Case Study 7: Church of Lukumi Babalu Aye, Inc. v. City of Hialeah
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah is the principle Supreme Court case dealing with animal sacrifice and religious freedom. The case centers on the practice of Santeria, an Afro-Caribbean religious tradition whose predominant feature is animal sacrifice. After Ernesto Pichardo announced that he would be opening a Santeria church in Hialeah, Florida, the community swelled up into an uproar over the possibility of public and mainstream animal sacrifices. The stage was set for the battle between the Free Exercise Clause of the First Amendment and the government’s interests in prohibiting Santeria’s animal sacrifices.
First, we will discuss the background of the Santeria religion, its portrayal in the media and the circumstances in Hialeah that led to the lawsuit. Second, we will take you through the case’s progression through the district and appellate court, and to its ultimate destination, the United States Supreme Court. Third, we will discuss the impact the case has had.
Background on the Santeria Religion
Santeria, also referred to as Lukumi, is a combination of religious traditions and beliefs of the Yoruba faith and the worship of catholic saints. Santeria Religion 101, http://www.santeriareligion101.com/ (2006). Santeria was founded in approximately 1515. Id. The religion originated when the Yoruban natives were abducted from west Africa and unwillingly transported to the various Caribbean countries, such as Cuba, Haiti, and Brazil, to work on sugar plantations. Id. When they arrived at their Caribbean destinations they were unwillingly baptized within the Roman Catholic faith and forced to leave behind all of their traditional beliefs and practices. Id. In order to preserve their faith, these people managed to come up with a creative way to fuse and conceal their beliefs within the Roman Catholic Church by choosing a catholic saint and associating the saint to each of the orishas of their traditional practices. Id. An orisha is spiritual being or presence that is interpreted as one of the manifestations of God within the Santeria religion or faith. Id. In Cuba today, the terms "saint" and "orisha" are sometimes used interchangeably. In fact, the term Santería, also known as "the Way of the Saints", was originally a pejorative term applied by the Spanish to mock the followers' seeming overdevotion to the saints and to the worship of nature. Church of the Lukumi Babalu Aye, http://www.church-of-the-lukumi.org/Site%206/Welcome.html.
Santeria practitioners faced widespread persecution in Cuba. As a result, Santeria remained and still remains an underground practice. Id. Most religious activities take place in individual homes by extended family groups. As a result, Santeria is a more private, personal form of the Yoruban religion. Id.
Santeria practices include animal sacrifice, dance, sung invocations to the orishas, and sprinkling elemental mercury around a home. Id. Drum music and dancing are a form of prayer and will sometimes induce a trance state in an initiated priest, who then becomes possessed and will channel the orisha for numerous reasons. Id. Sometimes when the priest is possessed by an orisha, they will drink the blood of the sacrifices being offered to the orisha. Miguel A. De La Torre, Santería: The Beliefs and Rituals of a Growing Religion in America 213 (Wm. B. Eerdmans 2004). Of these practices, the most controversial is animal sacrifice.
Animal sacrifice is an integral part of the rituals and ceremonies of Santeria. Animals that are sacrificed include: chickens, pigeons, doves, ducks, guinea fowl, goats, sheep, and turtles. Church of Lukumi Babalu Aye v. City of Hialeah, 723 F. Supp. 1467, 1471 (SD Fla. 1989). The animals are killed by cutting the carotid arteries in the neck. Id. Most of the animals are consumed as food after they are sacrificed. Id. (animals used in healing and death rites are almost never consumed).
Today, Santeria can be found in many parts of the world today, including the United States, Cuba, the Caribbean, Mexico, Puerto Rico, Nicaragua, Argentina, Colombia, Spain, Italy, Portugal, Great Britain, Canada, Venezuela, Panama and other areas with large Latin American populations. The religion was brought to the United States mostly by exiles form the Cuban revolution. David M. O’Brien, Animal Sacrifice and Religious Freedom 19 (Kan. U. Press 2004).
Circumstances leading up to the case
By the 1980’s, there were an estimated 50,000 to 100,000 followers of Santeria in South Florida. O’Brien, Animal Sacrifice and Religious Freedom at 19. The Church of the Lukumi Babalu Aye, Inc. is a not-for-profit corporation organized under Florida law in 1973. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993). The Church practiced the Santeria religion. Id. The president of the church was Ernesto Pichardo, who also held the religious title of “Italero,” the second highest in the Santeria faith. Id. In the spring of 1987, Pichardo leased land in the city of Hialeah, Florida, and planned to open up the first public Santeria church in an abandoned used-car dealership. O’Brien, Animal Sacrifice and Religious Freedom at 33. The church was to be used as a school, a cultural center and a museum as well. Id. Also, he planned to conduct various religious ceremonies there, including animal sacrifice. Id.
Santeria’s Portayal in the Media
Yet even before Ernesto Pichardo announced his plans for a church, Santeriahttps://web2.westlaw.com/result/documenttext.aspx?fields=DA(AFT+1987+%26+BEF+1993)&rltdb=CLID_DB415222315219&effdate=1%2f1%2f0001+12%3a00%3a00+AM&db=ALLNEWS&service=Search&sskey=CLID_SSSA614584916219&dups=False&fmqv=s&rlti=1&sv=Split&fn=_top&rs=WLW8.09&cxt=RL&method=WIN&origin=Search&query=SANTERIA+MURDER+manslaughter+homicide+mexico&mt=LawSchoolPractitioner&eq=search&n=1&rlt=CLID_QRYRLT48935016219&vr=2.0&rp=%2fsearch%2fdefault.wl&cnt=DOC&cfid=1&scxt=WL&ssrc=0&ss=CNT - I#I had been linked to cocaine trafficking, ritual animal killings and even human sacrifices. Tiago O’Donnel, Poor Look to Botanicas for Magic Cures Religions: Healers' shops offer colored candles and blessings they claim soothe woes from cancer to heartbreak. Critics say they take advantage of clients' ignorance, L.A. Times 1 (July 21, 1991) (available at 1991 WLNR 3937323).
Additionally, ritual slayings in Matamoros, Mexico in 1989https://web2.westlaw.com/result/documenttext.aspx?direction=BNext&rltdb=CLID_DB415222315219&db=ALLNEWS&sv=Split&service=Search&effdate=1%2f1%2f0001+12%3a00%3a00+AM&dups=False&fmqv=s&scxt=WL&rlti=1&sskey=CLID_SSSA614584916219&ssrc=0&cxt=RL&method=WIN&strparmarrowtype=asnext&origin=Search&query=SANTERIA+MURDER+manslaughter+homicide+mexico&mt=LawSchoolPractitioner&eq=search&strparmnavnewdoc=yes&vr=2.0&docaction=best&rlt=CLID_QRYRLT48935016219&n=3&rp=%2fsearch%2fdefault.wl&ss=CNT&cnt=DOC&cfid=1&fields=DA(AFT+1987 - I#I, were linked to a Miami man who practiced Santeriahttps://web2.westlaw.com/result/documenttext.aspx?direction=BNext&rltdb=CLID_DB415222315219&db=ALLNEWS&sv=Split&service=Search&effdate=1%2f1%2f0001+12%3a00%3a00+AM&dups=False&fmqv=s&scxt=WL&rlti=1&sskey=CLID_SSSA614584916219&ssrc=0&cxt=RL&method=WIN&strparmarrowtype=asnext&origin=Search&query=SANTERIA+MURDER+manslaughter+homicide+mexico&mt=LawSchoolPractitioner&eq=search&strparmnavnewdoc=yes&vr=2.0&docaction=best&rlt=CLID_QRYRLT48935016219&n=3&rp=%2fsearch%2fdefault.wl&ss=CNT&cnt=DOC&cfid=1&fields=DA(AFT+1987 - I#I. John Fernandez, Animal Rights, Religious Freedom at Odds in Santeria Priest’s Fight, Palm Beach Post 1A (July 23, 1989) (available at 1989 WLNR 872782). Despite assurances that human sacrifice is not practiced by Santerias, the Hialeah citizens remained suspicious of the church. Staff Writer, Drug Cult Not Santeria, Anthropologist Says, Miami Herald 19A (April 13, 1989) (available at 1989 WLNR 1446238).
The South Florida media covered the case as a local controversy, with aroused citizens on both sides. Interview with Laycock. The national media ignored it until they got to the Supreme Court and then they focused on the exotic facts. Id. After the decision came down, a lot of people thought that the Hialeah ordinance was obvious and flagrant discrimination. Id.
The continuous media exposure was significant because it finally drew public attention to the issue. However, it also revealed the public’s inaccurate portrayal of the religion and its customs. Some articles pointed out that animal sacrifice was central to Judaism, continues as an annual ritual performed by all Muslims, and has been a part of African religions throughout history. Richard N. Ostling, Shedding Blood in Sacred Bowls Does American religious liberty extend to animal sacrifice? That's for the Supreme Court to decide, Time Mag. 60 (October 19, 1992) (available at 1992 WLNR 3905834). However, most of the publications focused on the “strange” details involved in the rituals. Id. They called the case “The Chicken Wars”. Id.
Yet, the media coverage caught the attention of mainstream religious groups who supported the Lukumi Babalu Aye church. Id. Jewish organizations feared that Hialeah's ordinance would dismantle kosher slaughtering. Id. Christian groups like the Presbyterian Church and National Association of Evangelicals want to prevent the Supreme Court from restricting their religious rights.
Hialeah community members complained that animal carcasses were left in canals, on the Courthouse steps, and street corners, violating zoning laws and posing a threat to public health. Id. One man, Bill Bonner, who lived on a sailboat on the Miami River, said he had seen two white-robed woman chanting and rubbing their naked bodies with a live chicken. The chicken was then slaughtered and its remains were thrown into the river. De La Torre, Santería at 210. Although the offering was an important expression of the women’s faith, the increasing number of decapitated chickens and doves left in the Miami River was becoming a significant problem. Id. Another woman recounted her distress over living next door to a house where Santeria was practiced, “My nights were a horror of drums beating and animals screaming. I have seen them drink blood.” O’Brien, Animal Sacrifice and Religious Freedom at 43. But the church argued that “Santeros either eat the animals they have slaughtered or dispose of them in accordance with existing laws”. Id. Regardless, misconceptions flourished and neighbors even expressed fear that their pets would be stolen and offered up to the gods. De La Torre, Santeria at 211.
Opposition to the religious rite was not limited to Hialeah’s citizens. Animal rights activists held demonstrations in front of the church and the Courthouse. Monica Rhor, Animal Rights Supporters Decry Santeria Practitioners, Protesters Clash During Demonstration, South Florida Sun-Sentinel 4B (April 29, 1992) (available at 1992 WLNR 4260508). The animal rights groups were, “the least important locally, but much more important nationally.” Interview with Laycock. Animal activists contended that Santeria sacrifices are inherently cruel. Rhor, S. Florida Sun-Sentinal at 4B. They argued that Santeria priests’ procedures are inhumane, allowing the animals to experience pain instead of killing them instantly. Id.
While the animal rights activists and those who supported the ordinance for public health reasons had different arguments, they both focused on the “unsettling” rituals of the Santeria. “What the whole coalition had in common was that it placed zero value on what it viewed as someone else's false religion.” Interview with Laycock.
In response to the public’s outrage, the city council passed four ordinances that banned all ritual sacrifice of animals: No. 87-40 (adopting the language of the state’s anti-cruelty statute); No. 87-52 (prohibiting the possession of animals intended for sacrifice or slaughter except where zoned); No. 87-71 (authorizing registered groups to investigate animal cruelty complaints); and No. 87-72 (prohibiting the slaughtering of any animals on premises not properly zoned for that purpose). Church of Lukumi Babalu Aye, 723 F. Supp. at 1471. Violations of each were punishable by fines of up to $500, imprisonment of up to 60 days, or both. Id. Interestingly enough, the ordinances still allowed kosher slaughterhouses. Id. These ordinances effectively and expressly forbid a central aspect of the Santeria religion.
Pichardo denounced the ordinances as discriminatory and a violation of the First Amendment’s guarantee of religious freedom. O’Brien, Animal Sacrifice and Religious Freedom at 47. With the assistance of the American Jewish Congress and the local chapter of the American Civil Liberties Union (ACLU), Pichardo and the church filed a lawsuit in the United States District Court for the Southern District of Florida. Id. at 47-8.
The District Court for the Southern District of Florida
The Church of Lukumi Babalu Aye, Inc. and Ernesto Pichardo, filed suit under 42 U.S.C. § 1983, a federal statute that allows individuals to sue state actors in state or federal courts for civil rights violations. Id. The defendants were the City of Hialeah, a number of city councilmen, and Raul Martinez, the mayor of the City of Hialeah. Church of Lukumi Babalu Aye, 508 U.S. at 528. The Plaintiffs alleged that the four Hialeah ordinances violated rights under the Free Exercise Clause of the First Amendment and sought: declaratory judgment, injunctive relief, and monetary relief. Id. The Free Exercise Clause states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I.
Representing the Church was a team of attorneys headed by Jorge A. Duarte, a Cuban Catholic who had converted to Buddhism. O’Brien, Animal Sacrifice and Religious Freedom at 34. He was a liberal that was known for recruiting minorities and women committed to public-interest law. Id. Representing Hialeah was Richard G. Garrett, a forty-one-year old lawyer from a leading Miami law firm. Id. at 48. At the trial, he was assisted by two other members of his firm, Stuart H. Singer and Laura T. Thomas. Id.
Presiding over the case was Judge Eugene P. Spellman. Id. at 74. Spellman had a reputation as a courageous, liberal-oriented jurist who took the Constitution seriously. Id. In the local community, he was known as “the little giant.” Id.
Judge Spellman granted summary judgment to the councilmen and mayor in their individual capacities, finding that they had absolute immunity for their legislative acts and that the ordinances and resolutions adopted by the council did not constitute an official policy of harassment.1 Church of Lukumi Babalu Aye, 508 U.S. at 528. The trial on the remaining claims began on July 31 and continued throughout August, with closing arguments on August 28, 1989. 75. O’Brien, Animal Sacrifice and Religious Freedom at 75.
Judge Spellman ruled for the city, finding no violation of petitioners’ rights under the Free Exercise Clause. Church of the Lukumi Babalu Aye, 723 F. Supp. at 1487. In making his ruling, Judge Spellman reasoned that determining whether the ordinances passed constitutional muster required balancing the competing governmental and religious interests. Id. at 1483. This balancing included two threshold tests: (1) whether the ordinances were regulations of conduct, rather than of religious beliefs, and (2) whether they had a secular purpose and effect. Id.
First, Judge Spellman said the ordinances clearly met the first test. Id. Although he acknowledged that the legislation was “not religiously neutral” and was “prompted” by the establishment of the Church in the city, the ordinances were not passed to interfere with religious beliefs, but rather to regulate conduct. Id. at 1476-7.
Second, the purpose of the ordinances was not to exclude the Church from the city but to end the practice of animal sacrifice, for whatever reason practiced. Id. at 1479. The court found that the ordinances did not target religious conduct “on their face,” though it noted that in any event “specifically regulating religious conduct” does not violate the First Amendment “when the conduct is deemed inconsistent with public health and welfare.” Id. at 1483-4. Hialeah had a secular purpose in protecting the health and welfare of the community and in preventing animal cruelty. Id. at 1484.
Both tests having been met, next the District Court determined whether the governmental interests underlying the ordinances were compelling and, if so, to balance the “governmental and religious interests.” Id. Although Hialeah’s ordinances burdened the practice of Santeria, Judge Spellman found three compelling government interests that outweighed the church’s First Amendment claims. Id. at 1485. The city had an interest in safeguarding the public health, preventing adverse psychological effects on children exposed to such sacrifices, and preventing animal cruelty. Id.
Also, the court said that an exception to the sacrifice prohibition for religious conduct would “unduly interfere with fulfillment of the governmental interest.” Id. at 1486-7. Any more narrow restrictions, such as regulation of disposal of animal carcasses, would be unenforceable as a result of the secret nature of the Santeria religion. Id. The bottom line was that the compelling governmental interests “fully justify the absolute prohibition on ritual sacrifice” accomplished by the ordinances. Id.
The Supreme Court decides Employment Div. v. Smith
Before the Lukumi Babalu Aye case was appealed, the Supreme Court decided Employment Div., Dept. of Human Resources of Ore. v. Smith, which held that a law need not be justified with a compelling state interest so long as it is both generally applicable and neutral, even if it incidentally burdens a religious practice. 494 U.S. at 879 (1990). However, “A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Church of Lukumi Babalu Aye, Inc., 508 U.S. at 531-532. Otherwise, the law violates the Free Exercise Clause of the First Amendment.
In light of Smith, the Church figured that it needed assistance in appealing Judge Spellman’s decision. It found its man in Douglas Laycock.
A Brief Aside: Douglas Laycock’s Story
Douglas Laycock never worked at a big firm. Interview with Douglas Laycock. He was ideological and never wanted to have to represent “bad guys”. Id. He had a solo practice in Austin from 1974-76 with an office sharing arrangement in Austin and a steady flow of work from a firm in Chicago. Id. He then joined the faculty at Chicago-Kent in 1976, where he worked with Professor Ronald W. Staudt. Id. In 1981, Mr. Laycock became a Professor of Law at the University of Texas at Austin.
As aforementioned, the church initially came to Jorge Duarte who was later joined by Horwich and Rosen. Id. They were all experienced trial lawyers, although none of them were appellate lawyers. Id. Rosen was active in the American Jewish Congress, and he called its national office in New York to ask for their involvement in the appeal. Id. Marc Stern was the religious liberty lawyer there, and he thought this was an important case. Id. Stern would have done the appeal, but the number two lawyer on his staff was an animal rights activist which would have caused too much internal conflict. Id.
Marc Stern and Mr. Laycock had met in 1989 at a conference on religious liberty, at Notre Dame. Id. Stern called Mr. Laycock and asked him to do the appeal to the Eleventh Circuit. Shortly after that, Smith came down, and the issues completely changed. Id. Mr. Laycock remembers wondering if there were sanctions rules for frivolous appeals, but after he looked at the ordinances, he decided that they weren't generally applicable at all. Id.
Mr. Laycock’s decision to take on the case was met with mixed opinions. Id. He got hate mail from some of the animal rights activists and good amicus support from mainstream religions. Id. He also got overwhelming advice not to file a certiorari petition. Id. His dissenters thought that this case would only make bad law; the Court was out to eliminate the Free Exercise Clause and Lukumi had awful facts, which could help finish the Clause off. Id.
Mr. Laycock thought of himself as representing the church, but also had the cause in mind. Id. “Cause lawyers have to be very careful about this; they have a client, and the interests of the client come first. If the client's interests conflict with the interests of the cause, you can turn down the case. Or you can ignore the clause and represent the client. But you cannot ethically sacrifice the client's interests for the cause, although some lawyers do.” Id.
He based his decision to file a certiorari to the Supreme Court off of the clients’ interests. Id. The clients didn't want to give up, and if Mr. Laycock had thought it was hopeless, or that it risked making the law even worse for, he would have told them. Id. But he thought the case was had a chance and that if he could get the Court focused on discrimination instead of on the act of sacrifice, they could win. Id.
Mr. Laycock would not sign on to help a client that he didn’t feel was right. Id. And in this instance, he felt connected to the cause as well as the case. Id. It was not a very attractive religion in his view, but it was their religion and they were entitled to it. Id. While he could recognize that his opposing counsel also had a client to represent, he couldn’t help but view them as, “forces of oppression, trampling on civil liberties for light and transient causes, and sometimes lying and misrepresenting the record to try to accomplish their evil ends.” Id.
Today Mr. Laycock, a law professor at the University of Michigan, litigates First Amendment free exercise of religion cases, religious free speech cases, and establishment clause issues in cases of government religious speech. Id. He thinks everyone's religious liberty should be protected, both believers and nonbelievers, so he is sometimes on one side of the culture wars and sometimes on the other. In the Supreme Court, he represented the Church of the Lukumi, and also the Archbishop Flores in City of Boerne for their free exercise of religion issues City of Boerne v. Flores, yet also represented the families objecting to prayer at high school football games in Santa Fe Indep. School Dist. v. Doe. Id.
Back to the Case: The Court of Appeals for the Eleventh Circuit
Equipped with their new attorney, council for the church was ready to appeal Judge Spellman’s ruling in the Court of Appeals for the Eleventh Circuit. The Eleventh Circuit extends over Alabama, Georgia, and Florida. O’Brien, Animal Sacrifice and Religious Freedom at 95. At the time, it was one of the most conservative federal appellate courts in the country and the three-judge panel assigned to hear the appeal was composed of “old-time southern judges.” Id.
The oral arguments pitted Laycock against Garrett for the first time. Id. at 96. The proceedings were not particularly interesting, and the judges asked relatively few questions. Id. The attorneys heard nothing from the court for six months. Id.
Then on June 11, 1991, the Eleventh Circuit issued a one-paragraph, per curiam opinion affirming the decision of the district court. Id. It simply stated that the panel concluded the ordinances were consistent with the Constitution. Church of Lukumi Babalu Aye, 508 U.S. at 530. In a footnote, the panel noted that Judge Spellman “employed an arguably stricter standard in analyzing whether the ordinances violate the United States Constitution than the Supreme Court did in [Smith].” O’Brien, Animal Sacrifice and Religious Freedom at 96. Additionally, they stated that they did not need to decide the effect of Smith on this case. Id. at 97.
The Church was obviously disappointed. In addition, their chances of getting the Supreme Court to hear their case seemed slim due to the Court’s increasingly conservative nature and its decreasing propensity to grant cert. But they had nothing to lose. So the Church filed for cert and low and behold cert was granted on March 23, 1992. Id. at 100.
The Church and the City of Hialeah file their Briefs
In the October Term of 1992, the Supreme Court received briefs from counsel of both the Church of Lukumi Babalu Aye and the City of Hialeah. The Church was striving to overcome the angry despair that had consumed them since the 11th Circuit’s per curiam affirmation of the District Court’s decision against them. Thus, the diligent work and passion shined through each sentence of the Petitioner’s Reply Brief. The Church first argued that the ordinances discriminated against the Santeria religion and unduly burdened the free exercise of their religious practices. Therefore, using the newly adopted Smith test, the Church urged the Court to hold the ordinances unconstitutional because they were neither neutral nor generally applicable. The ordinances are not generally applicable, the Church argued, because there is no general ban on killing animals neither in the state of Florida nor in the city of Hialeah. This ban was specifically targeted at the Santeria religious practice of animal sacrifice.
However, the City, in its Brief for Respondent, argued that the ordinances were facially neutral and passed the Smith test. The City’s argument relied heavily on the fact that the District Court found the ordinances to be simple zoning laws, thus rendering them neutral and generally applicable. The purpose of the ordinances was to ban indiscriminate slaughtering of animals in areas of the city where they were not zoned. However, the Church found this argument to be “absurd.” It argued that labeling the ordinances as zoning laws does not justify the suppression of the central ritual of a minority religion. Furthermore, zoning laws allow the particular act to be carried out where it is properly zoned; however, the City does not attempt to explain why these ordinances prohibit sacrifice instead of confining it to an appropriate zone.
The Petitioner argued the ordinances expressly and exclusively regulated religion, because sacrifice is a religious act. The limitation in one of the ordinances to specifically a “ritual or ceremony” further evidenced its religious undertones. It relied on the District Court’s holding that the ordinances were “to stop animal sacrifice whatever individual, religion or cult it was practiced by.” The City, on the other hand, said the explicit language against rituals and ceremonies was to eliminate any possible confusion amongst the community, because the City did not want to regulate all people who raise and consume their own meat. Also, interestingly enough, in Respondent’s Brief, the City misstated Ordinance 87-52 by omitting the terms “for any type of ritual” so as to present the ordinance as simply a general prohibition on the slaughter or sacrifice of animals in that area. However, the Church noted this seemingly devious mistake and said, “If the limitation to ritual did not target religion, the City would not be afraid to quote it.”
Another reason the Church argued the Court should invalidate the statutes is due to is discrimination between Kosher slaughter and Santeria sacrifice. Ordinance 87-71 exempts killings where the primary purpose of the slaughter is for food consumption, which the District Court ruled to exempt Kosher slaughter. The City argued that Kosher slaughter is not exempt by the ordinances, but it is exempt because it complies with the Federal Humane Slaughter Act. However, the Federal Humane Slaughter Act is not mentioned in the ordinances and the Church argues that the critical distinction is in the primary/secondary purpose iterated in the ordinance.
The Church also elucidated three indicators of religious gerrymander on the part of the City and the enacted ordinances. First, any attempt to apply the ordinances leads to two inconsistent legal theories: Santeria sacrifice qualifies as slaughter for the purpose of applying the ordinance, but it is not slaughter for purposes of pre-emption. But the City fervently argues that the Petitioner did not raise pre-emption issues in Court. The second indicator is that an attempt to apply the ordinance misclassifies Santeria churches and even homes of Santeros as slaughterhouses. This is absurd, given the fact that the City does not subject other sacrificial killings to slaughterhouse rules. Finally, the ordinances exempt small-scale slaughter, hunting, and slaughter for primary purpose of consumption, and any other imaginable twist of semantics to ensure that Santeria sacrifice is absolutely not exempt. Notably, on the issue of hunting, the City argued the reasons to allow it are so “self-evident” that it need go no further in explaining its legality. Finally, the deputy city attorney testified that the Church was not a slaughterhouse when issuing the requisite zoning permits to the Lukumi Church. This is further evidence that the Ordinances were enacted purely for discriminatory reasons.
The Church also had serious qualms with Ordinance 87-40, which prohibited “unnecessary killings.” This “theological judgment” bolstered the Church’s theory that the City Council of Hialeah simply targeted the Santeria religion with both prejudice and hatred. The City rebutted by arguing the qualification was added due to the advice given by the Attorney General. Mr. Butterworth, the attorney general, said the ritual killing of animals is not necessary under state law, and therefore, the City can ban it.
The Church argued that because the ordinances are discriminatory and are neither facially neutral nor generally applicable, they are subject to a compelling state interest test as stated in the Supreme Court’s opinion in Smith. The City argued that it had three compelling state interests to enact the ordinances. First, the unsanitary, careless disposal of animal sacrifice waste posed a severe health hazard. The City proved that remains of animal sacrifice were found in public places, including home backyards, railroad tracks, and behind the city’s courthouse. Also, evidence showed that rats, flies, and a plethora of pests gravitated towards the remains, which posed a threat for widespread disease. Second, the inhumane treatment of animals awaiting sacrifice created a compelling state interest to protect those animals. The City argued the animals were often not fed or watered in light of the immediate upcoming sale to be sacrificed. Finally, the cruelty of animal sacrifice itself created a compelling state interest to interfere, relying on testimony that often birds’ heads were ripped off of their bodies.
The Church responded to these purported compelling interests with very strong arguments. The City does not explain how the garbage produced by animal sacrifice is any more compelling than any other garbage or why the sacrifice of animals by the Santeria church is more harmful to them than any other type of slaughter or sacrifice. Although the trial court accepted the contention that animals did experience fear and a brief period of consciousness prior to death, the Petitioner argues that it is a legal question whether this poses a compelling state interest. Also, Florida provides many legal means of killing animals that are arguably equally inhumane, including the boiling of lobsters. This is further evidence of the singling out of the Santeria religion. The City also ignored the testimony of the public health officer that the garbage problem posed by animal sacrifice is “indistinguishable from any other garbage problem.” Furthermore, the health problem is not about sacrifice but more about improper disposal. If the City felt the garbage problem posed a compelling state interest, than the ordinance should be directed at regulating disposal rather than wholly banning religious sacrifice. However, the City responded by saying that tedious regulation of disposal and methods of sacrifice would risk enmeshing government with religious affairs.
In hindsight and given the Supreme Court’s decision, it is clear that the Church’s Brief for Petitioner was much stronger than the Respondent Hialeah. Although the City was the respondent, it often seemed as if it was completely ignoring the petitioner’s arguments and creating it’s own justifications. On the other hand, the Church’s Reply Brief attacked each and every on of those justifications and posed questions of intent and action that the City could simply not answer. Ultimately, the Church’s passion spoke volumes and its argument rang louder to the ears of the Justices.
The Amici Curiae Briefs
Both animal rights activists and religious groups seeking to protect their religious freedoms wanted their bite of the Supreme Court pie. The head on collision of animal rights versus the First Amendment right to freedom of religion ignited the nation’s leading non-profit organizations and interest groups and led to the submission of ten amici curiae briefs in the case. The future implications of such a landmark decision were undeniable, and groups throughout the nation felt it was both their civic duty and political responsibility to make their voices heard.
Five briefs were submitted in support of the Respondent City of Hialeah. The first was submitted on behalf of the Humane Society, American Humane Association, American Society for the Prevention of Cruelty to Animals, Animal Legal Defense Fund, and the Massachusetts Society for the Prevention of Cruelty to Animals. It was a heated reiteration of the Respondent’s main argument: even though the ordinances were both generally applicable and neutral, they were also justified by a compelling state interest. The interest to protect against animal cruelty is a matter of strong public policy, which is underscored by a plethora of legislative grants of special police powers to private humane societies to enforce animal cruelty prohibitions. Furthermore, the ordinances serve the compelling state interest to preserve public morals and protect human life, because evidence demonstrates a distinct link between animal cruelty and violence among humans. The Washington Humane Society and the People for the Ethical Treatment of Animals, New Jersey Animal Rights Alliance, and the Foundation for Animal Rights Advocacy submitted briefs, which were argumentatively similar to the aforementioned brief and the Respondent’s brief.
The brief in support of the Respondent submitted by the International Society of Human Rights, Citizens for Animals, Farm Animal Reform Movement, in Defense of Animals, Performing Animal Welfare Society, and the Student Action Corps for Animals was not a rehashing of Respondent’s arguments. On the contrary, it fiercely argued that the Court should abandon the compelling state interest test where the statute in question prohibits action as opposed to belief. The amici urged the Court to adopt the test of heightened scrutiny, where the state need only present a legitimate and important state interest. Under the heightened scrutiny test, the ordinances were unquestionably constitutional.
Interestingly, the Institute for Animal Rights Law, American Fund for Alternatives to Animal Research, Farm Sanctuary, Jews for Animal Rights, United Animal Nations, and United Poultry Concerns argued the Court had improperly granted the Writ of Certiorari. These organizations expressed the following justiciability issues: the case was not ripe because the ordinances had never been enforced, there were other laws in place that would prevent Santeria animal sacrifice even if the Lukumi Church won, and the case was moot because the Church no longer wished to sacrifice animals on site. Arguably, the Court does not take favor to amici arguing it was incorrect in granting Certiorari. Perhaps, retrospectively, this was not a tactically sound move.
In hindsight, two of the amicus curiae briefs in support of the Petitioners were strategically risky. Surprisingly, both the Rutherford Institute and the Council on Religious Freedom argued against adopting the Smith test. The Institute argued that deference to the legislature went against forty years of First Amendment precedent and enabled legislatures to mask a religiously discriminatory intent with facially neutral language. The Institute urged the Court to analyze the issue presented on a case-by-case basis and not hold Smith as controlling precedent. The Council on Religious Freedom’s basis its argument on the supposed confusion caused by the Smith test. It also wanted the Court to limit the Smith test to application only towards religious acts deemed to be malum in se.
The National Jewish Commission on Law and Public Affairs also submitted an amicus curiae brief arguing that the ordinances were neither generally applicable nor neutral and therefore, under the Smith test, constituted a violation of the First Amendment. However, the Commission only applied the Smith test to demonstrate its deficiencies. It argued that Smith emphasized form over substance of enactments and, therefore, endangered religious freedom. Not surprisingly, Jewish organizations vehemently supported the Santeria church, because they felt the method by which Santeros sacrifice and consume animals was strikingly similar to the preparation and consumption of kosher meat. Any holding against the Petitioners could provide precedent for attacking the religious sacrifice of animals under the Jewish faith. Thus, the Commission’s amicus brief concluded with an appeal to the Court to establish a standard that would be more protective of minority religious freedoms.
The Brief Amicus Curiae of Americans United for Separation of Church and State was joined by a variety of religious organizations, including Jews, Catholics, and Evangelicals, that supported the Church of Lukumi Babalu Aye. These religions joined efforts to convince the Court that the ordinances were blatantly discriminatory against the Santeria religion. Similar secular practices of sacrifice and slaughter were clearly exempted from the prohibition. Furthermore, upholding the ordinances would create dangerous repercussions for all religious freedoms.
Finally, the United States Catholic Conference did not support either party, but also urged the Court to disregard the Smith test and avoid creating a line of precedent utilizing its constitutionally dangerous standard.
The persistent conflict between religious freedoms and animal rights was brought to the forefront by the Church of Lukumi Babalu Aye and Hialeah’s ordinances prohibiting animal sacrifice. Religious leaders joined hands and passionately fought for the rights they felt would be endangered by an affirmation of the district court’s holding. On the opposite side of the ring, animal rights activists speared the Petitioner’s arguments with a strong stance against animal cruelty, regardless of whether religious or secular groups were supporting animal sacrifice. Ultimately, the Court aligned with religious freedom and chose to give the animal rights activists a deaf ear.
Oral Arguments in the Supreme Court
Approximately seven months after granting certiorari, the Supreme Court was ready to hear oral arguments on Wednesday, November 4, 1992. O’Brien, Animal Sacrifice and Religious Freedom at 117. The importance of oral arguments is clear: they focus the minds of the justices and present opportunities for fresh perspectives. Id. Most justices will have bench memos of the case drafted by their law clerks to help them identify central issues and possible questions. Id. Each side was allotted thirty minutes to make their argument. Id.
At 10:01 a.m. the justices filed into the courtroom from being the curtains behind the bench, took their seats, and called Mr. Laycock up to the podium to make the church’s argument. Id. at 118. Due to a knee injury sustained while playing with his kids, Laycock arrived at the Court wearing a plastic cast and walking with the aid of crutches. Id. at 118-19. In addition to his injury, Laycock only had a few days at home after his hospital stay to prepare to make an argument that he had previously lost in the Eleventh Circuit. Id. at 120. Under these difficult circumstances, Laycock began his argument.
Laycock began by stating that Hialeah's law is an example of ''open discrimination against a minority religion.” S.C. Transcr. 1 (Nov. 4, 1992). Almost immediately the Justices began their onslaught of questions. The Justices first major concern was whether finding the Hialeah ordinances unconstitutional was consistent with Smith, or, in other words, are the ordinances not a neutral and generally applicable regulation. Id. at 7. Laycock responded that in taking aim at one religion practice, the Hialeah law is neither neutral nor general. Id. He said the Smith decision underscored the conclusion that "you have to at least treat religious acts" in no more harsh a manner than "analogous secular acts." Id. at 11. He noted that under the law in Hialeah, by contrast, "you can kill animals for any reason, even if you're tired of taking care of them," as long as the purpose is not sacrifice. Id. at 8. He even noted that death by bow and arrow was permitted under the Hialeah ordinances. Id. Laycock labeled the Hialeah ordinances “under-inclusive with a vengeance.” Id. at 23.
Particularly skeptical was Justice Scalia, the author of the Smith decision. At one point, Justice Scalia asked Laycock what was wrong with the city's argument that its effort to curb the "conduct" of animal sacrifice should not be seen as an attack on religion at all. He asked, "Why isn't it valid for them to argue that they don't care about religion, they just don't want sacrifice?"
"If that's a valid argument, then you really have repealed the free-exercise clause,” Laycock replied. He said that "any lawyer in the country" would know how to draft a law that made religion a target but did so in neutral terms. Id. at 18. At another point in the argument, after Mr. Laycock said, "When you suppress a central ritual, you suppress the religion." Justice Antonin Scalia shot back: "The Thugs were a religious group, and their central ritual was killing other people. Certainly you can outlaw that." Id. at 17-8.
After Laycock concluded, it was Garrett’s turn to defend the city of Hialeah’s ordinances. The confident, theatrically predisposed Garrett stepped up to the podium. O’Brien, Animal Sacrifice and Religious Freedom at 125-6. Utilizing graphic descriptions, Garrett launched into the issues of health, safety, and welfare that the ordinances were enacted to combat; issues that ritualistic sacrifices have particularly brought into the city of Hialeah. Id. at 126. In particular, Garrett said that animals awaiting sacrifice were "tortured" and that the unsanitary remains were found throughout Hialeah. He said "tens of thousands of animals" were involved. S.C. Transcr. 25. "There are goat heads and blood being preserved where people live, creating vectors for disease," said Garrett. Id. Garrett added that the religion practices Satanism, witchcraft and voodoo. Id. at 29.
The Justices took issue not with Garrett's vivid descriptions but with his assertion that a flat ban on animal sacrifice was the only feasible way of dealing with the problems he depicted. Id. at 26. They were concerned with whether Hialeah could preserve public health with another approach, perhaps by regulating disposal of dead animals or by allowing animal sacrifice at slaughterhouses. Id. Garrett replied that "inhumane conditions begin at the point of sacrifice." Id. He also said it would be impossible for the city to regulate how animals were killed in homes, where the underground Santeria religion typically is practiced. Id. Garrett said there was no reason to address other types of killing in the ordinances because the city was not having problems with hunting or animal control. Id. at 27.
Justice Stevens went on to ask whether it would be lawful in Hialeah to kill one's cat "to put it out of its misery." Id. at 32. Yes, Garrett said. Then Stevens asked if the city would allow him to drown his cat in the bathtub, even if the cat were not sick. Id. No, Garrett said, that would violate the city's ban on cruelty to animals. Id. Justice O'Connor asked whether it was permissible to kill mice and rats in a home or boil live lobsters. Id. at 36. Garrett said the city ordinances would not affect the trapping of rodents because that is not sacrifice. Id. To buttress his argument that the law was religiously neutral, Garrett was forced to agree it would also be illegal in Hialeah to boil a lobster to eat. Id.
To this line of questioning the courtroom was filled with laughter. O’Brien, Animal Sacrifice and Religious Freedom at 130. Garrett was clearly flustered by the course of the questioning and was struggling to stay afloat. Id. At this point, one of Laycock’s co-counsel passed him a note that read: “we’ve won.” Id.
On rebuttal, Laycock reinforced the idea that Santeria’s method of sacrifice is not cruel to the animals and that the city allows other forms of killing that are much crueler than the practices of Santeria. Id. at 49-50. “It’s only the religion that has to be perfect if it is to exist at all inside the city.” Id. at 50.
The Supreme Court’s Opinion
On June 11, 1993, the Supreme Court issued an opinion in the case of The Church of Lukumi Babalu Aye, Inc. v. City of Hialeah. Although it consisted of several concurring opinions, the opinion, notably, did not have a dissent. Justice Kennedy delivered the opinion of the court holding the ordinances violated the Free Exercise Clause of the First Amendment. Church of Lukumi Babalu Aye, 508 U.S. at 547. The Court spent a large portion of its opinion on explaining the religious history and fundamentals of the Santeria religion, the legislative history of the ordinances in question, and the establishment of the Lukumi Church in Hialeah. See Id. at 524-530.
The Court rejected the Respondent’s contention that the analysis should end with the text of the ordinances. Instead, the Court adopted the test established by Smith. 494 U.S. at 879. The Smith test proved to be crucial in the holding of this case and ultimately bound the Justices to hold the Respondent to a compelling state interest standard. Thus, the 11 Circuit’s ruling, arguing the Smith test was not dispositive because the district court had used a stricter standard, was incorrect. Church of Lukumi Babalu Aye, 508 U.S. at 530.
Therefore, using the Smith test, the Court first analyzed whether the ordinances were neutral and generally applicable. The Court agreed with Petitioners that the terms “ritual” and “sacrifice” used in three of the ordinances were evidence of facial discrimination against religious practices, but argued they were not conclusive. Church of Lukumi Babalu Aye, 508 U.S. at 534. However, when considered in conjunction with residents expressing concern about the Santeria religion at council meetings and the practical application and operation of the ordinances, the textual religious connotations further bolster the non-neutrality of the ordinances. Id. at 534-535. After delving deeply into the text and application of each ordinance, the Court ultimately holds, “It is a necessary conclusion that almost the only conduct subject to Ordinances 87-40, 87-52, and 87-71 is the religious exercise of Santeria church members.” Id. at 535. Thus, the Court held the ordinances were not neutral. Id.
Second, the Court considered whether the ordinances were generally applicable. Id. at 542. Although the Respondent claimed the ordinances were generally applicable to advance the interests of public health and prevent animal cruelty, the Court held, “They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does.” Id. at 543. The ordinances did not apply to hunters, kosher slaughter, infliction of pain and suffering on animals for medical science, nor was there any general ban on the killing of animals. Id. Furthermore, the ordinances were not generally applicable with respect to advancing public health, because Respondent did not prohibit hunters from bringing their kill home to eat. Id. at 545.
Because the Court held the ordinances to be neither neutral nor generally applicable, it then considered whether there was a compelling state interest. The Court held that although protecting public health and safety and preventing cruelty against animals were state interests, they were not compelling enough to single out the Santeria religious practice. These were legitimate state interests that could easily be addressed by methods other than a ban on Santeria animal sacrifice. Id. at 538. Finally, even if the Court found that these were compelling governmental interests, it held that the ordinances were not narrowly tailored to advance those interests. Id. at 546. Therefore, the decision of both the 11thth Circuit and the district court was reversed. Id. at 548.
In his concurring opinion, although Justice Souter thought that formal neutrality and general applicability were necessary conditions so as to not violate the Free Exercise Clause, he expressed deep concern with the Court’s strict adherence to the Smith test. He encouraged the Court to wholly reconsider the implications of Smith. Justice Scalia’s concurring opinion, joined by Chief Justice Rehnquist, considered the overlapping nature of “neutrality” and “general applicability.” Therefore, he opined that the Court need not decide whether the ordinances are violate both terms in order to pass First Amendment muster. Furthermore, the biased motive of the city council in enacting the ordinances was not a necessary inquiry for the Court in determining constitutionality. Finally, the concurring opinion written by Justice Blackmun, joined by Justice O’Connor, considered the Court’s application of the Smith test to be inaccurate. Justice Blackmun considered the test purported in the dissent of Smith to be a more accurate standard and felt the Court should have used it instead. That test held that any law that intentionally or unintentionally placed a burden on a religiously-motivated practice must be justified as the least restrictive means of achieving a compelling state interest.
Impact of the Decision: Law
After Lukumi was decided, Locke v. Davey ruled on an appropriate standard of review for Free Exercise cases. 540 U.S. 712, 725 (2004). In 1999, Davey, a high school graduate, was selected to receive a scholarship towards a private Christian college where he was to pursue a double major in pastoral ministries and business administration. Several months later, Washington’s Higher Education Coordinating Board decreed that theology majors were no longer eligible to receive scholarship money. Davey filed a free exercise of religion claim. He argued that under the Lukumi rule, the scholarship program is presumptively unconstitutional because it is not facially neutral with respect to religion. The U.S. Supreme Court distinguished the case from Lukumi because there was nothing in the scholarship program that suggested animus toward religion and did not impose criminal or civil sanctions on any type of religious service or rite. Thus, the law was subjected to a rational-basis test. Under rational-basis review, Davey’s claim failed.
“Litigation can help at the margins; good precedents can make things better. Religious claimants have something to argue about now. Before Lukumi, their claims seemed hopeless; since Lukumi, we get cases saying that if there's a secular exception, there has to be a religious exception, although that remains disputed.” Interview with Laycock.
Impact of the Decision: Plaintiffs
In June of 2007, a pharmacy owner in Coral Gables, Florida, was being initiated into the Santeria priesthood. Tere Figueras Negrete and Elaine De Valle, For Santeros, Religious Freedom is Anything But, Miami Her. (August 14, 2007) (available at 2007 WLNR 15744969). The ritual, which involved animal sacrifice, was interrupted by a swarm of police officers, television cameras and patrol cars. Id. Ernesto Pichardo, still the most notable member of the Lukumi church, and high priest, commented, “When we hear about Santeria in Coral Gables, it’s as if Santeria doesn’t have a right to be in Coral Gables … but it’s okay if it’s in Little Havana, or it’s alright if we do it in Hialeah … As long as it is marginalized and only appears in the lower strata of society, then it’s okay.” Id.
The church has been trying for over a year to obtain records from the City of Coral Gables, including emails about the incident, photographs, audio recordings, police reports and memorandums. Elaine De Valle, Santeria Church Sues Gables Over Visit From Police, Miami Her. (July 8, 2008) (available at 2008 WLNR 12801668).
The Miami-Dade County Police Officials will include, in their 2009 Law Enforcement Handbook, a reminder that the Constitution protects the humane killing of animals in religious ceremonies. Mike Clary, Mysterious, Controversial: Santeria Sacrifices Protected Humane Animal Killings in Ceremonies are Permitted Under U.S. Constitution, S. Florida Sun-Sentinel (July 27, 2008) (available at 2008 WLNR 13993430). The decision to include the reminder in the handbook stemmed from a memo written by the department’s legal advisor, Nicole Dixon, who informed officers of the 1993 Lukumi Supreme Court decision. Id.
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