Church of the Lukumi Babalu Aye v. City of Hialeah

508 U.S. 520

Case Year: 1993

Case Ruling: 9-0, Reversed

Opinion Justice: Kennedy

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, O'Connor, Rehnquist, Scalia, Souter, Stevens, Thomas, White


1st Concurring Opinion

Author: Scalia

Joiner(s): Rehnquist

1st Dissenting Opinion



2nd Concurring Opinion

Author: Souter


2nd Dissenting Opinion



3rd Concurring Opinion

Author: Blackmun

Joiner(s): O'Connor

3rd Dissenting Opinion



Other Concurring Opinions:



In 1973 the Church of the Lukumi Babalu Aye organized as a nonprofit corporation in the state of Florida. Church members are practitioners of Santeria, a religion brought to the United States by Cuban exiles. The religion originated with the Yoruba people of West Africa, who had been taken to Cuba as slaves. Santeria evolved in the 1800s as a meshing of Yoruba religion with parts of Roman Catholicism. Today, as the Supreme Court noted, the open practice of Santeria and its rites remains infrequent in the United States, but about fifty thousand practitioners live in South Florida.

Central to the Santeria religion is animal sacrifice. Practitioners sacrifice chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles at various rites, including the initiations of new priests, weddings, births, and deaths, and as cures for the sick. After some of the rituals, the animals, which are killed by cutting the carotid arteries in the neck, are cooked and eaten. Santerians sacrifice as many as thirty animals during a given ritual.

In April 1987 the church sought to establish a branch in Hialeah, Florida, and by August it had obtained the necessary approval to build a place of worship, a school, and cultural center. While the church was establishing itself in Hialeah, however, some residents of the community were looking for ways to limit the church's exercise of its religion. They were successful, for between June 9 and September 22, the city enacted six ordinances limiting animal sacrifice, which it defined as "to unnecessarily kill, torment, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption." The ordinances did not exclude the killing of animals "on premises ... properly zoned as a slaughterhouse." Also, the law did not prohibit other types of animal killing, such as fishing or exterminating vermin, for nonreligious reasons. Before the U.S. Supreme Court issued its decision in Employment Division v. Smith (1990), the church filed suit in a U.S. district court asking that the ordinances be struck down as violations of the Free Exercise Clause. Throughout the litigation, attorneys representing the church asserted that the ordinances were aimed directly at Santeria practitioners and that they impinged on their ability to practice an important aspect of their religion. Indeed, according to the church, "The faith could not survive without animal sacrifice, because sacrifice is essential to the initiation of new priests." Using the Supreme Court's pre- Smithapproach to free-exercise claims, church attorneys also argued that the state had failed to meet the compelling interest-least restrictive means test.

The city claimed that it had good reasons for limiting animal sacrifice. First was the quantity of animals sacrificed. As the city later told the Supreme Court, the Santerians were sacrificing "thousands, indeed tens of thousands, of animals." The "specter" of such large-scale sacrificing, with "the attendant problems of keeping and feeding the animals and, later disposing of the remains," was something the city could not tolerate. Second, the city pointed to the potential health risks "because the remains of the animals attract flies, rats and other animals, which serve as vectors of serious disease." Finally, the city expressed its concern for the inhumane treatment of animals awaiting sacrifice, who, attorneys alleged, were kept in filthy and overcrowded conditions, and for the cruelty of the sacrifice procedures, which instilled "great fear and pain" in the animals. In short, as the city put it, "the slaughtering of animals on the premises other than those properly zoned as a slaughter house, is contrary to the public health, safety and welfare of the citizens of Hialeah, Florida."

The district court agreed. It found that the government's interests were sufficiently compelling to uphold the ordinances; in particular, it noted that sacrifice could present health risks to the public if the animals are not properly handled, that witnessing sacrifice might cause undue emotional harm to children, that animals deserve protection from cruel and unnecessary killing, and that the city was within its rights to restrict sacrifice to locations zoned specifically for the slaughtering of animals.

After a U.S. court of appeals affirmed the district court's ruling, the church appealed to the U.S. Supreme Court. By this point, the justices had handed down Smith, so attorneys for both sides were unsure how to proceed. They dealt with their uncertainty by showing that invocation of either the Sherbert v. Verner (1963) or Employment Division v. Smith (1990) would support their opposing positions. Amici curiae took a similar tack. Those from the National Jewish Commission of Law and Public Affairs, for example, urged the Court to jettison the Smith test, but stated that "even if the Court elected to apply ... Smith ... [it] should invalidate Hialeah's ordinance." On the opposite side, People for the Ethical Treatment of Animals asserted that Sherbert and Smith would lead the Court to conclude that the ordinances were constitutional.



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. We invalidate the challenged enactments and reverse the judgment of the Court of Appeals....


The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The city does not argue that Santeria is not a "religion" within the meaning of the First Amendment. Nor could it. Although the practice of animal sacrifice may seem abhorrent to some, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."... Given the historical association between animal sacrifice and religious worship, petitioners' assertion that animal sacrifice is an integral part of their religion "cannot be deemed bizarre or incredible."... Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners' professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners' First Amendment claim.

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....


... [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."]...


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, see Employment Div., Dept. of Human Resources of Oregon v. Smith; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. 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 discernible 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."... Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt....

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.... 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.... See, e.g., Reynolds v. United States (1879).... 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....

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. It is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that a law which visits "gratuitous restrictions" on religious conduct... seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation.

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....

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. Under federal and Florida law and [one of the] ordinance[s] which incorporates Florida law in this regard, killing an animal by the "simultaneous and instantaneous severance of the carotid arteries with a sharp instrument"--the method used in Kosher slaughter--is approved as humane.... 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....


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.... Here, as in equal protection cases, we may determine the city council's object from both direct and circumstantial evidence.... 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.... These objective factors bear on the question of discriminatory object....

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....

This history discloses the object of the ordinances to target animal sacrifice by Santeria worshippers because of its religious motivation.


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. These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.


We turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability. Employment Div., Dept. of Human Resources of Oregon v. Smith. 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 "protects 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.... 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.

Respondent claims that [the] [o]rdinances advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends. They fail to prohibit nonreligious 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.] Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. For example, fishing--which occurs in Hialeah...--is legal. Extermination of mice and rats within a home is also permitted....

The city concedes that "neither the State of Florida nor the City has enacted a generally applicable ban on the killing of animals."... It asserts, however, that animal sacrifice is "different" from the animal killings that are permitted by law.... According to the city, it is "self-evident" that killing animals for food is "important"; the eradication of insects and pests is "obviously justified"; and the euthanasia of excess animals "makes sense."... These ipse dixits do not explain why religion alone must bear the burden of the ordinances, when many of these secular killings fall within the city's interest in preventing the cruel treatment of animals.

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. 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 advance "'interests of the highest order'" and must be narrowly tailored in pursuit of those interests.... The compelling interest standard that we apply once a law fails to meet the Smith requirements is not "water[ed] ... down" but "really means what it says."... 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....



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.

... Because I agree with most of the invalidating factors set forth in Part II of the Court's opinion, and because it seems to me a matter of no consequence under which rubric ("neutrality," Part II-A, or "general applicability," Part II-B) each invalidating factor is discussed, I join the judgment of the Court and all of its opinion except section 2 of Part II-A.

I do not join that section 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....

Perhaps there are contexts in which determination of legislative motive must be undertaken.... But I do not think that is true of analysis under the First Amendment.... The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted: "Congress shall make no law ... prohibiting the free exercise [of religion]...." 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.


This case turns on a principle about which there is no disagreement, that the Free Exercise Clause bars government action aimed at suppressing religious belief or practice. The Court holds that Hialeah's animal-sacrifice laws violate that principle, and I concur in that holding without reservation.

Because prohibiting religious exercise is the object of the laws at hand, this case does not present the more dif?cult issue addressed in our last free-exercise case, Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), which announced the rule that a "neutral, generally applicable" law does not run afoul of the Free Exercise Clause even when it prohibits religious exercise in effect. The Court today refers to that rule in dicta, and despite my general agreement with the Court's opinion I do not join Part II, where the dicta appear, for I have doubts about whether the Smith rule merits adherence....

According to Smith, if prohibiting the exercise of religion results from enforcing a "neutral, generally applicable" law, the Free Exercise Clause has not been offended.... I call this the Smith rule to distinguish it from the noncontroversial principle, also expressed in Smiththough established long before, that the Free Exercise Clause is offended when prohibiting religious exercise results from a law that is not neutral or generally applicable....

Though Smith used the term "neutrality" without a modifier, the rule it announced plainly assumes that free-exercise neutrality is of the formal sort. Distinguishing between laws whose "object" is to prohibit religious exercise and those that prohibit religious exercise as an "incidental effect," Smithplaced only the former within the reaches of the Free Exercise Clause; the latter, laws that satisfy formal neutrality, Smith would subject to no free-exercise scrutiny at all, even when they prohibit religious exercise in application....

The proposition for which the Smith rule stands, then, is that formal neutrality, along with general applicability, are sufficient conditions for constitutionality under the Free Exercise Clause. That proposition is not at issue in this case, however, for Hialeah's animal-sacrifice ordinances are not neutral under any definition, any more than they are generally applicable. This case, rather, involves the noncontroversial principle repeated in Smith, that formal neutrality and general applicability are necessary conditions for free-exercise constitutionality. It is only "this fundamental nonpersecution principle of the First Amendment [that is] implicated here,"... and it is to that principle that the Court adverts when it holds that Hialeah's ordinances "fail to satisfy the Smith requirements." In applying that principle the Court does not tread on troublesome ground....

In being so readily susceptible to resolution by applying the Free Exercise Clause's "fundamental nonpersecution principle," this is far from a representative free-exercise case. While, as the Court observes, the Hialeah City Council has provided a rare example of a law actually aimed at suppressing religious exercise, Smith was typical of our free-exercise cases, involving as it did a formally neutral, generally applicable law. The rule Smith announced, however, was decidedly untypical of the cases involving the same type of law. Because Smith left those prior cases standing, we are left with a free-exercise jurisprudence in tension with itself, a tension that should be addressed, and that may legitimately be addressed, by reexamining the Smith rule in the next case that would turn upon its application....

... Our cases now present competing answers to the question when government, while pursuing secular ends, may compel disobedience to what one believes religion commands. The case before us is rightly decided without resolving the existing tension, which remains for another day when it may be squarely faced.


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 in 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....

... [U]nlike the majority, I do not believe that "[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny."... In my view, regulation that targets religion in this way, ipso facto, fails strict scrutiny. It is for this reason that a statute that explicitly restricts religious practices violates the First Amendment. Otherwise, however, "[t]he First Amendment ... does not distinguish between laws that are generally applicable and laws that target particular religious practices."...

It is only in the rare case that a state or local legislature will enact a law directly burdening religious practice as such. Because the respondent here does single out religion in this way, the present case is an easy one to decide.

A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that every Member of the Court concurs in that result, does not necessarily reflect this Court's views of the strength of a State's interest in prohibiting cruelty to animals. This case does not present, and I therefore decline to reach, the question whether the Free Exercise Clause would require a religious exemption from a law that sincerely pursued the goal of protecting animals from cruel treatment. The number of organizations that have filed amicus briefs on behalf of this interest, however, demonstrates that it is not a concern to be treated lightly.