Church
of the Lukumi Babalu Aye v.
City of
508
In this case the Supreme
Court considers a challenge to a set of
Justice Kennedy delivered the opinion
of the Court.
... This case involves practices of the Santeria
religion, which originated in the nineteenth century. When hundreds of
thousands of members of the Yoruba people were brought as slaves from eastern
Africa to Cuba, their traditional African religion absorbed significant
elements of Roman Catholicism. The resulting syncretion,
or fusion, is Santeria, “the way of the saints.” The Cuban Yoruba express their
devotion to spirits, called orishas, through the
iconography of Catholic saints. ...
... The basis of the Santeria religion is the nurture of
a personal relation with the orishas, and one of the
principal forms of devotion is an animal sacrifice. ...
... Sacrifices are performed at birth, marriage, and
death rites, for the cure of the sick, for the initiation of new members and
priests, and during an annual celebration. Animals sacrificed in Santeria
rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and
turtles. The animals are killed by the cutting of the carotid arteries in the
neck. The sacrificed animal is cooked and eaten, except after healing and death
rituals. ...
The prospect of a Santeria church in their midst was
distressing to many members of the Hialeah community, and the announcement of
the plans to open a Santeria church in Hialeah prompted the city council to
hold an emergency public session on June 9. ...
In September 1987, the city council adopted three
substantive ordinances addressing the issue of religious animal sacrifice.
Ordinance 87‑52 defined “sacrifice” as “to unnecessarily kill, torment,
torture, or mutilate an animal in a public or private ritual or ceremony not
for the primary purpose of food consumption,” and prohibited owning or
possessing an animal “intending to use such animal for food purposes.” It
restricted application of this prohibition, however, to any individual or group
that “kills, slaughters or sacrifices animals for any type of ritual,
regardless of whether or not the flesh or blood of the animal is to be
consumed.” The ordinance contained an exemption for slaughtering by “licensed
establishment[s]” of animals “specifically raised for food purposes.”
Declaring, moreover, that the city council “has determined that the sacrificing
of animals within the city limits is contrary to the public health, safety,
welfare and morals of the community,” the city council adopted Ordinance 87‑71.
That ordinance defined sacrifice as had Ordinance 87‑52, and then
provided that “[i]t shall be unlawful for any person,
persons, corporations or associations to sacrifice any animal within the
corporate limits of the City of Hialeah, Florida.” The final Ordinance, 87‑72,
defined “slaughter” as “the killing of animals for food” and prohibited
slaughter outside of areas zoned for slaughterhouse use. The ordinance provided
an exemption, however, for the slaughter or processing for sale of “small
numbers of hogs and/or cattle per week in accordance with an exemption provided
in state law.” All ordinances and resolutions passed the city council by
unanimous vote. Violations of each of the four ordinances were punishable by
fines not exceeding $500 or imprisonment not exceeding 60 days, or both. …
... In addressing the constitutional protection for free
exercise of religion, our cases establish the general proposition that a law
that is neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the incidental effect of
burdening a particular religious practice. ... Neutrality and general
applicability are interrelated, and, as becomes apparent in this case, failure
to satisfy one requirement is a likely indication that the other has not been
satisfied. A law failing to satisfy these requirements must be justified by a
compelling governmental interest and must be narrowly tailored to advance that
interest. ...
At a minimum, the protections of the Free Exercise Clause
pertain if the law at issue discriminates against some or all religious beliefs
or regulates or prohibits conduct because it is undertaken for religious
reasons. ... Indeed, it was “historical instances of religious persecution and
intolerance that gave concern to those who drafted the Free Exercise Clause.”
... These principles, though not often at issue in our Free Exercise Clause
cases, have played a role in some. ...
Although a law targeting religious beliefs as such is
never permissible, ... if the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not neutral; ...
and it is invalid unless it is justified by a compelling interest and is
narrowly tailored to advance that interest. ...
The record in this case compels the conclusion that
suppression of the central element of the Santeria worship service was the
object of the ordinances. First, though use of the words “sacrifice” and
“ritual” does not compel a finding of improper targeting of the Santeria
religion, the choice of these words is support for our conclusion. There are
further respects in which the text of the city council’s enactments discloses
the improper attempt to target Santeria. ... No one suggests, and on this
record it cannot be maintained, that city officials had in mind a religion
other than Santeria.
It becomes evident that these ordinances target Santeria
sacrifice when the ordinances’ operation is considered. Apart from the text,
the effect of a law in its real operation is strong evidence of its object. To
be sure, adverse impact will not always lead to a finding of impermissible
targeting. For example, a social harm may have been a legitimate concern of
government for reasons quite apart from discrimination. ... The subject at hand
does implicate, of course, multiple concerns unrelated to religious animosity,
for example, the suffering or mistreatment visited upon the sacrificed animals,
and health hazards from improper disposal. But the ordinances when considered
together disclose an object remote from these legitimate concerns. The design of
these laws accomplishes instead a “religious gerrymander,” ... an impermissible
attempt to target petitioners and their religious practices.
It is a necessary conclusion that almost the only conduct
subject to [the] Ordinances ... is the religious exercise of Santeria church
members. The tests show that they were drafted in tandem to achieve this
result. ...
The legitimate governmental interests in protecting the
public health and preventing cruelty to animals could be addressed by
restrictions stopping far short of a flat prohibition of all Santeria
sacrificial practice. If improper disposal, not the sacrifice itself, is the
harm to be prevented, the city could have imposed a general regulation on the
disposal of organic garbage. It did not do so. Indeed, counsel for the city
conceded at oral argument that, under the ordinances, Santeria sacrifices would
be illegal even if they occurred in licensed, inspected, and zoned
slaughterhouses. ... Thus, these broad ordinances prohibit Santeria sacrifice
even when it does not threaten the city’s interest in the public health. The
District Court accepted the argument that narrower regulation would be
unenforceable because of the secrecy in the Santeria rituals. ... It is
difficult to understand, however, how a prohibition of the sacrifices
themselves, which occur in private, is enforceable if a ban on improper
disposal, which occurs in public, is not. The neutrality of a law is suspect if
First Amendment freedoms are curtailed to prevent isolated collateral harms not
themselves prohibited by direct regulation. ...
Under similar analysis, a narrow regulation would achieve
the city’s interest in preventing cruelty to animals. ...
Ordinance 87‑72—unlike the three other
ordinances—does appear to apply to substantial nonreligious conduct and not to
be overbroad. For our purposes here, however, the four substantive ordinances
may be treated as a group for neutrality purposes. ...
That the ordinances were enacted “ ‘because of,’ not
merely ‘in spite of,’ ” their suppression of Santeria religious practice is
revealed by the events preceding enactment of the ordinances. Although
respondent claimed at oral argument that it had experienced significant
problems resulting from the sacrifice of animals within the city before the
announced opening of the Church, the city council made no attempt to address
the supposed problem before its meeting in June 1987, just weeks after the
Church announced plans to open. The minutes and taped excerpts of the June 9
session, both of which are in the record, evidence significant hostility
exhibited by residents, members of the city council, and other city officials
toward the Santeria religion and its practice of animal sacrifice. The public
crowd that attended the June 9 meetings interrupted statements by council
members critical of Santeria with cheers and the brief comments of Pichardo with taunts. When Councilman Martinez, a supporter
of the ordinances, stated that in prerevolutionary
Cuba “people were put in jail for practicing this religion,” the audience
applauded. …
In sum, the neutrality inquiry leads to one conclusion:
The ordinances had as their object the suppression of religion. The pattern we
have recited discloses animosity to Santeria adherents and their religious
practices; the ordinances by their own terms target this religious exercise;
the texts of the ordinances were gerrymandered with care to proscribe religious
killings of animals but to exclude almost all secular killings, and the
ordinances suppress much more religious conduct than is necessary in order to
achieve the legitimate ends asserted in their defense. ...
We turn next to a second requirement of the Free Exercise
Clause, the rule that laws burdening religious practice must be of general
applicability. ... All laws are selective to some extent, but categories of
selection are of paramount concern when a law has the incidental effect of
burdening religious practice. The Free Exercise Clause “protect[s] religious
observers against unequal treatment,” ... and inequality results when a
legislature decides that the governmental interests it seeks to advance are
worthy of being pursued only against conduct with a religious motivation.
The principle that government, in pursuit of legitimate
interests, cannot in a selective manner impose burdens only on conduct
motivated by religious belief is essential to the protection of the rights
guaranteed by the Free Exercise Clause. The principle underlying the general
applicability requirement has parallels in our First Amendment jurisprudence.
... In this case we need not define with precision the standard used to
evaluate whether a prohibition is of general application, for these ordinances
fall well below the minimum standard necessary to protect First Amendment
rights.
Respondents claim that Ordinances 87‑40, 87‑52,
and 87‑71 advance two interests: protecting the public health and
preventing cruelty to animals. The ordinances are underinclusive
for those ends. They fail to prohibit non‑religious conduct that
endangers these interests in a similar or greater degree than Santeria
sacrifice does. The underinclusion is substantial,
not inconsequential. Despite the city’s proffered interest in preventing
cruelty to animals, the ordinances are drafted with care to forbid few killings
but those occasioned by religious sacrifice. ...
We conclude ... that each of Hialeah’s ordinances pursues
the city’s governmental interests only against conduct motivated by religious
belief. The ordinances “ha[ve] every appearance of a
prohibition that society is prepared to impose upon [Santeria worshippers] but
not upon itself.” ... This precise evil is what the requirement of general
applicability is designed to prevent. …
A law burdening religious practice that is not neutral or
not of general application must undergo the most rigorous of scrutiny. To
satisfy the commands of the First Amendment, a law restrictive of religious
practice must “ ‘interests of the highest order’ ” and must be narrowly
tailored in pursuit of those interests. ... A law that targets religious
conduct for distinctive treatment or advances legitimate governmental interests
only against conduct with a religious motivation will survive strict scrutiny
only in rare cases. It follows from what we have already said that these
ordinances cannot withstand this scrutiny.
First, even were the governmental interests compelling,
the ordinances are not drawn in narrow terms to accomplish those interests. As
we have discussed, ... all four ordinances are overbroad or underinclusive
in substantial respects. The proffered objectives are not pursued with respect
to analogous non‑religious conduct, and those interests could be achieved
by narrower ordinances that burdened religion to a far lesser degree. The
absence of narrow tailoring suffices to establish the invalidity of the
ordinances. ...
Respondent has not demonstrated, moreover, that, in the
context of these ordinances, its governmental interests are compelling. Where
government restricts only conduct protected by the First Amendment and fails to
enact feasible measures to restrict other conduct producing substantial harm or
alleged harm of the same sort, the interest given in justification of the
restriction is not compelling. It is established in our strict scrutiny
jurisprudence that “a law cannot be regarded as protecting an interest ‘of the
highest order’ ... when it leaves appreciable damage to that supposedly vital
interest unprohibited.” ... As we show above, ... the
ordinances are underinclusive to a substantial extent
with respect to each of the interests that respondent has asserted, and it is
only conduct motivated by religious conviction that bears the weight of the
governmental restrictions. There can be no serious claim that those interests
justify the ordinances. …
The Free Exercise Clause commits government itself to
religious tolerance, and upon even slight suspicion that proposals for state
intervention stem from animosity to religion or distrust of its practices, all
officials must pause to remember their own high duty to the Constitution and to
the rights it secures. Those in office must be resolute in resisting
importunate demands and must ensure that the sole reasons for imposing the
burdens of law and regulation are secular. Legislators may not devise mechanisms,
overt or disguised, designed to persecute or oppress a religion or its
practices. The laws here in question were enacted contrary to these
constitutional principles, and they are void. …
Justice Scalia, with whom the Chief
Justice joins, concurring in part and concurring in the judgment. ...
Justice Souter, concurring in part and concurring in the
judgment. ...
Justice Blackmun, with whom Justice O’Connor joins,
concurring in the judgment. ...
The Court holds today that the city
of Hialeah violated the First and Fourteenth Amendments when it passed a set of
restrictive ordinances explicitly directed at petitioners’ religious practice.
With this holding I agree. I write separately to emphasize that the First
Amendment’s protection of religion extends beyond those rare occasions on which
the government explicitly targets religion (or a particular religion) for
disfavored treatment, as is done in this case. In my view, a statute that
burdens the free exercise of religion “may stand only if the law is general,
and the State’s refusal to allow a religious exemption in particular, are
justified by a compelling interest that cannot be served by less restrictive
means.” Employment Div., Oregon Dept. of Human Resources v. Smith ...
(1990) (dissenting opinion). The Court, however, applies a different test. It
applies the test announced in Smith, under which “a law that is neutral
and of general applicability need not be justified by a compelling governmental
interest even if the law has the incidental effect of burdening a particular
religious practice.” ... I continue to believe that Smith was wrongly
decided, because it ignored the value of religious freedom as an affirmative
individual liberty and treated the Free Exercise Clause as no more than an antidiscrimination principle. ... Thus, while I agree with
the result the Court reaches in this case, I arrive at that result by a
different route. ...