The drawn out battle over kapparot as practiced in Brooklyn, New York is probably far from over, but the recent NY State Supreme Court appeal ruling that has dismissed the proceedings in favour of the defendants is significant.

It is important that the ultimate ‘winners’ of that case (the people who do kapparot with chickens) don’t treat this as a triumphant victory, and certainly not a ringing endorsement of how they perform the kapparot ritual. It was not. In boxing terms, the victory was akin to a disputed points decision after 12 rounds.

It is significant because having received a reprieve from the courts, and knowing that some people have legitimate objections, this is an opportunity to reflect on how kapparot is observed, and to seek ways to do it better.

Kapparot with chickens has been controversial for hundreds of years; what has changed is only the reasons for the objection. In its early days, some leading scholars claimed that it was too similar to non-Jewish rituals. And so the Jewish world split between those who used chickens for the ritual (relying on Jewish scholars who permitted it), and those who instead used money to be given to charity, or fish.

More recently, the objection is because of animal cruelty, and anyone who has seen in person how some people hold and swing chickens, and how the chickens are kept, would agree that these objections have grounds.

Significantly, these objectors fall into two groups: those who themselves don’t eat chicken and those who do. Both are driven by concern for the welfare of animals, and perhaps also the Jewish prohibition against tza’ar baalei chayim (cruelty to animals). But it’s likely that the first group (animal liberation groups such as PETA) seeks nothing less than a total ban on the ritual as observed with chickens. No middle ground would be acceptable.

The second group, by their own eating habits, acknowledge that there are circumstances under which killing chickens is acceptable. Their concerns about the practice should be considered, and we ought modify the kapparot ritual to reduce cruelty to animals and make it acceptable to them.

Kapparot with chickens happens to be one of my favourite Jewish rituals. As much as I hate the smell, the droppings, and holding live fluffy animals in my hands, these concerns are offset by the opportunity to be confronted with death and the fragility of life (in relative safety) on the eve of Yom Kippur, when we stand before God as He holds our lives in the balance. I find that the ritual puts me in the appropriate state of mind to prepare for the holiest day of the year. Singing a bag of coins around my head just wouldn’t be the same.

I’ve performed the ritual in several places around the world (including Brooklyn), and have been aghast at the way many people are not taught how to hold a live chicken properly, let alone swing it. Videos of young people holding a chicken by its legs and swinging are sickening. In many cities, kapparot has gone ‘underground’ for fear of reprisals from animal liberationists with secret cameras.

There is little point arguing, or even engaging with the groups who will never accept the ritual in any form. But the tza’ar baalei chayim concerns are genuine, and we must seek the path that allows us to continue to perform kapparot with chickens and avoiding cruel treatment of said chickens. This is the path of the “ethical kosher” movement.

I know of one city where each kapparot chicken is placed by professional staff in a cardboard box with handles. The people observing kapparot can then fulfil their obligations without the risk of additional pain and suffering to the chicken. Of course there are increased costs, but that is the price we must pay to fulfil both the kapparot custom, and the Torah and ethical obligation to avoid cruelty to animals. One does not have to happen at the expense of the other.