By Mike Dorf
Last week, the New Zealand Ministry of Agriculture and Forestry promulgated a new code of regulations governing commercial slaughter of animals. Like its predecessor, the new code requires that prior to killing, animals must be stunned (unless the method of slaughter itself results in instantaneous unconsciousness or death). However, unlike prior versions of the slaughter regs, the new code makes no exception for kosher slaughter. Because most Orthodox rabbis believe that animals must be conscious when slaughtered for their meat to be kosher, the code thus bans kosher slaughter. Here I raise a few questions about the validity of the code under NZ law and the broader potential for conflict between animal welfare legislation and religious liberty.
With nominal parliamentary supremacy, New Zealand has no entrenched Constitution, but it does have a Bill of Rights, adopted in 1990 as an ordinary statute. The Bill of Rights does not authorize judicial review of legislation, but it does require that laws be construed, if possible, to be consistent with the BoR. Accordingly, without having checked the NZ case law, if any, I would guess that a judicial determination that the new code violates the BoR could conceivably result in a further finding that it is ultra vires relative to the underlying Act of Parliament, here the Animal Welfare Act of 1999. Apart from the prospect of judicial invalidation, the NZ BoR places an obligation on parliament itself to repeal laws incompatible with the rights contained therein.
The NZ BoR contains two provisions protecting religious freedom. One protects "the right to freedom of thought, conscience, religion, and belief," and a second, more directly relevant here, protects the right "to manifest . . . religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private."
Here too, I haven't checked the NZ case law. Based on the text alone, I would think that the international law is quite relevant. The BoR language is drawn from the International Covenant on Civil and Political Rights, which in turn is based on language in the Universal Declaration of Human Rights. As Gerald Neuman argued in a 1997 article in Constitutional Commentary ("RFRA in Global Perspective"), the ICCPR/Universal Declaration language--and thus the NZ BoR language--has generally been understood to protect religious practice against both laws directed against religion and laws that have the effect of substantially burdening religious practice, even if not directed at religion. In terms more familiar to a U.S. audience, the NZ BoR thus affords more protection to religious practice than, according to the Supreme Court in the peyote case, is afforded by the First Amendment of the U.S. Constitution. NZ, in other words, affords protection along the lines afforded in the U.S. by the Religious Freedom Restoration Act. (That Act, though held invalid as to state and local laws, is still valid as a limit on the federal government.)
Does the new code substantially burden the religious practice of observant Jews? As an ethical vegan (and a Jew, albeit not an observant one), I would like to say it does not. After all, nothing in Jewish law requires the consumption of meat. (Ritual animal sacrifice has not been practiced since the destruction of the second Temple by the Romans.) An observant Jew living in New Zealand can comply with all of the commandments simply by refraining from eating meat. Assuming he or she does not replace the displaced meat with other animal products (i.e., dairy and eggs), this would actually provide a benefit for the physical health of religious Jews. Nonetheless, I recognize that this is not the proper legal analysis. For the non-veg world, a law that says someone can comply with religious obligations only by cutting meat out of his or her diet will be understood as a serious burden. And of course, the code certainly has a discriminatory impact on observant Jews. No other religious group is barred from eating meat as a result of the code in combination with religious tenets. (Stunning is consistent with Halal; most Christian denominations do not restrict meat consumption at all; and while Jains and many Hindus and Buddhists refrain from eating meat, that is entirely a matter of religious principle, not a combination of religious principle and NZ law.)
Like the ICCPR and many other national bills of rights, the NZ BoR permits rights to be infringed by "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Preventing cruelty to animals certainly should count as a reasonable goal, but there is a question of whether the NZ code as a whole is reasonable.
I was told as a child that kosher slaughter is humane. Perhaps in the time of the Bible kosher slaughter inflicted less suffering on animals than other prevalent methods of slaughter, but it is not, by any reasonable standard, humane. Below is a short video narrated by the writer Jonathan Safran Foer. You'll see that he concludes by announcing he is a vegetarian, a position that, to my mind, makes little sense, given how many animals are killed and harmed by the dairy and egg industry. I include the video nonetheless because it shows footage of kosher slaughter.
Disgusting, right? I agree. But now watch the following video of a steer having his throat slit after having been stunned:
Is that humane in any meaningful sense? The whole idea of humane slaughter is an oxymoron. Anyone seriously concerned about animal welfare (not to mention human health and ecological preservation) would simply abstain from eating animal products. Accordingly, it is hard to see the requirement of stunning as promoting animal wellbeing. Indeed, one could even argue that the supposed strictness of the NZ code--not even making an exception for kosher slaughter--principally has the effect of misleading New Zealanders into believing that the animals they eat led long idyllic lives before being massaged gently to death by Dr. Kevorkian.
Even if one thinks that the last minutes of life for animals slaughtered by stunning are marginally less horrific than the last minutes of life for animals subject to kosher slaughter without stunning, one could still fault the NZ code for exempting hunting and home slaughter, but not kosher commercial slaughter, from the requirement of stunning. As in the U.S. Supreme Court case of Church of Lukumi v. Hialeah, the pattern of exemptions and non-exemptions could bespeak a lack of seriousness on the part of the New Zealand authorities in pursuing their anti-cruelty goals. Whether slaughter is conducted for home consumption or for commercial sale, for example, in no way affects the suffering of the animal who is killed.
Note that Lukumi was decided by the same Supreme Court that decided the peyote case, treating the selective prohibition of ritual slaughter by practitioners of Santeria as a form of religious discrimination. The NZ BoR incorporates by reference the Human Rights Act of 1993, which specifically forbids discrimination on the basis of religious belief, and so, to the extent that the non-exemption of kosher slaughter discriminates against observant Jews, it could violate the BoR in that way. I think a fair case could be made for the conclusion that the code has a discriminatory effect, but is that its purpose?
That is an intriguing question. Part of the theory of the peyote case is that mere indifference to a law's differential burden on religious practice is not nearly so bad as targeting religion or a particular religion for some burden. But here the Minister of Agriculture was more than indifferent to the code's effect on observant Jews. He made a deliberate decision not to renew the prior exemption for kosher slaughter when promulgating a new code. It is useful to recall that the Nazi regime restricted kosher slaughter under the pretext of animal welfare. Though I have no reason to assume that New Zealand's new code reflects anti-semitism, I also don't think that discrimination must rise to the level of anti-Semitism or other hatred in order to violate an anti-discrimination norm. In the end, absent statements reflecting such animus, I think the only workable way to determine whether the underlying motive for repealing the exemption was an intent to discriminate is to look at the law's overall effect. That brings us full circle.
Kosher slaughter is horrific. How much more horrific is it than the horrific treatment of animals permitted by the law of New Zealand and the rest of the world? A little bit perhaps. Whether that should be enough to justify the repeal of the exemption for kosher slaughter is a question I find more depressing than interesting to contemplate. To me it mostly shows the inefficacy of regulation relative to education as a means of changing a deeply entrenched economic and social practice like animal exploitation.