Amicus Curiae Brief — Church of Lukumi Babalu Aye, Inc. v. Hialeah

No. 91-948 inti |

In The

Supreme Court of the Tnited States

October Term, 1991

CHURCH OF THE LUKUMI BABALU AYE, INC. AND

ERNEST PICHARDO,

Petitioners,

V.

CITY OF HIALEAH,

Respondent.

On Writ Of Certiorari To The United States

Court of Appeals For The Eleventh Circuit

BRIEF AMICUS CURIAE OF THE RUTHERFORD

INSTITUTE IN SUPPORT OF PETITIONERS

CARL HOWARD ESBECK

School of Law, Rm. 213

John K. Hulston Hall

Columbia, MO 65211

314-882-3035

JOHN W. WHITEHEAD

THE RUTHERFORD INSTITUTE

1445 East Rio Road

Post Office Box 7842

Charlottesville, VA 22906-7842

804-978-3888

Counsel of Record

Balmar Legal Publishing Services, Washington, D.C., (202) 682-9800

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............. ill

STATEMENT OF INTEREST OF AMICUS

SUMMARY OF ARGUMENT ...........

SE 6 45 She be teehee nae

ALTHOUGH THE SMITH CASE CHANGES

THE SHERBERT-APPROACH, IT MOST

CERTAINLY DOES NOT SUPPLANT THE

COMPELLING INTEREST TEST

0 a ee a 3

A. A MUNICIPAL ORDINANCE THAT

EXPRESSLY BARS THE RITUAL

SLAUGHTER OR SACRIFICE OF

ANIMALS IS NOT FACIALLY

NEUTRAL AS TORELIGION ....... 3

B. SMITH IS DISTINGUISHABLE ON ITS

FACTS AND ON THE BASIS OF THIS

COURTS PRECEDENT .......... 6

1. The Evolution of Modern Free Exercise

OE eae ee ee 7

2. The City’s Reading of Smith is Contrary

to Both Text and History ........ 15

THE COMPELLING INTEREST TEST DOES

NOT CAUSE A CIVIL MAGISTRATE TO

BECOME INVOLVED IN ASSESSING THE

“CENTRALITY” OF A RELIGIOUS

oo Pee ee Se ee es ee ee 16

Ill. THE CITY’S ORDINANCES HAVE AN

INVIDIOUS RELIGIOUS PURPOSE

VIOLATIVE OF THE ESTABLISHMENT

a a 18

DT bss p ee eb eee eevvevess 23

TABLE OF AUTHORITIES

CASES: Page(s)

Abington School District v. Schempp, 374 U.S. 203

ee GEE Oe es 22

Bowen v. Roy, 476 U.S. 693 (1986) ........ 6, 12, 13

Braunfeld v. Brown, 366 U.S. 599 (1961) . 2... passim

Cantwell v. Connecticut, 310 U.S. 296 (1940) ... 7,8, 15

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 723 F. Supp. 1467 (1989) ...... 5

Corporation of Presiding Bishop v. Amos, 483 U.S. :

a 11

Davis v. Beason, 133 U.S. 333 (1890) ....... 7

Edwards v. Aguillard, 482 U.S. 578 (1987) .... 21

Employment Division v. Smith, 494 U.S. 872

ae ee ee passim

Engel v. Vitale, 370 U.S. 421 (1962) ... 2... .. 22

Epperson v. Arkansas, 393 U.S. 97 (1968) .. . .. 22

Fowler v. Rhode Island, 345 U.S. 268 (195i) . . . 20

Frazee v. Illinois Department of Employment __

Security, 489 U.S. 829 (1989) .. 2... 0... 12,13

Gallagher v. Crown Kosher Super Market Inc., 366

a S

Goldman v. Weinberger, 475 U.S. 503 (1986) . . . 12

Hobbie v. Unemployment Appeals Commission of

Florida, 480 U.S. 136 (1987) ......... 12,13

Jimmy Swaggart Ministries v. Board of Equalization,

493 U.S. 378 (1990)... 2 2 2 ee ee, 12, 13,21

Larson v. Valente, 456 U.S. 228 (1982) ...... 20

Lemon v. Kurtzman, 403 U.S.602 (1971) 2... |. 18, 23

iv

Lynch v. Donnelly, 465 U.S. 668 (1984) ...... 23

Lyng v. Northwest Indian Cemetery Protective

Assoc., 485 U.S. 439 (1988) ......... 12

McDaniel v. Paty, 435 U.S. 618 (1978) ...... 20

McGowan v. Maryland, 366 U.S. 420 (1961) . . . 8,13

Minersville School District v. Gobitis, 310 U.S. 586

a ee ee ee ee eee 6

Mueller v. Allen, 463 U.S. 388 (1983) ....... 22

Niemotko v. Maryland, 340 U.S. 268 (1951) .. . . 20

O' Lone v. Shabazz, 482 U.S. 342 (1987) ...... 12

Palmer v. Thompson, 403 U.S. 217 (1971)... .. 22

Pierce v. Society of Sisters, 268 U.S. 510

ee ee 15

Prince v. Massachusetts, 321 U.S. 158 (1944) . . . 8

Reynolds v. U.S., 98 U.S. 145 (1878)... 2... . 7

Rogers v. Lodge, 458 U.S. 613 (1982) ....... 22

Sherbert v. Verner, 374 U.S. 398 (1963) ...... passim

Stone v. Graham, 449 U.S. 39 (1980) ....... 22

Thomas v. Review Board, 450 U.S. 707 (1981). . 12, 17

Torcaso v. Watkins, 367 U.S. 488 (1961) ..... 7, 20

Two Guys From Harrison-Allentown, Inc. v.

McGinley, 366 U.S. 5821961) ... 2... . s

U.S. v. Ballard, 322 U.S. 78 (1944) ........ 7

U.S. v. Lee, 455 U.S. 252 (1982) .......... 12, 16

U.S. v. O'Brien, 391 U.S. 367 (1968) ....... 22

Wallace v. Jaffree, 472 U.S. 38 (1985)... .... 22, 23

Welsh v. U.S., 398 U.S. 333 (1970) ........ 15

\

West Virginia State Board of Education, v.

Barnette, 319 U.S. 624 (1943) ........

Widmar v. Vincent, 454 U.S. 263 (1981) .... ..

Wisconsin v. Yoder, 406 U.S. 205 (1972) .....

Wooley v. Maynard, 430 U.S. 705 (1977) .....

Constitutional Provisions:

U.S. Constitution amend.I .............

Other Authorities:

Comment, 45 U of Miami L. Rev. 1061 (1991) . . . .

Glendon, Religion and the Court: A New Begin-

ning?, First Things, 21(1992) ........

Florida Stat. Ann. Ch. 828 (Supp. 1991) .... ..

Hialeah, Florida, Ordinance 87-40

aR I i a

Hialeah, Florida, Ordinance 87-52

CN EE

Hialeah, Florida, Ordinance 87-71

er ek ng tp oo 6

Hialeah, Florida, Ordinance 87-72

i ee eg gg eb es

Hialeah, Florida, Resolution 87-66

CE

Hialeah, Florida, Resolution 87-90

8 ee ere

Hialeah, Florida, Resolution 87-109

ye ae

McConnell, Reli2ious Freedom at a Crossroads,

59 U. Chi. L. Rev. 115(1992) .... 2...

20

4,5

4,5

19

vi

McConnell, The Origins and Historical Under-

standing of Free Exercise of Religion, 103

Harv. L. Rev. 1409(1990) .......... 15

Pfeiffer, Religion-Blind Government, 15 Stan L.

DL < sss 65 bb ae woe 8 es 14

No. 91-948

In The

Supreme Court of the Wnited States

October Term, 1991

CHURCH OF THE LUKUMI BABALU AYE, INC. AND

ERNEST PICHARDO,

Petitioners,

V.

CITY OF HIALEAH,

Respondent.

On Writ Of Certiorari To The United States

Court of Appeals For The Eleventh Circuit

BRIEF AMICUS CURIAE OF THE RUTHERFORD

INSTITUTE IN SUPPORT OF PETITIONERS

STATEMENT OF AMICUS CURIAE!

This case is about the prevention of invidious discrimina-

tion against smaller or more unpopular religious groups. The

Framers of the United States Constitution never intended the

First Amendment Religion Clauses to be used as a tool to

eliminate minority religious groups. Indeed, the First Amend-

ment was created expressly with the idea of insulating these

minority groups from governmental regulation and censorship.

If the decision below is not reversed by this Court, it will

significantly weaken the consideration and caution that the

judiciary has historically shown to religious minorities. This

' This brief is filed with permission of ali the parues. Blanket consents

have been filed with the Clerk of this Court.

2

case could mean the destruction of the freedom of religious

persons to worship privately as society now knows it.

Amicus curiae is a non-profit religious corporation named

for Samuel Rutherford, a 17th-century Scottish divine and Rec-

tor at St. Andrew's University. With thirty-one state chapters,

three international chapters, and an international headquarters

in Charlottesville, Virginia, amicus curiae assists litigants and

participates in significant cases relating to the freedom of speech

of religious persons. Counsel for amicus curiae have special-

ized in litigation in state and federal courts and have participated

as counsel for amicus curiae in numerous cases before this

Court. Amicus curiae believes the expertise of its counsel will

be of assistance to the Court in this case.

SUMMARY OF ARGUMENT

Amicus does not believe that Employment Division vy.

Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990), and its “generally

applicable, facially religion-neutral” formulation controls this

case. An approach where the judiciary substantially defers to

the elected branches of government is “highly threatening to free

exercise concerns, especially where members of small, un-

popular, or unconventional religions are involved.”? Smith does

not unambiguously represent this Court's definitive adoption of

a complete reordering of a body of law that took forty years to

develop. Moreover, the demonstrated interests by the Justices

of the Court in First Amendment history, solicitude for the role

of religion as a mediating institution in culture, fidelity to

constitutional text, alertness to how purported “neutrality” can

mask hostility, and the conservative instinct to proceed cautious-

ly on a case-by-case basis’ all weigh in against the brash

assumption that Smith is controlling here.

é Mary Ann Glendon, Religion & the Court: A New Beginning’, First

Things 21, 24 (March 1992).

* Id. 25.

3

The Establishment Clause should not be ignored in this

matter, for it prohibits not only discrimination among religious

groups, but also prevents the political branches of government

from invidious discrimination against unpopular religious

groups and their religious practices.

ARGUMENT

ALTHOUGH THE SMITH CASE CHANGES THE SHER-

BERT-APPROACH, IT MOST CERTAINLY DOES NOT

SUPPLANT THE COMPELLING INTEREST TEST AL-

TOGETHER.

A. A MUNICIPAL ORDINANCE THAT EXPRESSLY

BARS THE RITUAL SLAUGHTER OR

SACRIFICE OF ANIMALS IS NOT FACIALLY

NEUTRAL AS TO RELIGION,

After making the point that religious belief is absolutely

protected, the Supreme Court in Employment Division v. Smith,

494 U.S. 872, 110 S. Ct. 1595 (1990), turned to the far more

common area of disputes concerning the scope of protection for

religious practices. 494 U.S. at 877. This Court said that

legislation would fail the facial-neutrality requirement and thus

would merit strict scrutiny if the law prescribed (or proscribed)

certain physical acts “only when they are engaged in for

religious reasons, or only because of the religious belief that

they display.” /d. Accord Braunfeld vy. Brown, 366 U.S. 599,

607 (1961) (discussed infra at footnote 11 and accompanying

text). For example, said the Court, “{i]t would doubtless be

unconstitutional . . . to ban the casting of ‘statues that are to be

used for worship purposes,’ or to prohibit bowing down before

a golden calf.” 494 U.S. At 877-878.4

* This Court's entire passage reads as follows:

4

Under this test a law that expressly criminalizes “the con-

sumption of wine” would be constitutional, whereas legislation

that prohibits “the sacramental consumption of wine” would be

closely examined by the Court under the compelling interest

test. Likewise, a municipal ordinance that by its terms prohibits

“the slaughter of domestic animals” need only survive rational-

basis review, whereas legislation that punishes “the sacrificial

slaughter of domestic animals” would receive strict scrutiny in

the courts.

Two of the ordinances chailenged in this case, Ord. 87-71

and Ord. 87-52, expressly subject a religious ritual to dis-

criminatory treatment. Moreover, Ord. 87-40 enacts Fla. Stat.

Ann. ch. 828 as a City ordinance. Sec. 828.12(1) (Supp. 1991),

makes it a misdemeanor to “unnecessarily” kill an animal. The

City obtained an opinion of the Florida Attorney General to the

effect that “unnecessary” killings includes the religious sacrifice

of animals. Finally, ail four ordinances were enacted for the

purpose of suppressing Petitioners’ religion, as evidenced by the

accompanying resolutions® and the findings below. For ex-

ample, the District Court found that these ordinances were

But the “exercise of religion” often involves not only belief and

profession but the performance of (or abstention from) physical

acts: assembling with others for a worship service, participating

in sacramental use of bread and wine, proselytizing, abstaining

from certain foods or certain modes of transportation. It would

be true, we think (though no case of ours has involved the point),

that a state would be “prohibiting the free exercise [of religion]”

if it sought to ban such acts or abstention only when they are

engaged in for religious reasons, or only because of the religious

belief that they display. It would doubtless be unconstitutional,

for example, to ban the casting of “statues that are to be used for

worship purposes,” or to prohibit bowing down before a golden

calf.

Smith, 494 U_S. at 877-878.

The first ordinance, passed as an emergency ordinance, adopted the

language of Fla Stat. 828.02-.25, the Florida anti-cruelty statute, and estab-

,

a

5

“prompted by the Church’s public announcement that it in-

tended to come out into the open and practice its religious

rituals,” and that “the council’s intent was to stop animal

sacrifice whatever individual, religion or cult it was practiced

by.” Church of the Lukumi Babalu Aye v. City of Hialeah, 723

F. Supp. 1467, 1479 (S.D. Fla. 1989).

In light of this Court’s own reasoning in Smith, there is no

escaping the conclusion that the lower courts erred in the manner

by which they applied the standard of review to the City of

Hialeah ordinances that expressly take aim at a religious prac-

tice.

lished penalties for its violation. Hialeah, Fla., Ordinance 87-40 (June 9.

1987). The second ordinance prohibited the possession of animals intended

for slaughter or sacrifice. It excepted any licensed establishments slaughter-

ing animals for food purposes where such activity is properly zoned and

otherwise permitted by state and local law. Hialeah, Fla., Ordinance 87-52

(Sept. 8, 1987). The third ordinance prohibited animal sacrifice within

Hialeah city limits and empowered registered groups to investigate and assist

in the prosecution of individuals or groups violating the ordinance. Hialeah.

Fla., Ordinance 87-71 (Sept. 22, 1987). The fourth ordinance prohibited the

Slaughter of animals on anv premises within the City of Hialeah, except those

properly zoned as slaughterhouses, and empowered registered groups to

investigate and assist in the prosecution of individuals or groups violating the

ordinance. Hialeah, Fla., Ordinance 87-72 (Sept. 22, 1987).

The City also passed three resolutions concerning animal sacrifice and

~ feligious practices in general. The firsi resolution reiterated the City’s

“commitment to a prohibition against any and ali acts of any and all religious

groups which are inconsistent with public morals, peace or safety.” Hialeah.

Fla., Resolution 87-66 (June 9, 1987). The second resolution established the

City’s policy opposing the ritual sacrifice of animals and stated the City’s

intent to prosecute any individual or organization engaging in that practice.

Hialeah, Fla., Resolution 87-90 (Aug. 11, 1987). The third resolution set

forth the criteria for approval of animal protection associations seeking to

register with the City in order “to participate in the investigation and assist

in the prosecution of violations of the animal cruelty ordinances.” Hialeah.

Fla., Resolution 87-109 (Sept. 22, 1987).

(The foregoing was taken from Comment, 45 U. of Miami L. Rev. 1061.

1090 0.239 (1991).)

6

B. SMITH IS DISTINGUISHABLE ON ITS FACTS AND

ON THE BASIS OF THIS COURT’S PRECEDENT.

The City of Hialeah places considerable reliance on

Employment Division v. Smith and its application of a rational-

basis standard of review where the legislation under examina-

tion is generally applicable, and facially religion-neutral. The

City cites the teachings of Smith as if its rule of decision arose

ex nihilo. Like any complex area of constitutional law, a single

case cannot be torn from its larger context.

It is a mistake to believe that Smith controls this case. In

Smith, Justice Scalia traced, inter alia, the “generally applicable,

facially religion-neutra!” standard for assessing a statute under

the Free Exercise Clause, to Chief Justice Burger’s plurality

opinion in Bowen v. Rey, 476 U.S. 693, 701-12 (1986)(“Part III"

of the opinion, joined by Powell and Rehnquist, JJ.). In turn,

the issue that divided the Court in Roy, most evident in the

exchange between the Chief Justice and Justice O’Connor, 476

U.S. at 724-33 (concurring in part and dissenting in part, joined

by Brennan and Marshall, JJ.), is a direct descendent of a dispute

between Justice Frankfurter and Justice Brennan that surfaced

back in the early 1960’s in the case of Braunfeld v. Brown, 366

U.S. 599 (1961) (plurality opinion). Although dissenting in

Braunfeld, two years later Justice Brennan eventually prevailed

over Frankfurter when Brennen wrote the majority opinion in

Sherbert v. Verner, 374 U.S. 398 (1963).

Until recently the conventional wisdom had it that Sherbert

was the foundational case that gave rise to modern doctrinal

® Indeed, the dispute has an even more ancient origin in Minersville

School District v. Gobitis, 310 U.S. 586 (1940). Writing for the majority in

Gobitis, Frankfurter held that children of Jehovah's Witnesses could be

expelled from public school for refusal to salute the U.S. flag. Gobitis was

expressly overruled in West Virginia State Board of Education v. Barnette.

319 U.S. 624, 642 (1943). Justice Frankfurter dissented in Barnette, id. at

653-655, arguing that a generally applicable, facially religion-neutral regula-

tion was constitutional.

7

analysis under the Free Exercise Clause. Although Smith chan-

ges the Sherbert-approach, it most certainly does not supplant

the compelling interest test altogether. A brief overview of the

evolution of Free Exercise Clause doctrine will provide a helpful

perspective.

1. The Evolution of Modern Free Exercise Clause

Doctrine.

In Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), the

Supreme Court first acknowledged that the liberty protected by

the Free Exercise Clause of the First Amendment is a “fun-

damental” right, and thus properly binding on state and local

governments through the Due Process Clause of the Fourteenth

Amendment. Hence, religious freedom was one of the first

provisions of the Bill of Rights to be “incorporated” or “ab-

sorbed” as an essential liberty into the Due Process Clause of

the Fourteenth.

Free Exercise Clause cases in the 1940’s and 1950's wit-

nessed the continuation of a bifurcation, first made in the

nineteenth century Mormon Cases,’ between religious belief

and religious practice. Religious belief was protected absolute-

ly by the First Amendment. See West Virginia State Board of

Education v. Barnette, 319 U.S. 624 (1943)(upholding right of

Jehovah's Witness children to not salute the U.S. flag or recite

Pledge of Allegiance); United States v. Ballard, 322 U.S. 78

(1944)(trial for criminal fraud could not call into question the

falsity of religious representations; only sincerity of the accused

properly before trier of fact).® But in the nature of things, said

the Court, religious practices could not be left unchecked in the

” Davis v. Beason, 133 US. 333, 342-43 (1890); Reynolds v. United

States, 98 U.S. 145, 166-67 (1872).

* For later cases to the same effect, see Torcaso v. Watkins, 367 U.S. 488

(1961)(no religious oath could be required for holding public office): Wooley

v. Maynard, 430 U.S. 705 (1977)(upholding Jehovah's Witnesses nght to

cover up the New Hampshire state motto “Live Free or Die” on car license

plate ).

8

face of a strong interest in the protection of society. Prince v.

Massachusetts, 321 U.S. 158 (1944)(upholding criminal con-

viction of Jehovah’s Witness for violating child labor law); cf

Cantwell, 310 U.S. at 304-11 (overturning criminal conviction

of Jehovah's Witness for inciting a breach of the peace).

By the end of the 1950's, then, the Free Exercise Clause

protected religious belief absolutely. In contrast, the practice of

religion was subject to regulation, but only upon a showing that

something akin to the “evils most appropriate for such action

[as] the crippling effects of child employment” was involved,

Prince, 321 U.S. at 168, or a “clear and present danger of riot,

disorder, interference with traffic upon the public streets, or

other immediate threat to public safety, peace, or order,”

Cantwell, 310 U.S. at 308.

in 1961 the Supreme Court heard consolidated cases rais-

ing several claims concerning the constitutionality of Sunday-

closing legislation. Braunfeld v. Brown, supra, 366 U.S. 599,9

presented the issue of whether a Pennsylvania Sunday-closing

law interfered with the Free Exercise Clause right of a practicing

member of the Orthodox Jewish faith. As a Sabbatarian whose

religion prevented the operation of his retail business from

sundown Friday until sundown Saturday, Mr. Braunfeld desired

to be open for business on Sunday. This option the law denied,

to the claimant’s substantial economic loss and to the incidental

benefit of his non-Sabbatarian competitors.

By a 5 to 4 split, the Supreme Court upheld the state law.

In the plurality opinion by Chief Justice Warren, and in the

concurring opinion of Justice Frankfurter, joined by Justice

Harlan, it was said that the Free Exercise Clause gave no relief

because the religious burden was “indirect” or “incidental.” /d.

* Decided along with Braunfeld was McGowan v. Maryland, 366 U.S.

420(1961): Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 US.

582 (1961); and Gallagher v. Crown Kosher Super Market, Inc., 366 U.S.

617 (1961).

9

at 606 (Warren, C.J.); id. at 459, 521-22 (separate opinion by

Frankfurter, J.). By “indirect,” the Justices did not mean that

the burden was insubstantial. Indeed, it was stipulated that if

Mr. Braunfeld remained closed on Saturday and was prevented

from opening on Sunday, then he would be “unable to continue

in his business, thereby losing his capital investment.” /d. at

521, 601. Rather, by an “indirect” burden the Justices meant

that Mr. Braunfeld did not face an unavoidable choice between

following the dictates of his faith, thereby breaking the law, or

obeying the state law, thereby transgressing against God’s com-

mandment. Because Mr. Braunfeld could obey both the com-

mands of law and faith by being closed the entire weekend, albeit

with the financial loss of going out of business, he faced no

“direct” religious burden.!° Absent an unavoidable choice be-

tween the command of the law and the command of faith, the

Court held that Mr. Braunfeld did not state a prima facie case

under the Free Exercise Clause.

The Court hastened to say that there was no allegation in

the case that Pennsylvania had enacted the Sunday-closing law

with the discriminatory intent of harming Sabbatarians in

general, or observant Jews in particular. /d. at 607.!! If Jews

had been targeted for disapproval it would have been a different

case. See Point I. A. supra.

The rule of Braunfeld, then, was that when the statute in

question is generally applicable and facially religion-neutral, the

10 Put very simply, a “direct” burden is government action that forbids

or compels certain behavior. An “indirect” burden merely makes noncom-

pliance with the law more difficult or expensive.

'' (T]o hold unassailable all legislation regulating conduct which

imposes solely an indirect burden on the observance of religion

would be a gross oversimplification. If the purpose or effect of

a law is to impede the observance of one or all religions or is to

discriminate invidiously between religions, that law is constitu-

tionally invalid even though the burden may be . . . only indirect.

Braunfeld, 366 U.S. at 507.

10

Free Exercise Clause is not violated — BUT ONLY so long as

the religious burden is “indirect” (i.¢., there is a path whereby

the dictates of both law and faith can be obeyed) and there is no

evidence of discriminatory animus. Although perhaps getting

ahead of ourselves, in the present case the burden is “direct”

because a Santeria’s choice is unavoidable between obeying the

City’s ordinances or proceeding with the ritual of animal

sacrifice.

In Braunfeld, Justice Brennan dissented on the Free Exer-

cise Clause issue. /d. at 610. Two years later, in Sherbert v.

Verner, 374 U.S. 398 (1963), the rationale of that dissent became

the majority rule. In Sherbert, a Seventh-day Adventist was

discharged by her employer because she would not work on

Saturday, a practice proscribed by the tenets of her church.

When she applied for unemployment compensation pursuant to

the South Carolina Unemployment Compensation Act, benefits

were denied. The state Employment Security Commission

found that the claimant's refusal to work on Saturday brought

her within the statutory provision disqualifying workers who

fail, without good cause, to accept “suitable work when offered

... by the employment office or the employer.” /d. at 401.

Writing for the Court, Justice Brennan reversed the

decision below and held that under the Free Exercise Clause

unemployment compensation could not be denied. In so hold-

ing, Sherbert gave rise to two key principles. First, that “in-

direct” as well as “direct” burdens on religious practices were

actionable under the Free Exercise Clause. Accordingly, al-

though Ms. Sherbert did not face an unavoidable choice because

it was possible for her to keep Saturday as her day of rest and

still not violate any law — albeit, she would lose her unemploy-

ment benefits — even this “cruel choice” violated free exercise.

Second, after Sherbert it did not matter that the nature of the

“indirect” burden is loss of a welfare entitlement payment, as

contrasted with a prohibitive law such as “do not open your retail

store on Sunday upon pain of a civil fine.”!2

Justice Harlan, who had joined Justice Frankfurter’s

opinion in Braunfeld, dissented in Sherbert pointing out the

inconsistency in the two cases. /d. at 421.

Although resistance to these two significant developments

in Sherbert surfaced in dissenting opinions of the Supreme Court

throughout the 1970’s and 1980's, the Sherbert-approach con-

tinued to command a majority. Moreover, Sherbert was widely

supported by legal commentators. With that in mind. as we

entered the 1990's Sherbert was regarded as the fountainhead

for the modern, three-step Free Exercise Clause test:

1. The claimant must show that he or she is SIN-

CERE in wanting to conform to the religious practice

in question.

2. The claimant must show that the government's

law poses a “cruel choice,” i.¢., it places more than a

de minimus BURDEN, direct or indirect, on the

religious practice in question.

3. If points | and 2 are satisfied, the claimant has

established a prima facie case and will prevail, unless

= As to this second development, moreover, the Supreme Court in

Sherbert had to turn back the inevitable argument that requiring payment of

an enudement benefit to a religious dissenter under circumstances where

non-Sabbatatians would be denied the welfare benefit, has the effect of

establishing a religion. It is one thing to lift a legal prohibition from the

religious dissenter, but quite another, argued South Carolina, to require

payment of a monetary benefit not available to non-Sabbatatians who are

otherwise similarly situated. /d at 409-10. Although dissenung on the Free

Exercise Clause issue, Justice Harlan agreed with the majority in Sherber

that there would be no Establishment Clause violation if a state chose to

Statutorily exempt Sabbatarians. /d at 422. It is now Clear that legislative

exemptions designed to allow freer religious exercise do not violate the

Establishment Clause. Corp of Presiding Bishop v. Amos, 483 U.S. 327

(1987); Smith, 494 U.S. at 890.

12

the government can meet its burden of producing

evidence that: (a) the societal interest in applying the

law to the claimant is COMPELLING; and, (b) the

government cannot achieve the same societal interest

by means LESS RESTRICTIVE to the claimant's

religious practice.

Concerning any doubt as to the rigor of the burden of

production that must be satisfied by the state once the claimant

has made out a prima facie case, the Court in Wisconsin v. Yoder,

406 U.S. 205 (1972), quoting from Sherbert, held that the state

interests found sufficient to override religious exercise “have

invariably posed some substantial threat to public safety, peace

or order.” /d. at 230. “{O}nly those interests of the highest order

- and those not otherwise served can overbalance legitimate

claims to the free exercise of religion.” /d. at 215.

Throughout the 1980’s, the compelling interest test was

“Black Letter Law.” In Thomas v. Review Board, 450 U.S. 707

(1981); Hobbie v. Unemployment Appeals Comm’ n of Florida,

480 U.S. 136 (1987); and Frazee v. illinois Dept. of Employment

Security, 489 U.S. 829 (1989), the state could not satisfy the

compelling interest test. In United States v. Lee, 455 U.S. 252

(1982), the Court found a compelling interest. In Roy, 476 U.S.

at 699-701, and Jimmy Swaggart Ministries v. Bd. of Equaliza-

tion, 493 U.S. 378 (1990), it was not necessary to find a

compelling interest because the claimant failed initially to show

religious burden. Indeed, until Smith, in only three modem

cases has the Supreme Court not applied the compelling interest

standard. Two of these cases involved special environments,

O'Lone v. Shabazz, 482 U.S. 342 (1987) (penitentiary);

Goldman v. Weinberger, 475 U.S. 503 (1986) (armed forces):

and in Lyng v. Northwest Indian Cemetery Protective Assoc.,

485 U.S. 439 (1988), the claim turned on the government's right

to manage its own land.

13

As stated above, the Sherbert-approach was questioned by

three Justices in Roy, 476 U.S. at 701-12 (plurality opinion of

Burger, C.J.), compare id. at 724-33 (O’Connor, J., concurring

in part and dissenting in part), reaffirmed by a six-judge majority

in Hobbie, 480 U.S. 136, 141-43 (1987), compare id. at 147

(concurring opinion by Powell, J.), reaffirmed in Frazee, 489

U.S. 829 (1989), and reaffirmed again in Swaggart Ministries,

493 U.S. 378 (1990).

The City of Hialeah is right to identify Smith as a significant

case that must be taken into account. But the City is WRONG

concerning what Smith does to modify the doctrinal approach

under the Free Exercise Clause. In Smith, for the first time, a

majority of five justices held that statutory entitlement benefits

may be denied if the legislation in question is generally ap-

plicable and facially neutral as to religion.'? Smith was an

unemployment compensation benefit case, and thus it must be

conceded that it reverses the second key principle of Sherbert

in this regard.'* Smith also changes the first key principle

established in Sherbert, namely that the religious burden may

be “indirect.” Accordingly, the Court in Smith has reverted to

'* The principled difference between denying a statutory benefit and

lifting the burden of a prohibitive law was stated in the separate opinion of

Jusuce Douglas in Sherberr.

The fact that government cannot exact from me a surrender of

one rota of my religious scruples does not, of course, mean thai

| cam demand of government a sum of money, the better to

exercise them. For the Free Exercise Clause is written in terms

of what the government cannot do to the individual, not in terms

of what the individual cam exact from the government.

374 U.S. at 412.

'* Smith's denial of Pree Bxercise Clause protection for entitlement

henefits can also be justified on the basis that the inyury to the claimant is

“economic” as opposed to “spuitual.” Although the Establishment Clause

Protects against economic and polucal harms. it has long been thought thai

the Feee Exercise Clause only proiiects against injury to religious-hased

comsmrence. McGowan v Marviland, ¥%6 US. 420, 429-3 (1961).

14

Braunfeld for its Free Exercise Clause approach. BUT even

Braunfeld (Warren, C.J.; Black, Clark, Whittaker, Frankfurter

& Harlan, J.J.) finds the Free Exercise Clause violated when the

religious burden is “direct.”

The City of Hialeah argues for a reading of Smith that

-would require of government only that its legislation be

“religion blind.” Even Justice Harlan, who sided with Warren

and Frankfurter in Braunfeld, and dissented in Sherbert, rejected

that contention. Sherbert, 374 U.S. at 422 (Harlan, J., dissent-

ing) (reyecting such a thesis im a publication by Professor Kur-

land). See L. Pfeiffer, Religion-Blind Government, 15 Stan. L.

Rev. 389 (1963) (showing the unworkability of a religion-blind

thesis and its wholesale overruling of settled law, both state and

federal).

Turning to the issues presently before this Court, the

Santerias are faced with: (1) a “direct” burden, one from which

there is no path of avoidance; and, (2) incurring the penalty of

a prohibitive law, not mere cutoff of social welfare entitlement

payments. In Smith, compliance was possible because the

religious claimants faced only a “cruel choice,” (give up their

unemployment benefits or give up peyote) not an unavoidable

choice between obeying Caesar or God.

In instances where the choice is unavoidable, such as this

case, the “direct” burden on religious practice will confront a

claimant with a situation calling for an act of civil disobedience.

Disobedience for the sake of conscience, in turn, leads to in-

famous trials that pit the Sovereign in a clash with religious

obedience to a believed Higher Power — engendering social

division of a far graver kind. Such head-on clashes of the Sacred

with the Sovereign are worth the price only when societal

interests of the highest order are clearly at risk: for instance,

saving the life of a criticaliy injured child by administering a

blood transfusion, even when the parents for reasons of faith will

1S

only minister prayer. This Court does not, in the case sub judice,

have at risk societal interests of that high order.

2. The City’s Reading of Smith is Contrary to Both

Text and History.

The very text of the First Amendment is not facially neutral

as to religion. '* Rather, the text places special value on religion,

just as it values free speech and free press.

Exhaustive scholarship into the original meaning of the

Free Exercise Clause was released soon after the decision in

Smith. See M. McConnell, The Origins and Historical Under-

standing of Free Exercise of Religion, 103 Harv. L. Rev. 1409

(1990). Professor McConnell demonstrates that statesmen in

the founding generation considered exemptions from facially

neutral legislation to be free exercise of religion, and they

expected this right to be enforced by the courts. At least where

the burden is “direct,” as it is on the Santerias, history tells us

that the Free Exercise Clause is violated.

To read the Smith case as permitting generally applicable,

facially religion-neutral legislation to apply to “direct” burdens

on religious practice, is to attribute to this Court a wholesale

overruling of its own precedent. For example, the City’s reading

of Smith would sub silentio overrule the following: Yoder, 406

U.S. 205 (1972) (state compulsory school-attendance law vio-

(statutory and common law offenses of inciting breach of the

peace and barring charitable solicitation without permit violates

free exercise and free speech of Jehovah's Witness): and Pierce

v. Society of Sisters, 268 U.S. 510 (1925) (state statute requiring

1S

See Welsh v. United States, 398 US. 333, 372 (1970) (White. J.

dissenting) (“It cannot be ignored that the First Amendment itself contains a

religious Classification ”).

16

attendance at public school, thereby effectively closing

parochial schools, violative of substantive due process rights of

parents to direct the upbringing of their children, including

choice of religious-based primary and secondary education).

On the other hand, should the City argue that Smith does

not overrule the above-list of established precedent, but simply

marginalizes them as “hybrid” cases, then Amicus submits that

this case is such a “hybrid” situation. Smith, 494 U.S. at 882.

Point Ill which follows, argues that the application of the

ordinance violates the Church's First Amendment rights under

the Establishment Clause.

Of course, there i% @ serous problem with trying to explain

away every relevant prewedemasu “hybrid” case. To read Smith

as merely affording redundant protection to religious speech,

religious asswceation, the -establishment provision, or paren-

tal nights, would strip the Free Exercise Clause of any inde-

pendent force. Such a consequence has a serious textual flaw,

for it would leave a major clause im the Bill of Rights without

meaning apart from other clauses. Surely this is a clear signal

that the City is advancing a mistakes reading as to the scope of

the Smith case.

THE COMPELLING INTEREST TEST DOES NOT

CAUSE A CIVIL MAGISTRATE TO BECOME IN.

VOLVED IN ASSESSING THE “CENTRALITY” OF A

RELIGIOUS PRACTICE.

In Employment Division v. Smith, 494 U.S. at 886-887...

this Court correctly reaffirmed that the First Amendment

prohibits a civil magistrate from engaging in a “centrality”

test.'° Performing a “centrality” test requires an assessment of

” Lifting language out of Wisconsin v Yoder, the government in United

States v Lee. 455 US. at 257. argued that a free exercise claimant had to show

that the belief giving rise to the desired religious pracuce was essential to, or

17

the importance of a given doctrine to the religion in question, or

assessing the harm that would befall a religious claimant if he

or she had to comply with the legislation in question. Accord

494 U.S. at 906-907 (O'Connor, J., concurring) (“our deter-

mination of the constitutionality of Oregon's general criminal

prohibition cannot, and should not, turn on the centrality of the

particular religious practice at issue’’).

Amicus is in complete agreement that the First Amendment

prohibits a “centrality” test. However, the proper administration

of ihe compelling interest standard of review does not entail a

civil court's engagement in the prohibited “centrality” test.

In order to establish a prima facie case, two things must be

shown: (1) that the claimant is sincere in wanting to conform

to the religious practice in question; and, (2) the government s

legislation places a “direct” burden on the religious practice. If

points (1) and (2) are satisfied, then the claimant will prevail

unless the government can meet its burden of producing

evidence that: (a) the societal interest in applying the legislation

to the claimant is compelling; and, (b) the government cannot

achieve the same societal interest by means less restrictive to the

claimant's religious practice. :

In marshalling the evidence to meet this burden, the

government is to offer facts and argument which tend to prove

that important objectives (e.g. public health and safety; preven-

tion of fraud) cannot be achieved if case-by-case exemptions are

to be granted to religious claimants such as the one before the

“threaten the integrity of.” the claimant's church doctrine or behef-systerm

This “centrality” argument the Lee Court rebuffed with this rauonale:

It is not within “the judicial function and judicial competence.”

however, to determine whether appellee or the Government has

the proper interpretauon of the Amish faith: “[cjourts are not

arbiters of scriptural interpretation.”

Id. (quoting Thomas).

18

court. This is indeed a difficult burden, as rightly befits a liberty

engraved in the text of the First Amendment.

This evidence and argument does NOT weigh the impor-

tance of the particular religious practice in question to a church's

overall doctrine, nor does it assess the “spiritual harm” to a

claimant should he or she have to obey the law rather than the

commands of faith. Accordingly, this is NOT a “balancing” test

weighing the interests of the claimant against those of the

government, and it is a misnomer to call it such. The only

assessment by a civil magistrate is the importance of the law’s

administration without any exception for the claimant.

Accordingly, in the case at bar the evidence and argument

by the City of Hialeah should address, for example, the impor-

tance of its ordinances to preventing the spread of disease and/or

the desirability of preventing cruelty toward domestic animals.

In applying the compelling interest test, there is no need for an

examination by a civil magistrate into the importance of ritual

sacrifice to the Church of the Lukumi Babalu Aye, Inc., or its

followers.

Il.

THE CITY’S ORDINANCES HAVE AN INVIDIOUS

RELIGIOUS PURPOSE VIOLATIVE OF THE ESTAB-

LISHMENT CLAUSE.

Two of the City’s ordinances expressly single-out a

religious practice for unfavorable treatment, a third is dis-

criminatory as construed by the state attorney general, and all

four ordinances were adopted in an environment openly hostile

to Petitioners. See footnote 5 supra and accompanying text. As

interpreted by this Court, the Establishment Clause prohibits a

legislative purpose!’ that has as its object invidious discrimina-

7 A “purpose” inquiry is the first prong of the three-part test of Lemon

v. Kurtzman, 403 U.S. 602, 612-613 (1971).

19

tion against a religious denomination or a particular religious

practice, !8

The matter of religion is twice addressed in the First

Amendment, initially in the Establishment Clause and then in

the Free Exercise Clause. Cardinal rules of construction, as well

as Common sense, dictate that the text of the two clauses be

construed and applied so as not to contradict one another.

Indeed, the two provisions are often mutually reinforcing, each

Religion Clause pointing in its own way toward the ultimate goal

of religious liberty.

Should a government enact a law compelling all citizens

(upon pain of misdemeanor for noncompliance) to attend week-

ly a Roman Catholic Mass, the law would be violative of both

Religion Clauses: the Establishme: Clause because the legis-

lation tends to “establish” the Roman Church, and the Free

Exercise Clause because coerced attendance would violate the

conscience of many.

As a second illustration—one closer to this case—consider

a law whereby persons holding membership in the Episcopalian

Church are required to pay an additional tax of $1000 per

dependent when filing their annual income tax return. The law

is coercive as to the religious practice of church affiliation, thus

contrary to the Free Exercise Clause. The tax also violates the

Establishment Clause because it has the purpose of discriminat-

ing against a particular denomination.

This “overlap” in the prohibitions of the Establishment and

Free Exercise Clauses is not indicative of “confusion” or “con-

flict” or “tension” between the Religion Clauses, but is a proper

7 Sn M. McConnell, Religious Freedom at a Crossroads, 59 U. Chi.

L. Rev. 115, 144 (1992) ("[A]bandoning the purpose prong would be an

overreaction. . . . Purpose is a necessary backstop to facial neutrality. Facially

neutral categories drawn by a law may be pretextual... .")

20

recognition that in certain instances BOTH provisions are vio-

lated.!9

The “overlap” has been noted in this Court quite often,

implicitly as well as explicitly. For example, several of this

Court’s cases state that legislation which intentionally targets a

religious practice or a religious denomination is unconstitution-

al. In Employment Division v. Smith, 494 U.S. at 877, the Court

said: “The government may not compel affirmation of religious

belief... punish the expression of religious doctrines it believes

to be false . . . impose special disabilities on the basis of religious

views or religious status . . . or lend its power to one or the other

side in controversies over religious authority or dogma... .”” In

support of this statement the Court cited cases that relied in

whole or in part on the Establishment Clause. Torcaso v.

Watkins, 367 U.S. 488 (1961) (religious oath for assuming

public office), relied upon discussions of church-state separation

and Establishment Clause cases, as well as individual free

exercise. In McDaniel v. Paty, 435 U.S. 618 (1978) (plurality

opinion) (law preventing “ministers” frorn holding public of-

fice), the Tennessee law was said to be violative of both Religion

Clauses. /d. at 636-642 (Brennan, J., concurring). Larson v.

Valente, 456 U.S. 228 (1982) (charitable solicitation regula-

tion), held that discrimination among religions or denomina-

tions violates the Establishment Clause.?° As to the string of

19 This is not unlike the situation in Widmar v. Vincent, 454 U.S. 263

(1981), where this Court suggested that a state university regulation violated

both the Free Speech and Free Exercise Clauses. “[T}he state interest here .

. . is limited by the Free Exercise Clause and in this case by the Free Speech

Clause as well.” /d. at 276.

20 See also Fowler v. Rhode Island, 345 U.S. 67, 69-70 (1953) (dis-

criminatory denial of permit to Jehovah's Witnesses to hold services in public

park is preferring some religious groups over others); Niemotko v. Maryland,

340 U.S. 268, 272 (1951) (discriminatory denial of permit to Jehovah's

Witness to use city park for public gathering denied “equal protection of the

laws, in the exercise of those freedoms of speech and religion”): cf. Jimmy

21

citations in Smith to intrachurch dispute cases, an examination

of that line of authority reveals that the Court is careful to ground

those holdings in both Religion Clauses, i.e., a generalized

notion of “First Amendment religious liberty.”

The Court in Smith, 494 U.S. at 878, went on to poise a tax

hypothetical similar to the example above of the $1000 church

membership tax. Smith said that if “the obiect of the tax” was

“prohibiting the exercise of religion,” then the “First Amend-

ment [has] been offended.”?! By the word “object” presumably

the Court meant the objective purpose of the lawmaker.22

Because of the difficulty in determining the true motives

of a group of lawmakers - as distinguished from their objective

purpose - for enacting a statute or promulgating a particular

policy, the Court has avoided making motive-analysis part of

§ waggart Ministries v. Board of Equalization, 493 U.S. 378, 385-392 (1990)

(explaining prior Cases as requiring that no flat license tax may operate as a

prior restraint on religion, nor may religious activity be singled out for

burdensome tax treatment).

2) : . .

This Court's entire passage reads as follows:

It is nO more necessary to regard the collection of a general tax,

for example, as “prohibiting the free exercise [of religion)” by

those citizens who believe support of organized government to

be sinful, than it is to regard the same tax as “abridging the

freedom . . . of the press” of those publishing companies that must

pay the tax as a condition of staying in business. It is a permis-

sible reading of the text, in the one case as in the other, to say

that if prohibiting the exercise of religion (or burdening the

activity of printing) is not the object of the tax but merely the

incidental effect of a generally applicable and otherwise valid

provision, the First Amendment has not been offended.

Smith, 494 U.S. at 878.

22 , , — ,

Justice Scalia usefully distinguished “objective purpose” from “mo-

tive” in Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia. J.. dissent-

ing).

22

the legal doctrine in most areas of constitutional law.23 With the

Establishment Clause, while not abandoning motive-analysis

altogether, the Court has adopted a deferential inquiry into

whether the “purpose” was secular or religious. When no

unconstitutional purpose appears either on the face of the chal-

lenged statute, or in its official legislative history, this Court has

been inclined to announce the first element of the Lemon test

satisfied and move quickly on to the “effect” and “entangle-

ment” prongs.?4 This Court has, in most cases, found a permis-

sible or impermissible purpose in a statute's language simply by

exercising common sense.?5

Justice O’Connor’s discussion in Wallace v. Jaffree, 472

U.S. 38, 75 (1985), explains the methodology for courts to

follow in deferring to a legislative act that is arguably uncon-

stitutional in purpose. Justice O’Connor stated:

Since there is arguably a secular pedagogical value to

a moment of silence in public schools, courts should

find an improper purpose behind such a statute only

if the statute on its face, in its official legislative

history, or in its interpretation by a responsible ad-

3 See, e.g., Palmer v. Thompson, 403 U.S. 217, 224 (1971) ("[I]t is

extremely difficult for a court to ascertain the motivation, or collection of

different motivations, that lie behind a legislative enacument."); United States

v. O'Brien, 391 U.S. 367, 383 (1968) ("Inquiries into congressional motives

or purpose are a hazardous matter."); cf. Rogers v. Lodge, 458 U.S.613 (1982)

(at-large voting system maintained for racially discriminatory purpose).

24 See Mueller v. Allen, 463 U.S. 388, 394-95 (1983), where, concerning

the deferential application of the “purpose” prong in Lemon, the Court said:

“This reflects, at least in part, our reluctance to attribute unconstitutional

motives to the States, particularly when a plausible secular purpose for the

State's program may be discerned from the face of the statute.”

25 See, e.g., Wallace v. Jaffree,472 U.S. 38, 58 (1985); Stone v. Graham,

449 U.S. 39,41 (1980) (per curiam); Epperson v. Arkansas, 393 U.S. 97, 108

(1968); Abington School District v. Schempp, 374 U.S. 203, 224 (1963);

Engel v. Vitale, 370 U.S. 421, 424-25 (1962).

23

ministrative agency suggests it has the primary pur-

pose of endorsing prayer.

Two of the ordinances expressly target a religious practice,

a third ordinance as interpreted by the Attorney General is

discriminatory as well, and all four ordinances were passed in a

religiously hostile environment. See footnote 5 supra and ac-

companying text.

Using the three criteria suggested from Wallace vy. Jaffree

for ascertaining the lawmaker’s purpose: the text of the ordinan-

ces, the definitive interpretation by the Attorney General

opinion, and the religiously hostile environment, unmistakably

point to a purpose which was invidious or discriminatory toward

the Church of the Lukumi Babalu Aye, Inc., and its religious

practice of animal sacrifice.26

| It cannot be gainsaid that the Petitioners’ religious liberty

is protected by more than the Free Exercise Clause. The Estab-

lishment Clause also prohibits the City of Hialeah from enforc-

ing these ordinances which have as their object inhibiting the

practice of animal sacrifice as conducted by the Church of the

Lukumi Babalu Aye, Inc.

CONCLUSION

Amicus requests that this Court reverse the judgment below

on the basis that the ordinances had an invidious discriminatory

purpose violative of both the Free Exercise and Establishment

Clauses.

26

The second and third prongs of the Supreme Court's three-part test in

Lemon v. Kurtzman, 403 U.S. 602 (1971), acknowledges that the Estab-

lishment Clause may play a role in preventing government from harming a

religious group. “[A) statute's principle or primary effect must be one that

neither advances nor inhibits religion” and “must not foster ‘an excessive

government entanglement with religion.” /d. at 612-613. Likewise. the

alternative “endorsement test” when first suggested by Justice O'Connor in

Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J.. concurring),

prohibited not only government “endorsement” but also official “disap-

proval” of religious practices or groups.

24

In the alternative, Amicus requests that this Court specifi-

cally set aside the conclusion of law that the City had compelling

reasons for its ordinances. Then the case should be remanded

with directions to hold a new trial (or reopen the judgment and

receive further evidence). At the new trial, the District Court

should be directed to: (a) properly apply the “compelling inter-

est, least restrictive means” standard, thereby (b) placing the

burden of producing evidence on the City for showing that actual

harm has occurred or will occur to society should its ordinances

be unenforceable against Petitioners.

Respectfully submitted,

Carl Howard Esbeck John W. Whitehead

School of Law, Rm. 213 The Rutherford Institute

John K. Hulston Hall 1445 East Rio Road

Columbia, MO 65211 Post Office Box 7482

(314) 882-3035 Charlottesville, VA 22906

(814) 978-3888

Counsel of Record

May 22, 1992