Justice not blind to chimps
Judge expresses sympathy for primates even after agreeing to deny group chance to argue case
A top state judge’s opinion on the “personhood” of apes has evolved.
Associate Judge Eugene Fahey agreed to deny the Nonhuman Rights Project a chance to argue its case before the Court of Appeals last week, but he said he “struggled” with the issue and added that lower courts were wrong to reject the group on the merits.
In a strongly worded opinion, the 66-yearold Buffalo native and three-year member of
the state’s top court made it clear he sees legal efforts on behalf of nonhumans as far from quixotic.
“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?” Fahey wrote. “This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention.”
His comments came after chimpanzee rights advocates on May 8 asked the Court of Appeals to hear the cases of Tommy, a chimpanzee who was kept in a small enclosure in Fulton County, and Kiko, a chimpanzee who was being held in Niagara County.
Steven Wise, an attorney and founder of the Nonhuman Rights Project, contends Tommy and Kiko and other chimpanzees were held captive in situations no ape would choose to live in. He has called for the court system to grant their freedom so they can be taken to Save the Chimps, a 150-acre chimpanzee sanctuary in Fort Pierce, Fla., where 250 chimpanzees live.
Wise argues the term “person” has legally been applied to corporations,
books and a river — and does not carry the same meaning as “human being.”
In 2013, Wise asked two upstate judges to issue a writ of habeas corpus — a legal demand for a prisoner to be produced so a court can determine if imprisonment is lawful — on behalf of Tommy and Kiko,
Wise was denied every time, but he has not given up. In 2016, Wise told the Times Union, “Every aspect of law — every legal standard we have — at one point had never been done before. It’s going to take a struggle and we understand that and we’re in for a long, long struggle.”
He said at the time that judges did not know what to make of his argument. He said three different Appellate Divisions gave three different reasons to reject him. “Their instinct is, ‘Wait a minute. This is really new and strange. We don’t want them to win on this. Not yet.’”
Wise also told the Times Union in 2016 that he reached out to advocates of same-sex marriage to see what he could take from their efforts. Same-sex couples were denied the right to marry for decades until Gov. Andrew Cuomo signed it into law in 2011 in New York.
In 2006, when the Court of Appeals rejected the same-sex marriage effort in a 4-2 decision, Chief Judge Judith Kaye wrote a dissenting opinion saying: “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled
to exercise them.”
Fahey, who has previously denied Wise a chance to make the case at the Court of Appeals, is not supporting the Nonhuman Rights Project. But his opinion was as close as any judge has come to entertaining the arguments.
Fahey stressed in his decision on May 8 that this rejection was not on the merits.
“In the interval since we first denied leave to the Nonhuman Rights Project, I have struggled with whether this was the right decision,” Fahey wrote. “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.”
Chimpanzees and humans share at least 96 percent of the same DNA, he wrote.
“They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity
and confront it,” he said. The judge wrote, at one point, “In elevating our species, we should not lower the status of other highly intelligent species.”
Fahey said if he had to vote on the issue, he would likely vote against Wise’s efforts for now, adding: “The question will have to be addressed eventually. Can a nonhuman animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence a thing?”
He said that while the Manhattan-based Appellate Division of state Supreme Court reasoned that nonhuman animals cannot bear duties, “the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child.”
Fahey said a motion submitted by the Nonhuman Rights Group included the “unrebutted evidence” of affidavits from top primatologists that chimps have highly advanced cognitive abilities such as the ability to remember the past, plan for the future and use sign language.
“Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor,” he wrote.
Fahey said the issue should not be whether chimpanzees fit the definition of a human but whether the animals have a right to liberty protected by habeas corpus.
“That question, one of precise moral and legal status, is the one that matters here,” the judge stated.
Lauren Choplin, the communications director for the Nonhuman Rights Project, praised the judge for his words. His opinion is “already being seen as an historic mark of progress in the fight to secure fundamental legal rights for nonhuman animals,” she stated.
“We commend Judge Fahey for his willingness to see our nonhuman clients for who they are, not what they are, and his acknowledgement of the importance and urgency of what we and so many other advocates around the world are fighting for,” Choplin stated.
“This opinion should give hope to anyone who knows the time has come for fundamental change in how our legal systems view and treat nonhuman animals ... At the same time, we lament that the Court of Appeal’s denial of our motion for leave to appeal means that Tommy and Kiko will have to wait even longer to regain the liberty that was taken from them decades ago.”