New York Judge Raises Key Questions about Animal Captivity

Do orcas and belugas, along with certain other animals, have a legal right not to be kept in captivity for entertainment and profit? It’s a question that’s now been placed firmly on the table by a judge on New York State’s highest court.

In a case regarding two chimpanzees being kept in cages in private homes, Eugene M. Fahey, one of the judges on New York’s Court of Appeals, has issued an opinion that represents a major step forward in the cause of securing fundamental legal rights for nonhuman animals.

The cases of the two chimpanzees, Tommy and Kiko, have been working their way through the courts since December 2013, when the Nonhuman Rights Project (NhRP) petitioned for a common law writ of habeas corpus “to demand recognition of Tommy’s legal personhood and right to bodily liberty and his immediate transfer to an appropriate sanctuary.”

Judge Eugene M. Fahey — New York Court of Appeals

Last week, the Court of Appeals turned down the NhRP’s request for further review, as it does with 95 percent of such requests, thus bringing an end to the process. But while Judge Fahey concurred in the decision of his colleagues, he notes that the decision was not made on the merits of the NhRP’s claim.

And he writes that the failure of the Court to grapple with the issues raised by the case “amounts to a refusal to confront a manifest injustice” for the question of nonhuman animals’ legal personhood and rights.

“[It constitutes] a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others.

“Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.”

The same can be said for other kinds of animals for whom there is clear scientific evidence of self-awareness and autonomy. These include whales, dolphins and elephants.

Appellate court decisions were “mistaken”

Regarding the chimpanzees, Judge Fahey’s opinion makes clear that earlier rulings against the NhRP by three intermediate appellate courts were wrong in disqualifying chimpanzees from eligibility for habeas corpus merely because they are not human or could not bear duties. Instead, he writes, the lower courts should have “assessed the intrinsic nature of chimpanzees as a species,” as the NhRP had argued.

Judge Fahey concludes his opinion with a remarkable and thoughtful personal reflection:

“In the interval since we [the Court of Appeals] first denied leave to the Nonhuman Rights Project, I have struggled with whether this was the right decision. 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.”

In commending Judge Fahey’s opinion, NhRP President Steven M. Wise writes that “it allows us to glimpse how a superb common law judge intellectually and emotionally confronts novel and important legal questions over time.”

Meanwhile, the NhRP has launched a new initiative. In November 2017, it filed a lawsuit on behalf of three elephants who are being held captive at a zoo in Connecticut, where they have been forced to give rides, serve at weddings, and entertain at circuses and fairs. The suit, currently working its way through the Connecticut legal system, argues that they are being held illegally and should be released from the zoo and transferred to a sanctuary.

Attorneys for the organization have also been exploring the possibility of similar legal action in relation to whales who are being held in concrete tanks at marine theme parks.