On February 8, 2012, U.S. District Judge Jeffrey Miller ruled that five wild-captive orcas (Tilikum, Katina, Kasatka, Corky, and Ulises) owned by SeaWorld and represented by PETA et al. had no standing to sue for protection under the 13th Amendment. Miller wrote: “As ‘slavery’ and ‘involuntary servitude’ are uniquely human activities, as those terms have been historically and contemporaneously applied, there is simply no basis to construe the Thirteenth Amendment as applying to non-humans.”

While it is absolutely certain that the 1865 Congress intended to protect only human beings with the 13th Amendment, making Judge Miller’s literal reading correct, it is equally true that mid-19th Century knowledge and appreciation of the animal mind was virtually nonexistent. So, an animal’s interests needn’t have been respected because, quite simply, he had no interests. In addition, the nascent animal advocacy movement was narrowly focused on the welfare (not liberation) of dogs and horses. Today, however, there is a burgeoning animal ethology field providing new insights across the species spectrum. Capacities and abilities once considered exclusively human are now regularly attached to other sentient beings. And the majestic cetaceans (orcas, or killer whales, are cetaceans in the dolphin family) are head of the class.

Exploring the Cognitive World of the Bottlenose Dolphin
Dolphin Whistles Offer Signs of Language Ability
Cultural Transmission of Tool Use in Bottlenose Dolphins
The Structure of the Cerebral Cortex of the Humpback Whale
Mirror Self-Recognition in the Bottlenose Dolphin
Deep Thinkers
Marine Mammals Master Math
Joy, Grief, Altruism…
A Humpback Whale Thanking His Rescuers

Armed with this information, which was mostly not available when SeaWorld first opened in 1964, should it be that difficult for us to imagine the psychological suffering of cetaceans in captivity? In The Orca Project, two former SeaWorld trainers, Professor John Jett and Dr. Jeffrey Ventre, share indications of that suffering: excessive surface resting, self-mutilation, random (and unnatural) attacks on trainers and fellow orcas, etc.. In short, “…captivity kills orcas, usually at a young age… and… stresses, social tensions and poor health are chronic issues in marine park facilities.”

With still much to learn, it is perfectly reasonable to assert that at least some cetaceans (killer whales among them) are more cognitively aware than some humans, including, but not necessarily limited to, the very young, the senile, and the mentally enfeebled. These humans are, of course, protected from being enslaved; indeed, because of their raw vulnerability, they are the ones most in need of protection. Considered in this context, then, why should such a person, one decidedly unable to understand or participate in a court proceeding initiated in his behalf, be afforded legal recourse while an orca is not? The answer, whether offered by 21st Century SeaWorld (Ringling Bros.) or the 19th Century Plantation Class (see Dred Scott), has no place in an enlightened society: because they are not us. To exploit others – races, ethnicities, genders, and, yes, species – simply because we can renders hollow the ideals of reason and justice.

SeaWorld, of course, dismissed the lawsuit as a mere publicity stunt. To cynics and fans alike, they proudly proclaim themselves educators and conservationists, and would-be liberators are marginalized as sentimental anthropomorphists. Whether SeaWorld genuinely believes this or is intentionally deceptive is quite beside the point. With large amounts of money at stake (SeaWorld remains immensely profitable; the “Shamu Stadium” is still the main attraction), ethical lines become blurred and fluid, and revenue streams must be defended to the last. In the SeaWorld boardroom, then, it matters not a bit what science reveals about cetacean intelligence and depth of suffering. Change, if it is to come, must begin and end with the consumer.

Finally, there are some (law professor David Steinberg among them) who are offended, even outraged, by PETA’s use of the word slavery, calling it demeaning to the memory of those human beings once held as property. But like those humans, each of the 42 killer whales in captivity has an intrinsic worth all her own, a nature to pursue. And no matter how well they are supposedly treated (remember, some slave-owners were once referred to as “benevolent”), it is precisely their nature that is being so utterly negated in these “small, acoustically-dead, concrete enclosures.” Although their relative intelligence is far from definitive, we are sure that wild orcas are autonomous. And if owning and completely controlling an innately autonomous being does not define slavery, what does?

There is, still, a larger, more significant discrepancy between how the law treats spectators and the fighters themselves. The people responsible for staging animal fights are subject to a felony charge carrying a four year prison sentence. On this, New York is to be commended. But some basic logic is in order. Dogfighting exists either as a business for profit or as a street-level matter of reputations. The more professional operations are entirely sustained by admission and wagering. In other words, by the spectator. In the cruder neighborhood form, dogs act as expendable surrogates for men pursuing upward social mobility. Often gang-related, this back-alley savagery would lack any meaning without bystanders to attest. Clearly, the fans, betting or not, fuel the evil, and the industry implodes in their absence.

Senator John DeFrancisco, a sponsor of New York’s recent amendment, acknowledged the simple truth when he said (The Post-Standard, 8/4/11), “Without spectators, the events would not happen.” Then why three months? The HSUS currently ranks our state 48th in anti-dogfighting legislation; 28 other states have already made spectating a felony. New York has much work to do.

Dogfighting is sadism defined, a generally-accepted societal wrong that could be eliminated in our lifetime. But why do we insist on waging this battle with one hand tied? On this, I confess bemusement. Is there a politically important lobby that must be appeased? If not, but rather an indisposition to further clog courts and cells, then I ask: What is our justice system for if not to protect the most vulnerable among us from wanton cruelty? The miscreants mired in this cesspool, be they owners, trainers, fighters, or onlookers, are not otherwise kind, upstanding citizens simply allowing dogs to be dogs. Each, in fact, is a sadist, perhaps the worst thing we can say about a fellow human being, and should be punished accordingly. The pit (bullring) is the modern day Colosseum, bloodlust and all.

As CNN recently said, “Bill Clinton’s appetite was legend. He loved hamburgers, steaks, chicken enchiladas…,” but quadruple bypass and a couple “bent and ugly” stents later, and he is a changed man (although he still indulges a bite of Thanksgiving turkey). CNN’s Dr. Gupta: “You’re doing this for your health. Is that why you’re doing it?” Clinton: “Yes, absolutely.” While recounting his transformation, not a single reference to gestation crates, battery cages, and bloody abattoirs. Just his heart, the decidedly non-metaphorical one, that is.

There are omnivores who eat healthy and vegans who do not (although the CNN article notes that Clinton’s two health guides, Drs. Ornish and Esselstyn, “have concluded that a plant-based diet can prevent and, in some cases, actually reverse heart disease”). But what autonomous adults choose to do to their bodies is of no concern to me; in other words, and with all due respect, I am not overly interested in the state of President Clinton’s arteries. Although his new diet is a net positive for animals, let’s not fete this as another example of Clinton magnanimity; after many years of abuse, he is clearly in self-preservation mode.

For the record, though, Bill Clinton is a strict vegetarian, not a vegan. Veganism is a lifestyle or philosophy that affirms the intrinsic worth of other sentient beings and rejects their exploitation. If new studies were to promote the health benefits of certain animal products, I have little doubt that President Clinton would forgo his plant-exclusive regimen, leaving behind the 200 animals PETA says he now spares annually. On this specific issue, William Jefferson Clinton is no hero. Rather, he is but another selfish human being fretting about his mortality. Sorry, not impressed.