An Asian elephant named Happy who has been at the Bronx Zoo for more than 40 years will remain there after New York’s highest court ruled on Tuesday that she is not a person, in the legal sense, and that she is therefore not entitled to a fundamental human right.
By a 5-2 vote, the Court of Appeal rejected an animal rights organization’s argument that Happy was being unlawfully kept at the zoo and should be moved to a more natural environment.
The dispute centered on whether the fundamental legal principle of habeas corpus — which people claim to protect their bodily liberty and challenge unlawful confinement — should be extended to autonomous, cognitively complex animals like elephants. No, the court said.
“While no one disputes the impressive abilities of the elephants, we reject the petitioner’s arguments that he is entitled to seek habeas corpus on Happy’s behalf,” Chief Justice Janet DiFiore wrote. “Habeas corpus is a procedural instrument to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals. »
But in a dissenting opinion, Judge Rowan D. Wilson said the court had a duty “to recognize Happy’s right to seek her freedom not just because she is a wild animal not meant to be put down.” caged and exposed, but because the rights we confer on others define who we are as a society.
The case appeared to be the first to examine whether an animal is worthy of the so-called personality to reach such a high court in the English-speaking world. And while the result keeps Happy where she is, the split decision was unlikely to quell the debate over whether highly intelligent animals should be considered anything other than things or possessions.
The case was brought as part of a campaign by the Nonhuman Rights Group, an animal rights organization engaged in a long-running legal campaign to free captive animals. Last month, even as Happy’s fate hung in the balance, the group argued a habeas claim to have three elephants removed from a zoo in Fresno, California.
In New York, the group sought to move Happy from the Bronx Zoo, which they said was a prison for her, to one of two sprawling elephant sanctuaries, which they described as more natural settings. that would make Happy’s life happier.
“He’s a depressed, screwed up elephant,” Steven Wise, the band’s founder, said in an interview before the decision was announced.
On the other side of the case was the Wildlife Conservation Society, which operates the zoo and flatly denied the group’s claims that Happy existed in the Bronx. She is being “well cared for by professionals with decades of experience and with whom she has a strong bond,” the company said in a statement ahead of trial, adding that the case constituted “flagrant exploitation.”
The Nonhuman Rights Group and the Wildlife Conservation Society did not immediately respond to a request for comment on the decision.
The subject of the argument was visible on a cool, clear day in May from a rolling monorail cart in the Wild Asia section of the zoo. She and another Asian elephant, Patty, moved slowly, separated by a fence in the roughly two-acre tree-lined compound they share, with scattered logs and a swimming pool nearby.
“Our two elephants look great,” said one tour guide, offering an assessment that might be hard for the average person to contradict. Happy crossed his patch of grass toward Patty, ears, trunk, and tail rippling in the morning sun. “They get a lot of attention.”
Elephants are extremely social by nature, roaming in herds and communicating with each other in everything from low-frequency growls to the slight tilt of their bodies. They have been observed in various mourning behaviors upon the death of one of them.
Happy did not experience much of this natural life. Born in the early 1970s, probably in Thailand, she was captured at a very young age and taken to the United States, where she ended up in a Florida petting zoo with six other elephantseach named after characters from “Snow White and the Seven Dwarfs”.
The Bronx Zoo acquired her and another of the seven, Grumpy, also a female, in 1977. The two initially lived with an older female elephant, Tus, in the Elephant House (not in the Wild Asia section where Happy is now guarded).
Tus, Happy, and Grumpy were trained to do tricks, ride kids, and perform on “Elephant Weekends,” wearing costumes made by a downtown performance artist and “playing” tug-of-war with firefighters and college football players. (Elephants usually won.)
Eventually they were moved to wild Asia, as zoos across the country reorganized or dropped their elephant exhibits, partly in response to a growing animal rights movement. Tus died in 2002. A few months later, Patty and a second elephant, Maxine, attacked Grumpy, fatally wounding her. Happy could no longer be kept with them.
In 2006, a young female elephant, Sammy, was brought in to be Happy’s new companion, but she died shortly after arriving. The zoo has decided not to add any more elephants, instead focusing on helping members of the endangered species in the wild.
This left Happy alone on one side of a fence, with Patty – and, until his death several years ago, Maxine – on the other. Despite the barrier, zoo officials say Happy is not isolated, and she and Patty are touching trunks, smelling and communicating.
Eugene M. Fahey, a judge of the court at the time, joined his colleagues in dismissing the chimpanzee case. But in a concurring opinion, he said the issue presented “a profound ethical and political dilemma that demands our attention”.
“The question of whether a non-human animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching,” he wrote. “It speaks to our relationship with all of life around us. In the end, we cannot ignore it.
For Mr. Wise, Justice Fahey’s opinion offered a glimmer of hope. With appeals in the chimpanzee case exhausted, he turned to Happy, who had distinguished herself as particularly cognitively advanced, even for a species known for its intelligence.
In 2005, she passed a mirror self-recognition test, touching an X marked on her head with her trunk while looking at herself in a mirror – the first elephant to show such a degree of self-awareness (only humans , monkeys and dolphins had done it before).
The Nonhuman Rights Project filed a habeas petition on Happy’s behalf, and in February 2020 a trial court judge denied it. The judge, Bronx State Supreme Court Justice Alison Tuitt, said she was bound by legal precedent and came to her conclusion “with regret”.
“This court agrees that Happy is more than just a legal thing or property,” she wrote. “He is an intelligent and autonomous being who must be treated with respect and dignity, and who can have the right to freedom.”
An appeals court upheld the lower court’s decision, setting the stage for a hearing last month before the seven-judge Court of Appeal.
Judges quizzed lawyers on both sides on definition of autonomy for members of animal kingdom; the meaning of bodily freedom in this case; and the potentially greater effects of a decision that would displace Happy from his current home.
Questioning Monica Miller, the attorney representing the Nonhuman Rights Project, Judge Jenny Rivera focused on the ramifications for pet owners.
“Does that mean I can’t keep a dog?” she asked. “I mean, dogs can memorize words.”
No, Ms Miller replied, the group’s arguments did not apply to dogs: “We don’t have the evidence on dogs that we have on elephants right now.”
Responding to a question whether the group was asking for a ruling that only applied to Happy, Ms Miller said: ‘It would be dishonest not to think it would be a precedent for another elephant.’
The conservation society’s main argument was that Happy was not being held illegally, but his attorney, Kenneth Manning, also raised the specter of humans losing control over animals of all kinds if the court were to rule in favor. of Mr. Wise’s group.
“I wouldn’t call it a ripple, Your Honor,” he told Judge Rivera.
Judge Fahey retired from the court last year and did not participate in the deliberations. But he voted for the court to take the case before stepping down, and in an interview before the decision was announced he said it was an important step regardless of the outcome.
“The real issue is whether they are beings with a complex sense of themselves,” he said of elephants and other highly intelligent animals like chimpanzees. There was, he said, “an enormous amount of evidence” supporting this argument and “not a shred of evidence” contradicting it.
He noted that although a dictionary may define “person” in a certain way, the meaning of the word under the law has changed over time. He noted that corporations are now treated as persons in certain situations.
Judge Fahey, who declined in the interview to say which way he would have voted in Happy’s case, also said advances in technology – those involving artificial intelligence, for example – were making personality questions even more critical to address.
“The nature of humanity and the nature of intelligence will change as science evolves,” he said. “And if we don’t confront how we define these things now, we won’t have anything to fall back on when these changes happen.”