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Nonhuman Condition

The “rights we confer on others,” including animals, do indeed “define who we are as a society”


When I saw the news report this week about a court ruling involving an elephant residing in the Bronx Zoo, of which I have fond childhood memories, I just knew I had to weigh in.

There I go. I told myself I needed to stay focused on the story and steer clear of the plethora of puns strewn all about, and I’ve slipped already (although that’s understandable, since the case was on appeal).

But when a lawyer named Steven Wise sues to free an Asian elephant named Happy from her longtime Bronx Zoo digs by invoking habeas corpus (a legal remedy for unlawful detention), it can be really tough not to crack Wise about this plaintiff, not to say something about this being the habeas with the biggest corpus I’ve ever seen. To do otherwise would be to ignore the elephant in the room.

Before beginning to write, I thought it made sense to check out attorney Wise’s bona fides. Thinking he might be a big-firm litigator, I searched for Healthy, Wealthy and Wise, LLP. Nothing doing. Could he be a solo practitioner, perhaps with a practice limited to nonhuman clients? I checked an attorney’s directory for Steven Wise, PC — Pachyderm Counsel — but again, nothing.

Then I remembered: Mr. Wise’s name had actually appeared in this column twice before, in his capacity as the litigious leader of something called the Nonhuman Rights Group. Back in 2016, in fact, I reported on a forum he spoke at on “The Struggle to Achieve Fundamental Legal Rights for Nonhuman Animals.”

Already then, Wise was engaged in monkey business, having recently succeeded in getting a New York State judge to authorize a writ of habeas corpus to free two chimpanzees from a Stony Brook University science laboratory. That ruling was ultimately reversed on appeal (undoubtedly of the banana variety), but the indefatigable Mr. Wise was not to be deterred and moved on to bigger challenges.

Much bigger. He sued for the release of three elephants, Minnie, Beulah, and Karen, owned by a family-owned traveling zoo in Connecticut. Acknowledging that the zoo hadn’t violated any animal welfare statutes, Wise argued instead that the trio’s “most fundamental right as elephants… the right to bodily liberty” required that they be allowed to pack their trunks (presumably with loads of peanuts) for the move to a natural habitat sanctuary.

Then, in 2020, he took up the cause of Happy, a Thailand-born, 50-something female who has been at the Bronx Zoo since 1977. Having grown up in nearby Pelham Parkway, thinking of the Zoo always leaves me with fond memories. There were, of course, the many Chol Hamoed outings there — when we’d meet half the frum world being oleh regel to visit our local treasure — and there was also the occasional very long walk over there on a Yom Tov afternoon when it coincided with one of the Zoo’s entrance fee-free days.

Happy originally arrived at the zoo with a pal, Grumpy, and the two of them lived with an older female elephant, Tus, in the Elephant House. But two decades ago, Tus died, and then another Asian elephant, Patty, charged at Grumpy, fatally wounding her. And since then, Happy has been living in the Wild Asia section of the zoo in a two-acre, tree-lined enclosure that she shares with Patty, with a fence separating the two.

Mr. Wise’s Nonhuman Rights Group sued the Wildlife Conservation Society, which operates the Bronx Zoo, and petitioned the court for Happy to be moved to what it says is the far more natural setting of a large elephant sanctuary.

The parties to the suit disagreed on the question of whether Happy is, well, happy. The Society insisted she is “well cared for by professionals with decades of experience and with whom she is strongly bonded,” and that the suit is nothing but “blatant exploitation.” Besides the human contact, zoo officials report that Happy and Patty touch trunks, smell each other, and communicate in other ways.

Steven Wise disagreed, contending that Happy is “a depressed elephant” for whom the zoo is a lonely “prison,” and arguing that she doesn’t get along with Patty. Going further, he asserted that there is “abundant, robust scientific evidence of elephants’ autonomy, i.e. their ability to choose how to live their emotionally, socially, and cognitively complex lives.” The Declaration of Independence enumerates three fundamental rights, and Wise seems to be arguing that the zoo is denying her two of them: the right to liberty and to her pursuit of Happy-ness.

In February 2020, a trial court judge in the Bronx rejected the Wise group’s petition, and an appellate court affirmed that ruling, setting the stage for the case to be heard by the seven-judge Court of Appeals, New York State’s highest court.

The court ruled in the zoo’s favor, with Chief Judge Janet DiFiore writing the opinion holding that “habeas corpus is a procedural vehicle intended to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals.” She wrote further that to hold otherwise “would have an enormous destabilizing impact on modern society,” as it would call into question the very premises underlying pet ownership and the use of service animals.

But the ruling wasn’t unanimous, with two judges dissenting. One of them, Judge Rowan D. Wilson, wrote that the court had a duty “to recognize Happy’s right to petition for her liberty, not just because she is a wild animal who is not meant to be caged and displayed, but because the rights we confer on others define who we are as a society.”

Certainly, there is a Torah way to relate to and treat animals. The Ramban (Bereishis 1:29) writes that until the Mabul, man was prohibited from eating meat because “those with souls of mobility [i.e., animals] have a certain significance to their souls by which they resemble those with souls of rationality [i.e., human beings], and like man they have the ability to exercise choice regarding their welfare and their food and flee from pain and death.”

Only once Hashem spared some animals from destruction in the Mabul for Noach’s sake, the Ramban continues, did He permit man to partake of their meat. Even then, He did not give permission to “eat the soul,” which is why both a limb from a living animal and their blood remain prohibited. And this, too, is the reasoning underlying both the institution of shechitah and the prohibition to cause pain to animals.

I don’t know how much discussion there is in halachah about the permissibility of zoos, but any discussion would revolve around man and his obligations. That is to say, even if the balance of considerations dictates that a zoo represents tzaar baalei chaim, it is for his own moral development that man must not engage in such behavior. It is ultimately about the needs, both spiritual and material, of the human being.

So perhaps, although it’s not the way he intended it, Judge Wilson might be on to something. The “rights we confer on others,” including animals, do indeed “define who we are as a society.”

And by being the vehicle for the fulfillment of human needs, whether for consumption, work, or simply as a way for humans to refine their character, the animal fulfills its own purpose in this world, too. Whether at a two-acre Bronx estate or in the vastness of a protected animal sanctuary, only by fulfilling that purpose can this elephant be said, in Jewish terms, be assured of living Happily ever after.


(Originally featured in Mishpacha, Issue 916. Eytan Kobre may be contacted directly at kobre@mishpacha.com)

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