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Friday, September 21, 2007

Ind. Decisions - 7th Circuit decision on validity of Illinois Horse Meat Act

In Carvel International v. Madigan, a 15-page opinion, Judge Posner writes on a challenge to the validity of the Illinois Horse Meat Act that makes:

it unlawful for any person in the state either “to slaughter a horse if that person knows or should know that any of the horse meat will be used for human consumption,” § 635/1.5(a), or “to import into or export from this State, or to sell, buy, give away, hold, or accept any horse meat if that person knows or should know that the horse meat will be used for human consumption.” * * *

Cavel International, the plaintiff in this case, owns and operates the only facility in the United States for slaughtering horses. Until recently it was one of three such facilities, but the other two, both in Texas, stopped slaughtering horses after the Fifth Circuit upheld a Texas law similar to the Illinois law challenged in this case. Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326, 336-37 (5th Cir. 2007).

From Judge Posner's opinion on p. 11-12:
There is a wrinkle in this analysis, however, though unremarked by the parties. Zoos feed a considerable amount of horse meat to their charges. Brad Haynes, “Zoos in a Pickle Over Horse Meat,” Seattle Times, Aug. 14, 2007, http://seattletimes.nwsource.com/html/localnews/200 3835227_horsemeat14m.html (visited Sept. 18, 2007). For living proof, we reproduce a photograph from Haynes’s article, with its caption:
“Kwanzaa, a young South African lion at Cameron Park Zoo in Waco, Texas, celebrates his birthday with a cake made from 10 pounds of horse meat, plus whipped cream and a carrot.”
[Notes from ILB: Emphasis added. Unfortunately, the photo is embedded in the PDF document, you will have to access the opinion to view it. And the Seattle Times story referenced in the opinion already is "no longer available."]

As the article explains, American zoos, seeing the handwriting on the wall so far as the domestic slaughter of horses is concerned, are shifting to importing horse meat. So the slaughter of horses will continue. For all we know, Cavel may seek out a new market in America’s zoos. We do not know why, with the cessation of horse slaughtering at the Texas slaughterhouses, Cavel has not done so already.

But even if no horses live longer as a result of the new law, a state is permitted, within reason, to express disgust at what people do with the dead, whether dead human beings or dead animals. There would be an uproar if restaurants in Chicago started serving cat and dog steaks, even though millions of stray cats and dogs are euthanized in animal shelters. A follower of John Stuart Mill would disapprove of a law that restricted the activities of other people (in this case not only Cavel’s owners and employees but also its foreign consumers) on the basis merely of distaste, but American governments are not constrained by Mill’s doctrine. * * *

The fact that the governor’s signing statement acknowledges the role of the Hollywood actress Bo Derek, author of the book Riding Lessons: Everything That Matters in Life I Learned From Horses (2002), in outlawing the slaughtering of horses could be thought to inject a frivolous note into a law that forces the closing of a business that has very little to do with the people of Illinois. But this is not a basis for invalidating a nondiscriminatory statute that interferes minimally with the nation’s foreign commerce and cannot be said to have no rational basis. * * *

Although the appeal is from the denial of a preliminary injunction, the merits of Cavel’s challenge to the horsemeat law have been fully briefed and argued and there are no unresolved factual issues the resolution of which in a trial would alter the result. In such a case, courts treat the appeal as if it were from a final judgment. [cites omitted] So the judgment is affirmed, the suit dismissed with prejudice, and the injunction that we granted pending appeal dissolved.

[More] - See the Decision of the Day entry here, headed "Only A Temporary Reprieve for Horse Meat." See the WSJ Law Blog entry here.

Posted by Marcia Oddi on September 21, 2007 12:38 PM
Posted to Ind. (7th Cir.) Decisions