An animal rights group has sued SeaWorld. Their claim is that SeaWorld should not be holding killer whales in captivity. So far, this is a fairly unsurprising story, and one that may have merit enough to debate. But here's where the story seems to go off the rails: the argument is that the thirteenth amendment of the US Constitution, which abolished slavery, applies to killer whales. And that SeaWorld's keeping of captive killer whales violates the whales' thirteenth amendment rights. According to The Guardian, the suit, which was "filed late on Tuesday in a US district court in San Diego, lists five performing orcas at SeaWorld's parks in California and Florida – Tilikum, Katina, Corky, Kasatka and Ulises – as the plaintiffs in the complaint." You might recall that Tilikum was the whale involved in an unfortunate incident in 2010 in which a trainer was killed.

I am not a legal scholar, so I can not comment on whether or not such a lawsuit could be effective. But let me be perfectly clear: the question of whether whales and other cetaceans should be kept in captivity is a discussion worth having. Using the thirteenth amendment as a tool, however, is not only unreasonable, but inappropriate.

It seems like this is a good time to revise and repost an old piece of mine that I originally published in May, 2010, on whether human rights ought to be extended to whales and dolphins:

A recent commentary in Science argues that dolphins should be considered people. Sort of people. Non-human people.

The argument begins with the extreme intelligence of dolphins. They have larger brains than humans, and the ratio of brain to body size for dolphins is greater than that for the great apes. Indeed, dolphins are the second most encephalized animals on the planet, after humans. Encephalization refers to the extent that the brain is folded up onto itself - it is evolution's trick for increasing the overall size of the brain by increasing its surface area quite a bit without increasing its volume by much. This allows for increases in brain size relative to body size. In the broadest of terms, it could be said that encephalization correlates with intelligence - but that, of course, hinges on what you mean by "intelligence." The second part of the argument is that the brains of dolphins and similar cetaceans (like killer whales) have spindle neurons which - in humans, at least - are involved in things like emotion, social cognition, and mentalizing, or the capability to discern what others are thinking.

Thomas White, a philosophy professor from Loyola Marymount University, argued that this is what makes a dolphin a person. A non-human person, though. Daniel Bassett explained: "They are alive, aware of their environment, have emotions, have distinct personalities, exhibit self control, and treat others with respect or ethical consideration."

I've got some problems with these arguments. First, I don't think that we can make ethical or moral judgments about the behavior of dolphins, because it means applying our standards of morality to other animals. For example, it is typical for male dolphins to rape female dolphins. Infanticide is also common in some dolphin populations. How does this bear on dolphin ethics? Does it make them unethical? By human standards, it sure does. But we probably shouldn't be applying our morals and ethics to other species.

In 2010, the Telegraph further explained White's argument: "He said that sperm whales have sonars to find fish that are so powerful that they could permanently deafen others nearby if used at full blast. Yet the whales do not use sonars as weapons, showing what Whitehead called a human-like sense of morality."

Do we know that sperm whales are aware of the potential destructive capacity of their sonar? For example, do they ever actually use their sonar as a weapon, if threatened? And even if it was true that sperm whales could use their sonar as a weapon and still refrain from doing so, what if that is simply the result of an automatic and non-conscious process? In other words, what if their non-use of sonar as a weapon isn't intentional, but "hard-wired"? Does it still count as morally right? Does morality hinge on explicit decision-making? I do not think we have the answers to these questions, yet.

And then there's the issue of spindle neurons. Cetaceans and humans diverged in evolution approximately 95.2 million years ago. Dolphins spent millions of years evolving in the oceans, while humans have spent some millions of years evolving on dry land. The function of spindle neurons in our brains and in dolphin brains may be similar, and while researchers are starting to gather evidence that there are structural similarities, this does not necessarily say anything about brain function. Dr. Jacopo Annese of UCSD told Science, "It's a pretty story, but its very speculative...We don't know, even in humans, the relationship between brain structure and function, let alone intelligence." And of course, far less is known about dolphins.

As we figure out better methods for testing animals, more and more species are going to fall into cognitive categories that we used to think were unique to humans. This is not to say that humans are exactly the same as non-human animals (though we are more similar than different), nor is this to say that animals shouldn't be afforded various protections. But to give them "human" rights or to call them "non-human people" is absurd. "Legal protection for cetaceans?" Sure, I've got no problem with that.

Humans have long had a particular fascination with dolphins and whales. As Lori Marino wrote in 2004, "throughout the ages, an enduring mystique has developed around dolphins. Even today some people continue to impute dolphins with mystical abilities such as extra-sensory perception and, in alternative medicine circles, special healing powers." Are these arguments simply the latest version of this phenomenon?

The argument that whales should not be kept in captivity for the sake of entertainment may be reasonable. The intentions of those who would prevent the use of captive whales in entertainment may be noble. But to use the thirteenth amendment, which abolished the slavery of human beings, as a tool in achieving those ends, is inappropriate at best.

Grimm, D. (2010). Is a Dolphin a Person? Science, 327 (5969), 1070-1071 DOI: 10.1126/science.327.5969.1070-c

Marino, L. (2004). Dolphin cognition. Current Biology, 14 (21) DOI: 10.1016/j.cub.2004.10.010

Image via Flickr/Fremlin

Again, this post is NOT about whether whales should be kept in captivity for entertainment purposes. It is about using the thirteenth amendment as a means to a particular end.