Are nonhuman animals about to become legal persons? You might think so upon hearing about an order issued Tuesday by a New York trial judge that requires officials from the State University of New York at Stony Brook to appear and show cause why two chimpanzees, Hercules and Leo, should not be released from the facility where they are kept into the custody of Save the Chimps.
After all, this order parallels a standard habeas corpus order, which normally requires a jailer to appear and show cause why someone who is detained should not be released under the law. At the top of the order, big as life, is a caption reading "Order to Show Cause and Habeas Corpus." And the order says that the chimps should be released if there's a finding that they're "unlawfully detained." Not so fast. What's probably happening is a good deal more modest -- and more legally important than the never-ending debate about the ways chimps or other animals are like humans.
To understand what's going on, time-travel back to 1972. U.S. Supreme Court Justice William O. Douglas, dissenting in a case called Sierra Club v. Morton, proposed that trees should have standing. What Douglas meant, he explained, was that inanimate objects such as "valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air" should be granted legal standing in court so that humans could bring litigation to vindicate legal rights on their behalf.
Douglas wasn't saying that trees were people. He was harking back to an old legal tradition, according to which a ship or a piece of property under dispute could be treated as having standing of its own -- and thus as a legal person for the limited purpose of the litigation.
The Supreme Court didn't then show any interest in adopting Douglas's idea, and hasn't since. But federal courts, bound by Article III of the Constitution, have a higher barrier to standing than do state courts.
A state court, in contrast, might easily be prepared to adopt the legal fiction that animals have standing, provided some existing state law dictates that they be treated in a certain way.
That's what the judge's order appears to do, at least in substance. It recognizes that the true petitioner, an animal- rights group called the Nonhuman Rights Project, is bringing the case on behalf of Hercules and Leo.
When the lawyers for the project appear, they'll have to argue to the judge that Stony Brook is somehow violating state law in its manner of detention. Presumably relief can't be granted just on the ground that Hercules and Leo are being detained.
If it were, it might lead to all laboratory animals or pets being released from their owners' custody.
If and when the advocates prove that Stony Brook is breaking the law, then the question of the proper remedy would follow. The judge can't take away the university's property without a legal basis for doing so. If the law provides instead for fines, then the judge could order such fines to be paid. Any attempt to transfer title in Hercules and Leo without a legal basis is sure to be struck down by an appellate court.
It emerges that the legal process is still pretty far from any consideration of whether chimps have inherent liberty rights. Some animal-rights activists no doubt dream of a day when the courts will free detained animals. But for now, the issue is the more preliminary one of whether the courts will be open to nonhuman litigants.
That's a good thing. In the long run, the complex question of what rights nonhuman rights should have, if any, will need to be decided by democratically elected legislatures, not courts.
But so long as the legislature has already conferred legal rights in the form of guarantees to humane treatment, enforceable by loss of ownership or control, it makes perfectly good sense for state courts to consider claims made by humans on the animals' behalf. The job of the courts is ensure that the law is followed as written. It does little good for the legislature to confer rights if there's no good way for the beneficiaries of those rights to get into court.
The judge here may have hoped to make headlines by using the label of "habeas corpus" for the chimps.
If so, she succeeded. But the courts should treat this like any other case in which the parties make legal arguments and the judge decides them. Nonhumans should be able to get their rights enforced. But that's a totally separate question from what those rights should be.