In December, Steven Wise, founder and president of the Nonhuman Rights Project, filed writs of habeas corpus on behalf of four chimpanzees he believed were wrongfully detained. Some scoffed at the idea — quips like “the law is going to the apes” or something about “appeals” and “banana peels” — but the facts were pretty bleak. One of the chimps, Tommy, is 26 years old and allegedly reduced to a life in “solitary confinement in a small, dank, cement cage in a cavernous dark shed” in upstate New York. Can you imagine more horrific conditions than upstate New York?

Seriously though, Tommy’s life sounds awful and a New York judge agreed. While admitting that he was unable to grant the order since, you know, the law doesn’t talk about chimps, Judge Joseph Sise conceded that Wise made a compelling argument. Yesterday, a five-member appellate panel heard Tommy’s case and depending on how they rule, they might just make a monkey out of Judge Sise. Is New York on the brink of a revolution in animal law?

The crux of Wise’s argument stems from the law’s recognition of autonomy. As Wired explains:

“Chimpanzees are autonomous, self-determining beings. Why shouldn’t they be legal persons?” attorney Steven Wise, founder of the Nonhuman Rights Project, said to WIRED last week. “How is it that we can ignore the autonomy of a nonhuman, while making [autonomy] to be a supreme value of a human being?” In December, Wise and the Nonhuman Rights Project filed so-called writs of habeas corpus—requests that a judge consider whether a person is being wrongfully imprisoned—on behalf of Tommy and, in separate cases, three other chimpanzees. Their briefs referenced several centuries of judicial precedents attesting to the importance of autonomy to legal definitions of personhood.

I haven’t heard this stirring an ode to the supreme value of autonomy since Ayn Rand blew John Galt in the penthouse of the Wynand Building. Frankly, the simpler argument — that he’s living in terrible conditions for no purpose — is much more personally compelling:

Tommy can’t speak our language, but it can be assumed he doesn’t want to spend his life alone in a cage, Wise argued. “Both as a matter of liberty and a matter of equality, you can’t say that an autonomous person doesn’t have any rights simply because he is a chimpanzee,” he said. “He is remarkably like us, and he suffers like us.”

Shouldn’t animal cruelty laws exist for this purpose? That seems like the simpler route. Except animal cruelty laws just aren’t up to snuff. The legislature deems it perfectly acceptable for Tommy to be kept in a cage alone, regardless of how bleak that renders his life. The legislature has defined the limits of the state’s role in protecting the welfare of chimps — Tommy needs to get beyond that. That’s why when one justice tried to trick Wise into casting the case as a matter of Tommy’s welfare, Wise had to lay out the distinction:

Justice Elizabeth Garry asked whether the lawsuit was, at its heart, about promoting Tommy’s well-being. That line of questioning, said animal law attorney Kevin Schneider in an interview after the hearing, was a sort of legal trap: It would have moved the lawsuit away from personhood and onto grounds of animal cruelty. “This is not a welfare issue,” argued Wise, who says existing animal welfare statutes permit Tommy to be kept alone in a cage. “The question is whether there is an unlawful detention here.”

The problem with moving the case out of the realm of welfare is that Tommy’s “freedom” is a bit of a sticky matter. Since he can’t safely be returned to the wild, a court order would only move him to a bigger, nicer habitat. If the case is about autonomy and not welfare, what does it matter if he’s in a small cage or a big one? That seemed to hang up some on the panel.

But as Elie put it back in the day, it’s not entirely crazy to see the case for a diminished set of rights — one that might allow for Tommy to exercise autonomy but only to a point:

We do, of course, have a class of persons in this country who don’t have maximum rights but are more than mere property. They’re called “children,” and most of them have considerably less intelligence than a chimpanzee. So there is precedent for extending legal protection to “human-like” creatures who throw poop and change the channel during the last two minutes of a football game.

And Wise echoed the comparison to human children when Presiding Justice Karen Peters asked him about how novel his theory really was.

Hey, I’m no animal rights freak, but if we’re extending the legal fiction of corporate personhood to include religious rights, we should at least give a creature with a 99 percent DNA match the right to not be locked in a shed. The standard really isn’t that onerous. If the courts fail to get this done — and based on the oral argument that seems likely — legislatures should take action to protect these creatures. But I wouldn’t hold my breath for that either.

If only the star of B.J. and the Bear ran a SuperPAC and thought Obama was born in Kenya, this would be on a fast track through the House right now.

New York State Court Hears Landmark Chimp Personhood Case [Wired]

Earlier: Lawsuit Of The Apes

http://news.sciencemag.org/plants-animals/2012/06/bonobos-join-chimps-closest-human-relatives