Animal Desires

Original Article

When People for the Ethical Treatment of Animals (PETA) sought a court ruling declaring SeaWorld’s killer whales “slaves” under the 13th Amendment, the nation got a badly needed chuckle. PETA argued that because the amendment doesn’t specify that its terms apply only to human beings—“Neither slavery nor involuntary servitude .  .  . shall exist within the United States”—then captive whales can be slaves too.

The case—Tilikum, Katina, Corky, Kasatka, and Ulises, five orcas et al. v. SeaWorld—was brought in the Ninth Circuit, where history shows anything can happen. But not this time. District Court judge Jeffrey T. Miller made short work of PETA’s publicity stunt, ruling sensibly:

Both historic and contemporary sources reveal that the terms “slavery” and “involuntary servitude” refer only to persons. In 1864, the term “slavery” was defined as “[t] he condition of a slave; the state of entire subjection of one person to the will of another.” .  .  . The clear language and historical context reveal that only human beings, or persons, are afforded the protection of the 13th Amendment.

In other words, since humans are, and animals aren’t, persons, case dismissed!

But don’t imagine the story will end there. For years, animal rights activists have been preparing the intellectual ground to overcome the “animals aren’t persons” legal impediment to their goal of allowing animals to sue their owners—a concept known as “animal standing”—by which they plan to destroy animal industries and eventually end all domestication of animals. They know that no legislature will pass laws elevating even the most intelligent animals to the status of persons. So they plan to file multitudinous lawsuits, hoping judges will bootstrap animals into the moral community.

It has already started. The European Court of Human Rights agreed in 2008 to hear the appeal of an Austrian Supreme Court ruling denying personhood to a chimp. More such cases could soon be filed in the United States. Law professor and animal rights activist Steven Wise was quoted in the New York Times recently promising to file lawsuits starting in 2013 with the goal of using “the latest science to help persuade state court judges that such creatures as whales and chimpanzees should be accorded common law personhood and rights.”

Wise runs the Nonhuman Rights Project, where, since 2007, he and 50 other activists have busily researched the most likely jurisdictions for a ruling that at least one animal “has the capacity to possess at least one legal right.” It would be easy to roll one’s eyes and dismiss this as simply what radical lawyers do, to little effect. That would be a mistake. “Animal personhood” has become a respected idea in philosophy, the life sciences, the academy generally, and among some within the highly politicized science establishment.

Earlier this year, for example, the annual meeting of the American Association for the Advancement of Science hosted a panel supporting the Declaration of Rights for Cetaceans, which in the name of promoting “equal treatment of all persons” affirms that all whales and dolphins are persons possessing “the right to life, liberty, and wellbeing.” The AAAS’s promotional blurb argued that “whales and dolphins are capable of advanced cognitive abilities (such as problem solving, artificial ‘language’ comprehension, and complex social behavior),” purportedly providing a “scientific rationale” for supporting the declaration.

Nonhuman persons? On what basis? Animal rights lawyers claim that the precedent for expanding personhood beyond human beings was established when the United States legally recognized corporations as “artificial persons.” But that is sophistry. These juridical entities may not be human beings, but they are human associations, and thus corporate personhood is still about us. Even though the left derided Republican presidential hopeful Mitt Romney for stating that “corporations are people,” he was actually far more right than his detractors.

But forget logic. We live in ideologically antihuman times, and animal personhood furthers that agenda. Indeed, “breaking the species barrier” for personhood would open a new misanthropic chapter in human history, aiming us not only toward granting unwarranted rights to higher mammals—none of which understands the concept or is capable of respecting the rights of other animals or humans—but also to flora and fauna generally.

Again, don’t laugh. “Nature rights” is already the law of Ecuador and Bolivia, and a proposal was made at Durban in November 2011 to include the “rights of nature” in the draft climate change treaty. Not only that, but Pittsburgh and Santa Monica and more than 20 other American municipalities have passed ordinances granting nature a quasi-right to life by recognizing “the rights of people, natural communities, and ecosystems to exist, regenerate, and flourish.” And anyone who believes Mother Nature’s rights are being violated can sue on her behalf.

Then there is transhumanism—a neo-eugenic, futuristic social movement that is allied with animal rightists in the effort to demolish human exceptionalism and extend legal personhood to non-Homo sapiens—in their case, to make room for forthcoming “posthumans” in the moral community. These will include machines that supposedly will achieve the indicia of personhood through self-evolving software, or shades of the popular science fiction TV program Battlestar Galactica, after posthumans upload their consciousnesses into cyborgs.

Sentient machines will almost surely never exist. But animal personhood is a real and present threat. Indeed, as Wise has written, it would only take one judge ambitious to make history to open the floodgates of litigation, first demanding inclusion of ever more animals in legal personhood, and from there, granting those animal persons standing to sue their owners for violations of their fundamental rights.

The lawyers who would take those cases are ready and waiting for the judicial go-ahead, their legal briefs already written. For years, professors have been busily training students in animal law courses and seminars at more than 100 of America’s top law schools, preparing an army of legal minds for the day they can represent whales, dolphins, chimps, elephants, pigs, and other animal “clients” in court.

Indeed, if animals are declared persons, PETA could have the last laugh helping whales petition for a writ of habeas corpus demanding their liberty from SeaWorld. In 2005, a Brazilian judge agreed to hear just such a petition on behalf of Suica, a chimpanzee, only to see the case mooted when the animal died before a decision had been rendered. “Criminal procedural law is not static,” the judge wrote in the order of dismissal, “rather [it is] subject to constant changes, and new decisions have to adapt to new times.” As Wise says, it only takes one.

Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.