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Animal Sacrifice and the First Amendment

2010.05.24

AUTHOR: David N. Cassuto
TITLE: Animal Sacrifice and the First Amendment

PUBLICATION DATE: June 2008
PUBLICATION PLACE: ANIMAL LAW AND THE COURTS: A READER, Taimie Bryant, David N. Cassuto, Rebecca Huss, eds., Thomson West, 2008

Reproduced with express authorization of the author in dA webCenter May 2010.


ABSTRACT

Animal sacrifice and religious ritual have intertwined for thousands of years. The practice remains integral to Santería, an Afro-Cuban religion that has many adherents in the United States, particularly in Florida. In 1987, when the Santería Church of Lukumi Babalu Aye announced plans to open in Hialeah, Florida, the city reacted by passing a set of ordinances banning animal sacrifice. The Church sued and the issue of whether the ritual killing of animals constituted protected religious expression eventually made its way to the Supreme Court. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah asked the Court to resolve two linked constitutional questions: Does the ritual slaughter of animals constitute religious expression protected by the First Amendment of the United States Constitution? And, if so, (or even if not) may the practice be banned or regulated by the State?

These are difficult questions and the Court's attempt to answer them raises more questions still. This chapter examines the Court's reasoning in the Lukumi case to determine whether it clarified or further clouded the relationship between animal sacrifice and the First Amendment. It argues that the plurality opinion's attempt to cast the Hialeah ordinances as underperforming animal protection statutes was both misguided and counterproductive.

Defining the Hialeah ordinances as anti-cruelty rather than as anti-sacrifice enabled the Court to find the laws both overbroad and underinclusive. For those reasons, the Court deemed the ordinances to be intolerably burdensome to religious practices. This reasoning falls prey to the same imprecision the Court imputes to the challenged laws. It demands that the laws be both narrowly drawn to accomplish a specific goal while yet remaining broadly applicable to behavior that lies beyond their stated scope. Such conflicting expectations create an impossible standard. In addition, by classifying the animal sacrifice laws as failed anti-cruelty statutes and then invalidating them on First Amendment grounds, the Court jeopardized future attempts to legislate animal protection laws, even when such laws only incidentally impact religious practices.

KEYWORDS

First Amendment, Free Exercise Clause, Establishment Clause, Animal Law, Animal Sacrifice, Lukumi Babalu, Santeria, constitutional law, freedom of religion


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