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 proclaiming that the Court had held that animal sacrifice is protected 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 brutalities of animal sacrifice. The Court’s opinion in Lukumi was somewhat convoluted and was confused by current disagreement among Justices concerning how the constitutional guarantee 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 municipality 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 ritual 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 dismiss 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
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, northern New Jersey, and Los Angeles. Many Cubans themselves, 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 practitioners 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 animals are disposed of in the garbage or placed in certain public places such as riverbanks, as required by the precepts 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 ordinances 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 constitutional, 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 Lukumi 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 ordinances 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 “gerrymandered” the ordinances so that they would only apply to Santeria. The ordinances thus failed the Smith 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 Lukumi decision occurs because, in deciding whether the Hialeah ordinances 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-inclusiveness 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 religious practices alone. The Court recognized explicitly that the case involved other concerns “unrelated to religious animosity [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 pronounced 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 reinforce 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 concurred in the judgement because they did not think that the Smith 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 practice Santeria, or indeed any other religion, seek an exemption 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 prohibiting 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 generally 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 prohibition on drug use was neutral and generally applicable, and had only an incidental effect on religion.
Surely the Court in Smith 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 religious reasons to be among the accepted reasons and the regulation could not be applied to the use of peyote by Native Americans for religious purposes without
a compelling 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 animal 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 todistinguish among forms of animal killing. Until we can persuade society that all such killing of animals is immoral, there are completely legitimate reasons for a municipality to be concerned about Santeria sacrifices, which are far more brutal that most other methods of slaughter. The Court in Lukumi made it crystal clear that the state could regulate these methods as long as they did so neutrally. If Hialeah had used the Florida anticruelty statute in prosecuting these brutal killings, rather than a separate set ofordinances, 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 successfully represented the ASPCA when it was sued by a Santeria group, which claimed that the New York anticruelty 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 photographs of the conditions in which animalswere kept before slaughter, bathrooms covered in blood where sacrifices had taken place, and carcasses of dismembered animals piled into the garbage. The “santeros” themselves admit that deathis 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 animal 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 animals 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 societies or municipalities who are concerned with animal sacrifice in their areas. We will provide them with a framework 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 contact us at the Animal Rights Law Center, Rutgers Law School, 15 Washington Street, Newark, NJ 07102, telephone 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.