Would a Ban on Kosher Slaughter Be Constitutional, and Valid Under RFRA?

In Poland, according to an animal protection law, animals must be stunned with a stun-gun prior to slaughtering. The European Convention for the Protection of Animals for Slaughter permits EU member countries to exempt religious slaughter from the stunning requirement. However, the Polish Parliament voted against granting the exemption. However, such a slaughter would not satisfy the rules of Kosher, which proscribe a very specific manner to kill an animal in accordance with Jewish Law.  As a result, it is effectively illegal to make kosher meat in Poland. Unsurprisingly, several slaughterhouses are violating the law, and doing it anyway.

Would this law be permissible in the United States, both in terms of the First Amendment and RFRA (I’m not asking whether it would ever be passed). I don’t think this would automatically fall under Church of Lukumi Babalu, as such a law was actually intended to protect animals, and not to punish a specific religion. Would a state law eliminating the ability to produce kosher meat place a “substantial burden” on faith? I’m inclined to say yes, though I’m sure opponents would say that kosher meat could be imported from out of state.

As the United States grapples with the extent of the Religious Freedoms Restorations Act in cases like Hobby Lobby, I suspect the conflict between religious beliefs and the mandates of the state will continue to crashing into each other.

Cross-Posted at JoshBlackman.com

Josh Blackman is an Assistant Professor of Law at the South Texas College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. He is the author of Unprecedented: The Constitutional Challenge to Obamacare and also blogs at JoshBlackman.com.

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Comments

  1. nobody.really says

    Interesting case.

    1. Are Kosher laws a manifestation of the “free exercise of religion”, and would the proposed law represent a “substantial” burden? This is unclear to me.

    A law banning animal sacrifice would seem to create an unavoidable conflict with a religion that requires animal sacrifice. Similarly, a law that prohibits animals to be slaughtered in a way prescribed by Kosher law would seem to conflict with a religion that requires the slaughtering of animals as prescribed by Kosher law.

    But does anyone’s religion require the slaughter of animals in this fashion? Or does kosher law merely FORBID the slaughter of animals in some DIFFERENT fashion? In short, can a vegetarian be kosher? If so, then there would seem to be no necessary conflict here; the slaughter laws merely impede your free exercise of lunch options, not of religion.

    But even the laws don’t prohibit free exercise, might they substantially burden it? That is, is the need to give up meat (or import it from some other jurisdiction) so onerous as to seem coercive? Note that society concludes that asking someone to quit a job in order to vindicate certain autonomy rights (to exercise religion, to be free of discrimination or a hostile environment) is generally too high a price. Instead, we impinge upon the employer’s autonomy to vindicate the employee’s. Similarly, society might regard the need to give up meat (or to import it) as so burdensome as to impede the free exercise of religion.

    2. Does the state have a compelling interest in promoting the welfare of animals being sent to slaughter? This is the Big Question, as it hangs on the question, What is the purpose of the state?

    In Merced v. Kasson, http://www.abolitionistapproach.com/media/links/p2026/merced-v.pdf, the Fifth Circuit placed on a city the burden of justifying a law banning the slaughter of four-legged animals within city limits. The city claimed an interest in regulating “animal treatment”, but acknowledged that it could not show that the plaintiff, someone who practices animal sacrifice as part of his religion, “caused any animal greater suffering than is normal in the legal, commercial slaughter of animals for meat.” On this basis, the court rejected the city’s ban.

    Arguably this case would be distinguishable from a case regarding a law that required that animals be stunned before slaughter – because the government could cite the law itself as evidence of the standard of treatment within commercial slaughterhouses.

    3. Finally, is the law narrowly tailored to achieve the goal of promoting the welfare of animals being sent to slaughter? That is, is it more humane to kill animals in the legally-prescribed way than in the Kosher way? And is there some way to promote the humane slaughter of animals that does not conflict with Kosher law? (Chlorophyll? Hypnosis? Slaughter in their sleep? Etc.) Beats me.

  2. djf says

    The word “kosher” is an adjective. Hence, the reference to “the rules of Kosher” is not correct, although understandable. The noun for Jewish dietary laws is “kashrut” (as pronounced in modern Israeli Hebrew) or “kashrus” (the Ashkenazi pronunciation). Or you could just write “Jewish dietary laws.”

  3. says

    Josh, unlike RLUIPA, RFRA cannot be applied to the states under City of Boerne v. Flores. So, to implicate RFRA the ban would need to be promulgated by the national government. My reaction is that the substantial burden would be a slam dunk and the real action would be on the strict scrutiny analysis, particularly whether the ban rests on a compelling governmental interest.

    I do think that you’re right in your prognosis. Hobby Lobby, Elane Photography, and other similar cases are the tip of the iceberg. As public law metastasizes to govern all aspects of civic life it is crowding out private law and private ordering, and therefore destroying the possibility of pluralism. We seem to think that we need a uniform, one-size-fits-all rule to answer every question. That impulse is inherently hostile to religious exercise and many other judgments of private ordering.

  4. gabe says

    Good question: “What IS the purpose of the state?”

    Perhaps Mr. Mcleod answered this question by asserting what it IS NOT.
    “As public law metastasizes to govern all aspects of civic life it is crowding out private law and private ordering, and therefore destroying the possibility of pluralism. We seem to think that we need a uniform, one-size-fits-all rule to answer every question. That impulse is inherently hostile to religious exercise and many other judgments of private ordering.”

    However, it is even more extensive than that; We seem to require a “uniformity” of intent in our debates about the meaning of the founding, the Constitution, legal interpretation, etc etc. When we do so we lose the sense of pluralism and subsidiarity that was considered essential to the founders. Nowhere is this more apparent than in the attempts to define (decide?) what is acceptable religious practice and what is acceptable “scrutiny.” All the while we forget the modifying clause of the Establishment Clause – “nor prohibit the free exercise thereof.”

    If this means anything, it means that those who so practice should decide what is “kosher” or halal for that matter.

    take care
    gabe

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