An animal rights group faced a critical reception from the Colorado Supreme Court on Thursday, with the justices doubting they could recognize the legal rights of five elephants in Colorado Springs without also opening the floodgates for widespread attempts to release numerous species from captivity.

“Half the people in this room have dogs or cats and they’re wondering how this applies, perhaps, to their household,” observed Justice Maria E. Berkenkotter during oral arguments. “How would this work?”

“And my two dogs are really smart,” added Justice Carlos A. Samour Jr.

The Nonhuman Rights Project maintained it was not seeking to open the courthouse doors to all members of the animal kingdom, but rather to recognize the five female African elephants at the Cheyenne Mountain Zoo were uniquely positioned to seek release.

“The dog’s place is your couch. Elephants are wild animals. They exist entirely separate and apart from human society,” argued attorney Jake Davis.

Although the case is the first of its kind to come before the Colorado Supreme Court, the Nonhuman Rights Project has unsuccessfully filed suit elsewhere on behalf of confined animals. It has used a centuries-old legal tool known as “habeas corpus,” which allows people to challenge their detention.

The organization sued in El Paso County on behalf of Missy, Kimba, Lucky, LouLou and Jambo — elephants ranging in age from early 40s to mid-50s. The habeas petition outlined the elephants’ intelligence, complex physiological needs and alleged brain damage from being confined in the zoo. The petition sought the animals’ transfer to an accredited animal sanctuary.

Last year, District Court Judge Eric Bentley acknowledged courts in other countries have ruled that animals are entitled to certain rights and that confinement may be detrimental to the five elephants’ health. But for “better or worse,” he concluded the United States’ founding documents centered humans’ rights, and no court had recognized the personhood of other animals.

Courts may address an ethical problem “only to the extent it is connected to a recognizable legal right. Injustices are everywhere in this world, and the law provides remedies for only a few of them,” Bentley wrote in December 2023.

He also questioned why the Nonhuman Rights Project was better positioned to advocate for the elephants than Cheyenne Mountain Zoo, given that the Washington, D.C.-based group “cannot claim any significant relationship with these elephants, or indeed any relationship at all.”

The habeas appeal went directly to the Supreme Court, where some justices were frustrated with the attempt to deem elephants, by nature of their advanced characteristics, more worthy of benefitting from habeas corpus.

“You’re using a lot of adjectives and adverbs,” said Justice Richard L. Gabriel. “The strident language is not helpful, in my personal opinion. Let’s focus on the facts here. The issue is whether an elephant is a person for purposes of habeas corpus.”

Davis responded the word “person” in Colorado’s habeas law was merely a “placeholder,” referring to any individual.

“‘Person’ we understand to mean a certain thing: persons,” said Justice Melissa Hart. “Are dogs? … Are Justice Samour’s dogs persons?”

The Nonhuman Rights Project received support from a range of outside participants, including academics and lawyers based in the United Kingdom, leaders in the LGBTQ rights movement and a retired member of South Africa’s highest court. They traced the historical uses of habeas corpus and advocated for its extension to animals.

Some of the briefs pointed out habeas proceedings have been used to free enslaved persons, women under their husbands’ control and others who previously had limited legal rights.

“Those are all kinds of people that the law may have been blind to in the past,” responded Hart, “but we all recognize those as persons.”

Other members of the court wondered why the solution should be to judicially extend habeas rights to non-humans instead of asking lawmakers to tighten protections for animals in captivity.

“I don’t think you’re saying that anything happening at Cheyenne Mountain Zoo runs afoul of current law,” said Chief Justice Monica M. Márquez. “But those laws are inadequate in your mind. Why not go about this process by changing those laws?”

For its part, the zoo argued it met the highest accreditation standards for its elephants. It agreed the legislature could include animals in the definition of “persons” in the habeas corpus statute — if it wanted to — and warned the court against a “seismic shift” by extending habeas rights to elephants.

“These petitioners are engaged in a national policy campaign. Quite frankly, they raise money by bringing these suits,” said attorney John Suthers, the former mayor of Colorado Springs and Colorado’s former attorney general and U.S. attorney. He added the case could be a slippery slope that implicates pet ownership, service animals and even the consumption of meat — not to mention the custody of Samour’s two dogs.

“That’s what you’re inviting,” Suthers cautioned.

The arguments took place at the University of Colorado’s law school as part of the judicial branch’s “Courts in the Community” program.

Justice William W. Hood III did not participate in the appeal. As is the Supreme Court’s practice, he did not disclose his reason for recusal. 

The case is Nonhuman Rights Project, Inc. v. Cheyenne Mountain Zoological Society et al.