Happy has lived in New York City’s Bronx Zoo for years. To visitors, she’s a lone Asian elephant. But to a team of animal rights lawyers, she’s a prisoner.
When this episode first came out, lawyers had petitioned the New York State Court of Appeals for a writ of Habeas Corpus; a legal maneuver that could have freed Happy and set a new precedent for animal rights. But in a mid-June 2022 ruling, the court decided: Happy isn’t going anywhere.
You can hear a quick update to the episode episode below.
Because this is a case that deals with animals AND the law, two podcasts from New Hampshire Public Radio teamed up to take it on: Outside/In and Civics 101. We always hear about the animal rights movement… but what rights do animals actually have?
Transcript
Nate Hegyi: Before we start… should all introduce ourselves. I’m Nate.
Nick Capodice: Nick.
Hannah McCarthy: Hannah.
Nate Hegyi: Great. Now I want you both to picture this: It’s a Wednesday afternoon in Albany, New York.
Nick Capodice: Hold on, Nate. One more time. It's Albany.
Nate Hegyi: Ahhh. Albany. Albany. Albany. It’s a Wednesday afternoon in Albany, New York. A bunch of lawyers are gathered in the state’s court of appeals.
Nick Capodice: I do so love a good “gathering of lawyers” story…
Nate Hegyi: Attorney Monica Miller makes her way to the PODIUM. And she looks a little nervous standing in front of this big row of judges.
Monica Miller: Yes, Good afternoon your honors, may it please the court.
Nate Hegyi: But then she just launches into her spiel. She represents a 64-year-old who she says has been illegally detained in a prison in the Bronx for years. Miller’s client only has a first name. Happy.
Monica Miller: If she hadn’t been kidnapped from Thailand as a baby, Happy could be a matriarch herself. But instead of leading her sisters and cousins and grandchildren hundreds of miles through ancient migratory routes.
Nate Hegyi: So, Miller wants the court to grant Happy freedom…. But there’s a hitch because… as you might be able to guess by now... Happy isn’t a person.
Hannah McCarthy: I had a feeling that was coming.
Nate Hegyi: Right? She’s an elephant. Living in the Bronx Zoo.
Tour Guide: We are now about to see our Asian elephant, Happy.
Nate Hegyi: But Miller and a team of lawyers are arguing that Happy isn’t just an animal in a zoo. That she’s actually a legal person with rights to freedom and liberty. One that’s being held in a prison. And this is just the latest case in an ongoing fight to extend basic human rights to animals. And because this is a case that deals with animals and the law, two podcasts from New Hampshire Public Radio are teaming up for this special crossover episode. I’m Nate Hegyi with Outside/In – we cover nature and the environment.
Hannah McCarthy: I’m Hannah McCarthy.
Nick Capodice: I’m Nick Capodice.
Hannah McCarthy: We are the hosts of Civics 101. Basically we explain how government works.
Nick Capodice: And we always hear about the animal rights movement, but, Nate, what rights do animals actually have?
Nate Hegyi: We’re going to dive into that question, and how this case about an elephant in New York, could have massive consequences for zoos, farms, and even your own cats and dogs.
Nate Hegyi: Hannah, Nick, before we dig in, I need you to meet a friend of mine. Her name is Gilly and she is a three-legged dog. Hi, Gilly!
Hannah McCarthy and Nick Capodice: Oh Hi Gilly!
Nick Capodice: Do you ever call her tripod because she’s tri-pawed?
Nate Hegyi: We’ve definitely called her tripod!
Hannah McCarthy: Oh that’s so cute.
Nate Hegyi: So to your knowledge right now, does this sweet little dog Gilly have any legal rights?
Hannah McCarthy: Well, so I know that animals are pretty much considered property, but we do have a bunch of federal protections for animals. I know you can't beat her or, you know, withhold food and water. You can't make Gilly dog fight. Right? That's a felony in all 50 states.
Nate Hegyi: So I just want to be clear here. Hannah, I would. I would never beat Gilly or make her get into a dog fight.
Nick Capodice: Or withhold food and water from her.
Hannah McCarthy: Yeah, but you can't abuse her, right?
Nate Hegyi: I can't abuse her. Yeah. And so these rights that you're talking about, they're called anti-cruelty laws. And, these are one of the biggest protections that animals like Gilly have right now in the Western world. They essentially say you can’t hurt or abuse certain animals. And they really got popular in the 19th century. Abolitionists were questioning slavery, the treatment of Indigenous people, child labor… and animal welfare. And we saw a lot of these anti-cruelty laws pop up across the country. In 1866 the New York State legislature established the American Society For the Prevention of Cruelty to Animals also known as… Nick?
Nick Capodice: yeah, I’m going to go with the ASPCA
Nate Hegyi: yes! The ASPCA.And they actually had people with badges and uniforms walking the streets of New York City and breaking up cockfights and stopping folks from being mean to their horses.
Nick Capodice: That’s fantastic!
Nate Hegyi: It was a big cultural shift for this country. Treating animals not as brutes or beasts, but as things deserving of some gentleness and kindness. Nowadays, though, one of the big critiques of anti-cruelty laws is that they don’t go far enough. They’re also biased… in the sense that the prevailing human culture gets to decide which animals receive kindness… and which animals we’re cool with hurting and killing. Like, I’ll give the example of cats. In the 19th century, cats were on the crap list.
Nick Capodice: Cats, why were cats on the crap list?
Nate Hegyi: Because they killed, and still do kill, beautiful songbirds. And Some of the same folks saying that we should protect animals were also arguing we should kill all the cats!
Hannah McCarthy: That is so bizarre. But of course, you know, they are, witches familiar, so…
Nick Capodice: Yeah. And they like, didn't they like suck the breath out of children?
Hannah McCarthy: Yes, Cats would suck the air out of you in your sleep.
Nate Hegyi: Well there you go. That's another reason. Not only do they kill beautiful songbirds, but they also suck the breath out of children. I mean, that's that's really terrible.
Hannah McCarthy: For the record, I love cats.
Nick Capodice: That makes one of us.
Nate Hegyi: And obviously, nowadays, cats are in that protected class of cute, cuddly animals along with dogs or horses. You can’t abuse them. But at the same time… many of us are still comfortable hurting other animals like cows or chickens at a factory farm. And that’s where I want to bring in Maneesha Deckha who is a law professor at the University of Victoria in British Columbia. And she’s actually pretty critical of these anti-cruelty laws for that very reason.
Maneesha Deckha: Really what you have is a legal situation where cruelty is only ever thought by legal actors to maybe apply to kind of culturally aberrant practices. So like putting your cat in the microwave.
Hannah McCarthy: Did she just say putting a cat in a microwave?
Nate Hegyi: Yes she did, because she’s making the point that obviously putting a cat in the microwave would be considered animal cruelty. But cutting off a chicken’s beak and putting it in a small cage with tons of other chickens: not considered animal cruelty.
Maneesha Deckha: Even though the level of pain and suffering to that animal can be the same as what happens to a cat in a microwave.
Nick Capodice: Do chickens, cows and other livestock… Do they have any legal protections or rights at the federal level, like the cuddly animals do?
Nate Hegyi: Ehh… not really. I don’t know if you would call this legal “protection” but there is a law that requires livestock to be afforded a quick and efficient death. But it also doesn’t include turkeys or chickens. And all livestock animals are exempted from the country’s big anti-cruelty law… the federal Animal Welfare Act… along with mice and rats.
Hannah McCarthy: Now, what about wild animals? Have we protected them in any way?
Nate Hegyi: Another meh for that one. It’s a mixed bag. We have the Endangered Species Act, which gives some habitat and hunting protections to imperiled species like grizzly bears. And wild horses on federal lands have special legal protections – we can’t hunt them. But at the same time you can still go out and buy one of those sticky traps for a field mouse, or buy a .22 and pick off squirrels that are trying to steal from your birdfeeder.
Nick Capodice: Right, right. And you can, like, set traps for foxes and coyotes that are arguably cruel and hurt them, but it's not illegal.
Nate Hegyi: Exactly. And Maneesha argues that these animal welfare and conservation laws aren’t really rights… at least as you and I have them.
Maneesha Deckha: Which means the right not to be killed by somebody else for their purpose or the right not to have your body used for someone else's profit. And that’s how animals are used.
Nate Hegyi: And that brings us to the latest battlefront. A slow grind towards granting animals something called personhood. Maneesha says that Western common law pretty much divides the world into two categories. You’re either a person or you’re a thing.
Maneesha Deckha: so either as a rights holder. So then you get to typically be seen as a person or you are the object of rights.
Nate Hegyi: And the big lift for animal rights activists is convincing judges that an animal isn’t a thing that we humans get to lord over. Instead, that it’s a person. At least in a legal sense.
Nick Capodice: This is an argument we've talked about a lot on our show. It's been used in the past to give basic human rights to women, black Americans, indigenous people. But in this case, I feel like it could get pretty fraught pretty quickly when activists start comparing the oppression of animals to the oppression of humans.
Nate Hegyi: Right , that was one reason why the first case trying to establish personhood for animals in the United States failed. And that story is coming up right after the break.
Nick Capodice: And hey, since we’re taking a little break here now is the perfect time to sign up for our free Civics 101 newsletter. It’s called Extra Credit. We pour our heart and soul, and a fair number of political dinner-party factoids into this thing, so you can sign up at our website, Civics101.org, and we’ll put a link in the show notes.
Nate Hegyi: Hey. you’re listening to a special crossover episode between Outside/In and Civics 101. I’m Outside/In host Nate Hegyi.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And I'm Nick Capodice. We're from Civics 101.
Nate Hegyi: All right. So we’re going to talk about Tommy.
ABC News: 26-year-old Tommy may not sound like the greatest catch. He’s a retired circus performer, living alone behind a trailer park, watching TV all day and night.
Nick Capodice: Oh, that reporter just loved that joke, did he? Oh, he's going to get everybody in America.
Nate Hegyi: So, that was ABC News, and as you can probably guess again, Tommy isn't a human; he’s a chimpanzee. And he was actually in this movie in the late eighties called Project X with Matthew Broderick….
Project X: These are monkeys! I don’t know anything about monkeys!
Nate Hegyi: But by the 2000’s… Tommy was living with a family in New York State in essentially a jail cell with palm trees painted on the walls. Just Tommy and a color T.V. playing cartoons.
Nick Capodice: Oh, that’s horrible.
Hannah McCarthy: Yeah, that’s just, yeah.
Nick Capodice: After a long and illustrious film career, you know?
Nate Hegyi: So in 2013 this animal rights law firm called the Nonhuman Rights Project heard about Tommy’s situation. And one of their main goals is to establish personhood for animals. And if you’re a lawyer trying to push a new legal precedent like this, you have to look for the perfect case to carry it. And Tommy’s case looked pretty dang good.
Hannah McCarthy: How so? What differentiates Tommy’s case from any other case?
Nate Hegyi: Well, there were three big reasons. First, he’s a chimp. Highly intelligent, an ape, so its in the same taxonomic family as humans. Chimps remind people of people and the thought is that could engender more sympathy with both the courts and with the public. And speaking of the public, the second reason why it was a good case is that Tommy lived in New York State which is a major media market. That means Tommy’s case could get a lot of attention. That’s important if you’re trying to change hearts and minds about how we treat animals, right? And the third reason was that Tommy was in captivity. Which means the lawyers could petition the state for something called a writ of habeas corpus. Alright, Civics 101 friends. What is that?
Nick Capodice: Hannah, you want to take this one?
Hannah McCarthy: I think I can.
Nick Capodice: First. Nate, I wonder if you can do this. Can you, like, get some sort of, like, a medieval soundtrack going on in the background? Like some swords clanging and people being like, Ho there!
Nate Hegyi: Can I just do it with my own voice? Cling! Cling! Cling!
Nick Capodice: Hannah What time are we talking about when it comes to the first writ of habeas corpus?
Hannah McCarthy: Do you really want me to do this?
Nick Capodice: I do.
Hannah McCarthy: The high middle ages!
Nick Capodice: I'm sorry, Nate. This is a long running joke. Basically, just between the two of us. Hannah did an episode on Magna Carta for our founding documents series, and she opened with the line, the high Middle Ages. And we haven't stopped laughing about it for three years.
Hannah McCarthy: Okay, so, the idea of habeas corpus is in Magna Carta. That’s from the high Middle Ages, and it became a part of English common law after that point. The expression later found its way into Article one, Section nine of the U.S. Constitution. I'm going to give you the quote here. “The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it.”
So what does that mean?
What habeas corpus does is protect people from unlawful or indefinite imprisonment without a hearing.
Nate Hegyi: Habeas Corpus is also a great way to establish personhood. Because only quote unquote legal persons are eligible. If Tommy is granted habeas corpus - he could become a legal person. Which means he’d have the human right of bodily liberty. He could go free.
It also means he could be eligible for other rights, and not just be considered an object or property. Tommy’s case is the first of its kind in the United States. The lawyers? They’re feeling good about their chances.
Kevin Schneider: We felt pretty strongly that just the wealth of science about the cognition and behavior of chimpanzees would really open doors.
Nate Hegyi: So that’s attorney Kevin Schnieder. He’s the executive director of the Nonhuman Rights Project. And side note - When we were talking HIS three-legged rescue dog kept walking through his dining room making a bunch of noise.
Kevin Schneider: I might just have to stop for a second because my dog is loudly drinking water behind me.
Nate Hegyi: But anyways, in building the court case for Tommy the chimp, the nonhuman rights project pointed back to cases from two or three hundred years ago.
Kevin Schneider: Where women, children, certainly African-Americans, slaves, Indigenous peoples were treated in horrendous ways. And when they tried to make claims to courts, they were routinely told, you don't have rights, you are not a person. You are something less than a full person in the eyes of the law.
Hannah McCarthy: Ok, wait, wait, wait. Comparing the plight of enslaved black Americans, for example, to that of apes has a really racist legacy in the West.
Nick Capodice: Yeah, basically 19th and 20th century eugenicists fabricated grotesque racist hierarchies with black people being labeled closer to apes than white people. And in the 1900s, there were like literally humans in zoos. The Bronx Zoo, which is part of our story today. The Bronx Zoo had a Congolese teenager on display in the monkey exhibit in 1906.
Nate Hegyi: That is absolutely terrible. And this is where the Nonhuman Rights Project got a lot of flack by both judges and the media. I mean, take a listen to this back and forth between a black reporter and the group's white founder, Steven Wise. It's from this 2016 HBO documentary called Unlocking the Cage.
Reporter: And of course, those equating chimpanzees and apes and stuff like that, obviously hideously. So with black people and say, well, wait a minute, you know, you know, chimps are chimps. They are not humans. Steven Wise: Obviously, we're not saying we're not saying that a chimpanzee is a human and we're not equating chimpanzees with slaves.
Nate Hegyi: Still, the Nonhuman Rights Project couldn’t shake those connotations. Steven Wise got called out by a judge during one of Tommy’s hearings.
Unlocking the Cage: I keep having a difficult time with you using slavery as an anology to this situation. I just have to tell you that. Steven Wise: Let me suggest this, that by referring to human slavery we are no way comparing Tommy to any. Judge: I understand but my suggestion is that you move in a different direction for your remaining two minutes.
Nate Hegyi: And the courts, they ended up rejecting Wise’s petition for a few different reasons. One of them was this – a chimp isn’t a person because they can’t bear legal duties. They don’t have societal responsibilities and they can’t be held legally accountable for their actions. Although an Appeals Court judge later issued a separate opinion that really challenged that idea.
Kevin Schneider: he pointed out quite correctly that many do not have the ability to take on legal duties. If someone is a child, if an older person has dementia or Alzheimer's or someone's in a coma, they don't have the ability to take on legal duties. But we certainly don't take away their rights.
Hannah McCarthy: That, to me, seems like a far better argument to make before a judge, Right? As opposed to bringing up enslaved people.
Nate Hegyi: Absolutely. Regardless, Tommy’s case had hit a dead end. But that same year, the nonhuman rights project began pursuing a different case, one that would allow them to move away from the racial implications of comparing apes and humans.
Hannah McCarthy: Is this Happy?
Nate Hegyi: Yes, Happy the elephant.
News Montage: An animal rights group is suing the zoo, claiming the 40-year-old elephant…
Nate Hegyi: So as we heard… Happy is a middle-aged elephant living by herself in the Bronx Zoo. which is tough because elephants are these really social, complex creatures. And Happy in particular is one smart cookie. She was the first elephant in the world to pass this thing called the mirror recognition test.
Nick Capodice: What is the mirror recognition test?
Nate Hegyi: So I’ll let Kevin explain:
Kevin Schneider: they marked her head with an X and then put her in front of a mirror. And if the subject stands in the mirror and, you know, touches the mark on the head while they're looking at themselves in the mirror, but they're touching, obviously, themselves, that actually means quite a lot. It means that they're able to appreciate that this image that they're looking at is actually themselves. And that takes quite a bit of mental machinery, a surprising amount.
Hannah McCarthy: So she recognized herself in the mirror.
Nate Hegyi: Right! Which… humans, we don’t have that level of self-awareness until we are about two years old. So they have this really smart, socially complex elephant. And the nonhuman rights project files a writ of habeas corpus saying Happy is imprisoned in the Bronx Zoo. They want her declared as a person and released to a special wildlife sanctuary in Tennessee. This case has been slowly leveling up through the New York State courts over the past four years. Which brings us to May 18th.
Court of Appeals: Here ye, here ye, here ye…
Nate Hegyi: It’s a warm spring day in Albany and oral arguments are just beginning at the New York State court of appeals.
Court of Appeals: Judges of the court…
Nate Hegyi: And by the way, I’ve never watched a court of appeals hearing before and dang, those judges go hard! Happy’s lawyer, her name is Monica Miller. And she’s just getting into her argument when one of the judges straight up interrupts her.
Judge Rivera: Counsel, counsel… I’m on the screen. Good afternoon.
Nate Hegyi: So all of these judges are just lobbing questions. But they seem stuck on two points. The first one is that… bottomline… Happy isn’t a human being. When Happy’s lawyer starts pointing back into history at cases where marginalized humans weren’t considered legal persons, she’s stopped dead in her tracks.
Judge Rivera: But even in those examples, they’re all human beings. The court is recognizing the humanity in each of those cases. How can the court apply habeas when we’re not talking about a human? How do we make that move from one point of the spectrum to this other point that you’re arguing for.
Nate Hegyi: Happy’s lawyer pushes back and says species membership isn’t the right marker for deciding whether something is deserving of a basic human right. Instead, it’s intelligence and autonomy.
Monica Miller: And we’re not talking about making basic choices like make a noise or don’t make a noise, or choose this food or that food. We’re talking extensive communication.
Nate Hegyi: The other sticking point for the judges appeared to be… what kind of pandora’s box does this open if Happy wins and gets declared a person with this basic human right?
Nick Capodice: Right. And this is what I've heard about regarding this case, the slippery slope argument like, well, what's next? You know, are we are none of us ever going to eat meat again?
Nate Hegyi: Right. Or like, what about dogs?
Judge: So does that mean that I couldn’t keep a dog? I mean, dogs can memorize words.
Hannah McCarthy: And what about, like, pigs at a factory farm, right? Pigs are highly intelligent and emotionally complex animals. So do they get a right to freedom if Happy wins?
Nate Hegyi: Well, That’s what industry groups representing zoos, farms and veterinarian associations all worry about. Lawyers for all of these groups have written amicus briefs urging the court of appeals to reject Happy’s case. The farm lawyers, they’re worried about economic and social upheaval. The vet lawyers are worried that if animals gain personhood, then it could destroy the idea of ownership and that people might not be able to make medical decisions for their cats and dogs.
Nick Capodice: But Nate, if Happy wins this case, that doesn't mean that all the animals are going to be immediately freed from zoos and farms. That's just not how common law works. Right?
Nate Hegyi: Like, if Happy actually wins – which by the way even her lawyers think it’s a total longshot – but if she does win, technically only Happy will receive personhood and this basic right to liberty. So here’s Kevin Schnieder again.
Kevin Schneider: So it won't immediately free any other animals, not even other elephants. You know, there are other zoo elephants in New York. That being said, I think it would make, certainly make it a lot easier to make an argument on behalf of other elephants.
Nate Hegyi: So they’re not buying the whole slippery slope argument, but at the same time - the whole point of a case like this is to create some sort of pathway… because right now, all nonhuman animals are objects in the eyes of the law. And that’s that.
Kevin Schneider: I also think for great apes in the state, it would also open doors for them in large part because, you know, these are the species we have been talking about from day one. Elephants, great apes, dolphins, whales. They have a sense of themselves, their past, their present, their future. They can make decisions for their own lives, meaningful decisions, and reflect on those decisions.
Hannah McCarthy: So, Nate, when did oral arguments happen in this case?
Nate Hegyi: May 18, 2022. So this year.
Hannah McCarthy: So when will the judges make their decision?
Nate Hegyi: I mean, it could be a month or more. But when it does come, we’ll be sure to give an update to all you listeners out there.
Nick Capodice: Well, I gotta say, thank you very much Nate, this was a ton of fun!
Hannah McCarthy: Yeah, can we do it again sometime?
Nate Hegyi: Oh my god, I would love to.
Nick Capodice: The real question is what should we cover next, you know, on our crossover. What about something like… The Migratory Bird Treaty Act?
Hannah McCarthy: What about something like the creation of the EPA?
Nate Hegyi: I’d love to dig into the history of the National Weather Service.
Hannah McCarthy: Yeah!
Nick Capodice: Whoo! Well, let’s enshrine our democracy and put it to a vote. Why don’t we put it to listeners - folks, if you’ve got a suggestion for the next Civic 101 Outside/In crossover episode, you can email us, tweet at us, send us a letter by pigeon, whatever makes sense for you.
Nate Hegyi: Whats your handle? How can people find you?
Nick Capodice: We’re @civics101pod
Nate Hegyi: And we’re at @outsideinradio
Credits:
Nate Hegyi: This episode was produced and reported by me, Nate Hegyi, with Hannah McCarthy and Nick Capodice.
Nick Capodice: It was edited by Taylor Quimby, Rebecca Lavoie, with help from me, Nate, and Hannah.
Hannah McCarthy: It was mixed by Nate Hegyi. City pronunciation fact-checking by Nick Capodice.
Nick Capodice: It is ALL-bany, Nate
Nate Hegyi: Albany, Albany, Albany.
Hannah McCarthy: Our executive producer is Rebecca Lavoie
Nate Hegyi: Music from this episode came from El Flaco Collective, The Fly Guy Five, Jules Gaia, and peerless.
Our theme is by Breakmaster Cylinder. Outside/In…
Hannah McCarthy: AND Civics 101…
Nate Hegyi: Are both productions of New Hampshire Public Radio!
Nick McCarthy: (elephant noise)
Hannah McCarthy: That was so unpleasant.
Nick McCarthy: You didn’t like my elephant sound? Sorry, Nate.