Nicholas Goldberg: Do animals have basic legal rights, just like humans?

Happy is an Asian elephant who has lived in captivity at the Bronx Zoo since 1977.

In 2018, lawyers from a group known as the Nonhuman Rights Project went to court demanding his release to an elephant sanctuary. They argued that “autonomous and extraordinarily cognitively complex” animals such as elephants and chimpanzees should not be viewed as mindless beasts that humans can capture, imprison and exhibit at will. Instead, they should be treated as “legal persons” entitled to certain basic legal rights, including the right to “bodily liberty”.

It was a bold argument, but it didn’t fly. In mid-June, New York’s highest court dismissed itstating no, elephants aren’t actually people, and while they deserve to be treated with “proper care and compassion”, they don’t have legal rights like humans.

Opinion columnist

Nicholas Goldberg

Nicholas Goldberg was the editorial page editor for 11 years and is a former editor of the Op-Ed page and the Sunday Opinion section.

But the Nonhuman Rights Project is not giving up. Less than a month later, he moved on to the next battlefield – in California, where he recently asked a Superior Court judge to order the Fresno Chaffee Zoo to explain why it is “illegally imprisoning” three elephants.

Perhaps California will prove more sympathetic to the group’s arguments, which raise deep moral and ethical questions about humans’ interaction with the natural world.

The California petition was filed on behalf of Nolwazi and Amahle – two African elephants born in a 54,000-acre national park in Swaziland and taken from their natural habitat to zoos in the United States – and Vusmusi, an African elephant. Africa Born at San Diego Zoo Safari Park. All three are currently in captivity in Fresno.

The sweeping notion the lawyers are re-emphasizing is that the three elephants are entitled to habeas corpus rights, which have historically only been granted to humans. Habeas corpus, with roots dating back nearly 1,000 years in common law, is a legal principle that allows a prisoner to be brought before a court to determine if they are lawfully detained and seek release.

If the request is accepted, the zoo will be ordered to explain and justify the detention of the elephants. Then the court would decide if they should be released and sent to a sanctuary.

Jake Davis and Monica Miller, staff attorneys for the Nonhuman Rights Project, seemed optimistic, saying that with each new case they gained a bit more traction and believed their argument was entering the mainstream.

I know I’m starting to be more sympathetic to what originally felt like an odd position.

The case rests on a number of arguments: that captivity is deeply harmful to elephants, that the organization has the right to petition on behalf of elephants, and that the right to habeas corpus must evolve and expand to keeping pace with “science, justice, reason, ethics, equity…and societal progress.

The petition notes that the Fresno Chaffee Zoo was recently appointed one of the “10 Worst Elephant Zoos in the United States” by the group In Defense of Animals.

Of course, no one is claiming that elephants are actually humans – just that they are “situated the same” as people for habeas corpus purposes. They are only entitled to “person” in the legal sense, just as corporations and ships can be persons in the eyes of the law.

In what sense are elephants in the same situation as humans? They have long-term memories, learning abilities, empathy, and self-awareness.

“They live as families; they protect their young; they mourn their dead; they don’t eat other animals, and they don’t cage, isolate, or torture them,” writes Harvard historian Jill Lepore in the Atlantic. “They seem to understand themselves as individuals, with thoughts that differ from the thoughts of other creatures. They suffer and they understand suffering.

The New York and Fresno cases are part of an ongoing, years-long campaign to grant legal rights to nonhuman animals. An earlier case involving the habeas corpus rights of chimpanzees also reached New York’s highest court, where it failed but received strong words of support from a judge.

“Is an intelligent non-human animal that thinks, plans and enjoys life like human beings entitled to the protection of the law against arbitrary cruelty and forced detention inflicted upon it?” writes Judge Eugene Fahey in 2018. “It is not simply a matter of definition, but a profound ethical and political dilemma that demands our attention.”

Then came Happy’s house. This time there was of them sympathetic judges — a huge step forward. In his dissent, Judge Rowan D. Wilson noted that “the rights we confer on others define who we are as a society”.

I don’t mean it’s a simple problem. There are many counter-arguments.

The Bronx Zoo noted, for example, that Happy was held in accordance with all laws and accepted standards of care.

The New York Court of Appeals noted that habeas corpus was intended to protect people and had never been applied to a non-human animal.

Broadening the definition would lead, according to the court, to “a maze of questions”. This would challenge the very premises that underlie not only farm animal ownership and laboratory testing of animals, but also pet ownership.

“What about dolphins – or dogs? What about cows, pigs or chickens – species regularly confined in conditions far more restrictive than the Bronx Zoo’s elephant enclosure? asked Chief Justice Janet DiFiore in the majority opinion.

And I can’t help but wonder what makes chimpanzees and elephants entitled to legal protections that are not available to goldfish? Is it “cognitive complexity” that should make the difference? Or consciousness? The ability to suffer?

And if all animals have the right to sue, well, as a Pepperdine teacher said: “Legal persons cannot be eaten.”

I don’t claim to know the answers. But human “exceptionalism” is simply not a compelling argument. Why do we believe that just because we dog dominate the world around us and mistreat our fellow human beings, should we?

For too long, we have saved our consciences with lukewarm animal welfare laws that allow us to feel magnanimous and benevolent – rather than recognizing our moral obligations and acknowledging that other living creatures with whom we share planet also have rights.

@Nick_Goldberg