Rules Are for Schmucks: A Fleeting Victory for Chickens

Last fall I wrote a piece about “Religion and the Torture of Animals,” describing, among other things, the unsuccessful efforts of animal welfare advocates to end the medieval Jewish ritual of Kaporot. This involves having a rabbi torture a chicken by grabbing her by the wings and swinging her around wildly. When her screams become deafening, they slit her throat and let all the blood squirt out. By some sort of magic centrifugal force, this is thought to drive out human sins.

Though many Jews are disgusted by Kaporot, animal rights activists have largely failed in their efforts to halt the practice using standard animal cruelty laws. But this year, for the first time, there was a small, fleeting victory, at least on paper (though not one that actually protected any chickens).

The victory occurred because United Poultry Concerns, the nonprofit organization leading the fight to end Kaporot, employed some clever legal timing in its lawsuit. Under the leadership of Ronnie Steinau, a Jew herself, UPC filed for a temporary restraining order against Chabad of Irvine, a Kaporot-practicing synagogue in California. The request was filed just two weeks before the Yom Kippur holy day, on the eve of which the chickens are brutalized. The court actually issued a temporary restraining order, essentially telling the synagogue it had to obey the same laws everyone else has to obey, at least until there could be a full trial. That was the victory. But after legal protests from the synagogue, the judge scheduled a telephone hearing for 3:30 pm on the day the barbaric rite was supposed to occur. Just before the sunset deadline, the judge caved in and rescinded the temporary order. But torture-supporting lawyer Josh Blackman tells us in anguish that by then it was too late, as a practical matter, to torment any chickens that day.

What Blackman fails to disclose, though, is that the abuse had already happened before the hearing even began. Individuals from the congregation simply went to a slaughterhouse to practice their sadism, cutely circumventing an order that seems to have applied by its terms only to the synagogue itself.

So as victories for those of us who believe in equal treatment under the law go, this brief shooting star of a restraining order was pretty minor. But we win so rarely, we have to take what we can get. And the case is still alive, so it is possible the judge will eventually rule, perhaps before next year’s torture-fest, in favor of upholding even-handed animal cruelty laws and against special privileges for God experts.

What’s more interesting from a larger perspective is the howls of protest the episode generated from the God industry. Blackman himself finds it “unconscionable” that UPC’s lawyers had the audacity to bring the suit when they did, using their knowledge of the legal system to actually come close to protecting some animals. In his view, you’re only a good sport if you fail.

Law professor Marc DeGirolami, co-leader of something called “The Tradition Project,” similarly complains about the “ill-usage of the defendants in this case,” without expressing any concern about the ill-usage of the suffering animals. He predicts that “religious rituals of this kind are likely to become at best incomprehensible, and at worst a kind of lunacy.…And as the notion that religious liberty is itself an intrinsic good declines—as it has done and will do in the coming years—so will the view that religious liberty deserves any particular solicitude when it competes against any other given interest—animal, vegetable, or mineral—falling under the government’s gigantic, protective aegis.”

What he calls “religious liberty,” though, is at an all-time, high-water mark in legal standing, with virtually no politician willing to challenge it. God experts demanding the special privilege to torment innocent animals won the first round of this case—they didn’t lose. They just didn’t win fast enough to satisfy Prof. DeGirolami.

Howard Slugh, an attorney writing about the case for the National Review, repeatedly ridicules the animal rights activists here as “the chicken people,” deriding their “vision in which private morality and individual conscience are replaced by a one-size-fits-all, government-mandated morality.” He quotes the “chicken people’s” complaint that the animal abusers in this case believe “they are above the law and can conduct themselves as they wish because of their religious beliefs.” He calls this a “caricature” of religious liberty.

Caricature? Isn’t being “above the law” precisely, to a tee, what today’s religious liberty argument is all about? Hobby Lobby says it’s above the law, so it doesn’t have to provide the same health coverage other employers do. The Little Sisters of the Poor say they are above the law, so they don’t even have to tell the government what they’re doing with their healthcare plan. Churches in residential communities say they are above the zoning laws, so they can build whatever they want, wherever they want. Rastafarians say they are above the law, and can use illegal drugs whenever they choose. Religious business owners say they are above the law, and don’t have to hire transgender individuals if they don’t want to. Armed religious protestors occupy federal parks, and get off scot-free. Even religious government officials say they are above the law, and get to pick and choose which laws they want to carry out. Some caricature!

Slugh is right about one thing, though: the effect of state “Religious Freedom Restoration Acts” (RFRAs). California, where the chicken case is located, has no RFRA on the books. This means that under general constitutional principles, if the state enacts a law with a legitimate secular purpose—like a law against cruelty to animals—then it’s no defense for someone to say “my religion says differently.” Only in a RFRA state is the burden shifted to the government to prove why it’s impossible to accommodate an exception to every law for every religious person who demands one.

Approximately half the states have RFRAs now. Slugh would like all fifty to adopt them. Those of us who believe in equal protection would like to see all the existing RFRAs repealed. As would America’s chickens.