We may be the only lawyers on earth whose clients are all innocent. — a poster for the Animal Legal Defense Fund.
Steven Wise is an attorney for animals, notably two chimpanzees, Tommy and Kiko, who live in captivity in upstate New York and are asking the courts for relief. A rumpled 60-something legal scholar who has taught animal-rights law at Harvard and Stanford, Wise is president and founder of the Nonhuman Rights Project, which calls itself “the only civil rights organization in the United States working through litigation, public policy advocacy, and education to secure legally recognized fundamental rights for nonhuman animals.” Wise and his colleagues at the NHRP plan litigation on behalf of elephants and dolphins as well. They aim not merely to win court judgments for a handful of intelligent and social animals who, they allege, are being maltreated; they want to change the legal status of animals in American courts.
Wise stars in a feature-length documentary called Unlocking the Cage, which I watched last week. It’s a thoughtful and absorbing film (now available on DVD and elsewhere*) that was directed by pioneering filmmakers D A Pennebaker and Chris Hegedus, whose credits include Don’t Look Back (1967) and The War Room (1993). Like The Cove, Louis Psihoyos’ 2009 film about dolphin slaughter, and Blackfish, Gabriela Cowperthwaite’s 2013 film about an orca held at Sea World, Unlocking the Cage challenges us to think differently about animals, and it succeeds.
Unlocking the Cage makes clear from the start that chimpanzees can think, feel and communicate in ways that are only lately have become well understood. They can learn to use a simple computer. They can grieve the loss of a loved one. They can plan for the future. They can, in short, do many of the things that we once thought separated humans from animals.
And yet the law regards them as things.
“We’re trying,” Wise says in the film, “to kick the door open and have people consider the personhood of nonhuman animals.” Or, as he put it, in a 2014 New York Times magazine cover story (Should a Chimp Be Able to Sue its Owner?):
Why is a human individual with no cognitive abilities whatsoever a legal person with rights, while cognitively complex beings such as Tommy, or a dolphin, or an orca are things with no rights at all?”
Wise has devoted his professional life to animal jurisprudence. He decided to do so after reading Animal Liberation, Peter Singer’s landmark book, in the late 1970s. “I had kind of an ephiphany,” he says. He led the Animal Legal Defense Fund from 1985 through 1995, after which he started the Nonhuman Rights Project, a smaller operation with an annual budget of less than $1 million that depends largely on volunteers. Its funders include the Novo Foundation, which has made a three-year $600,000 commitment to the NHRP, and the Arcus Foundation, which gave the nonprofit $100,000 last year.
While much legal advocacy on behalf of animals has been aimed at enacting and enforcing anti-cruelty laws, Wise has taken a different and more radical tack. In 2013, he went to court in New York State to argue, in separate cases, that Tommy and Kiko should be granted the limited but fundamental legal right of habeas corpus, which is the right to petition a court to determine whether or not a “person” is being imprisoned unlawfully.
In search of a plaintiff, Wise had discovered Tommy living alone in a cage, with a old TV to entertain him, on a used trailer lot in Gloversville, New York. Kiko, a deaf chimp who appeared in a 1989 made-for-TV movie called Tarzan in Manhattan, lives in a cage in a residential neighborhood of Niagara Falls, NY, under the auspices of a non-profit called The Primate Sanctuary, Inc., which defends his handling.
Wise does not claim that chimps should enjoy the same rights as people. “They’re never going to be able to vote,” he says. “They’re never going to be able to marry.” But he says they are entitled to a day in court. “When we say Tommy is a person, we mean that Tommy has a capacity to have a legal right,” Wise says. “Tommy has a right to get out solitary confinement for his entire life in a cage.” He’d like to see Tommy and Kiko relocated to Save the Chimps, a sanctuary in Florida that is home to about 250 chimpanzees.
All of this may sound far-fetched. It’s not. Historically, slaves, women and children all were denied some legal rights associated with personhood by US courts. (The comedian Stephen Colbert quips in the film: “If Tommy wants to have rights as a person, he should form his own corporation.” Corporations have some rights of personhood, such as free speech.) In an amicus curiae brief filed on Tommy’s behalf, Laurence Tribe, a professor of constitutional law at Harvard, writes that the court
should recognize that Kiko is an autonomous being who is currently detained and who is therefore entitled to challenge the lawfulness of his detention by petitioning for the writ, even if that court ultimately concludes that Kiko’s detention is lawful.
So far, Wise has been unable to secure a full hearing on the merits of the case for either chimp. Both cases have been appealed to the New York State Supreme Court, which heard oral arguments in March. A ruling could come at any time.
No matter how these cases turn out, the evidence suggests that Wise and his allies who argue on behalf of animal rights — the claim that animals are not ours to use for food, clothing, entertainment, or experimentation — are making headway. The US government no longer allows invasive testing on chimpanzees. Last month, under pressure from the Humane Society of the United States, The New York Blood Center agreed to provide long-term care for chimpanzees it had cruelly abandoned in Liberia. (See my 2016 post, Heartless? The New York Blood Center has a chimpanzee problem.) The Ringling Bros. circus retired the last of its elephants last year, and Sea World has stopped breeding orcas.
We’ll consider the sometimes-heated debate between animal-rights activists and animal-welfare advocates another time. But it seems clear that the debate about how humans should treat animals is moving in just one direction: Towards empathy.
* Unlocking the Cage is streaming on HBO. It is also available on iTunes and as a DVD from numerous retailers.