In an attempt to garner attention and raise awareness regarding the problematic use of orcas and other marine mammals in captivity for entertainment, PETA, an animal rights group, has sued Sea World, a corporation that builds and manages aquariums and marine parks. Opposition  to Sea World’s brand of entertainment-driven aquariums is nothing new, but this fresh lawsuit adds a novel twist to the boilerplate “intelligent animals don’t belong in captivity” – PETA is suing Sea World for violating these oceanic dolphin’s constitutional rights under the 13th amendment.

The 13th amendment to the United States Constitution explicitly outlaws slavery or involuntary captivity:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

PETA’s argument is that the 13th amendment doesn’t specifically apply to human beings, and that keeping marine mammals in captivity is tantamount to slavery. Jason Goldman has a good write-up on why this is not a 13th amendment issue. What most of the commentary is missing, and what Goldman missed the mark on, is that the 13th amendment is written in such a way as to not explicitly refer to people precisely because any institutionalized system of slavery necessitates the dehumanization of the slave class, so as a function of the nature of slavery, slaves must be thought of as less than human.  The question PETA raises, and one that I will not be addressing here, is how far does the 13th amendment extend?

Whales and dolphins are intelligent, social animals, and the idea that they are sufficiently advanced enough to be considered for person-hood is not new. Last year, several groups argued that dolphins should be considered non-human persons and given a certain degree of legal protection. This ignores the fact that, thanks to the Marine Mammal Protection Act, whales and dolphins currently do have more legal protection than any other non-primate animal.

The idea the whales and other marine mammals have a special position near humans on the scale of consciousness and intelligence is much older than this recent revival. As far back as 1850, people, specifically whalers, were making the argument that whales were more like people than we thought. In 1850, an anonymous letter, now known to have been penned by a Nantucket whaling captain, written in the voice of a polar whale pleading for it’s species survival, was published in the Honolulu Friend, stating:

I write in behalf of my butchered and dying species. I appeal to the friends of the whole race of whales. Must we all be murdered? Must our race become extinct? Will no friends and allies arise and revenge our wrongs?

source

Ironically, it was the whalers who first rose the alarms about the future of whale species. At this point in history, the Steller Sea Cow had already gone extinct, the Atlantic Right Whales were no longer abundant enough to justify a hunt, and the whaleships of Nantucket and New Bedford, once able to fill their holds with oil during a 3 month voyage, were now at sea for up to three years and regularly circumnavigating the world in a hunt for the last few whales. The thoroughly western concept that whales are not only equal to humans, but in some cases surpass us, has its philosophical roots in the most American of all novels, where the great white whale is not only just an equal to the captain and crew of the Pequod, but god himself, Moby Dick. This complex and compelling personification of an individual whale has woven itself into American literature and history forever altering our collective understanding of the whale.

Interestingly, while this characterization of the person-ness of a Sperm Whale has expanded to include all whales and dolphins, it doesn’t apply to all marine mammals. While manatees, seals, sea lions, and other marine mammals all get some degree of protection, none are regarded with the same reverence as whales and dolphins. They aren’t treated as people. This likely stems from the fact that most Americans have few interactions with marine mammals in general, most of us can’t tell the difference between bowheads, humpbacks, and north Atlantic right whales, so whale becomes the thing. This lumping effect is interesting, because when we talk about the intelligence of whales, we’re talking about a few species that are undeniably sophisticated – the predatory toothed whales like Sperm Whales and Orcas, while most baleen whales, complex songs aside, are not.

This creates an interesting dichotomy, where the public perception of super-intelligent marine mammals, is based on our knowledge (and our shared cultural understanding) of a few species, but is not representative of Cetacea as a whole.

What’s my point?

When we’re talking about whales and other marine mammals as people, it’s important to remember that this view originates not only from science, but from a shared historical, literary, and cultural tradition which colors our view of life. This shared tradition is not universal. When groups come together to discuss issues surrounding rights and legal protection for whales, failing to recognize the history of that cultural legacy will lead to unbreachable impasse, as each group will appear, to the other, unreasonable.