Constitutional Law

Breaking News: NY Highest Court Rules an Elephant is NOT a Person

Two weeks ago I wrote an article letting readers know that a California Appeals Court ruled that a “bee” was a “fish” under that State’s environmental law. ( Well, now NY’s highest court, the Court of Appeals, has ruled that an elephant does not have the same right s to habeas corpus relief that a human does, in denying a petition by the “Nonhuman Rights Project” to free Happy the Elephant from confinement at the Bronx Zoo.

The advocates at the Nonhuman Rights Project argued that Happy is an autonomous, cognitively complex elephant worthy of the right reserved in law for “a person.” The Project explained that elephants are among the smartest most sentient creatures on the Earth and that Happy was able to pass a mirror self-recognition test showing that it was aware of itself. The Project was upset that due to some issues when Happy lived among other elephants, Happy was now in solitary confinement – living alone in a wide penned in area where it could smell, see and sidle up to the fence next to another elephant but where it could not directly interact with others of its kind. The Project argued that this was “inhumane” since elephants are extremely social creatures. It filed a writ of habeas corpus on Happy’s behalf demanding that the court s release Happy into a more social environment.

The Project has tried this before, filing a lawsuit on behalf of two chimpanzees whose confinement at Stony Brook University it also protested. I labeled that lawsuit a “waste of time.” And it was. (

So is this one. As someone who fights to free innocent people and who has seen the writ of habeas corpus narrowed to near uselessness, that three courts, including the State’s highest court had to take time and issue a 109 page opinion on whether the writ applied to animals was – sorry- ludicrous.

As the majority opinion noted no veterinarian stated that the manner in which the Bronx Zoo – the greatest most advanced zoo in the world – kept Happy was against any City, State or Federal regulations, or that it was suffering any physical harm. The Project also did not allege that Happy was subjected to cruel, neglectful, or abusive treatment. Instead, it argued that she should be “recognized as a legal person with the right to
bodily liberty protected by the common law” and immediately released from “unlawful imprisonment” at the Zoo. But the Project also had to acknowledge that Happy could not safely be released to wander the city streets or even to the wild, requesting instead that she be transferred to an “appropriate sanctuary,” preferably one chosen by them, where she
could potentially be integrated with other elephants. The Zoo tried several times to integrate Happy with other elephants but Happy was not happy- and attacked the other elephants. So it built this large solitary pen where it could see and smell the other elephants. Why would the Project claim to know better than the Bronx Zoo? And what if the petition had been granted and then the Zoo felt that the sanctuary chosen by the Project was not safe for Happy? Could it then bring its own habeas petition?

The majority correctly noted that a finding that some animals had the same independent rights as humans to liberty would open a floodgate of litigation over pets and other zoo animals. Courts would have to try and determine the intelligence and cognitive level of every species. It therefore thankfully denied the right of Happy to writ of habeas corpus.

Shockingly two of the high court’s judges agreed with the Project. But there dissents provide no basis for how courts should deal with people filing claims on behalf of animals that they don’t own or care for. Judge Rowan Wilson offered that courts should engage in “a normative analysis that weighs the value of keeping the [nonhuman animal] confined with the value of releasing the [nonhuman animal] from confinement,” taking into consideration “[t]he value of the confinement” to the nonhuman
animal as well as the “value of the confinement to the captor and society.” What? The Great Writ is meant to get people out of unconstitutional confinement. Courts analyze whether the person is being held in violation of law. According to Wilson, courts would instead analyze if the confined person or animal would be “better off” confined elsewhere. That precedent would result in a flood of litigation from humans looking to move their jail cells or switch prisons.

Judge Rivera went even further off the deep end. Judge Rivera said that the fact that Happy is an animal does not prevent her from having legal rights. She wrote that Happy is being held in “an environment that is unnatural to her and that does not allow her to live her life. Her captivity is inherently unjust and inhumane. It is an affront to a civilized society, and every day she remains a captive — a spectacle for humans — we, too, are diminished,” Rivera wrote. So Judge Rivera would abolish zoos and aquariums and maybe even some farms? The Bronx Zoo does not just put animals on display for humans to gawk at. They provide top notch veterinary care to their animals; engage in highly successful conservation programs; and educate the public about the other creatures that we share this planet with. There are already many laws that allows complaints to be lodged against person keeping animals if they are being mistreated or abused. But equating as beings that have the same rights as humans just has no basis in law and would cause far more problems than it would solve.

Both judges actually argued that over the centuries courts have expanded the writ of habeas corpus to protect other classes of beings not previously covered – slaves and women. This is a shameful comparison not worthy of further discussion.

The Nonhuman Rights Project is a not-for-profit corporation that
characterizes its mission as seeking to establish that “at least some nonhuman animals” are “legal persons” entitled to fundamental rights, including “bodily integrity and bodily liberty.” In furtherance of this mission, they have filed myriad proceedings in New York and other states on behalf of chimpanzees and elephants, arguing that these nonhuman animals are legal “persons” being unlawfully confined and, as such, they are entitled to the remedy of habeas corpus. They have been unsuccessful, with no court granting such petitions and most of these courts dismissing the proceedings on the basis that nonhuman animals are not legal “persons” with liberty rights protected by the writ of habeas corpus. Many times courts prevent humans who repeatedly file baseless lawsuits to seek permission from a court first to establish that this time they have a viable claim. The same hurdle should be put in front of the Nonhuman Rights Project. They have lost time after time, taking valuable resources in the process. Their work demeans the writ and while it is noble to protect animals will in the end be more harmful as pet owners and other animal custodians will have to take time and money away from caring for their animals to fight lawsuits alleging that they should be in a better situation. Its time to ban the Project from tying the courts up any further with these lawsuits.

Read the full decision here:

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