Bioethics is and will be the new disputed frontier of the culture wars.
Thus, this and similar suits in recent years are indeed ominous portents, although many here will doubtless wish to point out that they’re not succeeding…yet. The linked NY Times article indicates that the state judge involved sees this ruling as merely a way to get the parties into court, rather than as a ruling on the merits. So that’s good.
Further, legal personhood is a fictional construct—chimps aren’t people, but neither are corporate entities like business corporations, churches, political parties, etc. So legal personhood need not imply metaphysical personhood of the sort rightly assigned to humans. So that’s another reason not to fret.
However, there are still reasons to fret: Professor Tribe, in the linked article, says we’re not ready to grant “human personhood” to chimps “yet.” This is very dangerous rhetoric indeed. First, “human personhood,” real personhood, is the sort of personhood that thinkers of the ilk of Peter Singer and Julian Savelescu want society to grant to nonhuman animals (and maybe A.I. at some point), and withhold from the comatose, the unborn, and even infants under the age of two.
Animal rights activists’ focus on “personhood” lawsuits like habeas corpus actions reveals (not that they’re shy about stating their goals) that revolutionizing our definition of human personhood to include animals (and incidentally to exclude disfavored humans) is the core agenda here. As Wesley J. Smith (whose National Review column “Human Exceptionalism” is really the go-to reference, IMHO, for traditionalist coverage of skirmishes like these at the bioethical frontiers of the culture war) often quotes PETA President Ingrid Newkirk assertion that typifies the extremist desire to blur our boundaries of personhood: “A rat is a pig is a dog is a boy.”
Backed into a corner, many of these activists will protest that they only mean that “a rat is a pig is a dog is a boy” in the sense that all can feel pain and should have their welfare protected. But that is not the vision that animates the zealous core of the animal rights movement, as we can see in two key ways.
First, we know that one-year-old babies can feel pain, but thinkers like Singer and Savelescu think it’s fine to murder them if they are disabled or otherwise inconvenience their parents. Now, presumably S&S (“the S.S.” was a deeply tempting choice of contraction given my read on the ultimate stakes here, but this debate gets heated enough without bringing Godwin’s Law into it, so I think I owe S&S’s side at least the minimal courtesy of refraining) would say that such children ought to be anaesthetized before being “euthanized.” However, PETA zealots want all animal experimentation to end—anaesthetized or not. So reducing animal pain is not the end goal here.
Second, “animal rights” overlaps with, but is very different than, “animal welfare.” Animal cruelty laws already exist to address animal welfare concerns. If regulations on animal experimentation don’t sufficiently protect animals from needless pain, then animal advocates should (and can) advocate for state and federal lawmakers to strengthen those regulations.
Now, perhaps the concern is that government regulators aren’t sufficiently motivated (or funded, or whatever) to bring actions against violators of existing animal welfare regs. But if that’s the case, then PETA and its ilk ought to be lobbying for qui tam provisions in animal welfare regs.
(A “qui tam” provision allows private “whistleblower” suits in cases where the government is being defrauded (which isn’t relevant here) and also, relevantly, can allow private parties to bring suit against other private parties for violating laws or regulations. The classic law school example of such a qui tam suit would be a local nonprofit bringing suit under a qui tam provision against a local factory for dumping pollutants in a nearby river in violation of environmental regs.)
Now, there is a complication here: SUNY is a state agency, and IIRC (although I am very much open to correction on this point, which is far outside my knowledge base) qui tam suits, at least under federal statutes, can’t be brought against states for 11th Amendment reasons. However, I would imagine that legislators in Albany could be lobbied (or, being Albany, bought, if one does politics that way) to add some sort of private enforcement provision to state regs.
So, with the caveat that SUNY is a state agency, and maybe that’s relevant in the present case, I think it’s revealing that these zealots, across a variety of cases over the years, have sought a habeas corpus remedy rather than a qui tam remedy. A qui tam remedy would allow them to bring animal abusers to court. But it wouldn’t be a legal recognition of personhood for animals, any more than present qui tam suits against polluters of rivers represent personhood for rivers.
So this isn’t about animal welfare: it’s about animal personhood.
It’s an extremist position, and hasn’t gained much traction yet. But the two key ideological traits that allowed for SSM’s rapid ascent to cultural respectability in our Lockean legal order and our emotivist, therapeutic public culture are there:
1. Sympathetic victims. SSM had the travails of decent people denied hospital visitation, child custody, and other basic civil protections for the family lives they had built. Animal rights has primates, cetaceans, and every big-eyed fuzzy critter you can think of.
2. A carefully constructed narrative of itself as the next civil rights frontier. Richard Rorty wrote of secular relativist liberalism as a project of expanding circles of concern and compassion—from propertied able-bodied white men to women, people of color, disabled people, etc. As we’ve seen, SSM fit right into that vision, and transgender narratives do, too. Here, the idea of expanding the circle of concern to include animals is an ideologically natural (indeed, perhaps historically inevitable) outworking of Deweyan progressive visions like Rorty’s, and indeed animal rights thinkers like Singer, and the people at the Great Apes Project (a primate personhood initiative associated with a lot of these habeas suits in the U.S. and with campaigns for primate personhood parliamentary legislation in countries like Spain) have been articulating that exact “expanding circle of concern” case for animal rights as the next civil rights for years now.
All movements start small. And this particular suit is unlikely to prevail. But these suits for the rights of beasts portend that something very, very rough indeed is slouching toward Bethlehem to be born. This is tomorrow’s culture war. And the side that has sympathetic victims and a narrative of itself as “the new civil rights movement” always seems to win. The time to start thinking rigorously about how to counter this—or how to survive our very, very probable defeat in a future American cultural landscape where chimps are obviously people, comatose humans obviously aren’t, and anyone who thinks differently is a “religious nut”—is long past.
I got some thoughtful pushback, to the effect that my view was alarmist, "mistaking a squirrel rustling a tree branch outside for the onrushing Wehrmacht." I replied:
Oh, I don’t think that tree branch rustling outside in our garden is the Wehrmacht, those noisy brutes—we’d both have noticed their sort by now. I think it’s maybe the Wandervögel tramping through our yard, those apolitical German hippie hiker kids, happy to admit Jews and gay people into their ranks, eager for peace, love, nature, and vegetarianism, greeting each other with a hearty “Heil!”, singing German folk songs round the campfire, and dabbling in Teutonic neopaganism. Nice kids, wholesome ideals, happy to have them stroll through our yard. But I do notice that some of those ideas could, maybe, be appropriated a certain way, and do some damage. Not now, not in 1895, as the boys in our garden rustle the branches of our blooming spring trees so they can grab flowers for their belles’ hair. But in a few decades? In the far, futuristic world of 1933 or 1945, with its technologies we can hardly dream of from the vantage of 1895? I don’t know. Maybe. I’m far from panicked. But I think sober reflection is in order. And I think some of those Teutonic neopagan elements, in particular, ought to be opposed before they make trouble. I’m going to go talk to those kids on our lawn now, so we can reason together. No harm in that, and it might ward off something ugly. There will be apples on our trees soon enough, and they might yet scrump them. Fair enough—what could be more wholesome than a fresh-picked apple? And we’ve plenty to spare for scrumpers. But I do recall that mankind has gotten in trouble scrumping apples before; terrible trouble indeed, from messing about with something good-seeming, promising godlike knowledge and power, but proven in the eating a fruit full of worm-spoiled woe and sorrow. I’d best warn those nice kids away from the orchard. Now. Before the apples come.