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					THE CHURCH OF LUKUMI BABALU AYE V. CITY OF HIALEAH
By: Matthew Swenson, Lauren Schefman, and Afia Yunus

SANTERIA IN GRAND RAPIDS, MICHIGAN



http://www.youtube.com/watch?v=tBBQKsq5Zlg &feature=related

BACKGROUND ON THE SANTERIA RELIGION
began around in approximately 1515, primarily in Cuba.  It originated when the Yoruban natives were abducted from west Africa and transported to various Caribbean countries, including Cuba, to work on sugar plantations.
 They  Santeria

were also stripped of all of their traditional beliefs and practices and unwillingly baptized within the Roman Catholic faith.

SANTERIA BELIEFS AND PRACTICES
  



Yoruba religion + worship of catholic saints = Santeria Within the Yoruba faith, “orishas” are worshipped. Orishas are neither gods nor deities in the Western sense, but are personified natural forces that interact with human beings. In order to conceal their practices from the Roman Catholic Church, the slaves concealed their orishas as Catholic Saints.






This is why Santeria means “The Way of the Saints” Now the terms “saint” and “orisha” are sometimes used interchangeably in Cuba. For example, the orisha Babalu Aye was disguised as Saint Lazarus.

SANTERIA BELIEFS AND PRACTICES
 

Santeria is a religion of practice Practices include dance, drumming rituals, sung invocations to the orishas, possession trance, sprinkling elemental mercury around a home, and animal sacrifice.
 

A typical gathering may go something like this: There is first a drumming ritual where there is drumming, singing, and dancing to entice one or more orishas to leave their home in heaven and join their devotees on earth. Next is a process known as possession trance. Possession involves the incarnation of an orisha in the body of a priest for the purpose of communication between the deity and the congregation.  Sometimes possession involves drinking the blood of the animal that is sacrificed



ANIMAL SACRIFICE
Arguable Santeria‟s most controversial practice  Animal sacrifices are performed for a number of ceremonies:
        

Birth Marriage Death Cure illness Initiation of new members and priests Annual celebrations Ward off attack by enemies

The animal used depends upon which animal is necessary to appease the orisha in the given situation.

ANIMAL SACRIFICE


Animals that are sacrificed include:

ANIMAL SACRIFICE
priests conduct sacrifices.  The animals are killed by cutting the carotid arteries in the neck.  Most animals are consumed as food after they are sacrificed.


 Only

We cut carotid arteries!

Exceptions:


Animals used in healing and death rites are almost never consumed.

 Disposal

of the animal remains varies from ceremony to ceremony.

CIRCUMSTANCES LEADING UP TO THE CASE






Cuba


Santeria first came to the U.S. with the Cuban exiles who fled the Castro regime in the late 1950‟s and early 1960‟s. Estimated half million to five million practitioners in the United States. There are approximately 50,000 to 100,000 practitioners of Santeria in South Florida in the 1990‟s. Estimated that as many as 50 animals a day are sacrificed in South Florida in Santeria rituals.

SECRECY


Historically been a secretive religion due to:
Persecution of its adherents who served as slaves in Cuba  Stigma, since it was not (and still isn‟t) widely accepted by society

 



Most religious activities take place in individual homes. Also, materials for the practice of Santeria are disguised in the Yellow Pages. As a result, Santeria is a more private, personal form of the Yoruban religion.

THE CHURCH OF THE LUKUMI BABLU AYE, INC.
The Church of the Lukumi Babalu Aye, Inc. is a non-for-profit corporation.  The Church practiced Santeria.  The president of the church and “Italero” was Ernesto Pichardo.


Ernesto Pichardo

Pichardo planned to open up the first public Santeria church in an abandoned used-car dealership.  Animal sacrifice was planned to be practiced there.


COMMUNITY UPROAR
On June 9, 1987, the Hialeah city council held a public meeting to discuss the opening of the church.  Now that Santeria was threatening to become mainstream, the community voiced its concern over the practice of Santeria.


Problem to community health  Problem to animal safety and animal cruelty
 

Community members called Santeria “a cannibalistic, Voodoo-like sect which attracts the worst elements of society, people who mutilate animals in a crude and most inhumane manner.”

ERNESTO PICHARDO SAYS…
“The issue has little to do with animal cruelty concerns. As long as [Santerian priests] kept the sacrifice of animals underground, no laws were passed. While almost everyone in this predominately Cuban neighborhood knew about the existence of Santeria, it was tolerated as along as it did not call attention to itself. When the church attempted to go public and become mainstream, public outrage erupted….”

Miguel A. De La Torre, Santería: The Beliefs and Rituals of a Growing Religion in America 212 (Wm. B. Eerdmans 2004).

COMMUNITY UPROAR - STORIES

THE ORDINANCES




In response, the city council passed four ordinances that banned all ritual sacrifice of animals: Ordinance 87-40
 

Adopted the language of the state‟s anti-cruelty statute Note: The Attorney General assured Hialeah that ordinances prohibiting animal sacrifice were permissible under state law.



Ordinance 87-52


Prohibiting the possession of animals intended for sacrifice or slaughter except where zoned



Ordinance 87-71
Authorizing registered groups to investigate animal cruelty complaints  Expressly prohibits sacrifice of animals




Ordinance 87-72


Prohibiting the slaughter of any animals on premises not properly zoned for that purpose

THE ORDINANCES


They effectively and expressly forbid a central aspect of the Santeria religion.

Santeria



Pichardo denounced the ordinances as discriminatory and a violation of the First Amendment‟s guarantee of religious freedom. The question becomes: Does the Free Exercise Clause protect Santeria’s sacrifice of animals?



JUDGE EUGENE P. SPELLMAN
Died at age 60 on May 5, 1991  Known for novel sentences
 

millionaire industrialist Victor Posner-ordered to give $3 million to the homeless and serve meals in a shelter.

Appointed by Carter  “The Little Giant”


THE DISTRICT COURT


Claim against Mayor and Council members in their individual capacity:
Plaintiff argued: they organized council meeting discussing unconstitutional content  Must show causal connection b/w acts and violation


THE DISTRICT COURT
Plaintiff‟s Arguments
1. 2.

3.

4.

Ordinances in conflict with Florida statute Florida statute prohibits regulation of ritual slaughter. Florida statute only permits civil penalty, but ordinances provide for criminal penalty. The ordinances violate the 1st Amendment.

THE DISTRICT COURT
Spellman Responds Ordinance does not contradict Fl statute because: 1. Ritual slaughter exemption pertains to “humane methods” 2. applies to religious slaughtering “primarily for food”

“[O]PINIONS OF THE ATTORNEY
GENERAL ARE PERSUASIVE AND ENTITLED TO GREAT WEIGHT IN CONSTRUING

FLORIDA STATUTES.”

“I cannot conclude that the ritual killing of an animal constitutes a “necessary” killing so as to make the prohibition in s. 828.12 against unnecessarily or cruelly killing an animal inapplicable.” - Attorney General Robert Butterworth

RITUAL SLAUGHTER NOT PROHIBITED, IT SIMPLY MUST BE
DONE IN PROPER ZONES
-District

Court’s response to Plaintiff’s 2nd argument

There were NO areas zoned for slaughterhouses in Hialeah.

FL STATUTE PRESCRIBES CIVIL PENALTY FOR ONLY “ORDINANCES
RELATING TO ANIMAL CONTROL OR

CRUELTY.”

THESE ORDINANCES ARE ZONING ORDINANCES.
Although secular purpose may be for preventing cruelty to animals, primary purpose is zoning.

F I R S T

A M E N D M E N T

C H A L L E N G E

PROTECTIONS UNDER THE FREE EXERCISE CLAUSE


Historically, the Free Exercise Clause is broken into two concepts:
The freedom to believe  The freedom to act


The first freedom is absolute  The second freedom is not; there is only qualified protection against the regulation of religiously motivated conduct.  Types of statutes that regulate conduct:


when the government prohibits behavior that a person‟s religion requires  when the government requires conduct that a person‟s religion prohibits


THE DISTRICT COURT’S STANDARD
GROSZ V. CITY OF MIAMI BEACH (11TH CIR.)



1.

2.

The government's action faces two threshold tests: The law must regulate conduct rather than belief The law must have both a secular purpose and effect

THRESHOLD TEST
Ordinances clearly regulate conduct animal sacrifice  “ritual” is not synonymous with “religion”  Satanic Cults have rituals and would not enjoy 1st amendment protection  Secular purpose prevent animal cruelty


BALANCING TEST


After passing the threshold balance cost to government versus cost to religion in being regulated.

Government’s Interest

Religion’s Interest

BALANCING TEST
There is cognizable burden on the religion.  Government‟s interest:


Prevent cruelty to animals  Safeguard health, safety, welfare of society  Prevent adverse psychological effects on children witnesses


DISTRICT COURT HOLDING:
HIALEAH WINS THE CHICKENS ARE SAVED!

OLD CONSTITUTIONAL TEST FOR FREE EXERCISE CHALLENGES: STRICT SCRUTINY


Sherbert v. Verner (1963)


A textile mill operator was fired and denied unemployment compensation because she refused to work on Saturdays. She claimed it was against her religious beliefs, the beliefs of the Seventh-Day Adventist Church. The Court held that this violated the free exercise clause.



The Sherbert Test:
The court must determine whether the government action is a substantial burden on the person‟s ability to act on a sincere religious belief.  If so, then the government is held to a strict scrutiny standard; it must prove:


that it is acting in furtherance of a "compelling state interest," and  that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.


NEW CONSTITUTIONAL TEST: EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON V. SMITH


The Court held that members of the Native American Church, fired and denied unemployment benefits for their religious peyote use, were not exempt from Oregon‟s criminal statute prohibiting the possession of controlled substances. As long as a law does not target a particular religious practice, it does not violate the free exercise clause. Held that a "neutral law of general applicability" generally does not implicate the free exercise clause Impact: limited the Sherbert test to unemployment compensation claims.







THE 11TH CIRCUIT

“old-time southern judges”  One paragraph, per curiam opinion  District court used stricter standard than Smith  AFFIRM district court holding


THE SUPREME COURT

PETITIONER’S BRIEF


Ordinances violated the Santerian‟s Free Exercise of religion under 1st Amendment
Not generally applicable- no general ban  Not neutral- “ritual” and “ceremony” and sacrifice is religious act


    

Not zoning laws would allow appropriate zone City afraid to state ordinance includes “ritual” Discrimination b/w Kosher and Santeria Exempts everything but Santeria


Reasons for Hunting “so self evident”

Ordinance qualified sacrifice as “unnecessary”

THUS COMPELLING STATE INTEREST TEST

RESPONDENT’S BRIEF
Ordinances are facially neutral Zoning laws  Kosher slaughter exempt b/c complies with Federal Humane Slaughter Act and primary purpose is consumption


Compelling State Interests: 1. Health hazard posed by unsanitary disposal 2. Inhumane treatment of animals 3. Cruelty of animal sacrifice itself

AMICUS CURIAE BRIEFS

VS

AMICUS CURIAE FOR HIALEAH








Compelling interest in protecting animals: Humane Society, American Humane Association, American Society for the Prevention of Cruelty to Animals, Animal Legal Defense Fund, and the Massachusetts Society for the Prevention of Cruelty to Animals Compelling interest in protecting animals: The Washington Humane Society and the People for the Ethical Treatment of Animals, New Jersey Animal Rights Alliance, and the Foundation for Animal Rights Advocacy Abandon compelling state interest test: International Society of Human Rights, Citizens for Animals, Farm Animal Reform Movement, in Defense of Animals, Performing Animal Welfare Society, and the Student Action Corps for Animals Justiciability Issues: Institute for Animal Rights Law, American Fund for Alternatives to Animal Research, Farm Sanctuary, Jews for Animal Rights, United Animal Nations, and United Poultry Concerns

AMICUS CURIAE FOR THE CHURCH
Rutherford Institute and the Council on Religious Freedom argued against adopting the Smith test  Ordinances neither GA nor Neutral: National Jewish Commission on Law and Public Affairs  Ordinances are discriminatory: Americans United for Separation of Church  Disregard Smith (not for any party): United States Catholic Conference


SUPREME COURT: ORAL ARGUMENTS

Vs.
November 4, 1992 Petitioner: Douglas Laycock Respondent: Richard Garrett



http://www.oyez.org/cases/1990-1999/1992/1992_91_948/argument/

 The laws are “under-inclusive with a vengeance.”  Stated that the ordinances prohibit ritual sacrifices, but still allowed various every day killings:  bow and arrow hunting  putting down pesticides  killing a pet if you‟re tired of taking care of it Petitioner: Douglas Laycock

Respondent: Richard Garrett

 gave vivid descriptions of animal carcasses scattered throughout Hialeah  Justices took issue with whether Hialeah could preserve public health with another approach.  Got into trouble when discussing what killings are prohibited by the statute:  drown cat in bathtub – not allowed  killing of mice and rats – allowed  boiling of lobsters – not allowed

ORAL ARGUMENTS
At the point Garrett admitted that lobsters cannot be boiled in Hialeah, one of Laycock‟s cocounsel passed him a note that read: “we‟ve won.”



http://www.oyez.org/cases/1990-1999/1992/1992_91_948/argument/

DOUGLAS LAYCOCK



Brief career overview:


The University of Michigan, 2006-present The University of Texas at Austin, 1981-present The University of Chicago, 1976-81. Private practice, 1974-76. Law Clerk, Judge Walter Cummings, U.S. Court of Appeals for 7th Circuit, 1973-74.









DID YOU START OUT YOUR CAREER WITH AN INTEREST IN PUBLIC INTEREST CASES? DID YOU WORK AT A BIG FIRM?






“Never worked at a big firm. I was never part of the loony left, but I was too ideological or self righteous to go that route when I graduated in 1973. I didn't want to have to represent bad guys. I actually had a solo practice in Austin for two years (1974-76) with an office sharing arrangement in Austin and a steady flow of work from a firm in Chicago. Then joined the faculty at Chicago in 1976, where I met Ron Staudt. Been on one faculty or another ever since. My other field is Remedies, and I do some consulting. But in those cases, there is always a substantial law firm that has the client, and usually takes the lead. Sometimes I just give advice; sometimes, I rewrite their brief for them. These tend to be bigdollar cases, and sometimes I am helping plaintiffs, sometimes defendants. But I take the same position there that I take in my religious liberty cases: I won't sign on to help you if I don't think you're right. That's a great luxury that academic lawyers have, and that only a few practitioners have.”

DID THE CHURCH COME TO YOU?








“The church came to me, although indirectly. The church initially came to Duarte. Duarte went to the Florida ACLU for help. Maybe Duarte went to Horwich and Rosen, but I think the ACLU brought them in. Whatever the sequence, that was the trial team: Duarte, Horwich, and Rosen. They were all trial lawyers; none of the were appellate lawyers. I'm not sure why the Florida ACLU didn't or couldn't take the lead in the appeal; it was certainly involved. But Rosen was active in the American Jewish Congress, and he called its national office in New York. Marc Stern is the religious liberty lawyer there, and he thought this was an important case. At that time, Smith had not yet been decided, so the issue was what counted as a compelling interest under Sherbert v. Verner and Wisconsin v. Yoder. Marc thought that the trial court had trivialized the compelling interest test. He would have done the appeal, but the number 2 lawyer on his staff was an animal rights activist. It would have caused too much internal conflict. They weren't yet in the case, and had no obligation to take it on. Marc and I had met earlier that year (1989) at a conference on religious liberty, at Notre Dame. He called me and asked me to do the appeal to the Eleventh Circuit. I agreed. Then Smith came down, and the issues completely changed. I remember wondering if there were sanctions rules for frivolous appeals, but then I looked at the ordinances, and decided they weren't generally applicable at all. When we got to the Supreme Court, the AJC joined an amicus brief. At that point, the stakes for religious liberty were so high that it overrode any conflicts within the office.”

WERE YOU REPRESENTING THE CHURCH OR THE CAUSE?
I was representing the church, but I also had the cause in mind. Cause lawyers have to be very careful about this; they have a client, and the interests of the client come first. If the client's interests conflict with the interests of the cause, you can turn down the case. Or you can ignore the clause and represent the client. But you cannot ethically sacrifice the client's interests for the cause, although some lawyers do.

OPPOSITION AND SUPPORT FROM THE COMMUNITY?



“I got hate mail from some of the animal rights activists. No advice. I got good amicus support from mainstream religions. But I also got overwhelming advice not to file a cert petition. I would only make bad law; the Court was out to eliminate the Free Exercise Clause and this case had awful facts, which would help them finish the Clause off. The clients' interests were relevant here; they didn't want to give up, although if I had thought it was hopeless, or that it risked making the law even worse for them than what they had already lost, I would have told them that. But I also thought the case was winnable -that if we could get the Court focused on discrimination instead of on the act of sacrifice, we could win this.”

LITIGATION AS A TOOL FOR SOCIAL CHANGE:








“Litigation can help at the margins; good precedents can make things better. Religious claimants have something to argue about now. Before Lukumi, their claims seemed hopeless; since Lukumi, we get cases saying that if there's a secular exception, there has to be a religious exception, although that remains disputed. But judges cannot administer major transformations; precedents are hard to enforce, and gains tend to be overwhelmed by inertia and systemic resistance. The civil liberties precedents of the sixties helped trigger the political reaction that led to conservative Presidents and conservative judges overruling or limiting those precedents, or minimizing their effects in the lower courts. Cause litigation is important, but not so important as I thought when I was your age.”

DO YOU MAINLY REPRESENT RELIGIOUS FREEDOM CASES?




“I do a fair amount of free exercise litigation, religous free speech litigation, and establishment clause litigation in cases of government religious speech, sometimes for parties, more often for amici. I think everyone's religious liberty should be protected, both believers and nonbelievers, so I am sometimes on one side of the culture wars and sometimes on the other. In the Supreme Court, I represented the Church of the Lukumi, Archbishop Flores in City of Boerne, and the families objecting to prayer at high school football games in Santa Fe ISD v. Doe.

DID YOU FEEL A STRONG CONNECTION TO THIS CASE?
“Absolutely. It was not a very attractive religion in my view, but it was their religion and they were entitled to it.  The regulation came from a mix of raw bigotry, class and racial prejudice, feelings of disgust, and animal rights groups that recognized no countervailing interests. This last group were the least important locally, but much more important nationally.  What the whole coalition had in common was that it placed zero value on what it viewed as someone else's false religion.”


WHEN YOU FEEL STRONGLY CONNECTED TO A CASE, HOW DO YOU RELATE TO THE OPPOSING SIDE?


“I'm not good at that. I'm civil and polite, and cognitively I know that they have a client just like I do. But emotionally, I view them as the forces of oppression, trampling on civil liberties for light and transient causes, and sometimes lying and misrepresenting the record to try to accomplish their evil ends. I find it hard to talk to them.”

THE SUPREME COURT REASONING:
• •

Adopted Smith Test

FAILS NEUTRALITY: “ritual” and “ceremony” evidence of facial discrimination in conjunction w/ sentiments expressed at council meeting

GENERAL APPLICABILITY: fails to prohibit nonreligious conduct: hunters, medical science against animals

•FAILS

•“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.”

COMPELLING STATE INTEREST?

Preventing animal cruelty and protecting safety and health were not compelling, but LEGITIMATE  Means were not narrowly tailored, could further these interests through other means.


CHURCH OF LUKUMI WINS!

SANTERIA IN THE MEDIA


Hialeah citizens were wary of Santeria because the religion had been falsely portrayed in the media and in the movies



In 1989 over a dozen murders were falsely linked to Santerians in Matamoros, Mexico

I LOVE LUCY


  

When the television show "I Love Lucy" debuted in 1951, mainstream American knew very little about Latino culture But the character of Ricky Ricardo changed all that Character Ricky was from Havana, but the actor portraying him, Desi Arnaz, was from Santiago de Cuba Millions of Americanos tuned into "I Love Lucy," and most of them probably didn't realize that Ricky Ricardo's signature song, Babalu, was a tribute to an Afro-Cuban god



http://www.youtube.com/watch?v=rAV3bOJaQuY&feature= related

THE MATAMOROS MURDERS


In 1989 ritual slayings in Matamoros, Mexico were initially linked to Santeria






The bodies of 15 murdered men were found in Matamoros, close to the Texas border A media frenzy - the killings were blamed on Satanists, Witches, Voodoo priests, and Santerians After the police investigation concluded, the murderers were found to be orchestrated by an individual hired by a gang of drug runners who were obsessed with the movie The Believers

THE BELIEVERS

   

The gang leader required the members to watch the 1987 movie The Believers over 14 times The movie, starring Martin Sheen and Jimmy Smits, was about a New York City cult that sacrifices children It shows rituals based off of Santeria, but Santeria does not involve human sacrifice http://www.youtube.com/watch?v=7UMvkrA2Rpc

HIALEAH CITIZENS TELL THEIR STORY TO THE MEDIA




Despite assurances that human sacrifice is not practiced by Santerians, the Hialeah citizens remained suspicious of the church Hialeah community members complained that:
Animal carcasses were left in canals, on the Courthouse steps, and street corners, violating zoning laws and posing a threat to public health  They had seen two white-robed woman chanting and rubbing their naked bodies with a live chicken. The chicken was then slaughtered and its remains were thrown into the river  Nights filled with drums beating and animals screaming. “I have seen them drink blood.”  They were afraid that their pets would be stolen and offered up to the gods




http://www.youtube.com/watch?v=L8jM32AQGSg

“THE CHICKEN WARS”
The media revealed the public‟s inaccurate portrayal of the religion and its customs  Most of the publications focused on the “strange” details involved in the rituals, calling the case “The Chicken Wars”
 

Time, 1992:
“Santeria's practices … seem simply to pit the sensibilities of animal lovers against a fringe order of poultricidal zealots.”  “It may come down to whether the court is more concerned about dismembered chickens or being accused of dismembering the Constitution.”


ANIMAL RIGHTS GROUPS GET INVOLVED
Hialeah's position was supported by a number of animal rights groups in Florida and nationally  Animal rights activists held demonstrations in front of the church and the Courthouse  Their argument:
  

Santeria sacrifices are inherently cruel and the animals experience pain, do not die instantly

Ernesto Pichardo responds:
Santeros either eat the animals they have slaughtered or dispose of them in accordance with existing laws  "It is against principles to offer any unhealthy, mistreated or suffering animal to a god."


NATIONAL MEDIA REACTS POSITIVELY TO THE SUPREME COURT DECISION



Channel 7 story


http://www.youtube.com/watch?v=DxLDMCZ8bzs http://www.youtube.com/watch?v=I3FnfM_cyRg&feature=r elated



Larry King interview


IMPACT OF THE DECISION ON THE PLAINTIFFS


Pichardo in a 2007 interview:


“When we won in 1993, there was a room of white reporters who said, „What does this mean to you?‟ I said, „The only thing it means to me is a beginning. Now‟s when it starts.‟ ”



The good news:


The Miami-Dade County Police Officials 2009 Law Enforcement Handbook will include a reminder that the Constitution protects the humane killing of animals in religious ceremonies

IMPACT OF THE DECISION


Examples of the bad news:


Batista:
In 2007 a Coral Gables man‟s induction into the priesthood was interrupted by swarms of police  Neighbors called the police, disturbed because of animal sacrifice  Shortly after the June incident made the news, the man received a handwritten note: “America has become a dumping ground for trash like you. Go back to Cuba and take your animal sacrifices with you.”




Suartez:
Similar facts as Batista, but the police were there for hours, holding the Santerians against their will  Attorney David Aelion is representing the church  (he did not respond to phone calls or emails)


THE LAW AFTER LUKUMI: THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA)




The act mandated that a government could not substantially burden a person‟s religious conduct without a “compelling government interest.” However, the Supreme Court in 1997 declared RFRA unconstitutional as applied to state and local governments in City of Bourne v. Flores.





RFRA overstepped Congress's power to enforce the Fourteenth Amendment. RFRA remains applicable to federal statutes, which must therefore still meet the "compelling interest" standard in free exercise cases.


				
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