Happy, a 47-year-old female Asian elephant, has been living in New York’s Bronx Zoo since 1977. For the past 13 years she has lived alone. Her lifelong companion Grumpy was fatally injured by two of the zoo’s other elephants in 2002, after which Happy was placed in an enclosure with a young male elephant named Sammy. Sammy died of liver disease in 2006. That year, the Bronx Zoo announced that it was ending its elephant programme and would acquire no new elephants. Either Happy will be transferred elsewhere, or she will die in solitary confinement in New York.
In October, the Nonhuman Rights Project, a non-profit organisation that is seeking to achieve legal rights for certain animals, filed a petition in New York claiming that Happy is being “unlawfully imprisoned”. At the Nonhuman Rights Project’s request, the judge issued on behalf of Happy a writ of habeas corpus – a court order that is usually given to allow prisoners to challenge the legality of their detention.
This was a legal milestone. It marked the first time a US judge has issued a writ of habeas corpus on behalf of an elephant. (And the second time such a writ has been issued for an animal: in 2015 a different New York judge issued one on behalf of two chimpanzees who were also represented by the Nonhuman Rights Project.) To convince the judge to order Happy to be released under habeas corpus and transferred to an elephant sanctuary, the group must now achieve something more ambitious: it must persuade the court that Happy should be considered a person. After all, only persons can have legal rights. You can’t be sued for depriving a deckchair, a cockroach, or even a dog of their bodily liberty.
This wasn’t the first time that Happy has made international headlines. In 2005, three American psychologists placed a giant mirror inside the Bronx Zoo elephant enclosure. For the first two days, Happy spent a lot of time sniffing the mirror and feeling it with her trunk. She waved her head from side to side and brought her food to the mirror so that she could watch herself eat. On day three, the researchers painted a big white cross on her face. Happy examined her reflection and repeatedly touched the cross with her trunk, like someone who’s noticed a persistent ink smudge on their cheek. With that, Happy became the first elephant to pass the mirror self-recognition test.
Until then, it was thought that only humans, chimpanzees and dolphins were capable of recognising their own reflections. This ability, which most humans acquire between the ages of 18 months and two years, is thought to be linked to crucial cognitive, social and emotional skills, such as self-awareness, introspection and empathy.
The mirror test forms part of a larger body of research, conducted in recent decades, that suggests that the internal lives of some animals may be closer to our own than we ever imagined. It was once believed that the human mind was completely different to that of other species, but now it seems more probable that we exist along a spectrum. Many emotional characteristics previously thought of as uniquely human are found in the animal world, too. We’re only just learning what animals are capable of, and the results are often astonishing: bees and wasps can recognise human faces; octopuses use tools; grey parrots have amassed vocabularies of hundreds of words. The law does not allow for such subtleties: every entity is either a person, capable of bearing rights, or it is a thing. The Nonhuman Rights Project argues that the stark legal distinction between humans and every other species makes no sense: a chimpanzee or elephant may not be able to vote or hold down a job, but should such a self-aware, intelligent creature be considered a legal “thing”?
In support of Happy’s case, six elephant experts submitted an affidavit arguing that elephants are “autonomous beings” who share “many behavioural and intellectual capacities with humans, including: self-awareness, empathy, awareness of death, intentional communication, learning, memory and categorisation abilities”. Elephants have the largest brains of any land mammal, and that’s not just a reflection of their stature. Their brains are twice as large as one might expect given the size of their bodies, which is suggestive of their intelligence. Their brains also share several key structural similarities to human brains.
Elephants have been observed helping members of their herd who are sick or injured, and when one dies, the rest of the herd mourns, maintaining a reverent quiet around the body, guarding it from predators and sometimes covering the corpse with dirt or leaves. They have sophisticated and rich ways of communicating with one another and engage in collective planning and decision making. They are “intelligent and social mammals” wrote Joyce Poole, who heads the research and conservation group Elephant Voices, in a court statement. “Held in isolation elephants become bored, depressed, aggressive, catatonic and fail to thrive. Human caregivers are no substitute for the numerous, complex social relationships and the rich gestural and vocal communication exchanges that occur between free-living elephants.”
The Nonhuman Rights Project views Happy’s legal battle as part of a broader civil rights movement. It wants to secure legal personhood and fundamental rights for great apes, elephants, whales and dolphins – and eventually, for other cognitively advanced animals too. The group compares its cause to previous civil rights movements, such as women’s suffrage and the abolition of slavery, and believes that in the future we’ll consider our current relationship to the animal world barbaric.
“It’s unfair and it violates fundamental principles of liberty and equality to not recognise the personhood of an entity on the sole grounds that they are not human beings,” the project’s founder, Steve Wise, told me. “Once you were disqualified because you were a woman, once you were disqualified for not being white… it’s no different from saying people with brown eyes get rights and people with blue eyes don’t. It’s irrational.”
Since 2013, he’s filed habeas corpus petitions on behalf of four chimpanzees and four elephants. Although no judge has ordered an animal to be released under habeas corpus law, Wise believes he’s slowly making progress. This isn’t a revolution that he expects will be won overnight, through mass protests or landmark legislative change. Instead, he’s launching a strategic campaign in America’s common law courts and hoping with every case to chip away at the idea that human rights should be the sole privilege of humans. “We’re not trying to win on technicalities here,” Wise said of Happy’s case. “This is a full-on assault that is political, legal, historic, moral, economic, religious.”
Test case: Happy the elephant at the Bronx Zoo
In January I watched Wise hold a workshop for the faculty at Connecticut Law School. He is 68 years old, earnest and scruffy-looking, with wispy grey hair and a penchant for baggy suits. He spoke with humour and enthusiasm, even when responding to questions-that-are-really-statements from various law professors. Why is the Nonhuman Rights Project focused on animal autonomy, rather than, say, its clients’ well-being one woman asked – “after all, it’s not like they’re going to be going to Starbucks!”
People have a tendency to do that, to reach for a ridiculous example. It reveals a reflexive unease with the concept of animal personhood, a knee-jerk you’ve-got-to-be-kidding-me response. Wise told me that in the Eighties, when he first started talking about animal rights, people mostly just laughed at him. He slowly built his academic profile, submitting dozens of articles to peer-reviewed journals, writing four trade books and securing prestigious teaching positions, including in 2000 teaching Harvard Law School’s first animal law course. Before his talk, several legal professors told me they found his work “fascinating”. Even so, when speaking to judges or members of the public Wise knows he usually has to overcome deeply engrained scepticism. Extending rights to animals might sound like some loony-leftie idea, but he just wants his ideas to be given a hearing.
He’s not the kind of crazed animal lover who amasses dozens of rescue cats and dogs (he has one mutt, Yogi). Nor was he obsessed with animals growing up. “I loved my dogs and my cats, and the only other major contact I had with animals was eating them,” he said of his childhood in Maryland, when we met for lunch after his talk. He’s been a vegan for around a decade, but as there were no vegan options in the Connecticut Law School cafeteria, he made do with a cheese sandwich and didn’t seem too disappointed about it. “I haven’t had cheese in years! This is so good!” he muttered.
Wise initially wanted to become a doctor and studied chemistry at William & Mary university in Virginia. There he became involved in left-wing student politics and anti-Vietnam war demonstrations, which led to a rift with his father, who worked for the defence ministry. Wise’s grades weren’t good enough for med school, so he spent a year working as a pulmonary assistant in Boston and hating his job before deciding to become a lawyer, hoping to put his political ideals into action. To his relief, he scraped in to Boston Law School.
After graduation, Wise began working as a public defender for people too poor to afford legal representation. One of the first things he did on qualifying for the bar was launch a belated appeal on behalf of a client he’d briefly represented while he was a student defender (his supervisor had eventually taken over the case) and whom he believed had been wrongfully convicted. Wise had the conviction overturned.
In 1980, his world-view changed when he read Animal Liberation by the Australian philosopher Peter Singer. The book convinced him that if he wanted to make a difference fighting injustice, he should shift his focus on to animals. Wise started taking on veterinary malpractice and animal abuse cases and developed an expertise in what he calls “doggy death cases”, representing dogs who were due to be put down for aggression. He was passionate about his cause – he told me he once drove over a hundred miles to check up on a snake, “and snakes scare the living hell out of me” – but became convinced that animal welfare legislation alone wasn’t enough. In 1985 he began researching how to achieve rights for animals. Wise predicted it would take 30 years for public and legal attitudes to shift enough for him to file his first animal habeas corpus case. He likes to point out it only took 28.
When Animal Liberation was published in 1975 it became a bible for the animal rights movement and helped inspire the creation of People for the Ethical Treatment of Animals (Peta), the largest animal welfare organisation in the world. Singer coined the term “speciesism” to refer to a bias against other species, a prejudice he argued was no less immoral than racism or sexism. Humans should give equal weight to animal and human suffering, he wrote, which means that meat-eating or animal testing are morally unacceptable. Parts of his argument have gained traction in the intervening decades: since 2013 the EU has banned the sale of cosmetics that have been tested on animals, veganism and vegetarianism are becoming more popular, and in many parts of the West farming welfare standards are becoming more heavily regulated.
Yet many felt moral revulsion and outrage at Singer’s views on how to weigh up competing animal and human interests. In Animal Liberation he wrote that if you make ethical decisions according to the principle of minimising the suffering and protecting the lives of self-aware, emotionally complex beings, “normally this will mean that if we have to choose between the life of a human being and the life of another animal we should choose to save the life of the human”, adding: “But there may be special cases in which the reverse holds true, because the human in question does not have the capacities of a normal human being… a chimpanzee, dog, or pig, for instance, will have a higher degree of self-awareness and a greater capacity for meaningful relations with others that a severely retarded infant.” For this reason, a 1999 New Yorker profile described Singer as “dangerous” and the “most controversial philosopher alive”. Singer does not believe moral intuitions are reliable; he could argue that the visceral rejection of his reasoning is irrational, and an example of speciesism. But there are practical reasons for objecting too: how should any outsider judge the worth of another human life, or determine what makes it worth living?
One consequence of extending rights to animals is that society will have to grapple with such questions. You might accept that our current basis for weighing up human versus animal interests is all wrong, but how far would you be willing to go to redress the imbalance? When should you trust your gut response, and when should you challenge it? For his part, Wise argued that it is “arbitrary” and “unfair” that severely disabled humans should have rights that chimpanzees and elephants don’t, but he said they should all be protected by rights. What would he consider a “non-arbitrary” reason for granting a severely disabled human rights, I asked. He replied he didn’t know, but added, “We understand Nuremberg. We understand the terrible things that happen when you discriminate among humans. But we also understand that terrible things are happening to non-humans.” On other issues, his stance was clearer. Would he ever test a drug on a chimpanzee to save a human life? No way.
For some, the mere suggestion that there is a comparison to be made between animal rights and other civil rights movements is offensive. “I keep having a difficult time with your using slavery as an analogy to this situation, I just have to tell you that,” Justice Karen Peters told Wise during a hearing in New York for Tommy, a former chimpanzee actor living in a small enclosure on a trailer park in upstate New York. Wise clarified that he wasn’t comparing black people to chimpanzees. “I understand that, but my suggestion is you move in a different direction,” she responded. “She was all ready to jump down my throat, which told me that she appeared to be biased against me. She was the problem,” Wise told me. For the most part, Wise is comfortable with making people feel uncomfortable.
There will be other difficult questions to consider, too. Once some species have been granted legal personhood, where would you stop? “We’re not a religious cult. We simply doubt that cockroaches and fireflies should have rights,” Wise said. Richard Epstein, a law professor at New York University, told Harvard Magazine that while he supported animal welfare legislation, he was deeply sceptical of Wise’s campaign. “We kill millions of animals a day for food,” he said. “If they have the right to bodily liberty, it’s basically a holocaust.”
Brothers in arms: Nonhuman Rights Project founder Steve Wise with Teco the benobo in 2016. Pennebaker Hegedus Films/HBO
Wise talks about the “feedback loop” that exists between the Nonhuman Rights Project and the rest of society. The project is changing how people think about animals, but its work is only made possible because social perceptions are already changing. In 2014, India’s Supreme Court ruled that all animals should have constitutional and legal rights. Two years later, a judge in Argentina ordered a chimpanzee to be released from a zoo under habeas corpus, and in 2017 Colombia’s Supreme Court ordered a bear to be released under the same legal principle. This year, the animal rights group Sentience Politics gathered enough signatures to hold a referendum in the Swiss canton of Basel-Stadt on whether primates should be granted rights.
Wise founded the Center for the Expansion of Fundamental Rights in 1995, which in 2007 became the Nonhuman Rights Project. He’s dismissive of other groups’ efforts to launch animal rights cases, such as Peta’s recent suits alleging that a photographer who sold a monkey selfie was infringing on the primate’s copyright, and that holding orcas at SeaWorld constituted slavery and violated the 13th amendment of the US constitution. Both were ill-conceived stunts and doomed to fail, Wise said, while his approach is the result of years of research into the history of legal and social change.
By 2013, the Nonhuman Rights Project had determined that America was ready to hear its case. It identified New York and Connecticut as the best states to work in, because abolitionists in these states successfully used habeas corpus law to challenge slavery and because of their unique pet trust statutes, which allow animals to be beneficiaries of trusts and describe them as legal persons for this purpose. (Two other states, Alaska and Illinois, have also recently introduced laws requiring that a pet’s “best interests” are considered in animal custody cases, meaning they are treated more like children than shared property.) That year, Wise filed a petition for a writ of habeas corpus on behalf of Tommy, the aforementioned New York chimpanzee.
For the next five years, the Nonhuman Rights Project filed appeal after appeal, until in May 2018 the case reached the New York Court of Appeals. By then the group was advocating on behalf of two chimpanzees, Tommy and another former chimp actor, Kiko. The court declined to hear the appeal, but in a concurring opinion Justice Eugene Fahey said that this wasn’t a reflection of the “merits” of the case. (It was rejected because of limits on the number of times a petition can be brought to the courts, in the absence of significant new information.) He wrote that he had “struggled” with his earlier decision to deny the group’s petition. “The issue of whether a non-human 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… While it may be arguable that a chimpanzee is not a ‘person’, there is no doubt that it is not merely a thing,” Fahey concluded. Wise chalks up the loss as a partial victory.
Three years earlier, a different New York court issued a writ of habeas corpus on behalf of Hercules and Leo, two chimpanzees used in research at Stony Brook University. The judge, Justice Barbara Jaffe ultimately declined to release the chimps under the law, arguing that she was bound by legal precedent. “Efforts to extend legal rights to chimpanzees are… understandable; some day they may even succeed,” she concluded. “As [former Supreme Court] Justice Kennedy aptly observed… ‘times can blind us to certain truths and later generations can see that laws once thought of as necessary and proper in fact only serve to oppress’.” Wise was encouraged.
At present, the Nonhuman Rights Project is embroiled in legal arguments over where Happy the elephant’s case should be heard: it wants to continue to hold hearings in Orleans County Court, the Bronx Zoo wants them to be held in the Bronx. The final venue could prove decisive, because the two New York courts are bound by different precedents. The Bronx Court is part of New York’s first judicial department, which has previously ruled that only human beings can be legal persons. Orleans County falls in the state’s fourth judicial department, which last June ruled in a case of vandalism in a car dealership that “it is common knowledge that personhood can and does sometimes attach to non-human entities like corporations and animals”. At the time of press, Wise was challenging the judge’s order that the case be moved to the Bronx.
I had hoped to see Happy at the Bronx Zoo, but a spokesperson denied my request. He directed me to a press statement issued in December, in which Jim Breheny, the director of the Bronx Zoo, said: “The NRP has chosen to exploit Happy and capitalise on the Bronx Zoo name to advance its failed political agenda. They continue to waste court resources to promote their radical philosophical view of ‘personhood’.”
If Wise wins, it may well be a small but significant first step towards a radical overhaul of our legal relationship with the animal world. In one possible future, zoo-keeping, animal agriculture and meat-eating may all be deemed monstrous and illegal. But, for now, the question Wise is presenting before the courts – and, to some extent, before the American public – is more limited in scope. Is Happy a person?
Sophie McBain is the New Statesman’s North America correspondent