In mid-June, the New York State Court of Appeals — the highest court in the state — issued an unusual decision that made headlines across the country. By a five-to-two vote, the panel of judges rejected a lawsuit claiming that Happy, an elephant at the Bronx Zoo who has lived in captivity since the 1970s when she was captured in Thailand as a baby, should be considered a person for purposes of habeas corpus and released.

The suit, filed by the Nonhuman Rights Project, an animal rights organization, had argued that because of Happy’s extraordinary intelligence — she is the first elephant to pass a mirror self-recognition test — and her lack of mobility and freedom at the zoo, she should be transferred out of captivity and placed in a sanctuary that more closely resembles her natural habitat.

Kristen Stilt, professor and faculty director of the Animal Law & Policy Program, talked to Harvard Law Today about animal rights, Happy’s case — and what it means that it even got this far.

Harvard Law Today: On a very basic level, what types of rights do activists want for animals?

Kristen Stilt: The content of “rights” is not universally agreed upon by animal advocates. Despite the Nonhuman Rights Project’s loss, for example, the decision itself refers to animals as having some rights, such as the right not to be harmed, which is a reference to anti-cruelty legislation.  But animals are not the holder of these “rights,” nor are they the enforcer. Say someone harms your dog – that’s a tort against you, and maybe the perpetrator has violated the state anti-cruelty law. Some advocates have tried to get rights for animals to be able to sue on their own. There was an unsuccessful case in Oregon where the court said that a horse could not sue her abuser. There was an attempt to have a macaque monkey hold a copyright a few years ago, which also failed. But advocates will continue to try new theories to advance the status and rights of animals, and we are at the forefront of that effort. What advocates want ranges from animals having the rights of liberty and bodily integrity and the right not to be property of humans and used by them, to those who are simply seeking better welfare and protection for animals.

Professor Kristen Stilt is faculty director of Harvard Law’s Animal Law & Policy Program.

It’s important to note that even the most ambitious animal rights would not include the right to vote or other rights exclusive to human beings. They would be rights commensurate to the fact that they are animals.  It sounds absurd to have to say that, but detractors of advances for animals will sometimes try to make absurd arguments. What do animals want? As best as we can tell, the right to simply be left alone, or not to be created to be  the property of a human and used however that human wants, such as killed for food.

HLT: Could you tell me more about Happy’s case? What did the Nonhuman Rights Project argue in its attempt to free her?

Stilt: Procedurally speaking, this was a motion to dismiss. The Bronx Zoo as respondent requested dismissal of Happy’s petition for habeas corpus for lack of standing and for failure to state a cause of action. The court was tasked with looking at the facts as most favorable to the Nonhuman Rights Project and asking, could they win? The question of whether Happy was going to be free was not heard — rather, it was simply “will we even entertain the question?” The court said no.

The Nonhuman Rights Project had filed a habeas corpus petition, so that the zoo would be forced to defend itself, to show that the captivity was lawful. We are all likely familiar with the powerful writ of habeas corpus, in which a detained individual must be brought to court and the one holding the detainee must either show that the detention is legal or free the detainee. The writ is a creature of the common law in New York and most states, with the ability to change according to the circumstances, or, in this case, species. The Nonhuman Rights Project aimed to show that even though Happy the elephant is the property of the zoo under property law, and that the zoo is in compliance with meager welfare laws that do exist, at a higher level, when understanding the incredible capabilities of elephants, the detention was unlawful. They essentially argued that Happy should have the right to bodily liberty; that is, to not be held captive by the zoo.

Now, unlike a prisoner case, there is a nuance or a problem, depending on how you look at it. Because Happy was captured as a baby from Thailand, she cannot be returned to the wild, so she couldn’t just be simply released. But there is an incredible elephant sanctuary ready to take her — the next best place after her natural environment. The court tried to make something of the fact that she would not be completely free, but I think that is a specious argument, and a convenient one.  The bottom line is that I think the court was looking for a way to dismiss Happy’s case.

HLT: Can you speak more about how Nonhuman Rights Project tried to apply habeas to an elephant?

Stilt: I think the organization may have put too much emphasis at first on the term “legal person” In New York’s procedural habeas corpus law.  They accurately argued that a legal person is not necessarily a human, because a corporation can be a legal person, and so can a ship, a river. And an elephant. And this is true, a legal person is created by law, and a legal system can consider anything a legal person that it chooses purposes of suing or being sued. This distinction between a human being and a legal person is clearly understood by lawyers, but the distinction became muddy as the case became widely known among the public. There became a perception that the NhRP was seeking to treat Happy as a human with all that comes along with it — clearly that was not the organization’s goal.

In this last case in New York, the NhRP started with the argument that the purpose of habeas is liberty, and that since Happy is so clearly autonomous, self-aware (including aware that she is confined, alone, in what is for an elephant a tiny space, that she was confined yesterday, and that she will be confined tomorrow), that she is the beneficiary of everything habeas was intended to do. It is simple and clear—and yet the court still rejected it.

HLT: What else did the judges say in their decision?

Stilt: They were honest in saying that they just don’t think habeas applies to nonhumans. Their reasoning is as a result circular: habeas only applies to humans, because only humans have been given the right of habeas.

HLT: Did the case come down to the judges’ fear about creating a slippery slope about animal rights?

Stilt: That was likely some of it. You could see that concern in their questions in the oral arguments. But that is always the case with any extension of precedent, and to me not a reason to deny justice in the case immediately before you.

HLT: Despite the loss for animal rights activists, this case has still garnered a lot of attention. Are there any positive takeaways for animal rights activists?

Stilt: That this case was even heard by the highest court in New York, and that there were two dissenters who wrote very strong dissents, is very powerful. The dissenters did not shy away from saying, Look, in the past, we have used habeas for individuals who were not full rights-bearing citizens, such as women, children, or enslaved people. The majority said these were “odious comparisons,” which I read as a way for the court to refuse to engage with the actual arguments. There is a very important difference between saying, “we’ve done this for other individuals whom the law did not see as full people,” and saying somehow that what Happy is going through is any way similar to what an enslaved person suffered. Of course, it is in no way the same and that was not the dissent’s point.  But there was no engagement with this argument by the court.

HLT: Are there any precedents — either in the U.S. or elsewhere — for giving animals “rights”?

Stilt: Yes, but we are at the very early stages of such wins in court. There is a recent Pakistani case where an elephant was released from the zoo, and the zoo was closed. Indian court decisions not infrequently refer to specific rights of animals. Right now, we have many very thoughtful academic discussions of animal rights, and very few practical examples of it.

Beyond animal rights per se, there is another legal argument that I’ve written about, and that is gaining more attention, called “rights of nature.” Rights of nature exist in the constitution of Ecuador, and perhaps will stay in the new Columbian constitution as it goes through its final preparatory phases.  Rights of nature are recognized by law in Bolivia and by judicial decision in Brazil. Rights of rivers, which you can call a constituent part of nature, have been recognized in many countries, New Zealand perhaps foremost among them. Animals are also part of nature. And thus, rights of nature could be an avenue to gain some rights for some animals in some places, as we have just seen in an important case in Ecuador. Rights of nature may also serve as a mainstreaming function for animal rights. These rights are quite well regarded and established in South America, New Zealand, and other places with strong indigenous communities.

HLT: Ultimately, the lawsuit failed. What do you think is the next step for the Nonhuman Rights Project and others seeking to bolster animal rights?

Stilt: This case received a lot of public interest and generated a lot of awareness. That is good, but we do not have time for improvements to our treatment of animals to slowly percolate through courts and legislatures. I see this case as an integral part of the current crisis of our planet. The majority seems to think that putting a few more bricks on top of the wall that has, for so long, allowed humans to keep animals in the place assigned to them by humans is an acceptable response to the extensive and sophisticated arguments made by Happy’s lawyers and many others in Happy’s favor. The majority seems to believe that it is persuasive, or even prudent, in the year 2022 to simply entrench further the legal dividing line that keeps even the most intelligent and autonomous animals far away from resorting to any of the laws that protect humans from the worst of abuses.

The court is engaged in a dangerous fantasy. It is not only harmful to Happy, but it is the very kind of thinking that has placed our planet on a fast track to global warming, to the severe weather events, to the emergence of new zoonotic diseases, to species extinction, and other devastating consequences. The line between “us” and “them” that the court believes is so clear is pure fiction. Moments of contact between an animal and a human in which a virus jumps to the human, the so-called spillover, are happening now, in the U.S. and all over the world. How virulent and how transmissible the next one will be is unknown, like a roll of the dice. And there are resurgences of existing zoonotic diseases, such as the growing number of monkeypox now in the U.S. With each passing day, we both encroach further into the natural habitats of animals to take that land for our own purposes, and we capture and bring wild animals into our communities and homes, also for our own devices.

The fence that encloses Happy in a small and unnatural pen at the Bronx Zoo denies her the ability to be an elephant in any natural sense; it also fails miserably as a guide for law and public policy. We can continue to insist, as the court would like us to do, that we can capture, use, and force animals into entirely unnatural situations for our own benefit with impunity. But the danger of the fantasy we have created can no longer be ignored. We must engage with animals as they are, not as we wish them to be. Viewed this way, allowing Happy to live out her life in an elephant sanctuary that will provide her the next best setting to the home she was stolen from as a baby, is an easy call. It also should prompt a paradigm shift in our laws regarding animals.