Sunday, February 12, 2012

The Curious Case of Whale Enslavement

Sean Ewart

“Neither 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 13th Amendment

These are the words which, upon ratification on December 6, 1865, abolished slavery in the United States of America. A truly momentous occasion for a nation whose brief history had been scarred by the racial injustice which was the bonded servitude of one race to another. Yet a California court has recently heard, and thrown out, a case involving accusations of slavery. It wasn't human trafficking Mexican Coyotes or even pimps pushing prostitutes to politicians who were on the receiving end of the lawsuit, however, rather it was SeaWorld. And it wasn't custodians working around the parks for minimum wage who were being exploited at slaves, according to the People for the Ethical Treatment of Animals (PETA), but five killer whales. Seriously.

“This case is on the next frontier of civil rights,” said attorney Jeffrey Kerr, representing PETA in this case. “For the first time in our nation's history, a federal court heard arguments as to whether living, breathing, feeling beings have rights and can be enslaved simply because they happen to not have been born human. By any definition these orcas have been enslaved here.” The logic of the case is simple enough. Five killer whales, oarcas, were captured in the wild and “enslaved” by SeaWorld, being forced to preform for a human audience who reveled in their misery and captivity. It is, from the perspective of PETA, a clear cut example of slavery; of human will being forced on a (relatively) helpless animal.

Before simply writing off this case as a further example of the lunacy of PETA, we should take a moment to reflect. As a student of evolution and a humanitarian, the idea that we, humans, should not abuse killer whales merely because they did not have the fortune to be born human resonates with me. Richard Dawkins said, “We admit that we are like apes, but we seldom realize that we are apes.” And indeed, if we travel back far enough on the evolutionary tree of life of which we are but the most recent appendage, we find that we not only are like animals, but we are animals. Extending basic decency to our fellow animals should not be too great a burden. The goals of the Great Apes Project, for example, stand out to me as being particularly well grounded:

GAP is an international movement that aims to defend the rights of the non-human great primates - chimpanzees, gorillas, orangutans and bonobos, our closest relatives in the animal kingdom. The main rights are: the right to life, the protection of individual liberty and the prohibition of torture.”

In our interactions with our fellow animals, we should be mindful of the fact that they, too, feel pain and pleasure (to varying degrees), and we should do what we can to limit the former and enhance the latter.

Returning to PETA's lawsuit, it can safely be said that it is reasonable to endeavor to treat animals, including killer whales, with decency. However, applying the 13th Amendment is absurd. To begin with, what is critical about the abolition of slavery is that it abolishes the enslavement of one human by another. Should PETA's lawsuit prevail, ever, it would establish a precedent that would soon see dog owners punished as slaver owners. Moreover, why stop with the 13th Amendment? Why not extend constitutional protection to the entirety of the animal kingdom? Should whales be allowed to seek public office and bear arms?

No. Why not? Because they are neither physically nor mentally capable of either holding public office or bearing arms (whales in particular would find it challenging to operate a Glock). This is not discrimination, it is observation. It is indeed an evolutionary fluke (pun only partially intended) that a killer whale is born a killer whale, but it is a reality all the same, and one which we would be idiotic to ignore. Putting Free Willy in charge of the CIA would be a questionable move at best.

This is shockingly obvious in the case of Tilikum the whale – one of the five whales signaled out by PETA as being a victim of slavery and worthy of constitutional protection. Tilikum has, over the past two decades, killed three people. If Tilikum is given constitutional protection, could the whale also be charged for murder? Of course not, because the whale is not mentally capable of committing murder in the sense that a human is. Whales are not cognizant of, nor are they are partial to, the conditions of human life which have made intra-species killing “wrong.” They are, as far as the law is concerned, forces of nature, and deaths by them are tragedies – but nothing more. 


Judge Miller, who heard the case, was quick to point out that “The only reasonable interpretation of the 13th amendment's plain language is that it applies to persons, and not to non-persons such as orcas.” However, while the case was thrown out on February 8, the decision in no way diminished the whales rights to be treated with respect. In the case of our fellow apes, there has been a global awakening to their plight in laboratories and circuses which has lead to various laws protecting them. A Spanish resolution, passed in 2008, offers a prime example:

The resolution “gives great apes the right to life and protects them from harmful research practices and exploitation for profit, such as use in films, commercials, and circuses and freedom from arbitrary captivity and protection from torture.”

PETA is shockingly absurd in their claims that captive whales are slaves in the same sense as Africans were in 1850's America. Kerr's assertion that “slavery doesn't depend upon the species of the slave, any more than it depends upon the race, gender or ethnicity of the slave,” is downright ignorant and devoid of any real meaning (again, are PETA and Kerr also against, say, cat owners?). But perhaps we should take a second look at the conditions in which we keep those creatures over whom we possess power; those fellow animals of ours which, by evolutionary chance, we happen to hold coercive and potentially destructive power over. Humans have become the accidental custodians of the world and her many and diverse inhabitants – it is time to demonstrate our merit.

Footage of Chimps seeing daylight for the first time after 
30 years undergoing scientific testing:

For more on environmentalism, read: Adapting to Climate Change


  1. "again, are PETA and Kerr also against, say, cat owners?" Ha! I'm pretty sure the cats own us.

    Good discussion. I'm glad you teased out the legitimate issues from the bizarre.

  2. Whales can't be compared to dogs and cats because you can't domesticate a whale. I'm with PETA on this I think it's tragic for such a majestic animal to be used by corporate America to make a profit. I'll never step foot in Seaworld and I'll look down upon those who do. Yay you trained a whale to jump through a hoop. I hope he eats you. Humans are selfish.