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'Enslaved' killer whales case may mark new frontier in animal rights

In this 1998 photo shows famed killer whale Keiko, at the Oregon Coast Aquarium, in Newport, Ore. Animal rights group says SeaWorld whales are entitled under the 13th Amendment that abolished slavery

Steven Nehl/AP/Steven Nehl/AP

When does a slave – and a killer – have the right to go free?

When the killer is an orca, a whale, "enslaved" by SeaWorld and entitled under the 13th Amendment of the U.S. Constitution, according to the animal rights activist group PETA, which has succeeded in getting a federal court in California to consider the case.

"This is the first time a court has ever considered whether the 13th Amendment applies to the [whales]" attorney Jeffrey Kerr, the attorney for People for the Ethical Treatment of Animals said, adding freeing the orcas was 'the next frontier of civil rights."

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The 13th Amendment – passed in 1865 – abolished slavery.

But U.S. District Court Judge Jeffrey Miller didn't seem convinced the 13th applies to orcas, not matter what the circumstances of their forced captivity. He noted that the five plaintiffs were animals, not people. SeaWorld asked the judge to toss the case out, calling it "completely without merit." The judge said he would rule soon on whether he would allow the case to proceed.

SeaWorld dismissed the PETA suit as a publicity stunt by a group better known for its naked, blood-splattered anti-fur activists.

Still, the case has created a splash, not just among constitutional scholars.

Tilikum, one of the five orca plaintiffs, isn't just a crowd-pleaser, and – pending a legal ruling – possibly a slave with rights.

Two years ago, Tilikum, known affectionately as Tilly by his handlers, snatched Dawn Brancheau, a female trainer, dragged her underwater and thrashed her to death in front of a horrified crowd.

SeaWorld rejected calls to euthanize the 30-year-old, eight-metre long whale, originally captured off Iceland and brought from a Canadian marine mammal attraction. "He's going to be a part of our family for a long time to come," said Chuck Tompkins, head of animal training for SeaWorld Parks.

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Not if PETA's suit prevails. "Tilikum, Katina, Kasatka, Ulises and Corky have been captive and subjected to treatment that we feel is slavery," Mr. Kerr said. PETA wants the big black and white whales freed to some sort of a coastal sanctuary, apparently aware they wouldn't survive in the open ocean.

Even if few experts expect this case to proceed, some believe animal rights will become a new legal frontier.

"Forty years ago I fought for the fundamental right of people to marry the person of their choosing, regardless of race," said Phil Hirschkop, who won a landmark case on interracial marriage in Virginia. "Now I'm fighting for these orcas' fundamental rights to be free from enslavement regardless of their species."

And some ethicists, including Peter Singer, a bioethics professor at Princeton University, are leading proponents of the position that animals – certainly sentient ones – have rights. He has suggested a similar case might be launched against the U.S. Navy for its use of dolphins to detect and trigger anti-ship mines.

"To believe that, because they (dolphins) are members of a different species, we can ignore or discount their interest is speciesism, a form of prejudice against beings who are not "us" that is akin to racism and sexism," he said.

SeaWorld lawyers contend that if PETA was really concerned about the welfare of the orcas it would seek to make its case under the file an Animal Welfare Act. SeaWorld claims the orcas are well cared for.

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