There is every reason to conclude that Montana's Blaine Amendment violates the Free Exercise Clause.
As a society becomes more secular, what happens to religious rituals, customs, and ways of life that cannot be explained or justified in secular terms? When the freedom to engage in such practices is no longer presumed to be a good because of a firm commitment to religion as a social value, little stands in the way of its becoming just one more special interest. Religious freedom is then thrown into the bin of social oddities, to be haggled over and negotiated against whatever other idiosyncratic predilections one happens to find in there..
Witness the case of United Poultry Concerns v. Chabad of Irvine. The plaintiff is a California organization devoted to “promoting the respectful and compassionate treatment of domestic fowl” that leads protests, for example, against the use of eggs in the White House Easter-Egg Roll. Indeed, UPC seems to observe a fairly regular schedule of outrage, no doubt because many holidays, religious and otherwise, tend to involve an adversarial relationship with poultry. (With Thanksgiving on the horizon, the group’s web site is showcasing a book called More Than a Meal: The Turkey in History, Myth, Ritual, and Reality.)
Over the last two weeks, UPC has been involved in a legal effort to stop a Jewish practice called kaparot that is performed on the day before Yom Kippur. Only a small number of Jews in the United States perform this ceremony, and it involves a trained rabbi swinging a chicken in the air and then slaughtering the animal. (“Kaparot” means atonement.)
The tireless Josh Blackman, who has been involved with the case, has a very complete description of the proceedings. The long and short of it is that a federal District Court judge issued a temporary restraining order against the practice earlier this month, citing a California state animal-cruelty provision, though the judge would have been well advised to consider both the federal Humane Slaughter Act and the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah (1993) before acting. The judge ordered pre-trial conferences, briefs, and hearings to be conducted and filed immediately thereafter, right smack dab during the most important week in the Jewish calendar.
Perhaps most telling of all was that the hearing on the temporary restraining order was scheduled for October 13, the day after Yom Kippur, which Professor Blackman amusingly analogizes to scheduling a hearing for December 26 on an order to prohibit a ceremony performed on Christmas day. The judge eventually lifted the order just hours before sundown on October 12, rendering it impossible as a practical matter for the synagogue’s members to perform the ceremony.
Indeed, as Professor Blackman notes, the timing of the legal proceeding was obviously calculated by the plaintiffs to cause as much disruption and distress as it possibly could (the lawsuit could have been filed really at any other time), respectful treatment of chickens being one thing and respectful treatment of religious believers quite another. The judge seems to have been either utterly unaware of these issues or utterly uninterested in them.
As one rabbi put it, “We want to talk about repentance, how we should change our lives, how we should get our act together. Instead, we’re all involved in this meshugas about chickens.”
The meaning that religious rules concerning ritual slaughter (as well as dietary regulations) have for observant Jews (and Muslims) is likely to be lost on an American government and people that are becoming increasingly secular. It would indeed be difficult to explain a practice like kaparot in terms of the secular, civic benefits it produces. The same could be said for Yom Kippur itself, which may help to explain, if not excuse, the court’s ill-usage of the defendants in this case. With few or no familiar analogues in secular culture, religious rituals of this kind are likely to become at best incomprehensible, and at worst a kind of lunacy.
Indeed, the probability that these rules will be perceived as nothing more than a backward vestige of a barbaric and superstitious age increases almost exactly in proportion as the justification for the rules will need to be expressed in secular terms. 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.