Court upholds prison no-pork policy against EstablishmentClause challenge

Thu Apr 12 17:26:25 PDT 2012

Some Jews believe that halacha requires them to eat meat on Shabbos. That said, for many observant Jewish prisoners, solutions like the BOP common fare program have been sufficient.

I should note that in Germany my understanding is that the courts have upheld against challenge under Art. 20a the statutory exception for religious slaughter. See e.g. http://lexetius.com/2006,3863 (in German).

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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson [SLevinson at law.utexas.edu]
Sent: Thursday, April 12, 2012 3:18 PM
To: Law & Religion issues for Law Academics
Subject: RE: Court upholds prison no-pork policy against EstablishmentClause    challenge

Nick Kristoff has an interesting piece in today’s NYTimes, http://www.nytimes.com/2012/04/12/opinion/kristof-is-an-egg-for-breakfast-worth-this.html?_r=1&hp decrying the treatment of chickens by “egg factories.”  (One of my own feeble gestures, presumably predictable by reference to my economic status and politics, is that I buy eggs of cage-free chickens and don’t order veal.)  So I’m interested in the reference to Article 20a of the Basic Law.  What if a state really does try to protect all animals against cruel treatment, including chickens, cows, pigs, harvested fish, whales  in captivity, etc.?  Assuming that the practices of kosher slaughter are in fact less humane than they “need to be” (assuming that one continues to be non-vegetarian and therefore must support the raising and then killing of animals, birds, and fish for our own consumption), is there any dispositive reason for the state to accommodate a desire for kosher meat, even in an institutional setting that offers a presumptively healthy vegetarian option?   I ask this as a genuine question, since I find myself genuinely perplexed by the issue.

sandy

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Claudia Haupt
Sent: Thursday, April 12, 2012 12:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against EstablishmentClause challenge

I wrote about this a while ago in Free Exercise of Religion and Animal Protection: A Comparative Perspective on Ritual Slaughter, 39 Geo. Wash. Int'l L. Rev. 839 (2007). The article includes a discussion of the 2002 German constitutional amendment that made animal protection a constitutional state objective in Article 20a of the Basic Law.

--
Claudia E. Haupt
Professorial Lecturer in Law
George Washington University Law School
2000 H Street, NW
Washington, DC 20052
202-994-8494<tel:202-994-8494>
cehaupt at law.gwu.edu<mailto:cehaupt at law.gwu.edu>

My new book: Religion-State Relations in the United States and Germany  www.cambridge.org/9781107015821<http://www.cambridge.org/9781107015821>

On Thu, Apr 12, 2012 at 1:25 PM, <hamilton02 at aol.com<mailto:hamilton02 at aol.com>> wrote:
Chip is right, of course.

But Eric's point requires a response.
I don't I don't think PETA folks would appreciate having their sincere concerns about the humane treatment of
animals traced to the Nazis.  To say that humane treatment concerns are more often than
not "pretext" and then to have as your example something out of the 1930s is singularly unpersuasive.

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215<tel:%28212%29%20790-0215>
hamilton02 at aol.com<mailto:hamilton02 at aol.com>

-----Original Message-----
From: Eric Rassbach <erassbach at becketfund.org<mailto:erassbach at becketfund.org>>
To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu<mailto:religionlaw at lists.ucla.edu>>
Sent: Thu, Apr 12, 2012 1:14 pm
Subject: RE: Court upholds prison no-pork policy against EstablishmentClause challenge

Chip is right that the supposedly inhumane methods of kosher/halal slaughter

(something US law defines as humane, btw) is one of the main public

justifications for banning the practice. But as our brief in the New Zealand

kosher slaughter ban case pointed out -- http://www.becketfund.org/wp-content/uploads/2011/04/NZ-kosher-brief-FINAL.pdf

-- more often than not this is pretext. For example, this was the same

justification the anti-Semites of the 1930s used for banning the practice in

several European countries. As we point out in our brief, one of the first

things the Nazis did upon taking power was to pass a law banning kosher

slaughter, supposedly in order "to awaken and strengthen compassion as one of

the highest moral values of the German people."  I don't think it's too much of

a stretch to guess that anti-Muslim sentiment may be a subterranean motivation

for the humane practices argument in the Netherlands, France and elsewhere.

The ironic part for me of the Mohr case was that my main experience of

stand-alone prison pork bans is as a proposed "compromise" to settle kosher

accommodation lawsuits. Of course pork bans don't work as a method of kosher

accommodation, though prison administrators keep hoping that they do. In our now

6-year-old lawsuit against the Texas prison system (now on a return trip to the

5th Circuit), Texas at one point floated a pork ban as a solution, which only

served to show that they didn't understand how kashrus works.

Eric

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From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu>] On

Behalf Of Ira Lupu [iclupu at law.gwu.edu<mailto:iclupu at law.gwu.edu>]

Sent: Thursday, April 12, 2012 10:39 AM

To: Law & Religion issues for Law Academics

Subject: Re: Court upholds prison no-pork policy against EstablishmentClause

challenge

I think that at least part of the objections in Europe to serving only halal

meat in some restaurants involves objections to methods of halal animal

slaughter which (like kosher slaughter) may not be consistent with European

standards for humane treatment of animals in their use as food.  "Halal only"

means all diners are "complicit" in the that particular  slaughtering process.

On Wed, Apr 11, 2012 at 11:08 PM, Friedman, Howard M. <HOWARD.FRIEDMAN at utoledo.edu<mailto:HOWARD.FRIEDMAN at utoledo.edu><mailto:HOWARD.FRIEDMAN at utoledo.edu<mailto:HOWARD.FRIEDMAN at utoledo.edu?>>>

wrote:

It is interesting to compare reactions in Europe to similar situations. In 2010,

French politicians strongly criticized a restaurant chain that decided to serve

only halal meat in 8 of its restaurants with a large Muslim clientele.

Agriculture Minister Bruno Le Maire said: "When they remove all the pork from a

restaurant open to the public, I think they fall into communalism, which is

against the principles and the spirit of the French republic."

See: http://religionclause.blogspot.com/2010/02/french-politicians-criticize-restaurant.html

In 2007 in Britain, a primary school in Kingsgate attempted to accommodate

religious needs of its growing Muslim student body by serving only Halal meat in

its lunch menus. A number of parents objected, arguing that the school was

forcing their children to to conform to "someone else's culture."

See http://religionclause.blogspot.com/2007/02/british-parents-protest-halal-menus-in.html

Howard Friedman

messages to others.

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