THE INTERSECTION BETWEEN ANIMAL-PROTECTION EFFORTS AND THE FREE EXERCISE CLAUSE.

AuthorPinkerton, Ginger

"There is something so very dreadful, so Satanic, in tormenting those who have never harmed us, who cannot defend themselves, who are utterly in our power." (1)

CONTENTS INTRODUCTION I. RELIGIOUS USE OF ANIMALS AND ANIMAL PRODUCTS II. FEDERAL ANIMAL-WELFARE LEGISLATION III. ANIMAL PROTECTION EFFORTS IV. HISTORICAL PROGRESSION OF FREE-EXERCISE JURISPRUDENCE A. Employment Division v. Smith B. Church of the Lukumi Babalu Aye v. City of Hialeah C. Challenging Smith--RFRA and RLUIPA V. RECENT DEVELOPMENTS IN FREE-EXERCISE JURISPRUDENCE VI. NEW FREE-EXERCISE JURISPRUDENCE'S INFLUENCE ON ANIMAL PROTECTION LEGISLATIVE EFFORTS CONCLUSION INTRODUCTION

Deep in the largely untouched Siberian wilderness, a wild sable bounds through the snow under cover of cedar and fir trees. The small creature, barely a foot long, has just emerged from its den buried within the forest floor. (2) Its fur, glistening in patches of sunlight through the trees, is highly sought after in the fur market and considered a "luxury item." (3) For this, the small animal has been called a "jewel, ... superlative in every respect." (4)

At the sudden sight of hunting dogs, the sable freezes in fear. Within moments, the frozen animal is shot, with a hunter aiming intentionally--not necessarily to minimize the sable's pain, but rather to avoid damaging the animal's pelt. In life highly energetic and quick, the sable now lies lifeless on the forest floor. It will soon be skinned of its pelt, (5) and the pelt exported internationally for use in various garments, including the shtreimel, worn by Hasidic Jewish men. (6)

The welfare of religiously used animals in the United States is sorely unprotected as a result of First Amendment limitations. Further, the current progression of Free Exercise Clause jurisprudence does not bode well for broadening these protections--protections which are already received by secularly exploited animals but which are not extended to their religiously exploited counterparts. This Comment will discuss examples of religious uses of animals and animal products in the United States. It will then discuss some animal-protection legislative efforts and how those efforts are forced to coexist with the limitations of the Free Exercise Clause. The result of this--animal-protection legislation with exemptions for religious and spiritual uses of animals--leaves animals severely unprotected from exploitation that would, if secular, be more stringently regulated. Animals used for religious purposes are, consequently, among the most vulnerable groups of animals in the United States.

This Comment will discuss the progression of what it has meant to discriminate against religious exercise and the current state of Free Exercise jurisprudence, focusing on Employment Division v. Smith (7) and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeahl Attention will then be paid to more recent free-exercise developments, including the enactments of the Religious Freedom Restoration Act of 1993 (RFRA) (9) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) (10) and the decisions of Roman Catholic Diocese v. Cuomo, (11) Tandon v. Newsom, (12) Fulton v. City of Philadelphia, (13) and others. Finally, this Comment will address the question of what impact, if any, those recent free-exercise developments will have on continued animal-protection-legislation efforts within the context of religious uses of animals and animal products.

  1. RELIGIOUS USE OF ANIMALS AND ANIMAL PRODUCTS

    Throughout the United States and for centuries, various religious groups have exploited animals and animal products for ceremonies and rituals, sacrifices, garments, and religious practice generally. Judaism and Islam practice specific slaughter methods--kosher (14) and halal, (15) respectively--which differ from conventional, secular slaughter both in terms of process and in terms of the degree of scrutiny they receive under the law. Some religious groups, such as Santeria, practice ritual or ceremonial animal sacrifice. (16) A minority of Pentecostal Christians practice snake handling as a means of demonstrating their faith, opening themselves up fully to the risk of venomous snake bites in small congregations in Appalachia. (17) Some orthodox religious groups utilize animal fur in headwear and other traditional religious garments. (18) These are just some of the various forms of animal exploitation in religion. This Comment will address those given examples because of their prominence and prevalence, but of course this list is not exhaustive.

    This Comment will begin its discussion of the various religious uses of animals in the United States with that of kosher slaughter, which is perhaps one of the more well-known examples of religious practice involving animals. Kosher slaughter is a fitting place to begin to demonstrate the widespread religious use of animals, since "[t]he modern American kosher industry represents one of the most visible traditional religious systems of dietary practice in the West." (19)

    According to the Jewish faith, keeping kosher "produce[s] a heightened sensitivity to Hashem's [God's] creations" and "remind[s] the Jew of some of the ideals of 'kedusha' [holiness]...." (20) The word "kosher" itself means "untainted, ... fit, approved, or valid" in Hebrew. (21) Kosher restrictions affect not only slaughter, but rather all stages of food production and consumption. (22) However, for purposes of this discussion, this Comment will focus on the kosher slaughter process. The process of kosher slaughter--or "shechita" in biblical Hebrew (23)--generally involves a quick incision to sever the major structures and vessels of the animal's throat--specifically, the trachea, esophagus, carotid arteries, and jugular veins. (24) The process is performed by a trained slaughterer called a "shochet." (25)

    However, kosher-slaughter methods are not entirely uniform. For example, some shochets do perform pre-slaughter stunning of animals, while others refuse to do so, out of concern that the practice may not comply with kashrut (the Jewish dietary laws). (26) Some rabbis have expressly prohibited such pre-slaughter stunning, believing that the stunned animals would not meet Jewish slaughter requirements. (27) It is said by some that pre-slaughter stunning renders the animal non-kosher because "an animal intended for food must be healthy and uninjured at the time of slaughter" in order to be kosher. (28) Ideally, and according to proponents of kosher slaughter, the incision procedure is meant to result in immediate loss of consciousness in the animal. (29) It is based on this assumption and principle that the kosher slaughter method is considered "humane" under federal slaughter legislation. (30) But the reality is that immediate loss of consciousness is not always achieved. (31)

    In 2004, controversy arose after a People for the Ethical Treatment of Animals (PETA) investigator exposed particularly inhumane slaughter methods in an Agriprocessors plant in Iowa. (32) The plant was formerly the largest kosher meatpacking plant in the United States. (33) Footage from inside the plant revealed slaughter involving the cutting and tearing of animals' tracheas whilst the animals were inverted, after which the procedure was followed by extended periods of consciousness. (34) Agriprocessors' methods consistently left animals conscious for up to three minutes following the slitting of their throats. (35) As if that were not enough, video also showed these animals subsequently being prodded in the faces with electric rods. (36) The last several minutes of these animals' lives were spent in an unspeakable, harrowing state--throats slit, still alive, still conscious, still feeling--until they finally succumbed to death. (37)

    Based on various witnesses' testimony, it is believed that Agriprocessors had maintained this process of cutting the tracheas and esophagi out of conscious animals for at least six years. (38) Despite this, the U.S. Department of Agriculture (USDA) ultimately never prosecuted Agriprocessors for what it conceded constituted violation of federal slaughter law. (39)

    Islam, like Judaism, involves specific slaughter practices. This is a part of the overall practice of halal. Similar to kosher practice, Islamic law dictates how halal animals are to be cared for and eventually slaughtered. (40) Halal means "permissible" in Arabic. (41) Islamic law "requires [that] the animal be dispatched of quickly with a single cut to the neck ...," (42) The incision severs the jugular vein, carotid artery, and windpipe, and all blood is then drained from the animal. (43) As required for kosher slaughter, the "[a]nimals must be alive and healthy at the time of the slaughter" in order to be halal compliant. (44)

    In modern-day halal-slaughter practice, pre-slaughter stunning is utilized in most American halal slaughterhouses. (45) However, as is the case with kosher slaughter, this practice of pre-slaughter stunning is accepted by some Islamic schools of thought and forbidden by others. (46) Unlike kosher slaughter, however, halal slaughter is not performed by extensively trained designated religious slaughterers. (47)

    On the whole, animals slaughtered pursuant to kosher and halal methods have significantly less protection under slaughter law than secularly slaughtered animals. (48) The slaughter of these animals exists in a sort of bubble; a darker, more covert space on which the eyes of the law do not linger. (49)

    Some religious groups also practice ritual or ceremonial animal sacrifice. Among them is Santeria, the religious group at issue in Church of the Lukumi Babalu Aye v. City of Hialeah, (50) a case this Comment discusses further in Part IV. Santeria is a religion fused from African, Cuban, and Roman Catholic influences. (51) "[O]ne of the principal forms of devotion [in Santeria] is animal sacrifice." (52) Sacrifices are performed on various...

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