Lawyers for Happy, a 47-year-old Asian elephant that lives alone at the Bronx Zoo, are traveling this week to a court in a rural county in the northwest corner of New York for a hearing scheduled for Friday on their efforts to get the animal released.
At issue is the legal personhood of nonhumans who come before the court.
The effort is being led by the Nonhuman Rights Project and its president, Steven Wise, who has been advocating for years to establish legal rights for animals. He and the group recently fought for the release of two chimpanzees, Tommy and Kiko, from captivity in New York, but ultimately lost.
But the group says judges seem to take its arguments more seriously in recent years.
Animals have historically been seen in the eyes of the law as “things,” but the group argues that Happy is an “autonomous nonhuman being” who can take on complex tasks like recognizing her own reflection and who is entitled to the common-law right of habeas corpus.
“There’s no reason why it shouldn’t be the same for nonhumans,” Wise said in an interview.
The group received what it saw as an encouraging sign in its efforts for animals last year when, ruling on the effort to get Tommy and Kiko moved to a Florida animal sanctuary, the New York Court of Appeals denied leave to appeal a lower court’s ruling against the Nonhuman Rights Project.
Judge Eugene Fahey took the rare step of attaching a concurring opinion to the denial in which he called out the panel of the Appellate Division, First Department, which ruled to deny habeas for the chimps, for basing its ruling just on the fact that Tommy and Kiko weren’t members of the human race.
Fahey went further to say that denial of the leave was not based on the merits that there may be a time when the law must choose if animals can be subject to habeas petitions or if they are “things” under the letter of the law.
“I continue to question whether the court was right to deny leave in the first instance,” Fahey wrote. “The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching.”
Fahey formerly served as a justice in the Appellate Division, Fourth Department, which ruled earlier this year that an auto dealership that fell victim to a vandal was a private corporation and thus had legal personhood.
To fight for Happy’s freedom, the Nonhuman Rights Project looked to the courts of the Fourth Department, which is based in Buffalo. The group found Orleans County, which is about 380 miles from the Bronx Zoo, and state Supreme Court Justice Tracey Bannister presides over the case.
In addition to past setbacks in the courts, advocates for nonhuman rights have their share of critics.
The Bronx Zoo did not respond to a request for comment for this article, but when the case got started in October, James Breheny, the zoo’s director, put out a statement in which he said that the Nonhuman Rights Project was purveying “ludicrous legal arguments and lies about our elephants, facilities and staff.”
Also among them is Wesley J. Smith, an attorney and a senior fellow at the Seattle-based Discovery Institute, who said those fighting for the rights of nonhumans are “trying to destroy human exceptionalism.”
The zoo has moved for the case to be transferred to the Bronx.
“If everything has rights then nothing has rights,” Smith said. “This kind of becomes a currency with high inflation.”
Smith said there is a distinction between animal rights and animal welfare, and that animal welfare laws can be used to protect animals from inhumane conditions, rather than the Nonhuman Rights Project’s effort to free animals from captivity via writs of habeas corpus.