16 The Return to Neutrality

Such guidance would appear three years later in Church of Lukumi Babalu Aye v. Hialeah (1993), a case sparked by the arrival of a Santerían church. Local officials—who made clearly hostile remarks during an “emergency meeting” called after the church was granted a permit to build a house of worship and cultural center—banned animal sacrifice, an important component of the Santería faith. The Court unanimously agreed that the town’s ban violated the neutrality principle, and additionally discussed how lower courts should assess neutrality and general application going forward.

Church of the Lukumi Babalu Aye v. City of Hialeah

508 U.S. 520 (1993)

Facts: Members of the Santería faith—a mixture of Catholicism and traditional African religion that included animal sacrifice in its practices—announced plans to establish a church and cultural center in Hialeah, Florida. Soon after, the city council held an emergency meeting and passed ordinances that banned the sacrifice or unnecessary killing of animals, while restricting the laws’ application to those who kill animals in “rituals.” The ordinances also contained an exemption for slaughterhouses.

The Church filed in federal court, alleging a violation of their Free Exercise rights. The district court found that the city had compelling interests in health, the emotional injury of children, animal cruelty, and zoning and upheld the regulations. The Eleventh Circuit upheld the ruling, noting that the trial court had employed strict scrutiny, more than Smith required.

Question: Did Hialeah’s ban on animal sacrifice violate the Church’s Free Exercise rights?

Vote: Yes, 9-0

For the Court: Justice Kennedy

Concurring in part and concurring in the judgment: Justice Scalia

Concurring in part and concurring in the judgment: Justice Souter

Concurring in part and concurring in the judgment: Justice Blackmun

JUSTICE KENNEDY delivered the opinion of the Court, except as to Part II-A-2.

The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Concerned that this fundamental nonpersecution principle of the First Amendment was implicated here, however, we granted certiorari.

Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation’s essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs…

A

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 Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the orishas. 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. The sacrifice of animals as part of religious rituals has ancient roots. Animal sacrifice is mentioned throughout the Old Testament, and it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem. In modern Islam, there is an annual sacrifice commemorating Abraham’s sacrifice of a ram in the stead of his son…

According to Santeria teaching, the orishas are powerful but not immortal. They depend for survival on the 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…

B

Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation organized under Florida law in 1973. The Church and its congregants practice the Santeria religion… In April 1987, the Church leased land in the city of Hialeah, Florida, and announced plans to establish a house of worship as well as a school, cultural center, and museum. Pichardo indicated that the Church’s goal was to bring the practice of the Santeria faith, including its ritual of animal sacrifice, into the open. The Church began the process of obtaining utility service and receiving the necessary licensing, inspection, and zoning approvals. Although the Church’s efforts at obtaining the necessary licenses and permits were far from smooth, it appears that it received all needed approvals by early August 1987.

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, 1987…

… First, the city council adopted Resolution 87-66, which noted the “concern” expressed by residents of the city “that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and declared that “[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety.” …

The city council responded at first with a hortatory enactment, Resolution 87-90, that noted its residents’ “great concern regarding the possibility of public ritualistic animal sacrifices” …

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” … 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 by 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…

II

… The city does not argue that Santeria is not a “religion” within the meaning of the First Amendment. Nor could it… Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons…

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. Employment Div., Dept. of Human Resources of Oregon v. Smith. 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. These ordinances fail to satisfy the Smith requirements. We begin by discussing neutrality.

A.

… 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…

1

… There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words “sacrifice” and “ritual,” words with strong religious connotations. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words “sacrifice” and “ritual” have a religious origin, but current use admits also of secular meanings…

We reject the contention advanced by the city, that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality,” and “covert suppression of particular religious beliefs.” …

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…

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. The texts show that they were drafted in tandem to achieve this result… Ordinance 87-71 … prohibits the sacrifice of animals but defines sacrifice as “to unnecessarily kill … an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting Kosher slaughter… The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the orishas, not food consumption. Indeed, careful drafting ensured that, although Santeria sacrifice is prohibited, killings that are no more necessary or humane in almost all other circumstances are unpunished…

Operating in similar fashion is Ordinance 87-52 … The ordinance exempts … “any licensed [food] establishment” with regard to “any animals which are specifically raised for food purposes,” if the activity is permitted by zoning and other laws. This exception, too, seems intended to cover Kosher slaughter. Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others…

Ordinance 87-40 incorporates the Florida animal cruelty statute… The problem, however, is the interpretation given to the ordinance by respondent and the Florida attorney general. Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary… Respondent’s application of the ordinance’s test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious reasons. Thus, religious practice is being singled out for discriminatory treatment…

We also find significant evidence of the ordinances’ improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends…

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…

Under similar analysis, narrower regulation would achieve the city’s interest in preventing cruelty to animals. With regard to the city’s interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city’s concern, not a prohibition on possession for the purpose of sacrifice. The same is true for the city’s interest in prohibiting cruel methods of killing… If the city has a real concern that other methods are less humane, however, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it…

2

In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases… Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, as well as the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body…

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… 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…

Other statements by members of the city council were in a similar vein. For example, Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned, “if we could not practice this [religion] in our homeland [Cuba], why bring it to this country?” Councilman Cardoso said that Santeria devotees at the Church “are in violation of everything this country stands for.” Councilman Mejides indicated that he was “totally against the sacrificing of animals” and distinguished Kosher slaughter because it had a “real purpose.” … The president of the city council, Councilman Echevarria, asked, “What can we do to prevent the Church from opening?”

Various Hialeah city officials made comparable comments. The chaplain of the Hialeah Police Department told the city council that Santeria was a sin, “foolishness,” “an abomination to the Lord,” and the worship of “demons.” He advised the city council that “We need to be helping people and sharing with them the truth that is found in Jesus Christ.” He concluded: “I would exhort you … not to permit this Church to exist.” … This history discloses the object of the ordinances to target animal sacrifice by Santeria worshippers because of its religious motivation.

3

In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion… These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.

B

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 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…

Respondent claims 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…

The ordinances are also underinclusive with regard to the city’s interest in public health, which is threatened by the disposal of animal carcasses in open public places and the consumption of uninspected meat. Neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction. The health risks posed by the improper disposal of animal carcasses are the same whether Santeria sacrifice or some nonreligious killing preceded it. The city does not, however, prohibit hunters from bringing their kill to their houses, nor does it regulate disposal after their activity. Despite substantial testimony at trial that the same public health hazards result from improper disposal of garbage by restaurants, restaurants are outside the scope of the ordinances. Improper disposal is a general problem that causes substantial health risks, but which respondent addresses only when it results from religious exercise…

We conclude, in sum, that each of Hialeah’s ordinances pursues the city’s governmental interests only against conduct motivated by religious belief.

III

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 advance “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…

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… 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…

JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the judgment.

The Court analyzes the “neutrality” and the “general applicability” of the Hialeah ordinances in separate sections (Parts II-A and II-B, respectively), and allocates various invalidating factors to one or the other of those sections. If it were necessary to make a clear distinction between the two terms, I would draw a line somewhat different from the Court’s. But I think it is not necessary, and would frankly acknowledge that the terms are not only “interrelated,” but substantially overlap…

In my view, the defect of lack of neutrality applies primarily to those laws that by their terms impose disabilities on the basis of religion…

I do not join [section II-A] because it departs from the opinion’s general focus on the object of the laws at issue to consider the subjective motivation of the lawmakers, i.e. whether the Hialeah City Council actually intended to disfavor the religion of Santeria. As I have noted elsewhere, it is virtually impossible to determine the singular “motive” of a collective legislative body, and this Court has a long tradition of refraining from such inquiries…

This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Council set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to “prohibi[t] the free exercise” of religion. Nor, in my view, does it matter that a legislature consists entirely of the pure-hearted, if the law it enacts in fact singles out a religious practice for special burdens. Had the ordinances here been passed with no motive on the part of any councilman except the ardent desire to prevent cruelty to animals (as might in fact have been the case), they would nonetheless be invalid.

JUSTICE SOUTER, concurring in part and concurring in the judgment.

I write separately to explain why the Smith rule is not germane to this case and to express my view that, in a case presenting the issue, the Court should re-examine the rule Smith declared…

JUSTICE BLACKMUN, with whom JUSTICE O’CONNOR joins, concurring in the judgment.

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…

Together, Smith and Lukumi illustrate the legal framework judges must employ when analyzing Free Exercise claims. Keep in mind that while Smith’s neutrality framework is the floor for such protections, states and the federal government may (and often did) create more robust protections, as seen in the next chapter.

The contemporary Free Exercise framework can be summarized as followed:

1. A plaintiff must claim that their sincere, religious belief has been substantially burdened by legislation or administrative action. In jurisdictions governed by Smith, they will also offer evidence that the law or action was the product of discrimination or hostility towards their faith.
2. The court then assesses whether that law is neutral and generally applied. While Justice Kennedy treats this as two separate inquiries, courts have sometimes treated them as a single analysis (as Justice Scalia notes in his concurrence). Specifically, the evidence judges can examine includes (but is not necessarily limited to):
   • The text of the law
   • The legislative record or other evidence of unconstitutional motivations (such as comments to the media)
   • Whether and to what degree the law grants exceptions to non-religious groups or individuals, and whether those exceptions undermine the interests the law is supposed to advance (underinclusivity)
   • Whether the law or its application bans or limits much more religious activity than needed to achieve its stated ends (overbreadth)
   • Whether a law gives an administrator unacceptably broad discretion in its application, potentially allowing religious bias to guide decisions made
3. If the court finds the law is neutral and generally applied, the plaintiff loses their claim
4. If the court finds the law is not neutral or generally applied, the government must then meet the strict scrutiny test, which requires that the law or decision advances:
   1. compelling state interests, and
   2. is narrowly tailored or is the least restrictive means of achieving those interests.

If the law or decision fails either prong of this test, it is unconstitutional.

As Lukumi shows, a set of facts where the government cannot meet the neutrality standard is probably also one where the government can’t meet the tougher standard of strict scrutiny. Failing the former will almost always mean failing the latter.