Judge Dives Into Ethics at Close of Caged Chimp Case

ALBANY (CN) – As New York’s highest court closed the book on an effort to endow chimpanzees with human rights, vying to free two from captivity, a judge emphasized that the philosophical quandary underpinning the suit remains.

“Denial of leave to appeal is not a decision on the merits of petitioner’s claims,” Judge Eugene Fahey said. “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?”

Fahey’s 7-page opinion appeared Tuesday as his colleagues on the New York Court of Appeals denied relief in a 5-0 vote to the Nonhuman Rights Project, which has been fighting for years to have chimpanzees regarded as legal persons.

A lower Manhattan appellate court shot down the project’s bid last year and Tuesday’s order leaves that result in place.

Fahey noted in his concurring opinion meanwhile that a group of philosophers raised compelling points in their February amicus curiae brief, which cited Enlightenment-era thinkers John Locke and Immanuel Kant in support of recognizing the chimpanzees Kiko and Tommy as legal persons.

“Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her,” the 66-year-old judge asked. “This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention.”

Fahey’s opinion also notes: “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.”

The comments drew applause from Lauren Choplin, a spokeswoman for The Nonhuman Rights Project.

“We commend Judge Fahey for his willingness to see our nonhuman clients for who they are, not what they are, and his acknowledgement of the importance and urgency of what we and so many other advocates around the world are fighting for,” Choplin said in a statement.

“At the same time, we lament that the Court of Appeal’s denial of our motion for leave to appeal means that Tommy and Kiko will have to wait even longer to regain the liberty that was taken from them decades ago,” Choplin added.

Both Kiko and Tommy live isolated, in small enclosures: Tommy is kept in a cage at a warehouse in Gloversville, New York, while Primate Sanctuary’s Kiko is caged in a cement storefront, in a crowded residential area in Niagara Falls.

Kiko, believed to be in his 30s, is a former animal actor. The Nonhuman Rights Project says the abuse he suffered on the set of the made-for-TV movie “Tarzan in Manhattan” has left him partially deaf.

Tommy, also believed to be in his 30s, is credited by his former owner as having appeared as “Goliath” in the 1987 film “Project X.”

The Nonhuman Rights Project was represented by Elizabeth Stein in New Hyde Park, New York.

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