An Elephant Is A Person? New York’s Highest Court Will Decide
By Tamara Sepper
Is an elephant a legal “person”? That’s the big question before the New York Court of Appeals as it gears up next year to decide the fate of Happy, a female Asian elephant at the Bronx Zoo who seeks liberty from her confinement. The litigation, which could set paradigm-shifting precedent and impact a host of business interests, was described as “the most important animal-rights case of the 21st century,” by historian Jill Lepore. While it isn’t unheard of for a non-human to be deemed a “person” for purposes of the law — things such as a ship and a river have been accorded such designation — it is no easy feat. The petition for writ of habeas corpus on Happy’s behalf was filed by the Nonhuman Rights Project (NhRP), an animal rights organization, that seeks to transfer her to a sanctuary. I spoke to Steven Wise, founder and president of NhRP, about the battle before him and the journey intelligent animals like elephants and chimpanzees face from thinghood to personhood.
The following transcript has been edited for brevity and clarity
Before we get to Happy’s case, let’s set the scene. What is the current state of animal rights?
That can be a very short answer. The present state is that nonhuman animals don’t have any legal rights in the United States. What we’re trying to do is begin the process of nonhuman animals slowly being able to get rights in the United States.
The law currently views animals as things. What is the rationale for that?
Well, nonhuman animals have been legal things for more than 2,000 years. We found that when an entity has been a thing for hundreds or thousands of years, it’s hard to change it. That’s what happened with human beings. The Greeks called their slaves things. The Romans called their slaves things. At times, women were things, her children were things. It wasn’t until the 19th and 20th centuries that all humans stopped being things and started becoming persons. That’s what we’re trying to do for at least some nonhuman animals like elephants or chimpanzees or orcas. If you are a person, it means that you have the capacity for legal rights. Doesn’t mean you have any particular ones, but at least you finally have the capacity for them.
Much of the law here hinges on whether an animal could be considered a person for purposes of the law. But before we get into that issue, broadly speaking, what kind of protection do the various animal welfare laws provide?
There are different kinds of animal protection statutes in each state. They all began with anti-cruelty statutes in the 19th century. But they don’t change the fact that nonhuman animals are all seen as things and not persons, and now they’re things who have certain kinds of protections. Some statutes will say, you can’t be cruel to them; Some of them carry criminal penalties. One can go to the attorney general of a state or the police and make a complaint. The police or the attorney general can decide whether he or she wishes to do something. If they don’t, then nothing happens. There are many times when I tried to go to the police and say, this nonhuman animal is being treated cruelly. I haven’t been able to get them to do anything.
Right now the Nonhuman Rights Project represents apes, elephants, dolphins and whales who are living in captivity in the U.S. Why these animals in particular?
Well, they have all been the object of great amount of scientific study. What underlies the work we do is scientific study, scientific tests, scientists themselves. Whenever we file a lawsuit, there’ll be a number, usually five to eight world experts in the science of our nonhuman animal client. There’s not a whole lot of nonhuman animals who have been very carefully studied for as many years, for example, as a chimpanzee has. Then we speak to those who have been able to understand what sort of beings those species are. They then testify or file affidavits that testify as to what they know.
For example, when we filed our first lawsuits on behalf of chimpanzees, there were somewhere between 400 and 500 chimpanzee scientific articles that our experts brought to the attention of the court. I think elephants probably have fewer of them, but they still have enough. We’re interested then in presenting the fact that our nonhuman animal clients are actually a lot like human beings. That’s why we bring arguments both as a matter of liberty, but also a matter of equality.
What are some examples of characteristics that scientists have pointed to to show a given animal is similar to humans ?
At one point, a judge who was in favor of chimpanzees said that the answer to the question of whether a nonhuman animal like a chimpanzee should ever have a legal right depends upon our assessment of the intrinsic nature of chimpanzees as a species. They have to be something that we value. We brought affidavits from primatologists showing that they had advanced cognitive abilities including: they can remember the past, they can plan for the future, they have the capacities of self-awareness and self-control. They have the ability to communicate through sign language. They make tools to catch insects. They recognize themselves in mirrors, photographs, on television. They imitate others. They exhibit compassion and depression. They display a sense of humor. They are autonomous and they can self-initiate intentional and what they call adequately informed actions that are free of controlling inferences. In other words, they’re a lot like us.
When the scientists provide expert testimony, they’re speaking about the species, say the chimpanzee or an elephant. How do you choose which chimpanzee or which elephant your organization is going to represent?
It took us actually seven years of looking at virtually every place that we could find where judges spoke English. Just within the United States, you have 50 states, Washington, D.C., Puerto Rico and the Virgin Islands. It took us a lot of years to go through all the different places within the United States and then try to understand how those nonhuman animals were treated in each of the 53 places. We also looked at India, Australia, Pakistan, and the UK. Then of course, if we care about chimpanzees or elephants, we have to find states that have them. The ones that do, how are they being kept? For example, you might have the Tennessee Elephant Sanctuary, which keeps about 10 elephants but on some 2,600 incredibly beautiful acres. Same with PAWS out in California; a newer one by Carol Buckley in Georgia. These are way different than the Bronx Zoo, that we’re suing, where you end up having one elephant living on a half an acre to an acre of land for more than 40 years.
Let’s talk about this elephant. Her name is Happy. She’s 50 years old. How did she end up at Bronx Zoo? And what are her living conditions?
Well, she was kidnapped as a baby from her family in Southeast Asia and, after a year or two years, was sold to the Bronx Zoo. That’s where she’s been now for more than 45 years. It’s a hellish place for an elephant. The Bronx Zoo doesn’t know anything about elephants. They’ve never studied elephants. They just don’t know very much about them. Generally, if you’re an elephant who’s out in the wild, oftentimes you will move around, perhaps 20 miles a day. Also, especially if you’re a female as Happy is, you have a mother, you’ll have daughters, you’ll have sisters, and you love each other. You move around with each other. You live this life of having 20, 30, 40 elephants. They live very different lives than when you are a single elephant who’s on a half acre land.
What is the scientific consensus about elephants and their cognitive abilities?
They’re extraordinarily cognitively complex things who have this incredibly complex social relationship, their individual relationship. They’re very intelligent. They can communicate with each other and they do sometimes when they’re miles away. That was something that took elephant experts a long time to figure out because they noticed that sometimes the elephants would be communicating when they’d be three or five or 10 miles away. Were they telepathically communicating? What they eventually discovered is that they operate on a very low voice that’s beyond the human ability to hear.
One thing that always struck me about elephants is their ability to grieve. It shows you how similar they are to human beings.
It’s something we can understand, but also, think about what kind of mind they must have to be able to grieve. That means they can love someone, or something matters to them. For example, three year old children are not grieving too much. It takes humans a while to be able to grieve. The elephants are way past that. They can deeply grieve.
In 2005, Happy made history by passing the mirror self-recognition test. How does that experiment work?
Mirror self-recognitions were first used with chimpanzees, and now, they’re mostly used to test human children. What you do is chimpanzees are taught to look into a mirror. And the question is, when they look in the mirror, do they imagine that they’re looking at themselves? What they did with the chimpanzees is that they put them under anesthesia and put red dots on their head. When they woke up, they would show them their mirror.
The question was, would they think that they were looking at another chimpanzee with red dots or looking at themselves? They would touch the red dots but they would also understand when they were touching themselves, they were watching that happen. They knew that the dots were on themselves. It’s worked now with elephants. I believe that I just read last week that it was beginning to work with crows. I have read several books about crows. I just couldn’t believe how extraordinary cognitively complex crows are.
Let’s talk about this case. Historian Jill Lepore, writing in The Atlantic called it, “The most important animal-rights case of the 21st century.” Do you agree with that assessment?
I do. I had never thought of that before and I thought, well, yes, I think it is. Let me tell you what we do. Our work grows out of story of human slavery and litigation involving it and how it began and how it ended. What we saw with slavery, for example, it was very, very difficult for slaves to stop being slaves, especially in the United States but in other places too. Then there’s the other issue which most people have never thought about: we’re just biased against nonhuman animals. Just like we were biased against slaves. We were biased against women. Now people are still biased against nonhuman animals. You have to figure out what you are going to do when you go in front of judges who have never thought of this problem. The first years we went in, well, I’d say some of the judges were nice. Some of them obviously could not stand us or thought we were just wasting everybody’s time.
What I’d read about slavery told me that’s how it’s going to happen. We had to not expect that we were just going to walk into a court and have a high court say, ‘oh yeah, of course, your elephant, your chimpanzee is a person who has rights,’ that wasn’t going to happen. And so we figured the first thing we’re going to have to do is just go into court and begin to educate judges. Then what we do is that we’d hope we’d be able to run into judges who were sympathetic to us. One of the things that occurred is that we’d go in and try to get hearings on habeas corpus for say a chimpanzee, and the judges most of the time would not even hear us. We’d have zero minutes, sometimes 15 minutes, occasionally half an hour. But in Happy’s case, for the first time we were in front of a judge who allowed us to argue for 13 hours over three days. The other side was there, the Bronx Zoo, but they had no experts. Not even the experts who they hire as part of the Wildlife Conservation Society which owns the Bronx Zoo.
The judge ultimately wrote an opinion that essentially said ‘Regrettably, I have to rule against you because of a higher court, but I think you’re right.’ And then she explained why, because of who the experts were, because who the elephants are, how extraordinary they are, that they should be able to be free.
We had tried four times to go to the Court of Appeals of New York over eight years. The first three times, they said no. But this time, perhaps what we’re hearing for the first time is that one of the judges kind of broke off. He said, ‘I think that we should be looking at chimpanzees. And I suspect that they might be entitled to a legal right.’ Now, we get to argue in front of them. It’s the first time that the judges of the highest English speaking court in a jurisdiction have ever agreed to hear this kind of an argument with respect to a nonhuman animal.
These cases and this case hinges on this idea of personhood, whether an animal, say elephant like Happy, is considered a person for legal purposes. What have courts said about what constitutes a person? How would you define it if you were a judge?
I mean, if you’re not a person, you’re a thing. You only have two choices. You’re either a thing, which means you do not have the capacity for rights, or you’re a person, which means that you do. Now, by the way, this is something that the other side tries to fool the judges on but we’re trying to make sure that doesn’t happen. When you stop being a thing and become a person, what that means is that you have the capacity for a million rights or one or zero. So it’s possible, for example, for a nonhuman animal to be a person, which means they have the capacity for rights. But maybe we would bring the first case in and a judge would say, yes, this elephant is a person, but the specific right that you want, we’re not going to give to you. Then we would say, okay, well, maybe we bring another lawsuit saying maybe she’s entitled to another right. But at least she’d be able to be entitled to rights.
One of the courts you were before said that in order to be considered a “person” for legal purposes, you have to have the capacity to bear “legal rights and duties.” You argue that’s wrong. Why?
The Third Department of the New York Supreme Court’s Appellate Division ruled that chimpanzees were not allowed to have rights, because in order to have rights, you have to be able to have the capacity for duties and for rights. We argued, cases held you have to have the capacity for rights or duties.
One strange thing happened. The Third Department cited the Black’s Law Dictionary, which is what lawyers all over the United States use. The dictionary said just what they said, you had to have capacity for rights and duties. We were scratching our heads saying, that can’t be. They had cited a 50-year-old Black’s Law Dictionary. It took us months to find one in the Library of Congress. We opened it up and found that it actually said rights or duties and not rights and duties. We then emailed the publisher to say, “You got it wrong, and we’re losing cases as a result.” He apologized. The next edition of Black’s Law Dictionary changed it, but by that time, we had already lost the case. We happen to believe by the way, our elephant can have both duties and rights, and so can a chimpanzee. But we don’t have to prove that, we just have to prove that they can have the capacity for rights, and they do.
Some people argue that filing a habeas corpus petition for an animal is demeaning to the human beings who seek this relief. What is your reaction to that argument?
Well, say if you’re severely mentally ill, or if you’re a child, you have no idea what habeas corpus is. For example, in the 1830s, 1840s, where you might have a a Black child who’s been brought from a slave state into a non-slave state and a writ of habeas corpus is filed on his behalf. The child has no idea what’s going on. He doesn’t know what a lawyer is, or a court, or writ of habeas corpus, but his attorneys believe that he should be free, and so they bring the habeas corpus and the judge orders the child free. There was a case in New York, for example, where an elderly father had Alzheimer’s. He lived with his daughter in one apartment in New York City and his wife lived in another without him. The wife thought her husband should live with her, so she brought a writ of habeas corpus on his behalf. She wanted to be the one to care for him and she won. The father had no idea where he was or where he was going or what habeas corpus was, or even who he was. It has nothing to do with being able to understand it. That’s one of the beauties of a habeas corpus, it’s one of the very few causes of action where a third party has automatic standing.
If Happy wins this case, people argue that the ruling would be extended to other elephants who are at zoos, effectively ending all elephant exhibits. Do you agree with that?
If Happy was said to be a person who had a right to liberty and we can move her into a sanctuary, at that point, we would then immediately approach all the places in New York that have elephants and say, would you please move them to a sanctuary, unless for some reason their place is as good as the sanctuary, but they’re not. If they did not agree, then we would bring a habeas corpus lawsuit against them. Of course, once we step out to any other of the 49 states, their law is not New York’s law. We’d have to start all over again.
Some people argue that if people can’t see animals at zoos and interact with them, they’ll be less empathetic toward wildlife and less likely to become conservationists. What do you make of this argument?
Well, it’s kind of insane. I don’t even grasp what they’re talking about. And so we’re supposed to keep them in a way that makes them utterly miserable and terrible slaves, and somehow seeing an utterly miserable, terrible being, that’s supposed to make us feel good about conservation? When you go to a zoo, you’re not looking at anything you would see if you went to an elephant’s natural environment in the wild. By the way, the Bronx Zoo has a horrendous history in 1906 of bringing in a black pygmy and putting them in a cage in the primate house in order to make money until they were forced to stop. They have a history of being biased bigots in 1906 against Blacks, and now they’re biased bigots against elephants. It’s the same place.
The Bronx Zoo has made a bunch of arguments about why they shouldn’t release Happy, amongst them that she’s too old, she doesn’t get along with other elephants, they’ve taken care of her for 40 years so they know what’s better for her. What do you think is motivating Bronx Zoo to fight you so hard on this?
It’s money in some way. You cannot believe the stuff we see. There have been amicus briefs filed, for example by the National Association for Biomedical Research. Why would the National Association for Biomedical Research care about whether Happy stays there? The New York Farm Bureau wants Happy to stay there, the Protect The Harvest, the Alliance of Marine Mammal Parks and Aquariums, the Animal Agriculture Alliance, the Feline Conservation Foundation, the American Veterinary Medical Association. Many of these organizations are not 501(c)(3), which means that they’re nonprofit, they’re 501(3)(6), like the American Veterinary Medical Association, and the National Association for Biomedical Research. In other words, it’s a business. Their purpose is to make money.
People who support your mission have nevertheless expressed concerns that the Wildlife Conservation Society, which owns the Bronx Zoo, is spending a lot of money defending this case, money that could go to furthering their mission which is in part to preserve the habitats of elephants living in the wild. Is that something you took into consideration? What does the cost-benefit analysis look like for you?
If you have their tax forms like I do, you’ll find that they’re worth 1.1 billion dollars. I don’t know how much they’re paying their lawyer, but it’s probably a millionth of a percent. It doesn’t cost them anything. What does it cost? $25,000, $50,000, $100,000. Even if it cost them a million dollars, what’s one million of 1.1 billion dollars? They don’t even notice that it’s gone. That’s number one. Number two, from the very beginning, we offered to settle the case. Even though we are looking for the rights of nonhuman animals, we believe that our client, our nonhuman animal client is our client. We will do things that hurt our attempt to gain rights if we can help our client. If the Bronx Zoo came to us and said, we will give up Happy and allow her to be moved to a sanctuary, we would say it’s a deal and we would not push any further. Any money they’ve spent is their choice to do.
By reaching a settlement with the Bronx Zoo, you would forgo potentially setting a huge precedent in this case.
Yes. Because if we said we’re going to make her stay there and see whether we win, we’d be taking as much advantage of Happy as they’re taking advantage of her. What we want to do is to have judges start talking about whether a nonhuman animal can have a right. We have to bring a lawsuit. But at that point, once we take that step, we treat that being as if she was a human. If we can help her and we don’t end up getting the opportunity of proving that she is a person, then we’ll say ‘fine, she’s first.’ Then we would file another lawsuit of another elephant somewhere who should be freed.
Next year, you’ll have oral arguments before the Court of Appeals, the highest state court in New York. It’s a big deal. The Court takes about 3% of cases for review. How are you preparing? What is the strategy?
By pointing to the cases that support what I’m saying. We’re saying what the law is now. We’re not asking to change it. We will then make arguments as long as we can on any of the issues. There’s probably a hundred issues in the half an hour I have to argue. There’s probably going to be about six of them brought up. So I have to learn all 100 of them and be ready to go on any of them. Maybe one will come up that I wasn’t expecting, but that’s all right. It’s been 36 years since I’ve been getting ready for this case. And so I have hundreds or actually thousands of books on it. I’ve taught at nine law schools, at Harvard, at Stanford, in Tel Aviv and Barcelona. All over the United States. I’ve written four books, 22 law review articles. We’ve been working so hard for more than 20 years on the Nonhuman Rights Project.
Some judges have said that this is an issue that’s best suited for the legislative process. What do you say to that? Why pursue the common law approach versus lobbying the state legislatures and Congress to create rights for animals?
Well, New York is a habeas corpus common law cause of action. This follows what Lord Mansfield did in the Somerset case in 1772. Three years later, a New York court brought that case into its law. Its law is common law and that’s what it is. In fact, it’s so extraordinary that the constitution in New York will not allow a legislature to diminish anything that a court says you’re entitled to for habeas corpus. If the legislature wants to do really nicer things than a court does, they’re allowed to do that, but they’re not allowed to do not-nicer things. I don’t think most of the judges we went before really even understood that.
How did you get into this work? Why did you decide to make it your life’s mission?
Well, I was just a young lawyer at that time. I was just practicing law for five years. A woman handed me this book called Animal Liberation by a philosopher named Peter Singer. I was absolutely amazed by it and saw how we were abusing nonhuman animals. There were no laws that were protecting them. I decided that I was going to do that. I started doing it at a very low level. Then I became president of an organization now called the Animal Legal Defense Fund. I really realized that the only way you truly get protected if you’re a nonhuman animal, like if you’re a human being, is to have rights. In 1995, I began the Nonhuman Rights Project. It still took us 28 years of work before we were able to file the first lawsuits for rights. That was in New York in 2013 on behalf of four chimpanzees. If I tried to do this 10 years ago or earlier, no one would have cared. Now for example, there have been 70 people who have signed amicus briefs, including philosophers, scientists, habeas corpus specialists.
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