Why the elephants should be given access to justice
I want to be crystal clear: we should win this case because our argument is legally and morally right. The law is on our side because it’s the responsibility of the courts to protect individuals from unjust confinement. And science is on our side because, as our expert affidavits show, elephants are autonomous individuals who suffer when they can’t exercise their autonomy. For example, elephant cognition and behavior expert Dr. Bob Jacobs has testified that he personally observed the elephants “rocking, swaying, and head bobbing”: behavior indicative of chronic stress, trauma, and even brain damage that isn’t seen in free-living elephants.
So our challenge isn’t so much proving that the law and the facts are on our side (though they are). It’s persuading officials in the legal system to do something that seems unusual—recognize that at least some nonhuman animals can have legal rights and interests that the courts must protect.
Someone, not something
First, this hearing was important because our clients were treated like someone rather than something. Even if it was just for the purpose of determining whether the elephants’ case will proceed, it’s hard to overstate the significance of this difference.
Typically, nonhuman animals are legally invisible to the courts; their interests or injuries don't matter unless they can be tied to human interests or injuries. In other words, to successfully make a case on behalf of a nonhuman animal, you have to argue on behalf of a human–for example, you can allege that witnessing animal suffering caused you to suffer.
But this case, like other NhRP cases, involves directly representing our nonhuman clients to stop an ongoing injury to their right to liberty. The injury under consideration was the elephants’ own–as opposed to a human injury that’s only indirectly about the elephants. In this specific sense, our clients are already on the other side of the legal wall that unjustly separates nonhuman animals from humans. The right to liberty will ensure they remain there.
What makes progress possible
Second, this hearing gave us an opportunity to directly challenge an unjust system. The Cheyenne Mountain Zoo elephants’ case presents a question that hadn’t been asked before in Colorado: if liberty is such an important value in our legal system, why must it be withheld simply because an individual isn’t human? Asking this question–and pressing for an answer–is itself a form of progress. Why? Because if we don’t, or even if we ask for less than the elephants are legally entitled to, the idea of nonhuman rights will forever remain “unusual.” The more we ask, the less unusual it will become, and the judges’ reasons for saying “no” will appear increasingly irrational and arbitrary.
Judges can even come to see their own decisions this way. That’s exactly what happened in 2018 when New York Court of Appeals Judge Eugene Fahey condemned the rightlessness of our chimpanzee clients the second time their cases came before him. The first time, he joined with his fellow judges in denying us a hearing. The second time, he criticized the appellate decisions that denied the chimpanzees their right to liberty and urged his fellow judge to “confront the manifest injustice” of their thinghood.
Courts are seeing animal rights as an important legal issue
Third, the Colorado Supreme Court could have simply rubber-stamped the District Court Judge’s reaction to our case, which was to dismiss the Cheyenne Mountain Zoo elephants’ bid for freedom because the elephants aren’t human. It didn’t. Instead, it chose to have a hearing in which the judges considered their own judicial duty to evolve the common law to protect elephants through habeas corpus. Overall, this hearing signals that the issue of legal rights for nonhuman animals has become a significant and important question that courts may not reflexively dismiss. And it shows that there’s room in our legal system to answer the question of whether Jambo, Kimba, LouLou, Lucky, and Missy–individuals who the District Court recognized “cannot function normally in captivity”– have an interest in liberty that should be protected by the courts.
Put simply, with each animal rights case we file—and each animal rights hearing that courts elect to have—we take one step closer to a world where animals aren’t deprived of justice simply because they aren’t human. That’s why we’re looking forward to the Colorado Supreme Court’s decision in this case and the hearings we expect to have next year in Hawaii (on behalf of elephants deprived of their liberty) and Michigan (on behalf of chimpanzees deprived of their liberty).
If you can, please donate today so we can build this world that much faster and help nonhuman animals secure the rights they desperately need.
