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 his entire half-century of existence, was not entitled to the writ of habeas corpus. and therefore would not be released into an elephant sanctuary where she could live out the rest of her life engaged in the kind of activities more satisfying to members of her species than possible in her current state of mostly solitary isolation. The reasoning of the majority opinion in In Nonhuman Rights Project, Inc. v. Breheney is largely circular, as I explain below.
The majority is right about one thing. He rightly notes that the Non-Human Rights Project (NhRP), which litigated on Happy’s behalf, has now failed in each of its habeas corpus suits on behalf of captive chimpanzees and elephants. So is it time to try a different approach?
Maybe not. The Happy case marks a potential turning point because two members of the court – Justices Wilson and Rivera – dissented, showing that, to use a phrase coined by Yale law professor Jack Balkin, the arguments in animal rights are no longer so “offbeat” that almost everyone mindlessly dismisses them. Future litigation, legislation and campaigns to influence public opinion could rely on thoughtful and compassionate dissent. The success of these efforts will depend in part on what animal advocates learn from Happy’s case.
The majority opinion uses ipse dixit and biased reasoning to outright dismiss the possibility of granting habeas corpus to an elephant. The basic movement is stipulated. While acknowledging that habeas corpus is flexible and has evolved over time, the court says there is a limit to the flexibility of the writ. It is “a mechanism aimed at guaranteeing the recognition of the rights to the liberty of Human being— even those whose rights had not yet been duly recognized by established law. (Emphasis in original).
Notwithstanding the use of italics, the foregoing language is a mere assertion. The NhRP and dissenters have argued that at one time rights were denied to children, women and enslaved people. The court’s response is that all of these people were nonetheless human. Yet, before rights were extended to children, it could have been said that they were limited to adults; before rights were extended to women, they were limited to males; before extending to people reduced to slavery, they were limited to free people (or white people). To say that all prior extensions of a right fall into a category is not an argument against extending rights beyond that category unless there is a good reason for the category. This is why I say that the reasoning of the majority is circular.
Admittedly, the majority completes its non-argument with poor reasoning. For example, the court says that elephants cannot be entitled to habeas because they cannot bear legal obligations. Yet many human beings – very young children, people with severe developmental disabilities, and very old people struggling with dementia or similar conditions – cannot be given legal obligations either. This does not deprive them of rights. The majority ignores 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 everything human beings have this ability. The court implicitly claims that a being who cannot assume duties is entitled to rights by virtue of its membership in a species of which most other members can assume duties. But that amounts to another simple assertion that being human is essential to legal rights. Speciesism is an article of faith, not an argument.
The Majority fault the NhRP for comparing Happy’s captivity to the plight of abused women and enslaved people, calling the latter “an odious comparison with concerning implications”. Yet while good defenders make such comparisons rarely and sensitively, the objection is almost always wrong. Animal rights opponents believe that by comparing the suffering of nonhuman animals to that of enslaved or otherwise oppressed humans, animal advocates want to trivialize the latter, when clearly they mean no such thing. . If one values the experiences of elephants and other animals, then the comparison is intended to elicit empathy for non-human animals, in no way to diminish the experience of humans. Thinking people get the point, as the dissenters have shown: Judge Wilson is African American; Judge Rivera is a woman.
The majority opinion also makes two errors regarding the remedy. First, the court states that habeas is not available when the petitioner is simply asking for a transfer from one form of custody to another. This proposition is manifestly false. As the dissenters note, courts routinely grant writs of habeas corpus without ordering release. Consider that petitioners facing the death penalty can file habeas petitions to challenge their conviction, even if the remedy will be an extension of imprisonment.
Second, the majority suggest that release into a sanctuary may not allow Happy to experience the rich social life that elephants enjoy in the wild, as Happy has a history of conflict with other elephants. Yet, as Judge Wilson observes in his dissent, the expert evidence adduced by the petitioners indicated that in a more appropriate environment, Happy’s behavior would likely change. Accordingly, he explained, the proper disposition is to hold an evidentiary hearing, which the majority decision refuses to allow because of Happy’s case.
The slippery slope
In addition to questionable logic and outright errors, the majority opinion contains reasoning that has real force. The Bronx Zoo, other zoos and circuses are phasing out elephant exhibits and shows. The stakes therefore seem low. But the court worries about a slippery slope from elephants to pigs, cows, chickens, beagles, rats and other animals. “Granting legal personality to a non-human animal,” the court wrote, “would have significant implications for human-animal interactions in all facets of life, including the risk of disruption of property rights, the agricultural industry (among others) and medicine. research efforts.
The slippery slope presented a dilemma for NhRP advocates and authors of the 18 friend briefs support Happy. With Harvard Law Professor Laurence Tribe and my colleague and colleague from Cornell Law Judgement 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 result in the end of animal farming and testing, even though many of us animal advocates view these businesses as unjust. also.
The main Brief from the PNRH did not directly address the implications for other non-human animals, but by pointing out the extraordinary cognitive abilities of elephants and the way they resemble humans, NhRP lawyers gave the court an opportunity to draw a line between “great” animal species such as elephants, great apes, dolphins, whales and parrots, on the one hand, and other animals, on the other. My memoir with Professors Colb and Tribe pointed out that Happy’s confinement deprives her of the ability to perform her elephant abilities. If it were up to me, I’d say the confinement (and abuse) of other types of animals used for food, fiber, and experimentation robs them of the ability to perform their respective abilities, but our memory does not compel this conclusion.
The dilemma posed by judges’ fear of a slippery slope is not unique to Happy’s case. Case attorneys seeking reform know that to achieve even modest gains, they must reassure cautious judges that those gains will not necessarily lead to more radical change, even if case attorneys favor change. radical. During Jim Crow, lawyers seeking to equalize funding for racially segregated schools had to reassure the courts that they were not challenging the separation but equality itself. In the 1990s and early 2000s, lawyers for same-sex couples seeking legal recognition of domestic partnerships or civil unions had to provide reassurance that such recognition would not lead to full equality in the wedding.
The discomfort we lawyers may feel in offering judges a ramp out of the slippery slope is ultimately irrelevant. The real question is whether the litigation will succeed. As the NhRP recognizedthe Court of Appeals decision is “a loss to Happy, whose liberty was at stake in this case and who remains imprisoned in an exhibit at the Bronx Zoo.”
Happy’s case, however, could do a lot of good for other elephants and non-human animals by raising awareness of the grave injustices humans commit against members of other species. Ultimately, the answer to the slippery slope is to persuade enough people – including ordinary citizens, lawmakers and judges – that they needn’t be afraid of slipping down the slope, only at the bottom of the slope , they will find justice.