The Radical and Unacceptable Opposition to Nonhuman Rights

On May 18th, New York’s highest court will hear arguments in our elephant client Happy’s case, which The Atlantic has called “the most important animal-rights case of the 21st century.”

As part of our legal fight to #FreeHappy, the NhRP has filed a response to an amicus curiae brief Richard L. Cupp, Jr. submitted to the New York Court of Appeals in support of the Wildlife Conservation Society and the Bronx Zoo. Cupp is a law professor with expertise in torts and product liability. In the briefs he has filed in our chimpanzee and elephant rights cases beginning in 2016, he argues that in order to be a legal person with fundamental rights you have to be able to bear duties, which is incorrect. Several intermediate appellate courts in New York have relied on Cupp’s briefs to attempt to justify Happy’s continued imprisonment and rightlessness.

In the response we filed in Happy’s case, we demonstrate that Cupp’s arguments are “erroneous, irrational, arbitrary, and dangerous.”

Contrary to what Cupp claims, the fundamental question isn’t whether Happy fits his erroneous view of legal personhood but whether she has the common law right to bodily liberty protected by habeas corpus. The answer, we stress to the Court, must depend on the intrinsic nature of elephants.

Bronx Supreme Court Justice Alison Y. Tuitt recognized in her February 2020 decision in Happy’s case that “elephants are autonomous beings possessed of extraordinarily cognitively complex minds” and that Happy is an “intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty.” Cupp’s brief obscures the profound injustice of Happy’s arbitrary imprisonment and ignores Justice Tuitt’s finding that the NhRP’s arguments are “extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit” to an elephant sanctuary.

Under longstanding precedent, the Court has a duty to update the common law to correct injustice. Cupp ignores this duty as well as the unique role of habeas corpus, which has been applied throughout history to protect individuals once deemed outside of law’s protection.

Cupp has it backwards when he claims Happy winning her case would be “radical” and “unacceptable.” What’s “radical” and “unacceptable”—as demonstrated by the 18 amicus briefs filed in support of Happy’s freedom—would be to ignore the injustice of her arbitrary imprisonment.

Next, to put it politely, Cupp has a gross misunderstanding of legal personhood. Cupp claims Happy should lose because of his view that “legal personhood rights are intertwined with a norm of legal accountability,” which can mean one of two things.

First, it can mean that rights impose duties upon others, i.e., Happy’s right to bodily liberty imposes a duty upon WCS and the Bronx Zoo to stop violating her right. But nothing about rights and duties being “intertwined” in this way supports denying Happy’s freedom.

Second, it can mean that the possession of rights is contingent upon bearing duties—which is simply not the law. Numerous individuals possess rights and are therefore legal persons, despite not having the capacity to bear duties.

There is simply no legal requirement—and Cupp cites none—for his assertion that elephants must, “either as a norm or as individuals, demonstrate a sufficient level of moral agency … to possess legal personhood rights under our human legal system.”

Cupp’s entire argument against Happy’s freedom is, at bottom, based on a simple biological prejudice: Happy isn’t a human being. However, legal personhood is not synonymous with being human, and denying Happy her freedom merely because she isn’t human is arbitrary and irrational.

Cupp also distorts social contract theory. He argues that “no animals are capable of participating in the social contract,” as though the possession of legal rights, including the fundamental right to bodily liberty, depends on that ability. It does not.

Finally, Cupp makes the completely baseless and absurd claim that ruling in Happy’s favor “would endanger humans with significant cognitive limitations.” His nonsense suggestion that granting Happy her freedom would somehow cause humans to lose their rights has no basis in fact, logic, reason, or history and resembles the rationale used for centuries to justify the continued oppression of vulnerable groups.

There’s not a single rational reason to deny Happy her freedom, while the New York Court of Appeals has every reason to end the injustice of her arbitrary imprisonment. This is clear after the submission of over 30 briefs in Happy’s case, including by 146 amici curiae (“friends of the court”) who join us in calling for recognition of her fundamental right to liberty.