The Elephant in the Courtroom | The New Yorker

Source: The Elephant in the Courtroom | The New Yorker

A curious legal crusade to redefine personhood is raising profound questions about the interdependence of the animal and human kingdoms.

By Lawrence WrightFebruary 28, 2022

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.”