Feel free to enslave an orca.

On the rare occasions that we aren't ruminating on the nature of reality, we sometimes discuss the Constitution. As far as I can recall, we yet to discuss the applicability of Reconstruction Amendments to animals. I can't speak for Mr. Torvik, but the reason that I have never posted on this topic was that it had never occurred to me that the Civil War was fought over animals rights. This is not to say that animals weren't involved in the Civil War. According to this, more than a million horses died during the conflict.

Yesterday, Judge Jeffrey T. Miller, United States District Court Judge for the Southern District of California, ruled that Tilikum. Katina, Corky, Kasatka, and Ulises, five orcas at Sea World San Diego, were not entitled to sue Sea World under a theory that Sea World has enslaved the orcas in violation of the Thirteenth Amendment. A copy of the order is here.

The Thirteenth Amendment essentially says that "Neither slavery nor involuntary servitude . . . shall exist in the United States, or any place subject to their jurisdiction." The sole exception to the amendment is if the slavery or involuntary servitude is a punishment for being convicted of a crime. Some people will think that of that as being on a chain gain. Others might think of this episdoe of "Seinfeld." But I digress.

The 5 orcas brought suit seeking a declaration that they were being held by Sea World in violation of the Thirteenth Amendment. Apparently, each of the orcas was capture in the wild and brought to Sea World. The orcas, through PETA which filed the suit on their behalf, allege that they are being deprived their, and I am not making this up, "cultural traditions" as well as their "ability to make conscious choices." One thing that may surprise readers, according to the order, orcas in captivity live around 8.5 years, while orcas in the wild live 65 years.

Judge Miller found that the Thirteenth Amendment didn't apply to non-humans. To reach this conclusion, the judge looked at a dictionary from the time the amendment was written. Order at 5. In 1864, Noah Webster's dictionary defined slavery as "the state of entire subjection of one person to the will of another." Also, in the Slaughter-House Cases the Supreme Court stated that involuntary servitude, can "only apply to human beings." The judge also noted that the Emancipation Proclamation discussed slavery only in the context of persons. (Order at 6.) Finally, the judge noted that the references to punishment for a crime also indicated the amendment applies only to humans because only humans are punished for crimes. (Order at 5.) Although the judge didn't mention it, not being able to be punished for a crime arguably benefited Tilikum who killed a Sea World trainer in 2010 and apparently also helped drown a trainer in 1991. (if you are wondering how Tilikum has been at Sea World for over 20 years when orcas only live 8.5 years in captivity, that is not explained in the order. Perhaps they only live 8.5 years on average).

Recognizing this problem, PETA argued that the court should find a new right for orcas in the Thirteenth Amendment. (Order at 6.) To make support this argument, PETA pointed to several famous civil rights cases, Griswold v. Connecticut (recognizing humans have a right to privacy in the context of using contraception), Brown v. Board of Education (racial segragation in schools violates the Fourteenth Amendment), United States v. Virginia (state run college cannot refuse to admit women), Thompsen v Oklahoma (Eighth Amendment prohibits the execution of children under 16), and Miranda v. Arizona (police must notify suspects of their right to remain silent and right to counsel). People who like sex, African-Americans, women, children, and criminal suspects, can argue amongst themselves as to who should be more offended about being compared (perhaps unfavorably) to an orca.

The judge rejected these arguments by analogy because he felt that the various amendments at issue were more susceptible to an "expansive interpretation" than the Thirteenth Amendment which deals with a single issue. (Order at 6-7.) I would have rejected this argument by analogy because the rights expanded in the other cases were rights given to (or perhaps held by) humans.

While PETA's complaint was only trying to create "new rights for orcas," I don't think their attempted limitation makes any sense. Sea World San Diego has a lot of different animals. Why would enslaving orcas be a constitutional violation but enslaving bottlenose dolphins, beluga whales, sharks, sea lions, and others be acceptable under the Constitution? Moreover, what would be the distinction between orcas at Sea World and guide dogs or other service animals. Those animals don't exercise a conscious choice either. While the complaint certainly makes it seem like the orcas are kept in pretty horrible conditions (I've never been to Sea World San Diego so I don't have any firsthand knowledge of the place), the only logical stopping point to PETA's argument would be that no animals could be kept by anyone for any purpose without violating the Thirteenth Amendment. I suspect that the lack of a logical stopping point was on the judge's mind when he decided to dismiss the case.