By NhRP Executive Director Christopher Berry

“I could take all these animal cases and it would be only a slight drop in the bucket of animal abuse. I would spend an entire career nibbling at the edges. The only way I could make a substantial impact was to focus on making systemic change.” — Steven M. Wise, founder, the Nonhuman Rights Project

I first heard about Steve Wise and the Nonhuman Rights Project when I was still in law school. A law school friend enthusiastically introduced me to the NhRP’s habeas corpus approach to animal rights while we were walking our dogs. Word had spread among law students interested in animal law that a relatively new organization, then composed of Steve, a few key staff, and a host of enthusiastic legal volunteers, was putting together cases the world had never seen — modeled on struggles for fundamental human rights waged in centuries past, but with nonhuman animals as clients.

Habeas corpus is an important form of legal action that simply protects individuals from unjust confinement. It’s regularly used by incarcerated individuals challenging their imprisonment, but it’s also been used by prisoners of war, enslaved humans, and children. It’s a core function of the courts to determine when someone is entitled to relief under habeas corpus. This stewardship requires adapting the law to present circumstances to ensure that justice is done.

Before the NhRP, no one had ever demanded that judges apply it to nonhuman animals. As someone who was interested not just in the power of the law to create systemic change but also in how ideas that might at first appear radical can ultimately be accepted as the norm, I was impressed by how the NhRP was years away from filing its first lawsuit, yet it was already effectively communicating its perspective of the legal system and influencing the legal community.

By 2013, I had graduated law school and was working elsewhere as an animal lawyer on cases involving issues such as consumer fraud and administrative procedure.

That year, the NhRP filed its first habeas corpus petition on behalf of Tommy, a chimpanzee held in a cage in a shed on a used trailer lot off a highway in Gloversville, New York. The lawsuit generated widespread news coverage. This coverage was memorably favorable, including a New York Times article that appropriately treated the lawsuit as a serious legal strategy to remove Tommy from his cage and secure his release to a chimpanzee sanctuary.

From my vantage, the NhRP’s lawsuit on behalf of Tommy — along with the related media coverage and legal commentary — sent a shock wave across the animal law community. The argument for extending habeas corpus rights to nonhuman animals is sound and has already borne fruit. But I think some in the animal law community expected it to fall flat in the face of entrenched cultural biases against animals. Instead, the NhRP quickly harnessed serious, sympathetic, and high-profile engagement. It inspired me and many others because the ambitious change the NhRP sought seemed possible. With the filing of one petition, the NhRP created an entirely new dimension to legal advocacy for animals.

Over subsequent years, I watched the NhRP continue to have an impressive impact. Steve marked some of this progress in his Letters from the Front Lines of the Struggle for Nonhuman Rights — a narrative series he began in 2018 to weave together the NhRP’s unique approach, its social justice roots, and all the NhRP was achieving in court and beyond — both the obvious and the not so obvious. To these Letters, Steve brought the layered analytic insight, rich understanding of history, and deep sense of respect for the NhRP’s supporters that characterized everything he did.

In Letter #1, written after the NhRP’s clients Hercules and Leo became the first nonhuman animals to have habeas corpus hearings, Steve discussed the various ways courts were grappling (and grappling they were) with the question of legal rights presented in the habeas corpus cases. As Steve pointed out, the mere fact that judges had begun to wrestle with our cases was by itself a significant mark of progress in a short period of time: “[f]or those who never thought it possible, the required psychological shift must begin with being able to imagine that an entity that has long been considered a legal ‘thing’ can possibly be seen as a legal ‘person.’”

In Letter #2, Steve highlighted the 2018 concurring opinion by Judge Eugene Fahey of the New York Court of Appeals in chimpanzees Tommy and Kiko’s cases. In that opinion, Judge Fahey became the first American high court judge to opine on an animal’s entitlement to the Great Writ of habeas corpus, courageously supplying a rigorous and sympathetic analysis that made legal history and would be cited in every NhRP case to come.

In Letter #3, Steve recounted Happy the elephant becoming the first elephant to have habeas corpus hearings, resulting in thirteen hours of oral argument in the Bronx Supreme Court, two preliminary injunctions against the Wildlife Conservation Society (which manages the Bronx Zoo), rallies outside the Bronx Zoo, and widespread media coverage. This third Letter would ultimately be the last Steve would write.

To me, this third Letter is especially powerful because it details an unmistakable momentum in favor of justice for nonhuman animals. Trial court judges typically oversee hundreds of cases on their docket at any given time and therefore have a strong incentive to bring a case to its conclusion as quickly as practicable. Bronx Supreme Court Justice Alison Tuitt might have tried saving herself quite a bit of time by dismissing our petition on behalf of Happy outright without any hearings. Instead, she meticulously examined the competing claims.

Although Justice Tuitt denied Happy’s petition on the basis of earlier precedent, she nonetheless found the arguments on Happy’s behalf to be “extremely persuasive”:

This Court is extremely sympathetic to Happy’s plight and the NhRP’s mission on her behalf. It recognizes that Happy is an extraordinary animal with complex cognitive abilities, and intelligent being with advanced analytic abilities akin to human beings[.] The arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo, to an elephant sanctuary on a 2300 acre lot. Nevertheless … we are bound by this State’s legal precedent [to deny the petition].

Perhaps not coincidentally given how few organizations are devoted to animal law, the earlier part of my animal law career, like Steve’s, was spent at the Animal Legal Defense Fund. Steve was once president of ALDF. Eventually, he left because he saw that animals needed legal rights, and he decided an organization needed to exist that was dedicated fully to securing these rights. As he explained in an NPR interview:

By 1985, I realized that I was trying to accomplish something that was literally impossible. The reason being that all of my clients, all the animals whose interest I was trying to defend, were legal things. They were invisible. It was not going to work. So I decided that the only thing that was going to work was … at least some of them [had to] become legal persons [with rights].

In other words, Steve saw systemic flaws in how the legal system viewed and treated animals. The patchwork of animal laws too often tolerates mistreatment towards animals — setting low standards and broad exemptions. And even when illegal mistreatment occurs, the legal system recognizes no legal right or interest to stop it. The legal system recognizes cases brought to vindicate the interests of humans, corporations, and government — but not animals.

ALDF and other organizations can and do have significant impacts working creatively around these flaws in many ways by, for example, protecting animal advocates from unconstitutional government censorship and protecting consumers from false advertising about animal welfare claims. In contrast, the NhRP’s sole focus is to directly eliminate these systemic flaws, seeing them as rooted not in principles of justice but in longstanding bias against nonhuman animals, which judges must confront and condemn. As the NhRP emphasizes, abundant science exists to show that this bias is irrational and that animals are like us in powerful ways that should inform and change how the legal system treats them.

Part of the value of my earlier work — developing, litigating, and managing a diverse docket of civil cases involving issues across the animal law spectrum — was experiencing firsthand the same systemic flaws Steve noticed. Animal laws too often set low standards that tolerate (and even exempt) many forms of cruelty, and the legal system recognizes no right or interest on behalf of the animal to stop illegal cruelty even when it occurs.

The latter problem frustrated me greatly: even if an animal is being severely abused in violation of an existing law, their legal invisibility means that no legal action can be sustained on their behalf. Only a government official is generally entitled to put a stop to the abuse. But there are many reasons government officials may decline to enforce the law, such as limited resources, competing priorities, and political concern.

In one of my previous cases, a state district attorney’s office ordered that dogs seized by an animal control agency be returned to a breeder that knowingly and fraudulently sold sick puppies infected with parvovirus. Many of these puppies died shortly after the sale. As best I could tell, the reason the district attorney backed down was to avoid burdensome litigation after receiving a demand letter from the breeder’s attorney.

Sometimes the government itself is the one acting illegally. Unsurprisingly, the government isn’t in the habit of enforcing the law against itself. I was once involved in a case where the USDA renewed a roadside zoo’s Animal Welfare Act license on the same day USDA inspectors documented several violations of law.[1] There were over a hundred other violations cited by the USDA at that zoo in the three years leading up that license renewal, and we even obtained an internal agency email where agency staff acknowledged the zoo was unable or unwilling to comply with the law. The USDA’s renewal of the zoo’s license was illegal because facilities must demonstrate compliance with the law to receive a license.[2] Conditions were so bad at the USDA-licensed zoo that during a public nuisance trial involving the same facility, a state trial court judge said on the record that she “gagged” and “need[ed] to take two showers to feel comfortable” after inspecting the facility as part of the trial.

The animals remained legally invisible even though both the zoo and the government were falling far short of the barebones standards of the Animal Welfare Act. To maintain a lawsuit, plaintiffs typically must prove that they have “standing” to sue, i.e. that they themselves have suffered a sufficient injury due to the illegal conduct at issue. But because nonhuman animals are treated like things, courts don’t recognize that their injuries matter — not even under laws specifically designed to protect them such as the Animal Welfare Act. Fortunately for the animals at that zoo, the lawsuit against the USDA was allowed to proceed based on the aesthetic (i.e. sensory) injury to humans who visited the zoo and witnessed animals in inhumane conditions.

To reiterate, when the government refuses to enforce an animal law, then the only way it can be enforced is by filing a case on behalf of a human (or corporate) plaintiff based on injuries sustained to that human plaintiff. But the stars need to align in order for that kind of human-centered lawsuit to be filed. Often, no human is injured by the illegal treatment of an animal. Even when a human has suffered an injury from the illegal treatment of an animal, finding them is often like finding a needle in a haystack. Even when a human with an injury can be identified, they often aren’t motivated to take part in a lawsuit to help the animal. And even when a human with an injury actually serves as a plaintiff in a lawsuit to help an animal, courts often find that the type of injuries suffered by human plaintiffs in animal law cases are legally insufficient for purposes of proving standing.

This entire arrangement strikes me as farcical. The legal system purports to protect nonhuman animals from cruelty yet refuses to recognize their legal injury when cruelty occurs.

In a similar vein, the legal system purports to protect individual liberty interests through habeas corpus yet ignores the liberty interests of intelligent and autonomous individuals when the individuals in question happen to be nonhuman animals.

An overarching dynamic at play is that the legal system screens out and excludes nonhuman animals from ordinary principles of justice based on the sole fact that they aren’t human. This isn’t justice. It’s a systemic failure predicated on unexamined bias. The legal system shouldn’t blind itself to a captive individual’s grave suffering on the sole basis that they’re a chimpanzee or an elephant instead of a human. We must correct the system, free it of this bias, and ensure that principles of justice are extended to nonhuman animals, too.

Two years after Steve published Letter #3, the New York Court of Appeals — the highest court in that state — agreed to review the NhRP’s habeas corpus case on behalf of Happy the elephant. The New York Court of Appeals taking the case was, by itself, a significant development. As explained earlier, courts are quite busy and eager to quickly dispose of cases when they can. The New York Court of Appeals had discretion whether to take the case at all. It determined that Happy’s appeal was important enough to warrant its attention. In taking up her case, it became the first time a state’s highest court heard a habeas corpus case on behalf of a nonhuman animal — another huge mark of progress.

Before the New York Court of Appeals hearing, Steve delivered remarks outside the courthouse — what we didn’t know then would be one of his last public statements. Watching them now, I’m struck by his ability to put the struggle for nonhuman rights in a historic context — how the bias is rooted in our historic misunderstanding of nonhuman animal intelligence, how that bias can no longer be supported based on our modern understanding of nonhuman animal intelligence, and that it will take time to fully succeed, which means that we must begin (and continue) the process that will lead to that success.

Happy's historic hearing

Two months after that hearing, the New York Court of Appeals issued its opinion in Happy’s case.[3] Despite a 5–2 decision against Happy, two justices of New York’s highest court, now-Chief Judge Rowan D. Wilson and Judge Jenny Rivera, authored powerful landmark dissents arguing that Happy should have a right to liberty. What I find powerful is the dissenters’ straightforward application of habeas corpus principles. Whereas the majority fabricated an exception to the “Great Writ” of habeas corpus that it can only ever protect human liberty interests, the dissenters applied the basic principles of habeas corpus to nonhuman animals in a straightforward analysis. In doing so, the dissenters recognized the purpose of habeas corpus is to secure liberty and that courts can and should use it to protect liberty from unjust captivity. Applying those basic principles to our understanding of the cognitive and emotional intelligence of elephants, they opined that Happy should be entitled to either outright liberty (Judge Rivera) or at least an examination to weigh her liberty interests against the zoo’s interests in keeping her captive (Judge Wilson). Judge Wilson and Judge Rivera endeavored to articulate what justice required in Happy’s case. They didn’t categorically deny justice to Happy on the mere basis that she is nonhuman.

Counting Judge Fahey’s earlier concurrence in Tommy’s case, three judges from a state’s highest court have now expressed sympathy or outright agreement with our position that nonhuman animals like Tommy, Kiko, and Happy have a right to bodily liberty under habeas corpus that protects them from the senseless cruelties that they’ve endured. I’m confident that future decisions in other cases will add more judges to that roster.

In February of 2024, Steve passed away from complications of glioblastoma, a form of brain cancer. At that time I’d been with the NhRP for a little over a month, though I’d admired Steve for 15 years, closely followed his work, and bumped into him at various conferences. His passing was a great loss. Steve combined a poignant vision with the leadership skills to execute that vision through the NhRP. I wish I’d had the chance to thank him for all of the incredible progress that occurred under his leadership at the NhRP — the Happy dissents, the Fahey concurrence, the nation’s first law recognizing an animal’s right to liberty in Ojai, California, and the long-overdue conversation about the injustice of denying legal rights to nonhuman beings on the sole basis of their being nonhuman. Under Steve’s leadership, the systemic injustice of treating nonhuman animals like mere things has started to unravel.

As Executive Director, I look forward to working with the NhRP’s staff and supporters to continue unraveling this systemic injustice. Presently, we’re litigating habeas corpus appeals in three different states — Colorado, Michigan, and Hawaii. The Colorado Supreme Court — Colorado’s highest court — just scheduled oral argument for October 24, 2024 in our case on behalf of elephants Jambo, Kimba, LouLou, Lucky, and Missy held captive at the Cheyenne Mountain Zoo. In Michigan, we recently filed our appellate brief on behalf of the seven chimpanzees held captive at the DeYoung Family Zoo. We also recently filed our opening appellate brief on behalf of elephants Mari and Vaigai who are held captive at the Honololu Zoo in Hawaii. All of these briefs heavily cite the Happy dissents, which we believe will motivate sympathetic judges to side with our nonhuman clients. Meanwhile, we continue to seek passage of the first elephant captivity ban in the US in New York City as well as laws recognizing legal rights for nonhuman animals across the US.

Securing meaningful legal rights for animals is imperative if the justice system is ever to provide justice to animals. Historic and recent progress made by the NhRP demonstrates that the legal system can deliver this justice. The NhRP’s laser focus on this mission, the NhRP’s brilliant staff, and our impressive network of dedicated, enthusiastic supporters who deeply appreciate the necessity and urgency of this work have already pushed the issue of legal rights for nonhuman animals from the margins to the mainstream. That’s why I’m confident, hopeful, and beyond honored to join the NhRP at the front lines of this important struggle.

Christopher Berry is the Nonhuman Rights Project’s Executive Director, responsible for overseeing action to secure legal rights for animals through litigation, legislation, education, and other efforts. Prior to working at the NhRP, Christopher helped manage litigation at the Animal Legal Defense Fund where he specialized in private civil enforcement of animal protection laws and related issues such as standing, justiciability, and procedure. Christopher earned his J.D. from the University of Michigan School of Law and a B.S. in political science from the University of South Dakota.

[1] Animal Legal Defense Fund v. Perdue, 872 F.3d 602 (D.C. Cir. 2017)

[2] 7 U.S.C. § 2133.

[3] Nonhuman Rights Project v. Breheny, 38 N.Y.3d 555 (N.Y. 2022).

By NhRP President Steven M. Wise

For shamefully long periods in US history, African-Americans, Native Americans, and women, among other oppressed and marginalized individuals, were considered legal things with no rights, then legal persons with few rights. It took centuries of painful civil rights struggles fought in courtrooms, in legislatures, on battlefields, and in the streets to finally secure the legal personhood of all human beings.

However, as demonstrated by the recent police murders of George Floyd, Breonna Taylor, Rayshard Brooks, and many other Black people, as well as the Supreme Court decision just this past week to extend workplace protections to LGBTQ people under the 1964 Civil Rights Act, the struggle to secure recognition of legal rights — and justice when these rights are violated — is and must be ongoing. Ceaseless collective vigilance is required to protect against tyranny and oppression, including and especially from within the halls of power where respect for liberty, dignity, and equality remains a repeatedly broken promise of justice for many human beings. The unending work of fulfilling that promise belongs to all of us.

Social psychology research has demonstrated that the narrower individuals perceive the moral divide between people and nonhuman animals the less likely they are to be biased against marginalized people. Similarly, the NhRP’s core struggle is not just about advocating for the rights of nonhuman animals; it’s about strengthening the values and principles of justice that form the foundation of human rights. Simply put, our US habeas corpus litigation on behalf of nonhuman animals asks judges to refuse to allow respect for liberty, dignity, and equality to arbitrarily and irrationally end with human beings.

Two hundred and forty-eight years ago today, Lord Mansfield, Chief Justice of the Court of King’s Bench, effectively ended human slavery in England by ordering James Somerset freed. Somerset had escaped from his London master, Charles Stewart, only to be recaptured and chained to the deck of the “Ann and Mary” to be sailed to Jamaica and sold in its slave markets. After issuing a common law writ of habeas corpus on Somerset’s behalf, Lord Mansfield ended his imprisonment as it was “so odious” the common law would not support it.[1] When the American Colonies separated from England, the Somerset decision became part of their common law.

Accordingly, we in the NhRP have based our struggle to attain the fundamental common law right to bodily liberty protected by the common law writ of habeas corpus for elephants and chimpanzees in part upon Lord Mansfield’s decision. Judges have to ignore it to rule against us.

A little over six years into a struggle for nonhuman rights we began in New York State, we are reaching a critical point.

Law professor, scholar, and activist Robert Cover, in his 1975 book Justice Accused: Antislavery and the Judicial Process, focused on “the dilemma of the anti-slavery judge — the man who would, in some sense have agreed with my characterization of slavery as oppression.”[2] Theirs was “the story of earnest, well-meaning pillars of legal respectability and of their collaboration in a system of oppression.”[3] Cover did not bother discussing judges who didn’t see human slavery as oppression.

One of those latter judges was Chief Justice of the United States Roger B. Taney who, in the Dred Scott case, wrote that Black people “had no rights which the white man was bound to respect.”[4] As Don E. Fehrenbacher wrote in his Pulitzer Prize-winning history of Dred Scott’s case, “(a)s a matter of historical record, the Court decided what Taney declared it decided. Whether it was based on sound law, accurate history, and valid logic is another question … not absolutely separable from the moral problem inherent in the enslavement of men.”[5] Fehrenbacher made clear that it was not.

Another such judge was Thomas Ruffin, who wrote in State v. Mann that a slave “surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute, to render the submission of the slave perfect.”[6]

The time has arrived in which New York judges must decide whether they will continue to collaborate in a system that has for so long and so severely oppressed all nonhuman animals. Will they acknowledge that, at the very least, such extraordinarily cognitively complex and autonomous nonhuman beings as elephants, chimpanzees, and cetaceans are entitled to the common law right to bodily liberty that science, morality, precedent, and good public policy compel? Or will they emulate their justly and widely criticized predecessors, such as Massachusetts Chief Justice Lemuel Shaw and United States Supreme Court Justice John McLean, and — ignoring simple justice — retreat to rigid interpretations of precedent that do not compel their decisions and try to shift their responsibility for making just decisions from themselves onto legislatures?[7]

As we look ahead to the filing of our appeal in our elephant client Happy’s case, here is the dilemma our cases present to judges today:

On November 16, 2018, then-New York Supreme Court Justice Tracey A. Bannister, sitting in the tiny rural court of Albion near Rochester, issued the world’s first habeas corpus order on behalf of an imprisoned elephant as requested by the NhRP. Our client Happy is an Asian elephant whom the Wildlife Conservation Society, which has run the Bronx Zoo for over a century, has imprisoned on a one-acre plot of land at the zoo in the summer and in a smaller industrial cement structure lined with windowless and barred cages in the winter since she was a youngster more than forty years ago. This is the same Wildlife Conservation Society that in September of 1906 imprisoned an African Pygmy man named Ota Benga in the Bronx Zoo’s Monkey House, doubling attendance before they finally bowed to public pressure led by an outraged Black community three weeks later. All year, for the last fourteen years, the same Bronx Zoo has forced Happy to spend her life alone, despite the suffering isolation is known to cause these immensely social beings.

Over the objection of the NhRP, Justice Bannister transferred Happy’s case from Albion to the Bronx. In August of 2019, Happy’s case was assigned to Supreme Court Justice Alison Y. Tuitt, who heard thirteen hours of oral argument over the next five months while issuing two injunctions against the Bronx Zoo.

The NhRP presented five affidavits from four of the most respected elephant cognition and behavior experts in the world: Joyce Poole, Cynthia Moss, Lucy Bates, Richard Byrne, and Karen McComb. With their help, our arguments boiled down to this: Happy is an autonomous, extraordinarily cognitively complex, and immensely social being. She is therefore entitled to the common law right to bodily liberty protected by the writ of habeas corpus as a matter of common law liberty and equality. We asked Justice Tuitt to extricate Happy from the Bronx Zoo, then send her to The Elephant Sanctuary in Tennessee or the Performing Animal Welfare Society sanctuary near Sacramento.

The Bronx Zoo repeatedly reminded the judge that “Happy is happy” but failed to present even a single affidavit in opposition from any elephant cognition and behavior expert. Considering that the Wildlife Conservation Society is a billion-dollar outfit with elephant experts on its staff and access to a platoon of them from around the world, its failure even to try to challenge the opinions of our eminent experts recalls the “dog that didn’t bark” from the famous Sherlock Holmes short story “The Adventure of Silver Blaze.” Their silence signaled the Wildlife Conservation Society’s complete inability to contradict our experts. But that did not and should not come as a surprise. What self-respecting elephant cognition and behavior expert is going to swear that it’s better for an elephant to live for years by herself on one acre of land in the summer and in an even smaller, windowless, cement structure in the winter than to wander freely over 2,300 acres of woods and fields and lakes alone or with her elephant friends, as she chooses?

That left the Bronx Zoo with a single argument that had nothing to do with Happy. They argued that Justice Tuitt had to rule against Happy because New York’s Third Department appellate court had in 2014 ruled that no nonhuman animal could ever have any legal right because no nonhuman animal could ever bear legal duties.[8]

On Feb. 18, 2020, Justice Tuitt issued her decision. She rejected the Bronx Zoo’s the claim that “Happy is happy,” finding instead that “the arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo to an elephant sanctuary.” Judge Tuitt also found that Happy is “an extraordinary animal with complex cognitive abilities, an intelligent being with advanced analytical abilities akin to human beings” and “an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty.”

She noted that in May of 2018 New York Court of Appeals Judge Eugene Fahey had issued an opinion that stated:

(T)he issue whether a nonhuman has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.[9]

The only reason Justice Tuitt did not order Happy’s immediate release to a sanctuary was because “(r)egrettably,” in her view, she “was bound by the legal precedent set by the [Third Department] which it held that animals are not ‘persons’ entitled to rights and protections afforded by the right of habeas corpus.”

In his 2018 opinion, however, Judge Fahey was not impressed by the Third Department’s decision, writing: “Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child.”[10]

Justice Tuitt didn’t mention that in 2017 the NhRP had lost a similar case before the First Department (the intermediate appellate court that oversees the Bronx) solely on the preliminary procedural ground that the lower court had been within its discretion to refuse to hear the second habeas corpus petition we’d brought on behalf of Tommy. [11] It should have had nothing to do with Happy’s case, despite the fact the First Department, in the tradition of Chief Justice Taney, wrote that the NhRP:

argues that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights. This argument ignores the fact that these are still human beings, members of the human community.[12]

Justice Tuitt didn’t mention these sentences because they were what lawyers call “dictum.” That means that the sentences had nothing to do with the reason the case was decided, which was that the lower court had the discretion to decide not to hear the second habeas corpus petitions on behalf of the chimpanzees Tommy and Kiko. They carried no precedential weight. On the other hand, Judge Fahey dismissed the First Department’s dictum that merely being human was the reason not to grant a chimpanzee habeas corpus relief: “The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person” and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species.”[13]

Justice Tuitt noted that Judge Fahey had written that:

The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species.[14]

In short: we have won our scientific and moral battles over the Wildlife Conservation Society. The remaining fight is whether Happy can be denied her common law right to bodily liberty protected by a writ of habeas corpus either because she lacks the ability to bear legal duties, as the Third Department claimed, or because she isn’t a human being, per the First Department’s dictum. These will be the subjects of our upcoming attack in the appellate courts and the hearing we expect to have in the fall.

Here are some of the major arguments we’ll make:

First, for over twenty years the New York Pet Trust Statute, EPTL 7–8.1, has granted certain nonhuman animals the legal right to the assets contained in trusts in which people make them the beneficiary. We have made every New York client the NhRP has ever had, all the chimpanzees and Happy, the beneficiary of such a trust. It’s obvious that these nonhuman animals need not have a capacity for the legal duties the Third Department claimed was necessary for any legal right because they lack that capacity but they have the legal right to the assets of the trust. It’s flamingly obvious that these nonhuman animals aren’t human beings, which the First Department status claimed was necessary for any legal right.

Second, both The First and Third Departments made another serious yet obvious mistake. It has been generally agreed for over a century that there are four broad categories of legal rights.[15] Each right has a different correlate so that for every right you have, someone else has the correlate of that right. For example, a claim right correlates with a duty. If we sign a contract that requires me to buy your car for $10,000, I have a claim on your car and you have the correlative duty to give it to me. You have a claim on my $10,000 and I have a duty to pay it to you. It’s obvious that the right to bodily liberty protected by habeas corpus that the NhRP claims for its nonhuman animal clients doesn’t involve a contract, isn’t a claim right. So what is it?

It’s an immunity right. That kind of right correlates not with a duty but with a disability. For example, the Thirteenth Amendment’s abolition of slavery gives us all an immunity right not to be enslaved. All immunity rights correlate not with a duty, but with a disability. Thus the correlate to my immunity right not to be enslaved is that you are disabled from enslaving me. Whether anyone can bear duties is irrelevant to my immunity right not to be enslaved. Humans unable to bear duties still cannot be enslaved. The right to bodily liberty is, like the right not to be enslaved, an immunity right that correlates with a disability, and not a claim right that correlates with a duty. Somehow the First Department and the Third Department either didn’t understand this or chose to ignore it.

Third, the major case in New York on how personhood is determined is a 1972 case called Byrn v. New York City Health & Hospitals Corporation.[16] The question in Byrn was whether a human fetus had the federal constitutional right not to be aborted. The court said it did not. This was despite the fact that the court conceded that a fetus was human. Byrn noted that by “according legal personality to a thing the law affords it the rights and privileges of a legal person.”[17] The court said nothing about duties. Byrn also said that personhood was not a matter of biology but to be determined in light of evolving public policy and moral principle.[18]

Perhaps most importantly, the New York courts have made clear that the liberty right that protects autonomy is of supreme importance. For example, referring to the right of a mentally ill patient involuntarily committed to a State institution to refuse antipsychotic medication, the Court of Appeals wrote:

In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own desires.

The right to equality in New York means “likes must be treated alike.” The NhRP will argue that elephants and humans are alike in the only way relevant to the right to bodily liberty protected by a writ of habeas corpus; we both are autonomous, able to freely choose where to go, when, and with whom. What is irrelevant to the right of bodily liberty is one’s species, which, to quote Judge Fahey again, is “nothing more than the premise that (a nonhuman being) is not a member of the human species.”

The Bronx Zoo’s claim that species is the solely relevant characteristic for the recognition of rights arbitrarily undermines the New York courts’ common law supreme value of autonomy and self-determination. Worse, it echoes prior naked judicial biases — or, as Judge Leon Yankwich once called them, “prejudice in the form of law”[19] — that we all are still trying to forget more than a century on. Recall Chief Justice Taney and Dred Scott. But also know that California Supreme Court Chief Justice Murray once held that a Chinese man couldn’t testify against a white man in court, as the Chinese “indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference.”[20] A United States Attorney once argued the Ponca Chief Standing Bear wasn’t a “person” for the purposes of habeas corpus just because he was a Native American.[21] And the Wisconsin Supreme Court Chief Justice Ryan refused to allow Lavinia Goodell to practice law just because she was a woman.[22]

We know how to explain the failings of Chief Justice Taney, Judge Ruffin, Chief Justice Murray, and Chief Justice Ryan. But how does one explain the failings of Chief Justice Shaw, Justice McLean, and the First and Third Departments? These things can be hard to know. Again, possibilities can be found in Professor Cover’s book. Chief Justice Shaw, in In re Sims, was confronted with a writ of habeas corpus brought on behalf of Thomas Sims, a fugitive slave whose master had apprehended him and was determined to return him to slavery in Georgia. Unjustifiably relying on inappropriate precedent, distorting history to make it seem that the Constitution’s Fugitive Slave Clause was of fundamental importance, this anti-slavery judge doomed Thomas Sims to be returned to slavery, publicly whipped, and sold on the auction block. [23] In Jones V. Van Zandt, when Justice McLean faced a master demanding damages against an abolitionist who had harbored his fugitive slave, he acknowledged to the jury that slavery is “founded in wrong, in oppression, in power against right.”[24] Nonetheless, the jury was ordered to ignore these facts and their consciences.[25]

But there are other possible explanations.

First, they may be implicitly biased. As I noted in my Letter #1 from the Front Lines, the judges before whom we argue were all raised in a culture that has long viewed all nonhuman animals as “things” who have no rights and have never had rights. Before they were suddenly confronted by our arguments they were, understandably, likely to have never thought much, or at all, about whether any nonhuman animal should have the legal right to bodily liberty protected by a writ of habeas corpus.

As USC Law Professor Christopher Stone wrote in his famous article about whether trees should have standing:

Each time there is a movement to confer rights onto some new “entity,” the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of “us”—those who are holding rights at the time. [26]

Most judges are therefore likely, automatically and unconsciously, to be implicitly biased against the arguments the NhRP presents for the legal rights of any nonhuman animal — just as they are likely to be biased about arguments that concern race, gender, sexuality, religion, weight, age, and ethnicity — because “our minds have been shaped by the culture around us. In fact they have been invaded by it.”[27]

The NhRP has always understood that the minds of most judges will be influenced by the dominant cultural, especially traditionally legal, attitudes towards the rights of nonhuman animals and that it may be difficult for these judges to avoid their influence no matter how powerful our arguments are. This was one of the many reasons we chose to seek habeas corpus relief, as one has the right to keep bringing habeas corpus lawsuits, even if their client has lost previously allows us to repeatedly place our arguments before the same courts, sometimes the same judges. Happy’s appeal will be the second time judges of the First Department will have had the opportunity to hear our arguments. If a further appeal is sought by either party to the New York Court of Appeals it will be the fourth time those judges will have had the opportunity to consider our arguments.

The third time we sought a further appeal to the Court of Appeals constitutes a remarkable demonstration of the power of appearing multiple times before the same courts and judges. Judge Fahey, of that court, wrote that “in the interval since we first denied leave to the Nonhuman Rights Project, I have struggled with whether this was the right decision … I continue to question whether the Court was right to deny leave in the first instance.”[28] Then he powerfully concluded that “(w)hile it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”[29]

Second, judges may weigh an elephant’s fundamental right to bodily liberty against some lesser value. Both Chief Justice Shaw and Justice McLean weighed the liberty of a slave against what each judge believed was required to preserve the Union.[30] Other judges acted differently. California County Judge T.W. Frelon issued a writ of habeas corpus on behalf of a slave named Archy Lee who was brought into California, and who, despite slavery being illegal under the California Constitution, had been victimized by an illegal and racist decision of the California Supreme Court that ignored the law and condemned Lee to illegal slavery.[31] So Judge Frelon ignored the Supreme Court.

Third, judges may inappropriately seek to shift the responsibility of deciding the common law right to bodily liberty protected by common law habeas corpus onto the legislature. For example, the Third Department wrote that “while petitioner has failed to establish that common-law relief in the nature of habeas corpus is appropriate here, it is fully able to importune the Legislature to extend further legal protections to chimpanzees.”[32] Similarly, the First Department wrote that “(w)hile petitioner’s avowed mission is certainly laudable, the according of any fundamental legal rights to animals, including entitlement to habeas relief, is an issue better suited to the legislative process.”[33] But, while there is a place for legislators in the larger debate and struggle, it is judges not legislators who make the common law. By definition.

The tide is turning in favor of nonhuman rights in New York, as it inevitably must when the arguments that support the status quo become untenable. We’ll let you know on our website when we file our brief this summer, when the Bronx Zoo files theirs, and when we file our reply so you can follow along. You can watch the oral argument, which will be live-streamed. We will put a copy up on the website. Then you can read the First Department’s decision on our website. Win or lose, our next stop will be the New York Court of Appeals.

Autonomous nonhuman animals as chimpanzees and elephants need freedom and a community of other members of their species to survive and thrive, and we all deserve to live in a world in which respect for liberty, dignity, and equality runs so deep, is so embedded in how we view and treat human beings, that we don’t hesitate to extend it to nonhuman animals. We hope the New York courts will help us get there.

[1] Somerset v. Stewart, 1 Lofft 1, 19 (K.B. 1772).

[2] Justice Accused at 6

[3] Justice Accused at 6

[4] Scott v. Sandford, 60 U.S. 393, 407 (1857)

[5] Don E. Fehrenbacher, The Dred Scott Case — Its Significance in American Law and Politics 334 (1978).

[6] State v. Mann, 13 N.C. 263, whom 266 (1829)

[7] Justice Accused at 232–238, 258.

[8] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D. 3d 148 (3rd Dept. 2014).

[9] Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1058 (N.Y. 2018)(Fahey, J. concurring)

[10] Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1057 (N.Y. 2018)(Fahey, J. concurring)

[11] Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, 152 A.D. 3d. 73 (1st Dept. 2017)

[12] One Justice of the First Department, who tried to deny the NhRP its right even to appeal to the court, was thwarted only when the NhRP took the literally unprecedented anywhere in the world step of bringing what lawyers call a writ of mandamus — which is a demand that a court order a public official to do her duty — in the First Department demanding that court order itself to allow the NhRP to appeal (ask any lawyer if she has ever heard of such a thing and she will swear you must be joking). But it worked and the appeal was heard.

[13] Nonhuman Rights Project , on Behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1057 (N.Y. 2018)(Fahey, J. concurring)

[14] Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1057 (N.Y. 2018)(Fahey, J. concurring)

[15]Wesley J. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” 23 Yale L.J. 16, 30, 40 (1913);

[16] 31 N.Y. 2d 194 (1972).

[17] Byrn, 31 N.Y. 2d. at 201.

[18] Byrn, 31 N.Y. 2d. at 201.

[19] Leon Yankwich, “Social Attitudes as Reflected in Early California Law,” 10 Hastings L. J. 250, 257–261 (1959)

[20] People v. Hall, 4 Cal. 399, 404–5 (1854). This was the case that Judge Yankvich was specifically referring to.

[21]United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 796–7 (C.C. Neb. 1879).

[22]In re Goodell, 39 Wis. 232 (1875).

[23] 61 Mass. 285 (1851). See Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw 98–101 (1987); Justice Accused 250–251

[24] 13 F. Cas. 1040, 1045 (№7501)(1843)

[25]Justice Accused 246–247.

[26] “Should Trees have Standing,” 45 So. Cal.L. Rev. 450, 455 (1972)

[27] See generally Mahzarin R. Banaji & Anthony G. Greenwald, Blindspot (2014), and Project Implicit, https://implicit.harvard.edu/implicit/.

[28] Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1059 (N.Y. 2018)(Fahey, J. concurring)

[29] Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1059 (N.Y. 2018)(Fahey, J. concurring)

[30] Justice Accused 248; The Law of the Commonwealth and Chief Justice Shaw 99.

[31] Rudolph M. Lapp, Archy Lee — A California Fugitive Slave Case 21 (1969); Matter of Archy, 9 Cal. 147 (1858)

[32] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D. 3d 148, 152–153 (3rd Dept. 2014).

[33]Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, 152 A.D. 3d. 73, 80 (1st Dept. 2017)

By NhRP President Steven M. Wise

In January of 2018, I wrote “Letter #1 from the Front Lines of the Struggle for Nonhuman Rights: the First 50 Months.” In it, I noted that the tendency of the press to report only that the NhRP won or lost a particular case fails to capture the enormity, complexity, and range of the struggle for the rights of nonhuman animals we have begun. I explained that one of our initial litigation goals is to encourage judges to begin to think about the injustice of the de facto legal thinghood, the abject rightlessness, of all nonhuman animals in the United States, for we believe that to think about this injustice will inevitably lead fair-minded judges to condemn it. The real, more complex story is that we persist, undeterred, secure in the knowledge that our approach to securing recognition and protection of the fundamental rights of nonhuman animals is legally, morally, factually, historically, and inevitably correct.

I set out four roads down which courts might travel when confronted with our nonhuman clients’ arguments that liberty, autonomy, equality, and fairness, along with rational and nonarbitrary decision-making, constitute the fundamental values and principles of justice that entitled them, at minimum, to the right to bodily liberty protected by habeas corpus.

The first road leads to their denial that liberty, autonomy, equality, and fairness, along with rational and nonarbitrary decision-making, are the fundamental values and principles that constitute justice. This would allow the NhRP to file new lawsuits that invoke the correct values and principles. To date no American court has so claimed.

Second, courts may apply their fundamental values and principles of justice to the claims the NhRP brings on behalf of our nonhuman animal clients and recognize the justice of recognizing their personhood and rights. As of January of 2018, no American court had fully taken this road, either, though one New York trial court had come close, and it has occurred in Argentina and India.

Third, courts can choose to undermine their fundamental values and principles of justice by insisting ad hoc that they apply to all, but only, human beings. This is the most dangerous road, for it will inevitably and severely undermine every rationale for recognizing fundamental human rights.

Fourth, some courts have shied away from choosing between the second and third roads. Instead they dismiss our cases on procedural grounds while refusing to assess the merits of our claims or even hear our arguments.

At the time I wrote Letter #1, we felt confident in our progress. While all four of New York’s intermediate appellate departments had ruled against us, each on a different ground, and New York’s high court, the Court of Appeals, had refused to take further review the two times we requested it in 2015, we believed that all four intermediate appellate courts had not just been wrong, but flagrantly so, and that their decisions were accordingly unstable and would not stand the test of time.

The Second Department had planted its feet firmly on the fourth road when it erroneously denied the NhRP our right to appeal on behalf of our chimpanzee clients Hercules and Leo. The Fourth Department joined the Second when it misread our habeas corpus petition and erroneously concluded that the NhRP had failed to allege that the detention of our chimpanzee client, Kiko, was illegal, and that we were not seeking his immediate release from detention, but rather, his immediate transfer to a sanctuary.

The Third Department took the third road in its rush to achieve the dubious honor of becoming the first court in world history to tie eligibility for every legal right to a capacity to bear legal duties, which millions of New Yorkers (infants, children, and adult mentally incompetent individuals) lack, just to deprive our chimpanzee client, Tommy, of his right not to be imprisoned alone in a cage on a used trailer lot. This ruling severely undermined every rational and nonarbitrary basis for these millions to possess any legal rights either. Finally, in a decision so outrageously flawed that we were moved to annotate the court’s numerous errors sentence by sentence on our website, the First Department joined the Third by briefly pronouncing ex cathedra that Tommy and Kiko could never have any rights because rights, for some unexplained reason, were reserved for humans.

The NhRP decided that rather than appeal the action of the Second Department, we would file a second case on behalf of Hercules and Leo at a future date in Manhattan, which we did. The appeals the NhRP took on behalf of Tommy and Kiko against the decisions of the Third and First Departments were turned away by the Court of Appeals without comment and without reaching their merits, as occurs in 95% of the civil cases that come before that court. And this is where matters stood in January of 2018, except for one thing.

At the time, the NhRP had pending before the Court of Appeals a request for further review of the First Department’s denial of personhood and rights to Tommy and Kiko — solely because they were not human — a request we expected the high court not to allow. On May 8, 2018, that court fulfilled our expectation, again without comment and without reaching their merits. But then something extraordinary occurred.

Writing separately, Associate Judge Eugene Fahey, who had voted in 2015 to deny further view of the decisions of the Third and Fourth Departments in Tommy’s and Kiko’s appeals, became the first American high court judge to give his opinion on the merits of the NhRP’s arguments and the adverse decisions of the eleven New York courts who had ruled against us. His opinion, like ours, was that all of them — all of them — had been wrong.[1]

Judge Fahey specifically rejected both the First and Third Departments’ refusal to recognize that chimpanzees cannot be persons because they lack “the capacity or ability … to bear legal duties, or to be held legally accountable for their actions”[2] He noted that

Petitioner and amici law professors Laurence H. Tribe, Justin Marceau, and Samuel Wiseman question this assumption. Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child (citation omitted) or a parent suffering from dementia (citation omitted). In short, being a ‘moral agent’ who can freely choose to act as morality requires is not a necessary condition of being a ‘moral patient’ who can be wronged and may have the right to redress wrongs (see generally Tom Regan, The Case for Animal Rights 151–156 [2d ed 2004] ).[3]

He then criticized the First Department’s “conclusion that a chimpanzee cannot be considered a ‘person’ and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species.[4]

“I agree,” Judge Fahey continued, “with the principle that all human beings possess intrinsic dignity and value, and have, in the United States (and territory completely controlled thereby), the constitutional privilege of habeas corpus, regardless of whether they are United States citizens (citation omitted) but, in elevating our species, we should not lower the status of other highly intelligent species.[5]

Judge Fahey recognized that chimpanzees “are autonomous, intelligent creatures”[6] and urged his fellow Judges to address the “manifest injustice” involved in determining whether a nonhuman animal such as a chimpanzee has the right to seek a writ of habeas corpus when he is deprived of his liberty.[7] “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?”[8] Judges will “have to recognize its complexity and confront it.”[9] The answer to the question of whether a being has the “right to liberty protected by a writ of habeas corpus”:

will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self–Awareness and self–Control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by self–Initiating intentional, adequately informed actions, free of controlling influences.[10]

Next he chastised both the First and Fourth Departments for mistakenly insisting that the NhRP “does not challenge the legality of the chimpanzees’ detention, but merely seeks their transfer to a different facility,”[11] and concluded that

In the interval since we first denied leave to the Nonhuman Rights Project (citation omitted). I have struggled with whether this was the right decision. Although I concur in the Court’s decision to deny leave to appeal now, I continue to question whether the Court was right to deny leave in the first instance. The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.[12]

A month later something extraordinary occurred again. Embedded in a ruling in a criminal case about vandalized cars that addressed the defendant’s claim that an auto dealership was not a “person” because it was not a human, the Fourth Department signaled that that it might have embraced the decision of Judge Fahey, who had been a judge in the Fourth Department when the Kiko decision had been issued. [13] The court rejected the defendant’s argument that an auto dealership is not a person. Citing Kiko’s case among several non-New York cases, it found it to be “common knowledge that personhood can and sometimes does attach to nonhuman entities like corporations or animals (citations omitted).[14]

Indeed, the Court of Appeals has written that personhood is ‘’not a question of biological or ‘natural’ correspondence …’[15] In each of its eleven trial court hearings and appeals, the NhRP had repeatedly stressed the importance of this 1972 Court of Appeals decision, Byrn v. New York City Health & Hospitals Corp., which made clear that “human” and “person” were not synonyms and that, while a fetus was a human being, it was not a person.[16] But only a single lower court had ever mentioned it.

We claimed at the time Fahey’s opinion was published that it had opened the door to nonhuman animal personhood in New York and throughout the United States. A month later, the Fourth Department walked right through that doorway. Taken together, the two cases constitute a huge breakthrough for legal personhood for nonhuman animals in the New York and United States.

Next week, the NhRP will seek a writ of habeas corpus on behalf of a new nonhuman animal client imprisoned in New York in a trial court that lies within the appellate jurisdiction of the Fourth Department. Perhaps the trial court will issue the writ on authority of the Graves case. If it refuses, the NhRP will appeal to the Fourth Department.

In addition, we continue to litigate our two Connecticut habeas corpus cases involving elephants and are preparing to litigate cases in California while seeking the passage of rights ordinances in city councils in California on behalf of nonhuman animals. We will, of course, make the Fahey and Fourth Department decisions front and center in all our arguments in every venue.

As I explained in Letter #1, even when demands for legal change are based upon scientific discovery, evolution in morality, and good public policy, as are the NhRP’s demands, they will inevitably encounter strong headwinds. The long and painful struggles for the personhood and legal rights of traditionally disenfranchised human groups demonstrate that the gestalt shift that is underway — changing the status of nonhuman animals from “thing” to “person” — will demand a clear long-term strategy, smart and flexible tactics, effective networking, a broad political base, and perhaps most importantly, sheer persistence in the face of multiple rejections.

This pair of recent New York opinions suggest that the long-term strategy the NhRP has spent decades constructing may be beginning to bear fruit. That is because our strategy has long been grounded upon the assumption that fair-minded judges persistently exposed to the existing overwhelming expert evidence of the complex cognition and autonomy of our nonhuman animal clients, coupled with powerful mainstream legal arguments, will struggle in good faith to overcome any implicit negative biases to arrive at the legally and morally correct decision that at least some nonhuman animals deserve legal personhood and those fundamental rights that protect their fundamental interests.

Steven M. Wise began his mission to gain rights for nonhuman animals in 1985. He holds a J.D. from Boston University Law School and a B.S. in chemistry from the College of William and Mary. He has practiced animal protection law for four decades and is admitted to the Massachusetts Bar. Professor Wise taught the first class in “Animal Rights Law” at the Harvard Law School and has taught “Animal Rights Jurisprudence” at the Stanford Law School, as well as the University of Miami, St. Thomas, and John Marshall Law Schools, and is currently teaching “Animal Rights Jurisprudence” at the Lewis and Clark Law School and Vermont Law School. He is the author of four books: Rattling the Cage — Toward Legal Rights for Animals; Drawing the Line — Science and the Case for Animal Rights; Though the Heavens May Fall — The Landmark Trial That Led to the End of Human Slavery; and An American Trilogy — Death, Slavery, and Dominion Along the Banks of the Cape Fear River. His TED TALK from the TED2015 Conference in Vancouver, Canada was released in May of 2015, and has over one million views.

[1]In the Matter of the Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, 31 N.Y. 3d 1054 (2018)(Fahey, J. concurring).

[2] Id. at 1057, citing “Matter of Nonhuman Rights Project Inc. v. Lavery, 152 A.D.3d 73, 78 [1st Dept. 2017] and People ex rel. Nonhuman Rights Project v. Lavery, 124 A.D.3d 148, 152, [3d Dept. 2014] [stating that chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions’] )”.

[3] Id. at 1057 (emphasis added)

[4]“see Nonhuman Rights Project, Inc., 152 A.D.3d at 78, 54 N.Y.S.3d 392 [stating that petitioner’s argument “that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights … ignores the fact that these are still human beings, members of the human community”] . Id.

[5]Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, 31 N.Y. 3d 1054, 1057 (2018)(Fahey, J., concurring).

[6] Id.

[7] Id. at 1059.

[8]Id. at 1056.

[9] Id.

[10] (citations omitted)

[11] Id. at 1058, 1059

[12] Id. at 1259

[13] People v. Graves, 78 N.Y.S. 3d. 613 (4th Dept. 2018)

[14] Id. at 617

[15] Id., citing Byrn v. New York City Health & Hospitals Corp, 31 N.Y. 2d. 194, 201 (1972)

[16] Id.

As much of the work of the Nonhuman Rights Project is litigation, journalists often report our story in a binary way. We “lost.” We “won.” But merely reporting whether we win or lose any particular case, or five, or ten, fails to capture the enormity, complexity, and range of the struggle that the NhRP has begun. Its object is to attain legal personhood and those fundamental legal rights for nonhuman animals to which generally accepted principles of justice entitle them. The decisions of individual courts in the United States and throughout the world along the way merely “can help or hurt, but their power to do so is dwarfed by impersonal forces” that are strong and growing.¹

For more than 2,000 years, Western law has bifurcated all entities either into “persons” with the capacity for legal rights, or “things” that lack that capacity. Nonhuman animals have always been legal “things.” But many people don’t realize that for most of those two millennia millions of human brings were also legal “things” who attained personhood only after protracted struggles both inside and out of courtrooms. The manner in which personhood was finally established in the courtroom is a model for the NhRP’s work.

Edith Hamilton, arguably the premiere classical scholar of the mid-20th century, reminded us of the first turning point in the struggle to abolish human slavery. The words she used to describe the status of human slavery in Ancient Greece resonate within the modern legal rule that excludes all nonhuman animals, even such cognitively complex and autonomous beings as chimpanzees, elephants, and orcas, from eligibility for even the most fundamental legal rights: “When the Greek achievement is considered, what must be remembered is that the Greeks were the first to think about slavery. To think about it was to condemn it and by the end of the second century, two thousand years before our Civil War, the great school of the Stoics, most widely spread of Greek philosophies, was denouncing it as an intolerable wrong.”² The “personhood” of all human beings has now been won; everywhere, human slavery is an international crime. It is now time to turn to another intolerable wrong, the continuing rightlessness of all nonhuman animals.

An initial task of the NhRP is to encourage judges, for the first time, then persistently, to begin to think about the injustice of the legal thinghood of all nonhuman animals, for to think about their thinghood, their rightlessness, is to condemn it as well. For those who have never thought it possible, the required psychological shift must begin with being able to imagine that an entity that has long been considered a legal “thing” can possibly be seen as a legal “person.”

Those of us who work at the NhRP understand what Churchill meant when, after the British finally triumphed over the Nazis at El Alamein, he said that, “It is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning,” for “the end of the beginning” is the initial goal of the work of the Nonhuman Rights Project. For us “the end of the beginning” is helping judges to imagine at least some nonhuman animals not as the legal “things” they have always been, but as the legal “persons” they are becoming, then to persuade those judges to establish their legal personhood. Then the road to fundamental legal rights for at least those nonhuman animals will open and the struggle will shift from the “end of the beginning” to the “beginning of the end” of the automatic legal thinghood of every nonhuman animal and on to the fleshing out of the specific rights to which justice entitles them.

How can we accomplish this “end of the beginning”? The NhRP prepares to litigate its cases by studying the fundamental values and principles, usually including liberty, autonomy, equality, and fairness, along with rational and nonarbitrary decision-making that the courts of a target jurisdiction claim constitute justice. We then gather every relevant scientific fact from the most-respected experts in their fields and fashion our legal arguments in favor of the personhood of our nonhuman animal clients in terms of those fundamental values and principles. Our approach leaves courts with four possible responses.

First, courts can deny that liberty, autonomy, equality, and fairness, along with and rational and nonarbitrary decision-making are actually the fundamental values and principles that constitute justice. This response has the benefit of allowing the NhRP to file new lawsuits that invoke the correct values and principles if it has erred. But no American court has done this.

Second, courts can actually apply their stated fundamental values and principles of justice to the claims brought on behalf of nonhuman animals and recognize their personhood and legal rights. No American court has yet fully done this, either, though one New York trial court came close,³ and it has been accomplished in Argentina⁴ and perhaps India.⁵

Third, courts can narrow some, or all, of their fundamental values and principles of justice by insisting ad hoc that they apply to all, but only, human beings. But this approach undermines “justice” as the courts themselves define it. This may not in the short term have serious consequences for humans though, as we shall see, it may. But because, as Martin Luther King, Jr. noted, “Justice denied anywhere diminishes justice everywhere,” the negative effects of this ad hoc undermining of the rationale for the fundamental rights of nonhuman animals will inevitably severely undermine the rationale for fundamental human rights as well. Ironically it is perhaps only when this occurs that real legal change for nonhuman animals will begin.

American courts have not infrequently passed through periods in which they initially undermined their own fundamental values and principles rather than acknowledge their application to entities long excluded from justice.

They once limited legal personhood and legal rights to white people, and refused to grant them to black people, whom the United States Supreme Court once referred to as “beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.”⁶ Courts refused to grant rights to Chinese people, with the California Supreme Court calling them “a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown.”⁷ Courts limited certain legal rights to heterosexuals, and refused to grant them to gays, with the United States Supreme Court permitting sodomy to be criminalized.⁸ And courts limited personhood and legal rights to men, and refused to grant them to women.⁹

For example, when Miss Lavinia Goodell tried to become a lawyer in 1886, the Supreme Court of Wisconsin refused her request solely because she was a woman stating that ”(t)he law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature; and when voluntary, treason against it.” That court seemed oblivious to the irony of its footnote that Goodell’s lawyer had told them that it was she who had actually written his appellate argument.¹⁰ It ended its decision by stating that, “(i)f, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about.”¹¹ It didn’t matter. That decision, and others like it, would soon be overwhelmed by the “impersonal forces” pushing for equal rights for women from many directions.

Today some courts are again undermining their own fundamental values and principles of justice by limiting legal personhood and legal rights to humans and refusing to grant them to any nonhuman animals, no matter how complex their cognitive abilities are, and no matter how similar to human cognition their cognitive abilities may be. Faced with the NhRP’s claim that imprisoned autonomous nonhuman animals are entitled to the fundamental right of bodily liberty protected by the common law writ of habeas corpus, courts have dismissed our cases on grounds that would be questionable even if, as had Lavinia Goodell, the nonhuman animals themselves had written our appellate argument.

Perhaps the most unfortunate way in which a court undermines its own fundamental values and principles of justice is when it grounds its decision wholly upon an implicit or explicit bias. As I have written elsewhere:

Present judges have been raised in a culture that pervasively views all nonhuman animals as “things.” As are most of their fellow citizens, most judges are daily and routinely involved in the widespread exploitation of nonhuman animals, eating them, wearing them, hunting them, and engaging in other of the numerous exploitive ways that the culture has long accepted. When thinking about humans, different clusters of neurons are subconsciously triggered depending upon the degree to which one identifies with the subject. Imagine how differently a judge is likely to view even such a close relative to humans as a chimpanzee.

Present judges are therefore likely, automatically and unconsciously, to be biased against the personhood arguments the NhRP presents — just as they are likely to be biased about race, gender, sexuality, religion, weight, age, and ethnicity — because “our minds have been shaped by the culture around us. In fact they have been invaded by it.” We therefore expected to encounter puzzling and diverse judicial reactions to our early cases. We were not disappointed.¹²

One New York appellate court dismissed the NhRP’s habeas corpus case on behalf of a captive chimpanzee named Tommy on the ground that personhood could be bestowed only upon one who has the capacity to shoulder not just rights, but also duties. The NhRP argued that a “person” was an entity able to possess rights OR duties, not rights AND duties. But the Court claimed that the principle of “social contract” poses an impassable barrier to rights for nonhuman animals. Why? Because it requires “(r)eciprocity between rights and responsibilities” and that “society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities.”¹³

But the United States Supreme Court has noted that the social contract is “one of the great juristic myths of history.”¹⁴ And humans who are expressly excluded from any “social contract,” if such a thing exists, such as black people two centuries ago, and aliens, including those imprisoned at Guantanamo, have received the right to habeas corpus.¹⁵ Most seriously, the court waved away the obvious problem that millions of New Yorkers, infants, children, the severely cognitively disabled, and others cannot actually bear duties, yet have legal rights. It wrote, “(t)o be sure, some humans are less able to bear legal duties or responsibilities than others. These differences do not alter our analysis, as it is undeniable that, collectively, human beings possess the unique ability to bear legal responsibility. Accordingly, nothing in this decision should be read as limiting the rights of human beings in the context of habeas corpus proceedings or otherwise.”¹⁶

The court further relied upon an obviously incorrect definition of “person” found in Black’s Law Dictionary that stated that persons had to be able to bear rights AND duties.¹⁷ When the NhRP brought this error to the attention of the Editor-in-Chief of Black’s Law Dictionary, he immediately acknowledged it and informed us that the next edition of Black’s Law Dictionary would carry the correct definition, which is that a “person” is an entity with the capacity to possess rights OR duties.¹⁸ In other words, one need NOT have the capacity to bear duties in order to be the beneficiary of rights. But perhaps of greatest concern is that the court never said why the ability to bear legal responsibilities should have anything whatsoever to do with whether an autonomous being, such as a chimpanzee, should have the fundamental right to bodily liberty that habeas corpus was created to protect.

When the NhRP filed a motion imploring the next New York appellate court it faced merely to read the correspondence between the NhRP and the Editor-in-Chief of Black’s Law Dictionary so it would not make the same mistake, it denied the motion, refused to read the correspondence, and made the same mistake.¹⁹ This required the court to ignore the unrebutted evidence the NhRP presented that chimpanzees are autonomous beings who also routinely demonstrate their capacity to bear duties both in chimpanzee communities and in chimpanzee-human communities, though we argued that this was unnecessary for habeas corpus personhood. When we pointed out, again, that millions of New Yorkers lack the capacity to bear duties, but still possess fundamental rights the court replied that “(t)his argument ignores the fact that these are still human beings,” again without offering a clue as to why that fact must necessarily lead to the conclusion that chimpanzees may not possess the fundamental right to bodily liberty protected by a common law writ of habeas corpus.²⁰

Similarly, a Connecticut trial court ignored the mass of unrebutted evidence the NhRP presented that elephants are autonomous beings and dismissed our habeas corpus claim that they were entitled to the fundamental right to bodily liberty because our argument was “rel(ying) on basic human rights of freedom and equality” without further explanation as to why that could possibly be significant.²¹

These sorts of “distinctions without differences” ignore the fact that the demands for personhood and legal rights of black people, Chinese, and other marginalized and exploited humans who courts may view as non-white necessarily relied upon the pre-existing basic rights of white humans, that the demands of women for personhood and legal rights necessarily relied upon the pre-existing basic rights of men, and the demands of gays necessarily relied upon the pre-existing basic rights of heterosexuals. Similarly, the demands of nonhuman animals for personhood and legal rights must necessarily rely upon the pre-existing basic rights of human animals.

Courts however sometimes see that being required to endure the incessant frustration of their most fundamental interests causes nonhuman animals to suffer terribly. Judicial consciences may seek to be eased by accepting arguments sometimes made by respondents and amicus curiae that the existing patchwork of anti-cruelty statutes and unenforceable welfare regulations are adequate to protect nonhuman animals’ fundamental interests or can somehow be made adequate. That Connecticut trial court pointed to that state’s cruelty to animals statutes “as a potential alternative method of ensuring the well-being of any animal.”²² A New York appellate court noted that “(o)ur rejection of a rights paradigm for animals does not, however, leave them defenseless” for existing statutes state they can’t be tortured, unjustifiably killed, abandoned in a public place, or transported in cruel or inhumane ways.”²³

But these kinds of statutes and regulations are plainly inadequate and their inadequacy can never be remedied, for they were enacted not to protect the well-being of nonhuman animals, but rather to regulate the manner in which we humans exploit them. All history demonstrates that even the most fundamental interests of humans can never be adequately protected without legal rights. It is no different for nonhuman animals.

The United States Supreme Court has sometimes sought to assuage its conscience in social justice cases where their rulings preserved an unjust status quo. Holding that a state could separate the races on railway cars, the Court stated that “(a) statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races” and that “the underlying fallacy of the plaintiff’s argument … consisted in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”²⁴

It would take another fifty-eight years of injustice before that same court would made clear what everyone always knew was true, separate is inherently unequal and the problem is not that black people consider themselves inferior.²⁵

Fourth, some courts don’t want to think about the thinghood of all nonhuman animals at all and accordingly dismiss our cases without assessing the merits of our claims, or hearing our arguments, to the point of ignoring their own rules in their determination to refuse personhood to nonhuman animals.

That Connecticut trial court said the NhRP lacked standing to bring its case on behalf of three elephants forced to work in a traveling circus because it had failed to explicitly allege that they had no “significant relationship” with any individual who could file their habeas corpus case against their jailers, as if that fact was not obvious.²⁶ In an extraordinary observation, the court also noted that “it is the respondents who are more akin to parents of Beulah, Minnie, and Karen.”²⁷ The respondents, of course, are the elephants’ masters who purchased them decades ago and have economically exploited them ever since.

In New York the issue of avoiding reaching the merits of our claims has primarily taken the form of attempting to interfere with our right to appeal. When one New York trial court illegally refused to rule on a motion necessary to allow us to appeal, we sought an unusual “writ of mandamus,” which asks a court to order a public official to do his public duty, and demanded that the appellate court order the lower court to rule on our motion.²⁸ Within a week that appellate court set a hearing date on our mandamus request and we appeared as the cover story in that week’s Sunday New York Times Magazine. Suddenly the lower court allowed our appeal to proceed.

Another New York appellate court dismissed our appeal almost as soon as we had filed it, without seeking briefing or hearing, on the erroneous ground that we had no right to appeal.²⁹ We decided not to appeal, but to refile that claim elsewhere. But when a second appellate court refused our appeal as of right, we filed a motion demanding that it grant us the right to appeal to which we were entitled. After our motion was denied by a single justice, we sought a rehearing. When that was unanimously denied by a five-judge panel, we brought another writ of mandamus, this time not in a higher court but in that same appellate court, demanding that it order itself to do its duty and hear our appeal as a matter of right. Only then did the court concede to the NhRP the right to appeal it had always had.³⁰

More than half of all trial courts in the jurisdictions in which the NhRP has filed suit have refused even to grant us a hearing. The Connecticut trial court said our case was frivolous, and therefore did not merit a hearing, simply because no one had ever brought such a case before.³¹ A New York appellate court dismissed our case saying our chimpanzee client could not properly invoke the writ of habeas corpus because his remedy would merely be removal from one place of confinement (living alone in a cage in a Niagara Falls storefront) to another place of confinement (living on a five-acre island in South Florida with two dozen other chimpanzees), as if the court would have ruled in our favor had we petitioned to have him be released into Times Square.³² When this issue arose during oral argument, I rattled off one case after another in which humans had been moved from one place of confinement to another pursuant to a common law writ of habeas corpus, until the questioning judge said, “Okay, okay we get it!” But they didn’t get it and in not getting it they narrowed the availability of habeas corpus so as to exclude those humans wrongly detained in one place of confinement who should be living in some other, less confining, place.

Even when demands for legal change are based upon scientific discovery, evolution in morality, and good public policy, as are the NhRP’s demands, they inevitably encounter strong headwinds at the beginning, for no legal exploitation that has existed for two millennia is going to be dissolved without a titanic struggle. The long and painful struggle for the personhood and legal rights of human slaves, women, children, gay people, and other traditionally disenfranchised human groups demonstrate that catalyzing a gestalt shift from “thing” to “person” will demand a clear and unshakeable long-term strategy, smart and flexible tactics, effective networking, a broad political base, and perhaps most importantly, sheer persistence in the face of multiple rejections.

The work of the NhRP today then is to persist in catalyzing judicial imaginations by bringing scientific discovery to their attention, and in giving the courts opportunities to vindicate their own proud ideals of justice by recognizing that at least some nonhuman animals — certainly those the NhRP’s experts can prove are autonomous — should be legal persons entitled to such basic fundamental rights as bodily liberty and bodily integrity.

In its struggle for nonhuman rights, which remains in its early years, the NhRP’s real stories will not be, did we ”win,” or did we ”lose” any case or series of cases. Instead its stories will mirror those that tell how humans so long excluded from justice found champions determined to fight on their behalf and how they harnessed the impersonal forces of their time and won. The NhRP’s stories, like theirs, will be tales of fights to win the battles and of the numerous skirmishes that rage within every social justice lawsuit that are not so easily apparent, but often determine outcomes, of victories to savor and lessons to learn from defeats, but most of all, of persistence. From such is history made.

Steven M. Wise began his mission to gain rights for nonhuman animals in 1985. He holds a J.D. from Boston University Law School and a B.S. in chemistry from the College of William and Mary. He has practiced animal protection law for four decades and is admitted to the Massachusetts Bar. Professor Wise taught the first class in “Animal Rights Law” at the Harvard Law School and has taught “Animal Rights Jurisprudence” at the Stanford Law School, as well as the University of Miami, St. Thomas, and John Marshall Law Schools, and is currently teaching “Animal Rights Jurisprudence” at the Lewis and Clark Law School and Vermont Law School. He is the author of four books: Rattling the Cage — Toward Legal Rights for Animals; Drawing the Line — Science and the Case for Animal Rights; Though the Heavens May Fall — The Landmark Trial That Led to the End of Human Slavery; and An American Trilogy — Death, Slavery, and Dominion Along the Banks of the Cape Fear River. His TED TALK from the TED2015 Conference in Vancouver, Canada was released in May of 2015, and has over one million views.

[1] Rivka Galchen, “Pickering called,” London Review of Books 27 (October 5, 2017) used this phrase to refer to the power of both a friend and a foe to affect the ability of qualified women to become astronomers in the late 19th Century.

[2] Edith Hamilton, The Echo of Greece 24 (1964).

[3] In the Matter of a Proceeding Under Article 70 of the CPLR for a Writ of Habeas Corpus, The Nonhuman Rights Project, Inc. ex rel. Hercules and Leo v. Stanley, 16 N.Y.S. 3d 898 (Supr. Ct. 2015).

[4]In re Cecilia, Third Court of Guarantees, Mendoza, Argentina, File No. P-72.254/15. English translation available at: https://www.nonhumanrights.org/content/uploads/2016/12/Chimpanzee-Cecilia_translation- FINAL-for-website.pdf.

[5] See Vishrut Kansal, “The curious case of Nagaraja in India: Are animals still regarded as ‘property’ with no claim rights?”, 19(3) J. of Inter. Wildlife L. & Policy 256 (2016); https://doi.org/10.1080/13880292.2016.1204885, commenting upon Animal Welfare Board of India vs. Nagaraja., Civil Appeal №5387 of 2014.

[6] Dred Scott v. Sandford, 60 U.S. 393, 407 (1857).

[7] People v. Hall, 4 Cal. 399, 404 (1854).

[8] Bowers v. Hardwick, 478 U.S. 186 (1985).

[9] In re Goodell, 39 Wis. 232, 246 (1875).

[10] Id. at 233.

[11] Id. at 232.

[12] Steven M. Wise, “Introduction to Animal Law Book,” 67(1) Syracuse L. Rev. 7, 13–14 (2017) and footnotes 37–41). See generally Mahzarin R. Banaji & Anthony G. Greenwald, Blindspot (2014) and Project Implicit, https://implicit.harvard.edu/implicit/ (last viewed on January 14, 2018).

[13] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 151 (3d Dept. 2014), leave to appeal den., 26 N.Y.3d 902 (2015).

[14] Federal Power Commission v. Natural Gas Pipeline Co. of America, 315 U.S. 575, 605 note 6 (1942).

[15] Jackson v. Bulloch, 12 Conn. 38, 42–43 (1837); Rasul v. Bush, 542 U.S. 466, 481, 482, and note 11.

[16] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d at 152 note 3. See Steven M. Wise, “A New York Appellate Court Takes a First Swing at Chimpanzee Personhood. And Misses,” 95(1) Denver L. Rev. 265 (2017).

[17] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d at 153.

[18]https://www.nonhumanrights.org/media-center/04-11-17-media-release-blacks-law/

[19] Nonhuman Rights Project ex rel Tommy v. Lavery, 152 A.D. 3d 73 (N.Y. 1st D2017).

[20] Id. at 78.

[21] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 12, (Docket No. LLI-CV-17–5009822-S December 26, 2017)(the emphasis is the court’s).

[22] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 12 (Docket No. LLI-CV-17–5009822-S December 26, 2017).

[23] People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 152–153 (3d Dept. 2014), leave to appeal den., 26 N.Y.3d 902 (2015).

[24] Plessy v. Ferguson, 163 U.S. 537, 543, 551 (1896)

[25] Brown v. Board of Education, 347 U.S 483, 495 (1954).

[26] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 12 (Docket No. LLI-CV-17–5009822-S December 26, 2017).

[27] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 6 (Docket No. LLI-CV-17–5009822-S December 26, 2017)(emphbasis by the court).

[28] Verified Petition, Nonhuman Rights Project, Inc. ex rel. Kiko v. Boniello, Nos. OP 14–00791, 151725/2013 (N.Y. App. Div. 4th Dep’t Apr. 24, 2014).

[29]Nonhuman Rights Project, Inc. ex rel. Hercules v. Stanley, Nos. 2014–01825, 32098/2013, 2014 WL 1318081, at *1 (N.Y. App. Div. 2d Dep’t Apr. 3, 2014).

[30] Motion Decision, Kiko, Nos. M-4175A, 150149/16 (N.Y. App. Div. 1st Dep’t Nov. 10, 2016). The mandamus petition was withdrawn as moot following the decision of the First Department on Nov. 10, 2016. For the full text of the mandamus petition see: http://www.nonhumanrightsproject.org/2016/11/01/new-petition-filed-on-behalf-of-kiko-in-new-york/.

[31] Nonhuman Rights Project ex rel. Beulah, Minnie, & Karen v. R.W. Commerford and Sons, Inc. 12, (Docket No. LLI-CV-17–5009822-S December 26, 2017).

[32] Nonhuman Rights Project, Inc., ex rel. Kiko v Presti, 124 A.D.3d 1334 (4th Dept. 2015), leave to appeal den., 126 A.D. 3d 1430 (4th Dept. 2015), leave to appeal den., 2015 WL 5125507 (N.Y. Sept. 1, 2015).