By Kathy Guillermo
What excuse is given for denying some beings the protection afforded by the law? At various times in history, it has been race, gender, religion, age, sexual orientation or ethnicity. All these reasons boil down to essentially the same thing: Those other beings—the ones who were denied their rights to freedom, to marry whom they chose, to be educated, to worship as they wished, to work at the jobs of their choosing—were different from those in charge. The differences were more important than the similarities until someone went to court to challenge it.
This is what happened last month in the U.S. District Court in San Diego. But in this case, the difference is species. For the first time ever, a federal court considered whether or not a Constitutional amendment applies to five orca whales enslaved by SeaWorld.
There is no question that these five animals are being held in involuntary servitude. They need and deserve the protection afforded by the Constitution.
Plaintiffs Tilikum, Katina, Kasatka, Ulises and Corky—orcas now confined to suffocatingly small concrete tanks at SeaWorld in Orlando, Florida, and San Diego—were heard through their attorneys in this first-ever case to assert that a constitutional right should extend to nonhuman animals. The legal team, led by People for the Ethical Treatment of Animals (PETA) general counsel Jeffrey Kerr and PETA’s outside litigation counsel, civil rights attorney Philip Hirschkop—who argued the landmark Loving v. Virginia case that declared unconstitutional the laws banning interracial marriage—argued that SeaWorld is holding the orcas against their will in violation of the 13th Amendment to the U.S. Constitution’s ban on slavery. The suit was brought on the orcas’ behalf by PETA, three marine-mammal experts and two former SeaWorld trainers.
In this case, as in the others, what matters is not the difference between the enslaved and the enslavers. As Mr. Kerr stated in court, slavery does not depend on the species of the slave any more than it depends on race, gender or ethnicity. “Coercion, degradation and subjugation characterize slavery, and these orcas have endured all three,” he argued.
Indeed they have. These intelligent, complex orcas, who have their own language and customs that they would pass on to their young and who should be swimming a hundred miles every day, have instead spent three decades incarcerated in tiny pens and being ordered by humans in orca-colored wetsuits to leap for dead fish. They were forcibly taken from their families and homes and are held captive at amusement parks where they are denied everything in life that matters to them. They cannot make the simplest choices for themselves. They cannot eat, associate with others of their own kind or even swim except when allowed to by their captors. They have involuntarily lined the pockets of SeaWorld’s owners and have been subjected to artificial insemination or sperm collection in order to breed more performers for more SeaWorld shows for more profit.
This is the very definition of slavery.
When human animals violate the 13th Amendment, it should not matter that the enslaved are nonhuman animals. The five orcas have had one day in court in this precedent-setting case. They deserve more. They deserve their freedom.