The cases before the New York Court of Appeals concerned Tommy, a chimpanzee held alone in a cage on a used trailer lot, and Kiko, a chimpanzee held alone in a cage attached to a private home. Tommy and Kiko were our clients in our first lawsuits seeking a nonhuman animal’s right to liberty, which we filed in 2013. The lower courts rejected their cases—essentially ruling that because they weren’t human, they couldn’t have rights. When New York’s highest court declined to hear our appeal in 2015 we didn’t give up. We filed a second case for Tommy with even stronger evidence and legal arguments to rebut how the lower courts had responded the first time.
By the time Judge Fahey issued his opinion, Tommy and Kiko’s suffering had already endured years of litigation. Though the judges applying the law insisted their hands were tied and that chimpanzees were pieces of rightless property, Tommy and Kiko showed every sign of being autonomous individuals. As such, they should have the right to liberty. World-renowned chimpanzee cognition and behavior experts contributed affidavits to their cases at the outset proving that chimpanzees need and want to live freely. Chimpanzees, they wrote, are able to remember the past and plan for the future. They possess self-awareness and self-control. They have the capacity to communicate through sign language, and they can engage in problem solving and tool use, among other complex capacities. Still, the lower court judges denied Tommy and Kiko the right to freedom simply because they were chimpanzees.
When Tommy and Kiko’s second cases reached the New York Court of Appeals in 2018, the court again denied our motion to hear their cases but didn’t rule on the merits, i.e. said nothing about the substance of our arguments. Judge Fahey, concurring with the denial on technical grounds, chose to write a separate opinion that directly addressed our arguments. This opinion not only expressed support for chimpanzees’ right to liberty, but also directly rebuked the logic underlying the lower court decisions. He wrote:
The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a “person” or relegated to the category of a “thing” amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek freedom from confinement through the writ of habeas corpus should not be used as a simple either/or proposition. The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.
Previous rulings justified the denial of legal rights to chimpanzees by claiming chimpanzees couldn’t bear legal duties—and therefore couldn’t hold rights. But Judge Fahey saw through this logic. He noted that human infants and adults with severe cognitive disabilities also lack legal duties, yet no one would argue they lack fundamental rights. He called out the inconsistency and made clear: the denial of rights based on species alone cannot stand.
Judge Fahey’s opinion couldn’t change the outcome of Tommy and Kiko’s cases. But it changed the legal landscape. For the first time in US history, a high court judge validated the core of the NhRP’s arguments. He recognized the legal strength of what we’re asking: that the justice system stop ignoring the very tangible interests of nonhuman beings simply because they aren’t human.
Judge Fahey’s opinion is not only remarkable because of its powerful analysis—the opinion also signifies a significant act of judicial courage. Judge Fahey ended his opinion by candidly revealing his personal struggle with the court’s decision to not hear Tommy and Kiko’s cases when it had the opportunity in 2015:
In the interval since we first denied leave to the Nonhuman Rights Project, 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.
Judge Fahey was the first US state high court judge to take a position validating legal rights for nonhuman animals—a position none of his colleagues on the New York Court of Appeals took with him at the time. Although he retired from the bench shortly after writing his opinion, his colleagues Judge Rowan Wilson (now the Chief Judge) and Judge Jenny Rivera joined his ranks in 2022 with their powerful and historic dissents in favor of Happy the elephant’s right to liberty. We’ll share further analysis of these dissents in June on the anniversary of the day the judges issued them.
In the years and decades to come, I’m confident the legal system will increasingly follow Judge Fahey’s arc from initial denial to sympathizer of legal rights for nonhuman animals. This anniversary in the history of the NhRP and the nonhuman rights movement reminds us why we keep going—even when the system is stacked against nonhuman animals in so many ways. If you can, please donate today to help us grow and strengthen this movement. Right now, all donations are being matched up to $10,000 thanks to a generous donor.
