I Can Haz Cheezburger?

Those of you following the blog will have noticed that none of my favorite treat foods include meat. This is because while Human Female is a vegetarian and a sucker, Human Male is neither.

I find this inherently unfair. I am a cat. I think I have a right to all of the Humans' food, including chicken, hamburger, and I've heard rumors of something called tuna. In fact, I'm just going to say it: meat eating is part of my religion. First Amendment baby!

Snickering, are you? Is that because you don't believe my religious beliefs, or because you don't think animals have rights in the courts?

Do I ever have the case for you, and it is Jones v. Butz. 374 F.Supp. 1284 (S.D.N.Y. 1974). In 1958, Congress passed the Humane Methods of Livestock Slaughter Act (hereinafter “Humane Slaughter Act.”). 7 U.S.C. §§ 1901-1906 (2011), Joyce Tischler, The History of Animal Law, Part I (1972-1987), 1 Stanford Journal of Animal Law and Policy 4 (2008). Congress intended that the law would enforce “the policy of the United States that the slaughtering of livestock and the handling of livestock in connection with slaughter...be carried out only by humane methods.” 7 U.S.C. § 1901 (2011). To that end, the Humane Slaughter Act provided that livestock be “rendered insensible to pain” prior to being “shackled, hoisted, thrown, cast, or cut” or that it be slaughtered “in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument and handling in connection with such slaughter.” 7 U.S.C. § 1902 (2011).

A note about that second option. The process described is that complying with Jewish kashrut laws, what is generally termed “Kosher.” The Humane Slaughter Act was passed very recently after the Holocaust, and the Jewish community heavily petitioned Congress to remember that “one of the first laws passed by the Nazis was a ban on kosher slaughter.” Joyce Tischler, The History of Animal Law, Part I (1972-1987), 1 Stanford Journal of Animal Law and Policy 6 (2008). Animal rights activists, on the other hand, believed that an exception allowing Kosher slaughter permitted an inhumane process, but didn't think that Congress would pass the bill without it. Id.

By the 1970s, a varied group of plaintiffs believed the time had come to challenge this exception to the Humane Slaughter Act. The plaintiffs included “Jewish, non-Jewish, and Atheist vegetarians, meat eaters, consumers, and tax payers.” Id. It also included “all livestock animals now and hereafter awaiting slaughter in the United States,” through what's called a “next friend and guardian,” essentially someone who represents the interests of those who cannot represent themselves in the courts. This group of plaintiffs represents the varied motivations behind the challenge; it was not just about animal rights. In fact, the legal challenges to the Act centered on an alleged violation of the First Amendment to the Constitution.

The first two clauses of the First Amendment protect the freedom of religion in the United States: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” U.S. Const. amend. I. Legal scholars refer to these two clauses as the Establishment Clause and the Free Exercise Clause, respectively. On their faces, these two clauses appear pretty clear: Congress can't establish a state religion, or prevent anyone from practicing his or her religion. The Jones case, however, reflects the constitutional dilemma caused when Congress tries to pass a law that actively avoids entanglement in religion.

The plaintiffs' Establishment Clause argument goes something like this: Congress unconstitutionally protected one particular religion, namely the Jewish religion, by inserting elements of kashrut law into the Humane Slaughter Act. The Court uses what's called the “Lemon test” (after the holding in Lemon v. Kurtzman, 403 U.S. 602 (1971)) to determine when there has been a violation of the Establishment Clause. Simply stated, the three part test is as follows: “[f]irst, the statute must serve a secular legislative purpose. Second, it must have a “primary effect” that neither advances nor inhibits religion. And third, the State and its administration must avoid excessive entanglement with religion.” Paul Brest et al, Processes of Constitutional Decisionmaking: Cases and Materials, Fourth Edition, Aspen Publishers, 1480 (2000). Really, it's enough to make me want to give up writing here and just go chase a lemon out of the fruit bowl in the kitchen. (So much fun to chase, so disgusting to sniff). But, the Jones Court cut right through the test and held that there was no violation of the establishment clause because Congress had already determined that kosher slaughter was inherently humane. 374 F.Supp.at 1291. The law was secular because it simply defined an alternate mode of humane slaughter, that just happened to be that used in Jewish ritual; “its coincidence with a ritual procedure under Jewish religious law does not undercut its validity or propriety.” Id. at 1292.

The Court similarly cut through the Plaintiff's Free Exersise argument. The plaintiffs alleged that due to the Humane Slaughter Act, they could never know if the meat they ate was slaughtered “humanely” or under the Kosher exception (which they argued was not humane). Id. At 1923-4. The Court disagreed, holding that “ethical principals against eating meat resulting from ritual slaughter” did not rise to the level of a religious belief that would be protected by the Free Exercise clause. Id. At 1294.

I just threw about two weeks of law school Con. Law at you, so stay with me here, and let's back up a bit. Congress tries to pass a law codifying the stated policy of prohibiting inhumane slaughter of livestock. They hold hearings to determine, from experts, including experts on kashrut law, what exactly constitutes humane slaughter. Congress, having been satisfied that Kosher slaughter is inherently humane, includes it as a provision in the Act, and therefore, the Court decides it's a second humane option, and not an exception.

Having done away with the First Amendment arguments, the Court finds for the defendants, and the law remains in effect. However, the Court never addressed one particular group within the plaintiff class: the livestock.

I'm imagining here cows lining the aisles of the courthouse, but of course, if there are no litter-box facilities, there are certainly no manure removal systems in the court. Cows can't go into court.

Which is not to say that cows have no rights. They do. All the states have laws protecting animals from cruelty. Margaret C. Jasper, Oceana's Law for the Layperson, Animal Rights law, Second Edition, Oceana Publications, Inc. 7 (2002). The Jones Court didn't throw out the livestock from the lawsuit, it just sort of, didn't really address them or their rights. Presumably, having held that Congress was satisfied that the law provided only for humane slaughter, the Court decided that the livestock no longer had a valid challenge. The livestock's challenge was against being inhumanely slaughtered.

Critics have attacked the Humane Slaughter Act and the Jones holding for not adequately addressing the rights of the animals involved. (Look, I'm no cow, but I've gotta think that I'd rather not be slaughtered at all, but no one asked me). These critics note that the policy behind the Humane Slaughter Act is all about humans, and has nothing to do with animals, “reducing injuries to animals is cost-effective because it means that more meat will pass USDA scrutiny...[and] there is a reduction in the risk of injury to employees by anxious and distressed animals” among other benefits. Margaret C. Jasper, Oceana's Law for the Layperson, Animal Rights law, Second Edition, Oceana Publications, Inc. 16 (2002). There is also some evidence that Kosher slaughter is-- less than humane. For example, one visitor to a slaughterhouse reported “one instance in which the steer's artery was not properly cut; thus the meat from this steer could not be considered “kosher.” The steer was moved off the kill floor, still hanging from the chain, and left to lose consciousness more slowly.” Joyce Tischler, The History of Animal Law, Part I (1972-1987), 1 Stanford Journal of Animal Law and Policy 5, footnote 17 (2008), citing Mark Rowlands, Animals Like Us 115 (2002).

The Jones case raises important constitutional questions. The plaintiffs in Jones were criticized for being “anti-Semitic” for challenging the Act. Id. at 6. The actions of the Nazis illustrate the need for religious freedom, but also an element of religious protection. Does the First Amendment allow for specific protection, or must congress avoid all religious questions completely? If animals have rights, are they inherently secondary to all human rights, in a legal context?

Having sat through a pretty dense constitutional argument, and more detail into steer slaughtering than I'd like to have given, I think you deserve a reward. For those of you not familiar with the “I can haz cheeseburger” meme, this link should explain it. So here you go, from the cat of a Jewish vegetarian, to you: