On June 14, the New York Court of Appeals handed down its eagerly anticipated opinion in Nonhuman Rights Project v Breheny. The case raised the question of whether an aging female Asian elephant called Happy confined at the Bronx zoo was entitled to be transferred to an elephant sanctuary through a writ of habeas corpus.
In a 5-2 decision, the Court rejected the appeal for Happy’s freedom. Their reasoning was, to put it mildly, not good. Much to the chagrin of animal law experts and the dissenting minority, the Court’s majority trotted out a familiar series of poorly-grounded claims that have been long rebuked. (I won’t dissect the majority ruling in this piece, but interested readers should read these excellent critiques here, here and here).
What if we saw Happy as an individual not property?
The crux of the majority’s decision probably isn’t grounded in legal principles, but rather on policy considerations. What would happen, the majority asked, if we were to find in favor of Happy? Extending habeas corpus rights to an elephant “would have an enormous destabilizing impact on modern society,” the five justices opined. In particular, it would risk the “disruption of property rights, the agricultural industry (among others), and medical research efforts.”
The Court had likely been persuaded by the numerous amicus briefs filed by lobby groups for the animal exploitation industries. An amicus brief is a written submission to a court by a person or group who is not party to the proceedings. Organizations representing aquariums, the meat and dairy industries and the biomedical research sector were among the many lobby groups filing amicus briefs in support of the Bronx Zoo.
There were slight differences in these briefs, but their central message was largely the same: animals are property. Court-ordered efforts to remove animals from their owners would violate property rights and open up the floodgates to animal rights groups filing lawsuits on behalf of pets, farmed animals and animal research subjects. The speculative claims in these briefs were both alluded to by the majority and endorsed as a central reason to reject Happy’s appeal.
How animal exploitation industries mobilize
What happened in Happy’s case is just one illustration of how the animal exploitation industries mobilize to thwart efforts to improve the legal status of animals. Sometimes, they do not even wait for such cases to be heard in court, instead opting to pre-emptively block them from getting there in the first place. The Idaho state legislature recently foreclosed the possibility of courts hearing a petition like Happy’s, passing a law this month to affirm that “nonhuman animals… shall not be granted personhood status.”
Yet it’s not only animals who have been denied the ability to sue the animal exploitation industries. Humans are harmed by these practices too. Many states have passed ‘right to farm’ laws that severely limit the ability of citizens to sue factory farms for pollution and property damage caused by their operations. In Utah, a bill was recently introduced that would prevent local governments from prohibiting or regulating any ‘animal enterprise’ including circuses, rodeos and zoos.
Given the political and regulatory capture of both the courts and state and federal legislatures, it is perhaps unsurprising that citizens in the US have instead sought to get animals protected through direct democracy, including ballot initiatives. But even these are not immune from corporate assault.
Landmark animal welfare referendum facing likely reversal
California’s Proposition 12 passed with over 62% of the popular vote in 2018. The ballot initiative eliminates some of the cruelest forms of confinement of animals on factory farms and prohibits the sale of meat and eggs produced by such methods in California.
The response of the animal exploitation industries was swift. The National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) initiated a series of legal challenges to Prop 12’s constitutionality, claiming it imposes an excessive burden on interstate commerce. Their latest legal challenge is now pending before the U.S. Supreme Court, but an army of supportive amicus briefs have been filed by right-wing think-tanks, Big Ag States and industry lobbyists.
The animal exploitation industries dominate both of the leading political parties in the U.S. Both the Trump and Biden administrations have lent support to the meat industry’s anti-Prop 12 campaign, each filing supportive amicus briefs calling for a judicial overhaul of California’s democratic vote.
Yet this corporate legal subterfuge is not limited to the U.S. In Canada, the meat industry lobbied for “ag gag” laws. In Switzerland, the pharmaceutical industry campaigned against extending fundamental rights to primates. In the United Kingdom, the government reversed its commitment to banning fur and foie gras imports.
Know Your Enemy
Though it’s not a foregone conclusion that the NPPC and AFBF will prevail in California, animal advocates should be prepared. If the industry is successful in overturning Prop 12 in the courts, that decision would only bolster ongoing efforts of animal exploitation industries to derail even fairly modest animal welfare reforms.
Corporate interests are often remarkably successful at blocking the avenues of legal change for animals – whether through litigation, legislation or referendum. But I highlight this point not as a counsel of despair. Though the economic interests that profit from animal exploitation are undoubtedly a formidable force, they are not invincible. Meaningful legal change for animals is possible. In fact, there are success stories. In 2020, a federal district court in Kansas struck down the state’s Ag-Gag law, finding it violated first amendment rights. The decision was affirmed by the Tenth Circuit and, in April, the U.S. Supreme Court declined to take up the case.
Ultimately, yes, the deck is firmly stacked against animal advocates, but knowing the enemy and how they operate is critical to our future success.
Dr. Joe Wills is a lecturer in law at the University of Leicester in the UK. His research interests are in human rights and animal rights law.