Animal Law: “nonhuman animals could be considered legal persons under the common law”

April 29th, 2014

The Sunday Times had a lengthy profile of the pursuit of animal-rights activists litigating to achieve legal personhood for animals. I was struck, in particular, by this passage, about the long-run process of accomplishing this goal.

No recent case better underscores the unique nature of Wise’s present endeavor than the one that seemed, at first, to most resemble it. In October 2011, despite Wise’s objections, People for the Ethical Treatment of Animals (PETA) filed a lawsuit on behalf of five orcas at SeaWorld San Diego and SeaWorld Orlando, accusing the theme park of violating the 13th Amendment, which abolished slavery. The suit was dismissed by Judge Jeffrey Miller of the U.S. District Court for Southern California, who wrote in his ruling that “the only reasonable interpretation of the 13th Amendment’s plain language is that it applies to persons, and not to nonpersons such as orcas.”

Wise was furious over what he considered the grossly premature timing of PETA’s case. After the judge’s decision, Wise called a PETA lawyer to “share his thoughts” with him. Natalie Prosin was on that call too. “She really let me have it afterward,” Wise said. “She said, ‘You acted like you were the professor and he was your student, lecturing him for over 30 minutes on why his case was so bad.’ I said: ‘I know. And frankly 30 minutes wasn’t nearly enough.’ It was idiotic to invoke the Constitution the first time around. You know maybe in 50 years, after you’ve already laid a foundation of courts recognizing that nonhuman animals could be considered legal persons under the common law. That’s precisely why we’re avoiding the federal courts.”

It was reminiscent of many other civil rights movements that are content in taking their time. Though the state-court, common law approach is quite unique.

A few of my students brought up the PETA SeaWorld case in class when we duscyssed the 13th Amendment. So the arguments are resonating, on some level at least.

I recently visited SeaWorld San Antonio, and was extremely unimpressed. I seem to recall the SeaWorld in Orlando being much bigger with many more exhibits of sea-life outside the of the shows. Plus the Shamu show was lame, as (due to the lawsuits) the trainers were not allowed to touch or even get in the pool with the whales. It was fun, but not as good as I remember.