Happy the Elephant Decision

 

The attempt to obtain state habeas coverage for "Happy" the Elephant (a dissent flagged familiar Pelham Parkway landmarks, she now residing at the Bronx Zoo) failed in the New York Court of Appeals 5-2. The opinion was under twenty pages. The dissents were over eighty pages together.

It was always a longshot and I'm inclined to agree with the result. I think it sensible to have some separate legal protection for at least some animals. The issue here is the current law and even a dissenter noted Happy is not a "person" as a human is.  The idea was that the law still allows habeas relief to protect her liberty and well being.  It's tricky to split it like that.

I do think the rules probably should come legislatively or perhaps as part of the state constitution. One problem there is if that will happen, but this legislature seems like it might be able to do it.  There are laws in place to protect the well being of animals and third parties in place to protect them. 

[This issue is covered here, to add something, and reasonably pushed back some as limited in practice. Surely.  A key issue here is going to be the strength of the enforcement of limitations, which very well might apply even if you have habeas.  After all, I bet a case can be made that even citing current regulations in place, Happy's confinement might not meet them.  Clearly, that is true in various other cases. It is not enforced properly.]

Years back, I wrote a book about my views of the U.S. Constitution and argues that non-human animals should be treated as "persons" in some sense.  I also suggested maybe a fetus can be treated as some sort of person though it still would not deny the rights of pregnant persons. There is a reference to "persons" being counted in 14A, sec. 2, but corporations are treated as "persons" in some sense. So, that all by itself does not mean some sort of "personhood" can be expanded here. 

And, one major thing there are lines. Why should "domesticated" animals be special?  How special?  Note this from a dissent:

Although not true for all nonhuman animals, there are some with advanced cognitive skills, who display self-determinative behavior, with an awareness of death and a capacity to grieve. These animals are autonomous beings.

It is obvious that Happy is unlike the domesticated animals that now live, at times comfortably, among humans, such as dogs, cats, horses, chickens, and hamsters. 

So, you have some attempt to separate a "wild" animal like Happy (what if they are in a preserve? how regulated is enough before they are not truly "wild"?), but only so far.  And, being honest, you have that qualifier about some domesticated animals ("at times").  What about others?  And, elephants in some fashion lived among humans since ancient times.  Is the judge aware, e.g., of Hannibal and his elephants?  

The authors of a book on animal rights and abortion joined a brief in support of the habeas effort.  I asked, and the person behind Dorf on Law said there will be a response to the opinion.  So, I will check that out and perhaps add an update.  But, I think it would be a stretch to apply the rule to Happy.  A move to have a primate get habeas protection probably would be different for me.  The line between an ape and human is close enough.

I appreciate the effort and again think it makes sense to have some independent legal protection for animals. Years back, Justice Douglas infamously wanted to give "trees standing," but he really was interested in those who benefited from nature.  I did not read his famous dissent as suggesting nature inherently has interests of their own.  

Finally, let's say Happy got his habeas rights.  The opinion had a lesser component attacking the right to liberty covering moving him to a better location.  I think that sounds wrong -- if it was a human, a better location in confinement would matter.  But, Happy is not being held by a circus.  She is held by a zoological park.  It is an uphill battle to have a court override such informed judgment.  I say this agnostic about it here.  

ETA: Here is the Michael Dorf response that I referenced.  

Reference is made that "rights were denied to children, women, and enslaved persons," but where were they completely so barred?  Was there a time in New York where women had no habeas rights at all?  Even slaves are called "persons" in the Constitution and in various antebellum laws, at least technically, you could be arrested for certain harms to a slave.

The development of common law is a matter of reference and he's right that the difference between non-humans and humans only goes so far. But, there are differences, especially regarding precedent.  Also, to me there is a difference between exceptions (developmentally impaired) and the general.  The law recognizes the general in various respects. In GENERAL, an elephant is different in our current legal traditional than humans.  

The essay references the remedy issue and basically agree.  The slippery slope issue is not really addressed, except to note that sort of thing always happens.  But, especially Michael Dorf surely does not think an elephant specifically is different enough from a range of other animals.  The "domestic" v. "wild" split to me is artificial.  I am left nodding here:

Ultimately, the answer to the slippery slope is to persuade enough people—including ordinary citizens, legislators, and judges—that they should not fear sliding down the slope, that at the bottom of the hill they will find justice.

And, parrots?!

NhRP lawyers provided the court the opportunity to draw a line between “genius” animal species like elephants, great apes, dolphins, whales, and parrots, on one hand, and other animals on the other

I did read a book on a study of parrots, and they apparently do have high intelligence, including the ability to learn a lot of words. But, surely, dogs do as well.  The move there was again to note that they have been domesticated.  Dorf suggests this line somewhat here:

My brief with Professors Colb and Tribe emphasized that Happy’s confinement denies her the ability to exercise her capacities as an elephant. 

I think there is some merit to that approach and think they should have had a hearing at least to get a full understanding of the strength of the case.  I question the limits of that idea if a dog is not give habeas rights in various contexts.  If a dog is abused, their abilities to be a dog are limited too.  It is not like Happy can't be an elephant at all in captivity.  

There is always line drawing and slippery slope arguments at some point tend to be more academic wordplay exercises than honest.  Basically, some lines are drawn, based on judgment calls.  On that front, again, I can see a court drawing the line to primates.  Elephants?  Seems a bit arbitrary to me and even if some of the details are bad, I still am wary about a different bottom line.  

I probably would at least concur in part.