Yesterday, the European Union Court of Justice decided Centraal Israëlitisch Consistorie van België and Others v. Vlaamse Regering. This case considered a Flemish law that restricted Kosher and Halal slaughter. Specifically, the government required butchers to use an electric stun gun on animals before slaughter. Kosher and Halal butchers contend that this stunning would render it impossible to perform the ritual slaughter. The court upheld this statute. Here is a snippet of the analysis:
Secondly, like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, by analogy, ECtHR, 7 July 2011, Bayatyan v. Armenia [GC], CE:ECHR:2011:0707JUD002345903, § 102 and the case-law cited), with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings. . . .
Consequently, it must be found that the measures contained in the decree at issue in the main proceedings allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.
Many critics of originalism would gladly prefer this sort of free-wheeling jurisprudence. I’ll take originalism, warts and all, any day over this sort of cosmopolitan living constitutionalism. Indeed, I remain blissfully unaware of European constitutional law. I take my cue from Justice Blair’s seriatim opinion in Chisholm v. Georgia: “The Constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal.”
Let’s assume California enacts this statute. Would it be constitutional? Would this law be neutral, and generally applicable? Unless there was some evidence that this law was targeted at Jewish or Muslim people, rational basis would be the likely standard of review. Well, at least as Smith is understood until Fulton is decided.
Let me throw one more wrinkle. Could an incorporated, for-profit butcher bring suit under the Free Exercise Clause? Gallagher v. Crown Kosher Supermarket would suggest that corporations do have Free Exercise rights. What about under RFRA? Justice Ginsburg’s dissent in Hobby Lobby, which was only joined by Justice Sotomayor, suggested that corporations could not avail themselves of a RFRA claim. Perhaps a sole proprietor butcher could bring a RFRA claim. But Hebrew National would be locked out of court.