January 8, 2021
Imagine the opportunities for amusement if we gave popular names to legal cases rather than just referring to them by the names of the parties to the case, like Smith v. Jones. There are some old examples of this, including the Supreme Court’s “sick chicken case.”
The case is as intriguing as its title would suggest. It arose out of the New Deal efforts to implement broad new economic regulations, in this instance a detailed series of federal rules about numbers of employees, work hours, wages, etc., in New York. It also highlights that broad religious freedom protections are necessary to ensure that minority faiths are treated equally before the law.
As described in Amity Shlaes’ The Forgotten Man, among those prosecuted under the rules were Joseph, Martin, Alex and Aaron Schechter, brothers who owned a business that slaughtered poultry and then sold to local butchers. The Schechter brothers appealed their conviction to the Supreme Court, which found in their favor, ruling that Congress could not delegate lawmaking authority to the president and that the federal government lacked authority to regulate purely local business.
There was an important subtext to these facts. Though the purported purpose of the regulations was to promote public health and the public interest, commentators have noted that “the government selectively enforced this Act against businesses engaging in live-butchering,” a business which catered primarily to minority groups. “80 percent of these chickens were sold to Jewish families, the rest to African Americans, Chinese, and Italian residents.” The Schechter brothers were Jewish. As a legal brief from Muslim groups points out: “The government succeeded in its goal [of portraying its regulation as a public health measure] by scapegoating members of a minority religion.”
Another brief, from Jewish and Muslim legal scholars, notes that religious minorities are at increased risk of having their religious practices infringed by laws made by those unfamiliar with their religious practices. One example also involves the slaughter of animals: “Animal rights activists routinely sue” Jews who interpret “an atonement ritual conducted every year on the eve of Yom Kippur … to require the ceremonial use and slaughter of chickens.”
Continuing this theme, the Supreme Court in 1992 struck down a municipal law in Florida against ritual slaughter of chickens since the law was targeted at the practices of a minority religious group.
Contrast all of this with a decision last month from the Court of Justice of the European Union. In 2017, a Belgian regional government passed a law prohibiting “animals from being slaughtered without prior stunning, including in the case of slaughter prescribed by a religious rite.” Jewish and Muslim groups challenged the law, arguing that “in not allowing Jewish and Muslim believers to obtain meat from animals slaughtered in accordance with their religious precepts,” the law “prevents believers from practising their religion.”
The court recognized that this regulation “entails a limitation on the exercise of the right of those [Jewish and Muslim] believers to the freedom to manifest their religion.” Nevertheless, the court approved the prohibition because it found the rule “appropriate for achieving the objective of promoting animal welfare,” that it was based on “scientific consensus” on painless ways of killing animals, and that it reflects “an evolving societal and legislative context, which is characterised by an increasing awareness of the issue of animal welfare.”
The court suggested that Jews and Muslims could still get meat from other countries without such restrictions. It was not troubled that the law made exceptions for recreational hunting and fishing, where animals could be killed without their being stunned.
In our overheated political climate, some voices are critical of the Supreme Court for trying to vindicate constitutional protections of religious freedom in the context of the pandemic. The European example, though, illustrates the vulnerability of minority religious groups when courts abdicate that responsibility. The value of constitutional protections is highest when they are necessary to protect those who would not be protected in the normal political process.
The basic aim of the Equality Act would be to add two new categories – sexual orientation and gender identity – to the protections of these earlier laws. Isn’t this already the law, though? The answer is … sort of.
Free discussion is key to a functioning republic. And free discussion is often enabled and disseminated through media, so long as freedom of the press is alive and well.
We believe this is an ideal approach to implementing these important measures as it would do so without unnecessarily dictating specifics to the Board of Higher Education or the state’s institutions of higher education.