It is a truism that some of the practices of observant Jews seem incomprehensible to the general population. You can eat meat after milk but not vice versa? You can’t drive on the Sabbath? You can’t even set foot in a car? The list goes on. But for the most part, these practices are accepted with tolerance, if, occasionally, a tad of disdain. When our practices go beyond the incomprehensible and are found morally offensive, however, it is a different matter, for Muslims as well as Jews. Particularly fraught are the rules concerning kosher and halal slaughter. The gold standard of humane slaughtering is the requirement that the beast be stunned and rendered insensate before the animal is killed. But according to halacha and sharia, such stunning would render the process invalid.

When kosher slaughtering is performed correctly, the flow of blood away from the animal’s head renders it insensate too. But that takes anywhere from a few seconds to two minutes. The animal suffers a great deal more than would be the case if it were stunned.

Public opinion in several countries has found it impossible to accept such suffering in the face of arcane religious rules, which appear as incomprehensible as they are arbitrary. They have insisted on stunning in all abattoirs, which effectively outlaws kosher and halal slaughtering. Switzerland is a case in point.

In 2009, the European Union legislature representing both the voters and governments of the EU enacted a comprehensive law governing slaughter, with animal welfare much in mind. When it came to Jewish and Muslim traditions, it faced a conflict between the important sensitivity to animal welfare and the fundamental right to religious freedom. How to balance the two?

Ensuring maximum animal welfare by making stunning mandatory in EU law would effectively violate freedom of religion. To rule it out entirely would potentially fail to advance the cause of animal rights. The compromise reached was to make stunning required as a general rule, and to give member states leeway to go even further in ensuring animal comfort, but with one proviso — ritual slaughtering had to be allowed.

This was a value judgment reached by the representatives of the peoples of the European Union.

The above notwithstanding, the government of the Flemish part of Belgium, where many observant Jews live, in 2017 enacted a law which required stunning, effectively rendering kosher and halal slaughtering in Belgium illegal. There were some who suggested that the new Belgian animal welfare law was sprinkled with a few grains of Islamophobia and antisemitism.

The matter reached the Court of Justice of the EU in a joint action brought by the Jewish and Muslim communities in Belgium. You would have expected, in the light of the above, that the court would rule that the Belgian interdiction violated European Union law — as indeed the Advocate General of the court proposed.

To the delight of some and the surprise and dismay of others, the court legitimated the Belgian interdiction.

It is clear from reading the judgment where the sympathies of the judges rested. One may reasonably believe that in balancing the religious slaughtering rules of Islam and Judaism against animal welfare, the pain caused to the animals, even if (and this is not contested) relatively shortlived, cannot be justified. Yes, this ritual may be a fundamental religious precept, but one that runs against a reasoning so elegantly articulated by Jesus, with which even atheists could identify: “Not that which goeth into the mouth defileth a man; but that which cometh out of the mouth, this defileth a man.” (Matthew 15:11)

But how does one translate that sentiment into law in the face of quite explicit European legislation? If one is unhappy with the legal status quo, is changing it a matter for judges or the lawmakers ?

As is so often the case with the European Court, once a desired result is identified in terms of values — say a more perfect marketplace, or a more robust notion of European citizenship, or more generally a deeper form of European integration — the only remaining question is how to dress it up in plausible legal argumentation to appear as if the law requires such an outcome.

But this would not be easy in this case. Yes, the EU law which regulates slaughtering gives considerable leeway to member states. But allowing a member state to require stunning would effectively bar ritual slaughtering in some instances.

You may set down conditions for the exercise of a right. You may require the presence of a veterinary surgeon. You may require certification of the slaughterer. You may insist the animal may not be hung from its feet (a horrible practice) before the slaughtering takes place. But you cannot pose a condition which effectively prevents ritual slaughtering. Especially since in our still-extant hierarchy of norms and values, freedom of religion is enshrined in every single Western constitution, and the EU’s own Charter of Rights still figures higher than animal welfare, important as this surely is.

How, then, do you allow a member state to violate freedom of religion as well as EU legislation whilst giving the appearance of respecting both? The court’s decision is as ingenious as it is, as legal reasoning, dishonest.

The court added to its already elevated status as the final authority on EU law that of the final authority on Jewish and Muslim religious law.

In the final analysis, it made a religious determination that a certain form of stunning, the protests of the Rabbinical authorities notwithstanding, does not violate the Jewish and Muslim rules of ritual slaughter. In the face of such only irony will serve; they found a very elegant way of koshering a pig.

If stunning, in at least one form, is consistent with Jewish and Muslim law, then everything is OK: the right to ritual slaughter enshrined in the regulation would not have been compromised and both the legislation and freedom of religion would have been respected.
Except the proof of the steak is in the eating. As a result of the decision legitimating the Belgian measure, if applied by the Belgian authorities as drafted, there can be no Jewish and Muslim slaughtering in Belgium.

Irony apart, although it pretended to respect the legislative measure, the court allowed a member state a level a discretion in setting conditions for the exercise of a right which effectively extinguished such a right.

We do not want to call into question the good faith of the judges on matters of faith. They may have truly believed that they had reached the correct interpretation of Jewish law.
But did none of them think, this honest belief notwithstanding, that it was not a domain into which they should have entered at all?

Not only did they compromise, without the courage to say so, substantive freedom of religion, they also compromised a no less important institutional religious dimension, by encroaching on the exclusive autonomy of religious authorities to decide on their own religious matters.

It is as if, in a case of gender discrimination, they were to decide that a correct interpretation of the Catholic dogma actually allows women to officiate as priests and administer the sacraments.

This is a first for the CJEU in its long line of troubling cases in matters of Church and State. They gave to Caesar (themselves) that which pertains to God.

Next time a rabbinical or sharia court, or indeed the Vatican, faces a complex issue of religious law, should we expect it to turn to the Court of Justice of the EU for an authoritative decision?

Sir Jonathan Faull is Chair of European Public Affairs at the Brunswick Group and was a Director General at the European Commission

JHH Weiler is Professor at New York University School of Law and Senior Fellow at the Center for European Studies, Harvard