Article by Kenneth L. Karst
Americans who get their constitutional law from newspaper headlines probably thought, in the spring of 1993, that the Supreme Court had announced a constitutional right to engage in animal sacrifice. Of course it did no such thing. True, the Court invalidated a set of ordinances by which the City of Hialeah, Florida, prohibited the ritual sacrifice of animals. But even today, Hialeah remains free to protect public health and to forbid cruelty to animals, so long as its regulations are necessary to achieve those compelling purposes, and are not aimed exclusively at religious practices.
The parties who challenged the Hialeah ordinances were the Church of the Lukumi Babalu Aye and its leader, Ernesto Pichardo. The Lukumi religion originated in West Africa among the Yoruba nation, “a great urban people who have lived in cities for at least one thousand years.” In the nineteenth century, when many thousands of Yoruba people were enslaved and shipped to Cuba and Brazil, Lukumi miraculously survived not only geographical displacement, but also the shattering of many cultural institutions. In Cuba, Lukumi practitioners avoided the suppression of their religion by giving it an overlay of Catholicism. The orishas, the Lukumi pantheon of spiritual beings, were said to manifest themselves through the images of Catholic saints. The resulting syncretism—or dissimulation—was called Santería, the way of the saints.
Now, as before, the orishas are seen to be enormously powerful, but to require regular nourishment. One form of nourishment is the blood of food animals: chickens, goats, sheep, pigeons, and the like. Animal sacrifice is one of the central sacraments of the Lukumi religion. Along with the great Cuban migration of our own time, animal sacrifice came to Hialeah.
Writing for the Court in the Lukumi case, Justice Kennedy concluded that Hialeah's ordinances had been targeted at the practices of Santería. Because the city had not offered compelling justification for this departure from neutrality, the ordinances violated the Free Exercise Clause of the First Amendment. None of the Justices disagreed with this conclusion, and in retrospect Lukumi seems a remarkably easy case. The district and circuit courts, however, had to decide the case without the guidance of Justice Kennedy's opinion, and all four of the lower court judges had upheld the Hialeah ordinances. What explains this turnabout of unanimities?
When the federal district judge came to decide the case, the leading doctrinal precedent was the Supreme Court's 1963 decision in Sherbert v. Verner. Although Sherbert purported to require “compelling” justification whenever government imposed a substantial burden on the free exercise of religion, the Supreme Court since had rejected virtually all free exercise claims outside Sherbert's immediate subject area of unemployment compensation. Sometimes the Court concluded that the burden of a law or government action on religion was not substantial enough to invoke strict scrutiny, and sometimes the Court held that the asserted governmental interests were strong enough to be called “compelling.” Given this history, it is understandable that the district judge in Lukumi concluded that Hialeah's interests in protecting public health and in preventing cruelty to animals were sufficient to outweigh the ordinances'limitations on the Santeros' religious freedom.
After the district court's decision, but before Lukumi was decided by the court of appeals, the Supreme Court handed down its decision in Employment Division v. Smith. In that case, the Court upheld Oregon's denial of unemployment compensation to two employees who had been fired for misconduct, that is, the taking of peyote. The two employees had participated in the peyote ceremony, the most important sacrament of the Native American Church. The police had not been enforcing the anti-peyote law against religious celebrants, but Oregon law continued to define peyote use as a crime. So, the Smith decision might have been rationalized by saying that Oregon's anti-drug policy was strong enough to survive the prevailing soft version of strict scrutiny.
Instead, Justice Scalia's opinion for the Court announced a sweeping new rule of judicial abdication. Ordinarily, he said, the Free Exercise Clause does not protect against a neutral law that applies generally to all conduct, religious or not. A law would lack neutrality if it were targeted to forbid a type of conduct only when it was motivated by religion, or only when it displayed religious belief. Here, however, Oregon's ban on peyote did not single out religious use. So, the courts need not evaluate either the law's burden on religious practice or the state's justification for the ban. The results of so crabbed a view of the Free Exercise Clause are dismaying; as the dissenters noted, a law generally prohibiting consumption of alcoholic drinks would be valid in application to sacramental wine.
Soon after Smith, the Lukumi case reached the court of appeals. The three appellate judges noted that the district court had upheld the Hialeah ordinances against a standard ”arguably stricter” than Smith's, and affirmed in a one-paragraph memorandum opinion.
Meanwhile, Smith's radical contraction of free exercise doctrine had attracted a large body of overwhelmingly hostile commentary. By the time the Supreme Court came to decide Lukumi, the Oregon legislature had already moved to repair Smith's local damage, writing a religious-use exception into the statute prohibiting peyote use. At the same time, Congress was on the verge of adopting its own law to counteract the doctrinal effects of the Smith opinion, and thus to restore religious freedom across a broader front. Perhaps the Court's unanimity in Lukumi reflected the wish of some Justices to provide reassurance that the Free Exercise Clause retained vitality after Smith.
Congress enacted the Religious Freedom Restoration Act (RFRA) in late 1993. The RFRA creates a statutory right to the religious freedoms protected by the Free Exercise Clause before Smith was decided, and thus purports to extend well beyond the “targeting” principle that governed Lukumi. In the future, then, direct applications of Lukumi as a constitutional precedent may not be numerous. Yet, the case—not just the opinions, but the whole case—offers lessons about our constitutional aspirations to equal treatment in the field of religion, and about the meanings of equal citizenship in a nation of many cultures.
Once I read a zen master's statement that went something like this: There are great truths and small truths. A small truth is easily recognizable, for its opposite is plainly false. But the opposite of a great truth is also true. Some sort of antidiscrimination principle seems implicit in the First Amendment's religion clauses, and an impressive body of constitutional commentary classifies and analyzes various potential meanings of religious neutrality, or equality. Some commentators argue that one or another form of neutrality, or equality, is the substantive core of the religion clauses; others say that religious neutrality is an impossible dream in modern American society. If we reflect on the Lukumi case, perhaps we may come to see these opposing perspectives as different faces of a great truth.
About the Author
Kenneth L. Karst. David G. Price and Dallas P. Price Professor of Law, University of California, Los Angeles. A.B., UCLA 1950; LL.B., Harvard Law School 1953.
Citation
69 Tul. L. Rev. 335 (1994)