Well, the more appropriate question is “Do Killer Whales enjoy the same legal rights in the US judicial system as humans?” I suppose it could be granulated even further. However one phrases it, we may get the answer before too long. A federal court in California is going to decide the question in the context of a lawsuit brought by PETA (People for the Ethical Treatment of Animals.) It has to be said that taking the legal route is one of PETA’s milder strategies. The lawsuit is attempting to prove that Sea World’s holding of five killer whales in captivity (at two different parks) constitutes slavery. My, what of rats’ nest of interesting questions immediately pops up.

To take the most curmudgeonly one first, if Killer Whales have legal rights comparable to those of humans (or at least natural born US citizens), do they have legal responsibilities as well—and can Tilikum thus be prosecuted for murder or manslaughter for the death of Sea World trainer Dawn Brancheau? Or will his plea be self-defense?

That’s stretching it, obviously, but one of the interesting questions posed by this case—much like the general questions that arise when we talk about “animal minds”—is where is the dividing line? This question came up repeatedly in the 1970s and 1980s with reference to all of the chimp/language studies, around which the linguistics and psychology community was sharply polarized until everyone got bored and forgot about the chimps and moved on to the more ivory-towerish questions posed by Artificial Intelligence instead. Then there’s John Lilly’s work, which galvanized a lot of people (including me) by being tantalizing, but never as much as Lilly thought it was, and Lou Herman’s work, which was a lot more detailed and orderly, but also a lot more cautious. But that these are animals with minds is no longer in question.

PETA, I have to say, has a point here. A number of observers and even some scientists have, over the decades, questioned the appropriateness of keeping dolphins and whales penned up. I remember some absolutely horrible facilities from the 1970s around Tampa where dolphins were kept in tanks not much larger than a bathtub, and a comparison to human solitary confinement in a small dark cell designed for sensory deprivation would not be unjustified. And one could argue that Sea World’s facilities, while spacious, aren’t really designed to avoid stress. In addition, orcas and dolphins are smart, like chimps and some other primates—whether they’re as smart as people are isn’t really the appropriate question. But they do seem to be smart enough to cause a great deal of head-scratching and revisions to the kinds of assumptions made forty or fifty years ago about the question of animal intelligence. This knowledge has been hard earned, by both humans and dolphins (which Killer Whales actually are, by the way—they’re a big species of dolphin). Let’s face it—we’re talking about Killer Whales (and dolphins, presumably, and possibly chimps and some other primates)—we’re not talking about anteaters, or bats, or lizards. And even if we’re not smart enough ourselves to articulate why this is, we sort of know that it’s true.

And yet, and yet…once past the obvious quandary posed by the fact that it’s PETA, who can be some of the most annoying people on the face of the planet when they put their minds to it, who are actually doing an interesting thing here, there are some other issues. First of all, legal systems take a while to catch up to events, yes, but there are already a bunch of laws on the books relating to the protection and preservation of marine mammals—although they don’t go so far as to define “slavery” as the equivalent of a large tank at Sea World.

That outfits like Sea World could see some financial hit here is pretty clear, but also irrelevant. Obviously, no one would go to Sea World to see a Herring show. Well, maybe they would—I don’t know. But there is also the consideration that Marine Parks, like Zoos, provide an educational function—and it’s not trivial. Well, maybe with the mass adoption of the internet over the past two decades a bit less so, but it’s hard to tell. There are genuine animal rescue programs. There are (or used to be) petting pools. These are fun places, but people learn stuff too–and while it’s one thing to see an animal on television or a computer screen, it’s another thing see see one in person–so to speak.

Additionally, one can foresee a not completely impossible scenario in which several interesting legal rulings result in Zoos and Marine Parks having to decide which animals they would keep, and what to do with those big tanks now that they had to let all the dolphins and killer whales go. Not to mention where all those very large dolphins and killer whales would actually go to. There are chimp retirement parks around the US—but there’s nothing comparable for marine mammals. Since many of these animals only know a life in captivity, it’s plausible that release in open water could be a death sentence. This is just one of the imponderables. Remember the Free Willy whale that there was a massive campaign to release, and which raised millions to send him to Iceland where he could be released? That didn’t turn out so well, although that certainly isn’t an argument that he should have stayed where he was. On the other hand, there are clearly cases where a return to open water, especially back to an original population, is not only possible, but seems like the right thing to do.

So this will be interesting to watch unfold–one of those dilemmas posed by modern life for which whatever the resolution, someone will be deeply unhappy. I don’t know enough law to know which way this might go, but the fact that the judge is even entertaining the possibility of letting this proceed probably seems like some sort of milestone–whether a good or a bad one depends, of course, on how this gets resolved.