Harvard’s Cass Sunstein recently complained that conservatives’ slippery-slope arguments about the left’s latest push to codify and enforce radical equality are intellectually “lazy.”  Sunstein and his followers give the example of conservative opposition to gay marriage, which often includes the observation that “the Supreme Court shouldn’t force states to recognize same-sex marriages because, if it does, it will have to require states to recognize polygamous marriages,” or allow humans to wed animals.  Rick Santorum still catches heat because of his 2003 comment that marriage is between a man and a woman and “not, you know, man on child, man on dog, or whatever the case may be.”  The left is always quick to attack when animals are mentioned and smartly points out that a human-animal union is impossible under the law because, duh, animals aren’t persons and can’t consent to marital bliss with a human.

The left’s elite opinionmakers need to be careful in poking fun at slippery-slope arguments on human-animal unions.  After all, the liberal vanguard is far out in front of the army and is winning battles for the recognition of animal personhood.

Just a few months ago, an Argentinian court held that an orangutan is a “person” and thus was being illegally detained in a Buenos Aires zoo.  The ruling came after an animal-rights organization filed a petition and demanded that “Sandra” be released to live in an ape sanctuary.  Basking in the victory, Sandra’s lawyer beat his chest and averred that the decision “opens the way not only for other Great Apes, but also for other sentient beings which are unfairly and arbitrarily deprived of their liberty in zoos, circuses, water parks and scientific laboratories.”

Similar suits are under way in the United States.  A New York trial court recently denied a petition for a writ of habeas corpus sought by the Nonhuman Rights Project (“NhRP”) on behalf of a chimpanzee named Tommy.  The chimp currently resides with his owner in Johnstown, New York.

In Anglo-American history a writ of habeas corpus ad subjiciendum is a legal mechanism requiring that the custodian of a prisoner bring the prisoner before the court for a determination of the lawfulness of his incarceration.  While bills of rights serve as guideposts for the people to monitor government infringements on their liberties, the “Great Writ” provides a mechanism by which a person can challenge a loss of personal freedom.  The Framers of the Constitution had such high regard for habeas corpus that it is one of the few direct safeguards of liberty enshrined in the actual document.

In seeking a writ for Tommy in state court, the NhRP argued that, because chimps possess complex cognitive abilities such as “autonomy and self-determination,” these “are sufficient for personhood for the purpose of a common law writ of habeas corpus, as a matter of liberty, equality, or both.”

“Not long ago, people generally agreed that human slaves could not be legal persons, but were simply the property of their owners,” NhRP attorney Steven M. Wise said when initiating the action.  “We will assert, based on clear scientific evidence, that it’s time to take the next step and recognize that these nonhuman animals cannot continue to be exploited as the property of their human ‘owners.’”

During oral argument, Wise conceded that Tommy’s owners were not in violation of any federal or state statutes concerning the possession or care of wild animals.  He claimed that the statutes were barbaric and said “it is the job of common law courts, in appropriate circumstances, to make both law and public policy.”  Wise seemed disappointed when the court suggested that the proper way to change public policy would be to lobby the legislature or to elect new members who share the NhRP’s view.

In denying the writ, the court pointed out the obvious: No animal has ever been explicitly considered a person capable of asserting rights for the purpose of state or federal law.  It then fell back on social-contract theory and appealed to the historical connection between rights and societal obligations.  “Unlike human beings,” the court observed, “chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions.”

In better days, a court would have simply asserted that human beings are made in the image of God.  In other words, God chose to give humans dominion over the Creation as His stewards, undershepherds, or subregents (Genesis 1:28).  Tommy is part of the Creation over which we humans have dominion.  We are charged to rule rightly and judge over the Creation—doing our best as fallen men to imitate God’s perfect attributes.  While Tommy deserves good stewards, he cannot be considered a person.

As the appeals process goes forward and other suits are filed by the NhRP, don’t be surprised if some American judge or panel of judges eventually buys the personhood argument and pushes the banner of equality further.  The NhRP claims that it just wants Tommy moved to an ape sanctuary as Sandra was, and that the implications of personhood end in the habeas corpus arena.  Sure . . .

Of course, it would be intellectually “lazy” to forecast wedding bells for Tommy or some other simian.  But we already are so far down the slope of radical equality that the terrain is unrecognizable, and the turns come up rather quickly.