The Elephant in the Room: New York’s Highest Court Takes Up Animal Rights
February 23, 2022 by Gianfranco Cesareo
By Gianfranco Cesareo, Staff Contributor
When the New York Court of Appeals agreed in May 2021 to hear the habeas corpus case of an Asian elephant named Happy, it marked the first time that the highest court of any English-speaking jurisdiction agreed to hear a habeas corpus case brought on behalf of someone that is not a human. 2021 also marked Happy’s fiftieth birthday. Born in the wild in Thailand, Happy was taken to the United States in the early 1970s alongside six other calves, eventually landing in the Bronx Zoo, where she has remained since 1977.
Happy’s lifelong companion, Grumpy, died in 2002, and while Happy briefly lived with a younger elephant named Sammie, Happy has been alone since Sammie was euthanized in 2006. Her solitary existence consists of rotating through a 1.15-acre elephant enclosure, where she spends most of her time in a large indoor holding facility lined with elephant cages.
Happy Goes to Court
In 2018, the Nonhuman Rights Project (NhRP) took up Happy’s case, filing a petition for a common law writ of habeas corpus on her behalf alleging that Happy is subject to unlawful detention and seeking her release and transfer to an elephant sanctuary. The NhRP does not allege that the Bronx Zoo is in violation of animal protection or animal welfare standards. Their vision is broader. The complaint alleges that Happy’s solitary detention is itself unlawful and seeks a recognition of her common law right to bodily liberty.
While Judge Tuitt of the Bronx County Supreme Court wrote an opinion highly sympathetic to Happy’s cause, the court was “regrettably” bound by precedent from the Appellate Division holding that nonhuman animals are “not ‘persons’ entitled to the rights and protections afforded by the writ of habeas corpus.” The Appellate Division affirmed based on this same precedent, but with the Court of Appeals agreeing to take up the case, there is an opportunity to examine the complex questions of personhood and freedom for nonhuman animals anew.
The Case for Happy
The core argument of Happy’s case is that elephants have been shown to possess complex cognitive abilities that amount to autonomy, therefore supporting a recognition of common law personhood and a common law right to bodily liberty. To this end, a number of leading experts on elephant cognition have filed affidavits in support of Happy’s release. The developing literature on elephant cognition is still only beginning to uncover their remarkable inner lives. Elephants have been shown to share a number of complex cognitive functions with humans, including self-awareness, empathy, intentional communication, long-term memory allowing for the accumulation of social knowledge, goal-directness, and even mourning and awareness of death.
Notably, Happy had another moment in the spotlight in 2006 when she became the first elephant to pass the mirror self-recognition (MSR) test. MSR demonstrates that an animal has self-awareness and a mental representation of themselves, which can signify autonomy and high levels of altruistic behavior and empathy.
Because of the similarities between elephant and human cognitive abilities, researchers have noted elephants likely respond similarly to solitary confinement. In humans, just ten days in solitary confinement has been shown to adversely affect emotional, cognitive, social, and physical health. Studies on solitary elephants in captivity suggest that they suffer from similar effects. Happy has been in solitary confinement for over fifteen years.
While recognizing the personhood and right to freedom of an elephant is unprecedented in American law, considering the irrefutable evidence of Happy’s cognitive capacity and autonomy, the NhRP’s argument seems dictated by common sense and basic justice.
Overcoming Legal Barriers
Happy is not the NhRP’s first client confined in New York. In a pair of opinions denying writs of habeas corpus for chimpanzees brought by the NhRP, two of New York’s Appellate Divisions laid out several arguments against granting the writs. A close inspection of these arguments, however, reveals that they do not lie on firm legal foundations.
First, New York Appellate Division’s First Department attempted to duck the issue of legal personhood by denying the petition on the grounds that habeas relief is not available when seeking transfer to another facility—in this case a chimpanzee sanctuary—rather than challenging the legality of detention altogether. However, concurring in the New York Court of Appeals’ denial of appeal in that case, Judge Lahey noted that this conclusion was simply wrong. Habeas corpus may be used to seek transfer to a facility “separate and different in nature” than the one to which a petitioner is confined.
Next, the Appellate Division’s Third Department refused to extend legal personhood to nonhuman animals on the theory that to be a legal person with legal rights, one must also be capable of bearing legal duties. This argument proves problematic when followed to its logical end, as it excludes wide classes of human beings from being “persons” before the law. Human infants bear no legal duties, yet certainly have rights. The same is true of human adults suffering from dementia or in a coma. In an amicus brief supporting Happy, a number of law professors noted that in New York, children under the age of four cannot be civilly liable for their actions, yet surely still have rights. Therefore, advancing the argument of “rights and duties” to deny animals rights ends up denying rights to many humans as well—advancing a narrow and exclusionary view of personhood at which even the most fervent animal rights opponents would likely balk.
In recognizing the limitations and problematic nature of the “rights and duties” justification for withholding personhood from nonhuman animals, the First Department made an equally flawed and exclusionary argument. In distinguishing between nonhuman animals and classes of humans that may be incapable of bearing legal duties, the court stated, “these are still human beings, members of the human community.” This argument avoids any grappling with the difficult questions and legal implications of the cognitive, social, and emotional abilities of other species simply because they are not humans, and therefore inherently not entitled to legal recognition. It is an exercise of raw power and exclusion without a sound justification besides that power being allocated entirely in the hands of human beings. In other words—might makes right.
Additionally, these arguments have not prevented courts in other countries from recognizing nonhuman entities as having legal personhood with increasing frequency. For example, in 2017 an Indian court granted legal personhood to the Ganges and Yamuna Rivers, and New Zealand’s parliament granted legal personhood to the Whanganui River. Some courts have even begun to recognize legal personhood for animals. An Argentinian Court granted an orangutan named Sandra legal rights in 2015, while the Islamabad High Court in Pakistan held that animals have legal rights in a case requiring a zoo to release an elephant named Kaavan to a sanctuary.
What’s Next for Happy and for Animal Rights?
The New York Court of Appeals has an opportunity to overturn the Appellate Division, granting Happy legal personhood and recognizing her personal right of liberty. If the court grants her release, Happy might get to live out her old age in a spacious sanctuary alongside other elephants.
While it is important that the focus of this case is on Happy’s wellbeing and freedom, it is impossible to ignore the broader implications of what a favorable ruling would mean for nonhuman animals more broadly. American law has to date solely regarded nonhuman animals as property—things, rather than sentient beings. Given what we now know about the complex cognitive abilities of elephants among other animals, the law does not reflect reality. The common law is intended to develop and evolve to societal changes. The time for the common law to reflect contemporary understandings of nonhuman animals and their capabilities is long overdue.
If New York overcomes the threshold question of whether animals have legal personhood, other jurisdictions will hopefully soon follow its lead. At that point more difficult questions will inevitably arise: Are all animals legal persons, or only intelligent ones? What rights do animals have? Do different animals have different rights? Which animals can be kept in zoos? Can any at all? What are the implications for animal agriculture?
These are all complex questions without easy answers. The solution, however, is not to shy away from them all by continuing to uphold a legal system that refuses to recognize animals as the complex beings that we know they are. In the words of Judge Lahey, these questions speak “to our relationship with all the life around us” and ultimately cannot be ignored. Grappling with them is necessary to envision and create a legal system and a society that recognizes and values animals as sentient nonhuman “persons,” one that in turn seeks to abolish all forms of oppression and subordination.
 Press Release, Nonhuman Rights Project, New York Court of Appeals Agrees to Hear Landmark Elephant Rights Case (May 4, 2021), https://www.nonhumanrights.org/blog/appeal-granted-in-landmark-elephant-rights-case/.
 Tracy Tullis, The Loneliest Elephant, N.Y. Times, June 28, 2015, at WE1, https://www.nytimes.com/2015/06/28/nyregion/the-bronx-zoos-loneliest-elephant.html.
 Nonhuman Rts. Project v. Breheny, No. 260441/19, 2020 WL 1670735, at *2 (N.Y. Sup. Ct. Feb. 18, 2020).
 Petition for Writ of Habeas Corpus at 14, Nonhuman Rts. Project v. Beheny, No. 260441/19, 2020 WL 1670735 (Oct. 2, 2018), https://www.nonhumanrights.org/content/uploads/Happy-Petition-10.1.18.pdf.
 Nonhuman Rts. Project v. Breheny, WL 1670735, at *2.
 Id. at *9.
 Memorandum of Law in Support of Petition for Habeas Corpus at 2–3, Nonhuman Rts. Project v. Beheny, No. 260441/19, 2020 WL 1670735 (Oct. 2, 2018), https://www.nonhumanrights.org/content/uploads/Memo-of-Law-in-Support.pdf.
 See, e.g., Aff. of Karen McComb, Nonhuman Rights Project v. Beheny, No. 260441/19, 2020 WL 1670735 (Dec. 22, 2016), https://www.nonhumanrights.org/content/uploads/Karen-McComb-1-1.pdf.
 See, e.g.,Moti Nissani, Elephant Cognition: A Review of Recent Experiments, 28 Gajah 44 (2008).
 Nonhuman Rts. Project v. Breheny, WL 1670735, at *3.
 Charles Q. Choi, Elephant Self-Awareness Mirrors Humans, Live Sci. (Oct. 30, 2006), https://www.livescience.com/4272-elephant-awareness-mirrors-humans.html.
 Nonhuman Rts. Project v. Breheny, WL 1670735, at *3.
 Rachel Fobar, ‘Nothing to do, nowhere to go’: What happens when elephants live alone, Nat’l Geographic (Jan. 31, 2022) https://www.nationalgeographic.com/animals/article/what-happens-when-captive-us-elephants-live-alone.
 Nonhuman Rts. Project, Inc. ex rel. Tommy v. Lavery, 152 A.D.3d 73, 79, (N.Y. App. Div. 2017).
 Nonhuman Rts. Project, Inc., ex rel. Tommy v. Lavery, 100 N.E.3d 846, 848 (N.Y. 2018) (Lahey, J., concurring) (quoting People ex rel. Dawson v. Smith 504 N.E.2d 386, 387 (N.Y. 1986)).
 People ex rel. Nonhuman Rts. Project, Inc. v. Lavery, 124 A.D.3d 148, 151 (N.Y. App. Div. 2014).
 Nonhuman Rts. Project, Inc., ex rel. Tommy, 100 N.E.3d at 847 (2018) (Lahey, J., concurring) (citing People ex rel. Wehle v. Weissenbach, 60 N.Y. 385 (N.Y. 1875)).
 Id (citing In re Brevorka ex rel. Wittle v. Schuse, 227 A.D.2d 969 (N.Y. App. Div. 1996)).
 Brief for Matthew Liebman et al., as Amici Curie Supporting Plaintiffs-Appellants at 10, Nonhuman Rts. Project v. Breheny, 189 A.D.3d 583 (2020) (No. 2600441/19), https://www.nonhumanrights.org/content/uploads/NonhumanvBreheny-Amic-LawProf-Mot.pdf.
 Nonhuman Rts. Project, Inc. ex rel. Tommy v. Lavery, 152 A.D.3d 73, 78 (N.Y. App. Div. 2017).
 Michael Safi, Ganges and Yamuna Rivers Granted Same Legal Rights as Human Beings, The Guardian (Mar. 21, 2017), https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings.
 Eleanor Ainge Roy, New Zealand River Granted Same Legal Rights as Human Beings, The Guardian (Mar. 16, 2017), https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.
 Orangutan Sandra Granted Personhood Settles into New Florida Home, The Guardian (Nov. 7, 2019), https://www.theguardian.com/world/2019/nov/07/sandra-orangutan-florida-argentina-buenos-aires.
 Nicole Pallotta, Islamabad High Court Holds That Animals Have Legal Rights, Animal Legal Def. Fund (Oct. 20, 2020), https://aldf.org/article/islamabad-high-court-holds-that-animals-have-legal-rights/.
 Nonhuman Rts. Project, Inc., ex rel. Tommy v. Lavery, 100 N.E.3d 846, 849 (2018) (Lahey, J., concurring).