Vol. 14 No. 6 (June 2004), pp.501-506
ANIMAL SACRIFICE & RELIGIOUS FREEDOM: CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH, by David M. O’Brien. Lawrence, Kansas: University Press of Kansas, 2004. 208pp. Cloth $29.95. ISBN: 0-7006-1302-1. Paper $12.95. ISBN: 0-7006-1303-x
Reviewed by Caren G. Dubnoff, Department of Political Science, College of the Holy Cross
Email: firstname.lastname@example.org .
ANIMAL SACRIFICE & RELIGIOUS FREEDOM: CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH, by David M. O’Brien, is a recent addition to the Landmark Law Cases Series published by the University Press of Kansas. Like many other books in this series, it is designed to illuminate an important legal issue through in-depth analysis of one case and is aimed at the introductory student and general reader. The specific case under examination here is, however, somewhat different from those normally chosen for this purpose, because standing alone, CITY OF HIALEAH was not one of the Court’s more significant decisions. CITY OF HIALEAH did not represent a major change in the law, but rather confirmed the Supreme Court’s long held view that absent an exceedingly high justification, the Free Exercise Clause of the First Amendment prohibits government action which is targeted at a particular religion.
In 1990 the Supreme Court in the controversial decision EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH (SMITH II) reversed its longstanding position that individuals were entitled to exemptions from generally applicable laws that prevented them from fulfilling their religious obligations unless the government could demonstrate a compelling state interest in refusing such exemptions. However, no Justice in the SMITH majority suggested that government could, consistent with the Free Exercise Clause, disfavor the practice of a particular religion, which is what appeared to have happened in CITY OF HIALEAH. The city had passed a series of local ordinances outlawing animal sacrifice, a central practice of the Santeria religion. These ordinances were enacted in response to a request by a church leader, Ernesto Pichardo, to lease land for the purpose of building a church where such sacrifices would be carried on in public. Thus the city seems to have specifically targeted Santeria. If one accepted Justice Kennedy’s recitation of the facts, and all the of the justices did, the City of Hialeah had done precisely what Justice Scalia had indicated in his SMITH opinion was impermissible—it passed legislation aimed at suppressing the religious practices of a specific religion. The city stated an interest in preserving the health of its citizens and preventing cruelty to animals, but these arguments hardly seemed persuasive in light of the fact that the ordinances specifically exempted kosher butchers, as well as hunting and killing of animals for sport.
What makes CITY OF HIALEAH worthy of attention is that it sustained the debate renewed in SMITH over the [*502] proper meaning of the Free Exercise Clause, an issue that continues to command the attention of the Supreme Court and the political branches. Though the justices were unanimous on the result in CITY OF HIALEAH, they disagreed sharply on the reasoning. Chief Justice Rehnquist and Justice Scalia objected to Justice Kennedy’s distinction between general applicability and neutrality, and to his attention to the city’s motives, but they agreed that Hialeah’s actions had failed the general applicability test. Justices Blackmun, O’Connor and Souter took issue with Justice Kennedy’s citations to SMITH, fearing it would embed SMITH as precedent. Justice Souter’s concurrence is best described as an invitation to relitigate SMITH, and as an effort to justify this invitation, because it seems at odds with two principles of jurisprudence he respects—first, to avoid reaching out beyond what is necessary to decide a case, and second, to preserve the principle of stare decisis. Justice O’Connor similarly saw the decision as an opportunity to revisit SMITH.
O’Brien’s examination of this litigation in its political, cultural and legal context adds a perspective to the debate that is worth considering and which cannot be obtained solely by reading the Court’s opinions. As one reads the narrative a number of questions – some specific to the case, some of more general import – come to mind. Why did the city act as it did, even after it was warned by its attorneys that its proposed actions might be unconstitutional? Why would political actors knowingly ignore the Constitution when they had a good chance of losing in the end? Why did interest groups get involved in litigation which started as an individual’s effort to deal with an immediate threat to his religious practices, and what does this indicate about the factors that lead interest groups to litigate? And, what does this case tell us about the nature of constitutional interpretation? Further, the specifics of this case provide a particularly compelling example of the difficulty courts face in resolving disputes generated by strong cultural differences as well as conflicting rights. It illustrates as well how hard it is for a court to capture, let alone resolve, the complexities of such disputes. One is reminded again that a “just the facts” approach is rarely sufficient.
The book begins with an introduction to the principal player in the controversy, Ernesto Pichardo, and reports his initiation into Santeria and his subsequent development as one of its leaders. Chapter One also provides a brief but very clear history and explanation of the beliefs of Santeria/Lukumi, tracing its origins in Africa to its importation to Cuba through African slaves, and then to its arrival in the United States. Its history involved a series of transformations and adaptations brought about by the need to accommodate the political and cultural environment in which it operated. O’Brien describes in particular how interactions with a sometimes tolerant and sometimes repressive Roman Catholic Church shaped the Santeria religion. In a pattern quite familiar to those who follow missionary interactions with indigenous populations in the developing world, there was a mixing of various religious practices and identifications. There were Catholics, attracted to some aspects of Santeria, and Santerias, baptized and “devoted to Catholic Saints.” The Castro government [*503] was ambivalent toward Santeria, and this ambivalence also shaped Santeria attitudes. The effect was that many Cubans practiced a religion that joined aspects of spiritualism, Catholicism and Santeria in a variety of combinations, usually in small groups and largely in secrecy. The picture that emerges is of a religion sharing some common beliefs and practices, including animal sacrifice, but varying considerably among practitioners. There is also a relationship between social and economic status and religious practice. Santeria adherents come generally from the Afro-Cuban community and tend to be poor, described by O’Brien as second-wave immigrants who arrived at the time of the Mariel boat lift. Pichardo, however, was Caucasian and middle-class, arriving in the first wave of immigrants, those who came immediately after Castro assumed power. Animal sacrifice was widely accepted as an important part of all Santeria practices, and was practiced regularly. It is a fascinating story, and readers will learn a great deal from this chapter.
Chapter Two focuses on the politics underlying the case, and provides a much richer perspective on the dispute than one gets from the Court’s opinion. O’Brien shows that, while religious politics were important, class politics and animal rights issues were equally so. According to O’Brien, animal rights advocates trying to bar ritual sacrifice joined forces with city leaders from the primarily white and wealthy tier of the Cuban community, and with some Santeria opponents of Pichardo. The animal rights advocates wanted to end all animal slaughter, but, since this was not possible, the Santerias made a convenient first target. The secrecy of Santeria’s religious practices, the larger society’s distaste for animal sacrifice, and the embarrassment of middle-class, largely Catholic Cuban Americans, explain an important part of the political opposition to Pichardo’s church. Opposition came as well from within Santeria. Pichardo’s proposal to build a church where the religion would be more open, performing its animal sacrifice rituals in public, went against a tradition of a non-hierarchal religious structure with religious ceremonies conducted secretly in private homes. There were many within Santeria who saw Pichardo’s proposal as a “power grab” antithetical to their beliefs.
Though O’Brien believes that racial and class politics were important, he finds race and class politics within the Cuban community, rather than a clash between a dominant Anglo and a uniformly disadvantaged immigrant population, to be the most significant source of conflict. In fact, there was no dominant Anglo community in South Florida by this time. Pichardo saw this controversy more as a political issue than a religious controversy. The ACLU got involved at Pichardo’s request. He had obtained local counsel, but did not have the financial resources to contest the city.
Chapter Three provides the doctrinal context within which the Court decided the case. This chapter describes the history of increasing religious tolerance in America over the past century. O’Brien discusses a series of earlier Supreme Court decisions, beginning with the Mormon cases of the late 1800s which understood religious liberty narrowly, allowing a range of regulations of religious practice. In the 1940s the Court became increasingly [*504] sensitive to the position of religious minorities, a sensitivity that ebbed with Republican appointments to the Court, beginning with the Nixon era, and retreated further in the 1990 SMITH decision. Though much of this discussion is quite good, it is weakened by occasional interjections of concepts from Establishment Clause doctrine that are not identified as such. The full First Amendment provision states that “Congress shall make no law neither respecting an establishment of religion nor prohibiting the free exercise thereof.” Both religion clauses place limitations on what government can do—the former limits the type of assistance, the latter the type of restrictions. There is heated argument over the meaning of the Establishment Clause. Does it require separation of church and state; or does it merely require that government prefer no particular religion or religions? On what basis should the issue be resolved, and how should a search for a test to implement that principle proceed?
O’Brien asserts that the very first Congress rejected the nonpreferentialist position (p.53). In support, he refers to changes in the specific wording of the Amendment as first proposed by Madison, compared to the language ultimately adopted after changes in the House, Senate and conference committee. While these linguistic changes do seem to provide support for the separationist position and were referenced by Justice Souter in LEE v. WEISMAN as part of a much more extensive argument, there is more to the debate over the intent of the Framers. Given the contentiousness of the ongoing debate regarding the meaning of the Establishment Clause, more exposition is needed. Although O’Brien later (p.69) refers to nonpreferentialism and to the LEMON test, he provides little explanation as to their meaning. Moreover, no mention is made of the conflict within the Supreme Court’s interpretation of the Establishment Clause and the Free Exercise Clause. Both of the religion clauses require government neutrality, but neutrality is not a self-defining concept, and it has been understood to mean different things for purposes of Establishment Clause and Free Exercise Clause analysis. While this chapter provides a good discussion of specific Supreme Court Free Exercise decisions, it is weakened by not explaining more fully the importation of Establishment Clause terms. The intersection of the two clauses is complex and requires more discussion, especially since the Court remains divided in this area.
The next three chapters describe the litigation from the District Court to the Supreme Court. Chapter Four discusses the trial in the District Court, where the city prevailed, despite the belief by Pichardo and his supporters that they had pulled the best possible judge, a liberal jurist with a known record of sympathy toward minorities and individual liberties. Though the church’s defeat is in O’Brien’s view attributable to many factors, he places the bulk of the blame with Pichardo himself, particularly his conflicting testimony with regard to the centrality of the ritual slaughter of animals in a church, and his unwillingness to allow any state regulation of such practices. The judge rejected Pichardo’s view that the city was motivated by religious animus, instead accepting the city’s argument that the ritual slaughter of animals is [*505] cruel, unhealthy, and harmful to children. He also found that the ordinances represented neutral regulation of ritual animal sacrifice and were not directed specifically at Santeria.
Chapters Five and Six move to a discussion of the appeals, first before the 11th Circuit and, ultimately, before the Supreme Court. The litigation by this time had come to the attention of well-known interest groups and advocates of religious liberty. The local Miami ACLU consulted with the national office and the office of the American Jewish Congress, and enlisted the services of Douglas Laycock, one of the best known and most able of the attorneys defending religious liberty. Nevertheless, Pichardo lost again in the 11th Circuit. O’Brien presents a very informative discussion regarding the considerations leading to the decisions to appeal, both to the Court of Appeals and finally to the Supreme Court. The latter appeal was brought despite the knowledge that the Supreme Court accepts only a small number of cases, and that it had been decidedly unsympathetic to religious liberty claims in recent years. Chapter Six presents the oral arguments before the Supreme Court. Here the city’s attorney could not compete with the excellent advocacy provided by Laycock.
The decision by the Supreme Court is presented in Chapter Seven. O’Brien presents a first-rate account of the competing views of the justices, but he offers no analysis of his own on the merits. He portrays the outcome as being in doubt; although the Court rarely grants certiorari just to affirm a decision where all the lower courts are in agreement. Once the Court accepted the case for argument, it was as Justice Blackmun indicated in his concurrence—an “easy one to decide.” I would have liked to see a discussion of factors that might have prompted the Court to grant certiorari. For example, did some of the justices see an opportunity to refute some of the critical commentary that the earlier SMITH case had left no room for successful Free Exercise claims?
The book concludes with a brief account of the Religious Freedom Restoration Act, (RFRA) passed by Congress to reverse SMITH, but ultimately struck down as applied to the states in CITY OF BOERNE v. FLORES.
While I thought the story that O’Brien reports is an interesting one that would engage many students, a number of themes were insufficiently developed. At the outset O’Brien asserts a focus upon interest-group litigation, but he never ties this work into the very extensive literature on that subject. I was also disappointed that he chose not to engage the debate over the meaning of the Free Exercise Clause. As I suggested earlier, what makes CITY OF HIALEAH worthy of attention is the fact that this case was part of a larger debate about the proper meaning of the Free Exercise Clause after the Court’s 1990 SMITH decision, a controversy that continues to engage elected officials and interest groups.
CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH, 508 U.S.520 (1993).
CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997). [*506]
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, 494 U.S. 872 (1990).
LEE v. WEISMAN, 505 U.S. 577 (1992).
Copyright 2004 by the author, Caren G. Dubnoff