The law, theology ... and Happy the elephant

Is an animal a person?

That’s the central question surrounding the fate of a 48-year-old female Asian elephant in the Bronx Zoo named Happy, a question that has enticed legal, moral and even theological debate.

After spending most her life in a zoo, animal activists have been fighting in court since 2018 in an attempt to move Happy to an elephant sanctuary. The zoo says she’s better off where she is and has bonded with her caretakers.

Dr. John Berkman, a professor of moral theology at the University of Toronto’s Jesuit Regis College, is one of five Catholic theologians who presented a signed amici curiae (“friends of the court”) brief to the New York Court of Appeals earlier this year.

Drawing upon moral theology, ethics, ecological theology and bioethics, the brief supports an attempt by the Nonhuman Rights Project (NhRP) to legally secure the release of Happy. Captured as a baby and imported to the United States in the early 1970s, she has lived an almost solitary life since 2006, spending winters in a tiny concrete cage with bars. 

In 2018, the NhRP  filed a habeas corpus claim on behalf of Happy, asserting her right to personhood and liberty as well as life in a sanctuary among other pachyderms. In late 2020, the First Judicial Department denied habeas corpus relief. A month later, the NhRP filed a motion urging the state’s highest court, the New York Court of Appeals, to hear arguments supporting Happy’s right to liberty. On May 4, the appeals court agreed to hear the case, marking the first time in history that the highest court of any English-speaking jurisdiction will hear a habeas corpus case brought forth on behalf of a non-human, according to the NhRP.    

The theologians’ amici curiae brief argues for Happy’s freedom on the basis of natural law. “Happy is not a thing for us to confine, use and put on display in a zoo (even in an attempt to produce a good outcome), but rather a particular kind of creature who God made to flourish in a particular way — a way some academics refer to as a telos. As we explain, we believe Happy cannot flourish as this kind of creature while captive in the Bronx Zoo and that she would be significantly better able (to) become the kind of creature God made her to be in a sanctuary. Non-human animals belong to God, not to us. They are God’s creatures, not ours.”

Berkman, who is a vegetarian and uses the term “non-human animals,” discusses why he contributed to the amici curiae brief, and the role religion plays in the lives of domestic and wild creatures. 

Q: Why should Happy be granted a writ of habeas corpus?

JB: Anybody who tries to say personhood should only be attributed to human beings — that’s false. We give it to corporations. It makes more sense to give personhood to certain non-human animals than to give it to corporations. The sharp distinction between humans as being rational and all non-human species as fundamentally different doesn’t hold up.

Q: How has Catholicism influenced your support for animals?

JB: I grew up Presbyterian then, in graduate school, became interested in Catholic social teaching and the Catholic Worker movement. I became a theological vegetarian, meaning that God intended for all creatures to flourish, according to their natures and their possibilities. Happy is a social creature and it’s terrible for her to be locked up by herself in this tiny space, unable to engage in the kinds of behaviours that will allow her to flourish. 

Q: Are there flaws in the legal systems of the West when it comes to the rights of animals?

JB: Legal precedents are based on outdated views about animals. A couple of hundred years ago when precedents were set, we didn’t have an understanding of the cognitive capacities of chimpanzees, elephants or some other species. So, the NhRP is challenging the underlying assumptions embodied in the law, based on contemporary ethics, ethnology and the study of non-human animals.

Q: How important is Happy’s case, even if the NhRP fails to obtain leave to appeal?

JB: Clearly the NhRP isn’t just interested in Happy. They’re interested in bringing forward legal challenges to try to have a larger impact on non-human animals, particularly cognitively advanced ones like chimpanzees, elephants, dolphins and pigs.

Q: What role does religion play in ensuring animals flourish according to their natures? Some Christians view Genesis 1:28, “dominion over the fish of the sea and over the fowl of the air and over every living thing that moveth on the Earth,” as giving humans rights over animals.

JB: As God says in Genesis 1, the world is created good. Evil enters the world after the fall. In the pre-fallen state, animals and human beings lived in peace. In the text of Genesis 1, dominion does not include eating or wearing other animals. But the goodness of the world and of all creatures still fundamentally remain. St. Francis of Assisi, and for that matter our current Pope Francis, both praise God for all goodness of all creatures, seeing them as brothers and sisters in our common home.   

Q: Where did society go so wrong in our relations with non-human animals?

JB: At the beginning of modernity, philosophers like the 17th century’s Francis Bacon and Rene Descartes said that we needed to disenchant ourselves from nature and not see it as alive, but rather as a giant machine that we needed to know the secrets of to improve the human condition. The world should be plundered for our advantage. Descartes thought of animals as basically furry machines without feelings or the ability to feel pain. 

Around this time you started having vivisection — experimentation on live animals — become widespread. This complete instrumentalization of non-human animals, with no concern whatsoever for their own flourishing, is a heretical view about the rest of God’s creations, incongruous with a biblical view of non-human animals. In Scripture, God speaks to human beings through other species. Non-human animals teach us both about God and our own nature.

Q: What do you hope results from your amici curiae?

JB: I hope that Happy is sent to a sanctuary where she’ll be happy, in other words, where she can flourish as an elephant. But whether or not Happy wins this, you hope that there are certain developments that will eventually benefit lots of others of God’s creatures who are treated so abominably in our culture from ignorance and entrenched financial interests.

(This Q&A has been edited for brevity and clarity. Staley is a Vancouver-based author, documentary filmmaker and magazine editor and writer. Her website is robertastaley.com)

(EDITOR NOTE: This story has been updated to reflect the May 4 decision for the New York Court of Appeals to hear the case.)