That’s not a post title I ever expected to write.
By a vote of 5 to 2, New York’s highest court, the New York Court of Appeals, ruled today (in In re Nonhuman Rights Project v. Breheny) that the petitioner Nonhuman Rights Project may not seek habeas corpus relief on behalf of Happy, an elephant at the Bronx Zoo, in order to transfer Happy to an elephant sanctuary.
In her straightforward majority opinion, Chief Judge Janet DiFiore holds that the common law writ of habeas corpus is a remedy available only to human beings. Happy is not a human being, and thus “while no one disputes that elephants are intelligent beings deserving of proper care and compassion,” habeas corpus relief can not be sought on Happy’s behalf.
In an interesting but discursive and unpersuasive 70-page dissent, Judge Rowan D. Wilson roams over a lot of terrain. Wilson acknowledges that Happy is not a human being (or a person). But in his view the writ of habeas corpus is available to Happy if Happy’s detention is “unjust”:
Because this appeal comes on a motion to dismiss, the legal question presented is whether the detention of an elephant can ever be so cruel, so antithetical to the essence of an elephant, that the writ of habeas corpus should be made available under the common law.
Wilson answers this question yes:
If we accept all of the information [submitted on Happy’s behalf] as true, Happy is a being with highly complex cognitive, social and emotional abilities. She has self-awareness, social needs and empathy. She also comes from a wild, highly social species whose bodies and minds are accustomed to traversing long distances to connect with others and to find food. Happy has established a prima facie case that her confinement at the Bronx Zoo stunts her needs in ways that cause suffering so great as to be deemed unjust.
In Wilson’s view, Happy is therefore entitled to a merits hearing on its habeas corpus petition, in which the court below “must undertake a normative analysis that weighs the value of keeping [Happy] confined with the value of releasing [Happy] from confinement.” Wilson has little doubt how that merits hearing should be resolved:
In Happy’s case, the value of the confinement to the Zoo and to society appears low or nonexistent: the Zoo decided in 2006 that it would end its elephant program, meaning it would accept no new elephants into the zoo. That decision strongly suggests that, whereas the value to the Zoo and society in displaying an elephant might have been substantial long ago, today that value is negligible, while at the same time (and relatedly), our appreciation for the fundamental qualities, abilities and needs of elephants has led us to understand the damage done to them by confinement in close, companionless quarters.
Wilson, I’ll note, also maintains that we confer rights on animals whenever we impose duties on ourselves with respect to those animals:
For example, 16 USC § 668 imposes a duty on humans not to capture or kill a bald or golden eagle, enforced by fines and imprisonment; that duty establishes a correlative right of bald and golden eagles to be free from capture by humans (except as authorized by permit). The Endangered Species Act (16 USC § 1531 et seq.) gives all animals falling within its purview the right not to be captured, harassed or harmed by humans, and imposes a correlative duty on humans.
In a second dissent, Judge Jenny Rivera broadly agrees with Wilson and opines that the “human/nonhuman binary relied upon by the majority” is unsound: “I conclude that history, logic, justice, and our humanity must lead us to recognize that if humans without full rights and responsibilities under the law may invoke the writ to challenge an unjust denial of freedom, so too may any other autonomous being, regardless of species.”
Those who discern a general inverse relationship between elite education and good judgment won’t be surprised to learn that Wilson is a graduate of Harvard College and Harvard Law School and that Rivera (who clerked for then-district judge Sonia Sotomayor three decades ago) has degrees from Princeton, NYU law school, and Columbia law school. By contrast, DiFiore graduated from C.W. Post College and St. John’s law school.