A somewhat shorter version of this article appeared in the Jewish Press on the 31st of December 2020
By Arie Folger
On the 17th of December, the grand chamber of the Court of Justice of the European Union ruled1 in favor of the regional governments of the Flemish and Walloon regions of Belgium, finding their prohibition of shechitah without stunning is legal. This is a tragedy for Jewish communities throughout Europe. It was Belgium’s Jewish community last hope for a quick resolution of the Shechitah crisis, which had come into force on January 1st 2019.
Many commentators have pointed out where they think the court has gone wrong. Nat Lewin2 and Mark Goldfeder3 each blamed the defense for not disputing the court’s basic assumption that stunning is more humane than shechitah. Rabbi Nathan Slifkin argues that it is disingenuous for the court to criticize shechitah while national laws in the same jurisdiction permit factory farming, medical experimentation on lab animals and hunting – all three examples for condoning animal suffering for the sake of human benefit, and that religious freedom is such a supreme human right that it should supersede animal suffering considerations. Several authors have expressed astonishment at the court’s hubris for telling faith communities that their religious laws allow forms of stunning.
All these authors make cogent points, but none of these will help alleviate the matter, because they all fundamentally disregard the framework in which the court functions.
These authors may express strong moral arguments, but the Court of Justice of the EU – just like the Supreme Court of the USA and any other court in civilized countries the world over – does not get to decide based on moral philosophy alone. Sure moral principles guide the justices as they interpret law, but courts rarely if ever have the prerogative to decide a matter based on morals alone. Instead. They decide within the confines of the law that granted them power to adjudicate.
According to the official EU website,4 the Court of Justice has five prerogatives: (a) Interpreting EU law, (b) enforcing EU law (when a national government infringes on EU treaties or law), (c) annulling EU legal acts (when an EU legal act infringes on EU treaties or EU fundamental rights), (d) ensuring the EU takes action and (e) sanctioning EU institutions when someone sues EU institutions.
In the present case, the individual EU and national laws are clear, but they possibly conflict, hence before the court was an issue that is in the triangle of areas a, b and c above.
What the court does not do, however, is fact finding. Whether shechitah is more or less humane than stunning wasn’t really a material part of the judgment, as that would amount to fact finding, which is done in different, lower courts.
In the words of the court, it was called upon to adjudicate the interpretation of the EU law from 2009 on the protection of animals at the time of killing, and the validity of the relevant provision in the light of the Charter of Fundamental Rights of the European Union, in order to rule whether a 2017 Flemish law (and by consequence the soon afterwards adopted equivalent Walloon law) prohibiting slaughtering without prior stunning, is legal.
That’s it, no more no less. The issue is that a government decided to enact a law and the question is whether it is entitled to enact that particular law.
EU law unequivocally considers stunning the superior form of slaughtering. Though readers of the Jewish Press, along with the authors I cited above, all agree that shechitah is a humane form of slaughter no less humane – perhaps even more humane – than stunning, nonetheless, the Court of Justice was not really empowered to decide that matter, as it is at present a settled EU law. We may all consider such a law to be abhorrent, because it essentially passes judgment and imposes values upon religious communities, but fact finding in the regard was not a prerogative of the court.
An EU directive of 1993 permits member states to allow exceptions of the requirement to stun animals prior to slaughter. It is under this directive that most members states allowed halakhically proper shechitah to proceed without stunning, or requiring only post cut stunning.
Thus, the practice of shechitah has for several decades been precarious. It is thus no wonder that the Conference of European Rabbis expends a considerable amount of efforts to combat threats to shechitah wherever they appear.
That said, the court’s decision surprised us all and even within the narrow confines within which the court operates, it could and should have reached different conclusions, as Shimon Cohen of Shechitah UK argued.5
First of all, the court decision goes against the Advocate General of the EU, who in September opined that bans on Shechitah would be illegal. This is not exceptional, but very discouraging and unexpected. Furthermore, the court has created a hierarchy of law (which is within the purview of the court) in a way that puts animal rights above religious freedom. This stems from a fundamental error, as I will argue below. Furthermore, the court has arrogated itself the prerogative to interpret religious law and has opined that Jews may rely on opinions allowing certain kinds of stunning – but adjudicating religious law is not one of its prerogatives.
Though I argued above that fact finding wasn’t part of the court’s prerogative, it could still have used the vast body of scientific evidence, including, for example the 1974 US federal court judgment finding shechitah indeed humane, and the work of experts like Temple Grandin,6 to come to the conclusion that there is enough scientific and moral controversy in the matter for member states to give faith communities the benefit of the doubt and not impinge upon their religious freedoms.
Practically troubling is that the court’s decision fails Kant’s categorical imperative. The court argued that consumers insisting on classical shechitah may import their meat from other EU countries. The problem is that the court’s decision risks causing a snowball effect with many more countries banning shechitah. Already, Denmark, Sweden and Finland were involved in this suit. Will the court reverse its decision if all members states move to prohibit shechitah, G“d forbid? What will the court say if the only countries leaving shechitah legal are those with hardly any slaughtering industry, say Malta or Luxembourg?
Underpinning the court’s decision are two dangerous currents of thought. One is that animal rights ought to take primacy over freedom of religion. Though this is not the overt opinion of the court, the court seems unafraid of impinging on another fundamental right. In halakhic parlance it would be akin to someone not worrying about unintentionally violating a laav deOraita. The other very pernicious error is that the court misunderstands religious freedom. It understands religious freedom as the right to believe and worship; it doesn’t get that religious freedom involves the freedom to act in accordance with one’s conscience.
For over a millennium, European Christians have treated Jews as rejected by G“d, primitive, with laws that have been superseded. As the modern era set in, the old religious basis for these prejudices were slowly revised, most importantly in 1965 with the Second Vatican Council. But western culture has kept its profoundly rooted prejudices against Jews and Judaism. When the Jews of Europe were being emancipated, governments throughout Europe tried to condition emancipation on Jews becoming less Jewish. It was somehow easier to stomach the people having individual rights, than to also recognize that they have valid moral and ethical claims.
The dark cloud of past anti-Judaism continues to plague western culture, and the present court decision is a result of these dark forces. I do not impute antisemitism to the justices of the court; they surely tried to arrive at the most reasonable decision they can imagine. The problem is that their imagination is tainted by a culture that has still not recognized the continuing unfairness and inequality with which it considers Judaism, and the justices are likely not at all aware of their inherent post-Christian western biases.
This has consequences for other issues of religion and state, and the real place to defend the future of shechitah and to repair this wrong is through intense political lobbying at the national and European levels. Jewish organizations that wish to support the right of European Jews to live out their Judaism freely and respectfully should promote US style freedom of religion in Europe and meet with the Belgian ambassador. .
Freedom of religion was essential to bringing about European peace, starting with the Peace of Westphalia in 1648, and was essential also to the establishment of the United States of America. To harm religious freedom is to undermine the long term health of western society. This message needs to be conveyed to all who can be moved to act. For the sake of the Jewish community and for the sake of all westerners.
The author is a founding member of the Rabbinical Court of Austria and a member of the Standing Committee of the Conference of European Rabbis
1Judgment Of The Court (Grand Chamber), 17 December 2020, accessible at http://curia.europa.eu/juris/document/document.jsf?text=&docid=235717&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=19097428
2Nathan Lewin, Poor Advocacy: Kosher Slaughter was badly defended, Jewish News Syndicate December 21st, 2020, accessible at https://www.jns.org/opinion/poor-advocacy-kosher-slaughter-was-badly-defended/
3Mark Goldfeder, Europe’s ruling on ritual slaughter is factually wrong and legally problematic, Brussels Times, December 23rd, 2020, accessible at https://www.brusselstimes.com/opinion/146779/europes-ruling-on-ritual-slaughter-is-factually-wrong-and-legally-problematic/
5Shimon Cohen, Analysis Piece from Shechita UK Following the European Court of Justice’s Ruling on Belgium, accessible at https://www.shechitauk.org/analysis-piece-from-shechita-uk-following-the-european-court-of-justices-ruling-on-belgium/