Female elephant Ramba enters a transportation pen for her transfer from a Chilean zoo to an animal conservation sanctuary in Brazil, in Rancagua, Chile October 15, 2019. (Posibl./Handout via Reuters)

Having failed to have a court declare chimpanzees to be persons entitled to habeas corpus protection, the Nonhuman Rights Project next tried the same thing with an elephant named Happy, that — not who — is held in her own pen at the Bronx Zoo due to behavioral conflicts with other elephants.

This case also just failed. But before we applaud and say, “Well, of course,” it is clear that New York Supreme Court (the name of the trial court in that state) Justice Alison Y. Tuitt only dismissed the case because she felt bound by precedent.

Justice Tuitt clearly wanted to declare Happy a “person.” Indeed, she took the time to quote from a non-binding statement in the above-referenced chimpanzee case by Court of Appeals Associate Judge Eugene M. Fahey, in which he mused:

To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others.

(I criticized Judge Fahey’s comments here.)

Alas, for Justice Tuitt’s preferences, Fahey’s statement was mere dicta, a non-binding personal opinion that she could not rely on to issue a writ of habeas corpus. Still, it provided a splendid pretext for her to add her voice in support of the Nonhuman Rights Project so it could use her opinion in its advocacy memes (which it did quickly). From Tuitt’s ruling:

This court is extremely sympathetic to Happy’s plight and the NhRP’s mission on her behalf. It recognizes that Happy is an extraordinary animal with complex cognitive abilities, an intelligent being with advanced analytical abilities akin to human beings… The Court agrees that Happy is more than just a legal thing, or property. She is an intelligent, autonomous who [note the “who”] should be treated with respect and dignity, and may be entitled to liberty.

This kind of thinking drives me nuts. First, we don’t treat animals as mere things or as being akin to inanimate objects. After all, we don’t have granite welfare laws. We don’t have beach-sand welfare laws. But we do have animal welfare laws — precisely because we understand that animals are sentient, have emotions, and can feel pain — meaning, as a matter of human exceptionalism, we have the duty to treat them humanely based on their capacities and levels of sentience. Indeed, Justice Tuitt referenced some of those laws in her opinion.


Second, even if Happy had been declared a person, she would not have been granted “liberty.” Rather, her custodial care would simply have been transferred from the zoo to an elephant sanctuary. Happy would have had no choice in the matter. She would not be free or autonomous.


Third, if animals obtained “legal standing” to sue, it would enable the most radical and extreme animal rights advocates to weaponize the courts as a potent means of advancing their obsessions at the expense of human needs and courtroom resources. The animals supposedly doing the suing would be utterly oblivious.

I have been often accused of not caring whether animals are abused. That’s baloney. Animal abuse is inexcusable. Animal welfare is a noble cause.


But we shouldn’t elevate animals artificially to a co-equal moral status with us, because that would actually reduce our own moral status without warrant to theirs. Or to put it another way, if we ever come to see ourselves as merely another species of animal in the forest, that is precisely how we will act.

Meanwhile, these kinds of cases won’t stop until judges begin to sanction groups for wasting court resources with large financial penalties.


Unless and until that happens, these “animals are persons” cases will continue to be filed. Remember, not every judge is as circumspect as Justice Tuitt. It only takes one judge wanting to make history to turn the human/animal relationship upside down — and that’s precisely the jurist animal-rights activists are hoping to find. My sense is that they are getting close.