Guest column: Supreme Court did not okay animal sacrifice
From ANIMAL PEOPLE, July/August 1993:
by Gary L. Francione and Anna E. Charlton
ANIMAL RIGHTS LAW CENTER
On June 11, 1993, the Supreme Court issued its
decision concerning animal sacrifice in Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah. The next
day, most major newspapers carried headlines proclaim-
ing that the Court had held that animal sacrifice is protect-
ed by the First Amendment freedom of religion clause.
Typical of those proclamations was the one splashed
across the entire front cover of New York Newsday: “Top
Court OKs Animal Sacrifice.” Reading the comments of
major humane organizations in reaction to the decision,
including those such as the American Society for the
Prevention of Cruelty to Animals which have the police
power to stop the infliction of cruelty on animals, we have
been distressed to realize that the decision has been read
far too broadly, and that there is the mistaken impression
that humane officers are now powerless to stop the brutali-
ties of animal sacrifice.
The Court’s opinion in Lukumi was somewhat
convoluted and was confused by current disagreement
among Justices concerning how the constitutional guaran-
tee of the free exercise of religion should be interpreted.
In light of these misunderstandings, we have offered the
resources of the Animal Rights Law Center to assist
municipalities and concerned individuals to assess their
options for working to protect animals from sacrifice.
First, the opinion of the Supreme Court must be
more clearly understood. The Court did not hold animal
sacrifice to be protected, as is being widely asserted;
rather, the Court held that these practices could not be
prohibited by legislation that was specifically intended to
target religious practices alone. A municipality may still
ban animal sacrifice, so long as these prohibitions are in
accordance with neutral and generally applicable rules,
such as state anticruelty statutes. Moreover, a municipali-
ty may still ban all slaughter outside of licensed packing
houses or prohibit completely the keeping of certain types
of animals.
Background of the case
The Lukumi case arose from concern over the rit-
ual sacrifice of animals. The members of the Church of
the Lukumi Babalu Aye are practioners of Santeria, which
requires the sacrifice of many different animals as part of
its services and sacraments. We have been distressed to
hear politicans and even officers of humane societies dis-
miss Santeria with disdain as a “cult.” Santeria is derived
from the Yoruba religion, which originated some 4,000
years ago in West Africa around what is now Nigeria,
where it is still practiced. Yoruba was carried from West
Africa to the Caribbean with the slave trade. Because
slaves were frequently forced to convert to Christianity,
they could not openly practice Yoruba, and so the slaves
“syncretized” the Yoruba dieties with Catholic saints in
order to continue worshipping them. Santeria dieties have
a dual identity: the original Yoruba god, and the Catholic
saint with whom the god is syncretized.
Santeria came to the United States primarily with
the influx of Cubans in the 1950s and 1960s. Its adherants
are concentrated in south Florida, New York City, north-
ern New Jersey, and Los Angeles. Many Cubans them-
selves, however, consider Santeria a backward religion
that reflects badly on the Cuban community, and the
Church of the Lukumi Babalu Aye’s intention to establish
a church in Hialeah caused consternation.
There are an estimated 60,000 Santeria practi-
tioners in Dade County. The priest of the Lukumi Church
testified that between 12,000 and 18,000 animals per year
are killed in initiation ceremonies alone in Dade County.
Many thousands more are killed in other ceremonies as
offerings to the gods, including sheep, goats, hens,
roosters, pigeons, turtles, and opossums. The ceremonies
take place in private homes, and are kept secret even from
the majority of the congregation. The bodies of the ani-
mals are disposed of in the garbage or placed in certain
public places such as riverbanks, as required by the pre-
cepts of the religion.
The City of Hialeah passed six ordinances that
collectively banned animal sacrific, slaughter, and the
keeping of animals for sacrifice or slaughter. The ordi-
nances provided an exception for slaughter of animals in
properly zoned and licensed packing plants, and for
slaughter by small farmers of limited numbers of hogs or
cows.
In deciding whether these ordinances were con-
stitutional, the Court applied the test articulated in
Employment Division v. Smith, a case concerning the
sacramental use of the hallucinogen peyote by Native
Americans. Smith, decided by the Court in 1990, held that
a law which burdens religion need not be justified by a
compelling state interest if that law is neutral and of general
applicability. The Supreme Court in L u k u m i decided that
the case record indicated that the ordinances were passed in
response to public hostility to the idea of the dedication of a
building as a Santeria Church, and concluded that the ordi-
nances were not neutral. The Court stated that “the record
in this case compels the conclusion that suppression of the
central element of the Santeria worship was the object of
the ordinances,” and that the City Council “gerryman-
dered” the ordinances so that they would only apply to
Santeria. The ordinances thus failed the S m i t h test. It is
important to understand that this does not mean that animal
sacrifices cannot be regulated or banned.
Why the Hialeah ordinance failed
The problem in interpreting the L u k u m i d e c i s i o n
occurs because, in deciding whether the Hialeah ordi-
nances were neutral, the Court noted that Hialeah had not
sought to prohibit forms of animal killing other than
Santeria practices. Some humane societies have stated their
belief that they cannot now use neutral and generally
applicable anticruelty statutes to prohibit Santeria practices
unless they also prohibit all other forms of killing animals.
This is incorrect for three reasons.
First, the Court focussed on the under-inclusive-
ness of the Hialeah ordinances, i.e. that they did not cover
other forms of animal killing, as proof that the object of the
ordinances was not neutral, but was aimed instead at reli-
gious practices alone. The Court recognized explicitly that
the case involved other concerns “unrelated to religious ani-
mosity [such as] the suffering or mistreatment visited upon
the sacrificed animals, and health hazards from improper
disposal. But the ordinances considered together disclose
an object remote from these legitimate concerns.”
(Emphasis added.) Elsewhere, the Court focused on the
trial court’s finding that Santeria slaughter was less humane
than that used in licensed and inspected premises, and pro-
nounced that if the stage decided that the Santeria method
of killing is not humane, “the subject of regulation should
be the method itself, not a religious classification that is
said to bear some relationship to it.” These statements rein-
force that the holding of the Court was only that animal
sacrifices could not be prohibited by ordinances specifically
aimed at religious conduct.
Second, Justices Blackmun and O’Connor con-
curred in the judgement because they did not think that the
S m i t h test is sufficiently protective of religions. Despite
their desire for a test more vigorous than that used by the
majority of the Court, both of these Justices stated: 1) that
a different case would be presented should those who prac-
tice Santeria, or indeed any other religion, seek an exemp-
tion from a generally applicable anticruelty law; and 2)
that the Lukumi case did not necessarily reflect the Court’s
view of the state’s interest in preventing cruelty to animals.
Third, a reading of Lukumi that all animal killing
would have to be prohibited before an ordinance prohibit-
ing Santeria practices could be valid would, in effect,
overrule the Smith decision. In Smith, the issue before the
Court was whether the petitioner was exempt from general-
ly applicable drug laws because he wished to use peyote for
religious reasons. The Court refused the exemption and
refused to apply the rigorous compelling state interest/strict
scrutiny constitutional analysis, holding that the prohibi-
tion on drug use was neutral and generally applicable, and
had only an incidental effect on religion.
Surely the Court in S m i t h did not mean to hold
that if the state permitted the use of other Schedule 1 drugs
for medicinal reasons, the case would require an entirely
different analysis. The drug control law at issue in Smith
was not applicable to people ingesting Schedule 1 drugs for
medicinal purposes which were prescribed by a medical
practicioner. The interpretation being given to the Lukumi
case would mean that in such a situation as Smith, once the
state of Oregon recognized legitimate reasons to engage in
the conduct of taking Schedule 1 drugs (following the
advice of a medical practioner), the state must allow reli-
gious reasons to be among the accepted reasons and the
regulation could n o t be applied to the use of peyote by
Native Americans for religious purposes without a com-
pelling state interest.
The suggestion that a municipality cannot prohibit
some acts that kill animals unless it prohibits all killing of
animals is similarly untenable. It may be that my religion
requires me to proceed to a burial in an uninterrupted
funeral procession. My having to stop my funeral vehicle
at a red light might have an impact on my ability to
observe the requirements of this religious ritual. Is strict
state scrutiny/compelling state interest required if the
police require me to stop at red lights, but allow others to
go through red lights in medical emergencies? Surely not.
Indeed, the Court in Smith cited an anticruelty statute as an
example of a neutral and generally applicable statute that
might permissibly affect religious practice.
Other regulatory approaches
It may be difficult for those who believe in ani-
mal rights and believe that all the many ways in which we
harm and kill animals is wrong, to discuss the right of a
state or municipality to distinguish among forms of animal
killing. Until we can persuade society that all such killing
of animals is immoral, there are completely legitimate rea-
sons for a municipality to be concerned about Santeria sac-
rifices, which are far more brutal that most other methods
of slaughter. The Court in L u k u m i made it crystal clear
that the state could regulate these methods as long as they
did so neutrally. If Hialeah had used the Florida anticruel-
ty statute in prosecuting these brutal killings, rather than a
separate set of ordinances, it is unlikely that this case
would have reached the Supreme Court.
Indeed, this was the determination made by the
court of New York in 1987, when Gary Francione suc-
cessfully represented the ASPCA when it was sued by a
Santeria group, which claimed that the New York anticru-
elty statute violated the free exercise of religion protections
of the Constitution. During Francione’s litigation of that
case we learned a great deal about Santeria. We read and
spoke to authorities on religious matters and practioners of
the Santeria faith. We viewed many files of the ASPCA
law enforcement officers’ investigations of ritual slaughter
occurrring in apartments in New York City. We saw pho-
tographs of the conditions in which animals were kept
before slaughter, bathrooms covered in blood where sacri-
fices had taken place, and carcasses of dismembered ani-
mals piled into the garbage. The “santeros” themselves
admit that death is not swift for these animals. Santeria
practioners often completely saw the heads off of larger
animals, such as goats and sheep, and place the heads of
birds and smaller animals underfoot, then pull the animals’
bodies until their heads are ripped off. Decomposing ani-
mal bodies are disposed of in public places.
Moreover, Santeria practioners insist on absolute
secrecy of their sacrificial practices. Every use of animals
in our society is regulated, and although such regulation is
imperfect in many ways, there is at least an acceptance
among society in general that the taking of animal life is
something that must be regulated. Santeria practicioners
wish to be the only group in our society who can kill ani-
mals without any supervision whatsoever. Surely neither
the First Amendment nor common sense requires such a
result.
Finally, there is nothing to stop a municipality
from having laws that prohibit private slaughter, slaughter
in multi-family dwellings, or the keeping of animals such
as goats, sheep, roosters, chickens, ducks, etc.
The Animal Rights Law Center at Rutgers
University will be pleased to offer advice to humane soci-
eties or municipalities who are concerned with animal sac-
rifice in their areas. We will provide them with a frame-
work within which such cases should be approached. We
had an excellent working relationship with the ASPCA in
New York on these issues when John Kullberg was
ASPCA president, and donated many hundreds of hours of
free legal time to the ASPCA, including litigating the
Santeria case. We have offered the new ASPCA president,
Roger Caras, the support and resources of the Law Center
if the ASPCA wishes to provide leadership to the animal
protection community in considering its options to protect
animals from the abuses of ritual sacrifice. As yet, Mr.
Caras has not replied.
We are preparing materials that should be of use
to communities dealing with animal sacrifice issues. For
further information on our work in this area, please con-
tact us at the Animal Rights Law Center, Rutgers Law
School, 15 Washington Street, Newark, NJ 07102, tele-
phone 201-648-5989.
As this is a complicated legal area, please do not
use this article as the basis for a press release without
checking with us first.
