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Amicus Support for the Fight to #FreeHappy

By Nonhuman Rights

On May 18, 2022, the New York Court of Appeals will hear arguments in our elephant client Happy’s case, which The Atlantic has called “the most important animal-rights case of the 21st century.” This date is the culmination of a journey we began on Happy’s behalf in 2018. It will mark the first time in history the highest court of an English-speaking jurisdiction will hear a case that demands a legal right for a nonhuman being. 

Happy is a 51-year-old female Asian elephant who has been held in captivity since 1977 in a one-acre exhibit in the Bronx Zoo, which is managed by the Wildlife Conservation Society. For the last 16 years, Happy—the first elephant in the world to demonstrate self-awareness via the mirror test and the first to have habeas corpus hearings to determine the lawfulness of her imprisonment—has lived without the company of other elephants.

In addition to the affidavits submitted by elephant cognition and behavior experts at the outset of our litigation, the NhRP’s legal fight for Happy’s freedom has gained the support of experts on habeas corpus, animal law, philosophy, religion, and more in the form of amicus curiae briefs.

What are amicus curiae briefs, and why are they important?

Latin for “friend of the court,” an amicus curiae requests permission from a court to advise it regarding a matter of law. An amicus curiae can be a person, an entity like a business, a nonprofit, a trade association, or the government, or a group of people or entities (in which case you’d use the plural form of the Latin noun for friend, amici curiae).

An amicus brief details the authors’ expertise and arguments regarding the case at hand. If the court grants the author(s) permission to file an amicus brief, the court can take into consideration their arguments along with the arguments made by the parties directly involved in the case.

Often, courts will cite to amicus briefs in their decisions. For example, New York Court of Appeals Justice Eugene M. Fahey favorably cited to the amicus and amici briefs submitted in support of the NhRP in the historic opinion he issued in our chimpanzee rights cases. In other words, he relied in part on what these experts wrote in their briefs as he urged his fellow judges to reject chimpanzees’ legal thinghood and treat the question of nonhuman animals’ rightlessness as

a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.

Eighteen amicus briefs by a total of 146 people or groups have been filed with the Court of Appeals in support of Happy’s habeas petition. Below is an excerpt from and link to each brief. Together they show the breadth and depth of support for the legal fight for Happy’s right to liberty and release to a sanctuary.

1. Laurence Tribe, Sherry Colb, and Michael Dorf

“[Courts] stating … that nonhuman animals are unwelcome in habeas corpus solely because they are not humans is a stark and sad reminder of the shameful era in which courts refused to grant some humans personhood or legal rights because are the same race or gender as those who then were rights-bearers.”

Laurence H. Tribe is the Carl M. Loeb University Professor at Harvard University and Professor of Constitutional Law Emeritus at Harvard Law School. He has prevailed in three-fifths of the many appellate cases he has argued (including 35 in the United States Supreme Court); was appointed in 2010 by President Obama and Attorney General Holder to serve as the first Senior Counselor for Access to Justice; and has written 115 books and articles, including his treatise, American Constitutional Law, cited more than any other legal text since 1950. Sherry F. Colb is the C.S. Wong Professor of Law at Cornell Law School. She clerked for Judge Wilfred Feinberg of the United States Court of Appeals for the Second Circuit and for Associate Justice Harry A. Blackmun of the United States Supreme Court. Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell Law School. He has authored or co-authored over one hundred scholarly articles and essays for law reviews, books, and peer-reviewed science and social science journals.

Read their brief here.

2. Former South African Justice Edward Cameron

“The South African Constitution refers to ‘human dignity,’ yet the right and value to dignity may be interpreted to extend beyond human beings to encompass a conception covering other sentient species that are capable of flourishing.”

Acclaimed for his human rights work and for having helped secure the South African Constitution’s sexual orientation protection, Edwin Cameron is a retired Justice of South Africa’s Constitutional Court (as appointed by Nelson Mandela), Inspecting Judge of Correctional Services, and Chancellor of Stellenbosch University.

Read Justice Cameron’s brief here.

3. UK legal academics, barristers, and solicitors with expertise in animal law

“Amici believe that if this Court decides to rule in favor of the petitioners, it will be acting in the finest traditions of the common law writ of habeas corpus which has been utilized in a succession of celebrated rulings by courts in both the UK and US to correct manifest abuses of power where the legislature has failed to act.”

The authors are Dr. Joe Wills (Lecturer in Law, University of Leicester) and thirty-five other UK-based legal academics, barristers, and solicitors with expertise in animal law.

Read their brief here.

4. Buddhist scholars

“We have a moral duty to treat Happy just as we would treat a person most dear to us. We would never want a loved one, who committed no crime, to be made to serve a life confinement just because it was profitable to someone else. To allow Happy to be held in captivity for economic gain debases her life and ours … We respectfully implore that this Court do what is moral and just by this long suffering being.”

The authors of this brief are three Buddhist scholars with expertise in ethics, Buddhist ethics, bioethics, theology, and comparative religion: Ven. Mahinda Deegalle, Ven. Aluthgama Chandanada, and Ven. Bhante Soorakkulame Pemaratana.

Read their brief here.

5. A group of fourteen philosophers

“The undersigned have long-standing, active interests in our duties to other animals. We reject arbitrary distinctions that deny adequate protections to other animals who share with protected humans relevantly similar vulnerabilities to harms and relevantly similar interests in avoiding such harms. We submit this brief to affirm our shared interest in ensuring a more just coexistence with other animals who live in our communities. We strongly urge this Court, in keeping with the best philosophical standards of rational judgment and ethical standards of justice, to recognize that Happy is a nonhuman person who should be released from her current confinement and transferred to an appropriate elephant sanctuary, pursuant to habeas corpus.”

The authors of this brief are 14 philosophers with expertise in animal ethics, animal political theory, the philosophy of animal cognition and behavior, and the philosophy of biology: Gary Comstock (North Carolina State University), Sue Donaldson (Queens University), Andrew Fenton (Dalhousie University), Tyler John (Rutgers University-New Brunswick), L. Syd M Johnson (SUNY Upstate Medical University), Robert C. Jones (California State University, Dominguez Hills), Will Kymlicka (Queen’s University), Letitia Meynell (Dalhousie University), Nathan Nobis (Morehouse College), David Peña-Guzmán (San Francisco State University), James Rocha (California State University, Fresno), Bernard Rollin (Colorado State University), Jeff Sebo (New York University), and Adam Shriver (University of British Columbia).

Read their brief here.

6. Catholic theologians

“Happy is not a thing for us to confine, use, and put on display in a zoo (even in an attempt to produce a good outcome), but rather a particular kind of creature who God made to flourish in a particular way—a way some academics refer to as a telos … We believe Happy cannot flourish as this kind of creature while captive in the Bronx Zoo and that she would be significantly better able to become the kind of creature God made her to be in a sanctuary.”

The authors of this brief are five Catholic theologians with expertise in Catholic moral theology, ethics, animal ethics, ecological theology, theology and science, and bioethics and a longstanding interest in and history of pushing academic theology, the Catholic Church more broadly, and the cultures in which we live and work to take animals seriously as subjects of moral concern: Dr. John Berkman (University of Toronto), Dr. Charles Camosy (Fordham University), Dr. Allison Covey (Villanova University), Dr. Celia Dean-Drommond (University of Notre Dame, University of Oxford), and Dr. Christopher Steck (Georgetown University).

Read their brief here.

7. Habeas corpus experts

“One of the greatest blemishes on our justice system is the wrongful detention of persons. The writ of habeas corpus is one of the tools available to correct injustices by requiring a person’s captors to justify the person’s imprisonment to the courts. While the writ has provided a procedural vehicle for vindicating the rights of thousands of humans to not be unlawfully detained, this brief argues that the time has come to consider the writ’s application to other cognitively complex beings who are unjustly detained.”

The authors of this brief are six expert habeas corpus practitioners and scholars: Justin Marceau (Professor of Constitutional and Criminal Law, University of Denver Sturm College of Law), Samuel Wiseman (Professor of Constitutional Law and Criminal Procedure, Penn State Law – University Park), Gail K. Johnson (Criminal Defense and Civil Rights Law, Firm Partner, Johnson & Klein, PLLC), Hollis Whitson (Law Firm Founding Partner, Samler & Whitson P.C.), Jane H. Fisher-Byrialsen (Law Firm Founding Partner, Fisher & Byrialsen, PLLC), and David N. Fisher (Law Firm Founding Partner, Fisher & Byrialsen, PLLC).

Johnson, Whitson, Fisher-Byrialsen, and Fisher worked on the Central Park jogger case to help vindicate a group of teenagers dubbed “The Central Park Five.”

Read their brief here.

8. Philosopher Christine Korsgaard

“The purpose of rights … is to privilege the value that a life has for the one who lives it over whatever value it might have for others. No right can be more fundamental than the right not to have the whole shape of your life determined by purposes that are not your own, and that is the right that has been violated in Happy’s case.”

Christine M. Korsgaard is the Arthur Kingsley Porter Research Professor of Philosophy at Harvard University and a leading scholar on the works of Immanuel Kant.

Read Professor Korsgaard’s brief here.

9. Philosopher Martha Nussbaum

“What philosophy and, more recently, science have understood but the law has not is that elephants are sentient beings who can feel emotion, foster relationships, create communities, and form a conception of the self … This Court has the opportunity to create legal precedent that provides these living creatures the legal right to thrive and survive in ways that coincide with their specific capabilities, and prevent not only the infliction of physical pain, but emotional and psychological injury as well.”

Martha Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics, appointed in the Law School and Philosophy Department of the University of Chicago, and a recipient of the 2016 Kyoto Prize in Arts and Philosophy, the 2018 Berggruen Prize, and the 2021 Holberg Prize.

Read Professor Nussbaum’s brief here.

10. Animal Law Professors

​”Legal belonging extends not only to the archetypal humans of social contract theory, but also to those entities–human and nonhuman–who have secured the protection of their liberties through the enactment of legal protections or who are entitled to such protections by virtue of who they are.”

Matthew Liebman, Chair of the Justice for Animals Program at the University of San Francisco School of Law, and Karen Bradshaw, Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University, drafted and coordinated this brief, signed by 27 law professors from across the United States and Canada.

Read their brief here.

11. Peter Singer, Gary Comstock, and Adam Lerner

“In denying that nonhuman persons must be property, both Justice Tuitt and Judge Fahey leave open the possibility that nonhuman animals can be persons. Taking it one step further, the Fourth Department affirmed that it is “common knowledge that personhood can and sometimes does attach to nonhuman entities like . . . animals.” We are pleased to see these favorable judicial assessments concluding that elephants and chimpanzees are not property and may be persons. These legal opinions represent the leading edge of the expanding circle. We write to defend the implicit claim that these animals are persons and have, as a consequence of their personhood, a suitably qualified right to liberty. Philosophical reflection leads inevitably to these conclusions.”

Peter Singer is the Ira W. DeCamp Professor of Bioethics in the University Center for Human Values at Princeton University. Professor Singer’s publications in the 1970s are widely credited with creating the philosophical basis of the modern animal rights movement. His work in this area and in the area of our duties to those living in extreme poverty are some of the most excerpted and reprinted essays in applied ethics anthologies. Gary Comstock is Alumni Distinguished Undergraduate Professor of Philosophy at North Carolina State University and an an award-winning researcher and teacher whose book, Research Ethics: A Philosophical Guide to the Responsible Conduct of Research, shows how Singer’s expanding circle metaphor lends coherence to an otherwise disparate set of issues in research ethics. Adam Lerner is Lecturer at Princeton University. He earned his PhD in philosophy from Princeton University, where he earned the Porter Ogden Jacobus Fellowship, Princeton’s top honor for graduate students. His work lies at the intersection of ethics, metaethics, and moral psychology.

Read their brief here.

12. Evan Wolfson and Shannon Minter

“Just as a human can seek habeas relief from solitary confinement, there are compelling arguments that Happy should be permitted to do so as well. But rather than grapple with those arguments in this and other similar cases, the lower courts have been forced to frame the urgent claims presented in a manner that improperly short circuits them and predetermines a negative result. This is not right. This Court must not turn away from Happy’s plight, or from this being’s plea for justice, for relief.”

Evan Wolfson and Shannon Minter are attorneys and longtime leaders in the lesbian, gay, bisexual, and transgender (“LGBT”) movement, with experience and expertise in achieving social transformation and advancing rights and inclusion. They believe it is a particular obligation of courts to carefully scrutinize measures that exclude or harm those who are vulnerable, stigmatized, and underrepresented by the political system.

Shannon Minter is the Legal Director of the National Center for Lesbian Rights (NCLR), one of the nation’s leading advocacy organizations for lesbian, gay, bisexual, and transgender people. Minter was lead counsel for same-sex couples in the landmark California marriage equality case which held that samesex couples have the fundamental right to marry and that laws that discriminate based on sexual orientation are inherently discriminatory and subject to the highest level of constitutional scrutiny.

Evan Wolfson founded and led Freedom to Marry, the campaign to legalize same-sex marriage in the United States. He is widely considered the architect of the freedom to marry movement that led to nationwide victory in 2015.

Read their brief here.

13. Animal Legal Defense Fund

“NhRP iterates that this is a case about Happy’s common law right to bodily liberty and is not a “welfare” case. NhRP’s argument that this Court should recognize Happy’s common law right to bodily liberty for purposes of habeas corpus is persuasive independent of any interplay between habeas corpus jurisprudence and the animal cruelty statute. Nonetheless, the fact that Happy’s solitary confinement appears to violate her rights under the cruelty statute supports her need for a writ of habeas corpus and provides a narrow additional ground to rule in her favor. This fact also dismantles one of the Zoo’s key arguments that its treatment of Happy is lawful.”

ALDF’s mission is to protect the lives and advance the interests of animals through the legal system by various means, such as litigation and legislation.

Read ALDF’s brief here.

14. Justice K.S. Radhakrishnan

“Indian common law has developed to recognize the basic rights of non-human animals, notwithstanding the absence of these rights in India’s Constitutional and statutory texts. These rights have been located in natural law, environmental principles, and customs and usages. The most fundamental of these rights are the rights to life and liberty. Happy’s solitary and unnatural confinement in a small, concrete space deprives her of these fundamental rights. The common law is sufficiently flexible and progressive to remedy this deprivation.”

Justice K.S. Radhakrishnan is a former judge of the Supreme Court of India. As a Supreme Court judge, he decided the landmark animal rights case Animal Welfare Board of India v. A. Nagaraja (2014). The case concerned the practice of “Jallikattu,” a bull-racing event in which bulls were physically and mentally tortured by participants and onlookers. In his decision banning the practice, Justice Radhakrishnan recognized that all animals have a fundamental right to live with honor and dignity. The Nagaraja case has since been widely relied on by Indian Courts to develop India’s animal rights jurisprudence.

Read Justice Radhakrishnan’s brief here.

15. Maneesha Deckha

“This brief argues that this case presents an opportunity for the common law to depart from an instrumentalist and insufficient view of animal protection to a robust one more in line with contemporary science and sociolegal thinking based on animals’ inherent value as vulnerable, relational and embodied beings. Specifically, the case presents the opportunity to protect Happy as an individual vulnerable, relational, and embodied being and give her a life marked by flourishing rather than suffering. The anthropocentrism of the legal order that presently permits Happy’s captivity is poorly justified 3 and out of step with scientific and progressive scholarly assessments questioning human subordination of animals. The common law must stop regarding animals as ‘things’ or property.”

Maneesha Deckha is Professor and Lansdowne Chair in Law at the University of Victoria Faculty of Law in Victoria, British Columbia. Professor Deckha has authored numerous works in the fields of animal law and philosophy, focusing on the need for social and legal reform for animals as a matter of justice and ethics.

Read Professor Deckha’s brief here.

16. Animal Theology Experts Dr. Andrew Linzey and Dr. Clair Linzey

“For Happy’s entire life, we have failed to recognize her as a sentient being worthy of respect. Instead, we have treated her as if her most basic right to liberty as a creation of God is of no significance. Yet we now are faced with a chance to redeem ourselves. The fact that Happy’s suffering could so easily be remedied by granting her the right to petition for habeas corpus relief further supports our contention that recognizing Happy’s personhood in this context is a moral necessity. We urge this Court to accept Happy’s appeal and remedy the decades of injustice she has so undeservedly endured.”

Dr. Andrew Linzey is the director of the Oxford Centre for Animal Ethics and has been a member of the Faculty of Theology at the University of Oxford for nearly three decades. Dr. Linzey is also a visiting professor of animal theology at the University of Winchester, professor of animal ethics at the Graduate Theological Foundation, and Special Professor at Saint Xavier University, Chicago. Dr. Clair Linzey is the deputy director of the Oxford Centre for Animal Ethics and a professor of animal theology at the Graduate Theological Foundation.

Read their brief here.

17. Jewish Scholars

“The deeper Jewish principle we invoke here is a sentiment that allowing cruelty to animals is not only a wrong to them, to the animals, but a threat to our own compassion, to a treasured aspect of our humanity. For the court to acknowledge that Happy is an emotional, intelligent, and autonomous being and then functionally put her in the legal category of “thing” threatens the law with incoherence and absurdity. We urge the court to hear both the simple call for justice in NhRP’s arguments to release her to a sanctuary and to recognize that expanding the application of habeas corpus is essentially to preserving the moral coherence of the law.”

The authors of this brief are Dr. Carol Bakkhos, Dr. Julia Watts Belser, Dr. Beth Berkowitz, Rabbi Jonathan Bernhard, Dr. Daniel Boyarin, Dr. Jonathan Brumberg-Kraus, Rabbi Nathan Lopes Cardozo, Dr. Rabbi Geoffrey Claussen, Dr. Rabbi Jonathan K. Crane, Rabbi Laura Duhan-Kaplan, Cantor Jonathan L. Friedmann, Rabbi Mel Gottlieb, Dr. Rabbi Arthur Green, Dr. Saul Gross, Rabbi Dr. Irving (Yitz) Greenberg, Rabbi Jill Hammer, Ph.D., Professor Sarah Imhoff, Dr. Barbara C. Johnson, Rabbi David Kay, Dr. Adrienne Krone, Dr. Laura Levitt, Dr. Jody Myers, Rabbi William Plevan, Dr. Rachel Rafael Neis, Dr. Saul M. Oylan, Dr. Rabbi Sonja K. Pilz, Rabbi David Rosen (papal Knighthood and CBE by H.M. Queen Elizabeth II), Dr. Jeffrey Rubenstein, Dr. Max Strassfeld, Dr. Aaron Hahn Tapper, Dr. Beth Wasserman, Rabbi Elyse Wachterman, Dr. Paul Root Wolpe, and Rabbi Shmuly Yanklowitz.

Read their brief here.

18. Eastern Orthodox Theologians

“Not only will the judge/judges in this case need the moral, ethical, spiritual conviction that the present law is fundamentally flawed and an insult to righteousness and the science of our time, but they will also need to possess the courage to take the legal decision to grant freedom through the allocation of ‘person’ status, to this unique individual animal being named Happy. In so doing they will be championed and upheld by millions around the world who clearly see the folly of a law that categorizes nonhuman animal beings as objects and things.”

The authors of this brief are Dr. Christina Nellist, Dr. Nikolaos Asproulis, Dr. Razvan Porumb, Professor Ekaterini Tsalampouni, and Professor Eleni Panagiotarakou.

Read their brief here.

Oral arguments in Happy’s case will take place at the Court of Appeals in Albany, NY on May 18, 2022. For a detailed timeline of Happy’s case, court filings, and decisions, visit this page. Find all the latest on the fight for Happy’s freedom and ways to take action on our new Free Happy campaign page.

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