Category Archives: 13th Amendment

Protect “Shamu” Under The 13th Amendment?

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

I am a big fan of the animal we all know as, “Shamu.” I feel it would be fair to say that most people like orcas or “killer whales” as they are sometimes called. Growing up not far from SeaWorld Orlando partly has to do with my love of the cute black and white mammal. Also, I am sure being a child of the 90s contributed to my feelings about “Shamu.” Who could forget Free Willy or any of its sequels?

That being said, the idea that whales fall under the protections of the U.S. Constitution seems preposterous to me, but that idea is exactly what PETA is arguing in their latest lawsuit against SeaWorld. Although it appears to be a far stretch of the imagination to even consider that whales to have constitutional rights, it is even more bizarre that PETA is asserting SeaWorld has violated the 13th Amendment. PETA recently filed a 20 page complaint in the U.S. District Court for the Southern District of California in San Diego.[1] In their complaint, PETA states that 5 orca whales housed at SeaWorld, Tilikum, Katina, (from SeaWorld Orlando) and Corky, Kasatka, and Ulises (at SeaWorld San Diego) are being enslaved by the marine parks.[2]

The President of PETA believes this is a slavery issue because “[a]ll five of these orcas were violently seized from the ocean and taken from their families as babies. They are denied freedom and everything else that is natural and important to them while kept in small concrete tanks and reduced to performing stupid tricks.”[3] In the lawsuit, PETA asks the court to grant an order which will free the orcas “from bondage” and wants an injunction preventing SeaWorld from keeping the whales enslaved.[4]

SeaWorld, of course, disagrees with these accusations. SeaWorld stated “[the company] is among the world’s most respected zoological institutions…[t]here is no higher priority than the welfare of the animals entrusted to our care and no facility sets higher standards in husbandry, veterinary care and enrichment.”[5] The company contends the orcas are in the parks to provide education and enrichment to the public about whales and their habitats.[6]

It’s clear that both sides of the suit have different views about the how the whales are being cared for. However, the more important question is what the law says. The 13th Amendment states in Section 1, “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.” PETA argues the amendment makes no reference to human slavery, and therefore, should also apply to animals. PETA’s General Counsel asserts the 13th Amendment should not be limited in its application because “[s]lavery is slavery, and it does not depend on the species of the slave any more than it depends on gender, race, or religion.”[8] Even though it is true the amendment has no textual indication that it only applies to people, upon examination of the historical context of the amendment, it becomes overwhelmingly obvious the amendment was ratified in order to protect human beings.

The 13th Amendment was ratified in 1865, eight months after the conclusion of the Civil War.[9] The amendment, enacted to end to the institution of slavery, gave power to Congress to enforce the amendment. With this power, Congress passed the Civil Rights Act of 1866, which gave blacks “the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens.” However, the Supreme Court has indicated that the 13th Amendment is limited in its scope. In Butler v. Perry, the Court found “the term ‘involuntary servitude’ was intended to cover those forms of compulsory labor akin to African slavery, which in practical operation, would tend to produce like undesirable results.”[10] It is hard to stretch the imagination to equate the treatment of whales with America’s history of slavery. Some fear that even trying to make this connection is offensive to the African-American community. On the other hand, Nicholas Johnson, a law professor at Fordham University School of Law states he was “more entertained by it in the legal context than [he was] offended by it.” It is pretty apparent from precedent that the Court will be unlikely to extend 13th Amendment protections for the type of so-called “enslavement” being alleged in this case.[11]

In addition, PETA faces another obstacle in this lawsuit. Currently, animals do not have rights and are not covered by the U.S. Constitution. Animals are considered property for the purposes of the law, and thus, do not have legal standing. However, animals are not left defenseless. Animals are, instead, protected by specialized federal laws, such as the Animal Welfare Act. Moreover, marine parks are governed through the Marine Mammals Protection Act.[12] This act permits parks, like SeaWorld, to exhibit animals for educational purposes and requires them to follow certain guidelines. So, in a sense, the government has extended some minimum protections for marine mammals in captivity. Nevertheless, for animal rights activists, these protections are not enough. Michigan State University Law Professor David Favre has proposed a new legal classification entitled, “living property,” should be developed to grant animals additional rights under the law.[13] Yet, as the law currently exists, it is highly unlikely that constitutional protections will be extended to the orcas.

Like it or not, “Shamu” is not currently protected by the U.S. Constitution. PETA has indicated this lawsuit is the first case of its kind to try to extend the protections of the 13th Amendment to nonhumans. They will most likely not be successful in this venture. In fact, most experts believe the lawsuit will be disposed of on the issue of standing. Therefore, the courts will not even hear the case on its merits. Furthermore, PETA will probably not be able to convince the courts that “Shamu” should have constitutional rights. Many animal rights groups hope this lawsuit will be a vehicle for change in the area of animal rights. If PETA’s goal was to gain attention for their cause, it appears they have succeeded. Their lawsuit has made national and international news, with headlines such as this one in The Independent (London) “Free Willy-his rights under the US Constitution are being violated; PETA says that park has violated provision banning slavery in the United States[14] (evidently Free Willy has not been forgotten in the U.K.). “Shamu” may not have rights today, but it appears there is a movement afoot to help achieve rights for orcas in the future.


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