Carl Sagan, who was the faculty sponsor of Cornell University’s animal rights group, once asked, “How smart does an animal have to be before killing him constitutes murder?”
A variation on that might be: How intelligent does an animal have to be before enslaving her and forcing her to work against her will constitute slavery and involuntary servitude under the thirteenth amendment?
That is precisely the question that PETA is attempting to answer in a lawsuit filed Wednesday in U.S. District Court in San Diego. PETA’s suit asks the court to apply the thirteenth amendment to five orcas who are currently enslaved at Sea World quarters in Florida and California. PETA argues that the thirteenth amendment’s prohibition of slavery and involuntary servitude does not specify human beings, and that these five orcas have all of the necessary attributes to warrant the amendment’s application to them.
The suit is worth reading—especially the sections that describe the capture of the five orcas out of the wild, the intelligence and behavioral attributes of orcas in their native habitats, and their current sad existence. The Associated Press explains that “[t]he lawsuit details the distinctive traits of orcas, the largest species within the dolphin family, including their sophisticated problem-solving and communicative abilities and their formation of complex communities. Naomi Rose, the Humane Society [of the United States’] marine mammal biologist, said there's a growing body of research suggesting that whales, dolphins and porpoises have the cognitive sophistication of 3-to-4-year-old human children.”
When I first read about the suit on PETA’s Web site, I was simultaneously impressed by the organization’s legal initiative and dubious at the lawsuit’s prospects. So I was delighted to read supportive words from constitutional virtuoso and Harvard Law Professor Laurence Tribe.
The AP story included a few very brief quotes from Prof. Tribe; I emailed him and he provided me with his entire statement. Here’s a key excerpt, from the man who has spent (at least) as much time thinking about the Constitution as anyone in the country: “The [thirteenth] amendment’s purpose, concerned with human slavery as a matter of original intent, is not bounded by the expectations of its authors, any more than the anti-discrimination provisions of the Fourteenth Amendment turned out to be bounded by its authors’ expectations… [I]t seems to me no abuse of the Constitution to invoke it on behalf of non-human animals cruelly confined for purposes of involuntary servitude. To the contrary, I can readily imagine a future in which ordinary citizens, moved by respect for animals and fear that we dehumanize ourselves by accepting widespread cruelty, look back with horror on the ways in which we now treat some of these noble creatures… [T]hat day may come more quickly than some might expect.” Prof. Tribe continues: “[P]eople may well look back at this lawsuit and see in it a perceptive glimpse into a future of greater compassion for species other than our own.”
Tribe’s ruminations on the PETA suit echo the perspective of Harvard Law professor and Obama administration regulatory czar Cass Sunstein. In a speech titled “Animal Rights without Controversy,” Prof. Sunstein argues that most Americans already believe in animal rights principles and that it is simple ignorance of details that allows people to eat meat, buy leather, patronize aquariums, and so on. Sunstein suggests that animals be granted standing when they are treated in ways that violate the law, with humans who care about them given the opportunity to sue on their behalf, as in the PETA suit. Finally, he argues that laws should be strengthened such that they align with our scientific understanding of who animals are, calling for hunting to be made illegal immediately. He concludes his speech: “In the long run… our willingness to subject animals to unjustified suffering will be seen… as a form of unconscionable barbarity not the same as, but in many ways morally akin to, slavery and mass extermination of human beings.”
I know that these reflections won’t resonate with most GULW readers. But they should: Tribe, Sunstein, and PETA are simply applying what we’ve learned from science to our understanding of ethics and law.
Indeed, Darwin taught us that other animals are more like than unlike humans, that differences between humans and other species are differences “of degree, not kind.” Other species have the exact same physiological senses that we do: They touch, smell, hear, see, and taste—just like we do. And, as any first year veterinary student will tell you, they feel pain just like we do, and to the same physiological degree. The foremost living evolutionary biologist, Richard Dawkins, denounces what he calls “human speciesist vanity”—the idea that the rest of creation exists only to serve human beings, and that we can eat them, wear them, and imprison them, all without even a thought for their suffering. And primatologist Jane Goodall, in her introduction to Dr. Marc Bekoff’s The Emotional Lives of Animals, writes that “there is no sharp line between the human animal and the rest of the animal kingdom. It is a blurred line, and becoming more so all the time.” Bekoff contends, as do others scientists including Dr. Temple Grandin, that much animal suffering may be worse than human suffering, since many animals may be less able to imagine an end to their agony.
The animal rights community has long pondered a suit like PETA’s, and most of us expected that the suit would focus on chimpanzees, the species most similar to humans. Tribe reflected on PETA’s decision to file their suit on behalf of orcas, suggesting that PETA was probably trying “to make a point about how the mere absence of superficial resemblance to human beings shouldn’t be permitted to obscure the more important issue of whether we are guilty of abusing and exploiting creatures with remarkably sophisticated social, cognitive, and communicative capabilities as well as the capacity to suffer – and whether that abuse and exploitation are inconsistent with the deepest values that our Constitution was instituted to protect.”
I’m guessing that most readers had not previously pondered the question of whether the Constitution has anything to say about the “abuse and exploitation” of other animals. But as Tribe makes clear, it’s an entirely valid question. And it is much more than academic. That is, it’s not just a question for this one lawsuit. One powerful challenge that PETA’s suit offers for society is an extension of Sagan’s question: How intelligent does an animal have to be before we consider her suffering? And if we consider an animal’s suffering, is there any moral obligation on us?
It’s worth noting that few of us will find ourselves in situations in which we might have an influence over orcas or chimpanzees. But we all have an influence over the suffering of other animals—every time we eat. The average American eats roughly 35 land animals and more than 100 sea animals per year, most of us with no thought at all of how animals suffer for the meat industry or who those animals were as individuals. While most of us would never eat a dog or a cat (or an orca or a chimpanzee), most of us are perfectly comfortable eating a chicken or a pig. PETA’s lawsuit—and the reflections of Sagan, Tribe, Sunstein, and Goodall—challenges us to rethink that decision.
You see, farmed animals are individuals, just like orcas and chimpanzees. Pigs, for example, have long memories. In one experiment, a researcher taught pigs to “jump over, sit next to, or fetch” various objects. Three years later, the pigs retained what they had been taught. The same researcher taught pigs to play a rudimentary video game. In reporting on that study, the UK’s largest daily paper, The Telegraph noted: “[Pigs] have proved they are at least as clever as chimpanzees with their first forays into video games.” Indeed, pigs have the same range of personalities of dogs, and have cognitive capacities beyond those of three-year-old human children.
Chickens, too, are interesting individuals with cognition that should ensure that they are spared the horrors of modern farming (and our dinner plates). One study, which was given the Australian Museum’s “Eureka Prize” for scientific excellence, found that chickens are extremely social animals who alter what and how they communicate based on which other chickens are nearby. Chickens can also navigate mazes, learn from television, and delay gratification—an indication of higher-order thinking. Discovery Magazine noted: “Chickens do not just live in the present, but can anticipate the future and demonstrate self-control, something previously attributed only to humans and other primates, according to a recent study.”
So while most of us can’t do much for orcas (other than refusing to give their enslavers our money), we needn’t wait for the law to catch up with science in order to make a difference: We can all make decisions that take the observations of Sagan, Tribe, Sunstein and many others seriously—simply by refusing to pay others to abuse and kill animals on our behalf (i.e., simply by refusing to eat them).
Regarding PETA’s lawsuit, the AP reports that “any judge who hews to the original intent of the authors of the amendment is unlikely to find that they wanted to protect animals.” Of course, applied to the Constitution as a whole, that’s the reasoning of the Dred Scott decision.
As Tribe concludes, “Even assuming that the claim… is rejected in court as a matter of existing constitutional doctrine, whether on some technical ground like lack of standing or on the merits, such a result wouldn’t prove the group wrong for having made this effort… Even if that lawsuit fails and the orcas on whose behalf it is brought are not ultimately freed, we all benefit from the national reflection and deliberation that the filing of this suit could initiate.”