When New York's highest court, the Court of Appeals, recently declined to accept our appeal of our chimpanzee rights cases on behalf of two captive chimpanzees named Tommy and Kiko, we were disappointed, though not surprised.
The Court of Appeals refuses to hear more than 95% of the cases that come before it. It will take time and persistence to persuade any state high court to carefully and maturely consider the question of whether even a nonhuman animal as extraordinarily cognitively complex as a chimpanzee is entitled to the fundamental right to bodily liberty protected by the common law of habeas corpus.
Then we read the extraordinary concurring opinion by New York Judge Eugene M. Fahey and saw that, for the first time in United States history, a high court judge had directly addressed whether a chimpanzee, or any nonhuman animal, could have legal rights.
"While it may be arguable that a chimpanzee is not a 'person,' there is no doubt that it is not merely a thing," Fahey concluded, while urging the Court of Appeals to enter into the necessary public policy debate about the eligibility of nonhuman animals for legal rights.
For centuries, a high, thick legal wall has separated all "things," which lack the capacity for any legal rights, from all "persons," who have the capacity for an infinite number of rights. "Person" and "human," however, have never been synonymous, though many lower New York judges have not understood this.
One the one hand, many exploited humans, including women, children and slaves, were once considered legal "things" that lacked the capacity for any legal rights. Over centuries, civil rights struggles transformed them into "persons" with fundamental rights.
On the other hand, many nonhumans, such as corporations, ships, even New York State itself, have long been considered "persons" with legal rights. So has New Zealand's Whanganui River and the Te Urewera national park, the Amazon forest in Columbia, a Hindu idol and nonhuman animals in India, and, thanks to habeas corpus litigation in Argentina, a chimpanzee named Cecilia.
Fahey rejected the legal thinghood of such "intelligent, autonomous creatures" such as our chimpanzee clients. He also noted the amicus brief for our arguments from such eminent authorities as Harvard Law School Professor Laurence Tribe and a group of 17 philosophers, as well as powerful affidavits that detailed the extraordinary cognitive complexities of chimpanzees from world-renowned scientists that we had filed in the lower courts.
His opinion demonstrates his clear understanding of the fact that the eligibility of chimpanzees for legal rights is not a taxonomic question, but one of public policy.
He did not stop there. Fahey explained how each of New York's three intermediate court decisions that had rejected our claims had been wrongly decided and confessed his own ongoing "struggle" with having voted not to hear our first appeal to the Court of Appeals in 2015.
These decisions had incorrectly disqualified our chimpanzee clients from eligibility for personhood merely because they were not human or because they allegedly could not bear the duties the courts had mistakenly believed were required to possess the right to bodily liberty protected by habeas corpus.
What the lower courts should have done, Fahey wrote, was to have "assessed the intrinsic nature of chimpanzees as a species." The refusal of courts at all levels to have done this, he said, amounted to both "a refusal to confront a manifest injustice" and a failure to "consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect."
Along with New York Supreme Court Justice Barbara Jaffe's 2015 issuance of the first writ under a habeas corpus statute on behalf of a nonhuman animal in world legal history, Fahey's opinion will be seen as a significant turning point in the struggle to attain fundamental legal rights for nonhuman animals in the United States.
Thanks to ever-evolving science and human experience, we know too much about members of other species, including such demonstrably autonomous species as great apes, elephants, dolphins and whales, to continue to keep them, against all reason and good public policy, on the "thing" side of that wall. Like us, they suffer when deprived of their liberty. To treat them as things keeps them in chains, cages and tanks, and undermines the principles of justice that protect us all.