PETA’s Slavery Lawsuit – a Setback for Animal Rights

The Nonhuman Rights Project has a different approach

“Hey kids, let’s put on a show!”
“We can use my Dad’s barn!”
Mickey Rooney and Judy Garland played out scenes similar to this one from Babes in Toyland in half a dozen films. Inevitably, within a few days, a Broadway-quality smash always emerged within Dad’s decaying barn.

I was reminded of these scenes when I read that PETA had filed a complaint in a California federal district court alleging that SeaWorld was enslaving its captive orcas in violation of the orcas’ rights under the Thirteenth Amendment to the United States Constitution. Section One of that Amendment provides that “(n)either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The Associated Press reported that PETA’s team of five lawyers believes their suit was the first ever filed in federal court seeking constitutional rights for members of a nonhuman animal. There are good reasons why no one has ever filed such a suit. Alas, it is a sure loser, one more likely to set back the struggle to establish genuine legal rights for nonhuman animals than to protect the orcas in SeaWorld’s control. Instead PETA decided to “put on a show.”

The idea of suing under the 13th Amendment is not original. I have been teaching “Animal Rights Law” and “Animal Rights Jurisprudence” at law schools across the United States, including Harvard Law School, for 21 years. Each time I teach, a couple students come up with the not-very-novel idea that, perhaps, someone should file a lawsuit that claims that a nonhuman animal is being enslaved in violation of her rights under the Thirteenth Amendment. I patiently wait for this suggestion to be made each semester, so that the entire class can discuss it and conclude for itself why it’s not a good idea.

I began my book Rattling the Cage – Toward Legal Rights for Animals with the story of Jerom, a teenage chimpanzee who died a terrible death after being infected with the AIDS virus at the Yerkes Regional Primate Center. Professor Laurence Tribe wrote in his review: “Clearly Jerom was enslaved. I am not suggesting that judges would so read the Thirteenth Amendment.” Professor Tribe was stating a truth most lawyers understand: the same word may mean different things in different contexts and there may be a world of difference between what a word means in its common usage and what it means when used in a constitution. The claim that an orca is enslaved within the meaning of the Thirteenth Amendment is unlikely even to receive a single vote from a federal appellate court in 2011. It is unthinkable that the present United States Supreme Court would agree.

There are three major problems with filing such suits as “a show.” First, they create unfavorable law where no law previously existed and erect an obstacle that lawyers who are not putting on a show, but who are litigating to win, will be later forced to overcome. Second, the public, including perhaps some judges, may confuse “a show” with the real McCoy. Third, the PETA suit was sloppily drafted, twice confusing common law with the Supreme Court’s interpretation of the 13th Amendment. Securing legal personhood and legal rights for any nonhuman animal will be a struggle. Judges need to believe they can depend upon us to educate them.

Here at the Nonhuman Rights Project we have spent years preparing the real McCoy. Dozens of volunteers from the disciplines of law, sociology, political science, natural science, mathematics, and others have invested more than 25,000 hours researching, writing, and vigorously debating how best to extend the status of “legal person,” the capacity to possess any legal right at all, to even a single nonhuman animal. Early on we dismissed the idea of claiming that a nonhuman animal had rights under the Thirteenth Amendment in the early 21st Century as counter-productive.

Instead, we have long focused on the sufficiently difficult task of persuading an American state high court that a specific nonhuman animal should be entitled to legal personhood under that state’s common law, which is the law judges make and consciously harmonize with the demands of changing human experience, scientific knowledge, and public morality. In selecting the first of these nonhuman animal plaintiffs, we have been focusing on an orca or dolphin, a chimpanzee, an elephant, or an African Grey Parrot, as scientists have learned that all of these species are conscious, likely self-conscious (know they have minds), may have a theory of mind (understand other minds exist), are autonomous, use language or language-like communication, and display other behaviors that require complex cognition.

Our substantive arguments will echo those that common law judges commonly encounter: liberty, equality, habeas corpus, rational decision-making. Our procedure will not chase the presently-impossible dream of the Thirteenth Amendment. Instead the Nonhuman Rights Project will follow the path that others, English villeins, English and American black slaves, indentured servants and other unfree have won through the centuries in their successful fights for legal rights. The Nonhuman Rights Project is preparing up to ten law review articles for publication that will help lay the necessary legal groundwork for winning

Our goal is to break though the ancient legal barrier that separates all humans from every other animal and persuade high court judges that it would not only be arbitrary to deny at least some nonhuman animals certain fundamental legal rights, but to refuse to do so would undermine the reasons we humans have fundamental rights.

The Nonhuman Rights Project will be filing its first lawsuits in 2013; more will follow. We are well-prepared, well-researched, well-argued, competent, and deadly serious. There is a lot at stake, too much for “a show.”


8 Responses to “PETA’s Slavery Lawsuit – a Setback for Animal Rights”
  1. Michael Kaiser, JD. (Seattle) says:

    I wrote in the San Diego Tribune on-line comment section that it was a loser. Poorly thought out. And most of the other commentators–whether wrongly or not–focused and commented negatively right away on the idea of animals being exactly the same, as viewed by the Constitution, as humans. In fact, it was being laughed at by many. A suit trying to gain rights for animals based solely, and probably at all, on rights clearly–to most people–granted solely to humans through the Constitution or statute has an almost impossible hill to climb in this day in age. As it is, the idea of “personhood,” legal or in the pure sense, as opposed to some variation of–at least terminology-wise–“standing,” is going to have its work cut out for it with general-population thinking that ultimately is manifested–at least also generally–on the bench. That is why laying the ground work with law review articles is an excellent way to seed the matter. I am doing a national CLE teleconference next month on an animal-law topic, and I always find it fascinating interacting with even attorneys around these issues, as many simply are, understandably, very much in the dark as to what the idea of “legal personhood” would actually entail.

  2. Micaela Logan, Marquette University Law School Class of 2014 says:

    This is a fantastic response to the PETA story. I am somewhat of a black sheep in my 1L class, being that MULS is known nationally for its superior sports law program, and not so much for its animal law studies. When the news about the PETA lawsuit broke, I got inundated with questions and looks saying, “Are you animal rights people serious with this one?” I attempted to formulate my own response which highlighted many of your points, but you have stated things in a much more meaningful light than I was able to (and without all of my profanity). I have passed this blog entry along to all those I know who are curious about why anyone thinks this is important, and those who do not understand the difference between animal rights advocates and PETA lawyers. Thank you, Steve!

  3. Amanda says:

    So if this is such a bad idea, does anyone have a good one? I am curious to know how the fight for the cetaceans can be achieved. It is a new day and age, and with all of the knowledge we now have about cetaceans, they should not be the victims of “big money” and held in tanks. They deserve a voice. This abuse must stop, somehow.

    Please enlighten me. Thanks.

    • It would seem to me that under state law, you might be able to argue that an animal may be a legal “person”, just as an entirely fictitious entity called a “corporation” is clearly recognized as a person that can sue and be sued under the law.

      Just as radical organizations like Earth First! have undermined the legitimacy of the environmental movement, PETA has made a mockery of legitimate efforts to assist animals.

      There have been some breakthroughs in animal rights recently in California. I was pleased to see that the a recent case entitled Kimes v. Grosser (2011) the superior court held for the very first time that someone who willfully injures an animal can be held liable for punitive damages. It is a sad case to read, but the result was a breakthrough.

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