Wednesday, September 06, 2017

A Constitutional Right to Privacy Should Not Include (Positive as Opposed to Negative) "Food Preferences"

by Michael Dorf

In my latest Verdict column, I discuss the recent landmark ruling of the Supreme Court of India finding an implicit right to privacy in the Constitution of the world's largest democracy. My column is mostly laudatory. I also take the opportunity to discuss the virtues of comparative law. The Privacy Case judgment canvasses constitutional privacy jurisprudence in the UK, US, South Africa, Canada, and the EU. I suggest that we, in turn, could learn from sister legal systems.

In this essay, I want to address an issue that arises in passing in the Privacy Case: what is sometimes called "food freedom," i.e., the right to decide for oneself what to eat. The judgment does not discuss the issue at any length, but it does--unfortunately in my view--suggest that food freedom may be on the agenda for future cases. In a paragraph that mentions a variety of prior cases involving privacy issues, the court includes "food preferences and animal slaughter (Hinsa Virodhak Sangh)." The case cited is a 2008 judgment of a two-justice panel of the Indian Supreme Court rejecting a challenge to Ahmedabad ordinances closing municipal slaughterhouses during the eight-day Jain festival of Paryushan. As the panel saw it, that case involved the "right to carry on an occupation, trade or business" and the right to religious freedom or what we might call religious establishment in the US.

Properly understood, the Sangh case did not involve a right to food preference or food freedom. To the extent that the Indian Supreme Court has now implied that such a right may be protected in India under the rubric of a right to privacy, that implication should be rejected in future cases.

To be clear, there were real issues of religious liberty and anti-establishment in the Sangh case. Prime Minister Narendra Modi's BJP often promotes Hindu nationalism at the expense of the religious pluralism enshrined in India's constitution. At the time of the Sangh case, Modi was Chief Minister of Gujarat, where Ahmedabad is located. And while Jains represent less than four percent of the Ahmedabad population, their religious beliefs and practices--especially with respect to meat--are much closer to those of the Hindu majority than the Muslim minority who perceive anti-slaughter laws as targeting them. The Sangh panel rejected the religious discrimination claim chiefly because the justices saw the ordinance as an attempt at fostering mutual respect rather than coercion or proselytization. They cited the practice of the sixteenth century Mughal Emperor Akbar the Great, who, despite his own Muslim faith, which permits meat consumption, forbade animal slaughter during Paryushan. The court thus concluded that the relatively modest imposition on slaughterhouse operators and their customers was constitutionally valid.

Readers can decide for themselves whether they think the Sangh case was rightly or wrongly decided with respect to religious discrimination. The not-coercion-just-respect argument was used by our Supreme Court to uphold Sunday closing laws (which apply for 52 days each year, not just 8) against an establishment challenge in the McGowan case and against a free exercise challenge in the Braunfield case. So-called "blue laws" persist in many states, while the federal appeals courts have rejected challenges to state laws making Good Friday an official holiday. To my mind, all of these rulings are problematic, but the Sangh decision is not more problematic than similar US decisions.

In any event, even if one thinks that the Indian Supreme Court erred in Sangh, it does not follow that there is--as the nine-justice panel in The Privacy Case suggested--a right to "food preferences and animal slaughter" that properly falls within the umbrella of privacy. To analogize to a US case, as Justice Blackmun, joined by Justice O'Connor, emphasized in a concurrence in the Church of Lukumi case, although a law that forbids animal slaughter by targeting a particular religion may be invalid, a law that in purpose and effect aims at protecting animals from cruelty would stand on a different footing.

Justices Blackmun and O'Connor thus noted in Lukumi that the Court decision there did not entail a right to an exception from anti-cruelty laws for people engaging in otherwise-forbidden practices on religious grounds. Because they also thought that Employment Division v. Smith was wrongly decided, Justices Blackmun and O'Connor thought it an open question whether there would be a right to such an exception under the Free Exercise Clause. But with Smith still the governing law, the question today would be whether the Religious Freedom Restoration Act (RFRA) requires such exceptions to a federal anti-cruelty law or whether state RFRAs (or their equivalent) require such exceptions to state and local laws. The Blackmun/O'Connor Lukumi concurrence suggests that RFRA and RFRA-like regimes might not require exceptions to neutral anti-cruelty laws because there could be a compelling interest in preventing cruelty to animals sufficient to override the individual's right under RFRA and RFRA-like state laws. My own view (it will not surprise readers familiar with my work on animals to learn) is that such an interest is indeed compelling.

The compelling interest question arises where there is a prima facie right--as I acknowledge there could be where a claimant asserts a right to religious freedom that entitles her to partake of some particular food or to harm or kill an animal to make that food. But what about the broader suggestion by the Indian Supreme Court in the Privacy Case that there is a right to "food preference and animal slaughter" quite apart from any concerns about religious freedom or religious discrimination? To make the question concrete, suppose a liberal democracy in which the government enacts laws restricting which animals may be killed for food, how they may be killed for food, or even forbidding the killing of all animals for food--not because of any views about religion but because of a secular philosophical view that such practices are wrong in virtue of the harms they inflict upon animals. And  suppose further that such laws are challenged by people who hold no religious views but simply want to eat cheeseburgers or ham and eggs for the culinary pleasure they derive from such foods. Does such a challenge implicate a right to privacy?

We can readily dispense with a threshold objection. Someone might say that the challenge does not involve a right to privacy because the food will be purchased and perhaps consumed in public. Put that objection aside because "privacy" as used in the case law in the US, India, and other constitutional democracies is often a term of art that encompasses aspects of liberty that find expression in public settings.

The challenge to the Affordable Care Act that culminated in NFIB v. Sebelius provides a useful illustration of how one kind of food freedom argument might go. The challengers--echoed by Chief Justice Roberts--fretted that if the federal government could use the Commerce Clause power to require people to purchase health insurance it could also use that same power to require people to eat broccoli. This was a doubly bad argument (as Justice Ginsburg noted). First, requiring people to buy broccoli is not the same as requiring them to eat it. And second, the objection that the government shouldn't require people to eat broccoli sounds in substantive due process, not federalism.

But if the government did require people to eat broccoli that would be a violation of the constitutional right to privacy, which encompasses a right to bodily integrity. If, as the SCOTUS assumed in the Cruzan case, a competent adult has a constitutional right to refuse all food even if it means starving to death, then it's a slam-dunk to say that there is a constitutional right to refuse any particular food when the immediate consequences are nowhere near as severe.

So yes, a properly understood liberal democratic constitution ought to contain a right to "food preferences" in the sense of a competent adult's right not to be forced by the government to consume any particular food. In other words, there is a negative food preference right.

However, it does not follow that there is a positive food preference right, i.e., a right to consume whatever food one likes. Numerous laws in the US and elsewhere barring particular food additives or foods produced in various ways on the grounds of health risks make this clear. Does anybody think that laws that aim to reduce the risk of foodborne illnesses (like listeria and salmonella) even raise constitutional issues on the ground that they limit people's ability to consume the food they might otherwise choose to consume?

One might think that health and safety laws are different from laws that aim at other sorts of goals. But that's simply not so. If you have a taste for endangered species, too bad. Even if you really would like to eat a bald eagle--which is no longer endangered--too bad. The federal Humane Methods of Slaughter Act is grossly under-inclusive and under-enforced, but it does limit the putative right to eat whatever you like.

Now I suppose one might think that all of these laws violate a basic right to food freedom, but that position has no logical stopping point and thus amounts to across-the-board libertarianism. A positive right to eat whatever you like (rather than to avoid being forced to eat what you don't like) is mighty hard to distinguish from a right to drive without a seatbelt, a right to fight to the death, a right to take unapproved (but in your judgment not especially dangerous) drugs, etc. Across-the-board libertarians may well support food freedom, but the basic principle of a constitutional right to privacy singles out particular aspects of liberty that are especially important or vulnerable for protection.

In Beating Hearts: Abortion and Animal Rights, Professor Colb and I say that we do not currently favor laws forbidding the consumption of animal products, even though we are vegans ourselves. However, we add that this view is strategic rather than a matter of principle:
Given current practices, there is no realistic chance of securing a legal prohibition on consuming animal products, and thus we think that advocacy efforts should focus chiefly on changing hearts and minds. In a future in which vegans constitute something like a majority of the population, we might reevaluate the wisdom of seeking legal prohibition. We reject the notion that individual consumers are entitled, as a matter of right, to consume animal products.
Our view is not idiosyncratic. Absent an express (and in our view misguided) text granting an explicit right to food freedom, liberal constitutionalism does not entail it.