The Elephant in the Courtroom


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According to the civil-law code of the state of New York, a writ of habeas corpus may be obtained by any “person” who has been illegally detained. In Bronx County, most such claims arrive on behalf of prisoners on Rikers Island. Habeas petitions are not often heard in court, which was only one reason that the case before New York Supreme Court Justice Alison Y. Tuitt—Nonhuman Rights Project v. James Breheny, et al.—was extraordinary. The subject of the petition was Happy, an Asian elephant in the Bronx Zoo. American law treats all animals as “things”—the same category as rocks or roller skates. However, if the Justice granted the habeas petition to move Happy from the zoo to a sanctuary, in the eyes of the law she would be a person. She would have rights.

Humanity seems to be edging toward a radical new accommodation with the animal kingdom. In 2013, the government of India banned the capture and confinement of dolphins and orcas, because cetaceans have been proved to be sensitive and highly intelligent, and “should be seen as ‘non-human persons’ ” with “their own specific rights.” The governments of Hungary, Costa Rica, and Chile, among others, have issued similar restrictions, and Finland went so far as to draft a Declaration of Rights for cetaceans. In Argentina, a judge ruled that an orangutan at the Buenos Aires Eco-Park, named Sandra, was a “nonhuman person” and entitled to freedom—which, in practical terms, meant being sent to a sanctuary in Florida. The chief justice of the Islamabad High Court, in Pakistan, asserted that nonhuman animals have rights when he ordered the release of an elephant named Kaavan, along with other zoo animals, to sanctuaries; he even recommended the teaching of animal welfare in schools, as part of Islamic studies. In October, a U.S. court recognized a herd of hippopotamuses originally brought to Colombia by the drug lord Pablo Escobar as “interested persons” in a lawsuit that would prevent their extermination. The Parliament of the United Kingdom is currently weighing a bill, backed by Prime Minister Boris Johnson, that would consider the effect of government action on any sentient animal.

Although the immediate question before Justice Tuitt was the future of a solitary elephant, the case raised the broader question of whether animals represent the latest frontier in the expansion of rights in America—a progression marked by the end of slavery and by the adoption of women’s suffrage and gay marriage. These landmarks were the result of bitterly fought campaigns that evolved over many years. According to a Gallup poll in 2015, a third of Americans thought that animals should have the same rights as humans, compared with a quarter in 2008. But protecting animals in this way would have far-reaching consequences—among them, abandoning a centuries-old paradigm of animal-welfare laws.

Arguments in Happy’s case began in earnest on September 23, 2019, in an oaken courtroom populated with reporters, advocates, and attorneys for the zoo. Kenneth Manning, representing the Wildlife Conservation Society, which operates the Bronx Zoo, made a brief opening argument. He pointed out that the plaintiff—the Nonhuman Rights Project, or NhRP—had already bounced through the New York court system with half a dozen similar petitions on behalf of chimpanzees. All had failed. Manning read aloud from one of those decisions, which ruled that “the asserted cognitive and linguistic capabilities of a chimpanzee do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions,” and that the animal therefore could not be entitled to habeas corpus. The NhRP countered that “probably ten per cent of the human population of New York State has rights, but cannot bear responsibilities, either because they are infants or they are children or they are insane or they are in comas or whatever.”

Manning urged Justice Tuitt to follow precedent: “The law remains well settled that an animal in New York simply does not have access to the habeas-corpus relief, and that’s reserved for humans. So, there is nothing in this case dealing with any claim of mistreatment or malnourishment or anything with respect to Happy the Elephant.” Manning summarized, “In short, Your Honor, Happy is happy where she is.”

Happy’s pen, at the Wild Asia exhibit in the Bronx Zoo, exemplifies the aesthetic of late-twentieth-century zoo design: creating the illusion of a natural habitat and disguising, as much as possible, the fact of captivity. There is a beaten path, which Happy has trodden alone for the past sixteen years, encircling a small pond with water lilies, where she can bathe and wallow. Leafy trees surround a one-acre enclosure, which is dominated by an artificial dead tree trunk, artfully fashioned with hollows and scaling bark. The enclosure has to be cleaned constantly, as a female Asian elephant can eat up to four hundred pounds of vegetation a day and excrete about sixty per cent of that. Another elephant, Patty, lives in an adjacent pen. From November to May, when the New York weather can be cold, the animals are reportedly quartered in separate stalls scarcely twice the length of their bodies.

Happy, who weighs approximately eighty-five hundred pounds, has a high, twin-domed head, resembling that of an octopus, and the small, round ears that distinguish the Asian species from the larger African species. When I recently visited the zoo, her back was covered in dust, which elephants often use to guard against the sun and insects. Happy’s heavy-lidded eyes are almost invisible in the great mass of her head; elephants are color-blind but see especially well at night. Her skin is gray and uniform, and has the soft, wrinkled complexity of a cerebral cortex.

She and Patty will be the last elephants to inhabit the Bronx Zoo: in 2006, the institution announced that no more would be acquired. Across the country, zoos have been responding to the growing public sentiment that elephants do not belong in captivity. Although elephants are social animals, Happy and Patty don’t get along, so they are separated by a cable fence, living in parallel solitary confinement. The zoo’s attorney was correct, though, in stating that there had been no charges of abuse. Nothing in the vast portfolio of animal-welfare laws prohibits zoos from locking an elephant—who, in the wild, ranges many miles a day—inside a pen a fifth the size of a New York City block. Most elephants in American zoos have lived in spaces half as large.

Happy was born in 1971 and was kidnapped as an infant from a herd in Thailand, likely through the method of killing her mother and other female protectors. According to a database maintained by Dan Koehl, a renowned Swedish elephant keeper, Happy was sent to a drive-through zoo in Laguna Hills, California, which had purchased her and six other baby Asian elephants, naming them for the Seven Dwarfs. One of them, Sleepy, died soon after arrival. The others were eventually transferred. Dopey and Bashful became circus performers. Sneezy went to the Tulsa Zoo, where he still resides. Doc, renamed Vance, broke his leg while doing a hind-leg walk at a zoo in Ontario; his leg never healed, and he was euthanized. That left Happy and Grumpy, who arrived in 1977 at the Bronx Zoo, often ranked as one of the world’s best.

Few organizations have done as much for protecting animals in nature as the Wildlife Conservation Society, which, in addition to the Bronx Zoo, operates the Central Park Zoo, the Prospect Park Zoo, the Queens Zoo, and the New York Aquarium. The society focusses on the conservation of six “flagship” groups: apes; big cats; sharks, skates, and rays; whales and coastal dolphins; tortoises and freshwater turtles; and elephants. One of the society’s first projects, in 1905, helped save the American bison from extinction. A campaign called 96 Elephants—named for the number of elephants thought to be killed every day by poachers—was launched in 2013. James Breheny, the director of the Bronx Zoo, stated that the society had “led the charge to help stop the ruthless slaughter of 35,000 African elephants each year for the ivory trade.”

As for Happy, Breheny declared, with evident frustration, “We are forced to defend ourselves against a group that doesn’t know us or the animal in question, who has absolutely no legal standing, and is demanding to take control over the life and future of an elephant that we have known and cared for over 40 years.” He went on, “They continue to waste court resources to promote their radical philosophical view of ‘personhood.’ ”

“The police want to ask you a few questions about where you get such good health insurance at such an affordable rate.”
Cartoon by P. C. Vey

According to the NhRP, it has repeatedly offered to drop the case if the zoo consents to send Happy to one of two sanctuaries, in Tennessee and in California, that have indicated a readiness to accept her. Given the zoo’s stated intention of eventually shutting the exhibit down, its refusal to settle the case suggests an institutional desire to put an end to the campaign for animal personhood. Officials for the society and the Bronx Zoo refused repeated requests to comment for this article.

Steven Wise, the founder of the NhRP, grew up in Maryland, and his family went to a farmers’ market once a month. There were animals for sale—in particular, chickens, crammed into small cages. To Wise, they appeared to be suffering. Although he had pets—a dog, named Gravy, and a succession of goldfish, mostly named Jack—he had given little thought to the question of animal welfare. But the plight of the chickens so moved him that, at the age of eleven, he wrote a letter to a state representative to call his attention to the subject. The representative wrote back, but nothing changed for the chickens.

As a teen-ager, Wise joined a couple of rock bands, vaguely hoping to make a career in music. In 1968, he enrolled at the College of William & Mary. Drawn to protests against the Vietnam War and issues of social justice, he became active in left-wing politics. He thought about going to medical school, but his grades weren’t good enough. He attended law school at Boston University instead, but he was drifting. He had the profile of someone who was looking for a cause.

Momentous social revolutions often begin with a book. The modern animal-rights movement was born in 1975, with the publication of Peter Singer’s “Animal Liberation.” Singer, an Australian philosopher, popularized the concept of “speciesism,” which he compared to racism and sexism. “All animals are equal,” he asserted, adding, “The basic principle of equality does not require equal or identical treatment; it requires equal consideration.” Singer did not actually advocate for legal rights but for expanded welfare, declaring that the moral argument for equality rests exclusively on an animal’s capacity for suffering and happiness, not on its intellect or its abilities. His thinking can be traced to the utilitarianism of Jeremy Bentham, the Enlightenment-era English legal philosopher and reformer. The guiding principle of utilitarianism is that society should attempt to provide the greatest happiness to the greatest number, which is typically achieved by maximizing pleasure and minimizing pain. Bentham made an enduring case for animal welfare when he wrote, “The question is not, Can they reason? nor, Can they talk? but, Can they suffer?” In 1980, a friend of Wise’s handed him a copy of “Animal Liberation.” Like many of Singer’s readers, he was instantly transformed. Wise’s mission in life became blazingly clear. He would defend the most brutalized and defenseless creatures: nonhuman animals.

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