On December 17, the grand chamber of the Court of Justice of the European Union ruled in favor of the regional governments of the Flemish and Walloon regions of Belgium, finding that their ban against shechitah without stunning was legal.
Many commentators believe the court erred. Attorneys Nat Lewin and Mark Goldfeder blamed the defense for not disputing the court’s basic assumption that stunning is more humane than shechitah. Rabbi Nathan Slifkin argues that it’s disingenuous for the court to oppose shechitah in a jurisdiction that permits factory farming, hunting, and medical experimentation on lab animals. He also argues that religious freedom should supersede consideration of animals suffering.
All these are cogent points, but they fundamentally disregard the framework in which the court functions. The Court of Justice of the EU does not engage in fact-finding. That’s the job of the lower courts.
In this case, the Court of Justice was called upon solely to interpret an EU law from 2009 on protecting animals (in light of the Charter of Fundamental Rights of the European Union) in order to rule on whether a 2017 Flemish law prohibiting slaughter without prior stunning was legal (not whether it was wise or moral).
That said, the court’s decision was surprising even within the narrow confines within which the court operates, as Shimon Cohen of Shechitah UK has argued. First, it goes against a recent statement by the Advocate General of the EU that bans on shechitah would be illegal. Second, the court wrongfully created a hierarchy of law, placing animal rights above religious freedom. Third, the court took upon itself to interpret religious law and opined that Jews may rely on opinions allowing certain kinds of stunning even though adjudicating religious law is obviously not within its prerogative.
Although fact-finding is not the court’s job, it still could have used the existing vast body of evidence – including, for example, the 1974 U.S. federal court judgment finding shechitah humane – to conclude that there is enough scientific and moral foundation for EU member states to give faith communities the benefit of the doubt and not impinge upon their religious freedoms.
The court argued that religious Jews can always import meat from other EU countries. But what if all EU member states move to prohibit shechitah, G-d forbid? Will the court then reverse its decision? What will the court say if the only countries where shechitah is legal are those with hardly any slaughtering industry, say Malta and Luxembourg?
Finally, two dangerous currents of thought underpin the court’s decision. One is that animal rights ought to take primacy over freedom of religion. The other is that religious freedom is the right to believe and worship as opposed to the freedom to act in accordance with one’s conscience.
For over a millennia, European Christians have regarded Jews as primitive, rejected by G-d, and following 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 retained its profoundly rooted prejudices against Jews and Judaism. When European Jews were being emancipated, governments throughout Europe tried to condition emancipation on Jews becoming less Jewish. It was somehow easier to stomach them having individual rights than to recognize their moral and ethical claims as valid.
The dark cloud of anti-Judaism from the past continues to plague Western culture, and this court decision is a result of it. I do not impute anti-Semitism to the justices of the court; they surely tried to arrive at the most reasonable decision they could 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 biases.
This reality has consequences for other matter of religion and state, and the best way to defend the future of shechitah and 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 their Judaism freely and respectfully should promote U.S.-style freedom of religion in Europe and meet with the Belgian ambassador on this matter.
Freedom of religion was essential in bringing about European peace, starting with the Peace of Westphalia in 1648, and the establishment of the United States of America. To undermine 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 the West.