Steven M. Wise is the President and Founder of the Nonhuman Rights Project (NhRP) in the US. On World Elephant Day this year, Professor Wise provides an update to Voiceless and our supporters on the progress of the NhRP’s legal fight to free Happy the elephant from captivity.
In a few months, New York’s Appellate Division, First Judicial Department in Manhattan will consider the Nonhuman Rights Project’s appeal in our elephant rights case on behalf of Happy, a 48-year old Asian elephant currently living at the Bronx Zoo in New York.
For over forty years, the Wildlife Conservation Society has held Happy in captivity (in our view, constituting imprisonment) on a one-acre plot of land during the summer, and inside a smaller industrial cement structure lined with windowless and barred cages during the winter.
In a recent elephant captivity case in Pakistan, the Chief Justice of the Islamabad High Court did not hesitate to characterise Happy as an ‘inmate’ at New York City’s Bronx Zoo in a May decision in which he recognised the rights of elephants and other nonhuman animals. For the last fourteen years, the Bronx Zoo has forced Happy to live a solitary life, despite the suffering that isolation is known to cause these immensely social beings.*
With the support of world-renowned elephant experts, including Joyce Poole, Harvard Law Professor Laurence Tribe, habeas corpus scholars, and philosophers, we will continue to argue that Happy, as an autonomous, extraordinarily cognitively complex, and immensely social being, is therefore entitled to the common law right to bodily liberty protected by the writ of habeas corpus both as a matter of liberty and equality. We are seeking a court order for her release to a sanctuary, where her right to bodily liberty will be respected.
While the decision from which we are appealing did not recognise Happy’s personhood, it was nevertheless powerfully supportive of the NhRP’s arguments.
Over a period of thirteen hours across three days, Bronx Supreme Court Justice Alison Y. Tuitt became the first court to allow the NhRP to fully present our arguments for the legal right to bodily liberty of our imprisoned client. Crucially, Justice Tuitt rejected the Bronx Zoo’s claim that ‘Happy is happy’. Instead she found that ‘the arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo to an elephant sanctuary’.
Justice Tuitt also found that Happy is ‘an extraordinary animal with complex cognitive abilities, an intelligent being with advanced analytical abilities akin to human beings’ and ‘an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty’.
She noted a 2018 opinion issued by Judge Eugene Fahey, who sits on New York’s highest court, the Court of Appeals, in our chimpanzee rights cases, where he stated:
‘[T]he issue whether a nonhuman has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.’
The only reason Justice Tuitt did not order Happy’s immediate release to a sanctuary was because ‘(r)egrettably’ in her view, she ‘was bound by the legal precedent set by the [an intermediate New York appellate court six years earlier) when it held that animals are not ‘persons’ entitled to rights and protections afforded by the right of habeas corpus’.
In his 2018 opinion, however, Judge Fahey was not impressed by the New York’s Appellate Division, Third Judicial Department’s 2014 decision, writing: ‘Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child’.
After we filed our appeal in July, Professor Tribe requested leave to file an amicus brief in support of Happy’s personhood and right to liberty, and urged the First Department to reject the ‘arbitrary’ and ‘unsustainable’ appellate decisions issued in the NhRP’s chimpanzee rights cases, which ‘rest on the manifestly unjust and myopic premise that human beings are the only species entitled to legal personhood and therefore the only beings on earth capable of possessing legal rights. These decisions run counter to New York’s common law of habeas corpus, which has a noble tradition of expanding the ranks of rights holders’.
Shortly after, two habeas corpus scholars and twelve North American philosophers with expertise in animal ethics, animal political theory, the philosophy of animal cognition and behaviour, and the philosophy of biology submitted amicus curiae briefs in support of the NhRP.
In short, we have won our scientific and moral battles with the Wildlife Conservation Society. The remaining fight is whether Happy can be denied her common law right to bodily liberty protected by a writ of habeas corpus either because she lacks the ability to bear legal duties, as the Third Department claimed, or because she isn’t a human being, as the First Department claimed in dictum in another of the NhRP’s cases.
These will be the subjects of our upcoming case in the appellate courts and the hearing we expect to have in the fall. As we write in our appellate brief, ‘This Court has the duty to safeguard and uphold the fundamental common law liberty interest of autonomous beings. As Happy is an autonomous being, this Court must recognize her right to bodily liberty protected by habeas corpus and order her freed’.
The tide is turning in favour of nonhuman rights in New York, as it inevitably must when the arguments that support the status quo become untenable. Win or lose, our final stop will be almost certainly the New York Court of Appeals.
*Recent photos/footage (August 2020) indicate that Happy is no longer living in isolation.
- Watch the Voiceless video ‘Animals: Property or Persons?’
- Listen to the Voiceless Animal Law Talk podcast episode exploring the moral and legal status of animals, including an interview with Prof Steven Wise.
- Read articles exploring the concept of legal personhood for animals on the Voiceless Blog.
- Watch the 2015 Voiceless Animal Law Lecture Series presentation ‘Beyond the Cage’, delivered by Keynote Speaker Prof Steven Wise.
- Find out more about Animal Law and where to study the subject in Australia on the Voiceless website.