Elephant Habeas: The NhRP’s Colorado Case Is Dismissed

The distracted boyfriend ("LETTERS BLOGATORY") is staring over his sholder at a woman in a red dress ("ELEPHANT HABEAS") while his girlfriend ("PRIVATE INTERNATIONAL LAW") looks on in disgust.

A Colorado judge has dismissed a habeas corpus petition brought by the Nonhuman Rights Project supposedly on behalf of elephants at the Cheyenne Zoo. The decision is a good one. The judge basically agrees with all the things that the NhRP has to say about elephants. They are really smart, they have complex social lives, they are worthy of moral respect, they suffer when mistreated. And yet.

The judge began by holding that elephants do not have standing to bring habeas corpus petitions. The statute gives standing to “any person” who is unlawfully detained, and both Colorado statutes and generally accepted usage make it clear that a non-human animal is not a “person.”

I particularly liked the judge’s discussion of the practical consequences of what the NhRP proposes.

[E]ven trying to imagine an extension of the habeas right, or the status of personhood, or the “right to bodily liberty” to animals requires an exercise of considerable imagination. This case does not concern just “five elephants,” as the NHRP asserts. (If it did, the NHRP would not be in business.) It concerns, as the NHRP well knows and intends, an opening of a heretofore-unopened legal door that–were it to make its way to the U.S. Supreme Court and be affirmed–would quite likely have the effect of upending much of our legal system, in which humans, for better or worse, exercise dominion and control over the animal world. As the Breheny majority recognized, a ruling recognizing the “right to bodily liberty” of animals “would have an enormous destabilizing impact on modern society,” including “call[ing] into question the very premises underlying pet ownership, the use of service animals, and the enlistment of animals in other forms of work,” not to mention the consumption of animals for food, their use in agriculture and in medical research, and their legal status as property. If an elephant today, why not a dog, a pig, a cow, or a chicken tomorrow? One cannot help speculating that the Breheny dissenters were able to engage in the aspirational flights of fancy that they did–essentially pulling rights out of thin air, creating rights because they thought those rights should exist–precisely because they were in the minority. Had they been in the majority, they would have had to contend with the effects of their ruling.

Or put really succinctly, the NhRP brought its case in a court of law, not a philosophy seminar.

The judge also took on the NhRP’s claim that it could bring the habeas petition on the elephants’ behalf as their next friend. What is its relationship to these elephants, and how does it differ from its relationship to any other elephant? If anyone has a real relationship with the elephants in question, it’s the Zoo. This seems to me to be just right, and it gets at a point I’ve made before: it’s really the NhRP’s interests and wishes that the NhRP is seeking to litigate.

On the merits, are the elephants being detained illegally? After all, the court was inclined to agree with the NhRP that keeping elephants at zoos is not in elephants’ best interests. But that can hardly be the test, since most likely keeping people in prison is not in their best interests. And the judge found that the Zoo was apparently meeting the standards set by federal and Colorado law. That raises the question whether NhRP, if it really cared about elephants instead of enacting Steven Wise’s ideas about moral philosophy into law, would be better off spending its time and money lobbying for changes in the animal welfare laws.

No doubt we will now see appeals in Colorado, to be followed by a new case brought in yet another state.

I have an archive of posts on animal rights cases, including the NhRP’s hapless litigation campaign, and if you’re interested in posts where I spell out my thoughts on the whole thing, you might be interested in reading Happy’s Hapless Helpers and “Persons.”

2 responses to “Elephant Habeas: The NhRP’s Colorado Case Is Dismissed”

  1. Robin Boylan

    Nice illustration.

    1. Thanks! “Distracted Boyfriend” is always funny to me.

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