Today’s news provides more data on the extent and limits of the judiciary as a venue for social movements:

A federal appellate panel (9th district) has upheld District Judge Vaughn R. Walker’s decision to strike down California’s ban on same sex marriage, passed by referendum in 2008 (Question 8).  Implementation of the ruling, which would again allow same sex couples to wed in California, has been suspended, pending certain appeal to the Supreme Court.

Also in California, an animal rights group, PETA, has filed suit seeking the release of orcas held in captivity by Sea World (in San Diego and in Orlando, Florida).  Attorney Jeffrey argued that keeping the whales violated the 13th amendment’s prohibition of slavery.   Federal District Judge Jeffrey Miller was, apparently, unimpressed, and concerned about the precedent of extending Constitutional protections to non-humans.

The text of the 13th amendment, passed after the Civil War, reads:

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.

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

You’ll note that the text of the amendment doesn’t specify citizens–or persons, but the argument requires a very sympathetic and adventurous judge.  If the orcas, forced to perform for paying customers, are found to be slaves, then what of cows herded into slaughterhouses?  or even my cat, kept inside when she’d prefer to go out?

Activists always maintain the hope of finding a friend on the bench who can obviate the political obstacles that all causes face.  As we’ve discussed here, they’re invariably disappointed.  Judges try to rule on the law and the Constitution, not morality or the wisdom of a policy.  Activists are often creative in stretching the language of the text or ignoring precedent to try to argue for what they want.  Even if judges rule as they prefer, they are still dependent upon the cooperation of other branches of government.  (Thus, you can’t count on the courts….)

Marriage equality advocates will celebrate this ruling, even acknowledging its limitations (it does not find a Constitutional right to same sex marriage).  But tomorrow, they’ll be busy preparing for the appeal–and continuing to lobby, demonstrate, organize, and vote for marriage equality across the states, while they counter the hostile rhetoric of presidential candidates taking offense at the ruling.  If all goes well, a long and difficult road lies ahead.

PETA and animal rights advocates, at best, face a less hospitable landscape, although the court case does provide a chance to make their arguments to a broader public.  The legal filing gives media the chance to present an entertaining and dramatic (if Constitutionally, uh, suspect) argument along with a picture of an orca.  It’s a good story.

Both activist groups will ultimately have to depend upon convincing Americans to agree with the merits and justice of their positions.  Recall that in 2008, when 52% of Californians votes to end same sex marriage, 63% of Californians voted to mandate more humane treatment of farm animals.

Of course, whales don’t vote.