Is Ritual Slaughter A Human Right?
Written by Graham Zellick Wednesday, 03 August 2005
TWO RECENT DECISIONS IN the English courts have prompted me to revisit a theme I developed nineteen years ago when I delivered the first George Webber Memorial Lecture at Jews’ College at the invitation of the then Principal, the current Chief Rabbi, on ‘The Law, Religion and the Jewish Community’. This was before the Human Rights Act.
The first of the cases was decided by the House of Lords in its judicial capacity at the end of February (R v Secretary of State for Education and Employment, ex parte Williamson [2005] UKHL 15) . The Law Lords decided that a group of teachers and parents at independent Christian schools could not invoke the protection of the Human Rights Act to override the ban on corporal punishment imposed by Parliament. The teachers and parents claimed that the ban interfered with their religious freedom. In the second case, decided by the Court of Appeal a week later, the judges overturned a High Court judgment that had found lawful the refusal by a school in Luton to allow a female pupil to manifest her religious belief by wearing an item of clothing – a jilbad – that did not comply with the school’s uniform policy (R (on the application of SB) v Headteacher and Governors of Denbigh High School [2005] EWCA Civ 199) . The Appeal Court did not say that such a ban could never be lawful. Had the school gone about the matter differently and recognised the existence of the girl’s human right, its interference with that right might have been upheld. I do not propose to discuss either case in any detail, or to embark on an exposition of human rights law, but analysis under the Human Rights Act should yield broadly similar outcomes to the approach I outline below.
The two cases raise precisely the same issue: when is the State entitled or empowered to prohibit something which that individual regards as an expression or manifestation of his or her religious beliefs? This is different from the related issue, with which I shall not be dealing here, of when the State itself is required to make positive provision for the needs or wishes of a religious minority, for example, providing religious schools at taxpayers’ expense or creating an eruv around a particular locality.
It is not the first time that this question has come before the English courts. In 1983, the House of Lords held that the headmaster of a private school contravened the Race Relations Act in barring a Sikh boy who, contrary to the school rules, wore a turban (Mandla v Dowell Lee [1983] 2 A.C. 548). This was held to constitute discrimination on ethnic grounds, religious discrimination being then unregulated by law.
Of some interest is a decision of the United States Supreme Court twenty years ago concerning a rabbi who was a captain in the United States Air Force serving in the role of a clinical psychologist. He was threatened with a court-martial for wearing a yarmulka when indoors and in uniform, contrary to a military regulation. The captain asserted that the regulation infringed the First Amendment’s right to the free exercise of religion. The Court divided five to four in upholding the validity of the regulation (Goldman v Weinberger, 89 L.Ed. 2d 478).
Military uniform performs a different purpose from school uniform and the arguments in favour of the regulation are stronger. In this case, the majority in the Supreme Court deferred to the professional judgment of the military authorities that any deviation from the standard uniform was unacceptable. The whole purpose of military uniform was to eliminate personal differences in identity which was claimed to be essential to encourage the overall group mission. Justice Stevens, though he voted with the majority, observed that ‘the yarmulka is a familiar and accepted sight. In addition to its religious significance for the wearer, the yarmulka may evoke the deepest respect and admiration – the symbol of a distinguished tradition and an elegant rebuke to the ugliness of anti-Semitism’. Justice Brennan, who dissented, noted that ‘a yarmulka worn with a United States military uniform is an eloquent reminder that the shared and proud identity of United States servicemen embraces and unites religious and ethnic pluralism’.
The issue of the State’s right to assert a prohibition inhibiting religious observance has arisen or can arise in a number of situations. Can an employee take time off from work for religious observance or refuse to work on Saturdays or religious holidays without imperilling his employment? To what extent may a religious group resort to ritual slaughter using a method that would otherwise be unlawful? Can Jehovah’s Witnesses refuse their sick child a blood transfusion? Should we recognise a marriage lawful abroad where one of the parties is below marriageable age in this country? Or a polygamous marriage? Other examples include Rastafarians wanting to use cannabis, Jewish circumcision and crash helmets for turban-wearing Sikhs.
We are unlikely to give the same answer in each of these situations. That must mean that an assertion of the right to religious freedom or freedom to manifest one’s religious belief is not absolute. So ritual slaughter is permitted, but polygamous marriage is not. The Sikh’s turban in school or instead of a crash helmet is protected, but the ceremonial dagger (kirpan) is more problematic and unlikely to be permitted. This issue is currently before the Supreme Court of Canada. Similarly, the United States Supreme Court is about to consider a Court of Appeals ruling that the American branch of a Brazilian church is entitled in the exercise of its religious freedom to import a mind-altering tea used as a sacrament. Wearing the jilbab to school is protected whereas parents cannot refuse a blood transfusion for their dying child on religious grounds or authorise teachers in a Christian school to beat their children for disciplinary purposes even though they believe it is mandated by scripture. That there is no simple or universal answer to these issues is illustrated by the issue of time off work for religious purposes. It is a legal right in Canada, but it enjoys no protection either under English law or the European Convention on Human Rights, and the issue is currently under consideration by the English Court of Appeal following the dismissal of a devout Christian who refused to work on Sundays. Likewise in the case of items of clothing worn by pupils or students for religious reasons: for the most part it is permitted in the UK but absolutely forbidden in France and Turkey.
What is the test? I would formulate the basic principle in the following way: the freedom to exercise or manifest genuine religious belief or practice – however controversial or unpopular – should be accorded the highest priority and enjoy fundamental legal protection unless it comes into profound conflict with some compelling and overriding competing public interest or value. That competing interest or value must be capable of rational and convincing exposition.
Application of this principle will sometimes be relatively or even completely straightforward and simple. In some cases it will be difficult and controversial. Thus, in the case of the blood transfusion, or kirpan, or corporal punishment, or the use of drugs by Rastafarians, or female circumcision, there is indeed a compelling and overriding public interest or value. But in wearing a crash helmet, yarmulka or jilbab, carrying out shekhitah or religious circumcision of a male, there is no overriding public interest or value. The jilbad, shekhitah and even male circumcision are, however, far from uncontroversial.
Let us look at shekhitah a little more closely. I quote the remarks I made nineteen years ago in my Webber Lecture:
‘The argument to retain the existing exemption can be made only on the ground that the Jewish method of animal slaughter is at least as humane as any other method, or at any rate is not perceptibly or measurably less humane. I believe there is evidence to support this view and it is the essence of the argument against the report of the Farm Animal Welfare Council. What in my view cannot be argued is that Jewish ritual slaughter should be upheld by law even if it were shown to be a crueller method of slaughter, that is to say, even if it occasioned greater suffering to the animal. If that were the case – and I do not believe that case has been made out – I would not only expect Parliament to abrogate the right, I would think it their duty to do so. I am therefore puzzled by a passage in the Board of Deputies’ submission to the Ministry of Agriculture which reads:
“Judaism does not minimise the importance of protection for God’s animals, but animal welfare cannot be accepted as of paramount importance. We see some moral defect in a society which places the welfare of animals above that of human beings.”
That last statement in this context is ludicrous. To deny the right to subject an animal to greater suffering than is necessary for no other reason than to enable someone to eat its flesh is hardly to elevate animal welfare above that of human welfare. To a Jew, acting in obedience to what he conceives to be Divine injunction, it may still be justifiable; but a secular legislature is bound to examine it from a different perspective and premise.’
Those comments aroused some disquiet at the time, although they still strike me as modest, rational and almost axiomatic in a modern, secular, democratic society. There was a post-lecture sequel. Rabbi Dr Sir Jonathan Sacks wanted to publish the lecture, but the Chief Rabbi, then Lord Jakobovits, who was President of the College, had read it and taken exception to that passage. Would I remove it? No, I said, I could not agree to that, but I should quite understand if he felt unable to publish. Rabbi Sacks asked for a little time to consider the matter and a day or two later telephoned to say he would publish.
It is instructive to compare shekhitah with the mild corporal punishment of children at issue in the recent Lords’ case. One is about the welfare of animals, the other children. In both cases, there is no compelling evidence that such welfare is truly compromised. The chief difference, though, it seems to me, is that shekhitah engages a fundamental tenet for many Jews, whereas beating children is at best marginal and peripheral to Christian doctrine and practice and its prohibition leaves the practice of Christianity largely intact. Indeed, most Christians would probably say that beating children formed no part of Christian doctrine, practice or belief at all, though the individuals involved in the case clearly and sincerely felt otherwise. Thus, the centrality, authenticity and significance of the practice, and not just the sincerity with which it is held, must be weighed alongside the proportionality of any prohibition.
Freedom of religion is an important value in society. It is certainly important to us Jews as adherents to a minority faith, but it should also be important to us as citizens of a society founded on principles of freedom, justice, tolerance and fairness. State power is an awesome engine, one that should be used with caution and restraint. It can easily be cruel and unjust. Religious practices can also, if unrestrained, be cruel and unjust. Not every so-called religion justifies society’s respect and recognition. Not every purported religious practice qualifies for respect and protection. And that is where the difficulties inhere. That is when sensitivity, tolerance and judgment must be called into play and the claim to religious freedom balanced against the State’s assertion of a countervailing value. It is to be hoped that public policy, jurisprudence and the Human Rights Act will converge to produce the correct answer.
PROFESSOR GRAHAM ZELLICK is President of the West London Synagogue and Chairman of Leo Baeck College-Centre for Jewish Education. He is Chairman of the Criminal Cases Review Commission and was formerly Vice-Chancellor and President of the University of London.
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