S7. E12: Steven Wise: The Most Important Animal-Rights Case of the 21st Century
“The reason that you should accept our client as having rights is because we're showing what an extraordinary being she is. These beings have mirror self-recognition, they know that they are elephants. In fact, we listed 42 different, highly complex cognitive abilities that elephants have. If you didn't know it was an elephant, you’d think [I was] talking about what a human being does.”
- Steven Wise
There is an elephant who lives all by herself in a small enclosure at the Bronx Zoo. Her name is Happy. She arrived at the zoo in 1977, a few years after she’d been kidnapped from the wild in Thailand.
The Bronx Zoo claims that Happy is Happy. The best elephant cognition scientist in the world have argued that she's anything but. And most of us regular human beings can see that an isolated elephant in a tiny enclosure is not living a good life.
Steven Wise is the founder and president of the Nonhuman Rights Project. In 2018, the Nonhuman Rights Project brought a petition for writ of habeas corpus on Happy’s behalf. Habeas corpus is a common law right that protects against unlawful and indefinite imprisonment. In Happy’s case, the NhRP are seeking recognition of her fundamental right to bodily liberty and transfer to an elephant sanctuary.
Last spring, the New York court of appeals, the highest court in the state of New York, agreed to hear Happy’s case. This is the first time in history that the highest court of any English-speaking jurisdiction will hear a habeas corpus case brought on behalf of someone other than a human being.
In a story for the Atlantic, Jill Lepore called Happy’s case, “the most important animal-rights case of the 21st Century.”
Steven Wise has been working toward this since 1980.
Please listen and share.
In gratitude,
Elizabeth Novogratz
Learn More About The Nonhuman Rights Project
Follow on Instagram
Follow on Twitter
Like on Facebook
Watch Steven’s TED Talk
Transcript:
Steven: [00:00:15] The reason that you should accept our client as having rights is because we're showing an extraordinary being. These beings have mirror self-recognition. They know that they’re elephants. In fact, we listed 42 different, highly complex cognitive abilities that elephants have. If you didn't know it was an elephant, you'd think I'd be talking about what a human being does.
Elizabeth: [00:00:47] Hi, I'm Elizabeth Novogratz, this is Species Unite. We have a favor to ask, if you like today's episode and you have a spare minute, could you please rate and review Species Unite on Apple Podcasts or wherever you listen to podcasts? It really helps people to find the show. There's an elephant who lives in a small enclosure, all by herself at the Bronx Zoo. Her name is Happy. She's been there since 1977. A few years after she was kidnapped from the wild in Thailand, the Bronx Zoo claims that Happy is happy. The best elephant cognition scientists in the world have argued that she's anything but, and most of us regular human beings can see that an isolated elephant in a tiny enclosure is not living a good life. This conversation is with Stephen Wise. He's the founder of the Nonhuman Rights Project. In 2018, the Nonhuman Rights Project brought a petition for a writ of habeas corpus on Happy's behalf. Habeas corpus is a common law right that protects against unlawful and indefinite imprisonment. In Happy's case, they're seeking recognition of her bodily right to liberty and transfer to an elephant sanctuary. Last spring, the New York Court of Appeals, the highest court in the state of New York, agreed to hear Happy's case. This is the first time in history that the highest court of any English speaking jurisdiction will hear a habeas corpus case brought on behalf of someone other than a human being. Stephen Wise has been working toward this since 1980. Steve, thank you so much for being here today. It is awesome, and I just want to say a huge congratulations on Happy’s case.
Steven: [00:02:51] Well, we haven't won yet, but we're at the closest of winning any of our cases. But even if we go to the Court of Appeals in New York and lose, the fact is it took us eight years just to go to the Court of Appeals.
Elizabeth: [00:03:04] I want to take this for people who have no idea about Happy or what's going on in the case, because of the fact that you've gone to the Court of Appeals. It's the highest court in New York and it's the farthest you've gone. You started this work in the 80s. I mean, it's phenomenal where you are right now.
Steven: [00:03:24] It took me thirty six years to get there finally. Win or lose.
Elizabeth: [00:03:26] Unbelievable. Will you talk about Happy and who she is and how she got to the Bronx Zoo.
Steven: [00:03:33] Happy was one of a number of elephants who were essentially kidnapped from their families and sold to the United States. She wasn't named Happy because she was happy. She was named Happy because they were all named after members of the Snow White and the Seven Dwarfs. So she's named happy and others are named whatever the other six dwarfs are. She had six other siblings. I think they're either 10 or 12 who were taken from Thailand and then brought to the United States. She was there at one place, I think for one or two years and then was purchased by the Bronx Zoo, which is also the Wildlife Conservation Society, and that was more than 40 years ago. That's where she's been ever since, in this really bad place for now.
Elizabeth: [00:04:20] How long has she been living solo? Just all by herself?
Steven: [00:04:23] There's another elephant there, but they're not really together. One thing is she probably hates that person because that was - oh, sorry, I call elephant’s ‘persons’. They are persons because a person is an entity who has the capacity for legal rights and is not a human being. I think it's been about 16 years since she's been with anyone, and the most that she'll do is, they stay on separate sides of a fence and then she can see the other elephant who's there. They don't have much to do with each other.
Elizabeth: [00:04:54] And just so people get an idea, what's the situation where Happy actually lives? In the enclosure?
Steven: [00:05:00] Happy lives in a very small place, the amount of space that she and the other one have, if they're out together then they have half an acre. If she's out by herself, she has about one acre. You have to understand that putting an elephant in one acre is kind of like putting me in my little backyard here and saying, “I hope you have a really great life”. Also, by the way, you'll be by yourself, too. She has a lonely, terrible life for an elephant. It's sometimes hard to believe that these people would be that terrible.
Elizabeth: [00:05:31] I thought the Bronx Zoo a long time ago was going to completely stop their elephants. What was that all about?
Steven: [00:05:38] I don't believe anything, the Bronx Zoo says. First of all, the Bronx Zoo doesn't say very much, so actually, that's the Wildlife Conservation Society. And second of all, when it does say something, I generally don't believe what they're saying. They don't have anything that can help them, that they can say. If I may say one thing, many people don't know that, I think in 1906, the Bronx Zoo actually imprisoned an African pygmy. They kept him in a cage beside an orangutan in their primate house. Of course, they could force him to do whatever they want and just as they predicted the amount of money that they were bringing in on the days that they had him was double what it had ever been, and they were making the same amount of money as Coney Island was at that time in September 1906. There were many black pastors and then eventually other people who forced him out of the zoo and the head of the zoo really hated that. Of course, he says, like all the non-animal folks say, that “oh, he would have been so much better if he'd only stayed with us”. He did, ultimately, 10 years later, commit suicide. I guarantee you that the Bronx Zoo did not save him from suicide. They probably helped cause his suicide. So we bring that up with the courts. This happened in 1906. In 2020, they issued an apology. It took them one hundred and fourteen years to apologize for imprisoning a human being.
Elizabeth: [00:07:04] When people are saying free, free Happy. What does the Bronx Zoo say?
Steven: [00:07:08] Oh, they'll say, boy, it's really great for an elephant to be kept in the way we are keeping them. The way we treat her really makes her life better and better. The trial itself was very interesting because there were five of the world's most famous and most competent elephant cognitive experts who testified there through affidavits. By the way, they are all from the Nonhuman Rights Project. The Wildlife Conservation Society and the Bronx Zoo were unable to solve a single problem because they were unable to have the testimony of a single elephant expert. So anyone who heard all the testimony, who read it, understood immediately how terrible Happy was being treated and wrote a long opinion in which she made it clear that if she wasn't forced by a higher court in another part of the state to have her rule against this, as she said, regrettably, quote regrettably unquote, she had to rule against us. The rest of the case about her conclusions were how amazing our experts were, how extraordinary Happy was, and that she should win. But unfortunately she couldn't. But she clearly favored what we were doing and not what the zoo is doing. That's because the zoo couldn't say anything or do anything. That was very interesting.
Elizabeth: [00:08:31] We're just going to assume the zoo is keeping Happy because the zoo makes money from keeping Happy.
Steven: [00:08:36] Yes and also there's a lot of fear. We apparently really frightened a lot of people, and that's beginning with the Bronx Zoo. You see in their minds “they're going to come after us, the elephants tomorrow, then they're going to come after us, the tigers, then they're going to get the chimpanzees”. We've never said that. We just said, we just want this one elephant ‘Happy.’ But they're not the only people. You should see the folks who have been filing amicus briefs. Briefs that other people filed because they say that they have things that they want to tell the courts. I'll read to you, some of them, who they are. So you had the American Veterinary Medical Association, the New York State Veterinary Medical Association, the American Association of Veterinary Medical Colleges. None of them have anything to do with elephants or zoos. Then they had an organization called Protect the Harvest, the Alliance of Marine Mammal Parks and Aquarium, the Feline Conservation Foundation, the National Association for Biomedical Research, the New York Farm Bureau, who said that we were going to absolutely destroy all milk and dairy in the state of New York if we get poor ‘Happy’ let out of her cage in the Bronx Zoo. They were supported by the Northeast Dairy Producers Association and the Northeast Agribusiness and Feed Alliance. These are the folks who are coming in. We scare the daylights out of them. Now I'm not saying they have to be scared. They don't have to be scared. They can listen to what we want. We want ‘Happy’ out of the Bronx Zoo and sent to a sanctuary. It's amazing, the thousands and thousands of words said that they've had amicus people come in to use against this, one of the words have to do with an elephant, and none of the words have to do with the zoo.
Elizabeth: [00:10:23] They think you're going to free all the factory farmed animals and the research animals. I mean it would be awesome.
Steven: [00:10:30] If it happens, I guarantee you it's not going to happen in 2022.
Elizabeth: [00:10:33] Ok, so for people who haven't been following Happy's case and don't understand any of this, will you explain the persons vs. things. What are you fighting for Happy?
Steven: [00:10:44] I actually have 16,000 words on this. I can start reading it. We should be done and saying in a couple of hours, but I'll bring it down. Under the law if you are a thing, it means you lack the capacity for any kind of rights. That's it. What species you are is irrelevant. I mean, there are now. I mean, there are cars that are things, my phones a thing. Everything's a thing. But it's important to know that there were millions and millions and millions of humans who were things for thousands of years. If you were the wrong race, you were the wrong gender, you are the wrong religion, all over the world, you would be a thing, which meant you lack the capacity for rights and then it would be very easy to simply be the property of others who can own all the things. However, a person and this is another thing folks say when they try to beat us, that ‘person’ has to mean a human being. But that's not what a person is. Person is an entity who has the capacity for rights, and any time a legislature or a court notes that something or someone is an entity, well then they’re persons. Corporations in the United States, they’re persons, a ship is a person and beside. At one time, blacks, women, children, Native Americans, they might not have been persons either. So, you have to understand that person simply means that the culture in the society is at a place now where some entity who is the thing is now going to be made a person. That simply means you have the capacity for legal rights. Theoretically, we could say we're seeking a writ of habeas corpus to have to have our elephant have the right to bodily liberty, and she can get out of the zoo. A court could say, we actually find that an elephant is a person. They have a right to rights.
Elizabeth: [00:12:35] So give me an example of the rights that you're asking for.
Steven: [00:12:38] Oh, we're only asking for one. This was what the other side tried to pretend, that we're asking for an infinite number of things, for an infinite number of species, but what we're saying, we're only asking for one thing which is the right to bodily liberty. Then we bring a writ of habeas corpus, which means we believe that there's a person who's being imprisoned against her will. So we bring a writ of habeas corpus like we would if we thought a human being was there. All we have to do is show that they have the right to that right, because any entity who is extraordinary, cognitively complex, it's I mean, unbelievable. There's no reason why you should be able to enslave them.
Elizabeth: [00:13:17] So 1980 is when you decided to start this work?
Steven: [00:13:21] Animal welfare law in 1980. But I decided that after five years of this, I thought they're going to have to get rights. So at that point, I predicted that it would take me 30 years of work before I'd be able to get to the point where we had a chance of winning, and it only took 28.
Elizabeth: [00:13:39] Right and now you're really close.
Steven: [00:13:41] Oh yes, we're already very close to where we want to be. It's the first time that any English speaking High Court has even taken any kind of a case as to whether a nonhuman animal is a thing or is a person. So behind me, I have a lot of shelves, law books on them, but one of them has 150 books on the history of slavery, beginning with the Romans and the Greeks, and moving up as close as you can until this case today. So, I'm very familiar with how the fight against slavery of anyone works. I have cases about women, about black humans, about Native Americans. I understand what kind of fight you get into. We have an advantage over the other side. They may not know that what they're saying is what all the bad people used to say at that time. They just do it. I think it's part of being a human being that when you really want something for yourself, you want the money or ‘I want to use something’, so you come up with all these arguments and they come up with the exact ones. I wrote about in my book how human slavery ended. The reason you can't have rights is because you're not a human being. We're going to show you, that's the same argument as saying the reason black people didn't have rights is because you're not white. The reason women don't have rights is because you're not a man. The reason the Native Americans didn't have any rights is because they were Native Americans.
Elizabeth: [00:15:05] Well, and also, how can you say that when a ship can have rights? I mean, when a ship is a person.
Steven: [00:15:12] They have a hard time answering these questions. All they can do is say, ‘well, that's just irrational, but that's what we do anyway’. We're saying, well, ours isn’t irrational, actually, we're very rational. The reason that you should accept our client's rights is because we're showing what an extraordinary being she is. These beings have mirror self-recognition. They know that they’re elephants. In fact, we listed 42 different, highly complex cognitive abilities that elephants have. If you didn't know it was an elephant, you'd think I'd be talking about what a human being does, and all I can say is I guarantee you that a ship can't do any of these.
Elizabeth: [00:15:51] I mean, it's incredible.
Steven: [00:15:54] Oh, I know it's the judges who just say, go away or you're wrong. You either don't understand what we're saying, think we're idiots or you're just biased against us. We think when you're trying to determine whether the common law should change, you need to look at what's right, at public policy. You need to look at what's just, that's how you're supposed to make fair decisions.
Elizabeth: [00:16:19] It just seems like there are a lot of judges that, I mean, they're just wimps. You don't want to be the person that makes great change in the world.
Steven: [00:16:27] Yes, my guess is that there are some of them who don't care. There's some of them who think we're wrong, but they don't have a reason for it. There are ones who think we are right, but they feel maybe they would be the 10th judge to do this, but they're not going to be the first. It just makes them too nervous.
Elizabeth: [00:16:45] So let's talk about what it means if Happy gets rights and what happens to Happy.
Steven: [00:16:51] Well, if she gets the right to bodily liberty, that means she's automatically a person because only a person can have a right to body liberty. In fact, that's one of the things that we changed for a long time. We were going in and saying that we were seeking personhood first. Now we're seeking rights first and because you don't have to then say that they're persons because if they already have rights, then they're already a person. Assuming that we can indeed win, then what will happen is that she will not be able to be imprisoned at the zoo. Now remember, you can be a person and yet have no rights, or you can be a person who, for example, only has one right, the right to bodily liberty. However, who owns her because we can see that you could have the right to bodily liberty but still be owned by the Bronx Zoo. Because we didn't ask for that. So, we say after you find that she can get out of there and then you have to decide where she is going to go and who owns her. We say you can decide that the sanctuary owns her, that the Bronx Zoo owns her, or you can decide that Happy owns herself just like I do. You can do whatever you want, but that's not the argument that we're making. That's the argument that we go through and have after. You have agreed that she has a right and therefore is a person.Then it's a lot easier for us to more clearly talk about persons. And then frankly, we don't care whether she's still owned by the Bronx Zoo, as long as she lives down in the sanctuary for the rest of her life.
Elizabeth: [00:18:19] So, if the judge decides that she has the right to bodily liberty, then the judge decides where she goes?
Steven: [00:18:26] This has never been done before, so I'm only giving giant guesses. The court has to figure out, we think, do the right thing, as to whether or not she is a person, whether she has the right to say she has the right to bodily liberty. At that point, they're going to do whatever they want and it could be amazing things that they're doing. Or they could just say something like we hereby order her released and now we're going to send it down to the Supreme Court and she'll decide now where she goes, what kind of property is she, who owns her? Does she own herself? Do they own her? Does the sanctuary owner since this has never happened before? We can't predict what's going to happen, but we can predict what all the fights are about.
Elizabeth: [00:19:12] But what's the ideal situation?
Steven: [00:19:14] Oh, the ideal situation. I think we would be saying she's entitled to go to the best sanctuary in the U.S., and she owns herself. That'd be the best for her. There's a lot of things that she can tell you she wants. People taking care of her would have to do what she wants. But there's some things you can't figure out. So we will have to bring someone in who's an expert, who can do the best they can, the way we deal with human beings. Now there's a lot of human beings who for various reasons have people who represent them in court. They'll have trustees of some kind or guardians of some kind. I guarantee you that the problem of figuring out what the person is, that they're the trustee for the guardianship, it'll be the same thing as a healthy elephant. But I guarantee, you would know a lot more about what a healthy elephant is than an unhealthy human being. I can guarantee that some of these people have been working day in, day out for elephants for more than 50 years. I'll tell you, they understand elephants.
Elizabeth: [00:20:14] Is the biggest driver, like the biggest resistance to change, fear or just this, like not wanting to do it another way?
Steven: [00:20:24] It's actual fear. All the people who I mentioned, they're all worried that they're going to lose money, that people aren't going to buy what they sell. That's their basic argument, and also that only a human should have rights. They don't give a reason why only humans should have rights, but something about that frightens them, even though we're not suing them. This is an extraordinary thing. We're not even suing them and one of them actually shows how, if we win, then no one in New York will ever be able to drink milk. We're not used to inflicting this, this amount of terror in people. All we want is this elephant to come out of this horrible place she is in and to go to a sanctuary.
Elizabeth: [00:21:09] It has nothing to do with milk? No. Wow. Do you have a date for the case?
Steven: [00:21:14] No, we wanted it to move fast. So I think in August we asked, and I argued last month. I guess you can guess whether we won that motion. We did not. They said no, and apparently they give you about a two month advance when you're arguing. We don't expect to get that into it until perhaps September or August, arguing in October or November. We just want to make sure that our client stays alive.
Elizabeth: [00:21:38] Right. She's old.
Steven: [00:21:39] Yeah, she's the oldest elephant who's ever lived there. All the other ones have died before. They're all younger than she is.
Elizabeth: [00:21:40] How old is she?
Steven: [00:21:41] Fifty one.
Elizabeth: [00:21:42] Is she healthy?
Steven: [00:21:43] She's healthy, as you can be if I was living in my backyard, all by myself for 50 years. By the way, since the first day, we've been willing to settle the case. We'll do that now. If you want to say, look, we're not going to say she's a person, we're just going to say, you win or we won't agree that you won, we're just going to move the elephant down to the sanctuary that we want. We'd settle the case because we treat our nonhuman client like we do a human client. So once we take them, we're not doing our interests for the interests of the client. If they're human, they're human. If they're an elephant, they're an elephant. But they haven't done that. I wonder why?
Elizabeth: [00:22:24] No, because they want the money.
Steven: [00:22:26] They want the money and they also think, oh my God, now the world is going to see we surrendered to these people and now they're going to start coming after our bumblebees, or I just have no idea, but something, because they're not rational people. Of course, I always think, well, you were the guys who 114 years ago imprisoned a human being.
Elizabeth: [00:22:47] If Happy does indeed get free and move to a sanctuary. Is it a pretty good chance then that this is going to kind of be dominoes for elephants all over the country.
Steven: [00:22:58] First thing we would do would bring the same suit in favor of the elephant that Happy's not living with. Then we go through every single one in the state of New York. Before we end up arguing and get a decision by the Court of Appeals, we will likely have gone into California, into Israel, into India, and into Colorado. In Islamabad last May, there was a judge who even talked about us in his decision and he found not just the elephant, but all the animals and the entire zoo are persons. But he ordered the elephant specifically taken out of Pakistan and taken to a place, I think, in Cambodia.
Elizabeth: [00:23:37] That's absolutely incredible.
Steven: [00:23:39] I know, and amazingly, in 2014, the Supreme Court of India. Ruled that all non-human animals have rights under the Indian statutes and under the Indian Constitution. Now what that means, we're not as clear, because we know, we've been to India because we're working with lawyers there in India, some of them representing us. We haven't really seen how that works. We are working with two good law firms, one at the trial level, one at the Supreme Court of Indian level. It's one thing when someone has a right, but you have to actually enforce that right and it's not clear how you could enforce it in the decision. It seems like they have it, but it's not clear what you're going to do about it. We want to be able to argue that there are ways of doing something about it.
Elizabeth: [00:24:26] It's just got to feel amazing.
Steven: [00:24:28] I and so many of the people who work in the nonhuman rights project, we just kind of generally worked seven days a week, not because you have to, but everything we're doing is incredibly interesting, fascinating. We're seeing that we're beginning to change the world. We're all excited about it and we're getting somewhere.
Elizabeth: [00:24:48] You are and not only that, you're changing the conversation in the world. People I think that normally don't pay much attention to this stuff, there's been a lot of press on Happy lately. That article in The Atlantic was amazing. People are talking about it and thinking about it, and it's people that don't normally think that much about non-human animals.
Steven: [00:25:08] Jill Lepore is a terrific professor and professional historian at Harvard, and she and the Atlantic said that ours was the most important animal rights case of the 21st century. Thank you, Jill. That's what we thought, but we never said that. She also wrote that we were like the nonhuman ACLU. We call ourselves a civil rights organization for non-human animals. We are an ACLU for non-human animals.
Elizabeth: [00:25:34] Thank you, Steve, for everything that you do. I would love for you to come back on, post Happy's win.
Steven: [00:25:41] I will be happy to. Whether she wins or whether she loses, we won. We won something. I mean, you're already there. We just got up. We've already won. Even if we don't win in New York, that doesn't matter, then there's California. The world is changing. We feel that the world is changing. You go through a time when you never win, then you win somewhere, but you still don't win and then you win more. You still don't win and then you start to win. It can take a while, we understand. But we are so clearly, intellectually and rationally correct, that we are going to win.
Elizabeth: [00:26:14] Yes. I'm so happy. Thanks Steve.
Steven: [00:26:17] Thanks for having me.
Elizabeth: [00:26:26] To learn more about the Nonhuman Rights project and Steven Wise, go to our website SpeciesUnite.com, we will have links to everything. We are on Facebook and Instagram, @SpeciesUnite. If you have a spare minute and could do us a favor, please subscribe, rate and review on Apple Podcasts or wherever you listen to podcasts. It really helps people find the show. If you'd like to support the podcast, we would greatly appreciate it. Please go to our website and click Donate. I would like to thank everyone at Species Unite, including Gary Knudsen, Caitlin Pierce, Amy Jones, Paul Healey, Santana Pokey, Bethany Jones and Anna Conner, who wrote and performed today's music. Thank you for listening. Have a wonderful day!
You can listen to our podcast via our website or you can subscribe and listen on Apple, Spotify, or Google Play. If you enjoy listening to the Species Unite podcast, we’d love to hear from you! You can rate and review via Apple Podcast here. If you support our mission to change the narrative toward a world of co-existence, we would love for you to make a donation or become an official Species Unite member!
As always, thank you for tuning in - we truly believe that stories have the power to change the way the world treats animals and it’s a pleasure to have you with us on this.