EU Court of Justice Upholds Restriction on Kosher and Halal Slaughter

Would this rule be valid under Employment Division v. Smith?

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Yesterday, the European Union Court of Justice decided Centraal Israëlitisch Consistorie van België and Others v. Vlaamse Regering. This case considered a Flemish law that restricted Kosher and Halal slaughter. Specifically, the government required butchers to use an electric stun gun on animals before slaughter. Kosher and Halal butchers contend that this stunning would render it impossible to perform the ritual slaughter. The court upheld this statute. Here is a snippet of the analysis:

Secondly, like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, by analogy, ECtHR, 7 July 2011, Bayatyan v. Armenia [GC], CE:ECHR:2011:0707JUD002345903, § 102 and the case-law cited), with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings. . .  .

Consequently, it must be found that the measures contained in the decree at issue in the main proceedings allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.

Many critics of originalism would gladly prefer this sort of free-wheeling jurisprudence. I'll take originalism, warts and all, any day over this sort of cosmopolitan living constitutionalism. Indeed, I remain blissfully unaware of European constitutional law. I take my cue from Justice Blair's seriatim opinion in Chisholm v. Georgia: "The Constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal."

Let's assume California enacts this statute. Would it be constitutional? Would this law be neutral, and generally applicable? Unless there was some evidence that this law was targeted at Jewish or Muslim people, rational basis would be the likely standard of review.  Well, at least as Smith is understood until Fulton is decided.

Let me throw one more wrinkle. Could an incorporated, for-profit butcher bring suit under the Free Exercise Clause? Gallagher v. Crown Kosher Supermarket would suggest that corporations do have Free Exercise rights. What about under RFRA? Justice Ginsburg's dissent in Hobby Lobby, which was only joined by Justice Sotomayor, suggested that corporations could not avail themselves of a RFRA claim. Perhaps a sole proprietor butcher could bring a RFRA claim. But Hebrew National would be locked out of court.

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  1. Indeed, I remain blissfully unaware of European constitutional law.

    Glad you didn’t let a little thing like that come between us and your hot takes!

      1. Blackman makes an excellent point here.

        If a similar law was to be passed in the US, would it be Constitutional? Why or why not?

        It would essentially outlaw Halal and Kosher food production in the US.

        1. Or perhaps Halal & Kosher could enter the 21st Century.

          About 15 years ago, it was discovered that the NYC drinking water contains microscopic shrimp, and as I understand it, shrimp are banned under the Kosher dietary laws. The shrimp are only in there because the water is so pure, otherwise they couldn’t live there.

          A Rabbi had an interesting resolution to this: ““The notion that God would have forbidden something that no one could know about for thousands of years, thus causing wholesale, unavoidable violation of the Torah, offends our deepest instincts about the character of both the Law and its Author.”

          Could one not say the same thing about 21st Century stun guns?

          1. Water is so pure? Sorry, but New York City has an exemption from the federal government that no one in the water industry knows how it was actually granted.

            While everywhere is required to filter and chlorinate their water, and many states have much stricter requirements (such as requiring flocculation and settling as well). However, New York City is the only location in the country that is not required to even filter surface water. It literally has the lowest water protection in the country.

          2. 1. Copepods are NOT microscopic. They are easily visible with the naked eye, once you know what you’re looking at.

            2. Kashrut laws can’t change. There is nobody with the authority to change them. And I imagine the same is true of halal.

          3. Oh, and they don’t live in NYC water. They die in it. The issue is their corpses, which are not filtered out of the water because NYC has an exemption. And it’s the fact that they’re dead that makes them hard to see, since they’re no longer moving, they’re just floating in the water.

    1. It’s always nice to see a university professor brag about being ignorant.

      1. Matinned,
        Go easy on him. He is only from a tier-5 law school

        1. Tier 5 is being charitable.

  2. the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today

    Well, at least it’s (the Flemish law) a proper law rather than a regulation created by non-legislators as legislators hide and smile at their stock portfolios they are mysteriously genius managers of.

    Unfortunately, concepts like freedom of religion, such as in the US’ First Amendment, are to protect minorities against encroachment by demagogues leading the masses on a cruscade.

    Guess what? The People deciding to hurt minorities because they have more votes, or its rationalization workalike, “changing values in society”, has never been a problem anywhere in the world, or in human history, except in countries that protect minorities, ideally gated behind supermajority requirements to make a change.

    So such protections are irrelevant because no supermajority is required. Hence all the high falutin’ words aren’t worth a hill of Tide pods if it’s the same old thing: demagogues using simple majority as sufficient rationalization to tromp on rights.

  3. “Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter”

    Europeans Jews worse than animals once again.

    More things change…

    1. “treat”

      Europeans treat Jews worse than animals once again.

    2. I am a Jew and I am pretty sure you are not. Please don’t use us as props for your political takes.

      1. So do you refrain from commenting about racism against Blacks, Hispanics, Asians, etc. because they would just be props for your political takes? How about sexism, anti-LGBT prejudice, or anti-ableism?

      2. Yep, and if was driven by religiously neutral motives, it would be perfectly constitutional under Employment Division v. Smith. We’d have to rely on a state RFRA to fix things.

        1. This was supposed to be a reply to Armchair Lawyer’s 12/18 8:38 pm comment, above. Don’t know how it jumped down here.

      3. First they came for the Jews, and I was not a Jew, so Jon S told me not to speak up.

  4. there must be a way to accomodate animal welfare with our ancient rituals. this is a good result. Of course- a better outcome would be to stop slaughtering and mistreating animals for food since we can now grow animal protein. Sentient beings need to be respected and the Bible commands us to be stewards of God’s creation.

    1. Well, sure, you could breed animals without pain receptors, for instance. Or even go so far as they did in the Hitchhiker’s Guide, and breed food animals that want to be eaten, and are quite capable of telling you so.

      “since we can now grow animal protein.”

      Still at utterly ruinous cost. And unlikely to be at a cost compared to these mobile, self-reproducing meat factories we already have available. To assuage moral concerns that aren’t actually all that common, you’d put meat beyond the reach of almost everybody.

    2. No where in the Bible does it say God’s creations should abstain from using animals he provided for food or other uses. You just made that up.

      1. Yes, but it does provide for very specific rules as to which animals you can eat and how they must be slaughtered (in a very humane way, especially for the time by the way). It also forbids hunting. Yet almost no Christians follow these rules and, in the case of hunting, celebrate violating them. Only a subset of Jews follow these rules and I’d guess you don’t even know them at all and the ban on hunting is a surprise to you.

        1. Quit lying. You are worse than Sarcastro with the lies. The Bible does not forbid hunting either. Quit making things up.

          1. Strictly speaking, that’s true. It doesn’t utterly forbid hunting per se. It just forbids eating things that were hunted. And hunting for sport is definitely frowned upon.

            1. So, in other words, I was right.

            2. It doesn’t forbid eating things that were hunted. So long as the hunting was done with nets or traps, etc., so that the animal could then be slaughtered properly by cutting its throat, it may be eaten. And hunting animals for their skin is completely kosher. So is hunting fish, since there are no rules for killing them.

        2. It also says “thou shalt not suffer a witch to live.” (Exodus 22:18)

          Your point is?

          1. Have you been showing mercy to a lot of witches lately?

        3. It also forbids hunting. Yet almost no Christians follow these rules
          You’ll have to point me the Christs words about not hunting.

        4. The reason that Christians don’t abide by that law is that it was explicitly revoked.

          Please note Peter’s vision on the rooftop towards the beginning of the Book of Acts, which was the formal revocation of Kosher. The summary: No animal and no person is unclean.

          Seriously, you can’t just randomly quote verses without understanding the context.

    3. “grow animal protein”
      You may call it that but you name is a fraud. At best you can call it animal-like of animal-style protein.

      1. Don’t get me started about that one. The European Parliament already had that debate in October, but fortunately stopped short of banning people from selling “veggie burgers” etc.

        https://www.independent.co.uk/life-style/food-and-drink/veggie-burgers-eu-vote-european-parliament-meps-vegetarian-food-b1252734.html

    4. The word steward in the Bible doesn’t mean what you apparently think it means.

      Abstaining from using the Earth’s resources is not being a good steward.

      1. I highly doubt you have read the Hebrew Bible in its original language so your opinion is not much more informed than the person you are responding to.

        1. Jon S.
          Why would Christians follow the Hebrew Bible? Christ exists to answer the wrongs of Judism

          1. You mean the Christ who said he wouldn’t change one iota of The Law?

            1. Christ who said he wouldn’t change one iota of The Law until it was fulfilled.

              Christ was the fulfillment of the Old Testament law.

              1. More specifically, the crusificxion and reresection of Christ was the fulfillment of the Old Testament Law.

        2. I have, and he’s right. Whatever word is being translated as “steward” doesn’t mean that. My best guess is that the reference is to לעבדה ולשמרה, which I would translate as “to work it and to keep it”. “Keep” as in “gamekeeper”; the meaning is to preserve it for long-term exploitation.

        3. Jon S, if you are going to address yourself directly to someone else here, it would be helpful if you would call them out by name, so others would know who you were talking to and thus might understand the point(s) you wished to make.

  5. Living, breathing constitutionalism though is the bees knees. When something is a political fade you can then use the courts as another avenue to virtue signal and enact public policy. Trannies popular? Boom, here are some new rights. Black lives matter now? Hey, the 14th Amendment REQUIRES affirmative action. Black lives don’t matter anymore? Here you go, we will just change up that previous ruling to be more consistent with the times.

    Originalism is like wearing a leisure suit in 2020, it looks old and dated. But, why just get stuck to one style when you can just change up your constitutional likings like you can change up your wardrobe.

    All the cool kids are doing it Blackman so get on the bandwagon while you still can!

    1. Haha, tell us more about how this is super against the US constitution!

      1. The US Constitution was MEANT to be a living document. So said the Founding Fathers, duh! And as long as George Soros and a few celebrities think there is a right in one of those shadows or penumbra or emanations then *poof* five votes on the Supreme Court and let the magic happen! Nothing wrong with that or at least that is what the media will tell us over and over again. And we know only loonies from the sticks who think there is election fraud (can’t they see that Twitter says those claims are disputed?!?!?) will not think this is just fine and that is probably because they don’t like minorities!

        1. Read the first sentence of the OP more carefully.

        2. What in the hell does George Soros have to do with any of this, or is that just a bit of gratuitous antisemitism on your part?

  6. In case anyone is confused by the results of prof. Blackman’s self-professed ignorance, the bit he quoted only goes to the first prong of the proportionality analysis: whether the law in question pursues a legitimate aim. Next there’s the question of whether there is a less intrusive way to pursue the same aim, whether the law is actually effective at pursuing the aim in question, and whether it strikes a balance that is proportionate in the round.

    1. One way or another the animals still end up dead.

      I wonder though does Belgium still allow farmers to produce foie gras?

      1. I’m pretty sure it doesn’t. (But can’t be bothered to look it up, because Belgium’s statutes database is the worst.)

  7. Hebrew National already answers to a Higher Authority

  8. I prefer Hebrew Beer, the chosen beer.

  9. How did Moses make beer?

    He brewed it.

    1. Don’t be silly, he called upon God to turn water into beer.

      1. God is more of a gin and tonic guy. Jesus is into wines. The Holy Spirit has his own label.

        1. The Holy Sprit is 190 proof

        2. That blood thing is a mistranslation Moses turned the rivers of Egypt into beer.

  10. Again in Europe the rights of common animals are placed above the rights of Jews. When has Europe ever been a friend to the Jews? The time has come for the Jews of Europe to pack their things and leave. Israel (and perhaps America) will welcome them with open arms.

  11. How do we know Big Pork isn’t behind this? Denmark is the world’s largest hog farm.

  12. I would think that Hebrew National could challenge a similar regulation (under RFRA or Free Exercise) to vindicate its customers’ religious interests. The issue in Hobby Lobby was essentially whether a closely held corporation could be understood to have its own religious interests under RFRA. But since Hebrew National’s individual customers undoubtedly have religious interests, its standing for a challenge to slaughtering regulations should turn on issues of vicarious standing than have nothing to do with HN’s own organizational form. (Recall that Hobby Lobby never suggested that its customers had any cognizable interest in HL’s employees’ health insurance.) The many abortion cases granting standing to doctors and clinics suggest that HN would have standing for at least the constitutional claim, although vicarious standing for a statutory claim can be trickier.

    1. Standing to challenge such a ban would be straightforward for a large set of plaintiffs. The three elements – injury in fact, causality, and redressability – would seem very clear cut.

  13. If this occurred in the US, an obvious first line of argument would be Lukumi Bablo Aye. The Belgian law exempts hunting for sport and other activities; it seems not to be concerned with general animal welfare, but ro effectively target ritial slaughter even if it doesn’t specifically say so.

    One doesn’t have to get anywhere near the Police v. Newark framework to find this. Lukumi Bablo Aye should be enough. Belgium’s reason for exempting hunting seems to be at most nothing more than convenience. But it is strong evidence the ban is pretextual, based on a dislike of Muslims that Jews seem to have got caught up in.

  14. I also find it very troubling how many of the commenters on this post have seen it as an opportunity to poke pot shots at Jews and Jewish practices.

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