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PETA v. SeaWorld – The Aftermath

A leading animal law attorney discusses the fall-out from the judge’s ruling

On Wednesday, Federal Judge Jeffrey Miller ruled against the animal rights group PETA in a suit they had brought against SeaWorld. PETA claimed that five orcas at SeaWorld San Diego were being held as slaves in violation of the 13th Amendment. The judge said that the 13th Amendment didn’t apply since orcas are not “persons.”

After oral argument before the Judge last Monday, PETA’s lead attorney, Jeffrey Kerr, told the media that the case was a great victory for the animals. But animal rights attorney Steven M. Wise, president of the Nonhuman Rights Project, which is preparing to litigate the first cases to gain common law “personhood” for nonhuman animals, says the PETA case did no legal good and actually undermined the development of an emerging animal rights jurisprudence. We asked him to explain why.

Michael Mountain: A lot of people in the animal rights world are saying that even though PETA lost its lawsuit against SeaWorld, it’s a step in the right direction because it got a lot of publicity and people are talking about it all across the world. They believe that at least it accomplished something.

Professor Steven Wise: Sometimes it’s better to do nothing than to do something harmful. The problem with the PETA suit is that it was doomed from the beginning, and we in the Nonhuman Rights Project immediately recognized that.

When you study legal process you learn that the first cases in a new area often tend to take on an unusual level of importance. When you litigate in a novel area, you want to begin with your strongest suits in the most favorable jurisdictions. The rule for the Nonhuman Rights Project is: Win big and, if we must lose, lose small. PETA had virtually no chance of even winning small and a tremendous chance of losing big.

When the Nonhuman Rights Project starts filing cases, we’ll begin by bringing strong claims in advantageous jurisdictions. What PETA did was to bring weak claims in a disadvantageous jurisdiction, and they were quickly and predictably massacred.

A problem now, in the wake of this decision, is that anyone who brings a lawsuit of any kind and argues that a nonhuman animal is a “legal person” is going to have to deal with the fact that a federal court has found that a nonhuman animal is NOT a person. We will overcome that obstacle. But it didn’t have to be erected in the first place. Until yesterday, when the case came down, that obstacle did not exist.

Orcas, slaves and the U.S. Constitution

M.M.: The PETA case was saying that the orcas are slaves under the 13th Amendment. But as I understood it the judge ruled that they can’t be considered slaves in the first place since they’re not persons. Is that right?
Judges, especially federal judges, don’t give a hoot about public opinion. Their job is not to do polling; their job is to apply the law as they see it, even when it’s at odds with public opinion.

Prof. W.: The judge was implicitly and perhaps explicitly saying that the 13th Amendment only applies to humans. We will examine the ruling closely to see if he was saying that the 13th Amendment only applies to persons and orcas aren’t persons, or if he was saying that it only applies to humans and orcas aren’t humans, or if he was implicitly equating persons with humans. In the wake of the famous Citizens United case in which the U.S. Supreme Court reiterated that corporations have First Amendment rights, it is difficult to think he meant the last.

One problem the judge had is that PETA mistakenly believed that they would not have to prove that orcas were “persons.” They weren’t prepared to do that, even though it was the most critical aspect of the suit. The Nonhuman Rights Project understood this from the start, and that’s why we submitted a Friend of the Court memorandum. But being a Friend of the Court only allows one to act narrowly, which was one thing PETA did point out to the judge.

So the judge was left up to his own devices, whereas he should have been carefully educated by PETA’s attorney as to what the term “person” meant and how it could be applied.

What happens if PETA appeals

M.M.: Do you think PETA will appeal this now?

Prof. W.: PETA has an absolute right to appeal to the 9th Circuit Court of Appeals.

If they do, they will lose, and when they lose, they will compound the problem. Yesterday’s ruling affects the law in only one small part of California because it’s just one federal court among many. If PETA goes to the 9th Circuit Court, it will affect the federal law in nine states, including California. And when a lower court in another circuit is confronted with a similar case, they will more likely follow the law of the 9th Circuit, too, than the law of one District Court in the Ninth Circuit.

So, yes, it’s possible for PETA further to stunt the development of the emerging discipline of animal rights. Or they may just move on to something else. Either way, those of us seriously dedicated to doing the lengthy and difficult preparation necessary to mount a credible lawsuit demanding legal rights for a nonhuman animal (and legal rights are a whole different kind of animal from the occasional weak legislative protections they receive now) will still have to deal with what transpired in court this week.

The Nonhuman Rights Project has put 25,000 hours of work into this in just the last three years. We aren’t finished yet.

Where this leaves the orcas

M.M.: PETA was also saying that its case was worthwhile because the law keeps evolving.

Prof. W.: The law just doesn’t evolve on its own. And different law doesn’t evolve at the same rate. The reason the Nonhuman Rights Project is focusing on the common law is because it evolves the quickest and is the most sensitive to changes in policy, attitudes, experience, and morality.

The slowest to evolve is constitutional law. It took a mere 58 years for the U.S. Supreme Court to decide that separate maybe wasn’t equal. And the judge in the PETA suit said that the 13th Amendment law doesn’t evolve at all.

M.M.: What do you say to people who say that even though they lost in court, they helped the cause of the orcas by having so much publicity and having people talking about it?

Prof. W.: Federal judges don’t particularly care about what people are talking about and texting about and e-mailing about in the context of constitutional litigation. What matters in our society is what our legal relationships are to each other. The law is a very different thing from public opinion. And thank goodness for that. What would happen if public opinion began to shift in favor of human slavery again, or against free speech? A lot of people chattering will have little or no effect on the development of constitutional law. (Public opinion may, however, affect the development of the common law.)

Look at what happened in the case of gay marriage in California this week. The public made its opinion clear. They voted in a formal election to ban gay marriage. But last week the 9th Circuit Court of Appeals said, “The heck with what the public wants; this violates the constitution.”

Judges are not in the polling business. Their job is to apply the law as they see it, even when it’s at odds with public opinion. That’s one of the glories of our legal system – we have judges who stand on principle even when the public is outraged. They set out honestly to apply the law, whether you or I agree with them or not.

A silver lining

M.M.: Is there any up-side to what happened in court?
We will have to establish in a state court that any animals on whose behalf we file suit are common law persons with the capacity to possess legal rights. Then we will have to fight for each right.

Prof. W.: Some bullets were dodged. There was no ruling that an orca is not a person under the law of any state. One thing we wanted to accomplish through our Friend of the Court memorandum was to keep California law out of the case. The judge did not mention it and that’s a relief.

The effect of the court’s ruling in this case is likely to be similar to what happened with Roe v. Wade. In that case, the court ruled that, for various historical reasons, a fetus was not a legal person within the meaning of the 14th Amendment. But that has not stopped almost every state from considering a fetus to be a person under the common law, or statutory law, or state constitutional law.

The Nonhuman Rights Project will have to establish in a state court, not a federal court, that any animals on whose behalf we file suit are common law persons with the capacity to possess legal rights. Then we will have to fight for each right. Until that time comes, every nonhuman will continue to be regarded as a legal “thing” that we can buy, sell, eat, hunt, ride, trap, vivisect, and kill almost at whim.