Earlier this week, the New York Court of Appeals, the state’s highest court, ruled that Happy—an Asian elephant who has been imprisoned at the Bronx Zoo for nearly her entire half-century of existence—was not entitled to the writ of habeas corpus and thus would not be released to an elephant sanctuary where she might live out the balance of her life engaged in the sorts of activities more satisfying to members of her species than possible in her current state of essentially solitary confinement. The majority opinion’s rationale in In the Matter of Nonhuman Rights Project, Inc. v. Breheney is largely circular, as I explain below.
The majority is right about one thing. It correctly notes that the Nonhuman Rights Project (NhRP), which litigated on Happy’s behalf, has now failed in every one of its habeas corpus lawsuits on behalf of captive chimpanzees and elephants. Is it therefore time to try a different approach?
Maybe not. Happy’s case marks a potential turning point because two members of the court—Judges Wilson and Rivera—dissented, showing that, to use a phrase coined by Yale Law Professor Jack Balkin, arguments for animal rights are no longer so “off the wall” that nearly everyone unthinkingly dismisses them. Future litigation, legislation, and campaigns to sway public opinion could build on the thoughtful and compassionate dissents. Whether those efforts succeed will depend in part on what lessons advocates for animals draw from Happy’s case.
The Bogus Issues
The majority opinion uses ipse dixit and tendentious reasoning to reject outright the possibility of granting habeas corpus relief to an elephant. The core move is stipulative. Although acknowledging that habeas corpus is flexible and has evolved over time, the court says that there is a limit to the writ’s flexibility. It is “a mechanism to secure recognition of the liberty interests of human beings—even those whose rights had not yet been properly acknowledged through established law.” (Emphasis in original).
Notwithstanding the use of italics, the foregoing language is mere assertion. NhRP and the dissenters argued that at one time rights were denied to children, women, and enslaved persons. The court’s answer is that all of those people were nonetheless human. Yet before rights were extended to children, one could have said that they were limited to adults; before rights extended to women, they were limited to males; before they extended to enslaved persons, they were limited to free people (or to white people). Saying that all of the prior extensions of some right fit into one category is not an argument against extending rights beyond that category unless there is some good reason for the category. That is why I say the majority’s reasoning is circular.
To be sure, the majority supplements its nonargument with some poor reasoning. For example, the court says that elephants cannot have a right to habeas because they cannot be the bearers of legal duties. Yet many human beings—very young children, persons with severe developmental disabilities, and very old persons in the grip of dementia or similar conditions—also cannot be assigned legal duties. That does not deprive them of rights. The majority glosses this fact by asserting that “the human species . . . has the capacity to accept social responsibilities and legal duties,” but does not say (because it is not true) that all human beings have that capacity. The court implicitly claims that a being who cannot bear duties is entitled to rights in virtue of membership in a species most of whose other members can bear duties. But this amounts to yet another mere assertion that being human is essential to legal rights. Speciesism is an article of faith, not an argument.
The majority chides NhRP for comparing Happy’s captivity to the plight of abused women and enslaved persons, referring to the latter as “an odious comparison with concerning implications.” Yet while good advocates make such comparisons only rarely and with sensitivity, the objection is almost always misguided. Opponents of animal rights think that in comparing the suffering of nonhuman animals to enslaved or otherwise oppressed humans, animal advocates mean to trivialize the latter, when it is clear that they mean no such thing. If one values the experiences of elephants and other animals, then the comparison is meant to spark empathy for the nonhuman animals, not in any way to diminish the experience of the humans. Thoughtful people understand the point, as the dissenters showed: Judge Wilson is African American; Judge Rivera is a woman.
The majority opinion also makes two errors regarding the remedy. First, the court says that habeas is not available where the petitioner merely seeks transfer from one form of custody to another. That proposition is plainly false. As the dissenters note, courts routinely grant writs of habeas corpus without ordering release. Consider that petitioners facing the death penalty can bring habeas petitions to challenge their sentence, even though the remedy will be continued imprisonment.
Second, the majority suggests that release to a sanctuary might not result in Happy experiencing the rich social life that elephants enjoy in the wild because Happy has a history of conflict with other elephants. Yet as Judge Wilson observes in dissent, the expert evidence proffered by petitioners indicated that in a more suitable environment, Happy’s behavior would likely change. Accordingly, he explained, the proper disposition is to hold an evidentiary hearing—which the majority’s decision refuses to allow based on Happy’s species.
The Slippery Slope
In addition to questionable logic and outright errors, the majority opinion contains one line of reasoning that has real force. The Bronx Zoo, other zoos, and circuses are in the process of phasing out elephant exhibits and acts. The stakes would therefore appear to be low. But the court worries about a slippery slope running from elephants to pigs, cows, chickens, beagles, rats, and other animals. “Granting legal personhood to a nonhuman animal,” the court writes, “would have significant implications for the interactions of humans and animals in all facets of life, including risking the disruption of property rights, the agricultural industry (among others), and medical research efforts.”
The slippery slope presented a dilemma for the NhRP lawyers and the authors of the 18 amicus briefs supporting Happy. Along with Harvard Law Professor Laurence Tribe and my Cornell Law colleague and fellow Verdict columnist Professor Sherry Colb, I filed one of those briefs. Our collective challenge was to articulate grounds for granting relief to Happy that would not entail the end of animal agriculture and experimentation, even though many of us animal advocates regard those enterprises as unjust as well.
The main NhRP brief did not directly address implications for other nonhuman animals, but by emphasizing the extraordinary cognitive capacities of elephants and the ways in which they resemble humans, the NhRP lawyers provided the court the opportunity to draw a line between “genius” animal species like elephants, great apes, dolphins, whales, and parrots, on one hand, and other animals on the other. My brief with Professors Colb and Tribe emphasized that Happy’s confinement denies her the ability to exercise her capacities as an elephant. Were it up to me, I would say that the confinement (and abuse) of other kinds of animals used for food, fiber, and experimentation denies them the ability to exercise their respective capacities, but our brief did not compel that conclusion.
The dilemma posed by judges’ fear of a slippery slope is hardly unique to Happy’s case. Cause lawyers seeking reform know that to secure even modest gains they must reassure cautious judges that those gains will not necessarily lead to more radical change—even though the cause lawyers favor the radical change. During Jim Crow, lawyers seeking equalization of funding for racially segregated schools needed to reassure courts that they were not challenging separate-but-equal itself. In the 1990s and early 2000s, lawyers for same-sex couples seeking legal recognition for domestic partnerships or civil unions needed to provide reassurance that such recognition would not lead to full marriage equality.
The discomfort that we lawyers may feel in offering judges an exit ramp from the slippery slope is ultimately beside the point. The real question is whether the litigation will succeed. As the NhRP acknowledged, the Court of Appeals ruling is “a loss for Happy, whose freedom was at stake in this case and who remains imprisoned in a Bronx Zoo exhibit.”
Happy’s case could nonetheless do a great deal of good for other elephants and nonhuman animals by raising public awareness of the grave injustices humans perpetrate against members of other species. Ultimately, the answer to the slippery slope is to persuade enough people—including ordinary citizens, legislators, and judges—that they should not fear sliding down the slope, that at the bottom of the hill they will find justice.