The opinion
State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 52
In the Matter of Nonhuman Rights
Project, Inc., &c.,
Appellant,
v.
James J. Breheny, &c., et al.,
Respondents.
Monica L. Miller, for appellant.
Kenneth A. Manning, for respondents.
Martha C. Nussbaum; Protect the Harvest et al.; John Berkman et al.; Christine M.
Korsgaard; Gary L. Comstock et al.; Jane H. Fisher-Byrialsen et al.; American Veterinary
Medical Association et al.; National Association for Biomedical Research; Edwin
Cameron; Mahinda Deegalle et al.; Joe Wills et al.; Laurence H. Tribe et al.; New York
Farm Bureau et al.; Association of Zoos & Aquariums et al.; Randall S. Abate et al.;
Carol Bakhos et al.; Christina Nellist et al.; Peter Singer et al.; Shannon Minter et al.;
Richard L. Cupp, Jr.; Maneesha Deckha; K.S. Panicker Radhakrishnan; Andrew Linzey
et al.; Animal Legal Defense Fund, amici curiae.
DiFIORE, Chief Judge:
For centuries, the common law writ of habeas corpus has safeguarded the liberty
rights of human beings by providing a means to secure release from illegal custody. The
question before us on this appeal is whether petitioner Nonhuman Rights Project may seek
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habeas corpus relief on behalf of Happy, an elephant residing at the Bronx Zoo, in order to
secure her transfer to an elephant sanctuary. Because the writ of habeas corpus is intended
to protect the liberty right of human beings to be free of unlawful confinement, it has no
applicability to Happy, a nonhuman animal who is not a “person” subjected to illegal
detention. Thus, while no one disputes that elephants are intelligent beings deserving of
proper care and compassion, the courts below properly granted the motion to dismiss the
petition for a writ of habeas corpus, and we therefore affirm.
I.
Petitioner Nonhuman Rights Project is a not-for-profit corporation that
characterizes its mission as seeking to establish that “at least some nonhuman animals” are
“legal persons” entitled to fundamental rights, including “bodily integrity and bodily
liberty.” In furtherance of this mission, petitioner has commenced myriad proceedings in
New York and other states on behalf of chimpanzees and elephants, arguing that these
nonhuman animals are legal “persons” being unlawfully confined and, as such, they are
entitled to the remedy of habeas corpus. Petitioner’s efforts have been unsuccessful, with
no court granting such petitions and most of these courts dismissing the proceedings on the
basis that nonhuman animals are not legal “persons” with liberty rights protected by the
writ of habeas corpus (see Matter of Nonhuman Rights Project, Inc. v Lavery, 152 AD3d
73, 77 [1st Dept 2017], lv denied 31 NY3d 1054 [2018]; People ex rel. Nonhuman Rights
Project, Inc. v Lavery, 124 AD3d 148, 150 [3d Dept 2014], lv denied 26 NY3d 902 [2015];
Rowley v City of New Bedford, 99 Mass App Ct 1104, 159 NE3d 1085 [Mass App Ct 2020],
review denied 486 Mass 1115, 165 NE3d 159 [2021]; Nonhuman Rights Project, Inc. v
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R.W. Commerford and Sons, Inc., 192 Conn App 36, 47-48, 216 A3d 839, 845-846 [Conn
App 2019], cert denied 330 Conn 920 [2019]; see also Matter of Nonhuman Rights Project,
Inc. v Presti, 124 AD3d 1334, 1335 [4th Dept 2015], lv denied 26 NY3d 901 [2015]; Matter
of Nonhuman Rights Project Inc. v Stanley, 2014 NY Slip Op 68434[U] [2d Dept 2014]).
Undeterred, in 2018, petitioner commenced this habeas proceeding in Supreme
Court against respondents James J. Breheny, Director of the Bronx Zoo, and the Wildlife
Conservation Society, the organization that operates the Zoo and promotes conservation
efforts to preserve wildlife worldwide. Petitioner sought a writ of habeas corpus “on behalf
of Happy,” an Asian elephant that petitioner claimed was unlawfully confined at the Zoo
in violation of her right to bodily liberty. Happy, who has been in captivity since she was
approximately one year old, has resided at the Bronx Zoo for the last 45 years.
Unfortunately, Happy’s original elephant companion was euthanized in 2002 due to
injuries sustained in an altercation with other resident elephants. Happy was then paired
with another companion for several years until that elephant was euthanized after falling
ill. The Zoo then announced that it would not be acquiring more elephants and would
eventually end its captive elephant program. Thus, Happy and another female elephant,
Patty, are the only remaining elephants at the Zoo today and they are housed separately
due to their hostile relationship.
In seeking habeas relief, petitioner did not dispute that Happy’s residence at the
Zoo—which is accredited by the Association of Zoos and Aquariums and regulated by the
federal Animal Welfare Act (see generally 7 USC § 2131)—complies with all applicable
federal and state statutes and regulations governing elephant care. Further, although
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petitioner contended that Happy does not have sufficient direct social contact with other
elephants as a consequence of her current living situation, petitioner did not otherwise
allege that Happy is subjected to cruel, neglectful, or abusive treatment. Nevertheless,
noting that Happy is an “extraordinarily cognitively complex and autonomous nonhuman”
animal, petitioner argued that she should be “recognized as a legal person with the right to
bodily liberty protected by the common law” and immediately released from “unlawful
imprisonment” at the Zoo. Petitioner acknowledged, however, that Happy could not safely
be released to wander the city streets or even to the wild, requesting instead that she be
transferred to an “appropriate sanctuary,” preferably one chosen by petitioner, where she
could potentially be integrated with other elephants.
To support its request, petitioner proffered affidavits from several experts
specializing in elephant study and care attesting to the general characteristics of elephants.
These experts asserted that elephants are “autonomous beings” inasmuch as they “direct[]
their behavior based on some non-observable, internal cognitive process, rather than simply
responding reflexively.” Further, they explained—and it is essentially undisputed—that
elephants are intelligent beings, who have the capacity for self-awareness, long-term
memory, intentional communication, learning and problem-solving skills, empathy, and
significant emotional response. These experts did not, however, comment on Happy’s
particular circumstances, the adequacy of her environment, or the care she receives at the
Zoo.
The Zoo respondents opposed petitioner’s application and, as relevant here,
requested dismissal of the petition for lack of standing and failure to state a cause of action.
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Respondents argued that there was no legal basis for habeas relief and that Happy’s living
conditions comply with all relevant laws and accepted standards of care. The Bronx Zoo’s
Chief Veterinarian proffered an affidavit detailing the Zoo’s efforts to “ensure Happy’s
continued physical and psychological well-being and health” and averring that Happy is
“currently healthy and well-adapted to her present surroundings.” He opined that removing
Happy from her long-term home would cause her “substantial stress” and “create a serious
risk to her long-term health.” The Associate Director of the Bronx Zoo also submitted an
affidavit describing the Zoo’s compliance with elephant management and care standards
and accreditation requirements, Happy’s routine medical care, her physical
accommodations, and her comfort and familiarity with her caregivers. Finally, respondent
Breheny—Director of the Bronx Zoo—explained that Happy was housed in a separate
enclosure adjoining Patty’s because Happy “has a history of not interacting well with other
elephants,” but she is nevertheless able to interact with Patty through “sound, olfaction,
and touch.” Breheny pointed out—and the elephant sanctuary in question conceded—that
unrelated elephants living together in captivity may have acrimonious relationships and,
thus, a transfer could not guarantee Happy increased interaction with other elephants.
Petitioner contested this point in reply, asserting that elephants such as Happy may be able
to form positive social relationships in a sanctuary environment.
Supreme Court dismissed the petition on the ground “that animals are not ‘persons’
entitled to rights and protections afforded by the writ of habeas corpus” and, in any event,
habeas relief is not available where, as here, petitioner merely sought to obtain Happy’s
transfer from one lawful confinement to another rather than her immediate release from
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detention. On petitioner’s appeal, the Appellate Division unanimously affirmed, reasoning
that “the writ of habeas corpus is limited to human beings” (189 AD3d 583, 583 [1st Dept
2020]). The Appellate Division also cautioned that a judicial determination that nonhuman
animals are legal “persons” would “lead to a labyrinth of questions that common-law
processes are ill-equipped to answer,” noting that “the decisions of whether and how to
integrate other species into legal constructs designed for humans is a matter better suited
to the legislative process” (id. [citation omitted]). This Court granted petitioner leave to
appeal (36 NY3d 912 [2021]).
II.
Petitioner urges the Court to recognize Happy as a legal “person” with a common
law right to bodily liberty subject to the protections of the writ of habeas corpus. According
to petitioner, modern ethics, policy, notions of justice, and social norms compel the
conclusion that Happy has the right to be free from confinement in the Zoo because she is
an autonomous and extraordinarily cognitively complex being capable of possessing legal
rights even if she is incapable of assuming legal duties. While no one disputes the
impressive capabilities of elephants, we reject petitioner’s arguments that it is entitled to
seek the remedy of habeas corpus on Happy’s behalf. Habeas corpus is a procedural
vehicle intended to secure the liberty rights of human beings who are unlawfully restrained,
not nonhuman animals.
The ancient writ of habeas corpus “is a summary proceeding to secure personal
liberty” that “strikes at unlawful imprisonment or restraint of the person by state or citizen”
(People ex rel. Duryee v Duryee, 188 NY 440, 445 [1907]; see People ex rel. Sabatino v
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Jennings, 246 NY 258, 260 [1927]). The right of persons to invoke the writ of habeas
corpus—“the historic writ of liberty” which we have recognized as “the greatest of all
writs”—is “primary and fundamental” (People v Schildhaus, 8 NY2d 33, 36 [1960]
[internal quotation marks omitted]; see US Const, art I, § 9; NY Const, art I, § 4; People
ex rel. DeLia v Munsey, 26 NY3d 124, 130 [2015]). The centuries-old writ originated in
English law and has been a steadfast pillar of our common law (see Preiser v Rodriguez,
411 US 475, 484-485 [1973]; People ex rel. Tweed v Liscomb, 60 NY 559, 565-566
[1875]). It is also enshrined in the New York Constitution, which safeguards “[t]he right
of persons, deprived of liberty, to challenge in the courts the legality of their detention”
(Hoff v State of New York, 279 NY 490, 492 [1939] [emphasis added]). Article I, § 6
declares that “[n]o person shall be deprived of life, liberty or property without due process
of law” and Article I, § 4 dictates that the privilege of the writ of habeas “shall not be
suspended, unless, in case of rebellion or invasion, the public safety requires it.” Thus,
although procedural aspects of the writ are governed by statute (see CPLR art 70), the “writ
cannot be abrogated, or its efficiency curtailed, by legislative action” (Tweed, 60 NY at
566).
“Our constitutional guaranties of liberty are merely empty words unless a person
imprisoned or detained against [their] will may challenge the legality of [their]
imprisonment and detention” (Hoff, 279 NY at 492). The common law writ of habeas
corpus therefore provides a means of redress for persons alleging detention or
imprisonment in violation of various statutory or constitutional rights and, on the merits,
the question presented in a habeas proceeding is whether the relator’s confinement is
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contrary to law (see DeLia, 26 NY3d at 130-131; People ex rel. Thorpe v Von Holden, 63
NY2d 546, 550 [1984]; People ex rel. Spinks v Harris, 53 NY2d 784, 785 [1981]; People
ex rel. Klein v Krueger, 25 NY2d 497, 499 [1969]; People ex rel. Zakrzewski v Mancusi,
22 NY2d 400, 404-405 [1968]; People ex rel. Granskofski v Whitehead, 8 NY2d 962, 963
[1960]; Sabatino, 246 NY at 260; Lemmon v People, 20 NY 562, 615 [1860]). Persons
seeking a writ of habeas corpus must establish more than just confinement to justify its
issuance; they must show that their confinement is illegal (see People ex rel. Robertson v
New York State Div. of Parole, 67 NY2d 197, 201 [1986]; see also CPLR 7003 [a]).
Habeas corpus is not, however, the primary remedy for statutory or constitutional
violations that result in unlawful restraint. Resort to habeas and “[d]eparture from
traditional orderly proceedings”—such as the appellate process—is “permitted only when
dictated . . . by reason of practicality and necessity” (People ex rel. Keitt v McMann, 18
NY2d 257, 262 [1966]). Furthermore, under New York law, “habeas corpus generally will
lie only where the [relator] would become entitled to . . . immediate release upon the writ
being sustained” (People ex rel. Chakwin v Warden, N.Y. City Correctional Facility, Rikers
Is., 63 NY2d 120, 125 [1984]; see DeLia, 26 NY3d at 131; People ex rel. Hall v LeFevre,
60 NY2d 579, 580 [1983]; People ex rel. Mendolia v Superintendent., Green Haven
Correctional Facility, 47 NY2d 779, 779 [1979]).
Petitioner urges this Court to recognize its right on behalf of Happy, an elephant, to
invoke the protections of the writ to challenge her confinement at the Bronx Zoo. However,
despite the awesome power of the writ of habeas corpus and its enduring use throughout
the centuries, no court of this State—or any other—has ever held the writ applicable to a
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nonhuman animal. Nothing in our precedent or, in fact, that of any other state or federal
court, provides support for the notion that the writ of habeas corpus is or should be
applicable to nonhuman animals. The selective capacity for autonomy, intelligence, and
emotion of a particular nonhuman animal species is not a determinative factor in whether
the writ is available as such factors are not what makes a person detained qualified to seek
the writ. Rather, the great writ protects the right to liberty of humans because they are
humans with certain fundamental liberty rights recognized by law (see generally Preiser,
411 US at 485; Tweed, 60 NY at 569; Sisquoc Ranch Co. v Roth, 153 F2d 437, 440-441
[9th Cir 1946]). Nonhuman animals are not, and never have been, considered “persons”
with a right to “liberty” under New York law (see ECL 11-0105 [“The State of New York
owns all fish, game, wildlife, shellfish, crustacea and protected insects in the state, except
those legally acquired and held in private ownership”]; Mullaly v People, 86 NY 365, 366-
368 [1881]; Pierson v Post, 3 Caines 175, 178-179 [1805]; see Agriculture and Markets
Law §§ 108, 107).
To be sure, as our dissenting colleagues observe, the writ of habeas corpus is flexible
and has long existed as a mechanism to secure recognition of the liberty interests of human
beings—even those whose rights had not yet been properly acknowledged through
established law. That flexibility, however, is not limitless and the extension of the writ
would far exceed its bounds here, where petitioner seeks its application to a nonhuman
animal. In that regard, the dissents are long on historical discourse but woefully short of
any cogent legal analysis identifying any recognizable source of a proclaimed liberty right
or so-called fundamental right to be free that they seek to bestow upon autonomous
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nonhuman animals. Instead, the dissenters conclude that the logical progression of our
common law runs from extending habeas to “abused women and children and enslaved
persons” (Wilson, J., dissenting op at 70, 16-36, see also Rivera, J. dissenting op at 5-9) to
granting an elephant the right to bring a habeas proceeding, an odious comparison with
concerning implications—as both dissenters acknowledge but one on which they
nevertheless rely. We are unpersuaded.
At bottom, even petitioner implicitly concedes that Happy is not guaranteed
freedom from captivity—the right to liberty—under the law. The relief requested is not
discharge from confinement altogether but, rather, a transfer of Happy from one
confinement to another of slightly different form—an implicit acknowledgement that
Happy, as a nonhuman animal, does not have a legally cognizable right to be at liberty
under New York law. The fact that the greatest relief which could be afforded Happy is a
transfer between lawful confinements demonstrates the incompatibility of habeas relief in
the nonhuman context inasmuch as, under New York law, the writ may be sustained only
when a person is entitled to immediate release from an unlawful restraint of liberty (see
Chakwin, 63 NY2d at 125; compare People ex rel. Brown v Johnston, 9 NY2d 482, 485
[1961] with People ex rel. Dawson v Smith, 69 NY2d 689, 691 [1986]).
Significantly, courts have consistently determined that rights and responsibilities
associated with legal personhood cannot be bestowed on nonhuman animals (see Lavery,
152 AD3d at 78; Lavery, 124 AD3d at 152; Rowley, 99 Mass App Ct 1104, *2; R.W.
Commerford and Sons, Inc., 192 Conn App at 45-46; cf. Tilikum ex rel. People for the
Ethical Treatment of Animals, Inc. v Sea World Parks & Entertainment, Inc., 842 F Supp
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2d 1259, 1263 [SD Cal 2012]; Lewis v Burger King, 344 Fed Appx 470, 472 [10th Cir
2009]; Cetacean Community v Bush, 386 F3d 1169, 1177-1178 [9th Cir 2004]; Citizens to
End Animal Suffering and Exploitation, Inc. v New England Aquarium, 836 F Supp 45, 49
[D Mass 1993]; Miles v City Council of Augusta, Ga., 710 F2d 1542, 1544 n 5 [11th Cir
1983]). As these courts have aptly observed, legal personhood is often connected with the
capacity, not just to benefit from the provision of legal rights, but also to assume legal
duties and social responsibilities (see R.W. Commerford and Sons, Inc., 192 Conn App at
46; Lavery, 152 AD3d at 78; Lavery, 124 AD3d at 151; Black’s Law Dictionary [11th ed
2019], person). Unlike the human species, which has the capacity to accept social
responsibilities and legal duties, nonhuman animals cannot—neither individually nor
collectively—be held legally accountable or required to fulfill obligations imposed by law.
Nor does any recognition of corporate and partnership entities as legal “persons”
lend support to petitioner’s claim. Corporations are simply legal constructs through which
human beings act (see Pembina Consol. Silver Mining & Milling Co. v Pennsylvania, 125
US 181, 189 [1888]) and corporate entities, unlike nonhuman animals, bear legal duties in
exchange for legal rights. Moreover, although corporations are deemed “persons” in some
legal contexts, courts have nonetheless recognized that corporate entities—which cannot
be held in custody—do not have liberty interests subject to the remedy of habeas corpus
(see United States v Mett, 65 F3d 1531, 1533 [9th Cir 1995]; United States v Pacific Ship
Repair & Fabricators, Inc., 979 F2d 856, * 2 [9th Cir 1992]; Waste Mgt. of Wisconsin, Inc.
v Fokakis, 614 F2d 138, 140-141 [7th Cir 1980]). Thus, any comparison between
nonhuman animals and corporations for these purposes is inapt and unavailing.
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Petitioner and our dissenting colleagues minimize the significance of petitioner’s
request that Happy be declared a legal person with a right to liberty safeguarded by the writ
of habeas, maintaining that affording such a remedy merely seeks to establish one right for
Happy that would allow her to live her remaining years in captivity but in a more natural
environment. To that end, petitioner asserts that any concerns raised by respondents or the
opposing amici regarding the potential proliferation of nonhuman animal claims on behalf
of elephants or other species are irrelevant to our determination today.
We cannot agree; to do so would be to turn a blind eye to the impact of any ruling
that elephants (or autonomous beings more generally) have liberty interests. A
determination that Happy, an elephant, may invoke habeas corpus to challenge her
confinement at the Bronx Zoo—a confinement both authorized and, by all indications,
compliant with state and federal statutory law and regulations—would have an enormous
destabilizing impact on modern society. It is not this Court’s role to make such a
determination. As the Appellate Court of Connecticut cautioned in dismissing similar
litigation by petitioner in that state, “[n]ot only would this case require us to recognize
elephants as ‘persons’ for purposes of habeas corpus, this recognition essentially would
require us to upend this state’s legal system to allow highly intelligent, if not all, nonhuman
animals the right to bring suit in a court of law” (R.W. Commerford and Sons, Inc., 192
Conn App at 44). Granting legal personhood to a nonhuman animal in such a manner
would have significant implications for the interactions of humans and animals in all facets
of life, including risking the disruption of property rights, the agricultural industry (among
others), and medical research efforts. Indeed, followed to its logical conclusion, such a
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determination would call into question the very premises underlying pet ownership, the use
of service animals, and the enlistment of animals in other forms of work. With no clear
standard for determining which species are entitled to access the writ, who has standing to
bring such claims on a nonhuman animal’s behalf, what parameters to apply in determining
whether a confinement is “unjust,” and whether “release” from a confinement otherwise
authorized by law is feasible or warranted in any particular case, courts would face grave
difficulty resolving the inevitable flood of petitions. Likewise, owners of numerous
nonhuman animal species—farmers, pet owners, military and police forces, researchers,
and zoos, to name just a few—would be forced to answer and defend those actions.
Tellingly, neither of our dissenting colleagues identify any intelligible standard
upon which to resolve these labyrinthine issues, which buttresses our conclusion that
habeas corpus—which exists to protect liberty interests—is not the appropriate forum to
resolve disputes concerning the confinement of nonhuman animals. Judge Wilson posits
that courts should engage in “a normative analysis that weighs the value of keeping the
[nonhuman animal] confined with the value of releasing the [nonhuman animal] from
confinement,” taking into consideration “[t]he value of the confinement” to the nonhuman
animal as well as the “value of the confinement to the captor and society” (Wilson, J.
dissenting op at 68). This, of course, bears no relationship to the merits analysis properly
undertaken in a habeas corpus proceeding, which asks whether the confinement—i.e., the
curtailment of liberty—is legal. Rather, relief would be dependent, not on the legality of
detention, but on a judge’s subjective determination of where the relator would be “better
off” (Wilson, J. dissenting op at 4). Such a balancing test would transform the great writ
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of habeas into a morass of confusing case-by-case inquiries apparently to be determined
by some subjective, amorphous, and evolving “normative” value system regarding the
treatment of nonhuman animals to which our own legislature has not subscribed.
Moreover, a standard weighing the nonhuman animal’s purported liberty interests against
the various interests of the claimed human captor does little to alleviate the asserted
wrongful subjugation of nonhuman animals. Judge Rivera, on the other hand, suggests that
liberty rights spring from “autonomy”—a term that is notably left undefined and which
could reasonably be applied to a vast number of species.
Judge Wilson also appears to contemplate some form of “functional intelligence”
test to limit the undeniably slippery slope his view would set us upon. But that is exactly
the test, as Judge Wilson himself makes clear (see Wilson, J. dissenting op at 14-15), that
cannot be used for human animals. All one can glean from Judge Wilson’s dissent is that
elephants qualify, ants do not. What of dolphins—or dogs? What about cows or pigs or
chickens—species routinely confined in conditions far more restrictive than the elephant
enclosure at the Bronx Zoo? Indeed, the dissenters’ wholly unsatisfactory attempts to
distinguish “domestic” animals from elephants despite their appreciable intelligence and
autonomy simply because they purportedly live “comfortably” among humans (Rivera, J.
dissenting op at 19) or are supposedly genetically predisposed to confinement (see Wilson,
J. dissenting op at 62-64) is divorced from practical reality, devoid of support, and
demonstrates the internally contradictory foundation on which their analyses are built.
Such arbitrary distinctions stand in clear contrast to our recognition that habeas is, and
always has been, the bulwark of human liberty rights. Moreover, giving a court authority
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to interpret the relevant “science” (Wilson, J. dissenting op at 59-65) so as to make
judgments regarding “who” deserves a right to “liberty” would have perilous implications
far beyond the issue here.
Simply put, granting legal personhood and attendant liberty rights to Happy, an
elephant, would not be an incremental step in “the slow process of decisional accretion”
regarding the scope and flexibility of the writ of habeas (Keitt, 18 NY2d at 263) but a
“sweeping pronouncement[]” of nonhuman animal personhood lacking in legal foundation
that would displace the carefully devised state and federal statutory frameworks governing
animal welfare (R.W. Commerford and Sons, Inc., 192 Conn App at 44). Thus, while this
litigation may invite consideration by others of questions that are the appropriate subject
of ethical, moral, religious, and philosophical debate, the legal issue presented is
straightforward. The use of habeas corpus as a vehicle to extend legal personhood beyond
living humans is not a matter for the courts (see Byrn v New York City Health & Hosps.
Corp., 31 NY2d 194, 203 [1972]).
Although nonhuman animals are not “persons” to whom the writ of habeas corpus
applies, the law already recognizes that they are not the equivalent of “things” or “objects.”
Unquestionably, nonhuman animals are sentient beings that, albeit without liberty rights,
have been afforded many special protections by the New York Legislature—long
considered a leader in animal welfare. For example, statutes prohibit and penalize the
torture, unjustifiable killing or harming, fighting, neglect, or abandonment of animals (see
Agriculture and Markets Law §§ 351, 353, 353-a, 355, 356). Recently enacted legislation
requires veterinarians to report suspected animal cruelty (see Education Law § 6714).
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Various statutes mandate minimum safety and welfare standards, or prohibit conduct
commonly known to be harmful to animals (see Agriculture and Markets Law §§ 47, 353-
b, 353-d, 353-f, 360, 362, 365, 368, 381). New York regulates the sale and care of certain
animals by pet dealers (see Agriculture and Markets Law §§ 354, 401) and the interference
with, and keeping of, wild animals, including endangered species (see ECL 11–0103 [6]
[e]; 11-0505; 11-0535; 11-0511; 11–0512).1 In addition to animal welfare laws, New York
permits the creation of a trust for the care of a designated domestic or pet animal (see EPTL
7-8.1) and courts may now consider the best interests of companion animals in determining
the appropriate placement of an animal during a divorce proceeding (see Domestic
Relations Law § 236, pt B, [5] [d] [15]). With respect to elephants specifically, New York
largely prohibits and penalizes the sale and import of ivory articles (see ECL §§ 11-0535-
a; 71-0924) and, in recognition that the state “should help assure the protection and welfare
of elephants” (L 2017, ch 333 § 2), New York has prohibited “person[s]” other than those
involved with accredited zoos and wildlife sanctuaries from using elephants in
entertainment acts (Agriculture and Markets Law § 380; see ECL 11-0540).
As the foregoing statutes demonstrate, New York law acknowledges that the
relationships between humans and nonhuman animals are varied and complex and, in many
contexts, the law clearly imposes a duty on humans to treat nonhuman animals with dignity
and respect. However, also implicit in these statutes is a plain endorsement of the legal
1
The federal Animal Welfare Act likewise regulates the treatment of animals in research,
testing, transport, exhibition, and sale (see generally 7 USC § 2131 et seq.) and various
federal laws codify protections for wildlife (see e.g. 16 USC § 1531 et seq. [the Endangered
Species Act]; 16 USC § 703 et seq. [Migratory Bird Treaty]).
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distinction between human beings and nonhuman animals (see Agriculture and Markets
Law § 350 [defining “animal” as including “every living creature except a human being”];
Agriculture and Markets Law § 380 [distinguishing between “person(s)” and “elephants”]).
While it is true that the courts—not the legislature—ultimately define the scope of the
common law writ of habeas corpus (see Sabatino, 246 NY at 261; Tweed, 60 NY at 566),
these statutory distinctions reflect the abiding view that nonhuman animals are not persons
with a common law right to liberty that may be secured through a writ of habeas corpus.2
We close with the observation that, despite the relative simplicity of the legal issue
presented, this case has garnered extraordinary interest from amici curiae and the public—
a testament to the complicated and ever-evolving relationship between human beings and
other animals. Though beyond the purview of the courts, we appreciate that the desire and
ability of our community to engage in a continuing dialogue regarding the protection and
welfare of nonhuman animals is an essential characteristic of our humanity. Such dialogue,
however, should be directed to the legislature.
Accordingly, the order of the Appellate Division should be affirmed, without costs.
2
That legislative bodies have extended various statutory protections to nonhuman animals
does not inexorably create a common law or constitutional right to liberty. Nor can the
judicial displacement of a carefully crafted state and federal statutory and regulatory legal
framework governing animal care be justified by the views of some individuals that zoos
purportedly confine wild animals solely for “human entertainment” (Rivera, J. dissenting
op at 4)—a characterization of the purpose and mission of zoos to which the Bronx Zoo,
operated by a renowned wildlife organization that advances scientific research and
educational conservation efforts worldwide, would undoubtedly strenuously object.
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WILSON, J. (dissenting):
The Wildlife Conservation Society, formerly known as the New York Zoological
Society, has operated the Bronx Zoo for well over a century. In 1906, it placed Ota Benga,
a member of the Mbuti people, on display in the Zoo’s monkey house, behind iron bars.
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Two years earlier, Samuel Verner, a South Carolinian white supremacist, had been hired
to remove some so-called “pygmies” from what was then the Belgian Congo, for exhibition
at the St. Louis World’s Fair. Mr. Benga and eight others were exhibited there, after which
Mr. Verner transferred Mr. Benga to the Zoo for exhibition. The Zoo’s attendance doubled;
nearly a quarter of a million people came to the Zoo to view Mr. Benga. The New York
Times reported that Mr. Benga was “one of a race that scientists do not rate high in the
human scale” (NY Times, Bushman Shares a Cage with Bronx Park Apes, Sept. 9, 1906 at
17). When protests by African American ministers, led by the Reverend Dr. Robert Stuart
MacArthur, forced his release, the Zoo’s director, William Hornaday, wrote to New York
Mayor George McClellan, explaining that the exhibition of Mr. Benga in the monkey house
was “good comic-opera material” and that the ministers “are seeking newspaper notoriety,
rather than the redress of a real grievance” (Letter from William T. Hornaday to Mayor
George B. McClellan, Sept. 12, 1906, available at
https://wcs.access.preservica.com/uncategorized/IO_d20af6d6-8f81-4a58-b90c-
1a9f7b4662f1/).1 Mr. Benga never was returned home; he shot himself in the heart several
years later. During the pendency of this lawsuit, the Zoo apologized for its treatment of
Mr. Benga, and made its records concerning him publicly available for the first time.
Reverend MacArthur tellingly observed: “The person responsible for this exhibition
1
Mayor McClellan declined to meet with the ministers, directing them to take their
complaints to the Zoological Society’s founder and secretary, Madison Grant, the author
of a book entitled The Passing of the Great Race, “which advocated cleansing America of
‘inferior races’ through birth control, antimiscegenation and racial segregation laws, and
mass sterilization” (Pamela Newkirk, Spectacle: The Astonishing Life of Ota Benga 43
[2015]).
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degrades himself as much as he does the African” (NY Times, Man and Monkey Show
Disapproved by Clergy, Sept. 10, 1906 at 1).
That same Zoo has confined Happy the elephant for the past 40 years.
Unquestionably, Mr. Benga was a human being; Happy is not. Human beings should have
greater rights than elephants, if only because we make the rules. The crucial point from
both Mr. Benga’s and Happy’s confinement, though, is that both suffered greatly from
confinement that, though not in violation of any statutory law, produced little or no social
benefit. As Jeremy Bentham wrote several centuries ago:
“The day has been, I grieve to say in many places it is not yet
past, in which the greater part of the species, under the
denomination of slaves, have been treated by the law exactly
upon the same footing as, in England for example, the inferior
races of animals are still. The day may come, when the rest of
the animal creation may acquire those rights which never could
have been withholden from them but by the hand of
tyranny. . . . It may come one day to be recognized, that the
number of legs, the villosity of the skin, or the termination of
the os sacrum, are reasons equally insufficient for abandoning
a sensitive being to the same fate. What else is it that should
trace the insuperable line? . . . [T]he question is not, Can they
reason? nor, Can they talk? but Can they suffer?” (Jeremy
Bentham, An Introduction to the Principles of Morals and
Legislation 311 n1 [Oxford, Clarendon Press 1781] [emphasis
in original]).
They can and do, and that day is upon us.
The majority pays lip service to Happy’s intelligence, her undisputed existence as
“an autonomous and extraordinarily cognitively complex being” and legal entitlement to
“dignity and respect” (majority op, at 6, 16). It likewise trumpets the role of habeas corpus
as “the historic writ of liberty” that is “primary and fundamental” (id. at 7). Yet the
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majority devalues both in its attempt to mis-frame the question presented. The majority
erroneously claims that “the writ of habeas corpus is intended to protect the liberty right of
human beings,” and that habeas corpus is unavailable to Happy as a matter of law because
she is “not a ‘person’ subjected to illegal detention” (id. at 2), though knowing full well
that the writ was vigorously used to challenge the detention of slaves when, under law, they
were deemed chattel, and to challenge the detention of women and children who at that
time, though not chattel property, had no legal existence.
The question here is not whether Happy is a “person”—Happy is an elephant. The
question is not whether Happy’s detention violates some statute: historically, the Great
Writ of habeas corpus was used to challenge detentions that violated no statutory right and
were otherwise legal but, in a given case, unjust. Because this appeal comes on a motion
to dismiss, the legal question presented is whether the detention of an elephant can ever be
so cruel, so antithetical to the essence of an elephant, that the writ of habeas corpus should
be made available under the common law. The history of the “‘greatest of all writs’” (id.
at 7, quoting People v Schildhaus, 8 NY2d 33, 36 [1960]) demonstrates that the majority’s
claimed reasons for refusing to extend it to Happy are groundless and inconsistent with its
role as “the historic writ of liberty” that “cannot be curtailed by legislative action” (id.,
quoting Tweed v Liscomb, 60 NY 559, 566 [1875]). Whether Happy’s conditions are grave
enough for the writ to issue, and whether, if so, she would be better off in a sanctuary, are
questions of fact as to which Supreme Court made no determination because it was
constrained by erroneous Appellate Division caselaw.
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There are several propositions on which the majority and I agree. The purpose of
the Great Writ is to secure liberty. The writ “originated in English law and has been a
steadfast pillar of our common law” (id. at 7, citing Preiser v Rodriguez, 411 US 475, 485
[1973]). The writ reaches both public and private detentions (id. at 6). The writ is used
only when “reason[s] of practicality and necessity” require it (id. at 8, quoting People ex
rel. Keitt v McMann, 18 NY2d 257, 262 [1966]). Article 70 of the CPLR does not (and
cannot) curtail the substance or reach of the writ; it specifies procedure only.
The majority offers numerous justifications for its conclusion that the writ must be
limited to humans, no matter how sophisticated, intelligent, self-aware or capable of
suffering an elephant is and no matter how severe the conditions of its confinement are. I
proceed as follows: (I) whether an elephant is a “person” or whether it can bear
responsibilities are irrelevant questions that obfuscate the genuine question presented; (II)
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 in general; (III) as with our society’s changed
understanding of the rights of enslaved persons, women and children, our understanding of
the cognitive and emotional makeup, needs and capabilities of elephants is far different
than it was in bygone times; (IV) the method by which courts modify the common law to
adapt it to societal changes and needs informs our Court’s role in adapting the Great Writ;
and (V) application of the above principles to Happy’s petition justifies use of the writ to
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examine whether her interest in liberty outweighs the Zoo’s interest in her continued
captivity.
I
Two contentions, one irrelevant and one to which the majority and lower courts
have offered an unsupportable answer, sow great confusion about the question raised by
this appeal. The first, irrelevant, contention is that an elephant is not a “person.” The
second, unsupportable, contention is that only humans can have rights.
A
Whether an elephant (or other animal) is a “person” is not relevant to determining
whether the writ of habeas corpus can be used to challenge a confinement. All can agree
that an elephant is not a member of the homo sapiens species. At the same time, an elephant
is not a desk chair or an earthworm; the majority, echoing Judge Fahey’s concurrence in
Matter of Nonhuman Rights Project, Inc. v Lavery (31 NY3d 1054 [2018]), offers that
animals are not “the equivalent of ‘things’ or ‘objects’” (majority op at 15). So the correct
question becomes: given what we know about the qualities an elephant has—and in
particular, the qualities Happy has—should the law afford her certain rights through habeas
corpus?
The idea that the definition of “person” constrains the allocation of rights arises
from three different ideas: (1) CPLR article 70, which concerns writs of habeas corpus,
uses the word “person”; (2) a combination of the facts that prior habeas cases concerned
human beings and animals have been considered property inexorably results in the
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conclusion that habeas corpus cannot reach animals; and (3) the relevant rights, if any, are
the rights of the subject of the confinement. The first two ideas have been conflated when
they should not be, and the third has been implied without any examination of its
soundness. I discuss each in turn.
1
CPLR 7002 provides, in relevant part:
“A person illegally imprisoned or otherwise restrained in his
liberty within the state . . . may petition without notice for a
writ of habeas corpus . . . . A judge . . . having evidence, in a
judicial proceeding before him, that any person is so detained
shall . . . issue a writ of habeas corpus for the relief of that
person” (emphasis added).
Although the court in Matter of Nonhuman Rights Project, Inc. v Lavery (152 AD3d
73, 77 [1st Dept 2017]) concluded that the use of the word “person” in the CPLR served to
restrict the writ to human beings, the court in People ex rel. Nonhuman Rights Project, Inc.
v. Lavery (124 AD3d 148 [3rd Dept 2014]) held to the contrary:
“The ‘Legislature did not intend to change the instances in
which the writ was available,’ which has been determined by
‘the slow process of decisional accretion’ (People ex rel. Keitt
v McMann, 18 NY2d 257, 263, 220 NE2d 653, 273 NYS2d
897 [1966]) [citation omitted]). Thus, we must look to the
common law surrounding the historic writ of habeas corpus to
ascertain the breadth of the writ’s reach” (id. at 150).
The majority correctly adopts part of the holding of the Third Department, by recognizing
that “although procedural aspects of the writ are governed by statute (see CPLR art 70),
the ‘writ cannot be abrogated, or its efficiency curtailed, by legislative action’ ( Tweed, 60
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NY at 566)” (majority op at 7). It does so for good reason: as we have previously
explained, “[a]lthough article 70 governs the procedure of the common-law writ of habeas
corpus, relief from illegal imprisonment by means of this remedial writ is not the creature
of any statute” (People ex rel. DeLia v Munsey, 26 NY3d 124, 130 [2015]).
Furthermore, the legislative history of article 70 demonstrates that the use of the
word “person” was meant to have no substantive component: “The drafters of the CPLR
made no attempt to specify the circumstances in which habeas corpus is a proper remedy.
This was viewed as a matter of substantive law” (Vincent C. Alexander, Practice
Commentaries, McKinney’s Cons Laws of NY, CPLR 7001). Just as “person” is used in
a juridical sense to refer to any entity, real or fictional, as to which a statute or rule of the
common law applies, “person” in CPLR article 70 is irrelevant to whether the writ can
extend beyond humans. Thus, the majority and I agree that article 70 has no bearing on
whether Happy may invoke the writ of habeas corpus to challenge her confinement.
2
In an attempt to prove that “the great writ protects the right to liberty of humans
because they are humans,” the majority links several incongruous citations: three cases that
contain no such holding; a statute declaring that New York owns all animals except those
privately held; another statute concerning dog ownership; and two cases from the 1800s
concerning animal ownership (majority op at 9 [emphasis in majority]). Preiser, Tweed
and Sisquoc Ranch did not involve any claim on behalf of animals, and the generic
language in them (e.g., “the writ is a remedy ‘by which a man is restored’ to liberty”
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[Preiser v Rodriguez, 411 US 475, 486 (1973)]; “the law ‘suffers to man, guilty or innocent,
to be deprived of his liberty’” [Tweed v Liscomb, 60 NY 559, 568 (1875)]) no more
excludes animals that it does women or children.2 The final case cited by the majority,
Sisquoc Ranch Co. v Roth (153 F 2d 437 [9th Cir 1946]) held that under federal (statutory)3
habeas, an agricultural employer, asserting injury to itself from the military conscription of
one of its employees, “is without standing to maintain this proceeding” (id. at 440).
As to the majority’s citation to statutes providing for ownership of animals, no one
doubts that animals can be owned, but ownership does not prevent the application of habeas
corpus to the owned subject, as is demonstrated in section II below, and not substantially
challenged by the majority. Finally, the remaining cases cited by the majority (Mullaly v
2
Preiser undercuts a different proposition of the majority’s—that confinement must be
unlawful to permit invocation of the Great Writ: “By the time the American Colonies
achieved independence, the use of habeas corpus to secure release from unlawful physical
confinement, whether judicially imposed or not, was thus an integral part of our common-
law heritage. . . . [O]ver the years, the writ of habeas corpus evolved as a remedy available
to effect discharge from any confinement contrary to the Constitution or fundamental law,
even though imposed pursuant to conviction by a court of competent jurisdiction” (411 US
at 485 [emphasis added]). Tweed, like Preiser, undercuts the majority’s restrictive
application of the Great Writ:
“Neither should the habeas corpus act, which judges have
‘revered as the bulwark of the Constitution, the magna charta
of personal rights,’ be shorn of its power and its glory by a
subtle and metaphysical interpretation; rather should it receive
a liberal construction, in harmony with its grand purpose, and
in disregard, if need be, of technical language used. This act
has always been construed in favor of, and not against, the
liberty of the subject and the citizen” (60 NY at 568-569).
3
The power of federal courts to issue writs of habeas corpus is not grounded in the common
law, but is purely statutory (Ex Parte Bollman, 8 US [4 Cranch] 75 [1807]). Accordingly,
federal decisions applying a more restrictive view of habeas corpus have no bearing on the
powers of common law courts such as ours.
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People, 86 NY 365 [1881] and Pierson v Post, 3 Cai R 175 [NY Sup Ct 1805]), establish
(irrelevantly) that animals can be owned, but sharply undermine the majority’s position.
Our decision in Mullaly noted that “[a]t common law the crime of larceny could not be
committed by feloniously taking and carrying away a dog,” but then wiped out that
common law rule on the ground that “[t]he artificial reasoning upon which these rules were
based are wholly inapplicable to modern society. Tempora mutantur et leges mutantur in
illis [Times change and the laws change with them]” (86 NY at 86 [emphasis in original]).
That proposition is at the core of my dissent. In the famous case of Pierson v Post, the
Supreme Court of Judicature (our predecessor) twice noted that wild animals (“ferae
naturae”) have “natural liberty” (3 Cai R at 178, 179)—a conclusion diametrically opposed
to the majority’s view that only human beings have natural liberty rights.
What is patent from the glommed-together authorities is that they do not prove
anything relevant here. Cases that do not raise an issue cannot be taken to resolve
something never at issue. Statutes or cases allowing that humans may own animals do not
establish that owned beings can have no justiciable rights. The question here is not
governed by any prior decision: it is novel. The novelty of an issue does not doom it to
failure: a novel habeas case freed an enslaved person; a novel habeas case removed a
woman from the subjugation of her husband; a novel habeas case removed a child from her
father’s presumptive dominion and transferred her to the custody of another (see infra
section II). More broadly, novel common law cases—of which habeas is a subset—have
advanced the law in countless areas (see infra section IV). The majority’s argument—“this
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has never been done before”—is an argument against all progress, one that flies in the face
of legal history. The correct approach is not to say, “this has never been done” and then
quit, but to ask, “should this now be done even though it hasn’t before, and why?”
3
A third source of confusion arises from an unstated misconception about rights.
Rights are interdependent on reciprocal rights. We tend to ask whether someone has a right
to free speech, or to a jury trial or to privacy in one’s home. But each of those implies
reciprocal rights—corresponding or even inverse rights that members of society have
against that person, for example: the right to be free from libelous speech; the right to
convict someone based on a jury’s determination of guilt; and the right to search a home
by obtaining a warrant. In Happy’s case, the value of liberty to Happy, however weak or
strong it is, animates Happy’s right to liberty, but that right is also affected by its reciprocal:
the right of the Zoo to confine Happy in the manner it has chosen, however weak or strong
that interest is. In the end, whatever right we define concerns not merely Happy’s interest
in liberty, but the Zoo’s interest in Happy’s captivity. Importantly, the choice in fixing that
right affects Happy and the Zoo, but also defines who we are or, in the case of habeas, who
we might want to be as a society. For that reason as well, it does not matter that Happy is
an elephant. Were a court to determine that the Zoo cannot confine her, that determination
would not merely define Happy’s rights, but the rights of the human captors as well.
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B
The majority and the prior decisions in the Appellate Division’s Lavery cases (152
AD3d 73; 124 AD3d 148) adopt the proposition that animals cannot have rights because
they cannot bear responsibilities.4 That proposition, apparently based vaguely on social
contract theory,5 confuses who can confer rights with who can hold rights. Elephants
cannot confer rights on humans, but humans can—and do—confer rights on animals in
abundance.
4
It is not even clear what is meant by “bearing responsibilities.” An estimated 70% of
Americans have committed a jailable offense, suggesting humans at least in our country
routinely renege on responsibilities society imposes on them (Stephen L. Carter, Law Puts
us All in Same Danger as Eric Garner, Bloomberg, Dec. 4, 2014, available at
https://www.bloomberg.com/opinion/articles/2014-12-04/law-puts-us-all-in-same-
danger-as-eric-garner#xj4y7vzkg). Meanwhile, stories of heroically responsible
animals—trained or not—abound (see, e.g., Melissa Chan, National Puppy Day 2017:
Here Are 5 Brave Dogs That Saved a Child's Life, Time, Mar. 22, 2017, available at
https://time.com/4709801/national-puppy-day-2017-dogs-save-children/). Dogs are
regularly put to work defending livestock, people and property; working for law
enforcement; and detecting various types of cancers in humans. The Navy has trained
dolphins and sea lions to protect sailors and Marines (Naval Information Warfare Center –
Pacific, U.S. Navy Marine Mammal Program, available at
https://www.niwcpacific.navy.mil/marine-mammal-program/ [accessed June 9, 2022]).
Happy, who could trample her caretakers, is responsible enough to know not to hurt them.
Elephants take care of their extended families much as human families do—perhaps better.
Thus, even the concept of “bearing responsibilities” imposes a human-centric idea of what
it means to be responsible for others or one’s own actions, and humans themselves may
often fall below that standard of responsibility.
5
Social contract theory begins with the premise that a broad set of freedoms exist in the
state of nature, and participants in the (theoretical) social contract agree to give up some of
those freedoms in exchange for the benefits of government and civilization. It is a tortuous
(though not impassible) route to conclude that the social contract grants rights by cutting
back at those rights that existed in the state of nature.
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It helps to start by understanding what a right consists of. A right consists of a
sphere of action protected from intrusion by others: “[d]uty and right are correlative; and
where a duty is imposed, there must be a right to have it performed” (Amberg v Kinley, 214
NY 531, 535 [1915], quoting Willy v Mulledy, 78 NY 310 [1879]). “In other words, if X
has a right against Y that he shall stay off the former’s land, the correlative (and equivalent)
is that Y is under a duty toward X to stay off the place” (Wesley Newcomb Hohfeld, Some
Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L J 16, 30-32
[1913]).
But the holder of a right need not have a duty at all. Humans can create a legal
system that confers rights on animals even if animals cannot bear duties, and even if
animals are unaware of the rights they have been granted. “Animals have many legal
rights, protected under both federal and state laws. In some instances, criminal statutes
punish those who violate statutory duties that protect animals” (Cetacean Community v
Bush, 386 F 3d 1169, 1175 [9th Cir 2004]). Humans have granted animals countless rights
without imposing any duties on them or even considering whether they are capable of
bearing duties. For example, 16 USC § 668 imposes a duty on humans not to capture or
kill a bald or golden eagle, enforced by fines and imprisonment; that duty establishes a
correlative right of bald and golden eagles to be free from capture by humans (except as
authorized by permit). The Endangered Species Act (16 USC § 1531 et seq.) gives all
animals falling within its purview the right not to be captured, harassed or harmed by
humans, and imposes a correlative duty on humans.
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Indeed, the very legislation the majority lists provides numerous rights to animals,
including the right not to be tortured, killed unjustifiably, abandoned or neglected; the right
to have medical providers report suspected cases of abuse; the right of domestic animals to
have trusts made in their behalf enforced by courts; and the right to have their best interests
considered when those with legal custody over them are divorcing (majority op at 15-16).
Notably, those rights parallel rights granted to children who, like animals, are not able to
enforce those rights themselves, and may not even understand that they possess them.
Neither of those conditions is necessary for someone—whether a child or an animal—to
possess rights. The fact that the numerous rights cataloged by the majority are granted by
statute does not change their character as rights; at most, it leaves open the question of
whether courts should grant rights to animals—not whether animals are capable of holding
rights.6
If the proposition that no rights may be awarded to a being who cannot shoulder
responsibilities were based on social contract theory, we could not explain why children or
profoundly disabled adults—who have no capacity to enter into a social contract—can be
6
Amici UK-Based Legal Academics, et al., explain that under either of the dominant
theories of rights (the “interest theory” and the “will theory”), the conditions for granting
a right to Happy would be met. Under the interest theory, Happy must have an interest in
liberty (or less restrictive confinement) and the decision to grant a right must be, at least in
part, for Happy’s own sake. Under the will theory, Happy must be able to exert some form
of normative control over correlative duty bearers, but that can be exercised by a
representative (public or private) acting in her behalf (see Brief of Amici Curiae Joe Wills,
et al., UK-Based Legal Academics, Barristers and Solicitors in Support of Petitioner-
Appellant, at 10-17).
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granted rights.7 To say, “they are part of the human species” is no answer, because social
contract theory does not propose that members of a species can bind other members of the
same species to a social contract without their consent. We grant children and disabled
persons rights simply because we, as a society, want to. Whether we do so because we see
ourselves in them, because God commands us to, because we fear a slippery slope of
eugenics, because we are charitably inclined, or for some other reason, does not matter; the
point is that we can, and constantly do, grant rights to living beings who bear no
responsibilities and may never be able to do so. 8
7
As our colleague Judge Fahey observed, “[e]ven if nonhuman animals cannot bear duties,
the same is true of human infants or comatose human adults, yet no one would suppose
that it is improper to seek a writ of habeas corpus on behalf of one’s infant child or parent
suffering from dementia” (Lavery, 31 NY3d at 1057 [Fahey, J., concurring]).
8
Like the United States, many other countries have given animals rights. The Supreme
Court of India—a country that shares an English common law heritage with the United
States—has recognized rights for animals. India’s Supreme Court has recognized that the
Indian Constitution’s due process clause applies to all species (Animal Welfare Bd. of India
v A. Nagaraja, 7 SCC 547 ¶ 62 [2014]). That court also interpreted the parens patriae
doctrine, which originated in English common law, as requiring the court “to take care of
the rights of animals, since they are unable to take care of themselves as against human
beings” (id. at ¶ 26; see Hawaii v Standard Oil Co. of Cal., 405 US 251, 257 [1972]
[describing the English constitutional system as the origin for the parens patriae doctrine,
which referred to the King’s power “as guardian of persons under legal disabilities to act
for themselves”]). Courts in other countries have granted habeas petitions on behalf of
animals (Presented by AFADA About the Chimpanzee “Cecilia” – Nonhuman Individual,
File No. P.72.254/15 [Third Court of Guarantees, Mendoez Argentina, Nov 3, 2016]
[granting a habeas petition brought on behalf of a chimpanzee in a zoo and ordering the
chimpanzee transferred to a sanctuary in Brazil]; Luis Domingo Gomez Maldonado contra
Corporacion Autonoma Regional de Caldas Corpocaldas, AHC4806-2017 [Supreme
Court of Colombia, Civil Cassation Chamber, July 26, 2017] [granting a habeas petition
brought on behalf of a bear and ordering the bear transferred to a more suitable habitat,
preferably an identified natural reserve]; see also Islamabad Wildlife Mgmt. Bd. v
Metropolitan Corp. Islamabad, Islamabad High Ct, Pakistan, May 21, 2020, Athar-
Minallah, C.J., W.P. No.1155/2019 [granting the petition filed on behalf of an elephant and
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Inherently, then, to whom to grant what rights is a normative determination, one that
changes (and has changed) over time. If society determines that humans should not torture
dogs, then dogs have a right to be free from torture. The dogs’ right to be free from torture
does not emanate from their ability to take on duties or responsibilities; instead, it emanates
from society’s determination that a sphere of action—the ability of dogs to exist without
being subjected to torture by humans—is a right worthy of protection.
Society’s determination as to whether elephants have a right to be free of oppressive
confinement, which they may test through habeas corpus, is not likely to be the same today
as it was 100 years ago. 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. It is not about whether Happy is a person or whether Happy can bear
responsibilities or enter into a social contract. The degree to which courts, rather than
legislatures, should grant such rights is a wholly different question.
II
As the majority acknowledges, “[t]he centuries-old writ [of habeas corpus]
originated in English law and has been a steadfast pillar of our common law” (majority op
requiring the elephant’s transfer from a zoo to a sanctuary]). Native American tribes long
nurtured symbiotic relationships with animals in ways that “prohibited the physical and
spiritual mistreatment of animals since time immemorial” (Sarah Deer & Liz Murphy,
‘Animals May Take Pity On Us’: Using Traditional Tribal Beliefs to Address Animal Abuse
and Family Violence Within Tribal Nations, 43 Mitchell Hamline L Rev 703, 703-704,
706-718 [2017]; see also Angela Harris, Should People of Color Support Animal Rights?,
5 J Animal L 15, 28 [2009]).
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at 7). Its history and usage, both in England and the United States, resoundingly rejects
several of the majority’s contentions. Most fundamentally, the writ was used to grant
freedom to slaves, who were considered chattel with no legal rights or existence. Indeed,
the various rights held by animals today, as partially cataloged by the majority, are far
greater than those held by enslaved persons in England or America, who had none.
Similarly, the writ was used to grant freedom to wives and children, who, though not
chattel, had few or no legal rights and legally were under the dominion of husbands and
fathers. They, too, had rights that paled in comparison to those held by animals today.
Additionally, the writ was flexibly used to transfer custody when circumstances demanded
it, particularly in the case of children—a point contrary to the majority’s view that the writ
cannot be used to transfer custody from a miserable situation to one less fraught. Not only
does the history of the writ’s usage destroy the foundations of the majority’s contention, it
shows how the writ was used by enlightened judges to nudge advances in the law. By
freeing one enslaved person through a habeas petition, or removing one wife or child from
an abusive husband or father, a court did not change the law for all, but it did cast a light
on the underlying issues (slavery or the treatment of women and children), sparking public
debate and sometimes leading to broader legislative change.
Courts did not base their habeas corpus decisions on whether detention was illegal
under existing statutory or common law; instead, they conducted a case-by-case analysis
for each habeas petition, considering whether a petitioner’s confinement was unjust based
on a balancing of the benefits and harms of the confinement. Habeas petitions were not
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limited to detainment orchestrated or managed by the government; habeas equally reached
private confinements. It was common for third parties to file habeas petitions on behalf of
others who were confined. Running throughout these qualities of the Great Writ is the
maxim that habeas corpus is an innovative writ—one used to advocate for relief that was
slightly or significantly ahead of the statutory and common law of the time.
A
For at least a few thousand years, slavery was viewed as legitimate, even necessary.
The Code of Hammurabi, from circa 1772 BCE, prescribed death for anyone helping an
enslaved person to escape or housing an enslaved person who had run away (The Code of
Hammurabi §§ 15-16 [L.W. King trans.], available at
https://avalon.law.yale.edu/ancient/hamframe.asp). Other provisions punished enslaved
people themselves for certain actions or behaviors; for instance, if an enslaved person
struck a free man or denied enslavement, the Code called for cutting off one of the enslaved
person’s ears as punishment (id. §§ 205, 282).
In ancient Egypt, Greece, and Rome, war was the principal catalyst for enslavement.
Ancient Egypt, for example, enslaved the defeated soldiers of Nubian and Somali people
(James Walvin, A Short History of Slavery, Part I, ch 1 [2007]). In ancient Greece, slavery
was “basic to the conduct of Greek democratic life” because Greek citizens relied on
enslaved people for heavy physical tasks and domestic labor, freeing their time for civic
duties (id.). Aristotle described the enslaved person as “a living possession” who “wholly
belongs to [his master]” (Aristotle, Politics, Book I, Part IV). He viewed “the use made of
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slaves and of tame animals” as “not very different; for both with their bodies minister to
the needs of life” (id.). Victories of the Roman Empire across a vast geography resulted in
more than half a million enslaved persons annually for Rome (id.).
In the millennium after the fall of Rome, slavery persisted in Europe as a “mosaic
of systems, held together by trade and by slave-trading links” (Walvin, supra, at Part 1, ch
2). “Villeinage,” a vestige of feudalism, was an early form of unfree status in English
society (William M. Wiecek, The Origins of the Law of Slavery in British North America,
17 Cardozo L Rev 1711, 1716 [1996]). In 1547, England passed the (short-lived) Vagrancy
Act, which allowed for the enslavement for two years of “vagaboundes,” who could be
sold or leased by their owners, and for whom death by hanging was the penalty for escape
(id. at 1718). Thereafter, European slavery became reserved mostly for people of African
descent (id. at 1723-1724).
English slaveholders proceeded by action of trover—an action to protect chattel —
to enforce their rights in enslaved persons (id. at 1724). Eventually, as abolitionists began
to challenge the legitimacy of slavery, the King’s Bench held that trespass per quod
servitium amisit (trespass by which service is lost) would lie instead of trover; by which
change the court subtly suggested a different way of thinking about enslaved people (id.).
In the United States, slavery persisted longer than it did in England, and laws
institutionalized and protected it. Histories of African slavery in North America often
begin with the sale of 20 enslaved Africans by a Dutch ship captain to English settlers in
Jamestown, Virginia in 1619, but some enslaved Africans entered the colonies even earlier
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(David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World
124 [2006]). By the middle of the 17th century, the Dutch in New Netherland (now New
York) were more dependent on Black slave labor than the English in the colonies of
Virginia and Maryland (id.). The United States Constitution explicitly embedded slavery
in various ways (see, e.g., Paul Finkelman, The Founders and Slavery: Little Ventured,
Little Gained, 13 Yale J L & Humanities 413, 414-15, 427, 438 [2001]).
Constitutional law continued to “protect[] slavery and undermine[ ] the liberty of
free blacks” as the young country developed (Paul Finkelman, Race, Slavery, and Federal
Law, 1789-1804: The Creation of Proslavery Constitutional Law Before Marbury, 14 U St
Thomas L J 1 [2018]). Congress passed a fugitive slave law, rejected legislation that would
prevent the kidnapping of free Black people, prevented free Black people or enslaved
persons from carrying mail from one place to another, rejected immigrants who were Black
from naturalizing as citizens, and prevented free Black people from joining the military
(id.).
In 1808, Britain and the United States outlawed participation in the African slave
trade (Davis, Inhuman Bondage, supra, at xiv), but slavery remained a cornerstone of
society and economy, as the children of enslaved people were also considered enslaved.
Further limiting the rights of enslaved individuals and free individuals of African descent,
in 1857, the United States Supreme Court held in Dred Scott v Sandford that people of
African descent, whether enslaved or free, were not included as “citizens” under the United
States Constitution. Therefore, no Black individuals in the country were afforded the
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rights, privileges and immunities the Constitution provided to citizens (60 US 393 [1857]).
Counsel for Sandford argued that “the Constitution of the United States was never designed
to consider black men as citizens. It maintains throughout that man can have property in
man; and so sacred is this description of property, that the Constitution pledges the force
of the Union to protect it” (NY Times, The Argument in the Case of Dred Scott, Dec. 18,
1856 at 1). The Dred Scott decision was met with applause in the southern states, and
“[m]ost Northern Democrats accepted it and even praised it” (Paul Finkelman, Scott v.
Sandford: The Court’s Most Dreadful Case and How It Changed History, 82 Chi-Kent L
Rev 3, 5 [2007]).
It is against that long-entrenched background of legally sanctioned slavery that the
courts of England and the United States worked, through the Great Writ, to secure liberty
for those deemed chattel, equated, at most, with animals. Two seminal cases, one in
England (Sommersett’s Case), one in New York (the Lemmon Slave Case) show how the
Great Writ was flexibly used by the courts as a tool for innovation and social change.
The Sommersett case in England involved the use of habeas corpus to free a slave;
the case was celebrated by abolitionists, though its impact was incremental, not tidal.
James Sommersett was an enslaved Black man on whose behalf three abolitionists
submitted a habeas corpus petition (The Somersett Case, Howell’s State Trials, vol 200,
cols 1-6, 79-82, National Archives of the United Kingdom; see also Paul D. Halliday,
Habeas Corpus: From England to Empire 174 [2010]). The habeas petition alleged that
Mr. Sommersett was confined on a ship bound for Jamaica and sought his freedom (The
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Somersett Case, Howell’s State Trials, supra). Mr. Sommersett was enslaved by Charles
Steuart, who had purchased him in Virginia and brought him to England, where Mr.
Sommersett ran away (id.; Halliday, supra, at 174). Mr. Steuart then had Mr. Sommersett
seized and sent him to Jamaica to be sold as a slave (The Somersett Case, Howell’s State
Trials, supra).
Lord Mansfield granted Mr. Sommersett’s habeas petition, liberating him, but on
the narrow basis that Mr. Steuart’s return (what we would now describe as a verified
answer) filed in response to the habeas petition was insufficient (id.). Given the papers
before him, it was Lord Mansfield’s view that “[t]he only question before us is, whether
the cause on the return is sufficient[].” He characterized the return as merely stating that
Mr. Sommersett “departed and refused to serve; whereupon he was kept, to be sold abroad”
(id.). Lord Mansfield included strong language criticizing slavery, stating for example that
slavery “is so odious, that nothing can be suffered to support it, but positive law” (id.).
Nonetheless, the narrow basis of his ruling revealed “the Janus-faced quality of habeas
corpus: that it could do so much, and so little, at once” (Halliday, supra, at 175). James
Sommersett’s case illustrates the opportunity and limitations of habeas corpus. The writ is
a procedural tool with a storied history of opportunity for challenging social norms, but
one inherently limited by its necessarily case-by-case approach.
In Lemmon v People, our own Court upheld the grant of a habeas petition brought
on behalf of eight slaves seeking liberation from their incarceration in a house in
Richmond, New York (20 NY 562 [1860]). Juliet Lemmon claimed that the eight
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individuals were her slaves and that she was in transit between Virginia and Texas, both of
which were slave states, when she had to stop in New York out of necessity. She further
claimed that she never intended to sell her slaves. Louis Napoleon, a free Black New
Yorker active in the abolitionist movement, commenced a habeas petition on behalf of
Lemmon’s slaves upon learning of their arrival. Judge Elijah Paine heard the habeas
petition. He granted the petition, considered its merits, and ruled that the eight slaves were
now free. Judge Paine based his ruling on two principles: first, because Juliet Lemmon
had voluntarily brought her slaves into New York, a New York statute emancipated them;
and second, “and of greater historical importance, however, Judge Paine ruled the slaves
free based on a higher moral authority. ‘Beyond New York law,’ Judge Paine wrote, ‘by
the law of nature no one can have a property in slaves’” (Historical Society of the New
York Courts, The Lemmon Slave Case, available at https://history.nycourts.gov/the-
lemmon-slave-case/ [accessed June 9, 2022]). Chief Judge DiFiore recently lauded Judge
Paine as “courageous” and “heroic” for his grant of habeas corpus freeing Ms. Lemmon’s
slaves (id., Video Introduction at 0:31, 1:14).
The Court of Appeals affirmed Judge Paine’s decision. In doing so, it rejected Ms.
Lemmon’s argument that the enslaved persons remained her property because “[no]
civilized State on Earth can maintain this absolute outlawry of negro slavery; for in some
of its forms slavery has existed in all ages” (Report of the Lemmon Case 19 [1860],
available at https://www.loc.gov/item/03020167/). In affirming Judge Paine’s decision
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granting relief through the Great Writ, Judge William B. Wright, joined by three judges,
sharply criticized the institution of slavery:
“. . . for slavery is repugnant to natural justice and right, has no
support in any principle of international law, and is
antagonistic to the genius and spirit of republican government.
Besides, liberty is the natural condition of men, and is world-
wide: whilst slavery is local, and beginning in physical force,
can only be supported and sustained by positive law.
‘Slavery,’ says Montesquieu, ‘not only violates the laws of
nature and of civil society; it also wounds the best forms of
government; in a democracy where all men are equal slavery
is contrary to the spirit of the Constitution’” (Lemmon, 20 NY
at 617).
The Lemmon case illustrates how courts have used and should use the common law
writ of habeas corpus to expand liberty interests that were not just controversial at the time,
but denied by “positive” law legitimizing slavery. Three years earlier, the United States
Supreme Court had decided Dred Scott v Sandford, in which it rejected Mr. Scott’s claim
that though he was enslaved in Missouri, he became free when his owners took him to a
state where slavery was illegal (60 US 393 [1857]). “The Court of Appeals ruling in [the
Lemmon Slave] case was in direct conflict with the Supreme Court’s infamous Dred Scott
decision of 1857 and it represented one of the most unyielding anti-slavery decisions made
by any Court in the United States prior to the Civil War” (NY St Unified Court System,
The Lemmon Case: 1852-1860: Freedom Won for Eight Enslaved People in New York
and Justice Takes a Step Forward, Message from Chief Judge Janet DiFiore, available at
http://ww2.nycourts.gov/courts/9jd/lemmon_slave_case.shtml [accessed June 9, 2022]).
Thus, even a direct conflict with the U.S. Supreme Court’s decision in Dred Scott did not
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stop our Court from affirming the use of the Great Writ to free eight enslaved individuals
who Ms. Lemmon considered her property.
As with Mr. Sommersett’s case, the Lemmon case did not end slavery; it freed only
the subjects of the habeas petition before the Court. But it added Judge Paine’s voice, and
the voice of our Court, to the side of abolishing slavery. A scant nine months later, South
Carolina identified as one of the “immediate causes” of its decision to secede “the action
of the non-slaveholding States . . . [which] have denied the rights of property established
in fifteen of the States and recognized by the Constitution; they have denounced as sinful
the institution of slavery” (Confederate States of America - Declaration of the Immediate
Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,
Yale Law School Lillian Goldman Law Library, the Avalon Project: Documents in Law,
History and Diplomacy, available at
https://avalon.law.yale.edu/19th_century/csa_scarsec.asp).
Underscoring the import of the Lemmon case, and as a result the import of the Great
Writ as well, the New York State Unified Court System recently launched a traveling
exhibition extolling the Lemmon decision (see NY St Unified Court System, The Lemmon
Case, supra).9
B
9
New York was not the only jurisdiction to use habeas corpus to recognize a liberty right
in people legally considered chattel (see Jackson v Bulloch, 12 Con 38 [1837]).
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Like slavery, women’s treatment as inferior to men has a long history. Aristotle
wrote that “the relation of male to female is by nature a relation of superior to inferior and
ruler to ruled” (Ian Broinowski, The Pakana Voice [2020]). According to Martin Luther,
women have “a mind weaker than man” (Martin Luther, Commentary on Genesis, ch 2,
Part V, 27b [1545]); according to John Calvin, “all women are born, that they may
acknowledge themselves inferior in consequence of the superiority of the male sex” (John
Calvin, Commentary on 1 Corinthians, 1 Corinthians 11: 1-16, at 299); according to
Charles Darwin, “[t]he chief distinction in the intellectual powers of the two sexes is shewn
by man attaining to a higher eminence, in whatever he takes up, than can women—whether
requiring deep thought, reason, or imagination, or merely the use of the senses and hands”
(Charles Darwin, Descent of Man 564 [1896]); and according to Napoleon Bonaparte,
“[n]ature intended women to be our slaves . . . What a mad idea to demand equality for
women! They are our property, we are not theirs” (Emil Ludwig, Napoleon 599-600 [Eden
& Cedar Paul trans. 1926]). The process of liberating women from those noxious views
was advanced through the application of the writ of habeas corpus, though, as with racial
discrimination, harmful and discriminatory views about women have not been eradicated
even today.
Under English common law, “husband and wife [were] one person in law,” or in
other words, “the very being or legal existence of the woman is suspended during the
marriage, or at least is incorporated and consolidated into that of the husband” (1 William
Blackstone, Commentaries, ch 15). During marriage, “a wife simply had no legal
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existence. She became, in the words of the Seneca Falls Declaration of Sentiments, ‘civilly
dead’” (Claudia Zaher, When a Woman’s Marital Status Determined Her Legal Status: A
Research Guide on the Common Law Doctrine of Coverture, 94 Law Libr J. 459, 460
[2002]). That rule was called “coverture” (Blackstone, Commentaries, ch 15). Under
coverture, any property or debt belonging to a woman became her husband’s property upon
marriage (see id.). Because a woman’s legal identity was erased upon marriage, the
common law granted husbands the right to beat their wives to “chastise” them (id. [“(B)y
an old law, a husband was justified in using moderate correction against his wife but barred
from serious violence”]).
The definition of rape under English common law did not include sexual assaults
by husbands against wives (Jill Elaine Hasday, Contest and Consent: A Legal History of
Marital Rape, 88 Cal L Rev 1373, 1391 [2000]). As a leading treatise on criminal law
stated, “the true reason why the husband, who has sexual intercourse with his wife against
her will, is not guilty of rape is that such intercourse is not unlawful. . . . Sexual intercourse
between husband and wife is sanctioned by law; all other sexual intercourse is unlawful”
(Rollin Morris Perkins, Criminal Law 110 [1982]). As Chief Justice Lord Matthew Hale
wrote, “the husband cannot be guilty of a rape committed by himself upon his lawful wife,
for by their mutual matrimonial consent and contract the wife hath given up herself in this
kind unto her husband, which she cannot retract” (id.).
American jurisdiction adopted the English common law, and coverture limited the
rights of women in early America. In the 18th century, coverture deprived American
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married women of their property, which husbands came to own in fee simple. Husbands
could possess, use and mortgage the property they gained from marrying women, and
creditors could seize that property or interest in the property (Joan C. Williams, Married
Women and Property, 1 Va J Soc Poly & L 383, 385 [1994]).
New York courts implemented English common law and placed obstacles to
women’s divorce and to married women having any property rights (Richard A. Dollinger,
Judicial Intervention: The Judges Who Paved the Road to Seneca Falls in 1848, 12 Judicial
Notice 4, 5 [2017]). The New York Legislature started to erode the doctrine of coverture
beginning in 1828 through trusts that could retain some property rights for married women,
but those changes were slow and minimal (id.). In 1837, assemblyperson Thomas Herttell
introduced a bill that would have allowed women to retain after marriage all property
owned at the time of marriage. He called the doctrine of coverture “uncomfortably close”
to slavery, which had been outlawed in New York ten years prior, asserting that “[o]nly
her husband’s inability to sell her outright saved her from the status of an unqualified slave”
(id.). The bill failed to emerge from the Assembly, let alone become law (id.). In the
1840s, “bills related to women’s property flooded the legislature,” but the legislature
refused to pass any reform for women’s rights (id. at 8).
Against that background, the courts of England and the United States used the Great
Writ to grant relief to women and children in the face of statutory and common law
rendering their mistreatment by men lawful. Habeas corpus freed Catherine Marsden, for
example, when her husband—who had abandoned her but, upon learning that she had
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begun proceedings in the church courts seeking to have him pay maintenance to support
her and their children, lured her to his city on the pretense of reconciliation and then locked
her in a hayloft (Halliday, supra, at 46-47).10 Thus, although the common law gave her
husband legal dominion over her, the court used the writ of habeas corpus to order her
release.
Similarly, before Lady Rawlinson remarried, she put her estate out of the reach of
her groom, Michael Lister. The marriage failed; divorce being out of the question, the
couple made a deed of separation, which worked until Mr. Lister wanted more money.
Lady Rawlinson refused, and Mr. Lister and an accomplice kidnapped her as she left
church, hiding her in a remote location. Responding to a writ of habeas corpus procured
on her behalf, Mr. Lister argued, “by law, the husband has coercive power over the wife”
(id. at 177). King’s Bench agreed with that legal proposition, but relied on the separation
agreement to hold that Mr. Lister’s right to restrain his wife had been eroded, and ordered
Lady Rawlinson’s release (id.).
As another example, habeas corpus could limit a father’s custody of his children,
even though the common law in 18th century England vested custody of children in the
father, not the mother. Anne Bissell was a six-year-old child at the center of a custody
dispute in 1774 (id. at 131). After Anne’s mother had fled with Anne due to her husband’s
mistreatment, Anne’s father used habeas corpus to force Anne’s mother to bring Anne to
10
Professor Halliday’s methodology involved examining all writs of habeas corpus ad
subjiciendum issued from the King’s Bench every fourth year from 1502 to 1798, inclusive,
yielding a total of 2,757 individual subjects (Halliday, supra, at 319).
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court (id.). Lord Mansfield, overseeing the habeas case, acknowledged that “the natural
right is with the father” but given the father’s inappropriate conduct toward the mother,
and his bankruptcy, decided to “do what shall appear best for the child” (id.). Through his
resolution of the case, Lord Mansfield “assigned custody in defiance of the father’s
expectation, supported by common law, that custody should be his. As in all habeas
decisions, the court declared the bounds of jurisdiction, even the jurisdiction of fathers”
(id.). The early English cases of Mrs. Marsden, Lady Rawlinson and Anne Bissell show
that courts employed the Great Writ to challenge and bypass controlling statutory and
common law when deciding habeas corpus petitions; the writ allowed courts to assess each
case individually and whether the confinement was unjust based on fairness and a
balancing of interests.
Further underscoring the flexibility of the Great Writ, its history evinces that habeas
corpus could be used to transfer custody from one confinement, if determined to be
unlawful, to another type of custody; habeas petitions were not required to seek or result
in total liberation as the remedy. That aspect of habeas corpus is evident across issues
impacting children, women, and enslaved people. Frances Howland was a ten-year-old
child over whom custody had been assigned to Mary Johnson (id. at 128). Frances’s uncle,
however, filed a habeas petition to bring Frances into court, arguing that his brother’s will
made him guardian. The Justices considering his claim wrestled with whether they could
change Frances’s custody or whether they were allowed to “only set her at liberty” because
the case arose from a habeas petition. They decided the former, changing the custody of
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Frances from Ms. Johnson to Frances’s uncle, even though Frances was “very unwilling”
to leave Ms. Johnson. The 1724 decision “marked a step in a new direction: using the writ
to assign custody, not simply to release from it” (id. at 128-129). Anne Bissell’s transfer
from the custody of her mother to a school where both of her parents could visit her,
deemed to be in her best interest (which was not then a concept in the common law or
statute), occurred 50 years after Frances’s case, suggesting the “new direction” of using
habeas corpus to transfer custody had become a norm.
In the case of Bridget Hyde—a young teenager living with her mother and step-
father (Sir Robert Viner, Lord Mayor of London) but claimed by John Emerton as his
wife—the King’s Bench issued writs of habeas corpus on the Lord Mayor to produce
Bridget in court, and then, Lord Chief Justice Hale, in a striking bit of innovation, “bad[e]
her take her choice who she would go to”: to Emerton or Viner (id. at 125). Indeed, other
decisions by Chief Justice Hale further reflect an understanding that the writ could innovate
to meet society’s evolving notions of fairness. “During Hale’s five years overseeing King’s
Bench, we find the first writs used by wives against abusive husbands, as well as the first
writs employed to bring in women to swear articles of the peace; to resolve a child custody
dispute; and to explore the detention of an alleged ‘lunatic’” (id.).
Women also used habeas corpus to transfer custody from their husbands to their
parents. As discussed, women in 18th century England had severely restricted rights, and
society defined them by their relationships to their fathers when unmarried and to their
husbands when married (Elizbeth Foyster, At the Limits of Liberty: Married Women and
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Confinement in Eighteenth-Century England, 17 Continuity & Change 39, 49 [2002]).
Custody transfer arose when abused women fled to their parents (id.). Husbands would
file habeas corpus petitions seeking to order their wives transferred back to their own
households, while parents would argue “that by their physical cruelty husbands had
relinquished their rights to custody of their daughters” (id.).
Habeas petitions were also filed on behalf of women who were confined or sent to
madhouses by their husbands, as well as on behalf of husbands seeking to regain custody
of their wives when their wives escaped and obtained refuge in other households (id. at
42). In those contexts, the writ made the King’s Bench a “forum where the boundaries of
men’s rights and women’s freedoms were tested” (id.). Private “madhouses,” which
proliferated in the 18th century, gave husbands another tool to control their wives:
husbands could send their wives to minimally regulated madhouses on claims that their
wives were insane when, in reality, their wives merely failed to obey their orders (id. at
47). In response, women or people acting on their behalf filed habeas petitions. A habeas
petition freed Jane, the wife of Thomas Taylor, after Thomas allegedly detained her for
three months in their house, keeping the front door locked, the back door nailed shut, and
the windows boarded (id. at 44). According to the affidavits in support of Jane’s release,
Thomas did not let Jane leave the home, would have a servant deliver bread, water, and
medicine through Jane’s window, and would severely beat her (id.). The affidavits were
filed after Jane passed letters through a hole in her window begging for help (id.). A habeas
petition secured the release of Deborah D’Vebre—who had been confined in a madhouse
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by her husband—after a doctor inspected her and determined that he could not see “the
least ground or foundation for confining her in the said madhouse” (id.). For women like
Jane and Deborah, “[t]he writ [of habeas corpus] acted as a lifeline for freedom” (id. at 49),
used to overcome their husbands’ common law right to restrain them.
Finally, habeas corpus was used to transfer custody in the context of slavery as well.
When abolitionists attempted to use habeas corpus to retrieve Thomas Lewis, an enslaved
person, from a ship about to sail for Jamaica, Lord Mansfield explained that previous
habeas corpus petitions he had granted for enslaved persons who had been impressed into
navy service were not meant to “free slaves, but to move them from one form of involuntary
labor to another: to retrieve them from the navy’s service so they could return to their
masters’ service, in the same manner that habeas was used to retrieve runaway apprentices
from impressment” (Halliday, supra, at 174-175).
The flexibility of the Great Writ made it an innovative writ that could challenge
existing laws and social norms and inch society toward dramatic changes. The writ of
habeas corpus “encouraged the justices to do much more than declare a prisoner remanded,
bailed or discharged” (id. at 101). Instead, the writ became a vehicle for judges to negotiate
settlements between parties, and judges’ role in those negotiations involved
“constraining—sometimes undermining—the statutes or customs on which other
magistrates acted” (id.). Through that process, “the justices defined what counted as
jurisdiction and what counted as liberties” (id.). The “flexibility, creativity, and widening
purview” vested in judges through habeas corpus led to judges “broaden[ing] the principles
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that legitimated a widening oversight of detention in all forms” (id.). Thus, within that
“widening oversight,” habeas was used to challenge abusive husbands in the 1670s, to
question detentions justified by concerns of state safety in the last decade of the 17th
century, and to “oversee other forms of detention that involved no wrongdoing” such as
“apprenticeship, slavery, and naval impressment” in the mid-18th century (id.).
The same qualities and uses of the writ found in English history are evident in the
United States as well. The writ of habeas corpus was understood as a means for women
and children to challenge confinement or custody. As in England, women had severely
restricted rights under coverture in America, and their husbands had a legal right to restrain
them, but if the husband “restrain[ed] [his wife] of her liberty unreasonably, or
imprison[ed] her, she may have relief by habeas corpus” (1 Zephaniah Swift, A System of
the Laws of the State of Connecticut 1795, at 201).
Abbott v Abbott, an 1877 case from the Maine Supreme Judicial Court, is one
example of the vast power men had over their wives and the availability of habeas corpus
as one of the few possible remedies. In Abbott, the court held that a woman could not sue
her former husband in tort for forcibly carrying her to an insane asylum, because the
doctrine of coverture gave rise to no cause of action for violence by the husband to the
wife, as their identities merged upon marriage (Abbott v Abbott, 67 Me 304 [1877]). The
court, however, observed that “the married woman has remedy enough”: the criminal
courts, prosecution for divorce at her husband’s expense, and “the privilege of the writ of
habeas corpus, if unlawfully restrained” (id. at 307 [emphasis in original]; see also Main
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v Main, 46 Ill App 106, 107-108 [Ill App Ct – 3d Dist 1892] [holding that, as in Abbott, a
woman could not sue her husband for forcibly admitting her into an insane asylum but
observing that the woman is “not without protection” because she could pursue criminal
charges, sue for divorce, and “may have a writ of habeas corpus if unlawfully restrained”]).
As in England, the writ was used to transfer custody of children from one parent to
another for children “under the age of discretion”; courts upon granting the writ would
determine who should obtain custody of the child (see Dallin H. Oaks, Habeas Corpus in
the States: 1776-1865, 32 U Chi L Rev 243, 270-271, 273-274 [1965]; see, e.g., Mercein
v People ex rel. Barry, 25 Wend 64 [Court for the Correction of Errors of New York 1840];
People ex rel. Olmstead v Olmstead, 27 Barb 9 [NY Sup Ct 1857]). Indeed, “[t]here [were]
numerous cases where courts asserted and exercised their powers to resolve issues on the
guardianship of young children by habeas corpus” (Oakes, supra, at 274). Parents also
used habeas corpus to regain custody of children who enlisted in the Civil War without
their consent (see Frances M. Clarke & Rebecca Jo Plant, No Minor Matter: Underage
Soldiers, Parents, and the Nationalization of Habeas Corpus in Civil War America, 35
Law & Hist Rev 881 [2017]).
C
As with Sommersett’s Case and the Lemmon Slave Case, the cases liberating women
and children did not bring an end to those abuses on a wholesale basis. Because of the
inherently case-by-case way in which habeas corpus works, each case acted directly only
on the particular petitioner seeking relief. However, those cases did spark dialogue and
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change on a broader scale. The decisions liberating women from “madhouses” provide a
helpful illustration. Those cases did not lead to a wholesale closure of such institutions or
a release of all or most women confined in them, but the writs increased public awareness
that led to significant legislative reform. Through habeas corpus, “[t]he stories told in the
King’s Bench about wives who were wrongfully confined in private madhouses
contributed to public awareness of the abuses of these institutions” (Foyster, supra, at 52).
First heard in court, the injustices of private madhouses became widely reported,
“provok[ing] public alarm and mounting criticism [that] eventually led to the 1774 Act for
Regulating Private Madhouses” (id.). Though that Act failed to eliminate all the ills of
madhouses, its enactment shows how the innovative quality of the writ of habeas corpus
can lead to broader social change. The writ is a tool for society to challenge confinement,
construed broadly, and can document and raise awareness of injustices that may warrant
legislative, policy, or social solutions.
The important points from the history and use of the Great Writ can be summarized
as follows: first, even when positive (statutory or common) law renders a confinement
lawful, the writ may be used to challenge a particular confinement as unjust based on the
particular circumstances; second, the writ may be invoked on behalf of chattel (enslaved
persons) or persons with negligible rights and no independent legal existence (women and
children); third, it is a proper judicial use of the writ to employ it to challenge conventional
laws and norms that have become outmoded or recognized to be of dubious or contested
ethical soundness; and finally, the writ may be used to transfer a petitioner from an onerous
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custody to a less onerous custody. That leaves us here: animals can and do bear rights,
and courts can use habeas corpus to grant rights to anyone regardless of their legal status
as a person, even when positive law says otherwise. The remaining, and only real, question
in this case is, when should they?
III
As human knowledge of animal capabilities and needs has increased over the past
centuries, social norms concerning human treatment of animals, and the rights granted to
them, have also changed significantly. Whether an elephant could have petitioned for
habeas corpus in the 18th century is a different question from whether an elephant can do
so today because we know much more about elephant cognition, social organization,
behaviors and needs than we did in past centuries, and our laws and norms have changed
in response to our improved knowledge of animals.
A
Early America had a strictly property-based view of animals. Over the last two
centuries, that view has greatly eroded. Through most of the 19th century, animals were
seen and treated as property and were used by humans for both entertainment and hard
labor. A particularly troubling example of animals’ use for entertainment was the practice
of wealthy individuals and families watching “vivisections,” or dissections of unsedated
live animals (Claire Priest, Enforcing Sympathy: Animal Cruelty Doctrine after the Civil
War, 44 L & Social Inquiry 136, 143 [2019]). The first efforts to rein in animal cruelty
were facilitated under the public nuisance doctrine, which operated only when the cruelty
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occurred in public, or under causes of action protecting an owner’s property rights in an
animal (including the malicious mischief doctrine) when a third party interfered with an
owner’s property rights in an animal by harming it (id.). Under those doctrines, infliction
of undue or excessive suffering on animals was regulated because of the effect it had on
humans in society. Animal cruelty was punished through the public nuisance doctrine
because the cruelty disturbed the peace for members of society enjoying public spaces. It
was punished through the malicious mischief doctrine because it damaged someone’s
property. Thus, initial laws protecting animals did not expressly do so for the welfare of
the animal per se.
In 1828, New York became the first state to enact an anticruelty law applying to
animals (id. at 146-147). The statute made it a misdemeanor to “maliciously kill, maim,
or wound any horse, ox, or other cattle, or sheep, belonging to another,” or to “maliciously
and cruelly beat or torture any such animal, whether belonging to himself or to another”
(id.). Nineteen other states followed suit with similar statutes by 1865 (id.). However,
those statutes were largely interpreted as mere legislative reiterations of the preexisting
common law rules of public nuisance and malicious mischief (id.).
A major shift occurred after the Civil War, when the animal welfare movement grew
significantly. Advocates’ concern for animal suffering and a “widespread desire for greater
social control” contributed to the rise of the movement (id. at 148, 150). The American
Society for the Prevention of Cruelty to Animals (ASPCA) was founded in New York in
1866. ASPCA’s successful lobbying led to the enactment of an expansive anti-cruelty
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statute in 1867 that criminalized the infliction of pain on animals and empowered the
ASPCA itself to investigate and prosecute people for animal cruelty—an extraordinary
power for a nongovernmental organization (see Davis v Am. Soc’y for Prevention of
Cruelty to Animals, 75 NY 362 [1878] [refusing to enjoin the President of the ASPCA from
making arrests of persons he determined were cruelly slaughtering hogs]). The growing
prosecutions and developments in the law signaled a shift in view toward animals: animal
suffering was no longer simply seen as evil because of its effect on humans and society,
but was now also viewed as an evil due to its effect on animals themselves.
States across the country enacted animal cruelty laws like New York’s after the Civil
War. This time, courts did not interpret the statutes to restrict them to the public nuisance
and malicious mischief doctrines (Priest, supra, at 156). Instead, court decisions reflected
the shift toward considering suffering from the animals’ perspectives (id. at 156-157). The
Arkansas Supreme Court, for example, considered the state’s new anticruelty acts as “not
made for the protection of the absolute or relative rights of persons, or the rights of men to
the acquisition and enjoyment of property, or the peace of society” (id. at 157, quoting
Grise v State, 37 Ark 456, 457 [1881]). Instead, the statutes “seem[ed] to recognize and
attempt to protect some abstract rights in all that animate creation, made subject to man by
the creation, from the largest and noblest to the smallest and most insignificant” (id.).
Reflecting that more expansive view of the post-Civil War anti-cruelty statutes, courts
across states eliminated intent or malice elements previously required in animal cruelty
offenses (id. at 160).
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The history of abolition and other human-centered movements and the history of
the animal welfare movement intersected in some meaningful ways. Through the Civil
War, the “abolition of slavery and the horror of battle—documented in thousands of
wartime photographs of dead soldiers and horses—brought suffering and human rights to
a national audience, therefore catalyzing a national movement” (Janet M. Davis, The
History of Animal Protection in the United States, Organization of American Historians
[May 27, 2022], https://www.oah.org/tah/issues/2015/november/the-history-of-animal-
protection-in-the-united-states/). In the post-Civil war era, “[a]nimal protectionists
believed that creaturely kindness was a marker of advanced civilization, which could
rectify a fractured nation and world” (id.). Indeed, there were direct ties between
abolitionists and animal welfare advocates in America (id.; see also Priest, supra, at 148),
and even more direct ties between the abolition and animal rights movements in Britain
(id.). In the United States, the animal rights movement also may have contributed to
modern interventionist and liberal ideas about government, and animal rights groups began
thinking about cruelty against human children (see Davis, History of Animal Protection,
supra). Animal protection groups created broader “humane societies” that “safeguarded
animals and children under a singular protected fold, positing that helpless ‘beasts and
babes’ had a right to protection because they could suffer” (id.). Historians saw these
movements—toward abolition, animal rights, and child welfare—as moving in lockstep,
through “an almost simultaneous development of antislavery sentiment, advocacy for
animal welfare, diminished use of torture, and hostility to the use of corporal punishment
to discipline children, prisoners, sailors, and women” (Priest, supra, at 148).
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Other forces may have been simultaneously at work. Charles Darwin’s On the
Origin of the Species, published in 1859, established an evolutionary connection between
humans and animals, and Darwin himself drafted legislation aimed at reducing animal
suffering (Eric Michael Johnson, Charles Darwin and the Vivisection Outrage, Scientific
American, Oct. 6, 2011, available at https://blogs.scientificamerican.com/primate-
diaries/vivisection-outrage/#). Likewise, under a variety of late 19th century influences,
“including transcendentalism, Theosophy, Buddhism, Hinduism and Darwinism, the
concept of animals as rational, intelligent, and possessing souls that could survive bodily
death gained popular acceptance” (A. W. H. Bates, Have Animals Souls? The Late-
Nineteenth Century Spiritual Revival and Animal Welfare, in Anti-Vivisection and the
Profession of Medicine in Britain: A Social History [2017], available at
https://www.ncbi.nlm.nih.gov/books/NBK513717/).
Over the many decades thereafter, our societal norms toward animals have
continued to change. As a simple example, in the 19th century, some animal welfare
activists “maligned the cat as a semiwild killer of cherished songbirds” (Davis, History of
Animal Protection, supra). By the 20th century, however, medical advances and
inventions like the litter box brought cats out of the shrubbery and into the home (id.). The
animal protection movement became focused on dogs, cats, and sheltering animals (id.),
and today, cats are beloved by many in our society (see Roberto A. Ferdman & Christopher
Ingraham, Where Cats Are More Popular Than Dogs in the U.S.—And All Over the World,
Wash Post [July 28, 2014],
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https://www.washingtonpost.com/news/wonk/wp/2014/07/28/where-cats-are-more-
popular-than-dogs-in-the-u-s-and-all-over-the-world/). Indeed, domesticated pets have
become important members of families, and the law has accounted for the role they play
in people’s lives. A recent New York law, for example, requires that a court managing a
couple’s separation, “in awarding the possession of a companion animal . . . consider the
best interest of such animal” (Domestic Relations Law § 236 [d] [5]). In many states,
people can leave behind money for their pets or domesticated animals in trusts after they
die (see, e.g., New York Estates Power and Trusts Law § 7-8.1; Uniform Probate Code § 2-
907 [b]; Breahn Vokolek, America Gets What It Wants: Pet Trusts and a Future for Its
Companion Animals, 76 UKMC L Rev 1109, 1126-1128 [2008]).
Driving many of the changing social norms about wild animals is our vastly
enhanced understanding of their cognitive abilities, needs and suffering when in captivity.
Prior to the 20th century, human understanding of animal intelligence was minimal.
Rather, humans regarded themselves as “unique in their sociality, individuality, and
intelligence” (Piers Locke, Explorations in Ethnoelephantology: Social, Historical, and
Ecological Intersections between Asian Elephants and Humans, 4 Envt & Socy 79, 79
[2013]). As scientific research progressed in the 20th century, researchers began to
discredit the notion of human exceptionalism. Scientists found that animals such as apes,
dolphins and elephants—like humans—had substantial capacity to engage in and maintain
social relationships, to learn and transpose information, to “appreciate the thoughts and
feelings of other sentient beings, and engage in strategic behavior” (id.). Because human
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understanding of the cognitive and emotional capacities of animals has developed recently
and is still expanding, the contrast between what we now know and the paucity of
information in earlier times must inform our analysis. What was unknown about animal
cognizance and sentience a century ago is particularly relevant to whether Happy should
be able to test her confinement by way of habeas corpus, because we now have information
suggesting that her confinement may be cruel and unsuited to her well-being.
Philosophers have long debated the roles and capacities of animals in human
society. French philosopher Michel de Montaigne contended that animals were conscious,
rational, and moral—even more so than humans (Peter Harrison, The Virtues of Animals in
Seventeenth-Century Thought, 59 J History of Ideas 463, 463 [1998]). Descartes posited
the contrary; animals were not conscious, rational, or moral (id.). Nicolas Malebranche, a
17th-century French philosopher, described Descartes’s understanding of animals: “[i]n
animals there is neither intelligence nor souls as ordinarily meant. They eat without
pleasure, cry without pain, grow without knowing it, desire nothing, fear nothing, and know
nothing” (Steven Nadler, The Cambridge Companion to Malebranche 42 [2000]).
Descartes’s dogmatic belief that animals were insentient, unfeeling beings was not
ubiquitously accepted. Rather, theories of the virtues and capabilities of animals varied
significantly prior to the 20th century (Harrison, supra, at 471). Some accepted
Montaigne’s expansive view of animal consciousness, and others rejected it, instead
following Descartes’s views (id.). Some found a middle ground that reflected Aristotle’s
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view: animals were conscious and sentient but had no rational soul (id.). None of those
views were firmly grounded in anything we would describe as the scientific method.
Today, human understanding of the cognitive and emotional makeup of animals is
meaningful and sound, though surely incomplete. The panoply of undiscovered
information and broad scope of recent findings support approaching the question of animal
sentience, feeling and confinement with humility and deference to the unknown. Indeed,
“it is always advisable to perceive clearly our ignorance” (Charles Darwin, The Expression
of the Emotions in Man and Animals 66 [1872]). The past century has given rise to
substantial developments in the scientific understanding of animals, suggesting also that
there remains much that we still do not know.
As to elephants in particular, in 1957, scientists at a zoo in Germany conducted
several experiments to determine the mental capabilities of elephants (B. Rensch, The
Intelligence of Elephants, Scientific American 196(2), 47 [1957]). The researchers found
that elephants were able to recognize visual and auditory patterns, associate symbols with
rewards and detriments and anticipate consequences of their actions (id. at 47-48). Even
when patterns were altered, elephants were nonetheless able to recognize them. That
behavior, researchers noted, demonstrated elephants’ ability to “transpose learning or form
an abstract concept” (id.). Elephants’ substantial mental capacity was similarly
demonstrated by researchers’ discoveries regarding elephant memory. Researchers found
that elephants were able to remember distinctions between various sounds or visual
patterns one year after they had initially learned them (id. at 48). The research established
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that elephants bear very substantial mental cognizance; they can “anticipat[e] what will
come of certain actions” and have the capacity for “true ideation” (id. at 47).
Beyond the ability to recognize and respond to patterns, elephants have exhibited
complex social behaviors and have substantial ability to engage in and maintain social
relationships (George Wittemyer, The Global Guide to Animal Protection: Perceptions of
Elephants 90 [2013]). Studies have shown that elephant families are headed by matriarchs,
who “lead[] their families through a vast social network where relations and dominance
have been worked out among hundreds of individuals” (id.). Other research has detailed
elephants’ abilities to develop meaningful social and familial bonds (id.). Elephant
mothers whose calves perish will often mourn their loss for days, attempt to revive the dead
and stand guard over the body for days at a time (id.). Elephants’ ritualistic funeral
practices further offer support for the notion that they are mentally and socially complex
beings: when a member of an elephant family dies, elephants have been seen gathering
around the deceased, smelling, moving and interacting with the deceased’s bones (id.). The
motivation behind elephant funeral practices remains unknown (though a visitor from
another planet might say the same about human funeral practices) and is representative of
the incompleteness of human knowledge regarding animal behavior.
Human understandings of elephant cognition are continuously developing and
therefore are far from absolute. Just a decade ago, scientists learned that elephants had the
ability to engage in “insightful problem solving” because they demonstrated substantial
capability to use tools (Preston Foerder et al., Insightful Problem Solving in an Asian
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Elephant, PLoS One 6(8), 5 [2011]). Fewer than 20 years ago, scientists determined that
elephants were likely self-aware because they were able to recognize themselves in a
mirror. Happy herself was a subject of that experiment. She exhibited behavior consistent
with mirror self-recognition—an ability that remains “exceedingly rare in the animal
kingdom” (Joshua M. Plotnik et al., Self-Recognition in an Asian Elephant, PNAS 103(45),
17053 [2006]).
Today, we would roundly reject Descartes’s claim that animals “cry without
pain . . . desire nothing, fear nothing and know nothing.” Indeed, it is the advancing state
of our knowledge that has led us to provide rights to animals. The idea of a habeas petition
on behalf of an elephant would have seemed ludicrous to Descartes, who saw animals as
inanimate, insentient objects. Given what we know today, it would be even more absurd
to allow Descartes’s views to factor into a decision concerning Happy’s ability to seek
relief through habeas corpus, when human understanding of elephant cognition, social
behavior, capabilities and needs demonstrates the absurdity of those ancient, uninformed
views. Due to our greater understanding of animals, we have also increasingly recognized
that harms to animals outweigh the benefits to humans from various forms of animal uses
and confinements once commonplace. The Zoo itself has decided that it will not acquire
any elephants in the future, so that Happy will be one of the last elephants to inhabit the
Zoo (Tracy Tullis, The Bronx Zoo’s Loneliest Elephant, NY Times [June 26, 2015],
https://www.nytimes.com/2015/06/28/nyregion/the-bronx-zoos-lonliest-elephant.html]).
In 2015, the Ringling Brothers Barnum & Bailey Circus announced it would cease using
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elephants in its acts by 2018 (Richard Pérez-Peňa, Elephants to Retire From Ringling
Brothers Stage, NY Times [Mar. 5 2015],
https://www.nytimes.com/2015/03/06/us/ringling-brothers-circus-dropping-elephants-
from-act.html). The circus shut its operations entirely in 2017, and just about a month ago
announced that it would return, but with no animals whatsoever as part of the show (Sarah
Maslin Nir, Ringling Circus Is Returning. Lions, Tigers and Dumbo Are Not, NY Times
[May 18, 2022], https://www.nytimes.com/2022/05/18/arts/ringling-circus-
returning.html). Even if the circus made its decision because potential customers think it
cruel to see an elephant doing tricks, the views of those potential customers are shaped by
a better understanding of elephants. The law has reflected those evolving social norms.
Today, a pediatrician who suspects that a child has been abused must report her suspicion;
a veterinarian who suspects that an animal has been abused must do the same; and the
abusers of either are subject to criminal prosecution.
The question presented by Happy’s case—whether she should be able to challenge
the conditions of her confinement through a writ of habeas corpus—arises within our
country’s history of evolving norms and knowledge about animals. Those evolving norms
and our deepening understanding about animals, along with legal developments that reflect
them, provide the essential context for deciding this case.
B
As the Zoo’s treatment of Mr. Benga illustrates, however, comparisons between
animals and enslaved and non-white people have been used perniciously. Those
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comparisons have occurred in at least two ways: first, non-white and enslaved people were
directly equated with animals in ways that justified oppression or enslavement, and second,
animal rights advocates have likened animal captivity to human enslavement and the
violence of colonization in ways that, intentionally or not, further dehumanize non-white
and indigenous people. The first comparison shocks our conscience today. The second
comparison trivializes the particular, acute and morally destitute nature of human slavery,
distracting from more nuanced and helpful reflections on the insight that slavery and
colonization may have for other kinds of subordination.
Any discussion of slavery in the context of animal rights demands an
acknowledgment of our country’s reprehensible history of denying the humanity of racial
minorities. I opened with a small fragment of the outrageous story of Mr. Benga, whom
the Zoo placed on display in a cage with an orangutan (see Pamela Newkirk, Spectacle:
The Astonishing Life of Ota Benga 26 [2015]). Mr. Benga’s confinement, which should
enrage us today, was welcomed as an opportunity for visitors to see a Black man deemed
less human than the gawking white visitors, at least some of whom felt uneasy with the
display (id. at 9). When Mr. Benga was first exhibited, at the 1904 St. Louis World’s Fair
along with other people from his part of the Congo, the Fair also included a miniature
village filled with people from the Philippines, whom newspapers of the day described as
“savages” comparable to monkeys (see Wash Post, How a Monkey Got In: Was Mistaken
for One of the Igorrote Babies, May 2, 1904 at 5; Henry Grady, Philippine Village—
Startling Exhibit at Fair: Igorrotes in Native Attire, Celebrate Holidays by Diet of Dog
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Meat; Strange Customs and Queer Practices, Atlanta Constitution [July 3, 1904], at B5).
That historical practice of equating non-white people to animals was pervasive. Indeed,
the practice—termed “animalization” by some—was used to justify the slavery of Africans
and people of African descent and avoid any emotional empathy white society might feel
for the people whose liberty it stole (see Luis C. Rodrigues, White Normativity, Animal
Advocacy, and PETA’s Campaigns, 20 Ethnicities 71, 77 [2020]).
Advocacy by organizations pushing for animal rights has at times drawn
comparisons to human slavery that exacerbate the “animalization” of non-white people. In
2005, the People for the Ethical Treatment of Animals (PETA) ended a campaign due to
criticism of its alleged comparisons between the treatment of enslaved Black people and
animals (Angela Harris, Should People of Color Support Animal Rights?, 5 J Animal L 15,
18-19 [2009]). The campaign provoked a response from the NAACP, which inquired, “Is
PETA saying that as long as animals are butchered for meat, racists should continue
lynching Black people?” (id. at 19).11 Such advocacy evoked harmful stereotypes of
racially oppressed communities as less-than-human (see id.), making members of those
11
PETA’s messaging frequently contained comparisons of animals to nonwhite humans.
In 2005, PETA announced an exhibit it would bring to Los Angeles on “Animal
Liberation” (Angela Harris, Should People of Color Support Animal Rights?, 5 J Animal
L 15, 21 [2009]). The exhibit would juxtapose images of cruelty to humans that was once
accepted by society with images of current cruelty to animals that society condoned (id. at
21). Other PETA exhibits include one titled “Are Animals the New Slaves?” (Luis C.
Rodrigues, White Normativity, Animal Advocacy, and PETA’s Campaigns, 20 Ethnicities
71, 74 [2020]). PETA once displayed a photo of a Black man being lynched beside an
image of a cow hanging upside down by its feet mid-slaughter (id.).
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communities hesitant to join advocacy efforts on behalf of animals (see Harris, supra, at
24-27).
The comparisons drawn between animals and enslaved and non-white people—
evident from early American history through PETA’s campaigns in the 21st century—
require great caution in articulating rights of animals. Discussions that involve both animal
rights and racial oppression should not equate the suffering of animals with the suffering
of enslaved, colonized or subjugated humans. Scholars who have criticized animal rights
activists’ harmful messaging have also identified a path forward, offering alternative bases
for supporting animal rights in anti-racist ways. Those alternative bases include a
framework oriented against subordination broadly within the industrialization of our
economy, as well as a lens drawing from the heritage of positive animal treatment in
indigenous communities prior to colonization (id. at 28-29).
Most importantly, by moving away from questions of animal “personhood”—
through a clear statement that animals are not humans—we can focus on questions about
our capacity for empathy toward other beings and the expansion of the rights we have
granted them, while also avoiding comparisons that have harmful racial-coding and
dehumanizing effects (see id. at 31-32). Frederick Douglass, once enslaved himself,
explained that “[t]here is no denying that slavery had a direct and positive tendency to
produce coarseness and brutality in the treatment and management of domestic animals,
especially those most useful to the agricultural industry” (Frederick Douglass, Address
Delivered at the Third Annual Fair of the Tennessee Colored Agricultural and Mechanical
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Association 12-13 [1873]). Douglass urged his audience that “[i]t should be the study of
every farmer to make his horse his companion and friend, and to do this, there is but one
rule, and that is, uniform sympathy and kindness” (id. at 13). He specifically pointed to
the similarities between animals and humans:
“A horse is in many respects like a man. He has the five senses,
and has memory, affection and reason to a limited degree.
When young, untrained and untamed, he has unbounded faith
in his strength and fleetness. He runs, jumps and plays in the
pride of his perfections. But convince him that he is a creature
of law as well as of freedom by a judicious and kindly
application of your superior power, and he will conform his
conduct to that law, far better than your most law-abiding
citizen” (id.).
The Great Writ’s purpose calls for exactly that: a judicious and kindly application of
superior power.
IV
The law, at its core, reflects normative judgments about the behaviors we want to
allow, encourage, discourage or prohibit. In this way, the law reflects our society’s values
and aspirations. Criminal law, for example, delineates the conduct we deem most harmful
and the penalties for engaging in those acts. Our law of contracts reflects how we think
people or organizations should engage and make promises with one another and the
circumstances in which such promises will be enforced. Our law of torts reflects which
acts are wrongful or infringe on someone’s rights and give the harmed person a civil
remedy, usually through damages.
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Because the law reflects our society’s values, the law inevitably changes as those
values change. Indeed, to change is a function of the law: “Law must be stable, and yet it
cannot stand still” (Roscoe Pound, Interpretations of Legal History 1 [1923]). It is
impossible for the law to remain static; as society changes, the law accommodates those
changes, at minimum considering how the law as it exists applies to novel situations and
changes in society, and sometimes shedding ancient decisions or creating new legal
doctrines to accommodate new knowledge, beliefs and challenges. The law and social
norms, then, are constantly in conversation with one another; oftentimes changes in social
norms lead to changes in the law; other times, the law changes in attempt to adjust the
prevailing social norms. “The moral code of each generation, this amalgam of custom and
philosophy and many an intermediate grade of conduct and belief, supplies a norm or
standard of behavior which struggles to make itself articulate in law. . . . The same pressure
is at work in making the law declared by the Courts” (Benjamin N. Cardozo, The Paradoxes
of Legal Science 17 [1928]).
As its history shows, the writ of habeas corpus was used flexibly to address myriad
situations in which liberty was restrained. It is a common law writ and, although different
in the respect that the legislature cannot alter its scope, its judicial implementation mirrors
the path generally used by courts to adapt the common law and conform it to present times.
In that regard, habeas corpus is just one example of how courts alter conduct as societal
needs, values and aspirations evolve.
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The decisions of our Court during the time of Chief Judge Cardozo have long been
used as textbook illustrations of how a court changes the common law to adapt it to the
changed needs and wants of society, without waiting for a legislature to act. A prime
illustration is MacPherson v Buick Motor Company (217 NY 382 [1916]), described by
Chief Judge Judith Kaye as an opinion that “breathes with the elasticity and forward
progress of the common law” (Judith S. Kaye, Benjamin Nathan Cardozo, Historical
Society of the New York Courts, https://history.nycourts.gov/biography/benjamin-nathan-
cardozo/ [June 3, 2022]). In MacPherson, our Court considered a negligence claim raised
by a driver against a manufacturer of automobiles (217 NY at 384-385). Under
longstanding common law, the plaintiff could not sue the manufacturer of the defective
wheel that caused the accident because the plaintiff was not “in privity” with the wheel
manufacturer—that is, they had no business relationship. Citing the limited exceptions to
the privity rule, involving inherently dangerous items like “poisons, explosives, [and]
deadly weapons” (id. at 387), Judge Cardozo extracted from those the broader principle
that “[i]f the nature of a thing is such that it is reasonably certain to place life and limb in
peril when negligently made, it is then a thing of danger” and if the manufacturer has
“added knowledge that the thing will be used by persons other than the purchaser,” then
irrespective of privity, “the manufacturer of this thing of danger is under a duty to make it
carefully” (id. at 387-388). Applying that new rule to the MacPherson plaintiff’s case, the
Court held that the defendant manufacturer owed the plaintiff a duty, as “the nature of an
automobile gives warning of probable danger if its construction is defective” and because
the manufacturer “knew [] that the car would be used by persons other than the buyer” (id.
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at 390-391). In adapting the common law Judge Cardozo “plow[ed] through a line of cases
generally recognized as exceptions to the general no-liability-without-privity rule” to
create a new principle: “Foresight of danger creates a duty to avoid injury” (Judith S. Kaye,
Benjamin Nathan Cardozo, supra). Judge Cardozo famously explained how societal
changes require modification of the common law:
“Precedents drawn from the days of travel by stage coach do
not fit the conditions of travel to-day. The principle that the
danger must be imminent does not change, but the things
subject to the principle do change. They are whatever the
needs of life in a developing civilization require them to be”
(MacPherson, 217 NY at 391).
Numerous other cases showcase that same innovation to meet current needs and
understandings. For example, in Wood v Lucy, Lady-Duff Gordon (222 NY 88 [1917]),
one of the “most significant contract cases” (Historical Society of the New York Courts,
There Shall Be a Court of Appeals 60 [1997], https://history.nycourts.gov/wp-
content/uploads/2018/11/History_COA-Kaye-There-Shall-Be.pdf), Judge Cardozo held
that the promise to undertake and perform the terms of a contract may be implied even if
not expressly included in the contract (Lucy, 222 NY at 91). In so holding, he observed
that “[t]he law has outgrown its primitive stage of formalism when the precise word was
the sovereign talisman, and every slip was fatal” (id.). Instead, “[i]t takes a broader view
today”: “A promise may be lacking” by the express terms of a contract, “and yet the whole
writing may be ‘instinct with an obligation,’ imperfectly expressed. If that is so, there is a
contract” (id. [citations omitted]). In Palsgraf v Long Island Railroad Co. (248 NY 339
[1928]), “[p]erhaps the most famous torts opinion written during the 20th century” (There
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Shall Be a Court of Appeals, supra, at 66), Judge Cardozo clarified that in negligence
actions, “[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk
imports relation; it is risk to another or to others within the range of apprehension”
(Palsgraf, 248 NY at 344 [emphasis added]). Palsgraf moved negligence common law
away from a strict analysis of proximate cause between harm and injury. His decision
arose in the context of increasing industrialization, high accident rates and “competing
paradigms of liability” (William E. Nelson, Palsgraf v. Long Island R.R.: It’s Historical
Context, 34 Touro L Rev 281, 286 [2018]), responding to the need for clarity in the law
given the changes in society.
Even recently, we have recognized our duty to adapt the common law to present
circumstances, without waiting for the legislature. Just last year, in Greene v Esplanade
Venture Partnership (36 NY3d 513 [2021]), we adjusted the common law in response to
changed notions on what it means to be part of a family. For several decades, during which
the legislature had not acted, the common law restricted persons within the “zone of
danger” when another was killed or injured, who could recover for emotional distress, to
plaintiffs who belonged to the victim’s immediate family. Although existing case law
denied recovery to a woman who had been raised by her aunt, we expanded the definition
of “immediate family” to include grandparents, pointing to the “increasing legal
recognition of the special status of grandparents, shifting societal norms, and common
sense,” allowing the grandmother to recover for her emotional distress (id. at 516).
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Our Court has a long and distinguished history of adapting the common law to
reflect new knowledge, changed beliefs and economic and social transformations. “During
its first 150 years, the New York Court of Appeals has had more impact on more areas of
law than any other court in the United States” (There Shall Be a Court of Appeals, supra,
at 56). We “act in the finest common-law tradition when we adapt and alter decisional law
to produce common-sense justice” (Woods v Lancet, 303 NY 349, 355 [1951]). Not all
change can or should come from the legislature; we “abdicate our own function, in a field
peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made
rule” (id.). Indeed, “[h]ardly a rule of today but may be matched by its opposite of
yesterday. . . . These changes or most of them have been wrought by judges [who] . . .
used the same tools as the judges of today. . . . The result . . . has been not merely to
supplement or modify; it has been to revolutionize and transform” (Benjamin N. Cardozo,
The Nature of the Judicial Process 26-28 [1921]).
In Hynes v New York Central Railroad Co. (231 NY 229 [1921]), Judge Cardozo
considered whether a railroad company could be liable for the death of a boy who jumped
from a plank or springboard projecting from the company’s bulkhead above a river—a
practice common among boys swimming in the area. In ruling in favor of the boy, Judge
Cardozo criticized the arguments raised by the railroad company:
“Liability, it is said has been escaped because the pole was
horizontal. The plank when projected lengthwise was an
extension of the soil. We are to concentrate our gaze on the
private ownership of the board. We are to ignore the public
ownership of the circumambient spaces of water and of air.
Jumping from a boat or a barrel, the boy would have been a
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bather in the river. Jumping from the end of a springboard, he
was no longer, it is said, a bather, but a trespasser on a right of
way. Right and duties in systems of living law are not built
upon such quicksands” (id. at 233).
The judges, Justice Paine among them, who issued writs of habeas corpus freeing
enslaved persons, or liberating women and children from households run by abusive men,
or ordering the return home of underaged soldiers could have said, as the majority does
here, “that’s a job for the legislature.” They could have said, “existing law offers some
protections, and we dare not do more.” They could have said, “we can’t be the first.” But
they did not. None of those declamations is remotely consistent with our Court’s history,
role or duty. Where would we or Judge Cardozo be, had he declined to act for any of those
reasons? The Great Writ’s use, as a case-by-case tool to probe whether the law may need
to adapt, is part of the fundamental role of a common-law court to adapt the law as society
evolves.
V
Supreme Court denied Happy’s petition for a writ of habeas corpus on the ground
that it was bound by Appellate Division law holding that animals have no rights because
they cannot bear responsibilities. If they have no rights, they have nothing to enforce by
habeas corpus. As discussed above, that legal proposition is erroneous. The next question
is, what is the standard to be used to determine whether Happy has made out a prima facie
case in her petition, which would entitle her to a determination of her petition on the merits?
In other words, did Happy present sufficient information through her complaint and
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supporting affidavits to entitle her to a full hearing? The ultimate question—should Happy
be granted a transfer out of the Zoo and into a residence better suited to her needs—is not
before us. Supreme Court did not attempt to resolve disputed issues of fact, but instead
dismissed the case as a legal impossibility. I would hold that Happy has sufficiently stated
a prima facie case entitling her to a hearing, and remit for Supreme Court to weigh the
evidence, resolve conflicting issues and render a merits decision.
A
Happy’s habeas petition should not have been summarily dismissed. As I discussed
earlier, the dismissal of her petition was based on an erroneous Appellate Division decision
that said habeas corpus in New York was restricted to humans because only humans can
hold rights. The prior sections of my writing underscore that habeas is not so limited and
instead has always been used to challenge confinement at the boundaries of evolving social
norms, even by petitioners with the legal status of chattel (enslaved persons) or no legal
identity or capacity to sue on their own (wives and children).
As a threshold matter, we must review Happy’s case under the liberal standard of
review afforded to cases that are appealed from motions to dismiss (CPLR 3211 [a] [7]).
Thus, we must “accept[] the facts as alleged in [Happy’s] complaint [and supporting
affidavits] as true” and accord Happy “the benefit of every possible favorable inference”
(Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Morone v Morone, 50 NY2d 481, 484
[1980]; Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 634 [1976]).
To begin, Supreme Court did make a factual finding, undisturbed by the Appellate
Division, that “Happy is an extraordinary animal with complex cognitive abilities, an
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intelligent being with advanced analytic abilities akin to human beings” (2020 WL
1670735, at *3 [Sup Ct, Bronx County, Feb. 18, 2020]).
Next—taking the information Happy has submitted as true, and granting every
possible reasonable inference in her favor—what do we know about her? We know that
Happy is a 48-year-old Asian elephant who was captured in the wild and brought to the
United States when she was just one year old. She arrived at the Bronx Zoo in 1977, along
with an elephant named Grumpy. Happy was on display for visitors, gave some of them
rides and participated in “elephant extravaganzas.” She lived with Grumpy for a long 25
years, but after the Zoo had Happy and Grumpy live with two other elephants, Patty and
Maxine, in the same exhibit, those two elephants attacked Grumpy. Grumpy was so
severely injured that the Zoo decided to euthanize her. The Zoo then separated Happy from
Patty and Maxine, who had attacked her companion. They later introduced Sammie, a
younger female Asian elephant, into Happy’s part of the exhibit, but Sammie’s severe liver
disease led to the Zoo euthanizing her as well. Ever since Sammie died in 2006, Happy
has been living alone at the Bronx Zoo, in a one-acre enclosure.
Accepting as true the (largely unchallenged) expert affidavits submitted on behalf
of Happy, we also know that Happy and elephants like her “possess complex cognitive
abilities” of a great number. Among those myriad qualities and abilities include
“autonomy; empathy; self-awareness; self-determination; theory of mind (awareness that
others have minds); insight; working memory; [and] an extensive long-term memory that
allows them to accumulate social knowledge.” They are able to “act intentionally and in a
goal-oriented manner,” “understand the physical competence and emotional state of
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others,” “engage in true teaching,” “cooperate and build coalitions,” engage in
“cooperative” and “innovative problem-solving,” “understand causation,” and engage in
“intentional communication.” They have “complex learning and categorization abilities,”
and they understand death, practicing grieving behaviors that “are akin to human responses
to the death of a close relative or friend” when they have lost a companion.
Happy herself is the first elephant to pass the “mirror self-recognition-test”,
meaning she was able to recognize her reflection in the mirror as herself. Passing that test
is “thought to correlate with higher forms of empathy and altruistic behavior.” Those
qualities suggest Happy has a level of autonomy, intelligence and understanding that could
make suffering particularly acute. She knows that Grumpy died, she understands that her
life progresses sequentially, and she is aware that she is alone.
Next—again taking the information Happy has submitted as true, and granting every
possible reasonable inference in her favor—what do we know about her confinement? We
know that elephants are “social species who suffer immensely when confined in small
spaces and deprived of social contact with other members of their species.” Isolation leads
to depression, boredom, aggression, and a failure to thrive, and human caregivers cannot
substitute for the complex relationships that elephants like Happy are able to build with
peers from their own species. Bolstering the scientific research, videos of Happy show her
engaging in just five activities or behaviors: dusting, grazing on grass, standing and facing
the fence or gate, swinging her trunk, and standing with one or two feet lifted off the
ground, which could possibly be to ease the weight off painful, diseased feet. Of those five
activities, only two—dusting and eating grass—are considered normal. In the wild,
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elephants are active more than 20 hours a day, traversing miles and miles to feed
themselves, to find friends and to mate. When they are confined, they can develop arthritis
and osteoarthritis. The favorable inference to draw, then, is that Happy’s habitation at the
Bronx Zoo—a living environment that has kept her without any engagement with other
elephants since 2006 and that is a miniscule fraction of the size of elephants’ typical
environments—is causing her deep physical and emotional suffering because it is so
unnaturally different from conditions that meet the needs of elephants (see Martha C.
Nussbaum, Working with and for Animals: Getting the Theoretical Framework Right, 94
Denv L Rev, 609, 624 [2018] [“Each creature, then, deserves ethical consideration for what
it is, and a kind of constitution that specifies what harms it should not be permitted to
suffer-not in terms of its likeness to humans or its possession of some least-common-
denominator property, but in terms of what it is itself, the form of life it leads”]).
Finally, given what the information Happy has submitted reveals about how she
experiences the world as an elephant and about her environment at the Bronx Zoo, has
Happy made a prima facie showing of possible unjust confinement that grants her a full
hearing to decide the merits of her habeas petition? She has. If we accept all of the
information as true, Happy is a being with highly complex cognitive, social and emotional
abilities. She has self-awareness, social needs and empathy. She also comes from a wild,
highly social species whose bodies and minds are accustomed to traversing long distances
to connect with others and to find food. Happy has established a prima facie case that her
confinement at the Bronx Zoo stunts her needs in ways that cause suffering so great as to
be deemed unjust.
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The majority is gravely concerned that allowing Happy to have her habeas corpus
petition adjudicated on the merits “would have an enormous destabilizing impact on
modern society” (majority op at 12). The majority worries that allowing Happy to invoke
habeas corpus would risk the “disruption of property rights, the agricultural industry
(among others), and medical research efforts” and “followed to its logical conclusion . . .
call into question the very premises underlying pet ownership, the use of service animals,
and the enlistment of animals in other forms of work” (id. at 12-13). Certain amici have
contended that allowing Happy to present the merits of her habeas corpus claim would end
dairy farming, result in neighbors filing habeas petitions to free domestic dogs and cats,
and put children with ant farms to the task of responding to habeas petitions in court. These
scenarios are so facially preposterous that they hardly deserve a response; it is also difficult
to know which of many possible responses to offer.
First, the majority’s parade of horribles would arise from “a ‘sweeping
pronouncement[]’ of nonhuman animal personhood” (id. at 15). But I reiterate: Happy is
not a person. Happy is an elephant. Elephants do have an interest in liberty and have been
granted rights against inhumane treatment. Whatever rights and interests Happy may have
do not tell us anything about the rights my dog has. The majority complains that granting
legal personhood and liberty rights to Happy “would not be an incremental step in ‘the
slow process of decisional accretion’” regarding the scope and flexibility of the writ of
habeas (id. at 12), but granting a single elephant—not the whole animal kingdom—the
right to a full hearing on a writ of habeas corpus is about as incremental as one can get.
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Second, Happy is not a domestic animal; she is a wild animal. A domestic animal
would not be able to make out a sufficient prima facie showing, principally because
domestication is part of its makeup, and domestication implies confinement. In the case
of domestic animals, by definition, their habitation with their owners is something aligned
with their genetic dispositions (see Natasha Daly, Domestic Animals, Explained, National
Geographic [July 4, 2019], available at
https://www.nationalgeographic.com/animals/article/domesticated-animals [accessed
June 9, 2022]; Brian Hare and Vanessa Woods, We Didn’t Domesticate Dogs; They
Domesticated Us, National Geographic [March 3, 2013], available at
https://www.nationalgeographic.com/animals/article/130302-dog-domestic-evolution-
science-wolf-wolves-human). Domestic animals are genetically distinct from their wild
ancestors or cousins, a process that takes generations of selective breeding (see Daly,
supra). They are fundamentally different from animals like Happy.
Third, if an ant in an ant farm could establish the same showing that Happy has, the
ant would be entitled to a hearing. But at least based on present knowledge, an ant cannot
possibly make such a showing. Happy is not a human, and an ant is not an elephant. As
illustrated by my analysis of whether Happy made a prima facie showing that a writ of
habeas corpus should issue to entitle her to a merits hearing, whether a being can invoke
habeas is highly case-specific. I first asked, “what does the information submitted by the
petitioner tell us about the petitioner?” In Happy’s case, it showed us she is extremely
cognitively complex and comes from a highly social, empathetic species of wild animals.
Those qualities of elephants make them unique in the animal kingdom, meaning the answer
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to the question for earthworms, domesticated pets, service animals and many animals
subject to medical research, would be entirely different. The second question I asked was,
“what does the information submitted by the petitioner
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