NY’s highest court rejects bid to grant chimps ‘legal personhood’

New York State’s highest court has again denied an animal rights organization’s bid to gain “legal personhood” for two chimpanzees.

Despite the decision, advocates hailed a concurring opinion by state Court of Appeals Justice Eugene Fahey that seemed to grapple with the question of who or what is entitled to personhood — evidence, they argued, that the debate is not over.

“We commend Judge Fahey for his willingness to see our nonhuman clients for who they are, not what they are, and his acknowledgment of the importance and urgency of what we and so many other advocates around the world are fighting for,” the Nonhuman Rights Project said in a release. “This opinion should give hope to anyone who knows the time has come for fundamental change in how our legal systems view and treat nonhuman animals.”

Fahey agreed with the five-judge panel’s decision, which kept intact a June 2017 ruling by an appellate court that said Tommy and Kiko, two captive adult chimpanzees, are not people and, therefore, not entitled to the right to be free.

But his seven-page opinion was seen by advocates for the chimps as a progressive stance that sets the stage for another legal battle over the rights of “non-human” animals.

“I write to underscore that denial of leave to appeal is not a decision on the merits of petitioner’s claim,” Fahey wrote in an opinion accompanying the May 8 decision. “The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence, a thing?”

The writ of habeas corpus is a fundamental legal device that allows people to challenge the legality of their detention. The denial of that right to the chimps did not surprise the Nonhuman Rights Project, which — in addition to advocating for Tommy and Kiko — has brought similar cases on behalf of Hercules and Leo, chimps that were once being studied at Stony Brook University and then earlier this year went to a Georgia sanctuary.

Indeed, the Court of Appeals denied an appeal by the national group on behalf of the same animals in 2015. But the group said their hopes were buoyed by Fahey’s concurring opinion, which stated that “in elevating our species, we should not lower the status of other highly intelligent species.”

“The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings,” Fahey wrote. “Chimpanzees share at least 96 percent of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.”

Tommy and Kiko are currently being held by their owners in upstate New York. The Nonhuman Rights Project has sought to have them removed to a sanctuary in Florida.

One of the chimpanzees’ owners declined to comment Wednesday and the other could not be reached.

Elinor Molbegott, an East Williston-based attorney who serves as counsel for the Humane Society of New York, said Fahey’s concurring opinion represents a step forward in the decades-long movement to extend rights that humans enjoy to non-human animals.

“It left the door open for them to bring another case in New York and other places,” she said, calling Fahey’s words an “eloquent” opinion. “It shows some more enlightenment. . . . Even in a few years since the beginning of this case, it has surprised all of us in some ways, even with this loss, how enlightened the judges are and how seriously this was taken. That leaves hope for the future.”