Ninth Circuit May Rule: Dolphins Are Fish, Too!

Thursday, February 26, 2004

Page 7

IN MY OPINION (Column)

Ninth Circuit May Rule: Dolphins Are Fish, Too!

By RAY HAYNES

(The writer represents the 66th Assembly District which includes portions of western Riverside County and northern San Diego County.)

With the Massachusetts Supreme Court’s recent ruling that there is a constitutional right for persons of the same sex to marry, and the city of San Francisco now openly defying California’s prohibition on same sex marriage, the judiciary has clearly become the chosen battleground for homosexual activists trying to gain a right that the majority of voters clearly oppose. Here in California, home of the nutty Ninth U.S. Circuit Court of Appeals and their increasingly bizarre opinions and rulings, no ruling would surprise me at this point. And as long as judicial nominees who would be willing to enforce the rule of law continue to be bottled up by Democratic filibusters in the US Senate, rulings by our federal courts will increasingly resemble the following satirical news story from the potential near future:

SAN FRANCISCO—In an earth-shaking decision today, the Ninth U.S. Circuit Court of Appeals has expanded the definition of fish to include dolphins, whales and abalone.

Stepping into an issue that many had thought was long ago settled and more properly in the jurisdiction of science rather than the courts, the judges today courageously moved to replace narrow, traditional definitions of what constitutes a fish with a more progressive, inclusive one.

Traditionally, science books have arbitrarily made distinctions between fish, mollusks and sea-dwelling mammals, despite the fact that all of them clearly live in the ocean and spend most of their time underwater. The arguments made by the majority in their opinion were compelling: “Calling whales and dolphins mammals has been too confusing for too long for too many people. We received scores of letters and testimony from schoolchildren who had been marked down on tests, and poorly educated adults who had been corrected by others when they had innocently referred to dolphins as fish, rather than mammals. We were asked to consider the fact that they do look a lot like fish and do spend a considerable amount of their life underwater.”

The court heard testimony from various advocacy groups who demonstrated through very well produced and persuasive multi-media presentations that dolphins and whales are indeed fish-shaped. By showing clips from such movies as “Free Willy” and “Orca,” they also proved beyond a reasonable doubt that they swim pretty much like fish, too. When a panel of public interest biologists confirmed that dolphins and whales live their entire lives in the water-just like fish-what had seemed like a very difficult case for the court initially, suddenly became quite obvious.

The addition of abalone to the fish classification came as a surprise to many courtroom observers. Not a part of the original lawsuit, an abalone advocacy group had made a late argument for the inclusion of abalone in the definition of fish. Making the fairly obvious point that abalone also live underwater, require a fishing license to take, are already considered shellfish by many, and are “good eatin’,” the American Abalone Association’s appeal was granted and added to the original complaint without further study. When asked about the lack of review, a spokesperson for the court said, “we’d really spent enough time on the fish question and we decided as long as we were expanding the definition of fish already, there was really no harm in making it even more inclusive.”

Predictably, old-school marine biologists protested the decision. One scientist representing the traditionalist school of marine biology at Notre Dame University argued, “They can’t do that! Dolphins and whales are mammals! They’re warm-blooded, they give live birth, they nurse their young, they have no gills-they simply are not fish! And abalone? Are you kidding me? They don’t even have a spine or a defined brain! They have shells instead of fins-they don’t even swim! Simply calling a mollusk a fish doesn’t make it so!”

According to a spokesperson for the court, it does. “If we want to call a dolphin a fish, then it’s a fish and there is nothing you can do about it. What are you going to do—vote the judges off the court? Pass a constitutional amendment? Maybe you cansue us! Ha, ha, ha, ha...”

In the next few weeks the court is also expected to rule on whether the definition of circles must always exclude squares, whether the law of gravity is unconstitutional, and whether the institution of marriage can legally be limited to just one man and one woman.