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The legal fight to #FreeHappy and the importance of dissent

By Jake Davis

“Three Supreme Court rulings during [Justice John Marshall Harlan’s] long tenure are usually accorded places among the very worst in court history—decisions that, after a century or more, are measured both by their flawed reasoning and the staggering numbers of people who suffered with their consequences. Even today they are remembered in legal shorthand: Plessy. Lochner. The Civil Rights Cases. Harlan dissented in all three. In two of them, he was the only justice to disagree with the majority … Harlan turned the act of dissenting into something more significant: an appeal to the next generation of jurists. He spent thousands of hours holed up under gas lamps creating doctrines that would find their true light in the electric future. They were beacons to escape from the maze of tainted opinions laid down by the court’s majority.” — Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero (2021)

Unquestionably, Happy the elephant is an autonomous and extraordinarily cognitively complex individual. Like humans, she can remember her past, understand her present, and plan for her future, which makes her imprisonment at the Bronx Zoo, alone on one barren acre, even more devastating. New York’s highest court has now issued a decision in Happy’s case. The majority of the court—Janet DiFiore, Michael J. Garcia, Anthony Cannataro, Madeline Singas, and Shirley Troutman—declined to do what morality and the law demand and recognize Happy’s right to liberty. It’s now almost certain that a more just future for Happy will come about only if the Bronx Zoo, as a result of public pressure, chooses do to the right thing—release Happy and Patty to sanctuaries and close its elephant exhibit for good, as it once pledged to do.
A photo of People holding signs and calling for freedom for Happy at a rally outside the Bronx
People hold signs and call for freedom for Happy at a rally outside the Bronx Zoo ahead of Happy’s historic May 18th hearing in New York’s highest court. Credit: Greyson Images

But, like Justice John Marshall Harlan in decades past, two judges on the Court chose not to remain silent in the face of the intolerable wrong of Happy’s imprisonment. Judge Rowan D. Wilson and Judge Jenny Rivera wrote courageous dissents in Happy’s case that link “our country’s tortured history of oppression and subjugation” of humans based on immutable characteristics such as race, gender, culture, national origin, and citizenship to the suffering and rightlessness of nonhuman animals. In so doing, Judge Wilson and Judge Rivera have not only challenged an unjust legal status quo that has existed for centuries; they’re also helping to light the way to a more just future for members of other species—just as courageous dissents by judges have done for humans throughout US legal history.

A screenshot of a recent NhRP legal team meeting to discuss the decision and dissents in Happy's case.
A screenshot of a recent NhRP legal team Zoom meeting to discuss the decision and dissents in Happy’s case.

Together the two dissents number close to 100 pages, compared to 17 pages that form what we, like the dissenting judges, see as the majority’s legally wrong decision. You can read them all here (the dissents begin on p. 18).

For the last several weeks, in Zoom meeting after Zoom meeting, the NhRP legal team has been analyzing every line in each to determine not only how best to confront the majority’s terrible reasoning, including its view of legal personhood as requiring both rights and duties when applied to nonhuman animals, but also how to use the dissents going forward, particularly their rightfully harsh criticisms of the majority decision. Stay tuned for announcements about our next steps, including in our ongoing grassroots campaign to #FreeHappy, and further analysis of the majority decision. Below is our summary of the dissents, which will be an important part of the fight for nonhuman animal rights in New York and beyond for years to come.

Judge Wilson’s Dissent

Judge Wilson begins his dissent forcefully by comparing Happy’s imprisonment to that of Ota Benga, a member of the Mbuti people whom the Bronx Zoo displayed in their monkey house at the turn of the twentieth century and only recently publicly apologized for having imprisoned: “The crucial point from both Mr. Benga’s and Happy’s confinement … is that both suffered greatly from confinement that, though not in violation of any statutory law, produced little or no social benefit.” Benga would ultimately die from a self-inflicted gunshot wound shortly after his release from zoo captivity. Happy’s suffering continues.

This suffering appears to guide Judge Wilson’s view that “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.” It’s this question Judge Wilson believed the majority should have focused on. If the answer had been yes—an elephant can be considered potentially entitled to habeas corpus relief—the Court, as Judge Wilson explained, would have then remanded Happy’s case to the Supreme Court (New York State’s lowest court) where questions of fact, such as “[w]hether Happy’s conditions are grave enough for the writ to issue, and whether, if so, she would be better off in a sanctuary,” can be answered (the Court of Appeals does not make factual determinations; it only resolves questions of law).

Unfortunately, the majority instead offered what Judge Wilson describes as “numerous justifications for its conclusion that the writ must be limited to humans, no matter how sophisticated, intelligent, self-aware or capable of suffering an elephant is and no matter how severe the conditions of confinement are.” Judge Wilson offered a breakdown in five parts explaining why these justifications are wrong and why the writ of habeas corpus can and should be extended to Happy. That breakdown is well written and worth reading in full. For the sake of this blog post, I’ve condensed the most important aspects of each part:

Part I: Here, Judge Wilson refutes the “irrelevant” contention that an elephant need be a legal “person” to have access to the writ of habeas corpus and the “unsupportable” contention that only humans can have rights. He frames his analysis as follows:

Whether an elephant (or other animal) is a “person” is not relevant to determining whether the writ of habeas corpus can be used to challenge a confinement. All can agree that an elephant is not a member of the homo sapiens species. At the same time, an elephant is not a desk chair or an earthworm; the majority … offers that animals are not “the equivalent of ‘things’ or ‘objects’” (majority op. at 15). So the correct question becomes: given what we know about the qualities an elephant has—and in particular, the qualities Happy has—should the law afford her certain rights through habeas corpus?

Judge Wilson answers this question by defining a right. He says a “right consists of a sphere of action protected from intrusion by others: duty and right are correlative; and where a duty is imposed, there must be a right to have it performed.” In other words, if “society determines that humans should not torture dogs, then dogs have a right to be free from torture.” The dog’s right does not depend on his or her ability to bear responsibilities or enter a so-called “social contract.” Rather, the right is a result of society’s determination that a dog’s torture-free existence is something worth protecting. Thus, Happy’s case is simply about whether societal norms have evolved to a point where an elephant has a right to be free from oppressive confinement. Put simply, Judge Wilson believes an elephant should have that right; the majority does not.

Part II: Judge Wilson discusses the history of the writ of habeas corpus, demonstrating that courts have used it, and need to continue using it, to refute unjust captivity even when the captor has a statutory or common law right authorizing the captivity. For example, “the writ was used to grant freedom to slaves, who were considered chattel with no legal rights or existence.” The writ was also used “to grant freedom to wives and children, who, though not chattel, had few or no legal rights and legally were under the dominion of husbands and fathers.” These grants of freedom did not turn on whether detention was illegal under existing law (Happy’s imprisonment is legal under New York statutory law). Instead, the courts “conducted a case-by-case analysis for each habeas petition, considering whether a petitioner’s confinement was unjust based on a balancing of the benefits and harms of confinement.” The same analysis, Judge Wilson posits, should have applied to Happy, which would be the natural progression of habeas corpus when one understands that “the various rights held by animals today … are far greater than those held by enslaved persons in England or America, who had none.”

Part III: Judge Wilson draws an analogy between “society’s changed understanding of the rights of enslaved persons, women and children” and “our understanding of the cognitive and emotional makeup, needs and capabilities of elephants” as being “far different than it was in bygone times.” Although this analogy may initially be off-putting to some readers, Judge Wilson goes to great lengths to emphasize that “[a]ny discussion of slavery in the context of animal rights demands an acknowledgement of our country’s reprehensible history of denying the humanity of racial minorities.” He goes on to mention that “historical practices of equating non-white people to animals was pervasive” and that “comparisons drawn between animals and enslaved and non-white people … require great caution in articulating rights of animals.” This is because “discussions that involve both animal rights and racial oppression should not equate the suffering of animals with the suffering of enslaved, colonized or subjugated humans” (a position the NhRP agrees with and adheres to in all our pleadings and arguments). He notes that whether an elephant could have sought habeas corpus relief in the eighteenth century “is a different question from whether an elephant can do so today because we know much more about elephant cognition, social organization, behaviors and needs than we did in past centuries, and our laws and norms have changed in response to our improved knowledge of animals.”

The advances made in elephant science over the past decades were crucial to Happy’s requested relief in her case. They anchor the argument that her autonomous nature should warrant the recognition of a right to bodily liberty, and Judge Wilson agreed, writing, “we now have information suggesting that [Happy’s] confinement may be cruel and unsuited to her well-being.” By recognizing society’s ever-accumulating body of knowledge related to nonhuman animals, Judge Wilson advocates for focusing not on what he sees as the irrelevant legal concept of “personhood,” but on “questions about our capacity for empathy toward other beings and the expansion of the rights we have granted them.” Historically, habeas corpus has already expanded to provide relief from imprisonment to enslaved persons, women, and children, and it could again provide “a judicious and kindly application of superior power” were it expanded to include Happy.

Part IV: Judge Wilson focuses on how the common law’s flexibility can inform the Court’s role in adapting the writ of habeas corpus to fit the parameters of this case and other novel habeas corpus matters. At its core, the law is a looking glass into which one can peer to determine the behaviors society has encouraged, discouraged, deemed allowable, and prohibited. “In this way, the law reflects our society’s values and aspirations.” Accordingly, when society’s values change, so must the law. This is evidenced by countless common law cases in New York State and beyond. Indeed, it’s the nature of the common law to evolve alongside society, and it must.

Judge Wilson astutely points to a handful of well-known instances in which the law of the time was forced to evolve to keep up with changing social norms and “to meet current needs and understandings.” I won’t summarize Judge Wilson’s own summaries here, although they are worth reviewing for the inquiring mind. What’s essential about this section of Judge Wilson’s dissent is the conclusion he draws from the case law he cited and the judges who handed down those decisions:

The judges . . . who issued writs of habeas corpus freeing enslaved persons, or liberating women and children from households run by abusive men, or ordering the return home of underaged soldiers could have said, as the majority does here, “that’s a job for the legislature.” They could have said, “existing law offers some protections, and we dare not do more.” They could have said, “we can’t be first.” But they did not. None of those declamations is remotely consistent with our Court’s history, role or duty. . . . The Great Writ’s use, as a case-by-case tool to probe whether the law may need to adapt, is part of the fundamental role of a common-law court to adapt the law as society evolves.

Unfortunately, the majority declined to advance the law, choosing instead to proclaim elephants unworthy of relief from wholly unnatural and oppressive conditions.

Part V: Judge Wilson combined his discussion from Parts I-IV in affirmatively answering the question of whether Happy’s interest in liberty outweighs the Bronx Zoo’s interest in her continued captivity. Although this merits-based assessment would have ultimately fallen to the Supreme Court, Judge Wilson, knowing the case would not be remanded because of the majority’s decision, provides his own roadmap for how the analysis should play out if the case were evaluated anew. His conclusion is that the value of Happy’s confinement to the Zoo and to society appeared low to nonexistent, and advances in elephant science have “led us to understand the damage done to them by confinement in close, companionless quarters.” In other words, Judge Wilson found there to be no value to anyone or anything in keeping Happy imprisoned.

In this section, Judge Wilson also addresses additional issues such as “the majority’s parade of horribles [that] would arise from a ‘sweeping pronouncement[]’ of nonhuman animal personhood.” But, as Judge Wilson recognizes, the NhRP was seeking no such pronouncement. We were seeking a single right for Happy, and no other nonhuman animal. As Judge Wilson cogently observes, “[w]hatever rights and interests Happy may have do not tell us anything about the rights my dog has.” Moreover, the “case-by-case analysis” discussed in Part II easily refutes the majority’s fear that habeas corpus relief for Happy would “have an enormous destabilizing impact on modern society.” Put another way, the freedom of one elephant wouldn’t guarantee the freedom of any other nonhuman animals, including other elephants, just as the freedom of a human prisoner provides no guarantee that another prisoner will ever be freed.

Judge Wilson also refutes the majority’s complaint that granting liberty rights to Happy “would not be an incremental step in ‘the slow process of decisional accretion’ regarding the scope and flexibility of the writ of habeas.” Yet, as the NhRP advocated and Judge Wilson observes, “granting a single elephant—not the whole animal kingdom—the right to a full hearing on a writ of habeas corpus is about as incremental as one can get.”

As for arguments that Happy’s liberty should be a question for the legislature, Judge Wilson quoted the famous New York Court of Appeals jurist Benjamin Cardozo: “If you ask how [a judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself.” The nature of the writ of habeas corpus (which is substantively controlled by the common law, not the legislator), and Judge Wilson’s dissent suggests his life experience informed him that the arbitrariness of denying Happy the ability to seek her liberty is neither good law nor right.

Judge Wilson closes his dissent with just the kind of language that works as a beacon for judges in the future who will undoubtedly encounter these same types of questions and the mazes of tainted opinions—like the majority’s—that get left behind when those questions are wrongly answered.

The fullest answer, though, is that we should recognize Happy’s right to petition for her liberty not just because she is a wild animal who is not meant to be caged and displayed, but because the rights we confer on others define who we are as a society … When the majority answers, “No, animals cannot have rights,” I worry for that animal, but I worry even more greatly about how that answer denies and denigrates the human capacity for understanding, empathy and compassion.

Judge Rivera’s dissent

Unlike Judge Wilson who sought to answer a legal question to determine if Happy’s petition should be remanded to the Supreme Court for a merits-based evaluation, Judge Rivera (while still agreeing with much of what her colleague said) argues in her dissent that the merits of the case had been determined by the Bronx County Supreme Court (in Justice Tuitt’s February 2020 decision) and the only question needing an answer was the question of whether Happy was entitled to release from her one-acre prison. In answering that question with a resounding yes, Judge Rivera looks to the fallacy of the social contract theory, the history of habeas corpus, the flexibility of the common law, and concepts of morality and justice as applied to autonomous individuals.

Happy stands before a gate in the Bronx Zoo elephant exhibit.
Happy stands before a gate in the Bronx Zoo elephant exhibit.

Judge Rivera wastes no space in her dissent in getting to the heart of Happy’s case. First, she describes the horror of Happy’s life in the Bronx Zoo: “Any myth that Happy is content in this environment is laid bare by the cruel reality of her existence. Day in and day out, Happy is anything but happy. There lies the rub—Happy is an autonomous, if not physically free, being. The law has a mechanism to challenge the inherently harmful confinement, and Happy should not be denied the opportunity to pursue and obtain appropriate relief by writ of habeas corpus. I dissent.” Judge Rivera adds: “A gilded cage is still a cage. Happy may be a dignified creature, but there is nothing dignified about her captivity.”

Second, she recognizes what was at stake in this case: “We are here presented with an opportunity to affirm our own humanity by committing ourselves to the promise of freedom for a living being with the characteristics displayed by Happy.”

Third, she asserts that Happy is entitled to her freedom: “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.”

Judge Rivera reached that decision by beginning her analysis with a doubling down on the position that a legal right does not require an ability to bear social responsibilities as the majority’s decision would have its readers believe. This rights-in-exchange-for-responsibilities approach is a product of an ancient and often misinterpreted political philosophy, recently turned anti-animal rights rallying cry, called the social contract theory. The theory posits that only those who can bear societal responsibilities can have rights. Since animals cannot bear societal responsibilities, they can never have rights. As the majority noted, “nonhuman animals cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law.” Yet, this position is easily refuted when one considers, as Judge Rivera does, that society “affords legal protections to those unable to exercise rights or bear responsibilities, such as minors and people with certain cognitive disabilities.”

For the pundit who argues that minors and cognitively disabled people are nevertheless parties to the social contract because they are human, one need only refer to Judge Wilson’s commentary on this point: “To say, ‘they are part of the human species’ is no answer, because social contract theory does not propose that members of a species can bind other members of the same species to a social contract without their consent.” In other words, since children and the cognitively disabled can’t consent to enter into the social contract, the majority’s position makes children and the cognitively disabled individuals without any rights if the Court’s reasoning is followed to its natural conclusion.

Next, Judge Rivera makes plain her reasoning for supporting Happy’s request for habeas corpus relief:

Although not true for all nonhuman animals, there are some with advanced cognitive skills, who display self-determinative behavior, with an awareness of death and a capacity to grieve. These animals are autonomous beings. If an enslaved human being with no legal personhood, a Native American tribal leader whom the federal government argued could not be considered a person under the law, a married woman who could be abused by her husband with impunity, a resident of Puerto Rico who is a United States citizen deprived of full rights because of Puerto Rico’s colonial status, and an enemy combatant as defined by the federal government can all seek habeas corpus relief, so can an autonomous nonhuman animal.

In referring to the above humans who were denied full rights under the law, Judge Rivera is not placing nonhuman animals on equal footing with humans. Rather, Judge Rivera demonstrates the flexibility of the historical use of the writ. In contrast, the majority ignores the history of novel habeas corpus petitions, boiling down their argument to a claim that “animals do not have the right to seek habeas corpus because they are not human beings and that human beings have such a right because they are not animals.”

But, as Judge Rivera remarks, “of course, humans are animals. And glaringly absent is any explanation of why some kinds of animals—i.e., humans—may seek habeas relief, while others—e.g., elephants—may not.” The primary argument Judge Rivera gleans from the majority’s opinion is that Happy isn’t entitled to habeas corpus because she was born an elephant, notwithstanding the fact that this reasoning would always fail if the argument was over any other individual characteristic aside from species membership, like skin color, national origin, or sexual orientation.

Judge Rivera then discusses the NhRP’s efforts to prove Happy’s autonomy through affidavits submitted by the world’s most renowned elephant scientists. Unlike Judge Wilson who was not convinced that the Supreme Court made any findings of fact when the case was initially filed, Judge Rivera found that the Supreme Court had determined Happy is an autonomous nonhuman animal. Having affirmed the finding that Happy is autonomous, which to Judge Rivera means Happy can seek habeas corpus relief (since she believes that any autonomous being, regardless of species, should be able to seek habeas corpus relief) the next question to answer was whether Happy may be released solely for purposes of transfer to an elephant sanctuary.

That question she easily answers by citing case law on the topic. Specifically, she noted that in “People ex rel. Dawson v Smith, this Court explained that habeas could be used to seek transfer from one facility to another.” She also added, “[a]part from this precedent, there is another basis to conclude that transferring Happy to an elephant sanctuary is an appropriate form of habeas relief in this case … [T]he writ is flexible and has been applied innovatively by courts to achieve a just and workable outcome.” How the majority could find that habeas relief wasn’t proper for Happy because the NhRP sought transfer “from one lawful confinement to another rather than her immediate release from detention” is confounding and defies controlling case law and the inherent nature of habeas corpus. It also puts countless New Yorkers at risk of unjust forms of imprisonment.

Having affirmed Happy’s autonomous nature, established an autonomous individual may seek habeas corpus relief, and justified the use of habeas corpus as a means to transfer an individual from one place of confinement to another, Judge Rivera concludes her dissent by making clear why Happy’s imprisonment warrants a decision in her favor. Judge Rivera describes captivity as “anathema to Happy” because of her immense intellect and found her imprisonment to be “harmful, not because it violates any particular regulation or statute relating to the care of elephants, but because an autonomous creature such as Happy suffers harm by the mere fact that her bodily liberty has been severely––and unjustifiably––curtailed.” Judge Rivera, unlike Judge Wilson who sought remand of the case to the lower court, would have freed Happy because her “captivity is inherently unjust and inhumane. It is an affront to a civilized society, and every day she remains a captive—a spectacle for humans—we, too, are diminished.”

Now, you may be wondering if this discussion is much ado about nothing. After all, Judge Wilson’s and Judge Rivera’s words do not come from a controlling opinion (i.e., an opinion delivered by a court’s majority); they are, after all, dissents and do not serve as any sort of binding precedent. But it’s important to remember not only that we were a mere two judges away from winning Happy’s right to liberty, but also that that these dissents can and will be used to inform future animal rights cases. Specifically, the dissents will be cited as persuasive authority and used to show why the majority’s opinion is deeply flawed. For those readers familiar with our work, an apt comparison is how we use New York Court of Appeals Judge Eugene Fahey’s concurrence (i.e., a non-controlling opinion) in our chimpanzee rights case to help persuade courts of our arguments and advance our cases, including in Happy’s case.

This blog opened with a quote about Justice John Marshall Harlan, undoubtedly a Justice of immense and lasting influence. This influence came, by and large, in the form of much of the work he did in refuting the majority’s opinions. The history of dissents show that what may be considered eccentric or ludicrous ideas today surely will not seem that way in the years to come. Justice Harlan understood this. The NhRP understands this. And with two judges on New York’s highest court understanding this, it’s only a matter of time until an elephant or other similarly autonomous nonhuman animal wins her release from her prison via a habeas corpus petition. As author Peter S. Canellos wrote of Justice Harlan:

When almost all of white society determined, in the face of bitter disputes over Reconstruction measures, that reconciliation between North and South was more important than enforcing constitutional rights for Black Americans, the Supreme Court was almost entirely complicit in the deal. Harlan was not. In case after case, he laid out a framework for what would become the twentieth-century civil rights movement. Among jurists, he alone expressed the view that when rights are denied to one group, it endangers the protections of all.

Like Justice Harlan did for civil rights for humans, Judge Wilson and Judge Rivera (along with Judge Fahey) have now laid out a framework for what will become the twenty-first century’s successful nonhuman animal rights movement. We look forward to citing their dissents in our elephant rights case already underway in California and in the new cases we’ll file across the US and in other countries in the coming months.

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