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THE REGULATION OF KOSHER SLAUGHTER IN THE
UNITED STATES: HOW TO SUPPLEMENT RELIGIOUS
LAW SO AS TO ENSURE THE HUMANE
TREATMENT OF ANIMALS
By
Melissa Lewis*
It is often argued that one of the most humane methods of killing an animal
is through the performance of kosher slaughter. Indeed, the Humane Meth-
ods of Livestock Slaughter Act (HMLSA) of 1978 goes so far as to define
kosher slaughter, and handling in connection with such slaughter, as hu-
mane, and consequently fails to provide any regulation over this method of
killing. It is thus concerning that a number of kosher slaughterhouses have,
in recent years, been discovered to be using blatantly inhumane practices,
which the relevant religious authorities have insisted are completely kosher.
This Article examines the Jewish law concerning kosher slaughter and asks
how it is possible for a slaughter that has been performed in an inhumane
fashion to remain kosher. The answer, it concludes, is that the religious
rules provide little guidance on the handling of animals in connection with
slaughter. There thus exists a need for either the religious authorities or the
law to supplement the existing religious rules with further requirements
aimed at ensuring humane-slaughter practices. After analyzing both com-
parative law on this issue and the relevant First Amendment considera-
tions, this Article argues that there is a need for Congress to remove the
HMLSA’s current exemption of handling in connection with kosher slaugh-
ter and for regulations to be passed governing this issue. It makes sugges-
tions as to how such regulations could provide for more humane-slaughter
practices in a manner that fails to offend either the Free Exercise Clause or
the Establishment Clause of the First Amendment.
*
Melissa Lewis 2010. Melissa Lewis obtained a LLB,
summa cum laude
, and
LLM with distinction from Rhodes University, South Africa, and also worked at Rhodes
as a law lecturer. She obtained a LLM,
magna cum laude
, in Environmental and Natu-
ral Resources Law from Lewis & Clark Law School. Currently, the author is a visiting
scholar at the University of Toyama, Japan, and also sits as the expert in environmen-
tal law on the Technical Committee of the African-Eurasian Migratory Waterbird
Agreement (AEWA). The author would like to thank Professor Joe Regenstein and
Rabbi Adam Frank for the information and opinions that they were kind enough to offer
regarding the practice and regulation of kosher slaughter in the United States and
Israel, respectively. She would also like to thank Ms. Rachelle Adam and Mr. Peter Juul
Agergaard for their assistance in translating texts from Hebrew and Danish.
[259]
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260
ANIMAL LAW
[Vol. 16:259
I. INTRODUCTION ......................................... 260
R
II. WHAT IS THE PROBLEM WITH KOSHER SLAUGHTER? . 263
R
A. Jewish Law, Animal Welfare, and the Potential for
Kosher Slaughter to Be Performed Humanely
............ 263
R
B. The Laws of
Shechita
—Where Are Things Going
Wrong?
............................................... 264
R
III. WHO FILLS THE GAPS? ................................. 269
R
A. Comparative Law
..................................... 269
R
B. The Approach of the United States
...................... 272
R
IV. HOW SHOULD CONGRESS DEAL WITH THE KOSHER
SLAUGHTER ISSUE? .................................... 274
R
A. The Interplay between Kosher Slaughter Regulation and
the First Amendment
.................................. 275
R
B. The Complete Prohibition of
Shechita ................... 276
R
C. Revisiting
Jones v. Butz
: The Constitutionality of the
Current Religious-Slaughter Exemption
................. 277
R
D. Finding a Constitutionally Permissible Middle Ground
. . . 279
R
E. Suggested Changes to the Current Law
................. 280
R
F. The Impact That Changes in United States Law Are
Likely to Have on the South American Problem
.......... 283
R
V. CONCLUSION ........................................... 284
R
I. INTRODUCTION
[F]or as it has become necessary to eat the flesh of ani-
mals, it was intended by [the laws governing kosher
slaughter] to ensure an easy death and to effect it by a
suitable means . . . the Law enjoins that the death of the
animal should be the easiest.
1
Throughout their lives, many Jews are instilled with the idea that
a kosher slaughter necessarily equates to a humane slaughter. In
2004, however, an undercover investigation into the kosher slaughter
industry by People for the Ethical Treatment of Animals (PETA)
2
caused the first in a series of ripples to spread throughout the Jewish
community, upsetting the acceptance that “kosher” means humane.
The investigation’s focus was the largest glatt kosher
3
slaughterhouse
in the world:
4
AgriProcessors, Inc., located in Postville, Iowa. The
scenes captured on video during the investigation in no way resemble
1
Pablo Lerner & Alfredo Mordechai Rabello,
The Prohibition of Ritual Slaughter-
ing (Kosher Shechita and Halal) and Freedom of Religion of Minorities
, 22 J.L. & Relig-
ion 1, 10 (2006) (quoting Moses Maimonides,
The Guide for the Perplexed
371 (M.
Friedlander trans., Dover Publications 1956)).
2
PETA Undercover: Sacred and Federal Laws Violated at Iowa Slaughterhouse,
What the Investigator Saw
, http://www.goveg.com/feat/agriprocessors/investigator.asp
(last accessed Mar. 13, 2010).
3
Although technically the term “glatt kosher” describes meat from animals with
“smooth or defect-free lungs,” in modern times the term is informally used to refer to a
stricter standard of kosher law. Giora Shimoni,
What is Glatt Kosher?
, http://
kosherfood.about.com/od/kosherbasics/f/glatt.htm (last accessed Mar. 13, 2010).
4
Aaron Gross,
When Kosher Isn’t Kosher
, 20 Tikkun 52, 52 (2005).
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KOSHER SLAUGHTER IN THE UNITED STATES
261
those usually envisaged by Jews when thinking of the sacred slaughter
practices prescribed by their religion. Having been rotated upside
down with the use of an inversion pen, cattle are shown having their
throats slit and their tracheas and esophagi torn out with a metal
hook.
5
They are then hurled onto a cement floor before having one leg
shackled so as to be hoisted to the bleed rail.
6
Many of the animals
caught on video remain conscious throughout this process, struggling
for up to three minutes before eventually bleeding to death.
7
Perhaps
the most disturbing aspect of the AgriProcessors debacle was not, how-
ever, the gross abuse to which the animals in the establishment were
subjected, but rather the stance adopted by both the Orthodox Union
(OU)
8
and the Israeli Rabbinate
9
in the wake of the investigation.
Having examined the PETA footage, their conclusion was simple: Ab-
solutely nothing depicted in the video rendered the slaughters non-
kosher.
10
More recently, the spotlight has shifted to the largest offshore sup-
pliers of kosher meat for American consumers: slaughterhouses in
South America.
11
The majority of South American establishments em-
ploy the outdated “shackle and hoist” technique—where fully con-
scious animals are suspended from a chain shackled around one back
leg—to restrain livestock during slaughter.
12
There are a number of
5
Michelle Hodkin, Student Author,
When Ritual Slaughter Isn’t Kosher: An Exami-
nation of Shechita and the Humane Methods of Slaughter Act
, 1 J. Animal L. 129, 134
(2005).
6
Id.
7
Id.
at 134.
See also
PETA Undercover: Sacred and Federal Laws Violated at Iowa
Slaughterhouse,
supra
n. 2 (“Many cows were still alive and conscious when they came
out of the tube and were slammed onto the floor.”).
8
The Orthodox Union is the kosher-certification agency that oversees
AgriProcessors.
9
Adam J. Frank,
Kashrut in the Industrial Age
, The Jerusalem Post 17 (Feb. 3,
2005) (available at http://masorti.org/media/02032005_jp2.php (last accessed Apr. 28,
2010)).
10
While asserting the importance of avoiding pain to animals during the slaughter
process, the rabbis of the OU maintained that “nothing in any . . . post-shechita ‘second
cut’ or excision in any way undermines the validity of the shechita [kosher slaughter]
itself or the kosher status of the slaughtered animal’s meat.” They similarly stressed
that, even where an animal is able to stand up and walk around after the throat cut,
this does “not invalidate the shechita if the trachea and esophagus were severed in the
shechita cut.” The Orthodox Union,
Statement of Rabbis and Certifying Agencies on Re-
cent Publicity on Kosher Slaughter
, http://www.ou.org/other/5765/shechita2-65.htm
(last accessed Mar. 13, 2010).
11
Adam Frank,
Kosher Slaughter: Should Shackling and Hoisting Be Permitted
?
Israel’s Kosher Meat and the South American Problem
, http://www.chai-online.org/en/
compassion/judaism/heritage_judaism_shackle.htm#south_american_problem (Feb.
2008) (last accessed Mar. 13, 2010) [hereinafter
South American Problem
]; Adam J.
Frank,
Why Do the OU and Israel’s Rabbinate Condone Barbarity?
http://www.chai-on-
line.org/en/compassion/judaism/heritage_judaism_shackle.htm;
select
Jerusalem Post,
14 February 2008 (last accessed Apr. 28, 2010) [hereinafter
Barbarity
].
12
Nathaniel Popper,
Widespread Slaughter Method Scrutinized for Alleged Cruelty
,
The Jewish Daily Forward, http://www.forward.com/articles/12666 (Feb. 13, 2008) (last
accessed Mar. 13, 2010).
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262
ANIMAL LAW
[Vol. 16:259
Jewish groups and individuals who have been concerned about this is-
sue for some time.
13
However, the matter was truly only brought to a
head by another PETA investigation, this time into an establishment
in Uruguay. Released in early 2008, the investigation’s video footage
14
again sent a shockwave throughout the Jewish community, and again,
the response of Israel’s chief rabbis and the United States kosher-certi-
fication agencies was that the cruel nature of the practices used by the
establishment did nothing to affect the kosher status of its meat.
15
The investigations described above and the responses that they
generated from the relevant religious authorities have made one fact
very clear: Jewish rules governing kosher slaughter (
shechita
)
16
are
not, on their own, sufficient to protect animals from inhumane treat-
ment. In light of this basic truth, this Article critically examines cur-
rent regulation of kosher slaughter in the United States and suggests
changes in the law that could provide greater protection for animals
killed to supply kosher meat. Part II explains that although Jewish
laws concerning kosher slaughter were originally intended to promote
animal welfare,
17
and although it may be
possible
to perform
shechita
humanely, the religious rules governing this practice are not, on their
own, sufficient to ensure that animals experience a swift and painless
death. This is essentially because the laws of
shechita
fail to regulate
the handling of animals in connection with slaughter. With this prob-
lem in mind, Part III contrasts the approach followed in some foreign
jurisdictions, where secular laws supplement the laws of
shechita
,
with the course adopted by the United States, where the regulation of
kosher slaughter is left almost entirely to religious authorities. Having
concluded that the latter approach has been ineffective in ensuring
that livestock are humanely slaughtered, Part IV examines the consti-
tutional and practical implications of each of the regulatory options
available to Congress. It argues that the most appropriate means of
handling
shechita
is for the law to continue to allow the practice, but to
regulate those aspects of the slaughter process upon which religious
law is silent. Part IV proceeds to make recommendations about the
type of regulations that may be employed and to comment on the effect
13
See
Elliot N. Dorff & Joel Roth,
Shackling and Hoisting
, http://www.rabbinical
assembly.org/teshuvot/docs/19912000/dorffroth_shackling.pdf (last accessed Mar. 13,
2010) (the Committee on Jewish Law and Standards of the Rabbinical Assembly taking
a public stance against shackling and hoisting).
14
For a description of the footage, which was filmed in late 2007, see Popper,
Wide-
spread Slaughter Method Scrutinized for Alleged Cruelty
,
supra
n. 12.
15
Frank,
Barbarity
,
supra
n. 11.
16
“Shechita is the Jewish religious and humane method of slaughtering permitted
animals and poultry for food. It is the only method of producing kosher meat and poul-
try allowed by Jewish law.” Chabad.org,
What is Shechita?
http://www.chabad.org/li-
brary/article_cdo/aid/222240/jewish/What-is-Shechita.htm (last accessed Mar. 13,
2010).
17
Id.
(“[T]he rules governing shechita . . . ensure a swift and painless dispatch of the
animal.”).
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KOSHER SLAUGHTER IN THE UNITED STATES
263
that any change in United States law may have on the treatment of
animals in South American slaughterhouses.
II. WHAT IS THE PROBLEM WITH KOSHER SLAUGHTER?
Although many Jews believe that the rules governing
shechita
en-
sure a humane slaughter, PETA’s investigations have demonstrated
that the practices found in kosher slaughterhouses are not always hu-
mane, and that this does not necessarily prevent meat from being re-
garded as kosher. The following section explores whether it is possible
to perform
shechita
in a humane manner, and, after concluding that it
is, examines the Jewish rules for
shechita
in an attempt to determine
why these rules on their own are not enough to ensure a humane
slaughter.
A. Jewish Law, Animal Welfare, and the Potential for Kosher
Slaughter to Be Performed Humanely
The Jewish holy text, the Torah, has been described as “the first
systematic legislation prohibiting cruelty to animals and mandating
their humane treatment.”
18
Indeed, Jewish law (
halakhah
)
19
prescribes numerous rules aimed at ensuring the kind and compas-
sionate treatment of animals by humans.
20
Although their religion en-
joins Jews to exercise mercy in their relations with animals, Jewish
law does permit animal lives to be sacrificed so as to provide humans
with food.
21
In light of this fact, the laws of
shechita
were meant to
ensure that animals killed for food experienced as swift and painless a
death as possible.
22
For practical purposes, the most significant difference between
shechita
and standard slaughter is that in
shechita
, animals are not
stunned prior to the throat cut and thus remain conscious throughout
the process.
23
This fact has led some to question whether it is possible
to perform
shechita
in a humane manner. According to Dr. Temple
Grandin, the leading American scientific expert on kosher slaughter,
the answer to this query is a definite “yes.” In a study involving cattle
restrained in well-designed upright pens, Dr. Grandin observed the
following:
18
Shechita UK,
A Guide to Shechita
4, http://www.shechitauk.org/uploads/tx_re-
sources/A_GUIDE_To_SHECHITA__2009_.pdf (May 2009) (last accessed Mar. 13,
2010).
19
Judaism 101,
Halakhah: Jewish Law
, http://www.jewfaq.org/halakhah.htm (last
accessed Jan. 25, 2010) (“The word ‘halakhah’ is usually translated as ‘Jewish Law.’”).
20
Hodkin,
supra
n. 5, at 136. There is, for example, a general rule directing Jews
not to cause suffering to animals. This is expressed in the Talmudic phrase “
tza’ar
ba’alei chayim
.” Shechita UK,
supra
n. 18.
21
Hodkin,
supra
n. 5, at 136.
22
Id.
at 131.
23
Temple Grandin & Joe M. Regenstein,
Religious Slaughter and Animal Welfare: A
Discussion for Meat Scientists
, http://www.grandin.com/ritual/kosher.slaugh.html (Mar.
1994) (last accessed Feb. 11, 2010).
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ANIMAL LAW
[Vol. 16:259
[T]he animals had little or no reaction to the throat cut. There was a slight
flinch when the blade first touched the throat. This flinch was much less
vigorous than an animal’s reaction to an eartag punch. There was no fur-
ther reaction as the cut proceeded. . . . Some animals . . . were held so
loosely by the head holder and the rear pusher gate that they could have
easily pulled away from the knife. . . . It appears that the animal is not
aware that its throat has been cut.
24
Indeed, the weight of scientific opinion agrees that kosher slaugh-
ter is at least as humane as standard slaughter when performed under
appropriate conditions
25
and is in fact far
more
humane than improp-
erly applied stunning methods.
26
However, while it may be
possible
to
perform
shechita
in a humane manner, the insistence by kosher-certi-
fication agencies and the Israeli Rabbinate that the clearly inhumane
practices of AgriProcessors and South American slaughterhouses sat-
isfy kosher standards suggests that the laws of
shechita
, standing
alone, are insufficient to ensure animal welfare. In determining why
this is so, it is necessary to examine the religious requirements for
shechita
.
B. The Laws of
Shechita
—Where Are Things Going Wrong?
The laws of
shechita
require that slaughter be performed by a
shochet
(a specially trained Jewish male)
27
who must use a
chalef
(a
special knife that is both surgically sharp and perfectly smooth)
28
to
rapidly, and with a continuous motion, sever the frontal structures of
24
Id.
25
Similar observations to those documented by Dr. Grandin have, for example, been
made in an experiment by Danish veterinarian Dr. Flamming Bager.
Id.
; Shechita UK,
supra
n. 18, at 11. The most recent report to oppose this view was produced by the
British Farm Animal Welfare Council (FAWC). Although the report concluded that
slaughter without pre-stunning could not be performed in a humane manner, this con-
clusion was made entirely a priori, without the support of any empirical evidence. The
Council’s reasoning was as follows:
When a very large transverse incision is made across the neck a number of vital
tissues are transected including: skin, muscle, trachea, [esophagus], carotid ar-
teries, jugular veins, major nerve trunks (e.g. vagus and phrenic nerves) plus nu-
merous minor nerves. Such a drastic cut will inevitably trigger a barrage of
sensory information to the brain in a sensible (conscious) animal. We are per-
suaded that such a massive injury would result in very significant pain and dis-
tress in the period before insensibility supervenes.
FAWC,
Report on the Welfare of Farmed Animals at Slaughter or Killing—Part 1: Red
Meat Animals
35, http://www.fawc.org.uk/reports/pb8347.pdf (June 2003) (last accessed
Mar. 13, 2010).
See also
FAWC,
Report on the Welfare of Farmed Animals at Slaughter
or Killing—Part 2: White Meat Animals
, http://www.fawc.org.uk/pdf/report-090528.pdf
(May 2009) (last accessed Mar. 13, 2010).
26
Grandin & Regenstein,
supra
n. 23.
27
In addition to studying the laws of
shechita
, a person who wishes to become a
shochet
must also study animal anatomy and pathology and must be a “God-fearing
person of integrity.” Shechita UK,
supra
n. 18, at 6.
28
Id.
at 3.
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KOSHER SLAUGHTER IN THE UNITED STATES
265
the neck
29
without tearing the flesh or placing undue pressure on the
blade.
30
Since the rules of
shechita
require that animals intended for
food are healthy and uninjured at the time of slaughter, pre-slaughter
stunning is prohibited.
31
Thus, unlike the livestock killed using stan-
dard slaughter methods, animals killed by
shechita
are conscious at
the time of slaughter.
Supporters of
shechita
often argue that the prohibition of pre-
slaughter stunning is insignificant because by causing “an instant
drop in blood pressure in the brain and immediately [resulting] in the
irreversible cessation of consciousness,”
32
the throat cut required by
shechita
has essentially the same effect as stunning. The trouble with
this argument is that, although it is true that animals fall unconscious
after the throat cut, this loss of consciousness is not always as rapid as
one might hope.
33
Cattle and veal calves, for example, occasionally ex-
perience prolonged sensibility that may last for longer than a min-
ute.
34
The treatment of animals prior to loss of consciousness thus
becomes an important welfare issue. However, nothing in the rules for
shechita
provides any direction as to how an animal should be handled
before it becomes unconscious. This makes it possible for establish-
ments to treat conscious animals in an inhumane fashion yet remain
within the bounds of the law of
shechita
. Although the requirements
for kosher slaughter in no way direct that animals be treated in a cruel
manner, the failure of the requirements to regulate the handling of
livestock in connection with slaughter does potentially permit cruel
practices to occur.
The laws of
shechita
are not only silent as to the handling of con-
scious animals after the throat cut but also fail to provide any express
direction on the interrelated issues of how to position and how to re-
strain an animal in preparation for the cut. This is hardly surprising
when one considers the age of these laws. Historically in Israel, and in
the old traditional Jewish method, an animal would be manually re-
strained and lying on its side during the throat cut.
35
It is only in mod-
ern times that this method has been forbidden due to sanitation
concerns,
36
and the design of alternative restraint mechanisms has
29
The frontal structures include the trachea, esophagus, carotid arteries, and jugu-
lar veins.
Id.
at 5.
30
Grandin & Regenstein,
supra
n. 23; Hodkin,
supra
n. 5, at 137–38; Gross,
supra
n.
4, at 52; e-mail from Ari Greenspan, trained
shochet
from Jerusalem, to Melissa Lewis,
Re: Kosher Slaughter Requirements
(Mar. 19, 2008) (copy on file with
Animal Law
)
[hereinafter Greenspan E-mail].
31
Shechita UK,
supra
n. 18, at 8.
32
Id.
at 3.
33
Grandin & Regenstein,
supra
n. 23.
34
Id.
However, Dr. Grandin has observed that when
shechita
is performed under
the correct conditions, most animals will lose consciousness almost immediately.
Id.
35
Jones v. Butz
, 374 F. Supp. 1284, 1290 n. 8 (S.D.N.Y 1974).
36
Id.
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ANIMAL LAW
[Vol. 16:259
thus been necessitated. The ultra-Orthodox movement
37
(to which
Israel’s chief rabbis belong) has taken this change of circumstances
into account and currently mandates that animals be slaughtered in
an inverted position.
38
Although this is not technically necessary in
order for a slaughter to be considered kosher, it is a “stringency” in-
sisted upon by the ultra-Orthodox in an attempt to ensure adherence
to the requirement that undue pressure not be placed upon the knife.
39
The reasoning is that, by insisting that the
shochet
use a downward
cutting motion and that the animal be in a position in which it is una-
ble to press its neck down against the blade, undue pressure will not be
applied.
40
This argument ignores observations that, when cattle “are held
[upright] in a pneumatically powered head restraint which they can
easily move, the animals pull their heads upwards
away
from the knife
during a miscut,”
41
thereby
reducing
pressure on the blade. The argu-
ment has also been rejected by the Jewish Conservative movement’s
Committee on Jewish Law and Standards (CJLS), which has unani-
mously ruled that the slaughtering of animals in an inverted position
violates the Jewish law that prohibits the unnecessary infliction of
pain (
tza’ar ba’alei chayim
).
42
Insofar as restraint methods are concerned, it is significant that
although some forms of restraint subject animals to substantial pain
and stress, other restraint methods have the potential to facilitate a
slaughter as humane as one resulting from non-kosher practices. By
far the worst restraint technique currently available is the shackle-
and-hoist method, in which an animal is hoisted into the air by a chain
shackled around one of its rear legs. Particularly, insofar as large ani-
mals are concerned, this form of restraint produces a tremendous level
of suffering.
43
Apart from the general stress induced by such an
archaic restraint method, serious injuries can result from the shackle-
and-hoist process.
44
This problem, combined with concern for worker
37
The three principal movements within Judaism are: (1) the Orthodox movement,
which regards Jewish law as binding and incapable of change; (2) the Conservative
movement, which believes that Jewish law, while binding, is able to evolve; and (3)
Reform Judaism, which does not regard Jewish law as binding and instead encourages
individuals to decide which laws are religiously meaningful for them. Hodkin,
supra
n.
5, at 130–31.
38
E-mail from Adam J. Frank, rabbi, Congregation Moreshet Yisrael in Jerusalem,
to Melissa Lewis,
Re: Kosher Slaughter
(Mar. 11, 2008) (copy on file with
Animal Law
)
[hereinafter Frank E-mail].
39
Id.
40
Id.
; Greenspan E-mail,
supra
n. 30.
See also
Grandin & Regenstein,
supra
n. 23.
41
Grandin & Regenstein,
supra
n. 23 (emphasis added). Note, however, that an up-
right slaughter may still make it more difficult for a shochet to achieve a perfect cut.
Greenspan E-mail,
supra
n. 30.
42
Dorff & Roth,
supra
n. 13; Frank,
Kashrut
,
supra
n. 9.
43
Dorff & Roth,
supra
n. 13.
44
Id.
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KOSHER SLAUGHTER IN THE UNITED STATES
267
safety,
45
has led to a phasing out of the shackle and hoist of adult cat-
tle in most North American kosher slaughterhouses.
46
However, espe-
cially in small-scale slaughterhouse, little concern is reserved for the
welfare of smaller animals, with many veal calves, sheep, and lamb
still being shackled and hoisted while conscious.
47
Furthermore, the
vast majority of meat being imported from South America still comes
from animals that were slaughtered using this method. This is par-
tially due to the Israeli chief rabbis’ insistence that slaughter be per-
formed upon inverted animals.
48
Since the major market for South
American kosher meat exists in Israel, the chief rabbis have been able
to dictate the standards of meat production in South America.
49
Although it is possible to avoid the shackle and hoist of small ani-
mals by restraining them manually, when large cattle are involved the
only alternative means of achieving an inverted slaughter is through
the use of an inversion (or “casting”) pen.
50
Incidentally, due to its use
of such technology, the only kosher slaughter establishment in the
United States permitted to export meat to Israel is AgriProcessors.
51
Inversion pens rotate animals onto their backs and hold them in this
position during the throat cut.
52
While these pens represent a substan-
tial improvement upon the shackle-and-hoist procedure, they are by no
means problem-free. Since the pen restrains cattle in an unfamiliar
and uncomfortable position, animals tend to resist inversion and will
twist their necks in an attempt to right their heads.
53
The inverted
45
When they are shackled and hoisted, animals become scared and are often violent.
Id.
This results in serious danger to workers in kosher slaughterhouses.
Id.
46
Id.
47
Temple Grandin,
Improving Religious Slaughter Practices in the U.S.
, Anthropol-
ogy of Food 5, http://aof.revues.org/index93.html (May 2006) (last accessed Mar. 13,
2010).
48
Popper,
Widespread Slaughter Method Scrutinized for Alleged Cruelty
,
supra
n.
12.
49
See
Nathaniel Popper,
New Kosher Food Certification May Be Most Detailed in the
Industry
, The Jewish Daily Forward, http://www.forward.com/articles/113750 (Sept. 9,
2009) (last accessed Mar. 13, 2010). Note, however, that the problems inherent in the
shackle-and-hoist technique have been recognized by the Israeli Rabbinate, which has
directed that pressure be placed upon South American establishments to phase out this
restraint method. Press Release, CHAI Online,
Israel’s Chief Rabbis Grant CHAI’s Re-
quest to End Cruel Slaughter Method
(Feb. 19, 2008) (available at http://www.chai-on-
line.org/en/news/press_releases/pr_judaism_shackle2.htm (last accessed Mar. 13, 2010))
(Israeli charity praised the decision of the Chief Rabbis to phase out shackling and
hoisting in Israeli and South American slaughterhouses);
see also
Neta Sela,
Jewish
Slaughter in Danger, Chief Rabbi Tells Reporters
, http://www.ynetnews.com/articles/1,
7340,L-3514610,00.html (Mar. 4, 2008) (last accessed Mar. 13, 2010). This issue is dis-
cussed in greater depth in this Article.
50
Grandin & Regenstein,
supra
n. 23.
51
E-mail from Joe Regenstein, Prof. of Food Science, Cornell University, to Melissa
Lewis,
Re: Questions Regarding Kosher Slaughter
(Nov. 20, 2007) (copy on file with
Animal Law
) [hereinafter Regenstein E-mail]; Frank E-mail,
supra
n. 38.
52
Dorff & Roth,
supra
n. 13. Note that not all casting pens rotate cattle a full 180
°
.
Some, such as the Facomia pen, tilt animals to a 135
°
angle.
Id.
53
Grandin & Regenstein,
supra
n. 23.
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position also causes animals slaughtered using this restraint method
to aspirate blood after the incision.
54
Nonetheless, some casting pen
designs are considered more humane than others. While the old-fash-
ioned Weinberg pen has been documented as inducing stress levels al-
most 300% higher than levels resulting from the use of an upright
pen,
55
the Facomia pen used by AgriProcessors is said to cause less
stress.
56
According to Dr. Joe Regenstein, Dr. Grandin almost gave her
approval to a new Irish inversion pen.
57
Both experts, however, con-
tinue to maintain that the most humane way to restrain livestock dur-
ing slaughter is with the use of an upright restraint system.
58
Upright
restraint can be achieved with the use of a restraint “box” or a con-
veyor restrainer system.
59
Basic upright restraint devices for small
livestock are also easy to construct for use at small-scale plants.
60
When properly designed and operated, upright restraints cause mini-
mal stress.
61
They may also offer the added advantages of improved
bleed out and more rapid onset of unconsciousness.
62
Despite the animal welfare implications that accompany the
choice of a particular restraint technique, the laws of
shechita
them-
selves are silent as to the appropriate manner of restraining an
animal. Indeed, nothing in the requirements for
shechita
so much as
touches upon the way in which animals should be handled before they
lose consciousness. It follows that the laws of
shechita
, on their own,
are insufficient to guarantee that animals experience humane slaugh-
ter. To ensure that humane kosher slaughter is achieved, the rules of
54
Id.
55
Stress levels are determined through the measurement of cortisone (a stress hor-
mone). Dorff & Roth,
supra
n. 13.
56
Grandin & Regenstein,
supra
n. 23.
57
Regenstein E-mail,
supra
n. 51.
58
Grandin & Regenstein,
supra
n. 23.
59
Temple Grandin,
Proper Cattle Restraint for Stunning
, http://www.grandin.com/
humane/restrain.slaughter.html (last accessed Mar. 13, 2010)
.
Currently, two types of
conveyor restraints are available: the V restrainer, which restrains livestock between
two angled conveyors; and the center track system, in which livestock ride upon a mov-
ing conveyor.
Id.
60
See
Spirit of Humane,
Ordering Spirit of Humane Products
, http://www.spiritof
humane.com/order (last accessed Mar. 13, 2010) (Adjustable restraint devices for small-
scale establishments can be ordered for $1,250.).
61
Note, however, that poorly designed upright restraints can be very stressful. An
example is the American Society for the Prevention of Cruelty to Animals (ASPCA) re-
straint box, which applies excessive pressure in restraining the animal. Grandin & Reg-
enstein,
supra
n. 23. Dr. Grandin and Dr. Regenstein recommend that, in order to
ensure a calm and humane slaughter, upright restraint equipment should be fitted with
pressure-limiting devices and properly designed head holders with solid barriers around
the animal’s head to prevent it from viewing distractions. Upright restraints should also
be illuminated to encourage animals to enter and should be engineered so that noise is
reduced and all parts move in a slow, steady motion. Equipment should be used only by
trained operators, and the animal handlers must treat the animals gently and calmly.
Id.
For more detail, see
id.
under the section regarding upright restraint equipment
design.
62
Id.
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KOSHER SLAUGHTER IN THE UNITED STATES
269
shechita
need to be supplemented in some way. A question, however,
arises concerning
who
should be tasked with supplementing these
rules. In other words, who should be given the responsibility of “filling
the gaps” in the Jewish laws governing kosher slaughter?
III. WHO FILLS THE GAPS?
There are essentially two sources from which the humane han-
dling requirements needed to supplement the rules of
shechita
could
emanate: legal authorities or religious ones. This Section begins with a
discussion of foreign jurisdictions that use secular law to regulate ko-
sher slaughter practices. It then contrasts this approach with that
used in the United States, where the regulation of
shechita
is left to
religious bodies that appear to have given little thought to animal wel-
fare issues.
A. Comparative Law
In determining the best way to incorporate humane safeguards
into the practice of
shechita
, guidance can be drawn from the manner
in which this issue is handled by foreign legal systems. The approach
taken by the European Union (EU) and some of its Member States is
particularly instructive in this regard. Within the EU, minimum stan-
dards for the protection of animals at the time of slaughter are cur-
rently enumerated in Council Directive 93/119 of 22 December 1993 on
the Protection of Animals at the Time of Slaughter or Killing, which
requires that animals are spared any “avoidable excitement, pain, or
suffering” during,
inter alia
, restraint and slaughtering.
63
While per-
mitting un-stunned slaughter for religious purposes,
64
the Directive
requires that all bovines killed by religious methods be restrained us-
ing “a mechanical method intended to avoid any pain, suffering or agi-
tation and any injuries or contusions to the animals . . . .”
65
The
shackle and hoist of conscious livestock is also prohibited.
66
EU Mem-
ber States are directed to enact the laws, regulations, and administra-
tive provisions necessary to ensure that slaughter adheres to these
standards.
67
In January 2013, a new Council regulation on the protec-
tion of animals at the time of killing will replace Council Directive 93/
119. One of the most significant ways in which the new regulation will
diverge from the current Directive is that Member States will no
63
Council Directive 1993/119/EC, Protection of Animals at the Time of Slaughter or
Killing, 1993 O.J. (L. 340) 21 (EC) (replacing Council Directive 1974/577/EEC, On the
Stunning of Animals before Slaughter, 1974 O.J. (L. 316) 10 (EEC)).
64
Id
. at § 2.
65
Id.
at Annex B(2). The Directive fails to specify whether the animal should be
restrained in an upright or inverted position.
66
Id.
at § 18.
67
Id.
at 5.
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longer have the option of refusing to exempt religious slaughter from
pre-cut stunning requirements.
68
The various members of the EU have taken diverse approaches to
the regulation of kosher slaughter. For example, Sweden has chosen to
completely prohibit un-stunned slaughter,
69
although after 2013 it will
no longer be able to do so under the new Council regulation. It is far
more common, however, for states to permit
shechita
but subject the
process to legal regulation. This approach is taken by both Denmark
and Britain.
70
The Danish rules on the slaughter and killing of ani-
mals
71
provide that, during religious slaughter, cattle are to be re-
strained in an upright holding pen that has been fitted with
appropriate pressure-limiting devices. The throat cut is to occur as
soon as the animal has been restrained, and immediate post-cut stun-
ning must be performed using a captive bolt gun. The entire process
must occur under veterinary supervision.
72
In Britain, the Welfare of
68
European Parliament Legislative Resolution on the Protection of Animals at the
Time of Killing, A6-0185/2009, http://www.europarl.europa.eu/sides/getDoc.do?type=TA
&language=EN&reference=P6-TA-2009-0369 (May 6, 2009) (last accessed Feb. 12,
2010) [hereinafter A6-0185/2009]. The regulation was proposed by the European Com-
mission in 2008 and was accepted by the European Parliament (EP) through a political
agreement in May 2009.
Id.
The regulation was approved by the Council of the EU in
June 2009. Press Release, 2952nd Agriculture and Fisheries Council, http://www.con-
silium.europa.eu/uedocs/cms_data/docs/pressdata/en/agricult/108682.pdf (June 22–23,
2009) (last accessed Apr. 1, 2010). It will come into effect on January 1, 2013. EUROPA,
The New Regulation in 6 Questions and Answers
, http://ec.europa.eu/food/animal/wel-
fare/slaughter/proposal_6_qanda_en.htm (last accessed Jan. 24, 2010). It will continue
to exempt religious slaughter from pre-cut stunning requirements and will not give
Member States the discretion not to apply this derogation. A6-0185/2009,
supra
at
Amendment 28. The result is that, as of 2013, all EU countries will be required to allow
kosher slaughter. The EP also rejected a proposal by the European Commission that EU
states be prohibited from allowing bovines to be restrained in an inverted position.
Id.
at Amendment 81. That said, the new regulation will include a number of welfare re-
quirements that are not found in the current Directive. These include a requirement
that animals not be restrained until the slaughterer is ready to make the throat cut, as
well as a requirement that no dressing procedure or electrical stimulation be performed
on animals until bleeding has ended, and, in any event, not until the expiry of specified
periods of time which vary for each species.
Id
. at Amendment 44, Amendment 95.
69
Lerner & Rabello,
supra
n. 1, at 14–15. Other countries with bans on
shechita
include Switzerland (which prohibited the practice as far back as 1893), Norway, Liech-
tenstein, and Iceland.
Id.
In 2003, the British FAWC recommended the complete prohi-
bition of slaughter without pre-stunning. FAWC,
Report on the Welfare of Farmed
Animals at Slaughter or Killing—Part 1: Red Meat Animals
,
supra
n. 25, at 36. The
British government rejected this recommendation in March 2004. Hodkin,
supra
n. 5, at
139; Jeff Welty,
Humane Slaughter Laws
, 70 L. & Contemp. Probs. 175, 203–04 (2007).
70
Lerner & Rabello,
supra
n. 1, at 12–13.
71
These rules were published by the Minister of Justice in Declaration 583 of June
6, 2007 (
Bekendtgørelse om slagtning og aflivning af dyr
), https://www.retsinformation.
dk/Forms/R0710.aspx?id=2649 (last accessed Apr. 11, 2010). The Minister is authorized
to make rules of this nature by § 13(2) of Denmark’s Animal Protection Law, 1343 of
2007 (
Bekendtgørelse af dyrevaernsloven
), https://www.retsinformation.dk/Forms/
R0710.aspx?id=2714 (last accessed Apr. 11, 2010).
72
Section 7 Declaration 583 of June 6, 2007.
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KOSHER SLAUGHTER IN THE UNITED STATES
271
Animals (Slaughter or Killing) Regulations of 1995
73
similarly dictate
that bovines being slaughtered without pre-stunning must be re-
strained in an upright pen
74
that must be of a design that prevents
any avoidable pain.
75
The throat cut must be performed immediately
after restraint.
76
Smaller animals—including sheep, goats, and veal
calves—may be restrained manually on a table or cradle, but no
shackle and hoist of conscious livestock is permitted.
77
Once the throat
cut has been performed, an animal must not be moved before uncon-
scious and, in any event, before the passing of twenty seconds in the
case of sheep and goats and thirty seconds in the case of bovines.
78
Although the regulations do not prescribe immediate post-cut stun-
ning, they do require that a captive bolt gun be kept on hand in case of
emergency and that an animal must be immediately stunned if “sub-
jected to any avoidable pain, suffering or agitation or [if it] has any
injuries or contusions.”
79
Outside of Europe, the developed countries with laws protecting
the welfare of animals during kosher slaughter include Canada, where
no “food animals,” other than birds and domesticated rabbits, may be
shackled and hoisted while still conscious.
80
Also, Australia, like Den-
mark, requires immediate post-cut stunning.
81
73
Office of Public Sector Information,
The Welfare of Animals (Slaughter or Killing)
Regulations 1995
, Sched. 12, http://www.opsi.gov.uk/si/si1995/Uksi_19950731_en_1.
htm (last accessed Mar. 14, 2010).
74
Id.
at ¶ 3. From 1958 to 1992, the British regulations mandated the use of a Wein-
berg casting pen during
shechita
. In 1985, however, the FAWC recommended that this
method of restraint be prohibited and that the use of an upright pen be required. Cha-
noch Kesselman,
Shechita Conformity and Confrontation
, http://www.shechitauk.org/
news-resources/resources/resources/article/shechita-conformity-confrontation.html
(Mar. 20, 2005) (last accessed Mar. 14, 2010).
75
The Welfare of Animals (Slaughter or Killing) Regulations 1995
,
supra
n. 73, at ¶
3(1)–(2).
76
Id.
at ¶ 5(a).
77
Id.
at ¶ 5(b)–(c).
78
Id
. at ¶ 7.
79
Id
. at ¶ 5(d). Interestingly, the British regulations not only cover the slaughter of
“red meat” animals, but also lay down requirements for the kosher slaughter of birds.
Although the regulations do not specify the manner in which birds are to be restrained
during
shechita
, they do require that no dressing procedure be performed on birds until
they are unconscious.
Id
. at ¶¶ 9, 10. In any event, no dressing is to occur before the
elapse of specified time periods.
The Welfare of Animals (Slaughter or Killing) Regula-
tions 1995
,
supra
n. 73, at ¶¶ 6, 10.
80
Department of Justice Canada,
Meat Inspection Regulations, 1990
, Reg. 78, http://
laws.justice.gc.ca/PDF/Regulation/S/SOR-90-288.pdf (Mar. 9, 2010) (last accessed Apr.
1, 2010).
81
Australian Standard for the Hygienic Production and Transportation of Meat and
Meat Products for Human Consumption
21–22 (CSIRO Publg. 2007) (available at http://
www.publish.csiro.au/Books/download.cfm?ID=5553 (last accessed Mar. 14, 2010)).
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B. The Approach of the United States
In the United States, livestock slaughter is governed by the Hu-
mane Methods of Livestock Slaughter Act of 1978 (HMLSA).
82
The Act
declares it “to be the policy of the United States that the slaughtering
of livestock and the handling of livestock in connection with slaughter
shall be carried out only by humane methods.”
83
It then proceeds to
define two methods of slaughtering and handling as humane: (1) the
slaughtering of livestock that have been stunned prior to being “shack-
led, hoisted, thrown, cast, or cut”;
84
and (2) the slaughtering of live-
stock “in accordance with the ritual requirements of the Jewish
faith . . . and handling in connection with such slaughtering.”
85
Thus,
as long as slaughter satisfies the laws of
shechita
, it is automatically
considered humane.
Insofar as standard slaughter is concerned, the HMLSA directs
the United States Department of Agriculture (USDA) to determine
and designate which methods of slaughter and handling are hu-
mane.
86
However, “in order to protect freedom of religion,” the Act pro-
vides that “ritual slaughter and the handling or other preparation of
livestock for ritual slaughter are exempted from the terms” regarding
standard slaughter.
87
The result is that although the USDA’s Food
Safety and Inspection Service (FSIS) has issued regulations aimed at
generally ensuring the humane slaughter and pre-slaughter handling
of livestock,
88
these regulations are silent as to the treatment of ani-
mals immediately before and during
shechita
. The role to be played by
the USDA in overseeing establishments that perform kosher slaughter
was clarified in a 2003 FSIS Directive.
89
The Directive states that
before slaughter occurs, USDA inspectors must request that plant
managers inform them about the type of ritual slaughter that will be
performed (e.g. kosher or halal) and to provide information concerning
when and by whom the slaughter will be performed.
90
Inspection per-
sonnel are also required to ensure that animals are handled in a hu-
82
7 U.S.C. §§ 1901–1907 (2006). This Act is sometimes referred to as the Humane
Slaughter Act (HSA).
83
Id.
at § 1901.
84
Id.
at § 1902(a).
85
7 U.S.C. §§ 1901, 1902(b) (2006). Slaughtering in accordance with the require-
ments of other religious faiths which prescribe methods of slaughter whereby the
animal “suffers loss of consciousness by anemia of the brain caused by the instantane-
ous severance of the carotid arteries with a sharp instrument” is also permitted.
Id.
86
7 U.S.C. § 1904.
87
7 U.S.C. § 1906 (2006).
88
9 C.F.R. § 313 (2009).
89
Humane Handling and Slaughter of Livestock
, FSIS Directive 6900.2 Rev. 1
(USDA Nov. 25, 2003) (available at http://www.fsis.usda.gov/oppde/rdad/fsisdirectives/
6900.2rev1.pdf (last accessed Mar. 14, 2010)).
90
Id.
at 7.
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KOSHER SLAUGHTER IN THE UNITED STATES
273
mane manner prior to being prepared for ritual slaughter
91
and that
after the throat cut has been performed, “no dressing procedure (e.g.,
head skinning, leg removal, ear removal, horn removal, opening hide
patterns) . . . is performed until the animal is insensible.”
92
Even if
inspection personnel have concerns regarding the treatment of live-
stock before or during
shechita
, the Directive states that they are not
to interfere with the ritual slaughter in any manner but are merely to
“call the [FSIS District Office] through supervisory channels.”
93
In European countries, kosher slaughterhouses are legally obliged
to ensure the humane treatment of animals passing through their pro-
duction lines. This approach differs drastically from the approach
taken in the United States, where the HMLSA fails to provide for any
meaningful legal regulation over either kosher slaughter itself or han-
dling in connection with such slaughter (which is not even touched
upon by the laws of
shechita
). The text of the HMLSA makes one thing
patently obvious: Congress has decided to leave the “filling of the gaps”
in the rules of
shechita
not to legal authorities but to religious ones. In
practice, this means that the sole responsibility for ensuring that ko-
sher slaughter is performed in a humane manner lies with kosher
slaughterhouses themselves and the agencies that certify meat prod-
ucts as having been produced in accordance with the laws of
shechita
.
Unfortunately, the religious authorities have failed dismally in
preventing even extreme cases of abuse.
94
Although kosher-certifica-
tion agencies are beginning to accept that the humane treatment of
animals is an issue deserving greater attention,
95
no steps have yet
been taken by the Orthodox Movement to ensure the widespread im-
provement of animal welfare conditions in kosher slaughterhouses.
96
91
For example, inspectors must verify that animals are provided with water (and, if
held for more than twenty-four hours, food) are not subject to excessive use of electric
prods, canvas slappers, etcetera. 9 C.F.R. § 313.2 (2009).
92
Humane Handling and Slaughter of Livestock
,
supra
n. 89, at 7.
93
Id.
at 8. It is interesting to compare this approach to the approach to be taken by
inspection personnel who identify problems with standard slaughter practices. Where
slaughterhouses fail to comply with the FSIS regulations governing standard slaughter,
resulting in the inhumane treatment of animals, inspectors are mandated to take “regu-
latory control action,” which may include the halting of meat production lines. 9 C.F.R.
§ 500.1–500.2 (2009).
94
See
Gross,
supra
n. 4, at 52 (“[T]he OU has indicated that, in their view, Juda-
ism’s dietary laws are not violated when animals are ‘systematically mutilated,
shocked, and left to languish at the hands of sloppy slaughterers.’”).
95
See
OU,
Meeting of Kosher Organizations at the OU Tackles Monsey Scandal and
Humane Slaughter Controversy
, http://www.ou.org/news/article/meeting_of_kosher_or-
ganizations_at_the_ou_tackles_monsey_scandal_and_humane (Nov. 20, 2006) (last ac-
cessed Mar. 14, 2010) (reporting on a conference of kosher organizations that addressed
the importance of dealing with the controversy of animal welfare in kosher slaughter).
96
Note, however, that the Conservative movement (which does not hold as great an
influence over the kosher-food industry as the Orthodox movement currently does) has
taken this issue very seriously. As mentioned above, the Conservative movement’s Com-
mittee on Jewish Law and Standards has unanimously rejected the slaughtering of ani-
mals in an inverted position.
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Indeed, in August 2008, when PETA conducted another undercover in-
vestigation into AgriProcessors, it discovered that abuse is
still
occur-
ring behind the establishment’s doors.
97
In light of the clear
inadequacy of the current position, a reexamination of the HMLSA is
necessary.
IV. HOW SHOULD CONGRESS DEAL WITH THE KOSHER
SLAUGHTER ISSUE?
The regulatory framework within which kosher slaughterhouses
currently operate does a poor job of furthering the United States’ policy
that “the slaughtering of livestock and handling of livestock in connec-
tion with slaughter shall be carried out only by humane methods.”
98
It
has thus become necessary for Congress to reconsider the various ap-
proaches available for handling kosher slaughter. The following sec-
tion explores these approaches against the backdrop of the First
Amendment.
More recently, in September 2009, rabbis from the Conservative movement re-
leased draft evaluation criteria for the new Magen Tzedek service mark, a certification
program intended to start this year. Joe M. Regenstein,
Standards for the Magen
Tzedek Service Mark; Draft for Public Comment
, http://magentzedek.org/wp-content/
uploads/2009/09/Magen_Tzedek_Draft_Standards_Public_Review_090909.pdf (Sept. 9,
2009) (last accessed Apr. 1, 2010). The program is meant to provide a comprehensive
ethical certification for kosher products and, rather than restricting its focus to the
strict requirements of Jewish law, aims to “assure consumers that kosher food products
were produced in keeping with the best possible Jewish ethical values and ideals for
social justice.”
Id.
at 4. It is not intended that this service mark will replace the supervi-
sion or certification mark of traditional kosher-certification agencies (which tend to be
Orthodox in nature), but rather that it shall be
in addition to
kosher certification and
shall focus on the social justice aspects of the preparation of kosher products.
Id.
at 6,
10. The program will evaluate social justice in terms of five major topic areas, one of
which is animal welfare.
Id.
at 12. According to the draft criteria, products or product
ingredients coming from animals that have been slaughtered religiously can only
achieve the Magen Tzedek service mark if the slaughterhouse adheres to the American
Meat Institute guidelines for religious slaughter. Temple Grandin,
Recommended
Animal Handling Guidelines and Audit Guide
35–36 (American Meat Institute Founda-
tion 2007). Such adherence is to be validated by a third party auditor on at least an
annual basis. Regenstein,
Standards for the Magen Tzedek Service Mark
,
supra
at 64.
Bonus animal welfare points, which may result in a product being categorized as
“Magen Tzedek with Distinction,” can be gained by plants that use video cameras so
that welfare issues can be monitored by a third party auditor at all times.
Id.
at 13, 67.
While adherence to these standards would clearly improve conditions for animals in
kosher slaughterhouses, there is some skepticism about how much of an impact the
initiative will have on the average Jewish consumer. The extent to which it will affect
U.S. kosher slaughter practices thus remains to be seen. Popper,
New Kosher Food Cer-
tification May be Most Detailed in the Industry
,
supra
n. 49.
97
PETA,
Demand That Video Cameras Be Installed in Slaughterhouse
, http://get
active.peta.org/campaign/agriprocessors_investigation_2008 (last accessed Mar. 13,
2010). Similar findings occured in mid-2007, when a kosher slaughterhouse under the
same ownership as AgriProcessors was investigated.
Undercover at Rubashkin’s . . .
Again!
, http://www.goveg.com/undercover-agri.asp (last accessed Mar. 13, 2010).
98
7 U.S.C. § 1901.
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A. The Interplay between Kosher Slaughter Regulation and the
First Amendment
Congress may essentially choose from three options: (1) com-
pletely remove the religious slaughter exemption from the Humane
Methods of Livestock Slaughter Act (HMLSA), thereby prescribing the
pre-slaughter stunning of all livestock and effectively outlawing
shechita
; (2) defer to religious authorities insofar as kosher slaughter
and handling in connection with slaughter are concerned by leaving
the Act as is; or (3) forge a route between these two extremes and con-
tinue to permit
shechita
while subjecting the handling of animals upon
which it is performed to more stringent legal regulation.
Congress’s decision is complicated by the fact that the practice of
kosher slaughter is religious in nature. Thus, concerns about violating
the First Amendment
99
immediately arise. As expressly asserted by
the HMLSA, the reason that the Act exempts kosher slaughter prac-
tices from its terms is to “protect freedom of religion.”
100
That religious
freedom factored strongly into the drafting of the Act is also clear from
the Act’s legislative history. Even though Congress exempted ritual
slaughter from the stunning requirement, Jewish groups adamantly
opposed early versions of the bill. It was argued that the Act, if passed,
would “undoubtedly [result in] a campaign waged by the confused and
overzealous against Jewish ritual slaughter,”
101
thereby paving the
way for the eventual prohibition of
shechita
.
The Constitution’s protection of the free exercise of religion is not,
however, the only First Amendment issue that factors into the regula-
tion of kosher slaughter. By either completely exempting religious
slaughter from its terms or regulating
shechita
in a manner that en-
tangles the government with religion, Congress risks violating the Es-
tablishment Clause.
102
Examination of the First Amendment issues
potentially invoked by any Congressional stance on
shechita
is thus
essential in determining the best way for Congress to regulate this
practice.
99
See
U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free
exercise [of religion] . . . .”).
100
7 U.S.C. § 1906.
101
Welty,
supra
n. 69, at 202. In making this argument, reliance was placed on the
fact that in 1933, after the British House of Commons prescribed that, apart from in
cases of ritual slaughter, pre-slaughter stunning was to be performed on all livestock,
the British humane societies attempted to have religious slaughter abolished alto-
gether.
Id.
The reliance upon this example is interesting when one considers that more
than seventy years after the stunning requirement was laid down, animal welfare
groups in Britain have still been unsuccessful in obtaining a ban on ritual slaughter.
See also Jones
, 374 F. Supp. at 1289 n. 7 (Some orthodox Jewish members were con-
cerned about possible anti-Semitic propaganda.).
102
U.S. Const. amend. I. (“Congress shall make no law respecting an establishment
of religion . . . .”).
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B. The Complete Prohibition of
Shechita
As noted
supra
, Section III(A), some countries completely prohibit
the practice of kosher slaughter. The question is whether this ap-
proach is permitted by the United States Constitution. The First
Amendment provides,
inter alia
, that “Congress shall make no law . . .
prohibiting the free exercise” of religion.
103
If Congress wishes to avoid
violating the Free Exercise Clause, it must refrain from interfering
with an individual’s religious beliefs or practices.
104
However, even
where government conduct does burden the free exercise of religion, it
may still be permissible under the Religious Freedom Restoration Act
of 1993
105
(RFRA) if the application of the burden is: (1) in furtherance
of a compelling governmental interest, and (2) the least restrictive
means of furthering that interest.
106
Assuming that the promotion of humane methods of slaughter is
compelling enough a governmental interest to justify interference with
religious practices,
107
the fact remains that kosher slaughter can be
performed in a manner that is equally humane to standard slaughter.
To the extent that it is currently possible for cruel practices (such as
shackle and hoist) to accompany the performance of
shechita
, these
practices can be regulated or prohibited without outlawing
shechita
it-
self. Any attempt to completely ban
shechita
will thus likely fail the
second prong of the RFRA test and will consequently be regarded as
unacceptably interfering with the free exercise of religion. That this
would be a court’s probable conclusion was demonstrated in
Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah
,
108
in which the United
States Supreme Court addressed the constitutionality of various city
ordinances aimed at preventing the ritual slaughter of animals by
members of the Santeria religion.
109
The Court held,
inter alia
, that
the complete prohibition of ritual sacrifice was not necessary to ad-
103
Id.
104
See Sch. Dist. of Abington Township, Pa. v. Schempp
, 374 U.S. 203, 222–23 (1963)
(stating that a person alleging violation of the Free Exercise Clause must “show the
coercive effect of the enactment as it operates against him in the practice of his
religion”).
105
Codified at 42 U.S.C. § 2000bb-1(b) (2006).
106
Id.
107
While it has yet to be held that the government has a compelling interest in
preventing the cruel killing of animals, the Supreme Court in
Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah
suggested that such an interest may exist
.
508 U.S.
520, 538–39 (1993). Although the court in
Hialeah
struck down as unconstitutional or-
dinances that prohibited ritual slaughter, Justice Blackmun stressed in his concurring
opinion that the outcome of the case did “not necessarily reflect [the Supreme] Court’s
views of the strength of a State’s interest in prohibiting cruelty to animals.”
Id.
at 580.
He proceeded to comment that “[t]he number of organizations that . . . filed amicus
briefs on behalf of this interest . . . demonstrate[d] that [the prevention of animal cru-
elty] is not a concern to be treated lightly.”
Id.
108
508 U.S. 520 (1993). Note, however, that this case was decided before the enact-
ment of the RFRA and consequently did not apply the test laid out in the Act.
109
Id.
at 538.
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dress the city’s interest in preventing cruelty to animals; this interest
could be achieved by simply regulating the treatment of animals.
110
Although the Court suggested that it might be possible to restrict the
method of slaughter itself, it is clear from the opinion that this could
only be done if the method of slaughter used in Santeria sacrifices was
determined to be inhumane.
111
Where, as in the case of kosher slaugh-
ter, the evidence shows that the method of slaughter can be performed
in a humane fashion through improved government regulation, a com-
plete prohibition of such slaughter is not necessitated by the govern-
ment’s interest in ensuring the humane killing of animals.
C. Revisiting
Jones v. Butz
: The Constitutionality of the Current
Religious-Slaughter Exemption
When Congress enacted the HMLSA, it decided to completely ex-
empt religious slaughter and handling in connection with such slaugh-
ter from the Act’s requirements. When considering the constitutional
implications of regulating kosher slaughter, one must ask whether this
approach itself is constitutionally flawed. In addressing this query, an-
other aspect of the First Amendment becomes relevant: namely, the
Establishment Clause. In addition to disallowing interferences with
free exercise, the First Amendment prohibits Congress from making
any law “respecting an establishment of religion . . . .”
112
Courts have
interpreted this clause as prohibiting the government from promoting
or affiliating itself with any religious doctrine or organization.
113
In
Lemon v. Kurtzman
,
114
the United States Supreme Court held that, to
avoid violating the Establishment Clause, a law must: (1) have a secu-
lar purpose, (2) neither advance nor inhibit religion in its principal or
primary effect, and (3) not foster an excessive entanglement with
religion.
115
In the 1974 case of
Jones v. Butz
,
116
a challenge was mounted
against the HMLSA’s religious-slaughter exemption. The plaintiffs did
not challenge the exemption of
shechita
itself, but instead argued that
110
Another issue in this case was that even if the ordinances in question were aimed
at preventing cruelty to animals, they were underinclusive in achieving this aim be-
cause they permitted many other kinds of animal deaths for non-religious purposes. The
ordinances thus pursued “the city’s governmental interests only against conduct moti-
vated by religious belief” and consequently violated the First Amendment.
Id.
at
543–46. If kosher slaughter can be performed in as humane a manner as slaughter in-
volving pre-cut stunning, a similar argument could surely be raised against legislation
that completely prohibited kosher slaughter but permitted slaughter with stunning.
111
Id.
at 539. Interestingly enough, this required a determination that Santeria sac-
rifice was less humane (because it was less reliable) than kosher slaughter, which the
Court noted has been approved by Congress as a humane method of slaughter.
Id.
112
U.S. Const. amend. I.
113
Co. of Allegheny v. Am. Civil Liberties Union, Greater Pitt. Ch.
, 492 U.S. 573, 590
(1989)
.
114
403 U.S. 602 (1971).
115
Id.
at 612–13. This three-part analysis is often called the
Lemon
test.
116
Jones
, 374 F. Supp. 1284.
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by exempting pre-slaughter handling—thus permitting the shackling
and hoisting of conscious animals—the humane purposes of the Act
were frustrated, and deference was given to the tenets of one religious
group in contravention of the First Amendment.
117
The Court rejected
both of these assertions. The basis for its holding was the congres-
sional finding, expressed in the HMLSA, that handling in connection
with religious slaughter is humane.
118
Because Congress had deter-
mined as a general policy that shackling and hoisting conscious ani-
mals is humane, the exemption did not hinder the purposes of the Act.
The exemption could also be regarded as furthering a secular legisla-
tive purpose (the establishment of humane standards for the slaughter
of livestock) and as having the principal effect of providing for humane
slaughter (rather than advancing religion). Thus, the Act satisfied the
Lemon
test and failed to violate the Establishment Clause.
119
The fundamental flaw in
Jones v. Butz
is that the judgment is
based entirely upon the assumption that the shackle and hoist of con-
scious animals is humane. By deferring to the findings of Congress, the
Court managed to completely sidestep the most fundamental issue
raised by the plaintiffs: the fact that this practice is
not
humane. If one
accepts that the current HMLSA religious slaughter exemptions per-
mit the inhumane treatment of livestock, it becomes obvious that the
exemptions were motivated wholly by religious considerations. If this
is the case, the religious slaughter exemptions fail the first leg of the
Lemon
test.
Failing the
Lemon
test would, on its own, usually be enough for
the exemptions to have violated the Establishment Clause. However,
another legal principle has bearing on this discussion. As noted by the
Court in
Jones
, laws that would otherwise violate the Establishment
Clause may remain constitutionally acceptable if they are necessary to
accommodate
religious practices and thereby satisfy free exercise
rights.
120
For example, religious exemptions from statutory obligations
have been upheld in Sunday-closing and conscientious-objector
117
Id.
at 1289–90. As highlighted by the plaintiffs, the exemption as it stands leads
to the absurdity that while un-stunned shackle and hoist is considered inhumane dur-
ing standard slaughter practices, it is considered humane for the purposes of religious
slaughter. The only possible explanation for this approach, so the plaintiffs argued, is
that Congress was deferring to the beliefs of a particular religious group and thereby
violating the Establishment Clause.
Id.
at 1290.
118
Id.
at 1291.
119
Id.
at 1293.
120
Id.
at 1292.
See also Corp. of the Presiding Bishop of the Church of Jesus Christ of
Latter-day Sts. v. Amos
, 483 U.S. 327, 334–37 (1987) (holding that applying an exemp-
tion to the secular activities of religious organizations under § 702 of the Civil Rights
Act of 1964 does not violate the Establishment Clause);
Walz v. Tax Commn. of the City
of N.Y.
, 397 U.S. 664, 668–70 (1970) (concluding that granting property tax exemptions
to religious organizations does not violate the Establishment Clause);
Zorach v. Clau-
son
, 343 U.S. 306, 310–14 (1952) (deciding that permitting public schools to release
students during school hours to attend religious instruction does not violate the First
Amendment).
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279
cases.
121
If the current exemption in the HMLSA is necessary to ac-
commodate
shechita
, the Act may thus remain within the bounds of
the First Amendment. However, an exemption of this breadth (i.e., an
exemption that extends to practices upon which Jewish law is com-
pletely silent) is
not
necessary to accommodate
shechita
. As explained
in the next section, a less permissive exemption would serve this pur-
pose equally well. Thus, the HMLSA, as it stands, arguably violates
the Establishment Clause.
D. Finding a Constitutionally Permissible Middle Ground
In light of the constitutional problems that accompany both the
complete prohibition of
shechita
and the complete exemption of relig-
ious slaughter from legal regulation, the constitutionality of an ap-
proach that runs between these two extremes must be explored. The
question is essentially whether it would be acceptable for Congress,
while still permitting
shechita
, to follow the lead of other developed
countries (such as Denmark, England, Canada, and Australia, dis-
cussed
supra
Section III(A)) and subject kosher slaughter to more
stringent legal regulation. At this point, it must again be emphasized
that the laws of
shechita
fail to specify how animals are to be handled
in connection with slaughter. Most notably, they are completely silent
as to how animals must be restrained for slaughter or treated during
the period between the throat cut and loss of consciousness. If Con-
gress was to step in and regulate these aspects of the slaughter pro-
cess, it would not be requiring Jews to modify their behavior in a way
that violated their religious beliefs; all of the religious requirements
governing the performance of
shechita
could still be met. Jews would
thus not be prevented from practicing their religion, and their consti-
tutional right to free exercise would not be unduly restricted.
Regulation of this nature would also surely be consistent with the
Establishment Clause. By ensuring the humane handling and slaugh-
ter of livestock, the regulation would have a primary effect other than
the advancement of religion and would further the secular purpose
that motivated the very enactment of the HMLSA. Since it would only
cover those aspects of
shechita
on which religious law is silent, it would
also avoid impermissibly entangling the government in religious is-
sues.
122
Such laws would thus satisfy the three-part
Lemon
test.
121
Jones
, 374 F. Supp. at 1292–93.
122
In this regard, laws regulating kosher slaughter can be distinguished from the
New York kosher fraud laws that were struck down in
Commack Self-Service Kosher
Meats, Inc. v. Weiss
, 294 F.3d 415 (2d Cir. 2002). In that case, the laws in question were
aimed at prohibiting and punishing fraud in the sale of kosher meat.
Id.
at 418. The
laws defined “kosher” to mean food that is “prepared in accordance with Orthodox He-
brew religious requirements.”
Id.
The laws also established an advisory board on kosher
law and enforcement within the New York State Department of Agriculture and Mar-
kets
. Id.
at 419. The court regarded these laws as excessively entangling government
and religion because they
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The above analysis demonstrates that, from a purely constitu-
tional viewpoint, taking the middle of the road—by permitting, but
regulating, the practice of
shechita
—may well be the best route for
Congress to follow. The same conclusion can be supported by purely
practical considerations: The current approach, involving no legal
oversight whatsoever, has proved ineffective to ensure that animals
are treated humanely before and during
shechita
. The opposite ex-
treme—a complete ban on kosher slaughter—is, however, completely
politically infeasible. This point was demonstrated in 2003 by the reac-
tion of Jewish and Muslim groups to an attempt to prohibit religious
slaughter in Great Britain. The proposed ban generated so much con-
troversy that it was eventually rejected by the British government.
123
Unlike either of these options, the middle-of-the-road approach would
have a positive impact on animal welfare yet would be difficult for re-
ligious groups to oppose.
124
If anything, it could be argued that this
approach ensures compliance with the Jewish prohibition against
causing pain to animals (
tza’ar ba’alei chayim
)
125
rather than inhib-
iting the practice of Judaism.
E. Suggested Changes to the Current Law
Accepting that greater legal regulation of kosher slaughter prac-
tices is appropriate, it is suggested that Congress make the following
changes to the current law in the United States. At a bare minimum,
the current exemption of handling in connection with slaughter should
be removed from the HMLSA, and the shackle and hoist of any con-
scious animal should be completely prohibited. Although the Act, since
its inception, has outlawed the shackle and hoist of conscious animals,
Congress exempted religious slaughter from this prohibition. When
the HMLSA was originally enacted in 1958, the exemption was in-
cluded because it was the only way of satisfying the Jewish require-
(1) t[ook] sides in a religious matter, effectively discriminating in favor of the
Orthodox Hebrew view of dietary requirements; (2) require[d] the State to take
an official position on religious doctrine; and (3) create[d] an impermissible fusion
of governmental and religious functions by delegating civic authority to individu-
als apparently chosen according to religious criteria.
Id.
at 425.
Criticisms of this nature could not be leveled against regulations that in no way
required the government to interpret, or take a position on, matters of religion. By
targeting conduct that religious law failed to govern instead of attempting to codify and
enforce religious law itself, the kind of regulations advocated by this Article would
surely steer clear of an Establishment Clause violation.
123
Welty,
supra
n. 69, at 204. This was despite the conclusion reached by the FAWC
that slaughter without pre-stunning could not be performed in a humane manner.
FAWC,
Report on the Welfare of Farmed Animals at Slaughter or Killing—Part 1: Red
Meat Animals
,
supra
n. 25, at 36.
124
Welty,
supra
n. 69, at 205.
125
Judaism 101,
Treatment of Animals
, http://www.jewfaq.org/animals.htm (last ac-
cessed Mar. 14, 2010).
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ment that animals be conscious at the time of slaughter
126
and the
requirement of the U.S. Pure Food and Drug Act of 1906
127
that ani-
mals not be slaughtered on the ground falling into the blood of another
animal.
128
Ironically, the 1906 Pure Food and Drug Act was once
strongly resisted by the Jewish community due to the animal welfare
concerns surrounding the use of the shackle-and-hoist method.
129
In
light of the existence of more humane methods of restraining conscious
animals, there is no excuse for allowing kosher slaughterhouses to con-
tinue to shackle and hoist animals prior to slaughter.
130
Were the exemption of handling in connection with religious
slaughter to be removed from the HMLSA, the USDA would be able to
enact kosher slaughter regulations similar to those it has created for
standard slaughter. Indeed, if the humane handling of livestock before
and during slaughter is to be fully achieved, there is a need for either
the HMLSA, or the regulations promulgated thereunder, to do more
than simply prohibit the shackle and hoist of conscious animals. Inso-
far as small livestock is concerned, the use of special restraint pens
need not be prescribed, as manual restraint of these animals is possi-
ble. In the case of large cattle, however, the use of USDA-approved
mechanical restraint devices should be mandated. A similar approach
to that taken by the British could be adopted: The USDA could be di-
rected to only approve a restraint device if the device is “of such a size
and design, and is able to be so operated, as to protect [bovines] from
any avoidable pain, suffering, agitation, injuries or contusions while
confined in it or while entering it.”
131
Although the most humane means of restraint currently available
are the various upright designs, the insistence by the ultra-Orthodox
upon an inverted slaughter would, in all likelihood, sentence to failure
any proposed law that required the exclusive use of upright devices. By
preventing the ultra-Orthodox from performing
shechita
in accordance
with their religious beliefs, such a law would interfere with free exer-
cise rights. Additionally, in light of constant improvement in casting-
pen designs, it is questionable whether a law permitting only upright
restraint would pass the tests laid out by the RFRA. Even if a law
126
Shechita UK,
supra
n. 18, at 5.
127
34 Stat. 768 (June 30, 1906).
128
Dorff & Roth,
supra
n. 13.
129
Id.
130
Much of the current debate concerning the shackle-and-hoist method used during
shechita
has focused on the treatment of cattle. Due to their size and weight, fully
grown bovines are likely to experience more severe injuries from being shackled and
hoisted than will likely be experienced by smaller animals. However, this is no reason
for the shackle and hoist prohibition to apply only to large cattle. By insisting, insofar as
standard
slaughter is concerned, upon the stunning of
all
livestock prior to shackle and
hoist, Congress recognized that smaller animals may also suffer if conscious during this
process. If the prohibition of shackling and hoisting conscious animals is extended to
kosher slaughter, it is difficult to imagine why all livestock should not similarly be
covered.
131
The Welfare of Animals Regs., at Sched. 12 ¶ 3(2).
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could pass these tests, the resistance that such a law would invoke in
certain sectors of the Jewish community may well make a requirement
of this nature politically infeasible. Even in countries such as England,
where the inverted slaughter of bovines is prohibited, meat from ani-
mals that have been killed in an inverted position is available through
import.
132
In addition to regulating the method of restraint, a number of
other legal requirements should be put in place to spare animals any
avoidable pain during the slaughter process. As is the case in both En-
gland and Denmark, the law should require that the throat cut be per-
formed immediately after the animal has been restrained. The post-cut
moving of an animal (including the removal of its head from restraint
so that the incision is able to close over itself or drag against other
objects)
133
should be permitted only once the animal has lost con-
sciousness. The removal of internal organs, such as the trachea and
esophagus, as well as the performance of any other dressing procedure
or disturbance of the incision, should similarly be prohibited unless the
animal is insensible. Although some countries require immediate post-
cut stunning, this practice is not accepted by Orthodox Jews.
134
Any
law in the United States that required post-cut stunning would thus
likely face the same hurdles that would confront a law mandating up-
right slaughter.
135
Given these difficulties, it may be inappropriate for
the law to insist upon post-cut stunning at this time, especially since
such stunning appears to be unnecessary if
shechita
is performed
132
The importation of meat into England is only permitted if it complies with EU
import conditions. These conditions require that meat come only from approved coun-
tries and establishments and be accompanied by an attestation certifying that animals
were slaughtered under conditions that are at least as humane as those required in the
EU. For the detailed requirements, see DEFRA,
International Trade: Importer Informa-
tion Notes—Red Meat Products
, http://www.defra.gov.uk/foodfarm/animaltrade/im-
ports/iins/meat/mp05.htm (last updated Dec. 14, 2009) (last accessed Mar. 13, 2007);
Council Directive 93/119/EC of 22 December 1993,
supra
n. 63, at 2. Because the gen-
eral EU legislation does not insist upon the use of upright restraints, meat from ani-
mals that were inverted at the time of slaughter may be imported into EU Member
States. However, because the EU prohibits the shackle and hoist of conscious animals
and, in the case of bovines, mandates that animals be restrained using a mechanical
method intended to avoid pain or injury, meat may not be imported into the EU from
places like South America, where cruel, outdated methods of restraint are used.
133
Dr. Temple Grandin has observed that, while cattle that are held in appropriate
restraint devices throughout slaughter do not react to the throat cut (thus seemingly
experiencing little pain), cattle react vigorously to any disturbance of the incision (i.e.
when they are removed from restraint before losing consciousness). Grandin & Regen-
stein,
supra
n. 23.
134
Frank E-mail,
supra
n. 38; Orthodox Union,
Message from Rabbi Dr. Tzvi Hersh
Weinreb, OU Executive Vice President, and Rabbi Mennachem Genack, OU Kashrut
Rabbinic Administrator
http://www.ou.org/other/5765/shechita65.htm (Jan. 29, 2010);
Grandin,
Improving Religious Slaughter Practices in the U.S.
,
supra
n. 47.
135
See Jones
, 374 F. Supp. 1284 (illustrating the challenge to the HMLSA on the
grounds that it authorized inhumane treatment through improper deference to religion
by permitting the shackle and hoist of conscious animals).
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under the appropriate conditions.
136
A more significant yet less con-
tentious requirement may be one that prescribes that a captive-bolt
gun be kept on hand and used where problems with the slaughter have
left animals in pain or experiencing prolonged periods of
consciousness.
F. The Impact That Changes in United States Law Are Likely to
Have on the South American Problem
The final question to be addressed concerns the effect that any
changes to existing laws in the United States are likely to have on the
treatment of animals in South American slaughterhouses. Before an-
swering this question, it must be noted that regardless of the United
States’ position on the matter, it is possible that South American es-
tablishments will at some point be forced to alter their slaughter prac-
tices. While still maintaining that slaughter methods used in South
America do nothing to render South American meat non-kosher,
Israel’s chief rabbis have decided it is necessary to phase out the
shackle-and-hoist method for large cattle.
137
In February 2008, they
directed Israeli importers of kosher meat to exert pressure on South
American slaughterhouses to replace the shackle-and-hoist method
with mechanical restraint devices.
138
One major problem, however, is
that the chief rabbis set no deadline by which these changes must be
made.
139
Indeed, no progress has been made in the past two years, and
requests that the Rabbinate address the issue have thus far gone
unanswered.
140
At present, U.S. kosher-certification agencies continue to certify
meat produced in South American establishments as being kosher,
and the law as it stands permits this to happen. Would this position
136
Grandin,
Improving Religious Slaughter Practices in the U.S.
,
supra
n. 47.
137
Press Release, CHAI Online,
supra
n. 49. Unfortunately, this decision does not
appear to have been made so much out of genuine concern for animal welfare as concern
over defending
shechita
from Judaism’s enemies. Frank E-mail,
supra
n. 38; Sela,
supra
n. 49. The decision was essentially a response to the controversy surrounding PETA’s
release of undercover video footage of a South American slaughterhouse.
138
Sela,
supra
n. 49. Note that because the chief rabbis have not backed down on
their insistence upon an inverted slaughter, the restraint devices likely to be installed
in most South American establishments will take the form of casting pens. Frank e-
mail,
supra
n. 38.
139
This was in spite of the fact that groups such as Concern for Helping Animals in
Israel (CHAI) urged the OU and Israeli Rabbinate to establish a committee to set a
fixed timeframe for changes and to supervise the phase out of shackle and hoist
throughout the kosher slaughter industry. Press Release, CHAI Online,
supra
n. 49.
140
Email from Adam J. Frank, rabbi, Congregation Moreshet Yisrael, Jerusalem, to
Melissa Lewis,
The Use of Shackle and Hoist in Shechita
(Oct. 1, 2009) (copy on file with
Animal Law). A 2007 investigation by People for the Ethical Treatment of Animals
(PETA) revealed that South American slaughterhouses were still using the shackle-
and-hoist method on conscious livestock, leading PETA to urge the Rabbinate to ad-
dress this slaughter method. PETA,
Urge the Rabbinate to Uphold Promise to Phase Out
“Shackle and Hoist
,
”
https://secure.peta.org/site/Advocacy?cmd=display&page=User
Action&id=3052 (last accessed Apr. 17, 2010).
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change if Congress subjected kosher slaughter to more stringent legal
regulation? The answer lies in the regulations governing the import of
meat into the United States.
141
The regulations provide that foreign
countries and establishments can only become eligible to import meat
into the United States following an equivalence determination by the
Food Safety Inspection Service (FSIS). The FSIS must be satisfied that
the foreign country’s meat-inspection system ensures compliance with
requirements equivalent to those governing slaughterhouses in the
United States.
142
One result of the equivalence-determination requirement is that
meat can only be imported from countries that require humane han-
dling practices that equate to those required in the United States.
143
Since the HMLSA permits kosher slaughterhouses to handle and
slaughter animals in any manner accepted by kosher-certification
agencies, U.S. law does nothing to prevent the importation of kosher
meat that has been produced in an inhumane manner. Again, the task
of ensuring the humane treatment of animals has been left to kosher-
certification agencies, and these agencies have failed to insist that live-
stock is killed in a humane manner. If, however, kosher slaughter-
houses in the United States were legally obliged to adhere to certain
humane handling requirements, meat could only be imported from
countries that insisted upon similar requirements. If, for example, the
shackling and hoisting of conscious animals were completely outlawed
in the United States, no meat produced from an animal that was killed
using this method could be legally imported into the country. A change
in the current legal approach to kosher slaughter in the United States
would thus have the side effect of requiring South American slaughter-
houses to alter their slaughter practices (should they wish to continue
exporting meat to this country). This is yet another practical consider-
ation supporting the amendment of the HMLSA to provide for greater
regulation of
shechita
.
V. CONCLUSION
In ancient times, it may well have been the case that the practice
of
shechita
represented the most humane method by which slaughter
could be performed. Even by modern standards, many accept that this
practice can be performed at least as humanely as the more recently
developed methods of slaughter. However, with the slaughterhouses of
today striving to mass-produce meat in as expedient and cost-effective
a manner as possible, slaughter practices that are performed on con-
scious animals require significant oversight to safeguard animal wel-
141
9 C.F.R. § 327.2 (2009).
142
9 C.F.R. § 327.2(a)(1).
143
E-mail from U.S. Food Safety and Inspection Service to Melissa Lewis,
Equiva-
lence Determinations
(Mar. 21, 2008) (copy on file with
Animal Law
).
See also
9 C.F.R.
§ 500 (2009) (allowing the FSIS to regulate and rescind approval for products inhu-
manely slaughtered).
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KOSHER SLAUGHTER IN THE UNITED STATES
285
fare. Although religious authorities in both the United States and
Israel have tentatively begun to recognize the need to ensure humane
treatment of animals during slaughter, no definitive steps have been
taken to make this happen. In light of the failure of kosher-certifica-
tion agencies to effectively police slaughterhouses in either this coun-
try or countries from which kosher meat is imported for American
consumers, it has become necessary for Congress to step in and create
a legal framework within which the practices of kosher slaughter-
houses can be appropriately regulated. United States law currently as-
sumes a passive role with respect to the regulation of kosher slaughter.
This approach lies in stark contrast to that taken in many other parts
of the world, where religious slaughter practices are heavily regulated
so as to spare animals any avoidable pain. As this Article has demon-
strated, the Humane Methods of Livestock Slaughter Act’s current ap-
proach—namely, its exemption of not only ritual slaughter itself, but
also handling in connection with such slaughter—is additionally un-
necessary for the protection of religious freedom. In light of these facts,
the time has come for Congress to stop paying mere lip service to the
United States’ policy concerning the humane treatment of livestock
and to do something to ensure that this policy is actually achieved in
practice.
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