Five Highlights of the Happy the Elephant Dissents

Three years ago today, two judges on New York’s highest court issued historic dissenting opinions in support of elephants’ right to liberty. The focus of their dissents was our client Happy, an Asian elephant held alone in captivity in the Bronx Zoo. 

While the majority of the judges on the New York Court of Appeals ruled against Happy—holding that the writ of habeas corpus, which safeguards the right to liberty, doesn’t apply to nonhuman animals—Judge Rowan Wilson (now the Chief Judge) and Judge Jenny Rivera chose not to remain silent in the face of the intolerable wrong of Happy’s imprisonment. Below are five highlights of the Happy the elephant dissents:

1. Judge Rowan D. Wilson and Judge Jenny Rivera agreed with the NhRP’s position that Happy’s confinement is unjust and can be remedied through habeas corpus. Judge Wilson wrote that “the history of the Great Writ demonstrates that courts have used and should use it to enhance liberty when a captivity is unjust, even when the captor has statutory or common-law rights authorizing such captivities.” Judge Rivera found the injustice of Happy’s captivity was so profound that the case presented “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.” She added that “prior decisions do not foreclose Happy’s petition and instead compel our acknowledgment of the availability of the writ to a nonhuman animal to challenge an alleged unjust confinement.”
2. The dissents focused on Happy’s autonomy, arguing it is the nature of the individual seeking redress through habeas corpus that matters, not the individual’s species membership. They recognize that Happy “shares common aspects of mammalian life and community that are familiar to humans” by exhibiting “advanced cognitive skills,” “self-determinative behavior,” and an “awareness of death and a capacity to grieve.” These attributes (among many others) prove Happy’s autonomous nature, which “could make [her] suffering particularly acute” and is the proof needed to warrant the issuance of a writ of habeas corpus on her behalf.
3. Both Judge Wilson and Judge Rivera refuted the idea that only humans can have rights.
4. The dissents took into consideration whether present-day societal standards mean it is no longer acceptable to hold elephants in captivity. Judge Wilson aptly states: “At its core, this case is about whether society’s norms have evolved such that elephants like Happy should be able to file habeas petitions to challenge unjust confinements.” Such decisions, according to Judge Wilson, should be informed by our growing “understanding of the cognitive and emotional makeup of animals,” particularly elephants. Judge Rivera presented Happy’s captivity as “an affront to a civilized society, and every day she remains a captive—a spectacle for humans—we, too, are diminished.”
5. The dissents refuted the idea that recognizing the legal rights of nonhuman animals should be a matter for the legislature instead of the courts. Judge Wilson provided multiple examples of how the Court of Appeals “changes the common law to adapt it to the changed needs and wants of society, without waiting for a legislature to act.” Judge Rivera echoed this sentiment when she held that the “immensity of th[e] question does not place it exclusively within the domain of the legislature. As even the majority concedes, ‘the courts—not the legislature—ultimately define the scope of the common law writ of habeas corpus.’”

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).

These dissents have helped plant the roots of legal change for nonhuman animals. But because the five other judges adhered to the unjust legal status quo, Happy remains in captivity. That’s why we helped develop and are working to pass the first elephant captivity ban in the US in New York City–a bill that would require the Bronx Zoo to release Happy and Patty to an elephant sanctuary. We’ll have further updates soon, including a comprehensive recap of where things stand and how you can help.

Learn more about Happy and her court case here.