The European Margin of Dis-Appreciation and the Big No to Ritual Slaughter
Religious traditions that are not historically rooted in the Christo-European culture face particular legal and political challenges that are unprecedented in the post-World War II-era. Despite the establishment of supranational bodies responsible for the promotion of human rights standards and the advancement of civil liberties, liberal democracies have failed to introduce and maintain a robust framework able to provide equal protection to both majoritarian and non-majoritarian traditions. Equal protection would require equal respect to be shown to all religious groups, minority or not, with the same level of protection given to both headscarves, a clear symbol of (among others) the Islamic faith, and the crucifix, an obvious symbol of Christianity.
And yet, majoritarianism is on the rise. The European Court of Human Rights, among countless other institutions, has failed to treat all believers manifesting their religion in a peaceful and non-violent way equally. Just a few months ago, when the Court of Human Rights celebrated its 70th anniversary, the President of the Court enthusiastically boasted of the Court’s ability to read the European Convention on Human Rights as a “living instrument.” If this claim were true, then the Court would show a history of adjusting its rulings to the contemporary needs of the society. Unfortunately, this claim does not hold.
The religious freedom jurisprudence of the European Court of Human Rights has paved the way for treating minority religions, especially the Islamic faith, with bias — and thus differently. Over the last two decades, an alarming number of European countries have adopted laws that explicitly single out the Islamic faith for disfavored treatment qua Islam. Think, for example, of the bans on headscarves, face-covering veils, separate-swimming lessons, and, more recently, ritual slaughter. These bans have been construed in public discourse as necessary measures for the survival of civilization, with these practices, among others, framed as “a sign of subservience and debasement.” So, the question is: how could the living instrument doctrine be alive and well, when even as religious bigotry and animosity, particularly Islamophobia and antisemitism, are on the rise, the Court has remained insensitive toward the mounting criticism of its hands-off approach — especially in those cases clearly tainted with animus toward minority religions? Such cases have included bans on religious dresses and, more recently, the prohibition of ritual slaughtering of animals.
In the European context, the infamous margin of appreciation doctrine has proved a very effective instrument in maintaining the Court’s extreme posture of judicial deference to the executive branch of power in cases dealing with the lawfulness of restrictions upon religion. Evolved in the human rights jurisprudence of the European Court of Human Rights, this legal doctrine gives member states more room to make their own decisions regarding the “necessity in a democratic society” of a limitation upon religious manifestations, if — as the Court has decided on many occasions — there is barely a consensus on how to deal with a specific limitation. Such a “wide” margin of appreciation has been granted in cases concerning the lawfulness of the Islamic hijab or ritual slaughter. These are typically examples of cases in which countries take different legal approaches. Think, for example, of the lawfulness of ritual male circumcision: if there are different legal regimes applicable to this practice among member states, then the Court could conclude that there is barely consensus among treaty members on how to deal with the lawfulness of ritual male circumcision.
Today, this consensus-argument as a means to avoid conflicts with members has shaped an important, but dangerous and alarming, legal precedent for outlawing all sorts of minoritarian practices that do not fit the majoritarian cultural narrative. The most recent evidence for this claim is the decision of the Court of Justice of the European Union to uphold the Belgian local ban on ritual slaughter. Although formally, the European Court of Human Rights and the Court of Justice of the European Union are two different courts, both with their own jurisdiction — the latter decides on European Union law that applies to the member states of the European Union (27 member states), while the former rules on the European Convention on Human Rights (47 party states) — the European Union has recently officially acceded the European Convention on Human Rights. This accession is meant “to guarantee coherence and consistency between EU law and the Convention system.” This aim should be possible, since both the Charter of Fundamental Rights of the European Union as well as the European Convention on Human Rights guarantee religious freedom.
Back to the ban on ritual slaughtering. What was at stake? In 2017, the Flemish legislature prohibited the ritual slaughtering of animals for Halal and Kosher purposes. The ban required butchers to stun animals prior to the slaughter ceremony, though not irreversibly: the stunning should not cause immediate death. Rather, stunning would significantly reduce the pain inflicted by traditional slaughter. In the traditional way of ritual slaughter practiced by halal and kosher butchers, the animal’s blood must be completely drained — and the animal must be conscious, unstunned, prior to the killing.
The Flemish ban clearly posed restrictions upon the Islamic and Jewish tradition of slaughtering animals for private consumption. Hence, Jewish and Islamic organizations challenged the ban in court, arguing that the stunning requirement introduced to reduce avoidable pain was a violation of their right to free exercise of religion, as laid down in Article 10 of the Charter of Fundamental Rights of the European Union.
The Belgian Constitutional referred the case to the Court of Justice of the European Union to decide whether the Flemish requirement was a violation of the law of the European Union, which set minimum standards on the killing circumstances of animals in 2009. More specifically, the Belgian judges sought to discern whether the Flemish requirement was allowed as a tool to protect animal welfare more extensively than was required by European Union law on animal protection prior to killing for consumption purposes (Article 26, Regulation 1099/2009), thereby derogating from the provision of this regulation that requires member states to respect minority practices that do not allow for a deadly stunning process prior to the killing (Article 4 (4), Regulation 1099/2009) (this provision explicitly states that religious minorities are exempted from the stunning requirement).
Surprisingly, the judges ruled that the Flemish ban does not violate European law, emphasizing the reversible character of the stunning process prior to the slaughtering of the animal and the protection of animal welfare as an important value of the European Union. Reversibility means here that the animal is not dead after the stunning intervention. However, the animal is not conscious prior to the slaughtering process, which stands contrary to Jewish and Islamic slaughtering traditions that prohibit any stunning prior to the slaughtering process, reversible or not. The Court’s decision was surprising, and not just because the Advocate-General at the Court of Justice concluded the opposite, advising the Court that member-states should not be allowed to introduce laws that require religious minorities to stun the animal prior to the slaughtering in a reversible way, thus emphasizing free exercise of religion, as enshrined in the law of the European Union and as referred to in the regulations on slaughtering of animals within the Union (para. 57 of the Conclusion).
The decision to uphold the Flemish ban was surprising for two reasons. First, the Court seems to prescribe how Jews and Muslims should rethink their rites, since the decision so firmly emphasizes that reversible stunning does not mean that the animal is dead when it is killed. The Court, not religious officials, took it upon itself to decide that this procedure is compatible with religious laws requiring that the animal be alive when killed (para. 61 of the judgment).
Second, more generally, the Court hails the hands-off approach of the European Court of Human Rights, and thus utilizes the infamous margin of appreciation formula used by that Court in hard cases on law and religion (para. 67 of the Judgment). The very problematic S.A.S. v France decision of the European Court of Human Rights (idem), in which the Court backed the French ban on face-covering veils on questionable grounds, reveals how the infamous religious freedom jurisprudence of the European Court of Human Rights has created a precedent for the Court of Justice of European Union to adopt a deferential approach in cases concerning the rights of religious minorities.
The normative message behind this judgment is clear: religious minorities should live in accordance with rules that echo the majoritarian perspective. This decision aligns with a broader tendency in which minority groups face more and more difficulties in claiming their fundamental rights. European judges, in fact, do not provide a wider margin of appreciation in hard cases on law and religion. Instead, this decision shows that courts effectively and automatically disrespect — or perhaps, in the language of the margin of appreciation doctrine, “dis-appreciate” — religious practices that do not fit the dominant culture.
Decisions that require religious minorities to assimilate are much more problematic than mere political rhetoric critical of minority practices. After all, the dialectic between court decisions and concrete policies that target religious minorities is a synergistic one. The upholding of the Flemish ban is a nasty development, and one we should not take lightly. ♦
Sohail Wahedi is an Assistant Professor of Law at the Erasmus School of Law in the Netherlands, and the 2022 Niels Stensen Fellow at the University of Toronto. His scholarship focuses on the relationship between law and religion. He also focuses on how social media groups reinforce the rule of law across liberal democracies.
Wahedi, Sohail. “The European Margin of Dis-Appreciation and the Big No to Ritual Slaughter.” Canopy Forum, June 1, 2021. https://canopyforum.org/2021/06/01/the-european-margin-of-dis-appreciation-and-the-big-no-to-ritual-slaughter/.