Photo: Tommy the chimpanzee as featured in the HBO/Pennebaker Hegedus Films documentary Unlocking the Cage
Seven years ago today, something extraordinary happenedâa type of legal victory that came not as an outright win, but in the form of a concurring opinion. Judge Eugene Fahey of the New York Court of Appeals became the first judge sitting on a stateâs high court to challenge the notion that nonhuman animals should be treated as rightless things. By breaking ranks with convention and acknowledging what other judges hadnât yet fully confronted, Judge Fahey not only made history but demonstrated that the question of nonhuman rights isnât going away.
The cases before the New York Court of Appeals concerned Tommy, a chimpanzee held alone in a cage on a used trailer lot, and Kiko, a chimpanzee held alone in a cage attached to a private home. Tommy and Kiko were our clients in our first lawsuits seeking a nonhuman animalâs right to liberty, which we filed in 2013. The lower courts rejected their casesâessentially ruling that because they werenât human, they couldnât have rights. When New Yorkâs highest court declined to hear our appeal in 2015 we didnât give up. We filed a second case for Tommy with even stronger evidence and legal arguments to rebut how the lower courts had responded the first time.Â
By the time Judge Fahey issued his opinion, Tommy and Kikoâs suffering had already endured years of litigation. Though the judges applying the law insisted their hands were tied and that chimpanzees were pieces of rightless property, Tommy and Kiko showed every sign of being autonomous individuals. As such, they should have the right to liberty. World-renowned chimpanzee cognition and behavior experts contributed affidavits to their cases at the outset proving that chimpanzees need and want to live freely. Chimpanzees, they wrote, are able to remember the past and plan for the future. They possess self-awareness and self-control. They have the capacity to communicate through sign language, and they can engage in problem solving and tool use, among other complex capacities. Still, the lower court judges denied Tommy and Kiko the right to freedom simply because they were chimpanzees.Â
When Tommy and Kikoâs second cases reached the New York Court of Appeals in 2018, the court again denied our motion to hear the cases but didnât rule on the merits, i.e. said nothing about the substance of our arguments. Judge Fahey, concurring with the denial on technical grounds, chose to write a separate opinion that directly addressed our arguments. This opinion not only expressed support for chimpanzeesâ right to liberty, but also directly rebuked the logic underlying the lower court decisions. He wrote:Â
The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a âpersonâ or relegated to the category of a âthingâ amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek freedom from confinement through the writ of habeas corpus should not be used as a simple either/or proposition. The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.Â
Previous rulings justified the denial of legal rights to chimpanzees by claiming chimpanzees couldnât bear legal dutiesâand therefore couldnât hold rights. But Judge Fahey saw through this logic. He noted that human infants and adults with severe cognitive disabilities also lack legal duties, yet no one would argue they lack fundamental rights. He called out the inconsistency and made clear: the denial of rights based on species alone cannot stand.
Judge Faheyâs opinion couldnât change the outcome of Tommy and Kikoâs cases. But it changed the legal landscape. For the first time in US history, a high court judge validated the core of the NhRPâs arguments. He recognized the legal strength of what weâre asking: that the justice system stop ignoring the very tangible interests of nonhuman beings simply because they arenât human.Â
Judge Faheyâs opinion is not only remarkable because of its powerful analysisâthe opinion also signifies a significant act of judicial courage. Judge Fahey ended his opinion by candidly revealing his personal struggle with the courtâs decision to not hear Tommy and Kikoâs cases when it had the opportunity in 2015:
In the interval since we first denied leave to the Nonhuman Rights Project, I have struggled with whether this was the right decision. Although I concur in the Courtâs 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 âperson,â there is no doubt that it is not merely a thing.
Judge Fahey was the first US state high court judge to take a position validating legal rights for nonhuman animalsâa position none of his colleagues on the New York Court of Appeals took with him at the time. Although he retired from the bench shortly after writing his opinion, his colleagues Judge Rowan Wilson (now the Chief Judge) and Judge Jenny Rivera joined his ranks in 2022 with their powerful and historic dissents in favor of Happyâs right to liberty. Weâll share further analysis of these dissents in June on the anniversary of the day they were issued.
In the years and decades to come, Iâm confident the legal system will increasingly follow Judge Faheyâs arc from initial denial to sympathizer of legal rights for nonhuman animals. This anniversary in the history of the NhRP and the nonhuman rights movement reminds us why we keep goingâeven when the system is stacked against nonhuman animals in so many ways.Â
Legal change doesnât begin with easy wins. It begins when people who believe in justice refuse to give up. And when powerful figures like Judge Fahey are willing to listen and to speak on behalf of justice for all.