The five year long struggle to free a pair of captive chimps in the state of New York has finally come to an end. Yesterday, New York’s highest court denied an appeal by the Nonhuman Rights Project, but one of the judges was clearly unsatisfied with the ruling, pointing out deficiencies in the legal system’s ability to deal with this “difficult ethical dilemma.”
With yesterday’s decisive 5-0 vote, judges with the State of New York Court of Appeals have upheld a ruling made by an intermediate appellate court back in 2017. This marks the second denied leave to appeal, this time by the state’s highest court, so this case is now truly closed. Tommy and Kiko, the chimpanzee plaintiffs, will have to stay locked in their cages, at least for now.
The organization that fought on their behalf, the Nonhuman Rights Project (NhRP), was seeking a writ of habeas corpus, or a right to bodily autonomy. Had the request been upheld, the chimps would have been regarded as legal persons worthy of protections normally afforded to humans. Ultimately, the NhRP was hoping to see Tommy and Kiko, who are currently confined to small cages in a warehouse and a cement storefront in a crowded residential area, released to a sanctuary where they could live out their days in peace.
This probably won’t happen now, but a statement made by one of the judges is raising some eyebrows. In his closing opinion statement, Judge Eugene Fahey upheld the prior decision to deny leave, but he admitted that arguments made by the lower courts were full of holes, and that the “inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas” were on full display during the case. And in a vexing, if not shameful, display of buck passing, he said the question of nonhuman animal personhood will have to be addressed eventually.
In his opinion statement, Fahey said the courts made a mistake by using a dictionary definition of “persons” to make their case back in 2014 when the NhRP first approached the courts. Likewise, he said the 2017 appellate division ruling was off the mark when it said chimps aren’t persons because they cannot participate in the social contract. As we pointed out at the time, and as Fahey now agrees, many humans cannot participate in the social contract (e.g. children, comatose patients, the profoundly disabled, etc.), yet we still recognize them as persons under the law. The appellate court, therefore, was basically arguing that chimps can’t be persons because they’re not humans.
“The Appellate Division’s conclusion that a chimpanzee cannot be considered a ‘person’ and is not entitled to habeas relief [i.e. the right to bodily autonomy] is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species,” wrote Fahey. “The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here.”
The appellate court made a second mistake in 2017, said Fahey, by claiming that the relocation of the chimps to a sanctuary, and not the wild, would mean the chimps would still be in a state of confinement. The nature of the facilities very much matters, Fahey counterargued, saying it was wrong of the appellate court to equate the two.
At the same time, Fahey was impressed by the “unrebutted” scientific evidence presented by the NhRP—evidence showing that chimpanzees have advanced cognitive abilities, such as the ability to remember the past and plan for the future, self-awareness and self-control, and the capacity to communicate using sign language.
“Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention,” Fahey wrote, adding that, “in elevating our species, we should not lower the status of other highly intelligent species.”
Moving forward, Fahey said the courts need to consider whether chimps are individuals with inherent value and deserving of rights that guarantee they are treated with respect.
“In the interval since we first denied leave to the Nonhuman Rights Project, I have struggled with whether this was the right decision,” wrote Fahey in his concluding remarks. “Although I concur in the Court’s decision to deny leave to appeal now, I continue to question whether the Court was right to deny leave in the first instance. The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”
Steven Wise, president of the NhRP, was encouraged by these comments, despite the ruling.
“Judge Fahey’s statement demonstrates exactly what it looks like for a superb common law judge to intellectually and emotionally confront novel and important legal questions pertaining to nonhuman legal personhood and rights,” said Wise in a statement. The NhRP said it’s going to continue to work to free Tommy and Kiko, while working on other personhood cases, including those involving elephants.
“Looking beyond just this legal outcome and examining the evolving perspectives, it is clear that there is recognition of the profound moral complexity of the question,” Kerry Bowman, a bioethicist at the University of Toronto, told Gizmodo. “The simplistic binary category of ‘person or thing’ is quickly coming apart. What is now apparent is that the moral status of great apes and other beings is no longer just an ethical question but an urgent legal one as well.”
Tommy and Kiko have an uncertain future, but as this case makes clear, the struggle to establish nonhuman animal personhood is far from over.
Correction: We have modified this article to make it clear that Fahey’s statement reflects his own opinions, and that he was not speaking for the entire court. Solo concurring opinions are common in judicial decisions. Gizmodo apologizes for any confusion.