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New Briefs Submitted in Support of Happy the Elephant’s Right to Liberty

By Lauren Choplin

Four new amicus curiae (“friend of the court”) briefs have been submitted in support of the Nonhuman Rights Project’s landmark habeas corpus case demanding the right to bodily liberty of an elephant named Happy held alone in captivity in the Bronx Zoo.

The first brief is by a group of six expert habeas corpus practitioners and scholars, including four lawyers who worked on the Central Park Jogger case.

The second is by 14 philosophers with expertise in animal ethics, animal political theory, the philosophy of animal cognition and behavior, and the philosophy of biology.

The third is by five Catholic theologians with expertise in Catholic moral theology, ethics, animal ethics, ecological theology, theology and science, and bioethics.

The fourth is by a Fordham University professor who investigates the role of communication and media in contemporary social movements and public debates; it focuses on the question of public opinion in relation to Happy’s case. [Note: This brief has been withdrawn]

All four briefs join the Nonhuman Rights Project (NhRP) in urging New York’s highest court, the New York Court of Appeals, to recognize Happy as a legal person with the right to liberty and order her release to a sanctuary. In May of this year, the Court agreed to consider the NhRP’s arguments, marking the first time in history the highest court of an English-speaking jurisdiction will hear a habeas corpus case brought on behalf of someone other than a human being. The Court accepts fewer than five percent of cases seeking permission to appeal.

The authors of the habeas experts’ brief are 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):

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 nonhumans at issue are unquestionably innocent. Their confinement, at least in some cases, is uniquely depraved—and their sentience and cognitive functioning, and the cognitive harm resulting from this imprisonment, is like that of human beings.

The authors of the philosophers’ brief are 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 PeĂąa-GuzmĂĄn (San Francisco State University), James Rocha (California State University, Fresno), Bernard Rollin (Colorado State University), Jeff Sebo (New York University), Adam Shriver (University of British Columbia):

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 the Catholic theologians’ brief are John Berkman, PhD (University of Toronto), Charles Camosy, PhD (Fordham University), Allison Covey, PhD (Villanova University), Celia Deane-Drummond, PhD (University of Notre Dame, University of Oxford), Christopher Steck, SJ, PhD (Georgetown University):

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. As we explain below, we believe Happy cannot flourish as this kind of creature while captive in the Bronx Zoo and that she would be significantly better able become the kind of creature God made her to be in a sanctuary.

The author of the public opinion brief is Dr. Garrett Broad (Associate Professor, Department of Communication and Media Studies, Fordham University):

Fundamentally, this Court should trust that the public is intelligent enough to understand that our legal system evolves over time, particularly when new and convincing scientific, political, and moral arguments emerge. For these and other reasons outlined in this brief, I once again urge this Court to grant the Petitioner-Appellant Nonhuman Rights Project’s requested relief. Doing so will ensure that Happy is able to live her life commensurate with the dignity that the public believes she deserves … The recognition of Happy’s right to bodily liberty and the use of habeas corpus to transfer her to an elephant sanctuary is not only appropriate from a scientific, ethical, and legal perspective, but it is also consistent with contemporary American public norms.

Happy is a 50-year-old 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 15 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 August, Christine M. Korsgaard (Arthur Kingsley Porter Research Professor of Philosophy, Harvard University) and Martha C. Nussbaum (Ernst Freund Distinguished Service Professor of Law and Ethics, The University of Chicago) filed amicus briefs in support Happy’s habeas corpus petition and release to a sanctuary.

Earlier this month, the NhRP filed a Reply Brief addressing the brief the Bronx Zoo filed with the Court on Aug. 23rd, specifically its failures to rebut the NhRP’s arguments, its misrepresentations of the NhRP’s arguments, and its omissions of key aspects of the Bronx Supreme Court’s factual determinations regarding Happy’s autonomy and extraordinary cognitive complexity. In July, the NhRP filed a 14,000-word brief with the Court that brings together centuries of case law including landmark common law and civil rights cases, the science of elephant cognition and behavior, the origin of legal rights, judicial rulings from outside the US that have granted rights to nonhuman animals, and ethical arguments against elephant captivity.

Oral arguments have not yet been scheduled in Happy’s case.

  • Read the habeas experts’ brief here.
  • Read the philosophers’ brief here.
  • Read the Catholic theologians’ brief here.
  • Read Professor Christine M. Korsgaard’s brief here.
  • Read Professor Martha C. Nussbaum’s brief here.
  • Read the NhRP’s July 2021 brief here.
  • Read the Bronx Zoo and the Wildlife Conservation Society’s August 2021 brief here.
  • Read the NhRP’s September 2021 Reply here.

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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