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‘Orcas as Slaves’ Argument Sinks

• February 09, 2012 • 2:33 PM

An effort to identify five performing orcas as slaves failed in part, argues one scholar, because there’s no legal precedent establishing them as persons.

Approaching Abraham Lincoln’s birthday, we now know that the Great Emancipator did not free the orcas. So ruled U.S. District Judge Jeffrey Miller on Wednesday, as he rejected an attempt to use the U.S. Constitution’s 13th Amendment to free five performing animals at SeaWorld.

The advocacy group PETA had sued SeaWorld, claiming that the five orcas — always referred to by the names Tilikum, Katina, Corky, Kasatka, and Ulises so as to emphasize their putative personhood — were being held in involuntary servitude, which violates the amendment enacted just after the Civil War to outlaw slavery. SeaWorld’s response was that this concept defied common sense, and that the suit was a publicity stunt.

The judge appeared dubious, according to a reporter Tony Perry with the Los Angeles Times, especially when PETA claimed the suit, if successful, would NOT open the door to similar cases. “Call me ‘hysterical,’” Miller said, echoing PETA’s characterization of that fear, “but that’s one of the first places I went in my thinking about this case.”

Legal scholar Steven Wise, for one, would love to see current human-based precepts advanced to animals. And that’s why Wise, who filed a generally unwelcome friend of the court brief in the case, remains unhappy with PETA’s “fool’s errand.”

As he was quoted in a release from his Nonhuman Rights Project , Wise said “PETA wrongly believed it did not need to prove that an orca was a legal person, so it failed to be ready to prove that an orca is a ‘person.’ Worse, it actually opposed our legal arguments that an orca is indeed a ‘person,’ thus creating a roadblock that we will have to overcome in the future.”

Our Sue Russell examined Wise’s arguments, and the burgeoning field of animal legal rights, in her December 2011 piece, “Should Animals Be Considered People?” He plans to continue his efforts, even as he urges PETA to desist from theirs, and as concerns similar to Judge Miller’s doubts arise.

As Russell wrote: “Critics warn that the impact of ‘personhood’ could go far beyond scientific research to preclude certain animals being kept as pets or used as food. They ask where the line will be drawn. Might bacteria have rights? That’s what University of Chicago law professor Richard A. Epstein asked in a 1999 New York Times editorial, noting that, “there would be nothing left of human society if we treated animals not as property but as independent holders of rights.”

What might Abe have said?

Michael Todd
Most of Michael Todd's career has been spent in newspaper journalism, ranging from papers in the Marshall Islands to tiny California farming communities. Before joining the publishing arm of the Miller-McCune Center, he was managing editor of the national magazine Hispanic Business.

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