Happy the elephant made history on Tuesday. By arguing for her release from the Bronx Zoo, she became the first animal to have a case for animal rights decided by a court of last resort in North America. New York’s highest court, the New York Court of Appeals, unequivocally recognized that “elephants are intelligent beings deserving of proper care and compassion” and noted that under existing law “they are not the equivalent of ‘things’ or ‘objects.’”
Ultimately, Happy lost her case by a 5-2 vote. On the most basic level, this means that Happy will not be released from the zoo to live out her life in a sanctuary. But beyond the straightforward consequences, and the majority’s attempt at explaining “the relative simplicity of the legal issue,” the reasoning offered in Happy’s case highlights a few key, but less obvious, lessons for the future of animal rights law.
In a relatively short decision, the five-judge majority held that the right to be free from unlawful confinement is limited to human beings and cannot be extended to an elephant.
The concerns at the heart of their argument was not what you might expect, namely, that Happy was the property of the zoo and, as such, she could not be taken away from her owners. Nor was the argument that Happy cannot be a legal person because of her property status and property cannot have rights.
Indeed, the majority goes out of its way to catalog a wide range of ways in which nonhuman animals have rights and benefit from special legal protections (e.g. prohibitions on torture, unjustifiable killing, cruelty). In other words, personhood, in the sense that human beings possess, is by no means a necessary prerequisite for rights or to be considered a rights-holder. Put another way, a being or entity with rights may also have a “thing-like” status.
The recognition of this in-between “quasi” space is consistent with the ruling in an earlier case from New York brought by the same group, the Nonhuman Rights Project, in which Justice Eugene M. Fahey ended his decision with the following words: “[w]hile it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”
Rejecting the person-thing binary is an important analytical next step. In animal law there is a sort of dogma holding that a being is either a person with rights, or some form of property that necessarily cannot be a rights-holder. But with this decision, it may be time to embrace the reality that nonhuman animals are neither persons nor property. Indeed, the dichotomy itself is a false one. And it is pernicious insofar as it allowed the majority opinion in Happy’s case to skate too easily over difficult questions by perfunctorily stating (sometimes in italics) that non-human animals are simply not persons. Indeed, the majority found the very notion of Happy’s comparisons to human struggles “odious.” And it is a short step from this outrage to invoking the slippery slope of all the things that would crumble if this one elephant were to be permitted to have a hearing on the merits of her case.
Binary aside, the majority opinion bolsters its conclusions about Happy’s captivity through a second crucial legal move. While warning of the parade of horribles that might follow if animals are granted too many legal protections as persons, the court simultaneously celebrates what it calls the “carefully” crafted set of statutory and regulatory protections for non-humans. The opinion provides an example of what psychologists might identify as the dubious practice of “moral satiation,” in which the act of symbolically celebrating animal laws already on the books serves to absolve the court (and we the public by implication) from guilt over Happy’s captivity. But in reality, these laws are of no use to Happy or to most animals confined for monetary purposes.
In this way, the opinion is a microcosm of the American public’s inconsistency when it comes to animals – some we love like family, and others we use for food, fur and entertainment. And these contradictions are made almost invisible by the law.
The legal lines defining who is in and who is out of the arc of legal protection are not, as Happy’s case shows, based on sapience or sentience or other rational boundaries. Instead the majority’s argument turns on the fact that we already have some legal protections to guard against the worst kind of cruelty to animals. The opinion denying Happy (and other highly intelligent non-humans) access to the courts would have been much more difficult for the majority to write if not for the bevy of state and federal legal protections that curtail some of the most grotesque forms of animal maltreatment (for at least some animals). It is as though the majority is telling us, don’t worry that Happy loses this case, our laws provide a strong baseline of protection for animals. “The law is working for animals,” the court almost proclaims.
As a result, the majority demonstrated how presumptively beneficial legal reforms can endanger progress— or at least make it easier to justify the status quo. In other legal contexts, scholars have warned of the dangers of pursuing reforms that tend to target only the most extreme examples of a practice, (i.e. animal cruelty) and in the process enshrine and entrench dominant social practices (i.e. animals held in zoos).
For example, the majority relied heavily on the federal Animal Welfare Act (AWA) as justification for their decision. In at least three separate occasions, the court rationalizes the confinement of Happy by emphasizing that the Bronx Zoo “complies with all applicable federal” statutes and regulations. But compliance with the AWA, as animal law scholars like Delci Winders have shown, is neither difficult, nor rigorously enforced. In this way, laws such as the AWA function as a cudgel to justify denying animal protection efforts like those pursued in Happy’s case. And so, in an unintended way, the AWA might harm animals.
But when it comes to animal confinement, biologist and ethologist Marc Bekoff and bioethicist Jessica Pierce recently warned of its dangers, explaining that as a matter of science, “[t]here is no such thing as ‘good captivity.’” The point here is not that animal protection is an all-or-nothing project. But it is worth grappling with the fact that progressive reforms can function as an escape hatch that allows animal abusers (or their justifiers) to defend or deflect from accusations of maltreatment. And such laws can also function in the political realm as a release valve for public pressure that might otherwise build for big, structural reforms to the way we treat animals.
The appetite for change aroused by cases like Happy, we are told, is overblown in light of existing laws that prohibit, for example, animal torture. In a passage that is almost laughable to anyone seriously concerned about protecting animals through law, the majority posits that granting Happy relief could “displace the carefully devised state and federal statutory frameworks governing animal welfare.” The problem is, the range of exempted animal cruelty (either tacitly or explicitly) is so vast it belies the idea that animal protections are carefully tailored to anything other than protecting profits from animal exploitation. The New York statute prohibiting abuse or torture that was celebrated by the majority in Happy’s case, for example, has never been enforced against foie gras producers who just up the road from Happy’s enclosure force feed birds through methods that experts have decried as cruel.
The real loss in this case isn’t simply the blow it dealt to animal protections. It is that the case manages to reach this decision while congratulating the public and the legal system for its progress in helping animals, all the while citing those accomplishments as a rationalization for denying Happy relief. The dissent by Justice Rowan Wilson (the longer of the two dissents) holds a key for the courts: tempora mutantur et leges mutantur in illis, which means times change and the law must change with them. Clinging onto the property/person distinction or hiding behind the justificatory force of welfare laws, and doing nothing more than re-asserting speciesism and human exceptionalism, are just not very convincing in this day and age.