PETA Should be Sanctioned For Its Suit Claiming that Orcas are Covered by the Thirteenth Amendment

Strap yourselves in because this is a long one, as I get into some philosophical and moral issues, before I get to the bottom line.

So via Hot Air we find out that a Federal Judge has ruled remarkably that an entire class is excluded from the Thirteenth Amendment.  Who is this group that has been shockingly excluded from protection from being enslaved and/or subjected to involuntary servitude?

Orcas.

You know, these things:

(Those whistles and clicks translate to “Swing low, sweet chariot, coming forth to carry me home.”)

Yes, that is right, PETA filed suit claiming that Orcas were protected by the Thirteenth Amendment and therefore Sea World had unlawfully enslaved them and otherwise treated them horribly.  You can read the complaint here.  I have been trying to locate the motion to dismiss and any opposition to that motion that PETA filed, because that would contain more meaty discussion of the central legal issue—whether the Thirteenth Amendment applies to non-humans at all.  But so far I have had no luck finding that, so consider this a bleg.

Look, I am not unsympathetic to the idea that at some point a being becomes sentient enough that the law should provide some protections to them.

[The next paragraph contains a minor *SPOILER* about my novel Archangel: A Novel of Alternate, Recent History (which you can purchase here).  Bluntly, it reveals something most people would figure out by the end of the second chapter.  But if you would prefer to be surprised, skip the next paragraph.]

For instance, the main character in my novel is an alien, and at one point an FBI agent points out to him that our criminal laws did not protect him from harm, saying “the laws on murder cover only humans. You shoot a dog or a chimp, it isn’t murder. At worst, it is cruelty to animals. Now maybe you would be lucky and the courts would interpret the laws to include a non-human like you, but wouldn’t you rather get a guarantee on that subject?”

[Spoilers end.]

Indeed in Roe v. Wade, the non-personhood of fetuses was key to that decision, too:

The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.

But, the Supreme Court found, the fetus is not a person, and thus not entitled to constitutional protection.  Now if you believe that Roe v. Wade was wrongly decided, and that a fetus should be considered a person for purposes of the Fourteenth Amendment, I would ask you on what you base that assessment.  For me, the most logical thing is what I call the sentience standard—that when the fetus reaches the stage where the brain comes typically “online” it should be treated as a person.  And notice I am talking about the point in time when most humans become “sentient”—I am not open to arguments that a person who is retarded or something like that is not “sentient” and therefore not a person.  And I base it on a term that you have heard many times: quick.  You have heard this in your church on a regular basis, when you are told that God will judge the “quick and the dead.”  And very often people do not know that in this context, “quick” is not a reference to speed, but to life.  Roe v. Wade, however, explains the term:

It is undisputed that at common law, abortion performed before “quickening”— the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.  The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins.

So all of those times when heard people say God will judge the quick and the dead, that refers to anyone alive, including fetuses who have shown signs of movement.

I think it is inherently dubious to read a right to an abortion into the Fourteenth Amendment in the first place, but if one is going to read it in, then this common law notion of when life begins, or at least a modern analogue such as the sentience standard I suggested above, should have controlled.

And in my personal morality and my policy preferences, I think that is about right, too.  If E.T. landed tomorrow in my back yard and said, “I come in peace” and in all respects was acting peaceful, but my neighbor shoots it dead in cold blood that should be considered murder.  And likewise, if a woman is about to give birth to her child, and a man shoots her in the belly and killing her fetus, that should be murder, too.  And here is where I might part ways with a lot of you philosophically, but I equally believe that if Chimpanzees can make tools and form language, if they are as intelligent as a three year old human (as it is often formulated), then isn’t experimenting on them like experimenting on a three year old human?  Yes, that means I am morally opposed to some of the most useful data you can obtain in animal testing, but that is what morality sometimes is about—doing what is right, even if doing what is wrong is useful.

Of course I don’t see any need to change the law to include E.T. just yet.  We can wait until the day comes when one of them does land here.  But on the other hand, I do think that killing a fetus at the stage when sentience occurs should be murder,* and I think animals who achieve a certain quantum of intelligence should be protected as well.  But I would never dream of arguing that the Constitution requires us to treat sentient aliens and animals as people, under any of the amendments.

And the Hon. Jeffrey Miller reaches this correct conclusion vis-à-vis the Thirteenth Amendment in his opinion, which you can read here.  And there is nothing wrong with it, but I think there is one picture that could sum up the colossal silliness of PETA’s argument:

As the Supreme Court said in Ex Parte Bain:

It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.

What is considered unusual and quaint today, the use of horses as a method of transportation as well as for labor (such as pulling a plow), was commonplace in the day of the founding.  And let’s face it, if we said that the Thirteenth Amendment applied to animals, one would be hard pressed to explain why horses were not “enslaved” by humans.  I mean one way to think of slavery is as the attempt to transform a free man or woman into a beast of burden.  And it was common in the parlance of the day to say that slaves were being treated “like animals”—and indeed, even worse than animals in many respects.  And yet no one thought on the day after the Thirteenth Amendment was ratified that the use of horses for transportation and labor was banned.  Indeed, if the founders wanted to apply that language to non-humans at all, you would think that they would carve out an exception for horses and other similar beasts of burden because the use of such animals was so vital to the functioning of human society.  It would be more significant than banning the use of gasoline in our society today.

But of course PETA gave much of their game away when they wrote this in their complaint (which is linked, here):

Moreover, our Constitutional jurisprudence is the story of the courts interpreting, applying, and expanding Constitutional protections to new groups and circumstances.

What they were asking for, therefore, was an extreme act of judicial activism, which would either declare unconstitutional a practice that was extremely commonplace at the time of the founding—the use of horses and other animals as beasts of burden—or they were going to ask the judge to carve out a whole new doctrine that somehow draws a line that says that horses are not protected by the Thirteenth Amendment but orcas are, which would have no basis in the text of the amendment.  Indeed, it would be dangerous to read any such distinction into the text.  A blanket prohibition, applied solely to humans, makes more sense.

But bluntly, I believe that this filing was in violation of FederalRule of Civil Procedure Rule 11.  It requires that all pleadings be signed and in signing them, it is certified that, among other things, that

the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

Now, because of rampant judicial activism you can make a lot of “nonfrivolous” arguments for changing the law that would have been laughed out of court a hundred years ago.  I mean just the other day the Ninth Circuit said that after the California Supreme Court said that people had the right to marry persons of the same sex, that the people of California had no right to change the law back to what it was before that fit of activism.  You know, because the evangelical Christians who wrote the Fourteenth Amendment were open-minded about gay relationships.  *rolls eyes*  Likewise, if you said in 1869 that the new Fourteenth Amendment guaranteed a right to abortion they would have thought you were nuts.  So you can make a lot of arguments today that would have seemed frivolous back when judicial activism was less brazen.

But this plainly crosses a line.  I don’t believe a single competent lawyer would have predicted any chance of this succeeding.  To be blunt, like most of what PETA does, this was most likely their attempt to generate publicity.  And Rule 11 provides for sanctions for the violation of this rule, and I think that they should be given in this case.  At the very least, PETA should have to pay Sea World’s costs and legal fees in defending this ridiculous thing.

I mean if you want to get into how radically far off the map this is, consider this line passage from Sierra Club v. Morton (1972).  The issue was about standing.  You have to have standing in order to sue, and you have to be actually injured by the conduct at issue, or else you don’t have standing.  And the issue there was when does one have standing to challenge a plan to destroy the natural beauty of a place?  In that case, the court held more or less that at the very least you had to actually use the land in question, writing:

The alleged injury will be felt directly only by those who use Mineral King and Sequoia National Park, and for whom the aesthetic and recreational values of the area will be lessened by the highway and ski resort. The Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney development. Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents.

But that is not the part I want you to pay attention to.  I want you to pay attention to this passage from Justice Douglas’s dissent, where he wrote:

The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation...  This suit would therefore be more properly labeled as Mineral King v. Morton.

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes.  The corporation sole—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases.  The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction.

This is famously one of the silliest passages from one of our silliest Supreme Court justices.  I mean what exactly is the interest of a “beach” and who would be able to speak for it anyway?

Oh wait, maybe this guy:

(Btw, that “Native American” Iron Eyes Cody in that ad, is actually an American of Italian descent who was born as Espera de Corti.  So there.)

Joking aside, it was an unworkable policy.  But notice here that Douglas wasn’t say that the law presently did this or that they should rule that way—only that the law should say this.  So even in his mind, only humans had standing to sue in federal court.  And his ideas about giving rocks standing by changing the rules of procedure have been thoroughly ignored (except in mockery) ever since.

So PETA’s argument was frankly beyond any reasonable interpretation of the Thirteenth Amendment or even for judicial activism, because even judicial activists have limits.  And as such should be this conduct sanctioned.  Again, at the very least, they should have to pay Sea World's costs and legal fees, rather than the public who will have to pay for this with higher ticket prices (which is assuredly another goal of PETA, to make running a place like Sea World less profitable).

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* And note that saying that killing a fetus at this stage should be considered murder doesn’t mean that all abortions would become illegal.  Not all killing—indeed not all uses of force—is illegal.

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Btw, notice that Sierra Club v. Morton could have been decided in a much simpler way in the eyes of those who deride Citizens United.  The Supreme Court could have said that since Sierra Club was a corporation it had no rights, and be done with it.  After all, it says in the opinion, Sierra Club is a corporation.

And that also means that under the rule struck down in Citizens United, the Sierra Club could be prevented from advocating for against a person’s election.  Indeed, that was one of the specific examples of “core political speech” that McCain-Feingold banned mentioned in the opinion:

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.

So if you just thought that the Supreme Court ruled wrongly against Sierra Club in Mortion but also ruled wrongly in Citizens United, one might consider reevaluating your position.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.