That’s One Small Step for a Judge, One Giant Leap for the Nonhuman Rights Project

 (The Non-Human Rights Project)

That’s one small step for a judge, one giant leap for the Nonhuman Rights Project in its fight for the fundamental rights of nonhuman animals; Judge Jaffe decides the Hercules and Leo case.

On July 29, 2015, New York County Supreme Court Justice Barbara Jaffe entered an order in the habeas corpus case of Hercules and Leo, two chimpanzees who have been imprisoned at Stony Brook University for the last five years. You may recall that, last April, Justice Jaffe issued an Order to Show Cause that required Stony Brook to come into Court on May 27 and give a legally sufficient reason for detaining Hercules and Leo. At the ensuing hearing, Stony Brook offered a plethora of defenses. One would stick; Justice Jaffe would believe herself bound by the adverse decision in Tommy’s case that is now before New York’s high court, the Court of Appeals. The others she rejected, many for the very first time, in a way that will allow the NhRP to cite her decision for years to come.


Justice Jaffe’s most critical rulings, all made for the first time, turned aside three potentially lethal procedural obstacles to the NhRP’s being able to present any court with the merits of its “personhood” arguments. First, she issued an Order to Show Cause under a habeas corpus statute for a nonhuman animal. Second, and related, in reliance upon the action of the great Lord Mansfield in the historic 1772 English slave decision of Somerset v. Steuart, the NhRP asked Justice Jaffe to issue an Order to Show Cause on behalf of Hercules and Leo under New York’s Habeas Corpus Statute, CPLR Article 70, without the necessity of having her first determining that they were “persons” (entities with the capacity to possess at least one legal right). Three Supreme Court Justices before her had refused. But she issued it. Third, Judge Jaffe determined that a human or corporation (the NhRP) had “standing” to bring a lawsuit directly on behalf of a nonhuman animal without having to allege any injury to human interests.

Justice Jaffe also found in the NhRP’s favor on three more important, if less critical, preliminary issues. She supported our decision to re-file the Hercules and Leo case in New York County Supreme Court though it had been dismissed out-of-hand by a hostile Suffolk County Supreme Court Justice, then affirmed by an intermediate appellate court for that county that refused even to allow the NhRP to file a brief (for you lawyers, Justice Jaffe found we had proper venue). She supported our argument that she should make the Order to Show Cause returnable to her rather than to a Suffolk County Justice. Finally, she ruled that the decision of the Suffolk County Courts did not bind her in any way (again, for your lawyers, the prior rulings were neither collateral estoppel nor res judicata).

When Justice Jaffe arrived at the main event – were Hercules and Leo “persons” for the purpose of release by a writ of habeas corpus – she again agreed with the NhRP, this time on four more key arguments. She was not bound by the adverse determination of the Fourth Department in Kiko’s case (which is before the Court of Appeals on the NhRP’s request for leave for further review), as it conflicts with settled law in the First Department, the department in which she sits. She determined that the so-called “floodgates argument is not a cogent reason for denying relief.” She said that “persons” are not restricted to human beings, and that who is a “person” is not a question of biology, but of public policy and principle. “(T)he parameters of legal personhood have long been and will continue to be discussed and debated by legal theorists, commentators, and courts,” she wrote, ”and will not be focused on semantics or biology, or even philosophy, but on the proper allocation of rights under the law, asking, in effect, who counts under our law.”

Alas, the NhRP could not make it through the final hoop. Justice Jaffe accepted the argument of the Assistant Attorney General that she was bound by last year’s adverse determination by the Third Department that Tommy was not a “person” because he could not bear duties and responsibilities (this decision is also before the Court of Appeals on the NhRP’s motion for leave for further review, and is supported to date by “letter briefs” submitted by Harvard Law School Professor Laurence H. Tribe, the Center for Constitutional Rights, and a consortium of habeas corpus scholars urging the Court to accept further review). It wasn’t that the law of the First Department supported the Third Department’s judgment; it was that there wasn’t any law at all.

Yet, one didn’t have to read hard between the lines to speculate how Justice Jaffe might have ruled had she not believed herself bound by the Third Department’s Tommy decision. “State trial courts must follow a higher court’s existing precedent ‘even though they may disagree,’” she wrote, quoting former Chief Judge Judith Kaye. She referred the Nonhuman Rights Project to the Legislature or to the Court of Appeals, “given its role in setting state policy.”

“If rights were defined,” Justice Jaffe wrote, quoting the recent gay marriage case, “by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” She concluded:

Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed. Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in bolder, more inclusive interpretations of the law, if only to the modest extent of affording them greater consideration. As Justice Kennedy aptly observed in Lawrence v. Texas(the 2003 gay rights case that struck down a state sodomy statute), albeit in a different context, “times can blind us to certain truths and later generations can see that laws once though necessary and proper in fact serve only to oppress (citation omitted). The pace may be accelerating (citing the recent gay marriage case “granting the right to marry to same sex couples and acknowledging that institution of marriage has evolved over time notwithstanding its ancient origin”).

For now, however, given the precedent to which I am bound, it is hereby ORDERED, that the petition for a writ of habeas corpus is denied … (emphasis added).

Where do we go from here? The NhRP is greatly encouraged by Judge Jaffe’s opinion. However, we intend to appeal her judgment to the First Department and then, if required, go again to the Court of Appeals. Meanwhile we will press our pending requests to the Court of Appeals to accept further review of Tommy’s and Kiko’s cases and we will soon be pursuing a similar case involving elephants in the courts of another state.

We have no doubt that our substantive arguments, based as they are on the overarching, ancient, and cherished principles and values of liberty and equality, will prevail, as state high courts are continually confronted by rational and well-supported claims that will require them to take one of three actions: (1) recognize the fundamental legal rights of at least some nonhuman animals, (2) abandon their prized values and principles of liberty and equality, or (3) apply those values in a biased and arbitrary manner in favor of human beings.

The first alternative is the proper moral and legal path. The second alternative has been justly foreclosed by history. Alas, the third has occurred in legal history, often. Justice Jaffe referred to some of those instances in her opinion. “Not very long ago, only caucasian male, property-owning citizens were entitled to the full panoply of legal rights under the United States Constitution. Tragically, until passage of the Thirteenth of the Constitution, African American slaves were bought, sold, and otherwise treated as property with few, if any, rights. Married women were considered the property of their husbands, and before marriage were often considered family property, denied the full array of rights accorded to their fathers, brother, uncles and male cousins.” She might also have noted that Lord Mansfield freed James Somerset after declaring human slavery “odious,” that children, the mentally ill, and the non-heterosexual were long denied their most fundamental rights, and that it was not until 1879 that Native Americans were recognized in the United States as “persons,” eligible for federal writs of habeas corpus. These sorts of decisions however do not occupy the field forever. Legal history has, time and again, demonstrated their legal instability, while each generation has learned anew what Martin Luther King. Jr. and Theodore Parker reminded us, over and again: “The arc of the moral universe is long, but it bends toward justice.”

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