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Are orcas covered under the 13th amendment?

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PETA has filed suit against SeaWorld for violating the constitutional rights of orcas. The 13th Amendment "...prohibits the condition of slavery without reference to 'person' or any particular class of victim." Because the amendment does not specify humans, PETA is hoping to win freedom for the incarcerated whales. Presumably, they hope to challenge the property status of all non-humans should they win the case. It seems for once PETA might be on the right track. It is true, orcas are slaves. They are persons treated as property. They are held against their will and exploited for profit. Undoubtedly, sea park mammals have miserable histories and live in conditions nothing short of deplorable for highly social animals of the open sea. However, whether or not the 13th amendment is applicable in this situation is another matter. This is certainly an interesting approach to non-human animal advocacy for PETA, as it recognizes the personhood of non-human animals and draws attention to the orca's property-status. But it remains that this campaign is characteristic of new welfarism and is fundamentally flawed in at least two areas.

First, legislative activism is unlikely to be successful without a public that is sympathetic to the change. Non-human animals are recognized only as property to a level above and beyond that which human slaves ever experienced. In fact, human slaves were often compared to non-human animals as a justification for their enslavement. So, with non-human animals as the comparison for slavery everywhere, it is apparent that their property status is heavily engrained and normalized in human animal ideology. The property-status of non-human animals is so thoroughly taken-for-granted, we will first need drastic ideological change to correct this. Until the public comes to see non-human animals as persons worthy of equal consideration, no court is likely to recognize their personhood and grant freedom. A more likely outcome is that the failed suit will make future activism more difficult by clarifying existing laws so that they explicitly exclude non-humans.

In the meantime, without a critical vegan mass and a necessary rejection of the property status for non-humans, if conditions are to be changed at all in sea parks, it will probably only be in the interests of owners. For example, several handlers have been injured or killed in their interactions with under-stimulated and overly confined whales. If anything is done to improve the living conditions of the whales, those improvements are likely to be aimed at reducing risk to employees and will have nothing to do with the interests of the whales. Additionally, any improvements are likely to be miniscule and insignificant. Orcas will still be stolen from their families at early ages, repeatedly and forcibly impregnated, and confined for the duration of their lives. These conditions are inherent to sea parks and no amount of improving will make them anything less than torture for the non-human animals involved. Furthermore, minor improvements will only make the public more comfortable with the confinement of these whales. This comfort, of course, is compounded with the sea parks' misleading claims to their integral role in conservation and increasing public awareness.

Secondly, this campaign is terribly speciesist as it only focuses on one charismatic megafauna. The orca, of course, is a wildly popular species and holds a special place in our culture. The orca industry, in other words, is an easy target. Even if this suit was to succeed, it would single out certain species as more deserving of equal consideration than others. Orcas make up a tiny fraction of the non-human animals exploited by human animals. Singling out orcas takes advantage of a preexisting appreciation for the interests of killer whales and does nothing to challenge the largely unquestioned use of other species. This suit excludes the vast majority of oppression and supports our already schizophrenic thinking about which non-humans are worthy or capable of personhood and which are not.

So, while PETA's SeaWorld campaign is unique in that it draws the public's attention to the personhood of orcas and their property status, the campaign is ultimately counterproductive and confusing. It will inevitably fail and subsequently strengthen laws against future challenges to the property status of non-human animals. Further, it is likely that this campaign will result in minor and insignificant improvements to the sea park industry which will only increase public comfort with non-human exploitation, improve working conditions for employees, and perpetuate torturous confinement and servitude for the orcas. Furthermore, this campaign will single out certain species as more worthy of equal consideration than others. So, unfortunately, PETA appears to be going about things in a way that could only detriment the cause. We need to spend our limited time and resources on building a critical vegan mass not strengthening systems of oppression through ineffectual legislation and speciesist single-issue campaigns. Only when a critical vegan mass is achieved can we tackle the legal status of non-humans animals....all non-human animals.

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