Wednesday, May 27, 2015: New York County Supreme Court, 60 Center Street.
The hearing was about to begin, and I knew I was about to witness history.
Sitting in the middle of the packed courtroom, I could hear tense, excited chatter all around me. The film crew for the Pennebaker Hegedus Films/HBO documentary Unlocking the Cage had finished setting up their equipment, just adjacent to where New York Supreme Court Justice Barbara Jaffe would be sitting. At the front table reserved for attorneys, the NhRP’s founder and lead attorney Steve Wise and NhRP colleagues sat on one side, while lawyers from the New York Attorney General’s office sat on the other.
The courtroom scene I witnessed that day stemmed from a court order issued a month earlier, compelling the jailers of Hercules and Leo–the State University of New York at Stony Brook–to justify the two young chimpanzees’ imprisonment in a basement lab for use in locomotion research. Over the ensuing weeks, fierce written exchanges between the NhRP and those jailers unfolded, full of technical and often arcane arguments regarding venue, res judicata, and stare decisis. Now, those arguments would be presented in court, subjected to live questioning by the presiding judge—who would also consider the fundamental, normative question at the heart of the case: Can a nonhuman animal be a person for purposes of habeas corpus?
Justice Jaffe entered the courtroom in her robes. Everyone stood out of respect until she was seated, and the hearing began.
As I felt then—and believe even more strongly today—May 27th, 2015 represented an extraordinary moment of legal progress for nonhuman animals.
Challenging human exceptionalism
In his book Rattling the Cage, Steve wrote about the “thick and impenetrable legal wall” that has separated humans from all nonhuman animals for thousands of years. On one side of that wall, “even the most trivial interests of a single species—ours—are jealously guarded,” while on the other, the fundamental interests of the rest of the animal kingdom are systematically ignored. This arbitrary and unjust divide is the product of human exceptionalism: the ideology that humans are uniquely special among all living creatures and therefore justified in treating other animals as mere resources, as legal “things” with no rights.
To begin breaking down this “thick legal wall” and secure legal rights for nonhuman animals, human exceptionalism must be challenged. Openly and relentlessly. Again and again and again. Through our habeas corpus lawsuits, which force judges to grapple with the injustice of the status quo, this is exactly what the NhRP does.
And that is exactly what happened at the historic hearing on May 27th, ten years ago today: human exceptionalism was challenged—this time in open court, in a proceeding where the legal thinghood of nonhuman animals could not be ignored but was confronted, on the record.
Invoking the fundamental principles of liberty and equality, Steve argued that Hercules and Leo, as autonomous, self-determining beings, are entitled to the protections of the Great Writ of Habeas Corpus. The very purpose of that ancient common-law writ, he explained, is to “protect the autonomy of autonomous and self-determining beings,” and “science has shown us over the last 50 years, especially over the last 20, that there are more autonomous beings in this world than just human beings.” When it comes to protection from arbitrary imprisonment, the autonomy of a human matters as much as the autonomy of a chimpanzee—as Steve put it, “autonomy is autonomy.” Arbitrarily imprisoning beings “who can remember the past” and “plan ahead for the future” is a grave wrong, regardless of species.
Justice Jaffe grappled with these arguments. In a remarkable question posed to Christopher Coulston, the attorney from the New York Attorney General’s office, she asked:
Isn’t it incumbent upon the judiciary to at least consider whether a class of beings may be granted a right, or something short of a right under the habeas statute, some kind of special status? Thus why can’t a chimpanzee, by virtue of the traits documented in Petitioner’s exhibits … be deemed a person for the sole purpose, as Mr. Wise says, of permitting the writ to the very limited extent sought? Why isn’t that an appropriate use of this Great Writ?
In other words, Justice Jaffe demanded a justification for treating chimpanzees differently for purposes of possessing the right to liberty—a justification for human exceptionalism. That demand marked a historic turning point. Never before had a judge so directly, and so openly, questioned the unjust status quo. For the first time, the liberty claims of imprisoned nonhuman animals were treated in a court of law with the gravity and seriousness they deserved.
Mr. Coulston, though an impressive lawyer, did not offer an impressive answer. The “real distinction” between chimpanzees and humans, he tried to explain, is that chimpanzees “are [a] fundamentally different species than human beings,” with no ability to “partake in human society.” Habeas corpus is simply “a Great Writ for human beings,” not for other animals. Moreover, he speculated, without evidence, that expanding rights beyond our species could lead to the “diminishment” of human rights.
Human exceptionalism was thus challenged in open court, on the record, and it was forced to answer that challenge with its arbitrary foundations exposed.
This is the enduring legacy of the two-hour hearing held for Hercules and Leo. Ultimately, Justice Jaffe concluded after Hercules and Leo’s hearing that she was bound by prior appellate decisions in our clients Tommy and Kiko’s cases that denied their right to liberty. However, this courageous and intellectually curious judge gave them their day in court—to contest their unjust status as legal “things.” And that same summer, in response to the public pressure generated by our lawsuit, Stony Brook voluntarily stopped using Hercules and Leo in research. In 2018, they became residents of Project Chimps sanctuary. Their lives as research subjects are now behind them.
That day, in many ways, two imprisoned nonhuman animals were treated no differently than members of our species in the eyes of the law. It would not be the last.