Following a highly publicized employee death, a years-long battle with People for the Ethical Treatment of Animals, and continuously falling revenue, SeaWorld Entertainment has announced it will be phasing out its famous orca shows by 2019. The amusement park has also pledged to stop breeding the animals (known informally as killer whales) in the future. Currently, there are 23 orcas in SeaWorld parks across the United States. Once the shows close, they will live out the rest of their days in SeaWorld. This presents a legal problem: The show may be over, but the orcas remain in captivity, where conditions can still shorten their lifespans. It might be established orcas shouldn't be performing, but what rights do they have beyond that?
The path to ending orca shows has been a long one, including a failed 2012 lawsuit in which PETA argued orcas' captivity in SeaWorld facilities essentially amounted to slavery, in direct violation of the 13th Amendment.
"All five of these orcas were violently seized from the ocean and taken from their families as babies," PETA president Ingrid E. Newkirk said in a 2012 statement. "They are denied freedom and everything else that is natural and important to them while kept in small concrete tanks and reduced to performing stupid tricks. The 13th Amendment prohibits slavery, and these orcas are, by definition, slaves."
While the judge dismissed the case, it posed an interesting question: Should animals be considered persons? And, if so, how does one go about setting the legal precedent? In 2011, Sue Russell covered the issue for Pacific Standard. She spoke with legal scholar Steven Wise, who spent decades working to have animals declared "legal persons":
Wise believes that nonhuman animals meet the criteria for "personhood" and other human-style rights and protections if they are enough like us to have "consciousness" or "mind" — self-awareness and the capacity to experience their own existence — and when they are capable of desiring things and of acting in a deliberate fashion to acquire them. Chimpanzees, for instance, use tools, and some can count, make a cup of tea, and communicate with sign language. African elephants, African grey parrots, dolphins, dogs, gorillas, orangutans, cetaceans, and others also have varied but impressive mental abilities.
A similar case in 2015 tackled the issue of two chimps, Hercules and Leo, who are the rented property of Stony Brook University. The Nonhuman Rights Project argues they're being held in conditions that violate the right of habeas corpus, which protect from unlawful imprisonment.
Writing for Pacific Standard, Jane C. Hu looked at the "legal fiction" of animal personhood—the practice of declaring clearly-not-human beings as legal persons:
It seems inevitable that as we learn more, the way we think about and treat animals will change. But our current legal system just isn't set up to incorporate the nuances of our growing knowledge about animal cognition. In Hercules and Leo's case, the NhRP is pursuing personhood status for the chimpanzees really just for one right: freedom from detainment. Still, an argument for personhood presents the simplest strategy to obtaining that freedom.
This cumbersome process of recognizing animals as "persons" is essentially a Band-Aid for a bigger problem: We don't have any other legal concept in place that can be used to define rights for non-human beings.
There's a strong case to be made for orca intelligence. While we often refer to them as "killer whales," orcas are actually dolphins, commonly thought to be intelligent animals with a high degree of self awareness. And even though the ratio of brain size to body mass isn't a hard and fast measurement of intellectual capacity, orcas do have a ratio 2.5 times greater than the average animal.
So, is this a victory for anti-slavery and animal rights activists? Maybe. Ultimately, the question of personhood isn't what convinced SeaWorld to end its orca program. While its stocks have plummeted over the past five years, the company saw a slight uptick today, as its value increased by 6.48 percent in the wake of the announcement.
Orcas may be intelligent, but they're not the ones paying for tickets.