Happy The Elephant Has Yet To Be Freed
Three years ago today, was Happy’s hearing before the New York Court of Appeals.
I’m sharing this piece again. I wrote it on May 27, 2022, and nothing much has changed since then. Nonhuman Rights Project lost the case because Habeas Corpus applies to humans ONLY, not to non-human animals, according to the majority of the presiding judges. However, Honorable Judges Jenny Rivera and Rowan D. Wilson voiced their dissent: Judge Rivera stated that
“captivity is inherently unjust and inhumane. It is an affront to a civilized society, and every day she remains a captive—a spectacle for humans—we, too, are diminished.”
And here is Judge Wilson’s statement:
“we should recognize Happy’s right to petition for her liberty not just because she is a wild animal who is not meant to be caged and displayed, but because the rights we confer on others define who we are as a society … When the majority answers, “No, animals cannot have rights,” I worry for that animal, but I worry even more greatly about how that answer denies and denigrates the human capacity for understanding, empathy and compassion.
Last summer people who cared and worried about Happy’s wellbeing were concerned, because she had vanished from view for ten weeks. When she was seen again, she was obseved lying down a lot, an unusual behavior for a healthy elephant, and her feet showed damage as well. Zoo officials dismissed any concerns and claim that Happy and Patty, the Bronx Zoo’s other captive elephant (they’re in separate enclosures) are doing well and are healthy.
On February 12 the New York City Bar Association sent a letter to New York government officials urging them to transfer both Happy and Patty to a more suitable location because “Happy’s and Patty’s best chance for improvement lies with their relocation to an appropriate animal sanctuary.” It concludes:
We implore the City, acting through its various agencies and the City Council, to relieve Happy’s and Patty’s obvious suffering and exercise its powers and/or its influence to allow Happy and Patty the chance to live out the remainder of their lives at an accredited sanctuary, free of the impoverishments they have been forced to endure.
Maybe you have heard of Happy, the elephant who is actually anything BUT happy. She lives at the Bronx Zoo, all alone since 2006, without another elephant companion. We know enough about the behavior of these great pachyderms to confidently state that they form strong social bonds of companionship, friendship, and family. It’s a travesty to deprive her of a mate. Besides that, she is confined to a 1.15-acre exhibit, when elephants in the wild walk tens of miles a day. A New York Times article from 2015 called Happy The Bronx Zoo's Loneliest Elephant.
In 2018 the Nonhuman Rights Project (NhRP), an organization founded in 1996 by animal protection lawyer Steven M. Wise, filed a petition with the New York Supreme Court demanding recognition of Happy’s legal personhood and fundamental right to bodily liberty and her release to an elephant sanctuary. The Wildlife Conservation Society (which manages the Bronx Zoo) appealed, and ever since then court hearings went back and forth, the zoo management claiming that Happy is indeed happy and has everything she needs. One should mention here that In Defense of Animals ranked the Bronx Zoo as #1 of their 10 Worst Zoos for Elephants 2018 list.
Numerous philosophers, legal scholars, a former judge, and various theologians have submitted amicus curiae briefs in support of NhRP’s petition on Happy’s behalf. For example, Justin Marceau (Professor of Constitutional and Criminal Law, University of Denver, Sturm College of Law) and Samuel Wiseman (Professor of Constitutional Law and Criminal Procedure, Penn State Law at University Park) wrote:
One of the greatest blemishes on our justice system is the wrongful detention of persons. The Writ of Habeas Corpus is one of the tools available to correct injustices by requiring a person’s captors to justify the person’s imprisonment to the courts. While the Writ has provided a procedural vehicle for vindicating the right of thousands of humans to not be unlawfully detained, this brief argues that the time has come to consider the Writ’s application to other cognitively complex beings who are unjustly detained. The non-humans at issue are unquestionably innocent. Their confinement, at least in some cases, is uniquely depraved—and their sentience and cognitive functioning, and the cognitive harm resulting from this imprisonment, is similar to that of human beings.1
On May 18 the Court of Appeals heard arguments on both sides for Happy’s release and relocation to an elephant sanctuary. The court will announce its decision in about four to six weeks.
Happy was born in 1971, probably in Thailand. Soon after her birth she was captured together with six other calves, and they all were shipped to the US and sold to Lion Country Safari Inc. They were named after the dwarves in Snow White and the Seven Dwarves. One of them, Sleepy, died the same year. In 1977 all the remaining elephants were sold to circuses and zoos across the US. That’s how Happy and her sister Grumpy ended up at the Bronx Zoo where they had to perform as entertainers, alongside an older female, Tus, wearing costumes and giving rides to kids. Grumpy was euthanized in 2002 after two other captive elephants had attacked her. The zoo assigned a different elephant, Sammie, as Happy’s companion, but Sammie had to be euthanized in 2005 because of kidney failure. Ever since then, Happy is all alone.
At the center of NhRP’s legal proceedings is the question of Happy’s “personhood”. In the eyes of the law all non-human animals are considered property, whereas a “person” has rights and protections. While a human is legally protected from being hurt, exploited, murdered, tortured, or otherwise negatively inflicted upon, an animal has the same status as a chair or an old shoe. It can be used until it is useless and then it’s discarded.
More and more individuals, both professionals as well as lay persons, find this way of treating animals repulsive and unacceptable. For example, more than half of the law schools in the United States offer animal law courses2, a trend that started in the 1980s and 1990s. I believe that stronger legal protection is probably the fastest way to grant non-human animals the possibility of a life without unnecessary suffering and pain. I wish that all vertebrates such as mammals, birds, fish etc., and some invertebrates, for example octopuses and squid, would be able to acquire something similar to the full right of personhood, because they are thinking and feeling living beings. We don’t deny a toddler the right of personhood, or somebody who is mentally challenged or developmentally disabled.
I consider the trend to grant non-human animals greater legal protection to be one of, or maybe THE most significant cultural development of the late twentieth and early twenty-first century. Besides the Nonhuman Rights Project, there is the Animal Legal Defense Fund, an NGO that fights “to expand the boundaries of the law toward greater recognition that animals are more than mere property and deserve a legal status that reflects their nature as living, feeling beings”3 The Animal Law & Policy Program at Harward and similar programs at UC Berkeley, Yale, and other prestigious law schools offer law degrees for people who want to improve the lives of animals. That’s so encouraging.
And there IS already a non-human animal who enjoys non-human personhood: Sandra, an orangutan who is 36 years old, was born in Germany, and ended up at the Buenos Aires Zoo where she lived from 1994 to 2019 when she was transferred to the Center for Great Apes in Wauchula, Florida. In a court ruling on October 21, 2015, Argentina Justice Elena Amanda Liberatori ruled that Sandra is a non-human person and ordered the city of Buenos Aires to provide what is "necessary to preserve her cognitive abilities".4 She based her ruling on the fact that non-human animals have sentience, meaning they are able to perceive their environment and translate these perceptions into feelings such as suffering or pleasure. This eventually led to Sandra’s release from the Buenos Aires Zoo.
What do you think: should animals be granted legal personhood? Please leave a comment, I’d love to know! Keep in mind that “legal personhood” is not synonymous with “human being” but would grant an animal some of the legal rights that humans are entitled to. Corporations enjoy legal personhood, with hugely damaging results – bestowing more legal protection on animals would do some good, instead.
Humans have some awful tendencies. To state that nonhuman have no agency is just one step from saying that blacks, or Jews, or women deserve no agency. The current political climate is trying to narrow down the definition of acceptable agency to, basically, white males and everything else is a step down. thanks Jessica.