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The Supreme Court decision of June 11, 1993 in the case of the Church of the Lukumi Babalu Aye v. City of Hialeah established the legal precedent that a law which is aimed at targeting a particular religion violates the Free Exercise clause of the First Amendment and is therefore unconstitutional.

 

The Church of the Lukumi Babalu Aye practices a form of religion commonly known as Santeria, which includes as one of its major tenets the sacrificial killing of small animals, particularly chickens, in rites associated with birth, marriage, death, the curing of the sick, and various annual ceremonies. Followers of the religion insist that the animals are killed in a humane manner and are cooked and eaten following all Santeria rituals except healing and death rites. They point out that the ritual sacrifice of animals was practiced in ancient Israel and has been part of the Santeria religion for over a millennium.

 

In the mid 1980s, the Church leased land in Hialeah, Florida, for the purpose of establishing a church, school, and cultural center. Residents of the city became alarmed, and the city council held an emergency public session on June 9, 1987, where they passed a resolution declaring the city’s commitment to prohibit practices “inconsistent with public morals, peace, or safety” and an ordinance that subjected to criminal prosecution anyone who unnecessarily or cruelly kills an animal. Additional ordinances were passed in September of the same year defining “sacrifice” to be an unnecessary killing of an animal and prohibiting the possession, sacrifice, or slaughter of an animal killed in “any type of ritual.” The ordinances were carefully worded to exempt virtually all killing of animals except as sacrifice, including the slaughtering of small numbers of hogs and cattle by farmers.

 

The Supreme Court decision made reference both to the minutes and to taped excerpts of the June 9 Hialeah city council meeting to show the “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 [Santeria leader] with taunts. When Councilman Martinez, a supporter of the ordinances, stated that in prerevolution Cuba ‘people were put in jail for practicing this religion,’ the audience applauded. 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 home-land [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 ‘Bible says we are allowed to sacrifice an animal for consumption,’ he continued, ‘but for any other purposes, I don't believe that the Bible allows that.’ The president of the city council, Councilman Echevarria, asked: ‘What can we do to prevent the Church from opening?’”

 

Following the passing of these ordinances the Church filed suit in the United States District Court for the Southern District of Florida to have the ordinances declared unconstitutional. The Court upheld the ordinances, citing a “compelling governmental interests in preventing public health risks and cruelty to animals.” The Court of Appeals affirmed this decision.

 

However, the Supreme Court in 1993 unanimously reversed the decisions of these lower courts. In writing the majority opinion of the Court, Justice Kennedy made a number of significant statements regarding laws aimed at targeting specific religions or religious practices:

 

“Those in office must be resolute in resisting importunate demands and must ensure that the sole reason 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.”

 

“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.’”

 

“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.”

 

“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. There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct.”

 

“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.”

 

Over the past several years the states of Utah, Arizona, and Texas have passed laws specifically targeting the FLDS people. Texas state representative Harvey Hilderbran, R-Kerrville, has made no secret of his opposition to the Church’s settling in Texas. The Deseret News of June 2, 2008, quotes Hilderbran as saying, “I wanted to make it unappealing to them. I hoped they wouldn’t stay.”

 

In 2005 Hilderbran introduced House Bill 3006, raising the minimum age for marriage from 14 to 16 and increasing penalties for bigamy and polygamy. In a press release on March 24, 2005, Hilderbran stated as his reason for introducing the bill, “I wanted to keep Eldorado, Schleicher County, and all of Texas from becoming like Colorado City, Arizona, and Hildale, Utah, where this cult came from.”

 

That the FLDS people were the target of this bill is obvious from the analysis made by the House Research Committee, which includes the statement that the bill “would pick up elements of similar laws in Utah and Arizona, states that have faced similar concerns about the same group.” 

 

Testifying in favor of the bill before the Juvenile Justice and Family Issues Committee on April 13, 2005 were the following well-known opponents of the FLDS people:

 

·        Mark L. Shurtleff, Utah Attorney General, who has boasted that he is driving the FLDS out of Utah

·        Sam Brower, private investigator targeting the FLDS in Utah and Arizona

·       Jon Krakauer, author of Under the Banner of Heaven, a sensationalized history of fundamentalist groups in Utah

·       Randy Mankin, city administrator of Eldorado, Texas, and publisher of the Eldorado Success, which has carried articles opposing the FLDS for the last four years

 

Just as the ordinances passed in Hialeah, Florida, in opposition to the Church of the Lukumi Babalu Aye were unconstitutional because of their obvious targeting of a particular religion in violation of First Amendment rights, those laws passed by Utah, Arizona, and Texas are unconstitutional for the same reason.

 

(For a more detailed analysis of Hilderbran’s opposition to the FLDS people in Texas, see “Rep. Hilderbran Ignores the Constitution and Targets FLDS”)