox.

Recent Posts

October 2 • 5:00 AM

Give Us This Day Our Daily Brands

Researchers find identifying with brand-name products reduces religiosity.


October 2 • 4:00 AM

Why Can’t Anyone Break the Women’s Marathon Record?

Paula Radcliffe set the world record in 2003. Since then? No one’s come within three minutes of her mark.


October 1 • 2:00 PM

Most People With Addiction Simply Grow Out of It. Why Is This Widely Denied?

The idea that addiction is typically a chronic, progressive disease that requires treatment is false, the evidence shows. Yet the “aging out” experience of the majority is ignored by treatment providers and journalists.


October 1 • 1:00 PM

Midlife Neuroticism Linked to Alzheimer’s Disease in Old Age

New research from Sweden suggests that the personality dimension is connected to who ultimately suffers from late-in-life dementia.



October 1 • 11:11 AM

The Creative Class Boondoggle in Downtown Las Vegas

On Tony Hsieh and the pseudoscience of “collisions.”


October 1 • 9:14 AM

Mysterious Resting State Networks Might Be What Allow Different Brain Therapies to Work

Deep brain stimulation and similar treatments target the hubs of larger resting-state networks in the brain, researchers find.


October 1 • 6:00 AM

Would You Like a Subscription With Your Coffee?

A new app hopes to unite local coffee shops while helping you find a cheap cup of good coffee.


October 1 • 4:00 AM

How to Plant a Library

Somewhere outside of Oslo, there are 1,000 newly planted spruce trees. One hundred years from now, if everything goes to plan, they’ll be published together as 100 pieces of art.



September 30 • 10:09 AM

Trust Is Waning, and Inequality May Be to Blame

Trust in others and confidence in institutions is declining, while economic inequality creeps up, a new study shows.


September 30 • 8:00 AM

The Psychology of Penmanship

Graphology: It’s all (probably) bunk.



September 30 • 6:00 AM

The Medium Is the Message, 50 Years Later

Five decades on, what can Marshall McLuhan’s Understanding Media tell us about today?


September 30 • 4:00 AM

Grad School’s Mental Health Problem

Navigating the emotional stress of doctoral programs in a down market.


September 29 • 1:21 PM

Conference Call: Free Will Conference


September 29 • 12:00 PM

How Copyright Law Protects Art From Criticism

A case for allowing the copyright on Gone With the Wind to expire.


September 29 • 10:00 AM

Should We Be Told Who Funds Political Attack Ads?

On the value of campaign finance disclosure.


September 29 • 8:00 AM

Searching for a Man Named Penis

A quest to track down a real Penis proves difficult.


September 29 • 6:00 AM

Why Do So Many People Watch HGTV?

The same reason so many people watch NCIS or Law and Order: It’s all a procedural.


September 29 • 4:00 AM

The Link Between Depression and Terrorism

A new study from the United Kingdom finds a connection between depression and radicalization.


September 26 • 4:00 PM

Fast Track to a Spill?

Oil pipeline projects across America are speeding forward without environmental review.


September 26 • 2:00 PM

Why Liberals Love the Disease Theory of Addiction, by a Liberal Who Hates It

The disease model is convenient to liberals because it spares them having to say negative things about poor communities. But this conception of addiction harms the very people we wish to help.


September 26 • 1:21 PM

Race, Trust, and Split-Second Judgments


September 26 • 9:47 AM

Dopamine Might Be Behind Impulsive Behavior

A monkey study suggests the brain chemical makes what’s new and different more attractive.


Follow us


Mysterious Resting State Networks Might Be What Allow Different Brain Therapies to Work

Deep brain stimulation and similar treatments target the hubs of larger resting-state networks in the brain, researchers find.

Trust Is Waning, and Inequality May Be to Blame

Trust in others and confidence in institutions is declining, while economic inequality creeps up, a new study shows.

Dopamine Might Be Behind Impulsive Behavior

A monkey study suggests the brain chemical makes what's new and different more attractive.

School Counselors Do More Than You’d Think

Adding just one counselor to a school has an enormous impact on discipline and test scores, according to a new study.

How a Second Language Trains Your Brain for Math

Second languages strengthen the brain's executive control circuits, with benefits beyond words.

The Big One

One company, Amazon, controls 67 percent of the e-book market in the United States—down from 90 percent five years ago. September/October 2014 new-big-one-5

Copyright © 2014 by Pacific Standard and The Miller-McCune Center for Research, Media, and Public Policy. All Rights Reserved.