In 2018, Judge Eugene M. Fahey of New York’s highest court wrote that he “struggled with” his court’s refusal to hear the case of two captive chimpanzees. Now retired, he’s urging the Hawaiʻi Supreme Court to give two elephants, Mari and Vaigai, the hearing those chimpanzees never got.
This is my second reflection on the friend-of-the-court briefs filed in the Nonhuman Rights Project’s case on behalf of Mari and Vaigai. In the first, I looked at the Hawaiʻi State Bar Association Animal Law Section’s argument that the Aloha Spirit should guide the Court. Judge Fahey comes at the same case from a different direction: as a former high court judge.
As I read Judge Fahey’s brief, I’m struck by the stakes of this case. On one hand, there’s what the NhRP’s founder Steven Wise called the “legal wall” that has separated humans from other animals for centuries. On the other are two sentient, intelligent beings who long for freedom.
The Court’s decision in this case could change the trajectory of two beings’ lives. Instead of a barren zoo enclosure, the Court could open the door to the possibility of wandering a lush sanctuary for the rest of their days with others like them.
Judge Fahey sums it up plainly: “The Court has a difficult decision to make. It would clearly be easier to maintain the status quo. The harder question to answer is: what is the right thing to do?” His brief makes clear that the right thing is to overturn the lower courts’ denials of Mari and Vaigai’s habeas corpus petition.
This isn’t the first time we’ve heard from Judge Fahey on legal rights for animals. He previously wrote on his court’s decision not to take up the question of whether our clients Tommy and Kiko, both chimpanzees, were entitled to a writ of habeas corpus, the first step to freedom. His concurring opinion in that case ends powerfully: “The issue of whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”
In his brief in the Hawaiʻi Supreme Court case, he draws on scientific evidence to demonstrate that elephants possess “extraordinary cognitive abilities,” including self-awareness, empathy, and an awareness of death.
Addressing the cruelty of holding such complex and far-ranging animals captive, he writes, “A gilded cage is still a cage,” quoting Judge Jenny Rivera of the New York Court of Appeals (New York State’s highest court) in a dissenting opinion in the case we brought to free Happy the elephant from the Bronx Zoo.
According to Judge Fahey, justice would be served by the Hawaiʻi Supreme Court reversing the lower court’s dismissal of Mari and Vaigai’s case at the threshold, before their claims could ever be heard on the merits. Habeas corpus cases work in two steps. In the first, the party seeking habeas must persuade the court to issue a writ or order to show cause, which forces the custodian to justify the detention. The second step comes after a hearing on the custodian’s evidence, when the court rules on whether the detention is lawful. Mari and Vaigai have received neither.
What Judge Fahey’s brief asks for, and what the NhRP seeks for Mari and Vaigai, is a hearing. His brief ends by explaining how that is both reasonable and potentially life-altering:
“Here, you are not being asked to order a predetermined outcome. The NhRP seeks to have Mari and Vaigai recognized for what they are––not mere ‘things’ but sentient, autonomous beings deserving of consideration under Hawai‘i common law.
“Above all, however, what they seek is their day in court. A chance to be heard. A chance to present their case.
“I hope you will give them that chance.”
We do too.
Join us on Monday, November 9, 2026 at 10:00 AM HST (3:00 PM EST) to watch the livestream of this historic oral argument. Please RSVP to attend (in person or online) here.