Justice Welch’s dissent becomes the fourth state high-court opinion recognizing the NhRP’s arguments have merit.
In July 2022, after the New York Court of Appeals issued its decision in Happy’s case, I wrote about the importance of now-Chief Judge Rowan Wilson’s and Judge Jenny Rivera’s dissenting opinions. I quoted Peter S. Canello’s biography of former U.S. Supreme Court Justice John Marshall Harlan, The Great Dissenter, and his observation that dissents often become “beacons to escape from the maze of tainted opinions laid down by the court’s majority.” In other words, dissents do not change the outcome of the cases in which they are written, but they can shape the future of the law.
On July 17, four years after the dissents in Happy’s case, Justice Elizabeth Welch of the Michigan Supreme Court lit her beacon, illuminating yet another path toward a different legal future for nonhuman animals with a remarkable dissenting opinion in our case on behalf of the DeYoung chimpanzees.
For centuries, the law has treated nonhuman animals as legal things. As a result, the common law has refused to recognize that they could possess a fundamental right to liberty. But changing the common law has never been about finding one judge willing to overturn centuries of precedent overnight. It has always been about something smaller: providing a judge with enough evidence for them to ask whether old rules still make sense. A judge willing to question assumptions that have gone unchallenged for generations is a judge willing to reaffirm that the common law should continue its centuries-long tradition of growth.
Last week, Justice Welch became the latest judge to do exactly that. Her dissent marks another critical moment in the Nonhuman Rights Project’s (NhRP) effort to secure the fundamental right to liberty for autonomous, extraordinarily cognitively complex nonhuman animals, like our chimpanzee clients in Michigan. Importantly, Justice Welch did not conclude that chimpanzees are legal persons nor did she order their release. But she did something increasingly significant: she took the arguments seriously. She questioned the eighteenth-century legal and biblical theories that have long been used to deny nonhuman animals access to the Great Writ, and she asked whether the common law should evolve considering what science now proves about who chimpanzees are.
These two passages from her dissent capture that approach:
“As a foundational matter, I question whether an eighteenth-century British jurist’s interpretation of the Book of Genesis is a sound foundation for Michigan common law in the twenty-first century.”
“Rather than rely on Blackstone, the Book of Genesis, Hobbes, and social contract theory, I would have taken up the issues raised by plaintiff and explored whether our scientific understanding of chimpanzees should change our view of habeas relief. Plaintiff and amici present considerable evidence that chimpanzees can think, feel, love, grieve, and yearn. . . . Someday, the effort to extend rights to chimpanzees may succeed.”
Our late founder, Steven Wise, often described the law as a wall separating humans from every other animal. On one side stand legal persons, whose fundamental interest in liberty is recognized and protected. On the other side stand legal things, whose most basic interests––including freedom from lifelong confinement––remain invisible to the law. That wall was not built by science. It was built, and has been sustained, by legal tradition informed by outdated assumptions about who nonhuman animals are: automatons incapable of thought, emotion, or the rich inner lives that science now confirms they possess. But like every wall built by human hands, it will not come down all at once. It must be dismantled one section at a time.
For more than a decade, the NhRP has asked courts to confront the simple but profound question of whether the common law, informed by modern scientific understanding, can recognize that certain autonomous, extraordinarily cognitively complex nonhuman animals possess a fundamental right to liberty. Most courts have answered no. But a small, yet increasing, number of judges have taken the question seriously and challenged the assumptions that have hardened into doctrine over the years. These judges are chipping away at an unjust legal status quo that has stood unchallenged for centuries. They have recognized that our cases ask a question that the law may postpone, but cannot avoid forever.
True engagement with our legal theories arguably began in 2015 with Justice Barbara Jaffe’s decision in Stanley, a case we brought on behalf of Hercules and Leo, chimpanzees confined to a basement research lab at Stony Brook University. Although she ultimately concluded she could not rule in our favor because of binding appellate precedent, Justice Jaffee nevertheless signed the order to show cause, becoming the first judge to allow our arguments to be tested in an adversarial proceeding on the record. As she explained years later, difficult legal questions are not answered by refusing to confront them. Courts fulfill their role by engaging novel arguments honestly and openly, rather than dismissing them with ridicule or avoiding them altogether, even when existing precedent may constrain the outcome.
Since 2015, Justice Jaffe has not stood alone. In 2018, Judge Eugene Fahey observed in Tommy that whether a chimpanzee may invoke the writ of habeas corpus “will have to be addressed eventually” and emphasized that the question is not merely “definitional,” “but a deep dilemma of ethics and policy that demands our attention.” Judge Fahey went on to provide one of the most important observations in animals rights litigation, and it remains as relevant today as ever:
“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.”
In 2022, writing for the Breheny minority, Judges Rowan Wilson and Jenny Rivera produced what remains the most thorough judicial examination ever undertaken of the legal, historical, scientific, and philosophical questions our cases present. Their dissents trace the common law’s capacity for growth, reject the assumptions that have long excluded nonhuman animals from its protections, and confront in remarkable depth what modern science reveals about elephants and their autonomous nature. Their opinions are too rich and too detailed to be captured in a single excerpt; they are essays as much as judicial opinions, and I encourage anyone interested in these questions to read them in full.
Justice Jaffee, Judge Fahey, Judge Wilson, and Judge Rivera did not tear down the wall Steve described in Rattling the Cage: Toward Legal Rights for Animals, as the four-thousand-year-old “thick and impenetrable wall [that] has separated all human from all nonhuman animals.” But each judge removed another stone, another brick from its foundation, weakening a structure that has stood for centuries largely because too few judges had ever paused to consider whether it should stand at all.
Justice Welch’s dissent is the latest judicial opinion to pause and ask whether the wall should remain standing. It is the first favorable opinion by a justice on a state’s highest court outside New York, and it engages with the legal, historical, and philosophical foundations of our cases.
Rather than uncritically accepting eighteenth-century conceptions of “despotic dominion” rooted in biblical interpretation, philosophical musings on the “social contract theory,” or antiquated understandings of the common law, Justice Welch asked the question courts too often avoid: whether those authorities remain persuasive in modern-day society. In doing so, she considered not only the evolution of Michigan common law, but also what modern science has revealed about the autonomy, cognition, and inner lives of chimpanzees. The answer, she suggested, must reflect the common law’s capacity for reasoned evolution rather than unquestioning adherence to the past.
The legal wall Steve often described still stands, but it bears the unmistakable signs of a structure beginning to fail. Each thoughtful opinion chips away at assumptions once treated as self-evident. Each judge willing to reconsider inherited doctrine weakens the foundation beneath it. Transformative change in the common law rarely comes all at once. It advances slowly, as judges ask whether yesterday’s answers remain adequate today. Justice Welch’s dissent exemplifies the careful, reasoned engagement one would expect from a great common law judge. History teaches that legal structures built on outdated premises rarely survive once judges begin examining the foundations beneath them, and that examination has now begun across state lines.