May 13, 2002 -- Moe's owners think they know what's best for him. So does the city of West Covina, Calif., so does the Animal Legal Defense Fund, and so does the director of a local sanctuary.
The problem is, even though he's 36 years old, Moe the chimp can't speak for himself.
That's partly why the custody battle between Moe's owners and the city of West Covina has continued for nearly four years. It's also why a growing cadre of prominent lawyers is lobbying to broaden the way we define all animals and animal rights in the U.S. court system.
"African-Americans and women and handicapped people and homosexuals — they're all able to talk," said Cass Sunstein, a law professor at the University of Chicago who advocates the appointment of legal guardians for animals to protect their welfare. "That made all the difference. If animals could speak, the law would look a lot different."
A Troubled Chimp History
In the latest settlement, reached last week, both sides agreed that Moe would be moved from his chain-link cage at the Wildlife Waystation Sanctuary, where he enjoys the occasional company of other chimps, to an air-conditioned building on industrial property in neighboring Baldwin Park, Calif. But that now seems unlikely to happen, since the city of Baldwin Park is not interested in hosting the chimp.
The agreement was the latest effort to end litigation that began in 1998 when the city of West Covina removed Moe from the home of St. James and LaDonna Davis after the animal allegedly bit two people. The Davises sued to have Moe returned. And now no one, it seems, is happy about the settlement.
Baldwin Park city officials say they don't want the chimp and sanctuary director Martine Colette believes Moe would be better off in the company of other chimps.
"He's a chimp, regardless of what people say," says Colette. "Chimps are chimps, they're never going to be anything else."
But Steven Wise argues that's not true — at least not legally.
When a Chimp Is a ‘Person’
"Any animal — at least one with a sense of self — should become eligible for legal rights," says Wise, a lecturer of animal law at Vermont Law School and Tufts University School of Veterinary Medicine and author of the new book "Drawing the Line."
Rather than being regarded as property, as animals now are, chimpanzees and other higher mammals should be represented directly in courts in the same way that abused children are appointed legal guardians, Wise argues.
Wise has been leading the cause to grant higher mammals the right to have suits filed in their names. He says his strategy is to begin the battle for chimpanzees and eventually win similar rights for other animals.
Laurence Tribe, a professor of constitutional law at Harvard University, points out that so-called legal persons status is now granted on behalf of corporations and ships and buildings — so why not animals?
"I can't see why chimpanzees and dolphins, to name just two extremely intelligent examples, should be deemed any less worthy of such classification," says Tribe, who argued before the Supreme Court on behalf of then-Vice President Al Gore during disputes over the outcome of the 2000 elections.
Tribe adds, however, that granting such status would not suggest any animal is the legal equal of humans.
"There are rights … and there are rights," he says.
Wise is now drafting a declaration of rights for apes, which he hopes international leaders will sign by the year 2010.
Flooding the Courts
But others don't go so far as to advocate that animals be considered legal "persons."
"I think it's a little odd-sounding to consider chimpanzees and other animals as persons," says Sunstein. "But I think it's right to say that animals have the right to legal protection against unjustified suffering."
State laws forbidding animal cruelty already protect animals, but Sunstein says allowing people to sue to protect animals would ensure that more cases of abuse are addressed in courts.
More lawsuits are the last thing we need, others argue.
"Can you imagine what our court system would look like if cases were allowed to be filed based on a person's perception of an animal's care and treatment?" said Steve Kopperud, president of the Animal Industry Foundation. "If your political belief is that no animal should be exploited for any purposes, then no amount of care would be sufficient. It would be completely overwhelming."
Sunstein believes courts wouldn't be any more overwhelmed than they were during the civil rights movement. And he adds that all animals should be afforded such protection — including the lowly lab rat, which along with birds and other rodents, are excluded from the Animal Welfare Act.
Today, President Bush signed the farm bill, which included an amendment authored by Sen. Jesse Helms, R-S.C., to exclude rats, mice and birds from the Animal Welfare Act. Lab rodents and birds are already protected to some degree under other laboratory guidelines and researchers claim that more regulations — and more lawsuits — would only hinder research.
"It would mean more paperwork and more cost," says Frankie Trull of the U.S. National Association for Biomedical Research. "And that will ultimately only drive up costs for consumers."
But animal-rights activists envision a time when, regardless of species or what legal protections are in place, they could sue on behalf of any animal they believe is being ill-treated. To reach that end, they're constantly on the lookout for cases like Moe's, which might highlight their cause and perhaps set some precedents for future cases.
The Animal Legal Defense Fund lobbied three years ago to legally represent Moe in court by gathering experts who would formally assess what might make the chimpanzee most content. Moe's owners, however, didn't want any help.
"They told us this animal is property — our property — and we don't want you coming in and telling the court what's best for him," said Joyce Tischler, executive director of the Animal Legal Defense Fund.
In the meantime, Tischler says the fund is getting involved in more common kinds of cases involving cats and dogs. In custody battles over pets and in cases involving damage to pets, the fund has been submitting legal briefs to the courts, suggesting that judges look at the case in terms of the animal's interest.
In this way, Tischler says they hope to take small steps toward gaining legal rights for animals.
"It's like pushing a peanut forward," she says. "One has to go step by step by step."