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THE PROHIBITION OF RITUAL SLAUGHTERING

(KOSHER SHECHITA AND HALAL) AND FREEDOM OF

RELIGION OF MINORITIES

His tender mercies are over all His works1

Pablo Lerner* and Alfredo Mordechai Rabello**

INTRODUCTION

The statutory prohibition against ritual slaughter, which does notstun the animal prior to slaughter, as required in most Western nations,poses a significant challenge for the international right to freedom of

religion or belief in European nation-states.

2

This prohibition ismportant not only in Europe, or because of the prohibition itself, butbecause it implicates the legal status of two minority religious

communities in these nation-states, those of Judaism and Islam. Someanimal rights advocates have objected to ritual slaughter withoutstunning because, in their view, it causes needless suffering by theanimal,3 and they have been successful in getting their views enactednto law in a number of European countries. Indeed, some countries

prohibit ritual slaughtering altogether, as we shall discuss below.This paper argues that the right to freedom of religion or belief

requires nation-states to respect the rights of religious minorities thatengage in ritual slaughter, even if they recognize the importance ofavoiding unnecessary suffering4 of animals. Following a review of the

1. Ps 145:9. All quotations from Hebrew sources are the authors translations, unlessotherwise noted.* Senior Lecturer Ramat Gan School of Law Ramat Gan Israel


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2 JOURNAL OF LAW & RELIGION [Vol. XXII

legal status of animals in rights discourse generally, we will show whythe prohibition of ritual slaughter needlessly results in discriminationagainst religious minorities, and why it is important that nation-statesattempting to reduce animal suffering more clearly specify realisticalternatives for avoiding such suffering that are compatible with currentreligious mandates about animal slaughter. We will also considerwhether the alternative of importing kosher or halal meat in place ofritual slaughtering, proposed by some nation-states as a method of

alleviating the harm to religious minorities, is an effective and fairalternative.

I. THE CONCERN ABOUT ANIMALS

Since the usual claim raised by animal rights advocates againstritual slaughtering is that it is cruel to animals, it is worthwhile to beginour discussion with a brief examination of the historical development ofthe concepts of cruelty and animal welfare, including the major religioustraditions views5 that influence the Western approach to the status ofanimals. We want to distinguish the question of slaughtering per sefrom the legitimate concerns that have been raised about thedevelopment of farm factories and related slaughtering practices. Wewill show that, while the Western traditions have traditionally viewedhuman beings as having dominion over creation, that view has been

accompanied by a consistent demand for ethical treatment of animals, aview which does support claims against many farm factory practices andhas also informed religious slaughtering practices as described in thenext section.

A. Historical Philosophical and Religious Views about the Ethical

Treatment of Animals

Concerns about animal welfare are certainly not new, nor unique tothe Western tradition In ancient Greece we find some advocates of


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1] PROHIBITION OF RITUAL SLAUGHTERING 3

prominent representative Aristotle, did not devote too muchphilosophical attention to questions of the ethical treatment of animals.7The same might be said of Roman philosophy, which rarely consideredwhat human communities owe animals.8

Jewish attitudes toward animals are based on Biblical texts. TheScripture says that the Almighty bestowed on human beings the right tocontrol animals, according to Genesis, where it is written that humanbeings shall have dominion over the fish of the sea and over the fowl in

the air and over every living thing that creepeth upon the earth. 9According to Jewish tradition, however, at the time of creation, man wasonly permitted to eat fruit. In the Biblical test, God said:

Behold, I have given you every herb yielding seed which is uponthe face of all the earth, and every tree in which is the fruit of atree yielding seedto you it shall be for food; and to every beastof the earth . . . .

10

Rashi explains the phrase: to you it shall be for food; and to every beastof the earth to mean that the Scriptures regarded man and beasts asequals who were both to subsist on herbs and vegetables and that Goddid not permit Adam and his wife to kill any creature to eat its meat.11However, by the time of the children of Noah, the text shows that Godpermitted human beings to eat meat: Every moving thing that livethshall be food for you, as the green herb have I given you all things.12 In

Rashis exegesis, Gods permission to mankind to eat meat was givenonly after the Deluge; he explained that this text is Gods announcementthat everything . . . shall be food for youI did not permit Adam to eatmeat but only herbs and vegetables, but as for you (i.e., Noah) . . . I letyou have everything.13

7. See Peter Singer, Animal Liberation 188 (2d ed., Pimlico 1995) [hereinafter Singer,Animal Liberation]; Zeev Levy & Nadav Levy,Etikah, regashot u-va ale-hayim (Ethics, Emotions

and Animals) 25 (Hotsaat ha-sefarim shel Universitat Hefah 2002).8. It is worthwhile to point out that thinkers like Seneca (who was a strict vegetarian over

hi th) d Pl t h h d d f i l lf S Pl t h 6 t l


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Even though the Jewish Scriptures regard animals from ananthropocentric viewpoint,14 that does not prevent Judaism from beingcompassionate toward them. Jewish precepts drawn from the Biblicaltext explicitly forbid cruelty to animals. 15 For example, Exodusprescribes that animals must not be put to work on the Sabbath.16

Similarly, Leviticus dictates that whether it be a cow or ewe, ye shallnot kill it and its young both in one day.17 Maimonides explains thistext as honoring animal mothers relationship with their young:

It is also prohibited to kill an animal with its young on the sameday (Leviticus 22:28), in order that people should be restrained and

prevented from killing the two together in such a manner that theyoung is slain in the sight of the mother; for the pain of theanimals under such circumstances is very great. There is nodifference in this case between the pain of man and the pain ofother living beings, since the love and tenderness of the mother forher young ones is not produced by reasoning, but by imagination,and this faculty exists not only in man but in most living beings.18

We can see further recognition of human responsibility to avoid needlesssuffering to animals. Biblical laws like Thou shalt not plow with an oxand ass together19 and If a birds nest chance before thee in the way, ina tree or on the ground, with young ones or eggs, and the dam is sittingon the young ones or upon the eggs, thou shalt not take the dam with theyoung20 are clear examples of Judaisms attitude toward the humane

14. See J.B. Sermoneta, L'antropologia biblica nella Guida dei Perplessi di MosesMaimonides e il suo capovolgimento nel Trattato teologico-politico di Benedetto Spinoza , inAnnali di Storia dell'esegesi'7/1, at 80 ff. (1990) (regarding the duties of man to serve God).

15. See S. Many, Animaux, Dictionnaire de la Bible Supplement603 ff. (Paris 1928); S.J.Sierra,Il rapporto con il mondo animale e l'Ebraismo, in GliAnimali e la Bibbia: i Nostri MinoriFratelli 27 (Piero Stefani ed., Garamond 1994);see also Yitshak Nahman ben Avraham Eshkoli,Tsa ar ba ale hayim (The Prohibition Against Causing Pain to Animals) (Ophakim 2002). It mustbe noted that the Halakhah does not permit attendance at bull-rings and similar spectacles where

animals fight each other. R. Obadia Josef, ResponsaYechave Daath Pt. III, 66 ff., p. 207 ff.Jerusalem 1980). This Responsum is presented (in Hebrew) in the Bar Ilan University Responsa

P j t CD i f 176 S L & L 7 t 33 N h J C h T b l i


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treatment of animals.21Islam also stresses the importance of kindness to animals. Though

t is similarly anthropocentric in its attitude, Islam also advocates theprotection of animals and restrains man from being cruel to them. Thereare numerous passages in the Quran urging Muslims to take an interestn the welfare of nature and particularly animals, implying that all

created life is important to Allah.22 By contrast, at least early Christianattitudes toward the fate of animals are not so clear.23 It is true that we

find notable exceptions such as Francis of Assisi (1181-1226), whoshowed a strong empathy toward animals. Yet, while generally there arefew, if any, references to animal rights in early Christian doctrines, thetexts show that many Christian writers also objected to the abuse ofanimals.24 For example, Thomas of Aquinas (1225-74) writes that hedoes not doubt the right of man to exploit animals for his own use, butstates that he opposes cruelty toward animals in order to prevent man

from becoming brutal to his fellows.25 Perhaps because the three mostmportant religions in the Western tradition adopted this anthropocentric

concept, it has become part of the general tradition in Westernphilosophy. And, while the Renaissance and humanism brought a newvision to our understanding of man, this change fell short of influencingthe philosophical status of animals in any major Western philosophicaltraditions through the eighteenth century.

B. The Modern Debate about Humane Treatment of Animals

By the nineteenth century, however, political activists werechanging national attitudes toward the status of animals. Animalactivists spoke out for the prevention of unnecessary suffering ofanimals and demanded punishment for their abuse. Legislation was also

148 (Ktav Publg. House 1984).21. We should also note the consideration for animals required at meal times. The Talmud


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passed to protect animals in some Western nations. In England, forexample, starting in 1800 there were several attempts to pass legislation

protecting animals (e.g., forbidding dog-fights and bear-baiting).Finally, in 1822, the Horse and Cattle Bill, the first piece of legislationspecifically intended to prevent cruelty to animals, was introduced. 26Gradually, most Western-influenced countries passed laws protectinganimals in various ways, outlawing cruelty and abuse toward animals,27regulating scientific experiments 28 and hunting, 29 preventing

abandonment of animals 30 and protecting endangered species. 31 Thenecessity of protecting animals is not seriously questioned in anymodern Western nation-state today, even while its scope still remainsunclear and the legal profile of animals is being defined even inegislation that does not protect their rights.32

Despite this consensus about the need to ensure a degree of animalwelfare there is unfortunately no consensus about the proper scope of

protection. Those more radical in their defense of animals(abolitionists) debate legal welfarists, who strive for the protectionof animals but realize that it is not realistic to avoid at least some use ofanimals in the daily lives of human beings. Legal welfarists argue thatthe struggle for animal protection should focus on regulating humanactivities utilizing animals to diminish the number of animals involvedand the magnitude of their suffering. Abolitionists respond that legal

welfarism falls short of affording acceptable solutions, particularly onthe context of farm factories, which are important in the slaughteringndustry.

26. It was also known as Martins Act. See Radford,supra n. 25, at 39; Simon Brooman &Debbie Legge,Law Relating to Animals 141 (Cavendish Publg. 1999).

27. See e.g. Cruelty to Animals Act (Animal Protection), 5754-1994, L.S.I., 1447, p. 56

1994) (Isr.) (forbidding abuse or cruelty to animals); Protection of Animals Act, 1911, 1 & 2Geo. 5, c. 27 (Eng.); Wild Mammals (Protection) Act, 1996, c. 3 (Eng.).

28 S C lt f A i l A t (E i t ) 5754 1994 L S I 1479 298 (1994)


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C. Setting Aside the Question of Farm Factory Practices

It is important to distinguish the debate about ritual slaughteringfrom the question of modern farm factory practices, which do raiselegitimate concerns about the humane treatment of animals. Theproblems created by industrial animal husbandry are diverse and includessues about the humane feeding and transportation of animals as well as

the ways in which animals are killed. All farm animals are bred to be

killed for food (or similar human uses) and unlike other domesticatedanimals, their owners emotional involvement or sentiments play no rolen their fate.

In previous generations, the attention paid to farm animals did notstem from any concern for their welfare but from practical concernssuch as ensuring sanitary conditions for public health, 33 economicstandards for producing meat and other products, proper businesspractices, consumer protection, etc.34 The gradual move from traditionalfarming to industrial husbandry has aggravated the suffering of animalsbecause economic expectations have resulted in crowded environmentsand poor living conditions for these animals. It is from thesedevelopments that the struggle against abuses was largely born.35 In thiscontext, it is almost superfluous to cite Singers best known book,Animal Liberation,36 a clear manifesto against industrial husbandry. Inpointing out the ethical problems in the raising of animals for food in a

modern industrial farm setting,37 Singer notes his clear opposition to anyanimal breeding, concluding that only vegetarianism can provide asolution for the inhumane treatment of animals.

An important phase in the development of Western law on thetreatment of agricultural animals, which is relevant to farm factoryabuses, is marked by The Brambell Report (U.K. 1965), whichrecommended certain principles to serve as a basis for European

legislation.38 Ever since this report came out, the concept known as


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animal welfare has gained more public acceptance. Those who debatethese issues are generally agreed that it is not enough to prevent singularnstances of abuse but that the aim of public legislation should be to

establish decent conditions for all farm animals.39In Europe the practice of raising farm animals has in recent times

been regulated by the European Convention for the Protection ofAnimals Kept for Farming Purposes.40 Though the Convention was notadopted by the European Community, but rather by the European

Council, its regulations were adopted by the Community in Directive78/923. 41 Despite the dissatisfaction of animal welfare lobbies thatbelieve that little has been done for farm animals, this directive

demonstrates that Europe has taken a positive step toward meeting thedemands for better conditions.

On the other hand, U.S. law is more limited in protecting farmanimals. Farm animals are not protected by the Animal Welfare Act42

and there is no unified national policy on animal welfare due to, amongother things, the opposition of the agricultural lobbies in the U.S.43

We have to approach the problem of kosher slaughtering with somecare in light of these discussions about industrial husbandry becausewhile the suffering44 imposed by slaughtering is the same as whenslaughtering is done privately45 or in the context of traditional farming,kosher slaughtering does not entail these more universally denounced,

and less religiously controversial, practices involving keeping, raising or

of Laying Hens, 1999 O.J. (L. 203) 53 (EC) (concerning battery hens, defining the rules forappropriate living space for each hen, separation between rows, and appropriate flooring).Similarly, with regard to pigs, rules were set out about the requirements of illumination,ventilation, sanitary conditions and abuse of the animals. See Council Directive 1991/630/EEC,Laying Down Minimum Standards for the Protection of Pigs, O.J. (L. 340) 33 (EEC) (amended byCommission Directive 2001/93/EC, 2001 O.J. (L. 316) 36 (EC)).

39. Radford, supra n. 25, at 264 ff. The Farm Animal Welfare Council in Britain set outhese principles in the form of five freedoms (on the model of the four freedoms of the Rome


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transportation46 of animals. Despite the firm commitment to animalwelfare of countries such as Switzerland, which bans ritual slaughter,and the importance of limiting animal abuse in industrial settings, thediscourse on ritual slaughtering needs to be clearly distinguished fromthe debates about the farm factory because of the very different interestst entails. In order to underscore that the basic principles of humane

treatment in the raising and slaughtering of animals are shared by thoseengaged in religious slaughtering and legal welfarists, it is important to

understand the basics of Jewish and Muslim law regarding slaughtering,a question to which we will now turn.

II. RELIGIOUS (KOSHER AND HALAL)SLAUGHTERING

Modern attempts to regulate ritual slaughtering of farm animalsvary in their understanding of what is entailed in ritual slaughtering.After describing these rituals in Judaism and Islam, we will catalogue

the various statutory approaches that European states, as well as the U.S.have taken toward regulation of ritual slaughtering, and discuss in somedepth a recent Italian Commission report on this question whichdemonstrates more understanding and sensitivity to the conflicting rightsnvolved than most national legislative debate about the question.

A. Jewish and Muslim Law Regarding Slaughtering

We define religious or ritual slaughter as a procedure carried outaccording to rules originating from ancient religious laws. 47 Thereligious nature of slaughtering48 relates primarily to Jewish and Muslimslaughter, and as was indicated earlier, kosher and halalslaughtering aredone without stunning. The relevant precept originates from Scriptures:

If the place which the Lord thy God shall choose to put His namethere be too far from thee, then thou shalt kill of thy herd and of

thy flock, which the Lord hath given thee, as I have commandedthee, and thou shalt eat within thy gates, after all the desire of thy


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As a matter of fact, Scriptures do not give details of the technique ofslaughteringrather, they are expounded by Oral Law.50

According to theHalakhah, the killing of an animal for purposes ofeating its meat must be performed by an expert 51 who severs theanimals gullet and wind-pipe with one slash, after making sure that theknife is sharpened according to halakhic specifications.52 Maimonidesregards these specifications of slaughtering as proof that the law calls fora painless and easy death for the animal.53

[F]or as it has become necessary to eat the flesh of animals, it wasintended by the above regulations to ensure an easy death and toeffect it by suitable means; whilst decapitation requires a sword ora similar instrument, the shechita can be performed with anyinstrument; and in order to ensure an easy death our Sages insistedthat the knife should be well sharpened. [. . .] Since, therefore, thedesire of procuring good food necessitates the slaying of animals,

the Law enjoins that the death of the animal should be the easiest.It is not allowed to torment the animal by cutting the throat in aclumsy manner, by pole-axing, or by cutting off a limb whilst theanimal is alive.54

of slaughter among the positive commandments:[T]he 146

thprecept is that we were commanded to slaughter cattle game or fowl before

partaking from their meat, which is not permitted except by the proper method ofslaughter. And the Exalted One said and thou shalt kill of thy herd and of thy flock . . .

as I have commanded thee. The Midrash explains that the term used for slaughter isidentical to that of the sacrificial procedures. This teaches us that the gullet and wind-

pipe must be severed for animals and at least one of them for fowl. The details of thisprecept are explained in the Talmud in its designated TractateChulin.

Moses Maimonides, The Book of Precepts Positive Precept # 146 (Robert Young 1849). See I.M.Levinger, Meor le-Masekhet Hulin (Guide to Masechet Chulim), vol. 1, 1 (Yerushalayim 1994).

50. BT Chullin (passim); R. Josef Caro, Shulhan Arukh (passim); R. Josef Caro, Yore Deahpassim). Perhaps this is the reason that particularly in non-Jewish circles, it is argued that the

Jewish law does not oppose stunning. This interpretation of Jewish law, which ignores theTalmud, is clearly mistaken.

51. Id.52. See e.g. Sefer Hahinukh Precept 451.


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Although these texts emanate from a time when stunning was notuniversally practiced, they show a clear animal-welfare orientedapproach in Jewish thinking regarding slaughtering.

For Muslims,55 there are four sources of Muslim law concerninghalal (permissible meat): the Quran, the hadith, 56 the sunnah 57 andfiqh.58 Islamic rules for slaughtering resemble the Jewish approach inmany respects, while differing in others. Apart from the obviousdifferences in the prescribed prayers (the Hebrew benediction and the

Arabic bismillah Allahua akbar), there is no requirement that theMuslim slaughterer should be a trained expert. According to someopinions, Muslim law is not as strict with regard to the prohibition ofprior stunning as Jewish law. While according to Jewish law stunningmay impair the perfection of the animal and not allow the consumer todiscern whether it is trepha,59 there are those who claim that the positionadopted by Muslim law is a bit different. For example, it is possible to

findfatwa accepting stunning since it is enough that the animal remainsalive. 60 The fatwa of the Mufti of Dheli in 1935 stated that it ispermissible in ritual slaughtering to stun the animal as long as the animaldoes not die during the process.61 A similar view was exposed by theRector of the Al-Azhar University of Cairo in 1982. 62 Furthermore,

meaning that He had slain them like sheep. The commandments concerning thesacrifices use the terminology of slaughter i.e., cutting the organs at the throat. At

first, He commanded them that all meat to be eaten should bear the quality of perfectionof the sacrifices, and the animals killed according to the procedures of the sacrifices.This is the plain meaning of Scripture. It may well be that the Sages meant to say this(Sifre Reeh 39)as I commanded theeboth sacrificial and other animals must bekilled by shechita.

For an English version of Nachaminides work, see Nachamanides, Commentary on the Torah:Deuteronomy 150 (Rabbi C. Chavel trans., Shilo Publg. House 1976).

55. See Curnutt,supra n. 29, at 180.56. That is, instructions by the prophet Mohammed.57. That is, religious tradition.58. That is, a Summary of Islamic learning.59. Seeinfra Sec. V(A)(2).


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certain authorities maintain that Muslim law permits partaking of non-

halalmeat when halalmeat is not available.63 But these opinions are, toa certain extent, controversial and there are those who rely on thesedecisions as applicable only to Muslims living in countries where theres no freedom of religion for them.64

Either way, any framework for the protection of religious beliefsand practices should not be sought in the correct interpretation of thereligious text, especially where there is controversy. Theological

arguments trying to adopt a narrow or broad interpretation afford no realsolution to this problem; the concern of this article is rather to explainwhy a ban on this practice may be seen by Muslims or Jews as being atodds with their faith.65

B. Modern National Laws Concerning Ritual Slaughtering

Generally speaking, contemporary nation-states regulate ritualslaughtering using three distinct approaches:

1. Some countries permit slaughter under regulations whichnclude stunning, but also to enable religious communities, i.e., Jews and

Muslims, to slaughter according to their religious specifications. Thisapproach of adapting the law to the special needs of minority groups isquite commonly adopted as the most suitable way to keep the balancebetween religious freedom and protecting animals,66 as seen in Western

countries such as France, 67 Italy, 68 Spain, 69 England, 70 Scotland, 71

63. See Patrizia Conforti, Religion et Loi: LÀbattage Rituel sans etourdissment resteranterdit en Suisse 1, 5, http://www.religioscope.com/info/notes/2002_029_abattage_ch.htm (last

modified Mar. 18, 2002, accessed Dec. 31, 2006). See also text accompanying nn. 200 ff, infra,he decision of the German Constitutional Court about the Islamic community in Hessen.

64. Id.65. See Conforti,supra n. 63, at 4 (quoting Urs Peter Mller: [Il] importe peu de savoir si le

Talmud ou le Coran interdisent ou non les mthods dàbattage industrielles. Juifs et musulmansestiment que ces mthods sont incompatibles avec la practique de leur religion, et cèst la seule


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Germany,72 Netherlands,73 Finland74 and Denmark.75 This policy wasadopted as the European standard in the Convention for the Protection ofAnimals for Slaughter in 197976 and the Directive 93/119 of 1993Protection of Animals at the Time of Slaughter or Killing, 77 whichdefines stunning as the proper method of killing animals with theexception of religious slaughter.78 In the U.S., the Humane Methods ofSlaughtering Act, 79 made stunning compulsory 80 but recognizedreligious slaughtering as humane.81 In fact, U.S. law uses the method

of kosher slaughtering as a model for religious slaughter, and otherreligions using a similar method are permitted to engage in ritualslaughter.82

However, it should be noted that legislative permission to engagen ritual slaughtering does not mean that religious slaughtering officials

are free of official supervision.83 For example, in England, religiousslaughtering must take place in licensed premises under veterinary

72. Tierschutzgesetz (Law for the Protection of Animals) 4a 2 (2), July 24, 1972, BGBl. IFederal Law Gazette) at 1277 (Ger.). In the state of Saxony, Kosher slaughtering had beenbanned in 1892 but the law was rescinded in 1910. Cf. Michael L. Munk, Eli Munk & I.M.Levinger, Schechita: Religious and Historical Research on the Jewish Method of Slaughter17-26Inst. Adv. Jewish Scholarship 1976).

73. 1920 Livestock Act, 74.74. Law about Animals 1971, 11, Sdoskokoelma (SDK)/Frfatningssamling (FrfS)

333/1971. There is an exception on the island of Aland, where stunning is compulsory. SeeMacellazioni Rituali,supra n. 68, at 30.

75. See P. Garde, Die Religionsfreiheit in den Skandinavischen Landern, 47 Zeitschrift furEvangelisches Kirchenrecht 315, 330 (2002). Danish law requires stunning immediatelyfollowing the incision. This method may serve as an alternative for the integration between theswift cessation of pain and religious freedom (because perhaps such stunning is not against theHalakhah) and it might well be adopted by other countries.

76. European Convention for the Protection of Animals for Slaughter 17 (1), 1988 O.J. L.137) 27 (authorizing contractual parties to derogate provisions as to prior stunning in case of

slaughtering in accordance with religious rituals).77. Council Directive 1993/119/EC, Protection of Animals at the Time of Slaughter or

Killing, 1993 O.J. (L. 340) 21 (EC) (replacing Council Directive 1974/577/EEC, On the Stunning


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supervision84 and in the presence of a stunner for emergencies.85 Danishaw has similar requirements.86

Second,religious slaughter is not the only exception to the standardslaughtering regulations. Italy, for example, permits slaughterers toforego stunning where the slaughtering is done for the family (and not incommercial slaughterhouse), and also when fowl are slaughtered,enshrining a distinction between large animals such as cows and smallfowl.87

2. Many countries outside Europe, some of which have tribalcustoms, take a broader view of ritual slaughter. For example, whileFilipino law deals with the protection of animals, it permits animalsacrifice for religious ends completely unconnected with consumption.The law permits the killing of animals as part of the religious ritual ofan established religion or sect or a ritual required by tribal or ethniccustom of indigenous cultural communities. 88 In America, several

states also allow traditional slaughtering.89

3. A third category, which we will focus upon in this paper,

consists of countries that altogether prohibit ritual slaughter not carriedout according to regulations (stunning or electric shock and so on).Currently, Switzerland and Sweden, which both lay great stress on thewelfare of farm animals, along with Norway, Liechtenstein and Iceland,prohibit ritual slaughtering.90 These national laws are influenced by

nineteenth century objections to ritual slaughter, presumably directedtoward Jewish slaughter, on the basis that such slaugther causedunreasonable pain to animals. As early as 1855, the British RSPCAtried to bring about the prohibition of Jewish slaughtering because it wasnot humane, 91 although there was hardly any evidence that ritualslaughtering was more cruel than other methods. In Switzerland, it has

84. In fact, the absence of licensing and supervision create the problems for groups without apermit. See infra Sec. IV(B).

85 S R df d 25 t 339


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been forbidden by law since 1893 following a referendum.92 Eventoday, in Switzerland there are voices that want to strengthen theprohibition by forbidding imported kosher meat, while others in

countries where the prohibition is in force are urging acceptance of ritualslaughtering.93 In Sweden, the prohibition dates from 1937, and in 1988t became an integral part of the law for the protection of animals.94 InNorway, the prohibition dates from 1929.95 From time to time, otherproposals have surfaced to restrict or limit the ritual slaughtering in

other countries,96 but it is unclear whether these countries will join thosethat completely prohibit ritual slaughtering, especially given Europeancalls for a new debate on the need to restrict or prohibit kosherslaughtering to prevent animal cruelty. 97 Given these new calls foraction, which extend even outside of Europe, a discussion of the opinionof an Italian commission called to consider the question is worthpondering at some length.

C. The Italian Report on Ritual Slaughtering

On September 19, 2003 the Italian Comitato Nazionale per laBioetica (National Commission on Bioethics) published a documententitled Macellazioni Rituali e Sofferenza (Ritual Slaughter andSuffering), a report which is especially worth considering since itreflects current trends in European discussion of this topic. 98 Italy

permits ritual slaughter, and perhaps for this reason, the approach of theComission is more tolerant toward religious slaughtering than theopinion of the Swiss Institute of Comparative Law, which tries to findustifications for the prohibition.99

92. Dany Rothschild, Das Schchverbot der Schweizerischen Bundesverfassung59Buchdruckerei M. Lande 1955); Munk et al.,supra n. 72, at 16.

93. See Conforti,supra n.63, at 1.94. Golan, Current Challenges,supra n. 60, at 20; Macellazioni rituali,supra n. 68, at 25.95. SeeMacellazioni rituali,supra n. 68, at 11.


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The Italian Commission points out that it has already consideredthe issue of animal rights in the past, and that it recognizes thesuperiority of man which, to a certain extent, justifies the subordinateposition of animals to humans. In the words of the report, however, thisposition implies responsibility [on the part of mankind] and does notjustify acts of cruelty to animals.100 In the light of these basic

assumptions, the Commission believes that the primacy of human beingsn the created order leads to the conclusion that Jewish and Muslim

slaughter is an expression of the freedom of religion, a basic value ofhuman life. In the Commissions view, the principle of responsibilityrequires human communities to try to minimize or completely abolishanimal suffering as far as it affects all forms of pole-axing orslaughtering.

The Commission emphasizes that there is a dialectical differencebetween the respect for certain universal values and the proper

consideration for the uniqueness of each individual culture.101 In theCommissions view, this consideration prevents a nation-state fromrejecting a custom which is deeply rooted in the culture and tradition ofa community simply because it is different from that of another religiousor secular sector of the population, even though that may be themajority. If there is no specific justification for imposing an injury on aminority religious group, each state should prefer the dignity of the

other, which can only contribute to social integration, an integrationwhich is understood as respect for the religious and cultural traditions ofthe community as long as they accord with the basic principles whichpromote a harmonious social life.102

The Commission briefly describesshechita, stressing the fact that itmust be carried out by an expert and that the animal must be in perfectcondition, i.e., not ritually unfit. It underscores that there is a reason for

the prohibition of stunning: neither Judaism nor Islam accepts stunningbefore slaughter as legitimate, since it impairs the perfection of thei l 103 Th hi l f h li i i i i l


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the Halakhah specifies the quality of the knife to be used for ritualslaughter, with the aim of minimizing the suffering of a living creature.The express desire in Halakhic sources to make death as instantaneousas possible is an additional factor that leads the Commission torecommend protecting ritual slaughtering methods. In particular, thereport notes, the Christian world ought to stress that freedom of religions expressed not only by ritual but also in behaviors and actions that the

faithful believe to be obligatory. Shechita certainly takes its place

among such actions, as it is recognized by the decision of theconstitutional court of the Federal German Republic.104

The Italian Commission determines that shechita does notadversely affect the basic principles of legislation attempting to protecthuman treatment of animals so long as there is no proof that thesuffering caused to animals when ritual slaughter is used is no greaterthan animal slaughtering methods permitted by law. Because, in the

Commissions view, there are no currently reliable means to determinewhich slaughtering methods result in what amounts of suffering byanimals, it is impossible for nation-states to make unequivocalstatements on these matters. While there is an assumption that stunningbefore pole-axing orschechita causes less suffering than slaughter

without stunning, a minority of authorities reject that assumption.Ethically, the Commission notes, all animal suffering, great or small, is

significant; but by taking a balanced view, governments considering thisssue can assign the proper importance to the freedom of religion andpermit koshershechita under the appropriate supervision. This debatedoes not, in the Commissions view, implicate the concerns ofvegetarians since they are against all killing of animals; rather, themportant question is the nature of religious freedom as applied to the

question of animal slaughter.While it is difficult to predict how Europeans will react to the

Italian Commissions report, it is a reasoned illustration of the fact that its difficult to adopt a clear cut position against ritual slaughter unless


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s that it clearly restricts the freedom of religion. From a broadperspective, the permission of ritual slaughter does not apply only toJews or Muslims, and the problem is not limited only to practitioners ofritual slaughtering. 105 Rather, this controversy implicates the basicprinciples defining the boundaries of religious freedom within modernsociety. We will show that ritual slaughtering is clearly religiousexpression as understood in the international human rights documents,and then briefly consider whether an exemption for religious

slaughtering would violate the basic principle in most secular nationsagainst the intermingling of church and state.

Even conceding the importance of ritual slaughtering of religiousexpression, however, we must respond to the legal reality that religiousfreedom rights are not absolute and can be qualified where there is astrong enough state interest.106 The debate over the prohibition againstthe use of religious symbols in French public schools, such as the hijab

for Muslim girls, only goes to show that the fundamental principles of aparticular society (in this case, the principle oflaicit that shapes thesecular character of France) are able to outweigh the principles offreedom of religion. 107 We will argue that the prohibition of ritualshechita, ostensibly to protect animals from unnecessary sufferingcannot be isolated from the issues raised when slaughtering rules restrictthe freedom of religion of a minority group.

In the next section, we will show why recognition of this right isvery important in a religiously pluralistic nation-state. This, in turn, willlead us to consider the deeper philosophical question, debated evenamong those engaging in ritual slaughter, about the nature of suffering inslaughtering and the distinction between necessary and unnecessarysuffering that drives these debates.


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A. Ritual Slaughtering as Religious Expression

Freedom of religion is accepted as a basic right in all Europeanconstitutions108 and has been recognized in international conventions,such as the International Convention on Human Rights (sec. 18) and theInternational Covenant on Civil and Political Rights (1966) (sec. 27).109The European Convention on Human Rights110 states in Section 9 (1):

Everyone has the right to freedom of thought, conscience and

religion; this right includes . . . freedom, either alone or incommunity with others and in public or in private, to manifest hisreligion or belief, in worship, teaching, practice andobservance . . . .

Clearly, the international conventions embrace more than the rightto belief, but also include the right to manifest [ones] religion orbelief.111 Indeed, Section 9 (2) of the European Convention, makesclear that:

Freedom to manifest ones religion or beliefs should be subjectonly to such limitations as are prescribed by law and are necessaryin a democratic society in the interests of public safety, for the

protection of public order, health or morals, or for the protection ofthe rights and freedom of others.

Just as clearly, the practice of kosherschechita falls within thecompass of the right to manifest belief, and thus, if a nation-state is

going to abide by these covenants, it is not acceptable to prohibit koshershechita.112 To maintain, as some animal rights advocates have done,that the prohibition does not impinge on the freedom of religion becauset does not restrict the consumption of meat but only its slaughter

misunderstands the complexity of the problem. The religious issuenvolved is not in the eating of kosher meat,113 but the actual freedom to

108. Seee.g. Fed. Const. of the Swiss Confederation art. 8(2) (Switz. Apr. 18, 1999); Const. ofhe Italian Republic art. 8(1) (Ital. Dec. 22, 1947); Basic Law for the Federal Republic of

G (C t ) t 4(1) (G O t 3 1990) C t f S i t 16(1) (S i D 29 1978)


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performshechita since shechita is not simply a way to provide permittedfood but a manifestation of a religious belief and a way of life.114

In making an argument that the right to ritual slaughter must carrythe most weight, one might try to pre-empt any argument by observingthat in most countries, animal rights are not recognized while freedom ofreligion is. Hence, on a universal constitutional level, religious freedomcurrently is preferred over the prevention of cruelty to animals.However, there is a growing national trend, not yet very marked, to

recognize the constitutional protection of animals, with one recentexpression of that right in Germany. 115 Reliance on constitutionalarguments to justify ritual slaughtering may be considered tooformalistic, 116 and those who strongly advocate for the defense ofanimals are not easily convinced by such positivist arguments. Thus, wewill consider whether arguments beyond these positivist arguments arevalid.

B. Does a Religious Slaughtering Exemption Threaten the Separation

of Church and State?

If we were to catalogue the arguments against permitting anexemption for ritual slaughter, the most common argument againstreligious exemptionsthat neutral laws are necessary to ensure thesecular nature of the statedoes not seem apposite in the case of ritual

slaughter. No current advocates of a ritual slaughter ban claim thatprohibition of ritual slaughter is necessary to preserve the secular

character of society or to ensure the separation of state from religion.Indeed, there seems to be no correlation between secularism andreligious slaughter prohibitions: a number of countries that arehistorically fiercely secular and separate religion from state (U.S. andFrance, for example) are permissive with regard to ritual slaughtering,117

114 S M ll i i it li 68 t 6


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while other countries such as Sweden, where formal separation betweenChurch and State was accomplished only a few years ago, completelyprohibit ritual slaughtering.

However, if we were to consider the question of ritual slaughterfrom a separationist perspective, the most logical conclusion we mightdraw is that separation would entail non-interference by the state intoreligious practices such as ritual slaughter. Moreover, whensecularization affects only minorities within the society, particularly

when those minorities have little chance of gaining political ascendancy,we must recognize that the ritual slaughter ban does nothing by way ofseparating church and state, but rather has the sole effect of restrictingthe basic freedoms of the minorities. Because the acceptance of a fullysecularized society which allows no exception for religious differencecan easily lead to the negation of pluralism and become a means forminority persecution, the question of why and to what extent the

restriction is justified must be explored.Part of the problem in understanding the ritual slaughter ban is that

t rests upon unreflective majoritarian assumptions about the nature ofthe act of providing food to the community by slaughtering animals.Since shechita is in no way a religious issue for Christianity, thedominant religion in Europe, many Christians may find it hard tocomprehend that the Jewish and Muslim view of shechita is

fundamentally different, that it plays such an important part of theirreligious life.

C. Does Ritual Slaughtering Invade the Rights of Animals?

One way to approach the problem of ritual slaughtering is todescribe it as a conflict between two rights-holders, the religiousndividuals and the animals that are being slaughtered. If we pay careful

attention to the language of the European Convention on rights, weought to ask who, then, are these others, whose rights and freedoms


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the determination that animals are rights-holders ultimately contributesto the solution of the problem of ritual slaughtering.

The debate over whether animals may be rights-holders is nothingnew. We might begin with Descartes (1596-1650), who held theabsolute view that animals had no rights whatsoever, and comparedanimals to machines (automates) without emotions. 119 In his view,animals were incapable of suffering in the human sense, or, in any case,they had no consciousness of suffering, because they had nothing but

reflexes.120 Descartes position has been repeatedly assailed and todayno one can seriously support it.121 A more balanced view, which takesnto consideration the need to have compassion for animals, is expressedby Kant, who recognizes that human beings have obligations towardanimals, but no direct duties. In his view, animals have no self-awareness, and they are not regarded as an end in themselves but asmeans for the purposes of man.122

During the nineteenth century, Bentham took into consideration thesuffering of animals123 but did not consider them holders of any rights.It is during the twentieth century that we see a more radicalphilosophical trend that is not content with the protection of animals(legal welfarism), but proposes to recognize a special rights-bearingstatus for animals. We note the views of two leaders of the intellectual

119. Ren Descartes,Discours de la mthode: suivi de La dioptrique 124 (Frdric de Buzoned., Gallimard 1991). Voltaire (1694-1778) answered very harshly to this claim: Answer me,machinist, has nature arranged all the means of feeling in this animal, so it may not feel?Voltaire,A Reply to Descartes, inAnimal Rights and Human Obligations 20, 21 (Tom Regan &Peter Singer eds., Prentice Hall 1989).

120. See e.g. Brooman & Legge,supra n. 26, at 8-9.121. See Gary L. Francione,Animals: Property or Persons,inAnimal Rights: Current Debates

and New Directions,supra n. 36, at 108, 108-115.122. Immanuel Kant, Lectures on Ethics 239 (Louis Infield trans., Harper & Row 1963); but

ee Tom Regan, Defending Animal Rights 12(U. Ill. Press 2001) [hereinafter Regan, Defending

Animal Rights] (critizing Decartes position); Regan, The Case for Animal Rights,supra n. 35, at174. Kant recognizes that man has an indirect obligation not to be cruel to animals. His opinion

l bl t iti i th b i th t i l d t i t t f lfill th d f b t i t


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movement supporting the cause of animal welfare, Peter Singer, whoargues that utilitarianism requires taking into consideration the interestsof animals, 124 for otherwise we fall into speciesism, 125 and TomRegan, the most prominent advocate of what we might call the doctrineof rights. 126 According to Regan, both human and non-humansubjects-of-a-life have a basic moral right to respectful treatment, havenherent value, and thus enjoy an equal moral status.127 Accordingly, in

his view, animals should be considered to have inherent rights. Still

other scholars advocate against any exploitation of animals,128 thoughthey derive their opposition to abuse of animals from differenttheoretical groundings.129

On the other side, there are many philosophers who deny theconcept of animal rights arguing that in order to have rights, one mustbelong to the same moral community as those who have the authorityand power to recognize rights, and only those belonging the same

community are entitled to rights. In this view, since animals do notbelong to the human moral community, they do not have rights.130 Still

124. Singer,Animal Liberation, supra n. 7, at 5 ff. See also Peter Singer,Ethics into Action:Henry Spira and the Animal Rights Movement45 ff. (Rowman & Littlefield 2000) [hereinafterSinger,Ethics into Action]. Singer is a supporter of utilitarianism, but on the basis of equality.Speaking in terms of utilitarianism may be too sweeping because utilitarianism includes variousconcepts and could be used in different contexts. See Brooman & Legge, supra n. 26, at 91-95discussing utilitarianism with regard to animals); Regan,Defending Animal Rights,supra n. 122,

at 13 (criticizing utilitarianism in the context of animal rights);see e.g. Bentham,supra n. 123, at310; David Lyons, Utility and Rights, in Readings in the Philosophy of Law 243 (Jules L.Coleman ed., Garland Publg. 1999); Anthony Quinton, Utilitarian Ethics 1-10 (St. Martins Press1973);see also Joan Dunayer, Speciesisim (Ryce Publg. 2004); Levy & Levy,supra n. 7, at 172.

125. That is considered discriminating between a human and non-human animals on theground they belong to different species. Singer, Animal Liberation, supra n. 7, at 213; see alsoPaola Cavalieri, The Animal Question: Why Nonhuman Animals Deserve Human Rights 69Catherine Woollard trans., Oxford U. Press 2001).

126. See e.g. Regan, The Case for Animal Rights, supra n. 35. It is noteworthy to point outhat Rabbi I.A. Kook explicitly refers to the rights of animals, e.g., in his Talmudic

Commentary. Ein Haia, Shabbat, vol. a, 109 (Jerusalem 1994).127. Regan, The Case for Animal Rights, supra n. 35, at xvii, xxii. His ideas have been


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others, particularly those who hold the choice theory of rights, believethat in order to have rights, an entity must have the capability ofconscious choice between options for action and intentionally implementthis choice. For them, an animal cannot choose; therefore, it has norights.131

There are many potential inconsistencies in the arguments of thosewho deny a special status to animals, as well as those who want to treatthem as equal to human beings in terms of rights. For example, those

who claim that one who has rights must be able to implement themcannot fully account for the fact that many human beings (babies, thementally handicapped, etc.) cannot themselves make a legal appeal fortheir rights and yet most societies would hold that they still have rights.On the other hand, the recognition that some human beings not capableof conscious choice or of advocating for their rights still have rights doesnot require that a dog or a cat must always be treated under the law as a

baby or as the mentally handicapped. The granting of rights to animalsdoes not entail the conclusion that they have the same rights ashumans 132 or suggest that their rights are more absolute than humanrights.133 To make a facile equation between the two is tantamount toanthropomorphism134 an approach that surely should be avoided.135

Notwithstanding the difficulty in assessing the moral rights ofanimals, and even assuming that they have no natural rights similar to

human beings, there are cases where the law seems to recognize thatanimals have a certain sort of rights. In our view, however, thisrecognition in positive law cannot contribute very much to finding aclear framework for defining the status of animals. A positive lawapproach creates even more theoretical difficulties because to say that an

compares the feelings of man towards animals to his own sentiments towards objects dart in hispossession. Id. at 179; cf. Alan White, Why Animals Cannot Have Rights, inAnimal Rights and

Human Obligations 119, 120-121 (Tom Regan & Peter Singer eds., 2d ed., Prentice Hall 1989).131. Person A can only claim rights from B if A has the choice to demand a certain conduct

f B d i i iti t f it A di t thi it i i l t b d d


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animal has only those rights recognized by positive law leaves room toquestion whether there are animal rights not yet recognized by law. Thisapproach leads to cumbersome discussions involving distinctionsbetween natural rights and positive rights,136 and will add nothing tothe effective protection of the animals. Such debates simply divert usfrom finding the criteria we should use to determine whether certainanimals are owed certain treatment by humans. The protection ofanimals should not become a debate about rights. As Dworkin

explained, to talk about having rights is like claiming to have trumpcards that enable rights advocates to control government or individualaction toward them.137

Even if we denied the recognition of animal rights, this does notmean that human beings would have an unlimited privilege to harmthem or expose them to cruelty. Even if animals have no rights, thatdoes not entail that we deny our obligations to them.138 For example,

Peter Singer, a utilitarian, is reluctant to use the concept of rights toustify the obligations to defend and protect animals.

Others have argued that the reason we protect animals is notbecause they have rights, but because we are protecting feelings of thosehumans who suffer from the suffering of animals,139 feelings which, ofcourse, are shared by Jews and Muslims. However, governments musttake the greatest care in moving from a focus on cruelty to animals to a

focus on protecting the emotions of humanswho suffer with them, notbecause it is improper to take into account the distress caused to humanswhen animals suffer, but because this interest does not always constitute

136. See Margaret Mc Donald, Natural Rights, in Theories of Rights, supra n. 133, at 21;Joseph Raz, The Authority of Lawpassim (Oxford U. Press 1979).

137. Where utilitarianism fails to provide for concern and respect for persons, rights becomenecessary. See e.g. Ronald Dworkin, Rights as Trumps, in Theories of Rights, supra n. 133, at153; Ronald Dworkin, Taking Rights Seriously xi (Harv. U. Press 1977) [hereinafter Dworkin,Taking Rights Seriously]; see also Francione, Animals, Property, and the Law, supra n. 128, at


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a sufficient reason to impinge upon human freedom, particularlyreligious freedom, and specifically the religious freedom of minoritieswho have different views about the religious significance of animalslaughtering practices.140

Even if there were a good case for comparing religiousconsiderations to the emotional response of animal advocates, thoseadvocates must produce very strong reasons indeed to explain why thefeelings of someone who suffers when animals suffer should be

juridically preferred over the right of someone to act according to hisreligious beliefs. From the point of view of the secular state, it might bepossible to suggest that religious feelings are the same as culturalsentiments or national traditions, such as bullfighting in Spain.141 Evenf it were possible to equate religious feelings to cultural or individual

feelings, however, in the ritual slaughtering case we are consideringthe majoritys imposition of its religious beliefs and practices on a

minority, rather than, as in Spain, the animal protection minoritysadvocacy to combat the practice against a democratic majoritysdecision to preserve the tradition.142 It is that majority-minority rightsdynamic that is particularly problematical, as we will see.

IV. RITUAL SLAUGHTERING AND MULTICULTURALISM

In a multi-cultural democratic culture, it is very critical that the

religious faith of particular groups is regarded as a valuable expressionof particularism143 that should be respected by the majority. For onething, sensitivity to the value of religious particularism will requirereligious majorities to come to understand what is involved in ritualslaughter and toprevent the ritual alsughter problem from being framedas a clash between the universal value of cruelty to animals and theparticularist views of Jews and Muslims.144 Jews and Muslims, who are

minorities in other societies, also share universal values about theprevention of cruelty to animals and simply differ with animal rights


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advocates about the definition of cruelty and the relationship betweenreligious obligation and duties owed to animals.

A. The Need for Legal Accommodation

Religious slaughtering implicates questions about the definitionand value of healthy pluralism in secular societies. In one view ofpluralistic societies, the so-called cosmopolitan alternative,145 the

cultural make-up of a society is composed of different components.National concepts of rights are components or expressions of such aculture, so that the range of rights and their relevance to social lifedepends on the cultural codes which define what is permitted and whats forbidden.146

In most modern countries, these codes signal democratic leaders toadopt a system of accommodations to permit the minority to carry out itsreligious obligations, such as ritual slaughter, through what is termed the

rule-and-exception approach.147 This means that after the majority hasdecided upon the appropriate regulation applicable generally to allpersons engaged in the practice (in this case, the requirement of stunningthe animal prior to slaughter), the law provides an exception whichpermits the minority to deviate from the ideal practice in order to

recognize the minoritys interests, beliefs or cultural background as longas the societys fundamental principles and critical concerns, such as

public order, are not seriously affected. This rule-and-exceptionsystems part of what might be called the multicultural concept of social life.148

In this system, accommodation is practiced quite extensively, 149

145. Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship210 (Oxford U. Press 2001).

146. See e.g. Sally Engle Merry, Changing Rights, Changing Culture, in Culture and Rights:Anthropological Perspectives 31, 38 (Jane K. Cowan, Marie-Benedicte Dembour & Richard A.

Wilson eds., Cambridge U. Press 2002).147. Barry, Culture and Equality, supra n. 105, at 33.148 S Bhikh P kh R thi ki M lti lt li C lt l Di it d P liti l


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especially in matters of religion.150Of course, this does not resolve the problem of whether ritual

slaughter should be permitted as an exception. Just as one citizen insuch a culture is entitled to support pluralism, freedom of religion andthe need to preserve the primary ways of life that constitute theminoritys identity, so another may maintain that the prevention ofsuffering to animals is one of the prime values of society. Accordinglythere is no reason to permit injurious practices simply because they are

rooted in a minority religion, even conceding generally the rule-and-exception system. We will discuss this issue below.

In the case of religious slaughter, the need for accommodationstems from the fact that these traditional religious beliefs about the

proper method of slaughtering cannot be harmonized with thepreferences of the majority that require stunning. At this juncture, wewant to re-emphasize that the ritual we are discussing implicates a

minority right, and not just an eating preference. Although it may annoyanimal protectors and vegetarians alike, there is no escaping the fact thathuman society exploits animals for many purposes, including food,151and human utilization of animals for their purposes is accepted aslegitimate, at least in the eyes of the majority of the population152 that isnot vegetarian. However, let us assume that somewhere the VegetarianParty wins the elections and as part of a change in the legal regime

favoring animals vegetarianism is defined as an obligatory lifestyle forall citizens and the slaughter of animals is absolutely forbidden. No onecan deny that this step is good for animalsthey would then live in asociety where they do not encounter suffering from slaughter and aculture that does not kill.153 Yet, while part of the population, those whoare vegetarians and those who are willing to become vegetarian, willaccept this directive, the non-vegetarian minority that lost the elections

will find it unreasonable and unjustified.


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To make an analogy to the current situation in countries whichpermit animal slaughtering but only using stunning, Jews or Muslimscould say that this prohibition puts upon them a burden like the burdenplaced upon meat-eaters in a vegetarian society. They will argue, likethe meat-eaters, that this is a burden that they should not have to bear forthe sake of protection of animals. Concededly, the dilemma aboutanimal suffering can exist even for the observant Jew who may find thatndeed, ritual slaughtering causes too much suffering to the animal.154

Certainly a Muslim or Jew who must observe the religiouscommandments and feels thatshechitah causes too much suffering thenhas no choice but to become vegetarian.155 However, this choice shouldbe made freelyindeed, a Jew might argue that this choice is requiredto be made freely to be religiously significantjust as no other person inthe society is coerced into vegetarianism.156 In this sense, while eatingmeat is not an obligation157 not being forced to be a vegetarian may be

still understood as a right.158

Thus, we do not accept the claim made byauthors such as Barry, that eating kosher is tantamount to choosing meatof an expensive quality and that it can be foregone by an observant Jewor Muslim in favor of lesser quality meat or that the prohibition doesnot hamper freedom of religion but only the ability to eat meat.159

As this analogy suggests, unfortunately, sometimes it seems thatthose who oppose ritual slaughtering use their scruples about the

suffering of animals as an excuse not to enter into a dialogue withreligious minorities about the limits of tolerance in liberal anddemocratic societies.160 Similarly, we would reject the claim that thestate prohibiting ritual slaughter is only being neutral in that it isprohibiting every practice that causes suffering to animals, regardless ofwhether the motivation is religious, under accepted standards of the

154. SeeJones, 374 F. Supp. 1284 (holding that there was no fault in the use of kosher meat

permitted by U.S. law); see e.g. Pamela D. Frasch et al., Animal Law 403 (Carolina AcademicPress 2000) (explaining that, as in other cases, this decision was based on the principle of religiousf d i i th t f lt t i l )


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prevention of cruelty to animals. According to the neutrality principle,n their view, religious slaughter should be forbidden just like cock-

fighting and similar sports.161 However, not only does the factualanalogy between religious slaughter and cock-fighting seem to us to beextremeand there is good reason to distinguish between Jewish andMuslim slaughter and sporting rites that kill animalsbut the neutralityprinciple violates the basic values of multiculturalism that we are

advocating.

Of course, we concede that multiculturalism does not grant aicense for any and all behaviors of religious minorities, and any

particular society is not obliged to accept all the values of other culturesthat contribute to its population. Nor should every religious or mysticbelief be a justification for cruelty to animals.162 We realize that

multiculturalism debates can quickly deteriorate to cultural relativism,and we do not mean to suggest the fact that a particular practice is rooted

n religious belief justifies any injury to animals. We do not think thatritual slaughtering should be justified by an argument from moralrelativism, and do not call for moral anarchy in this particular matter.163The accommodation of Jews and Muslims may open the gates to allsorts of considerations regarding traditions and usage. Just as, forexample, the prohibition of whaling is waived for certain aboriginalpeoples in order to conserve their tradition with appropriate limits,164 so

we concede the propriety of limits on ritual slaughter, including the needto improve animal welfare.Though we respect those who turn to vegetarianism to avoid

animal suffering, it is important to separate the concern from animalsuffering from other concerns at issue in this case which are unrelated tothe struggle for animal welfare. As we have suggested, given that thecountries we review have not adopted mandatory vegetarianism as thenational standard, the sweeping prohibition of religious slaughter isproblematic both because of its results and also because it is based uponan unjust distinction based on religion which also is not rational from the


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of the prevention of cruelty to animals, or more accurately, runs counterto the need to clearly define the limits of cruelty to animals in two ways.First, as we will discuss in Part B, the prohibition of religious slaughtercan act as a subterfuge for attempts to harm religious minorities, usingthe banner of preventing cruelty to animals to justify religiousdiscrimination. The use of this issue to justify religious discriminationcan create a backlash against the struggle for animal welfare or animalrights by those who are suspicious that it is being used as a pretext to

cover discriminatory intentions by the majority. As long as thedefinition of suffering involved by slaughtering is based on differentconsiderations than those used in other cases, there is the potential riskof raising increasing suspicions about the laudable goals of thosestruggling for animal welfare (or animal rights). Second, as we willdiscuss in Section V, the complete ban on religious slaughter does notdistinguish between religious practices which are actually inhumane and

shechita, which is in fact a form of humane slaughtering.

B. Prohibition of Ritual Slaughtering: Does it Create Discrimination?

With regard to slaughtering, there is currently no way to justify arealistic abolitionist position since the majority of the public accept thenecessity of killing animals for food. But there is clearly a need to adopta regulatory policy, so that slaughterhouses will provide more acceptable

conditions for animals, notwithstanding that, or precisely because, theyare going to be killed. The question is what values and orientations aregulatory framework should have, and what interests it should prefer.Animal protection regulations are bound to impinge on the interests ofsome sectors of the population, particularly those who will bear theeconomic effects of regulation. For example, regulations that specifyhow meat must be kept for sale in shops impose expense on shopowners,

which they might consider an illegitimate restriction of their ownershiprights and their freedom of occupation. Similarly, a prohibition against


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Using the ruse that one is attempting to protect an importantvaluethe prevention of cruelty to animalsin order to attack aminority is not such a difficult thing to do and even if lawmakers arewell-intentioned, the prohibition of ritual slaughtering will still fallunder a certain degree of suspicion as reflective of anti-Jewish or antiMuslim sentiment, so we should be cautious before accepting argumentsat face value or conceding them too quickly.

1. Persecuting Minorities and Antisemitism

Any regulatory framework that prohibits ritual slaughtering isikely to be infected with elements of religious discrimination166 since its easy for those who would use the cloak of animal protection for other

ends, such as attacking those whose religious beliefs differ from theirown. One can see such examples in other contexts, such as when atenants keeping pets is used as an excuse for evicting him because theandlord does not like him,167 or when a local population objects to a

dam that interferes with the status quo in their community using theexcuse that they are protecting fish that are in danger of extinction.168

Certainly today, instances can be found where those opposingkosher shechita have a clear anti-Semitic (or anti-Islamic) ideology.Though this may not be generally true, some opponents of kosherslaughter tend toward an ideology historically tainted with anti-

Semitism. As we have pointed out before, the decrees against Jewishritual slaughter began to be common in the mid-nineteenth century, andthere are those who argue that behind the prohibition in Switzerland169and Sweden,170 it is possible to discover anti-Semitic motivations.

While there is room to discuss whether anti-Semitic or anti-Muslimsentiment is behind the growing movement to prohibit ritual slaughter inEurope, we prefer to avoid this particular discussion and assume that the

166 S E C ti H Ri ht t 9(1) 14 (di ti i hi b t


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prohibition in Switzerland and Sweden were adopted for reasonsunrelated to anti-Seminitism. Indeed, it would be equally problematicalto go to the other extreme and suggest that every attempt to preventreligious slaughter is an expression of racism or xenophobia. The onecase where it is difficult to deny the anti-semitic motivation of theprohibition against ritual slaughter is in the case of the Nazis. The directconnection between anti-shechita legislation and antisemitism wasclearly expressed in the late Dr. Zerach Warhaftigs article The

Historical and Legal Battle over Jewish Shechita.171 In Germany, a kindof scientific antisemitism evolved which formed the theoretical basisfor the final solution. The pretexts and special pleading againstshechita found in the Nazi state have their roots in hatred for Jews andthe Torah and (in Russia particularly) economic jealousy. The concernfor the prevention of cruelty to animals was very selective and did notapply to killing animals outside the slaughterhouse, for example, to pole-

axing pigs and to hunting. But it did apply to slaughtering fowl, wherethere is no issue of suffering.172

The tragic situation which ensued from the use of the ritualslaughter prohibition to separate and punish Jews found expression inthe works of many rabbinical authorities at that time. It is well-knownthat observant Jews simply went without meat that came from a stunnedanimal during the Nazi period.173 Though we cannot explore the full

Halakhic argument, we might cite the words of Rabbi Uziel thatunderscore how this demand was used to offend and injure Jews:

It is perfectly clear that the phrase prevention of cruelty toanimals is nothing but a pretext to attack the Jews wherever theylive, to make them change their religion or to cause them towander from country to country in their Diaspora. If they werereally concerned about preventing cruelty to animals, they wouldnot constantly insult the whole people of Israel with curses andmockery, shed their blood and embitter their lives and try to kill


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them. There should never be worse cruelty to human beings thanthere is to animals at the moment of shechita.174

Similarly, the first volume of the Responsa Seridei Esh of RabbiJ. Weinberg is devoted to the discussion of the Rabbinical authorities onstunning and their decision to veto it. Rabbi Jehiel Jacob Weinberg175was one of those people who felt the immense responsibility of being arabbinical legal authority during the tragic time of Nazism. His wisdomand sensitivity led him to reject compromise, but he was very conscious

of his obligation to the sick and to simple Jews who could not alwayswithstand the terrible trials of the time:

They are simply looking for an excuse to add another insult to theTorah and another way to oppress our people. The Sages of blessed memory have unanimously commanded (BT Sanhedrin74) us that at a time of anti-Jewish decrees by the regime, evenconcerning the smallest matter, a Jew should rather give his life

than transgress the Torah. It is superfluous to state that a Jew mustnot eat meat (that is not kosher) (Shulhan Arukh YD/157) and hemust do everything in his power not to give in to these evil decreesand in this way sanctify the name of God. The oppositebehavior is considered blasphemy as the Rabbis say, he who actsaccording to the enemys laws is like one who raises his handagainst the Torah of Israel. (Shulhan Arukh HM/26)176

Rabbi Weinberg continues to describe his own personal arduousstruggle with the problem:

I knew from the outset that none of the great men of Lithuania andPoland and the other outstanding personalities, the leaders ofOrthodox Judaism would ever agree to permit any change in thetime-honored form ofshechita, adhered to in Israel for generationupon generation. As for me, my heart told me not to approach thisserious matter, the very foundation of Jewish life. Many times I

told the righteous teacher, Rabbi Ezra Munk, the Rabbi of the


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Adas Yisroel congregation of Berlin who was also the head of the

shechitaboard of Germany that we had no right to look for waysto permit changes in the ancient form.177 The very assertion thatshechita causes suffering to animals is a painful attack on thehonor of the holy Torah, which was the very first to cautionagainst cruelty to animals. In the end the hatred and cruelty ofthese people will become clear to all. They wish to starve Jews todeath with their false, pretended compassion for animals.178

Due to demographic changes in Europe, the debate that onceexclusively affected Jews is now affecting Muslims as well. Muslimcircles are maintaining that behind the attempt to forbid Muslimreligious slaughter lie tainted motives with an intention to offendMuslims. 179 We must be concerned about the possibility that suchprohibitions were framed in order to drive people from their new

homelands in Europe.

The United States has faced this very question in Church of LukumiBabalu Aye, where a religious majority used the pretext of compassionfor animals in order to attack a minority religious group that they wishedto drive from their community. 180 Notwithstanding the differentcircumstances, including the particulars of the relationship betweenreligion and state in the U.S., the decision helps us to understand theproblem in a wider context. A sect called Santeria, whose faith

originated in Africa, came to Cuba with slaves imported for Americanmarkets. Their religion is a mixture of Christian and pagan practices;

177. Weinberg, Seridei Esh: sheelot utshuvot, Part II # 4, himum habeemot al iede chashmalPrefation, p. 28 adds:

Devoted Jews would not listen to us, they would rather suffer and go hungry than defilethemselves by eating beef slaughtered by the method prescribed by their evil persecutors.The foul tyrant, head of the Nazi regime and thousands more like him will perish fromthis world, but our holy religion will prevail forever. The Jews in Germany must standthis ordeal for our holy religion and for the sake of our brethren all over the world. IfGod forbidwe rule to be lenient regarding this type of slaughter, we would endanger


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and as part of their ritual, believers first kill animals (fowl, ducks, hares,sheep and so on) in a symbolic sacrifice and then eat them.181 A groupof members of Santeria settled in Hialeah, South Florida. Theirreligious way of life, and perhaps some of the members, offended theocal populace. 182 The municipality passed an ordinance selectively

forbidding ritual killings of animals in the manner of the Lukumi BabaluAye Church, while permitting kosher slaughter, the slaughter of animalsfor food by mainstream licensed facilities, and other animal killings.183

The Lukumi Church claimed that the real aim of the ordinance was toprevent them from living in Hialeah in violation of their right to FreeExercise of Religion, and convinced the the Supreme Court that, indeed,they were being discriminated against because of dislike of theirreligion.184 Even though, arguably, the practice of animal sacrifice wasproblematical, since the municipality did not exhibit concern for thehumane treatment of animals being slaughtered in other contexts, the

Court accepted that the purpose of the ordinance was to drive the sectfrom the city. One wonders whether the Court would have reached adifferent decision had the city really evidenced its true concern foranimals.

Even carving out an exception for kosher and halal slaughteringnvolves questions of the limits of slaughtering regulations. We might

note that the U.S. Supreme Court compared the Santeria rituals with

koshershechita, and next ask whether it follows that protection ofkoshershechita and halalmust necessarily imply the carving out of anexception for the animal sacrifice practices of other faiths.

2. Religious Slaughtering Exemptions and Discrimination Between

Minorities

When governments are attempting to devise slaughtering

exemptions, they need to consider two sorts of religious freedomdilemmas. One of them which the Lukumi Babalu Aye case raises, as


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religious minority are themselves in conflict over proper religiouspractice, which we will consider in this section.

a. Minority vs. Minority Rights in a Religiously Pluralistic State

States that are considering exemptions for ritual slaughtering mustbe serious about the need to ensure equality between minorities and notdeny one minority rights enjoyed by another minority. Some countries

ike Germany, for example, accept Jewish slaughtering but are morereluctant to exempt Halal.185 This distinction may, on its face be quiteunderstandable. First, the German public is particularly sensitive to theneed to ensure religious freedom to Jews as a consequence of the traumaof the Holocaust.186 Second, Muslims in Germany clearly outnumberJews187 and therefore, the potential for animal suffering is more manifestn the case ofHalalslaughtering. At this juncture, as we will discuss

further, the Constitutional Court of Germany has not accepted thesedistinctions as a basis on which to treat Muslim slaughtering differentfromshechita.

However, the prohibition of religious slaughter is not confined toMuslims or Jews but can also affect other religions not so well-known inEurope or small religious groups which have only a loose structure,which raises the question of their entitlement to an exemption as well.Although in Church of Lukumi Babalu Aye,188shechita was comparedwith the Santeria ritual, in the end, the Supreme Court did not have todetermine whether the distinction between shechita and the Lukumiritual could be justified under neutral criteria because it invalidated theordinance based on the citys intent to discriminate against followers ofthe Church. Smaller religious groups might argue that the exemptiongranted Jews and Muslims should be interpreted as discriminationagainst cults or sects whose particular method of slaughtering animals is

an expression of their religious feelings, or as discrimination in favor oflarge religions and against small ones.189 To be sure, one might


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traditions in European countries, rather than strange new customsntroduced by new immigrant groups, but this is no basis to justify

distinctions between religions, any more than the size of theirmembership can be used to do so. Accordingly a small religious group,even if it has recently arrived, should be entitled to its own ritualslaughter as long as it abides by the same rules applied to Jews orMuslims, i.e., that the slaughtering is done under supervision with thesame permit, and conforming to the same standards for the prevention of

cruelty to animals.However, freedom of religion does not justify an attack on basic

values including the respect for animals. If we want to avoid cruelty toanimals, we need to distinguish between slaughtering for consumptionand all other kinds of ritual killing involving esoteric practices. Theacceptance of killing of animals for food is necessary, given that mostpeople do not accept vegetarianism as a way of life, but it is not

tantamount to accepting every type of animal killing based upon aminoritys faith. The line between acceptable and unacceptableslaughtering must be guided by the basic values of the society regulatingt, and it is not problematical for practices accepted as valid in one

society to be condemned in other societies if they violate fundamentalnorms of that society.190

b. Minority within the MinorityA second problem in establishing ritual slaughter exemption, which

might be termed the minority within a minority problem, relates to thefact that religious minorities might not be cohesive in terms of theirviews about the methodology of religious slaughter or, indeed, who isauthoritative in establishing mandatory religious practices. In manycountries, minority religions are represented by a central body in their

relationships with government authorities. In France, for example, in1995 the government recognized the Great Mosque of Paris as the only


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In France, the umbrella organization for slaughtering practice forthe orthodox Jewish community is the Association ConsistorialeIsraelite de Paris (ACIP).192 However, some years ago, the orthodoxorganization Shaarei Shalom applied for permission to slaughter intheir own, slightly different way to ensure what they style glatt koshermeat; but the government did not consent to recognize them, since thegovernment had already granted an exclusive license to theAssociation.193 Shaarei Shalom brought this case to the European Court

of Human Rights, where the French government argued that theAssociation represented many more Jewish members than ShaareiShalom, 194 and that Shaarei Shaloms reasons for asking for theexemption were partially economic, because they wanted to undercut theAssociations prices. In addition, the government maintained that it didnot interfere in the internal affairs of a religion and that the Orthodoxhad other means at their disposal for obtainingglatt koshermeat.

The European Court of Human Rights reviewed the Frenchregulations in light of the European Convention on the Rights of Manprovisions on freedom of religion and the principles of traditional koshershechita relative to those of glatt shechita. The majority on the Courtconcluded that the French were within their rights in refusing torecognize the glatt shechita of the Sha`arei Shalom and in giving ageneral permit to one agent for the Jewish community as a whole. The

Court confirmed that religiousshechita was included in Section 9 of theConvention, which affirms the right of practical expression of religiousbelief, and concluded that the exclusion of stunning provided by FrenchLaw adequately ensured the freedom of religion. At the same time, theCourt held that the Shaarei Shalom orthodox community could onlyclaim injury if it could not obtain glatt koshermeat. In this case,glattkosher meat was readily available from Belgium195 or by means of anagreement with the Association, the umbrella organization to which themajority of French Jews belonged.

In our view the minority opinion in this case however better


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nsufficient to say that orthodox Jews of Sa`arei Shalom could obtain

glatt kosher meat in other ways, held that the fact that the petitionerswere a minority within the minority community did not deny them theright to be considered a religious body. The fact that the FrenchGovernment might prefer to deal with representative bodies was not thessue, for Shaarei Shalom did not challenge the status of the ACIP;

rather, the permission to pursue a certain religious activitiy, glattshechita, was at stake and its denial constituted discrimination. In theminoritys view, permitting a second method of schechita couldcertainly not interfere with public order.

We recognize that the way that the majority in this case chose tograpple with the problem was probably guided by the same principles asn other cases where the Court has preferred not to intervene in the

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