Dangerous Metaphors: Are Sea World's Killer Whales 'Slaves'?

PETA's Thirteenth Amendment lawsuit risks trivializing both slavery and the question of animal rights

Some might think this photo depicts a slave laboring as its master watches on (milan.boers/Flickr)
"When the Founding Fathers created the Constitution of the United States," thunders Marina Sirtis in a remarkably strange recent movie, "it was to protect the rights of human beings, not octopi."
The movie is InAlienable, produced and sent direct-to-video in 2008. The film portrays a research scientist (Richard Hatch) who (never mind how) manages to give birth to a human-alien hybrid creature. The alien baby is immediately seized by government agents and hustled off to durance vile. This being America, Hatch retains counsel and sues for a writ of habeas corpus, setting off the courtroom confrontation between his whimsical lawyer (Erick Avari) and the "deputy attorney general" played by Sirtis. (For those scoring at home, Sirtis was Counselor Troi, the beguiling Betazoid therapist in Star Trek: The Next Generation; InAlienable also features cameos by Walter Koenig -- Mr. Chekhov in the original Star Trek -- and Tim Russ --Tuvok in Star Trek: Voyager. For Con Law trivia fans, the film also grants a speaking part to Randy Barnett, star Georgetown Law professor and currently a member of the team challenging the Affordable Care Act.)
We never get a ruling in the case, I suspect because Koenig, who also wrote the screenplay, couldn't figure out how to resolve things. But at film's end, Hatch is morosely back at his previous scientific labors -- infecting laboratory monkeys with HIV. Remarkably, no one in the film seems to notice the irony.
InAlienable came to mind when I read that People for the Ethical Treatment of Animals had filed a lawsuit in federal District Court charging that Sea World Parks & Entertainment had violated the Constitution by holding orcas (killer whales) as performers in their Florida and California theme parks.
This captivity, PETA charges, violates the Thirteenth Amendment, which states 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."
Reaction to the lawsuits has mixed ridicule with outrage. "PETA's comparison of SeaWorld and slavery insults the remains of hundreds of thousands of slaves who are buried across the American South," said Deroy Murdock, a syndicated columnist and chair of the Project 21 black leadership network sponsored by the venerable National Center for Public Policy research. Elie Mystal, writing in Above the Law, began with outrage:
Animals are not people. If a PETA person had been sitting next to me when I wrote that, he'd smugly say: "You know, some people said the same thing about black people 200 years ago." At that point, I would grab the PETA person by the neck with my left hand, pimp slap him across his face with my right hand, throw him down on the ground, and then bellow: "How dare you, sir!"

She then segued to ridicule -- "'Cause, let's be honest here, you know what an orca would like to be "free" to do to his PETA lawyer Jeffrey Kerr? Eat him. His clients would like to make a Jeffrey Kerr freaking sandwich." (Orcas in packs, by the way, have been known to hunt and kill great whales to eat their tasty tongues, but they have never been known to eat humans, with or without rye bread and a pickle.)
I'm not sure either reaction is quite right. The PETA lawsuit raises no viable legal issues at all--PETA's counsel will be lucky if the federal judge says "Throw that man a fish!" before dismissing the case. But the task of understanding the Thirteenth Amendment is part of our unfinished business as a society; so, too, is the question of human responsibility toward our fellow creatures. They are both important questions, and quite distinct. Blurring them isn't going to move us forward in any way.
Start with the amendment. In many ways, it's the most radical and humane provision ever written into our fundamental law. Most of the Constitution is focused on what government can and can't do. Congress may appropriate funds and the executive can spend them; Congress and the president can't ban freedom of speech. Beyond the Constitution's reach is a vast realm of private dealings between citizens. But under the Thirteenth Amendment, slavery and involuntary servitude "shall not exist." When one citizen holds another in slavery, whether by law or not, the slavemaster is directly violating the Constitution; and government has both the duty and (under Sec. 2 of the Amendment) the power to halt this private crime.
That to me is the problem with attacking PETA for "insulting" the memory of enslaved African Americans. The Thirteenth Amendment was inspired by their suffering, but it's not about memory. "Shall not exist" is forward looking; to confine its command to history understates our responsibility today. The fight against enslavement and involuntary servitude is far from won. Serious people are trying to apply the Thirteenth Amendment to contemporary problems like human trafficking, exploitation of children, and migrant farm labor. If the Thirteenth Amendment is only about American chattel slavery, then defenders of the status quo can dismiss and ridicule those arguments.
But those critics are correct that for PETA to equate animals with slaves is profoundly reactionary. It's a metaphor, and once let loose it can be damaging. George Fitzhugh, one of the leading apologists for slavery, in 1854 mocked Jefferson's arguments for human equality by writing "men are not 'born entitled to equal rights!' It would be far nearer the truth to say, 'that some were born with saddles on their backs, and others booted and spurred to ride them,' -- and the riding does them good." The Thirteenth Amendment embodied the revolutionary idea that all human beings are human in every significant way -- no saddles, no boots, no connection to the plantation. But animals can't be "equal" to human beings, not because humans are "speciesist" but because the very idea of equality is meaningless in that context. If we begin to analogize animals to slaves at all, we run the risk of sliding back into a very dangerous mode of thought.
At the same time, laughter isn't the answer; the moral aspect of our treatment of animals needs more attention than it gets. PETA is good at grabbing headlines, but often offers people a chance to deflect its genuine concerns by expressing them in gimmicky and distasteful ways. It's hard to take anything about them seriously after their ad displaying Sherlyn Chopra semi-nude with a chain around her ankle and the legend WHIPS AND CHAINS BELONG IN THE BEDROOM, NOT IN THE CIRCUS.
The issue of human-animal relations deserves more seriousness than either side brings to it currently; so does the issue of slavery and freedom in the contemporary world. The answer won't lie in blurring the issues. The simple fact is that animals -- even appealing ones like orcas and dolphins -- can't have legal rights. That's not because of anyone's "original intentions," but because rights imply that their holder has the agency to invoke them (PETA's suit is brought by the orcas' "next friends," who are humans seeking to convince the court to create a special relationship to the animals) and the capacity to follow the obligations that come with them. If humans come to understand and value animals more -- as I hope we will -- it will not be because they have "rights," but because we have more understanding of our place in the world. The way we treat animals is about the way we define ourselves, not about them.
Human equality -- the removal of coercion and exploitation from our daily lives -- is an imperative if we want to live in a truly free and democratic world. Humane treatment of animals is important if we are to realize our own moral natures. Confusing the two -- equating orcas with slaves, for example -- risks diluting both impulses, and turning serious challenges into gimmicks.