*Torra Hausmann
I. From Animal Welfare to Animal Rights
For more than two decades, the Nonhuman Rights Project (NhRP), a Florida-based animal rights group, has advocated for judicial recognition of legal personhood for nonhuman animals.[1] Although animal law traditionally focused on animal welfare and protection, NhRP has pushed animal law to expand and include a focus on legal rights for nonhuman animals.[2] NhRP’s advocacy efforts currently focus primarily on filing writs of habeas corpus, seeking to free animals from “imprisonment” within zoos and other forms of captivity.[3] NhRP’s most recent success in campaigning for animal personhood involved its habeas corpus petition for an elephant named Happy.[4]
II. Legal Precedents Around the World
Although legal personhood for nonhuman animals is largely an issue of first impression in the United States, other countries have previously addressed the issue. In Pakistan, an elephant named Kavaan made headlines when lawyers argued that anti-cruelty laws, Pakistan’s constitution, and Islamic principles protected his rights.[5] The Islamabad High Court agreed with Kavaan’s lawyers, recognizing animals as “sentient” and ordered Kavaan’s immediate release and transfer to an elephant sanctuary in Cambodia.[6]
In India, a 2014 case about bull-taming led the country’s supreme court to rule that all nonhuman animals have rights, including the right to life.[7] The Supreme Court of India further explained that the right to life encompassed more than survival, but also included the right to live with “worth, honour, and dignity.”[8] In a 2016 case in Argentina, a court ruled that a chimpanzee named Cecilia was a legal person with the same inherent, fundamental rights enjoyed by all persons.[9]
Similar legal precedents are virtually non-existent in the United States, but groups like NhRP aim to change the precedent. In 2015, NhRP filed a habeas corpus petition in New York on behalf of two chimpanzees, ultimately securing a show cause hearing. Nonhuman Rts.[10] The court denied the petition, citing New York precedent that held a chimpanzee could not be a “person” because it could not bear legal responsibilities or societal duties.[11] Now, NhRP aims to change that precedent, eyeing success in New York after being granted a hearing in front of the New York Court of Appeals to argue the merits of its petition for Happy.[12] The hearing is the first of its kind for an elephant in United States history.[13]
III. Happy the Elephant’s Habeas Corpus Petition
Happy is a 50-year-old Asian elephant who has lived at the Bronx Zoo for 40 years.[14] She is currently one of two Asian elephants at the Bronx Zoo.[15] However, NhRP chose Happy as a plaintiff specifically because of her high level of intelligence.[16]During a 2005 “mirror test,” which tests an animal’s cognitive abilities and intelligence,Happy recognized and interacted with her reflection.[17] This breakthrough represented the first known case of an elephant “passing” the mirror test.[18] Animal scientists at Emory University explained that a successful mirror test indicates elevated levels of intelligence and self-awareness, including an awareness of mental state, thoughts, emotions, and other qualities associated with sentience.[19]
The legal battle for Happy’s personhood began in October 2018 when NhRP first filed a petition for a writ of habeas cosrpus with the New York Supreme Court.[20] The petition moved forward when the Honorable Judge Bannister issued an Order to Show Cause on November 16, 2018, marking the second time in U.S. legal history that a habeas corpus show cause order was granted on behalf of an animal.[21] After addressing procedural issues related to venue, the New York Supreme Court heard three separate days of oral arguments regarding the merits of the petition.[22]
Finally, in January 2020, Judge Tuitt issued a decision in February 2020 in favor of the Bronx Zoo, citing New York precedent denying personhood to chimpanzees, despite agreeing that Happy “is an intelligent, autonomous being,” deserving of respect and entitled to dignity and liberty.[23] NhRP appealed, but the appeal was denied in December 2020.[24] With legal avenues rapidly closing, NhRP filed a motion requesting that the New York Court of Appeals hear arguments regarding Happy’s habeas corpus petition.[25] Countless legal experts, philosophers, animal rights advocates, and animal scientists filed amicus briefs in support of Happy’s case.[26]
On May 4, 2021, the Court of Appeals granted leave to appeal.[27] Although oral arguments have yet to be scheduled, the briefing is complete.[28]
IV. NhRP’s Argument for Updated Legal Standards and Precedents
In its brief for the New York Court of Appeals, NhRP argues that Happy merits the legal designation of “person” and that U.S. legal precedents should be updated accordingly.[29] Because current U.S. jurisprudence does not recognize legal personhood for nonhuman animals, Happy is currently considered chattel, or “merely a thing.”[30] NhRP contends that this must change.[31]
NhRP’s arguments are not limited to philosophical assertions about the meaning of personhood.[32] It also argues that Happy’s captivity is akin to imprisonment.[33]Citing empirical data and affidavits from leading experts in the field, NhRP argues that elephants like Happy are sentient beings with complex needs that cannot be provided for in captivity.[34] Emphasizing Happy’s intelligence and mirror test results, NhRP argues that Happy’s solitary existence within her enclosure is akin to solitary confinement, especially after her two companion elephants, Grumpy and Maxine, died in 2002 and 2006, respectively.[35] In its argument, NhRP places Happy’s intelligence, self-awareness, and other sentient qualities in the context of current habeas corpus legal standards, urging the New York Court of Appeals to update legal precedent to include space for nonhuman animals, a legal standard already seen in many other jurisdictions around the world.[36]
V. The Bronx Zoo’s Argument Against Nonhuman Animal Personhood
The Bronx Zoo relies heavily on the lack of legal precedent in the U.S. to argue against the notion of expanding personhood to include nonhuman animals.[37] In addition, the Bronx Zoo cites the 2015 NhRP chimpanzee case, where the court held that legal precedent did not support personhood for chimpanzees.[38] Therefore, the Bronx Zoo emphasizes that New York’s Appellate Division already decided the issue of personhood for nonhuman animals, holding that the issue was for the legislature and not for the courts.[39]
The Bronx Zoo also notes that NhRP acknowledges Happy’s care within the Zoo to be adequate.[40]Because habeas corpus petitions are based on the illegality of confinement, the Bronx Zoo challenges the petition’s core arguments by stating that NhRP failed to allege illegality, rendering the petition void.[41] Interestingly, the Bronx Zoo argues that habeas corpus petitioners may not request a transfer from one place of confinement to another place of confinement.[42]Relying on legal precedent, the Bronx Zoo argues that a habeas corpus petition is improper because NhRP is requesting a transfer from one place of confinement (the Zoo) to another place of confinement (a Sanctuary in Florida).[43]
VI. Conclusion
Happy’s fate remains unknown as observers wait for the New York Court of Appeals to select a hearing date. The true implications of legal personhood for nonhuman animals are not yet clear. If the New York Court of Appeals grants personhood to Happy, what would this ruling mean for constitutionally protected property rights over animals? Would the ruling only apply to elephants or to all animals displaying sentient qualities? What would be the standards for confirming the existence of sentient qualities in animals?
While these potential challenges seem far off considering that Happy’s petition has not yet been scheduled for oral argument, discussions already occurring in the legal field regarding potential repercussions illustrate the immensely complicated issue facing the New York Court of Appeals. The question remains: does Happy the Elephant have a legally protected right to life, liberty, and the pursuit of happiness?
*Torra Hausmann is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, and a distinguished scholar in the Royal Graham Shannonhouse III Honor Society. She also serves as a teaching assistant for Professor Hubbard. This past summer, Torra worked as a law clerk at Hyatt & Weber, P.A. in Annapolis. She continues to work at the firm, focusing primarily on estate planning, estate administration, and civil litigation.
[1] See Frequently Asked Questions, Nonhuman Rts. Project, https://www.nonhumanrights.org/frequently-asked-questions/ (last visited Dec. 20, 2021).
[2] Steven Wise, A Proposal for a New Taxonomy of Animal Law, Nonhuman Rts. Project: Blog (Dec. 12, 2017), https://www.nonhumanrights.org/blog/new-taxonomy-animal-law/.
[3] See Progress, Nonhuman Rts. Project, https://www.nonhumanrights.org/progress/ (last visited Aug. 29, 2021).
[4] See Client: Happy, Nonhuman Rts. Project, https://www.nonhumanrights.org/client-happy/ (last visited Aug. 24, 2021).
[5] See Rachel Fobar, A Person or a Thing? Inside the Fight for Animal Personhood, Nat’l Geographic (Aug. 4, 2021), https://www.nationalgeographic.com/animals/article/inside-the-ongoing-fight-for-happys-freedom.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Project v. Stanley, 16 N.Y.S.3d 898 (N.Y. Sup. Ct. 2015).
[11] Id.
[12] New York Court of Appeals Agrees to Hear Landmark Elephant Rights Case, Nonhuman Rts. Project: Blog (May 4, 2021), https://www.nonhumanrights.org/blog/appeal-granted-in-landmark-elephant-rights-case/.
[13] Id.
[14] Client: Happy, supra note 4.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] All Things Considered, Elephants Have a Concept of Self, Study Suggests, NPR (Oct. 31, 2006, 4:00 PM), https://www.npr.org/templates/story/story.php?storyId=6412620.
[20] See Petition for Writ of Habeas Corpus, Nonhuman Rts. Project v. Breheny, No. 260441/29, 2020 WL 1670735 (N.Y. Sup. Ct. Feb. 18, 2020).
[21] See Order to Show Cause, Nonhuman Rts. Project v. Breheny, No. 260441/29, 2020 WL 1670735 (N.Y. Sup. Ct. Nov. 16, 2018), https://www.nonhumanrights.org/content/uploads/Order-to-Show-Cause-Happy.pdf.
[22] Client: Happy, supra note 4.
[23] Nonhuman Rts. Project v. Breheny, No. 260441/29, 2020 WL 1670735, at *10 (N.Y. Sup. Ct. Feb. 18, 2020).
[24] See Nonhuman Rts. Project v. Breheny, 189 A.D.3d 583 (N.Y. App. Div. 2020).
[25] Motion for Permission to Appeal, Nonhuman Rts. Project v. Breheny, No. 0260441/2019 (N.Y. Jan. 19, 2021).
[26] Id.
[27] Nonhuman Rts. Project v. Breheny, 168 N.E.3d 857 (2021).
[28] See Client: Happy, supra note 4 (providing a timeline and electronic copies of relevant court filings).
[29] Brief for Petitioner-Appellant, Nonhuman Rts. Project v. Breheny, No. APL-2021-00087 (N.Y. July 2, 2021).
[30] Id. at 21–22.
[31] Id.
[32] Id. at 25–26.
[33] Id.
[34] Id. at 27–32.
[35] Id. at 7–9.
[36] Id. at 21–25.
[37] Brief for Respondents at 18–25, Nonhuman Rts. Project v. Breheny, No. APL-2021-00087 (N.Y. Aug. 20, 2021).
[38] Id. at 31–33.
[39] Id. at 18.
[40] Id. at 45–46.
[41] Id. at 49–50.
[42] Id.
[43] Id. at 49–53.
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