The appellate division of the New York Supreme Court will hear arguments Thursday on behalf of two captive plaintiffs - both of them chimpanzees.
Their self-appointed attorney, the crusading animal-rights lawyer Steven Wise, will once again be making the case that U.S. law should not consider the apes things, but rather "legal persons" that have a right to bodily liberty.
It's an argument that, if successful, could lead to revolutionary changes in legal status for animals. But it's one that has so far failed to convince judges.
The chimps in question at this week's hearing are Tommy and Kiko, both of which are held by private owners in New York, according to Wise's group, the Nonhuman Rights Project. In a bid to persuade courts to recognize the animals as "legal persons," the group has filed writs of habeas corpus, which would allow the chimps to challenge the legality of their detention in court. Any court that granted such a writ would be acknowledging the ape's legal "personhood" - and right to be free.
Courts have already granted personhood to other non-humans, which is not the same as declaring them people, Wise often notes. Corporations can be legal persons, as can ships. On Wednesday, New Zealand's parliament officially recognized the Whanganui River as a legal person. And so far, courts have been willing to at least listen to Wise's arguments on behalf of chimps, if not rule in their favor.
Despite the defeats, Wise said he was encouraged by a 2015 state Supreme Court ruling that rejected his group's arguments but called the quest "understandable" and acknowledged that the definition of legal personhood has evolved over time. But the judge in that case said she was bound by a higher court's previous ruling that chimpanzees could not be granted legal rights because they're unable to bear "legal responsibilities and societal duties."
No other court has said you have to have the capacity to assume duties and responsibilities in order to be a legal person and have rights.
Animal-rights lawyer Steven Wise
Wise says that's wrong for a couple of reasons that he plans to present on Thursday. First, he said, he'll argue that legal personhood does not require the ability to assume duties or responsibilities - children cannot do so, for example, nor can some Alzheimer's patients.
"No other court has said you have to have the capacity to assume duties and responsibilities in order to be a legal person and have rights," Wise said. "In fact, millions of people in the state of New York can't assume duties and responsibilities. But I assure you they aren't legal things."
If that argument doesn't work, Wise says he has a backup: Sixty pages of affidavits from six experts on the behavior and cognition of chimpanzees, including the famous primatologist Jane Goodall. They present evidence that these highly intelligent animals can - and do - assume duties and responsibilities in their own societies and in chimp-human "societies" created for research purposes.
"They just give example after example," Wise said of the affidavits. "For example, when a chimpanzee band crosses a road, a male will go to the front and another male will go to the back and allow others to cross. And when they engage in hunts, they each have separate duties. They each have to do their job."
But, unlike most humans, chimps clearly can't be held accountable for not doing their societal duties, which is one reason some legal scholars reject Wise's argument. Critics also warn of a slippery slope that theoretically could make all pet-keeping illegal.
Wise said the goal at this point is to get Tommy and Kiko sent to a sanctuary - an outcome that, so far, New York courts have not come close to letting happen. (It did happen recently in Argentina, where a judge ruled that a chimpanzee named Cecilia had "non-human rights" and must be transferred from the zoo where she lived to a sanctuary.)
But the Nonhuman Rights Project has plans to see if other American states' courts might be more open to the idea. Wise said the group is preparing a case on behalf of an elephant in a state that is not New York, eyeing the case of some chimpanzees in California, "looking very closely" at orcas owned by SeaWorld.