Read the original article by Brandon Keim at theatlantic.com here.
Forty-seven years ago, the Asian elephant now known as Happy was one of seven calves captured—probably in Thailand, but details are hazy—and sent to the United States. She spent five years at a safari park in Florida, time that in the wild would have been spent by her mother’s side. Then she was moved to the Bronx Zoo in New York City. There Happy remains today, and since the death of an elephant companion in 2006, she has lived alone, her days alternating between a 1.15-acre yard and an indoor stall.
For a member of a species renowned for both intelligence and sociality, the setting is far from natural. In the wild, Happy would share a many-square-mile home range with a lifelong extended family, their bonds so close-knit that witnessing death produces symptoms akin to post-traumatic stress disorder in humans. It would seem that Happy, despite the devotions of the people who care for her, is not living her best life.
In considering Happy’s circumstances and what might be done to improve them, should something more than animal-welfare laws and zoo regulations—which the Bronx Zoo has not violated, but arguably are inadequate—be invoked? Should Happy be considered, in legal terms, a person? Which is to say, an entity capable of possessing at least some rights historically reserved for humans alone—beginning with a right to be free?
Making that case is an advocacy group called the Nonhuman Rights Project. Since 2013, the group has filed lawsuits on behalf of four captive chimpanzees in New York and, in neighboring Connecticut, three elephants used in a traveling circus. They’ve lost those cases, but they have persuaded judges to take them seriously, and in October petitioned a New York state court to order Happy’s release. She wouldn’t be returned to the wild, but would be transferred to a sanctuary in California with more space and the company of other elephants. The hearing took place earlier this month, and while no decision was reached—the case will likely be moved to a court within the Bronx Zoo’s jurisdiction—it was still a unique moment to reflect on the status of animals and the law.
Until recently, the idea of elephant personhood would have struck legal observers as a joke. Just a few decades ago, most states still treated animal cruelty as a misdemeanor, like public intoxication or driving without insurance. But an increasing number of Americans take animal well-being seriously: A 2015 Gallup poll found that a majority “are very or somewhat concerned” about animal mistreatment. The legal system has changed in turn. Every state now considers animal cruelty a felony, and laws such as California’s recently passed Proposition 12, which improves living standards for farm animals, are becoming commonplace.
Still, these laws have blind spots and inconsistencies. The federal Animal Welfare Act exempts farm animals and most lab animals; the Humane Slaughter Act omits poultry. State laws are an inconsistently enforced patchwork, and practices that many people consider cruel—such as gestation crates for pigs—remain legal in many places. Even the most beloved animals don’t always receive much consideration. “In the vast majority of jurisdictions, if someone beats your dog to death in front of you, all you can sue them for is the cost of buying another dog,” says Chris Green, the executive director of Harvard Law School’s Animal Law and Policy Program.
Animal-welfare laws also depend on government intervention. Citizens can’t file suit on behalf of animals they don’t own. Animal-welfare laws fall short of actual rights—and centuries of legal custom have reserved rights for humans. “A thick and impenetrable legal wall has separated all human from all nonhuman animals,” writes Steven Wise, the Nonhuman Rights Project’s founder and lead attorney, in his book Rattling the Cage.
To help Happy breach it, Wise invokes both scientific research and legal principle. Elephants, attest scientists who filed affidavits in Happy’s case, are highly self-aware, are emotional, make choices, and have a rich sense of both past and future. (Happy, in fact, was the star of a landmark 2006 Science studydescribing how elephants can recognize themselves in mirrors, which is considered a measure of especially human-like awareness.) “Elephants share many key traits of autonomy with humans,” write evolutionary biologists Lucy Bates and Richard Byrne in their affidavit. Wise argues that respect for autonomy underlies our own legal right to physical liberty. Extending that to elephants is simply a matter of equality.
In a news release issued after this month’s hearing, the Wildlife Conservation Society—the Bronx Zoo’s owner—describes the lawsuit as “an academic exercise” that, in the words of the zoo’s director, Jim Breheny, is intended to “promote their radical philosophical view of ‘personhood.’” Happy’s present conditions, the society says, are perfectly suitable and meet established welfare standards, and moving her could be traumatic. (That issue won’t be adjudicated in this article; for more information, see court documents filed by Patrick Thomas, the Bronx Zoo’s associate director, and Joyce Poole, one of the biologists supporting the lawsuit.)
More to the philosophical point, the Wildlife Conservation Society cites rulings against similar Nonhuman Rights Project lawsuits filed on behalf of captive chimpanzees. According to those decisions, rights belong only to those who can also accept moral responsibility and social duties—which even the smartest animals can’t.
The rulings have been criticized, though, both by scientists who insisted that chimps do in fact have responsibilities within their own societies and by some legal theorists who don’t necessarily support chimp rights but fear a rationale that could threaten many human beings. The rights of an infant or an elderly grandmother with severe dementia are hardly contingent on the duties they fulfill.
This past May, in rejecting a Nonhuman Rights Project request to appeal these decisions, the New York judge Eugene Fahey wrote that he did so only on procedural grounds. “Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detention?” he wrote. “This is not merely a definitional question, but a deep dilemma of ethics and policy that deserves our attention.”
Fahey’s opinion—intended, as legal opinions are, as a resource for future deliberation—seems to leave New York courthouse doors open for Happy. Whether they’re wide enough remains to be seen. There are certainly other arguments against elephant personhood. Richard Cupp, an animal-law professor at the Pepperdine School of Law, worries that extending rights to animals could ultimately erode our own. “Courts and society might, with this new paradigm, be tempted not only to look at more intelligent animals as being like humans,” he said in a debate with Wise, “but start to think of less intelligent humans a little more like animals.”
Cupp also fears opening a “floodgate of litigation” as animal advocates work their way through the animal kingdom, moving from elephants and chimpanzees to common creatures—a worry echoed by Richard Epstein, a law professor at New York University, who spoke to Harvard Magazine about his concern that people might claim personhood for farm animals. “We kill millions of animals a day for food,” said Epstein. “If they have the right to bodily liberty, it’s basically a holocaust.” Rather than rights, Epstein suggests more animal-welfare protections.
There are rejoinders to both points: Expanding rights to women, racial minorities, and children didn’t erode the rights of property-holding white men, and implications for other species are immaterial to the question of elephant or chimpanzee rights. Lawsuits involving other species and other rights would certainly follow—but those deserve to be addressed case by case rather than forestalled en masse because it’s uncomfortable to consider what they imply for animals we eat.
Regardless of how Happy’s case is decided, though, the legal landscape for animals is changing. Outside the United States, an Argentine court granted freedom to an orangutan at the Buenos Aires Zoo; courts in the Indian state of Uttarakhand ruled that animals both wild and domestic are not property but “legal entities” on whose behalf humans must act as guardians. The European Union, New Zealand, and Quebec explicitly recognize animals as sentient, though the actual impact of sentience laws has been limited. Legal rights for animals are no longer a fringe idea.
Inside the United States, judges in Alaska and Illinois have started to consider the well-being of pets, rather than mere ownership claims, in divorce-custody proceedings. Though an Oregon court rejected a high-profile lawsuit that would have allowed a horse’s advocates to sue for damages caused by criminal neglect, another court in that state ruled that animals could legally be considered victims of crimes—an implicit recognition that they’re more than just property.
The Animal Legal Defense Fund, which filed the aforementioned Oregon horse case, has also pushed for animals to be covered by the Freedom of Information Act, which, by the law’s letter, applies to individuals—not individual humans. Meanwhile, Friends of Animals, another advocacy organization, has collaborated with the legal philosopher Martha Nussbaum to develop what they call a “right to ethical consideration”: In their eyes, the Nonhuman Rights Project’s focus on autonomy sets too high a cognitive bar; rights might instead be based on simpler capacities, such as emotions and imagination.
Ethicists have even suggested property rights for wild animals threatened by development, labor rights for working animals, and the use of citizenship theory as a framework for thinking about animal rights. Domestic animals might be treated as full-blown citizens; wild animals are likened to members of other nations. Even if such ideas seem impractical, they’re valuable prompts to moral imagination. What would fair-labor law look like for a chicken?
“For the most part, there’s been an invisibility to anything but humans throughout the legal system,” says Irus Braverman, a law professor at the State University of New York at Buffalo. “We have to bring the animals back in.”