Yesterday, I filed an amicus brief on behalf of The Center for the Study of the Great Ideas in opposition to a lawsuit by the Nonhuman Rights Project (NRP) to release a chimp named Tommy from captivity in upstate New York. (The NRP is headed by attorney Stephen Wise, whose work on animal rights was recently featured in the Center's blog here. I last reported on the NRP's attempts to have the lower court release Tommy on a writ of habeas corpus on the Center's blog here. I've also blogged on the subject on my own website www.theoria.com).
Last week, the NRP filed a motion with NY's highest court, requesting that the court review the decision by a lower court which held Tommy is not a "person" under the law.
The amicus brief, filed with Max Weismann's permission, responded point-by-point to NRP's motion. The brief contends that the Appellate Division's rejection of the writ properly rested on its rulings that (a) no nonhuman animal has ever been considered a "person" for purpose of a common law writ of habeas corpus and (b) chimps should not be considered "persons" with legal rights, because "unlike human beings, chimpanzees cannot bear any legal duties."
In its latest attempt to persuade the courts that chimps are entitled to "personhood" under the law, the NRP suggested that the issue of personhood is a policy issue for the legislature to decide. But as our amicus brief points out, the NY legislature has never bestowed personhood upon any nonhuman animal.
And as to who gets to decide the question, the U.S. Supreme Court, in Roe v. Wade, 410 U.S. 113 (1973), specifically rejected the notion that the question of personhood devolves upon the legislature; on the contrary, the high court decided that this was an issue for the courts to decide under the 14th Amendment's "concept of personal liberty and restrictions upon state action." Id. at 153, 158. (It's important to note that the ultimate result in Roe v. Wade is not the issue here; a judge on the NY Court of Appeals, a strong proponent of the pro-life position, agreed in an important dissenting opinion in the 1970's that leaving the issue of "personhood" up the legislature is the same argument used by the Nazi judge's at Nuremberg). At the end of the day, "personhood" is an issue to be determined by basic principle's of natural law.
Admirers of the works of Mortimer Adler may be interested in the following passage in our brief:
A chimpanzee has no personal right to freedom or liberty. Why? Because it has no correlative duty “not to violate or infringe any one’s rights in doing so.” As the Appellate Division properly pointed out, “unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions.”
The correctness of the Appellate Division’s conclusion should be academic. To reach it, one need not accept the “social contract” theory referenced by the court. See, Richard L. Cupp, Jr., Children, Chimps, and Rights: Arguments from ‘Marginal Cases,’ 45 Ariz. St. L. J. 1 (2013); Richard L. Cupp, Jr., Moving Beyond Animal rights: A Legal Contractualist Critque, 46 San Diego L. Rev. 27 (2009). A far more comprehensive analysis, in amicus curiae’s view, was posited by the American philosopher Mortimer J. Adler. See, Mortimer J. Adler, The Difference of Man and The Difference It Makes (Holt 1969) and Intellect (Macmillan 1990). In a nutshell, non-human animals, having only an instinct to survive rather than a free will to choose otherwise, can neither understand nor carry out moral or legal obligations, such as respecting the life, liberty, and property of others. As the Appellate Division concluded, this incapacity to bear legal responsibilities “renders it inappropriate to confer upon chimpanzees the legal rights—such as the fundamental right to liberty protected by the writ of habeas corpus—that have been afforded to human beings.”
The New York Court of Appeals is expected to rule on the NRP's motion in May, 2015. If the Court accepts the appeal, a briefing schedule will be announced. If the Court of Appeals rejects the appeal, the NRP could seek review by the United States Supreme Court. We'll keep you posted...