Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, April 11, 2011

Camosy on the Dutch Debate

Over at the new Catholic Moral Theology Blog, Charlie Camosy has an interesting post on the debate in the Netherlands over whether to prohibit kosher and halal methods of animal slaughter, an issue to which Marc pointed us a few days ago. (Jerusalem Post story about the reaction of the European Jewish community here.)

I should confess at the outset (and I suspect Charlie will disagree here) that I don’t hold the view that non-human animals have moral “rights,” at least as that claim is usually understood, nor do I believe that vegetarianism is morally obligatory. That does not, of course, entail that I hold that animals may be treated wantonly or cruelly. Aquinas was quite correct, I think, to say (following Maimonides) that the method of kosher slaughter may have been chosen to prevent cruelty to animals and, in turn, that cruelty is a vice opposed to temperance, but not justice (I-II, 103.3 ad 6; 103.6 ad 1; II-II, 159). As an aside, it seems to me that those who would want to affirm heightened moral standing to animals are better served by Christine Korsgaard’s ongoing project to give a broadly Kantian account of our duties toward some animals (based in the kind of being they are) in, for example, her 2004 Tanner Lectures at Michigan than by the usual utilitarian arguments. See also Brian Leiter’s comments here.

What does concern me is the alacrity with which some, perhaps a majority, in the Netherlands appear willing to throw the religious freedom of observant Dutch Jews and Muslims under the bus. Charlie quotes Party for the Animals leader Marianne Thieme that “religious freedom isn’t unlimited,” but that isn’t the point. One needn’t have the view that religious freedom is “unlimited” (who does?) to think that a discriminatory prohibition against religiously required methods of animal slaughter is an affront to religious freedom. One could imagine how a blanket prohibition on certain forms of animal killing with the object of preventing animal cruelty could be neutral and generally applicable (to use the formulation from US constitutional law) and not based in religious discrimination. But, as Justice Kennedy’s opinion in Church of the Lukumi Babalu Aye v. Hialeah makes clear, it would be difficult to draft such a prohibition without raising concerns about invidious religious discrimination because the terms of such a prohibition will often be underinclusive with respect to the putative government objective. Easier, then, just to single out particular forms of animal slaughter that are based on the beliefs of disfavored religious minorities. The record in Lukumi and, so it seems, in the pending Dutch legislation are replete with examples of such religious animosity. And while US constitutional law is not directly relevant to the Dutch debate, religious freedom is a human right and, in this respect at least, US law has developed a set of helpful doctrinal categories and distinctions.

Finally—and this is a small point—I’m not at all sure that Psalm 51 can be interpreted, as Charlie does, as a “shift in Jewish understanding of right relationship with God and non-human animals.” The text strikes me more as a lamentation over God’s impatience with manipulative and formalistic ritual amid faithlessness and a lack of righteousness (and then, in the Christian tradition, echoed in the preaching of John the Baptist and Jesus) than anything to do with the treatment of animals.


Moreland, Michael | Permalink

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You say: "One could imagine how a blanket prohibition on certain forms of animal killing with the object of preventing animal cruelty could be neutral and generally applicable (to use the formulation from US constitutional law) and not based in religious discrimination."

My understanding is that Dutch law on animal slaughter, were it consistently applied, would ban Jewish and Muslim slaughtering techniques, but an exception is currently made for them. So it seems to me that what we are looking at is rescinding an exemption for Muslims and Jews, not creating a law that specifically targets them.

Posted by: David Nickol | Apr 11, 2011 10:44:21 AM

David: Granted, but then why is a rescission of an exemption and imposition of an underinclusive prohibition on certain methods of animal slaughter any better (for purposes of neutrality or general applicability analysis--as Justice Scalia's concurrence in Lukumi points out, they often run together)? I say underinclusive because, so far as I know, the Dutch haven't prohibited hunting or fishing (or to use an example that Justice Kennedy cites in Lukumi, the home trapping of mice and rats--okay, that isn't meat for consumption). We'd also want to know whether the existing requirement that animals be stunned before slaughter has any other exemptions besides the current one for kosher and halal methods. If so, we would have a Fraternal Order of Police v. Newark, 170 F.3d 359 (3d Cir. 1999), style problem, ie, exemptions for some some reasons but not for religious reasons. The requirement to stun before slaughter is also open to the challenge that it is not, in fact, the least cruel method of slaughter (compared to kosher slaughter), but, in US law we'd probably have to defer to the legislative findings on that (of course, it's precisely the blemishing of the animal by stunning that makes it non-kosher or halal). Mike

Posted by: Michael Moreland | Apr 11, 2011 11:51:14 AM

Hey Mike...thanks for engaging! Two kinds of questions for you.

1. You support laws against 'cruelty' to non-human animals, it seems. But the Netherlands has concluded as a culture that killing animals without stunning them first is cruel and then have banned it. Are you objecting to that general conclusion about what is cruel? Or do you think that religious organizations should be exempt from such laws? Something else? As you can probably guess, I don't think that religions should be exempt from following anti-cruelty laws.

2. Isn't part of what makes animal cruelty a vice (which harms the moral agent) the unjustified harm that is done to the animal? If I hack a tree to death, and then hack a pig to death, the former act is non-vicious and the latter act is vicious precisely because of the wrong being done to the pig that wasn't done to the tree. But if it is possible to wrong a pig, then why isn't a matter of justice?

Posted by: Charlie | Apr 11, 2011 12:05:26 PM

I agree with David that it's wrong to label the proposal discriminatory, in that it would simply repeal an exception to a generally applicable law. In fact, it is the current state of the law that is discriminatory.

The under-inclusiveness argument also, I think, fails to hold water. It's a decent policy argument, but not (in the US, at least) probably a judicial one, and it's certainly not a religious freedom argument.

The law wouldn't be underinclusive in any religious way; that is, its underinclusiveness wouldn't be based on any religious factor, explicit or implicit. The distinction between included and excluded behaviors would have nothing to do with religion.

Let me close with this question: if you support a religious exemption from this law, would you also support an exemption for anyone who asserted a felt, personal moral duty to make their meat taste as good as possible for their customers, and that non-stunned slaughter makes the meat taste better?

Posted by: Andrew MacKie-Mason | Apr 11, 2011 12:47:02 PM

1. Yes, of course I think religious believers and institutions should be exempt from such a law. Provided that the demands of public order are met (and here I'm just following the language of Dignitatis Humanae), religious believers should not be coerced by public authority when acting in accord with their beliefs. The supposed interest in preventing cruelty to animals (and, again, here it isn't clear to me that kosher or halal methods *are* necessarily more cruel) does not warrant forcing observant Jews and Muslims to resort to civil disobedience, leave the country, or stop following their dietary rules.
2. I think you beg the question when you smuggle "unjustified harm" into the first sentence and a particular notion of "wrong" into the second sentence. That said, I don't have an elaborate view about what the wrong in animal cruelty consists in, and it might be that some aspect of the "wrong" is on account of what we owe God's creatures.

@Andrew: The record in the Netherlands seems to indicate that at least some supporters of the proposed legislation are indeed motivated by religious bias. I don't follow why you say that the current state of the law is "discriminatory" by allowing for an exemption--do you regard any religious exemption from an otherwise generally applicable law as discriminatory in that (invidious) sense? As to your parting question, this dispute is about a well-established practice by two of the major religions of the world. "Felt, personal moral dut[ies]" rarely measure up, in my view, for purposes of an exemption--much as I admire their work, I'm not an Eisgruber/Sager egalitarian.

Posted by: Michael Moreland | Apr 12, 2011 5:55:00 PM

@Michael: "The record in the Netherlands seems to indicate that at least some supporters of the proposed legislation are indeed motivated by religious bias."

I'm not sure how you could get more vague, noncommittal, or irrelevant than this.

As for the fact that the current law is discriminatory, I never said it was invidiously discriminatory. I said, in fact that it discriminates. I trust that you don't disagree with that? The point is that it's a complete twisting of words to completely unnatural meanings to claim that a proposed law is "discriminatory" when, in fact, it is repealing a current element of discrimination in the law.

Maybe you think that the current discrimination is good and valuable, but that doesn't mean that failing to discriminate is somehow discriminatory.

As for your prejudice towards established religions, tell me: at what point does a religion become "major" enough that its adherents are entitled to special treatment as compared to others who have the same level of conviction in their beliefs?

Every principled defense of religious freedom that I've heard recognizes that limiting freedom to those religions we deem important enough is destructive of the entire system.

Religious rent-seekers and the special interests that all too often drive religious exemption law, on the other hand, are fine with only advocating for "major" religions because that's all they need to do in order to gain the benefits they seek: a license to disobey the law.

Posted by: Andrew MacKie-Mason | Apr 12, 2011 11:37:31 PM


1. Oh, I assure you I *can* be more "vague, noncommittal, [and] irrelevant," but it's usually when my kids are demanding something. My comment about the religious bias here just goes to whether and how we could characterize the rescission of an exemption as discriminatory (and here I mean it in the invidious sense, but I understand you don't agree because you see such a rescission simply as a removal of discrimination--in a non-invidious sense--already in the statute).

2. My reference to the fact that Judaism and Islam are major world religions was in response to your question about the person with the "felt, personal moral duty" and whether he or she should also receive receive an exemption. I'm merely saying that the Jewish and Muslim claim here is indubitably a *religious* claim (as opposed to the person in your hypothetical, who is not, I gather, making a religious claim for an exemption), not that "established religions" are somehow more entitled to exemptions or that I have a prejudice toward them in these cases. Indeed, two of the more recent and important US Supreme Court exemption cases--Lukumi and O Centro Espirita (a RFRA case)--involved relatively small religious groups.

Posted by: Michael Moreland | Apr 13, 2011 12:45:16 AM

"Oh, I assure you I *can* be more "vague, noncommittal, [and] irrelevant," but it's usually when my kids are demanding something."

Fair enough: it's a universal father's skill, I think! However, my point is this: a claim that "some supporters" of a bill are motivated by "religious bias" means basically nothing. I'm pretty sure I could make that claim about thousands of laws.

"My comment about the religious bias here just goes to whether and how we could characterize the rescission of an exemption as discriminatory"

As far as I can see, there's no way in which ceasing to treat one group differently from other groups could qualify as discrimination. Definitionally, it just doesn't work.

As for the religious/moral distinction: if you're not saying that only established religions should get exemptions, what is the difference you see between religious beliefs and moral beliefs that justifies special treatment for the former but not the latter?

Posted by: Andrew MacKie-Mason | Apr 13, 2011 2:39:40 AM

Hey Micheal...sounds like you might just be disagreeing with those of us who think that the Jewish and Muslim ways of killing animals are cruel. Suppose a particular religion kills animals in a way that you and I AGREE is cruel. Do you still think that such practices should be sanctioned under religious freedom? And if not, then what you are really arguing about appears to be the Dutch understanding of what 'cruel' rather than about whether or not the Dutch should be permitted to regulate such non-human animal slaughtering.

I don't think I was begging the question...I made an argument that it is the unjustified harm that is done to a pig that makes hacking a pig to death vicious. If there is no harm done, or the harm is somehow justified (perhaps I'm starving in the woods and I need to eat), then it isn't a vicious act.

Posted by: Charlie | Apr 13, 2011 3:57:29 PM

1. No, I don't think it's just a disagreement about what constitutes cruelty toward animals. There is a reasonable pluralism of views about that (including in the Netherlands), and the point of religious freedom is that the state shouldn't coerce religious believers (setting aside for now extreme examples, which I don't think apply here) and should accommodate religious belief and practice. I even have Rawls on my side here (Political Liberalism, pp. 216-17). So even if we would agree that some method were cruel, I still think respect for religious freedom (and not just the US constitutional guarantee, but the Universal Declaration, Dignitatis Humanae, etc.) *requires* that religious believers (here Jews and Muslims here, Santeria in the Hialeah case) be allowed to practice their religion. "Freedom of religion for me, but not for thee"...very dangerous business.
2. Fair enough, but, again, we'd need some account of what the "harm" is in instances of animal cruelty before we could specify the character of the vice, though I'm not sure much turns on the question one way or another.

I have been persuaded by the arguments Michael McConnell made as to why religion has special status when he was responding to the Eisgruber and Sager book, see Michael W. McConnell, The Problem of Singling Out Religion, 50 DePaul L. Rev. 1 (2000), and John Finnis's argument that religion is an irreducible human good, see John Finnis, Natural Law and Natural Rights 89-90 (1980). I know not everyone would agree.

Posted by: Michael Moreland | Apr 13, 2011 5:03:53 PM

Michael, I'll look at those if I have time, at some point. In the meantime, surely you're not suggesting that all moral judgments should be subject to religious exemption, or that society should refrain from banning religious behavior that it deems dangerous to secular interests?

Human sacrifice (willing victim), illegal drug use, duty to flee before using violence in self defense...what line do you propose drawing?

Posted by: Andrew MacKie-Mason | Apr 13, 2011 5:39:00 PM

Micheal, suppose we found out some group of people was torturing dogs in a sacrifice ritual to their gods. Suppose it was just as cruel and horrible as the kinds of things Mike Vick did that landed him in jail. You think that it should be permitted because its part of a religious ritual?

It's not a question of religious freedom for me but not for thee. It's about being consistent in applying reasonable limits to this right.

Posted by: Charlie | Apr 13, 2011 7:19:34 PM

Of course there's a limit, and it's spelled out (if abstractly) in RFRA: religious believers should be exempt from a generally applicable law that substantially burdens the practice of their religion unless the government can show that the law is the least restrictive means of accomplishing a compelling government interest. The government would readily pass the test in most of the examples both Andrew and Charlie cite (illegal drugs--depending on the drug--pose a harder challenge, as shown by the O Centro case). But there's at least some reason to think that the proposed Dutch legislation is not neutral, is not generally applicable, and is not narrowly tailored to serve a compelling government interest. That's the (American, of course) *legal* (or judicial) argument for an exemption here. As for the legislative or political argument, I think there is, as Rawls would put it, a *reasonable* pluralism of views on this question and that observant Jews and Muslims should not be coerced to violate their faith. I realize that is a political and moral judgment and that some (mistakenly, in my view) believe that the religious freedom of Jews and Muslims is not sufficiently important.

Posted by: Michael Moreland | Apr 16, 2011 1:21:06 PM

How are we to weigh 'government interest in non-human animals not being cruelly treated' vs 'religious freedom with regard to animal slaughter'? Aren't these incommensurable goods? And even if you could weigh them, don't you have register 'slaughtering animals with a knife without stunning' in some way? And don't we just disagree about how to weigh that? :)

And if that is all true, then aren't we just back to what I suggested is really going on here: an issue of what counts as cruel treatment of a non-human animal.

Posted by: Charlie | Apr 17, 2011 9:25:45 AM

I'm still unclear on how removing an extant exemption can be considered non-neutral. The current state of the law is non-neutral, and the proposal would neutralize it. Absent a heavy burden of showing that this is actualy motivated by severe animus (like the argument in the Prop 8 case), I don't think there can really be any dispute on neutrality. (And all the quotes I've seen about this Dutch thing have been anti-religious only insofar as saying that the religion alone doesn't justify an exemption. That seems like perfectly acceptable and neutral rhetoric when attempting to repeal a religious exemption.)

Once we see that it's a neutral law, all that remains is the question of a compelling governmental interest. And just like we should recognize a reasonable plurality of religious beliefs, I think that protection against animal cruelty can legitimately be thought of by a certain polity as a compelling interest.

Posted by: Andrew MacKie-Mason | Apr 17, 2011 7:55:52 PM