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

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{ \@) FILED

No. 91-948

tr:

IN THE

Supreme Court of the United Sintrs— = |

October Term, 1992

CHURCH OF THE LUKUMI BABALU AYE, INC.,

—and—

ERNESTO PICHARDO,

Petitioners,

—against—

CITY OF HIALEAH, FLORIDA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF INSTITUTE FOR ANIMAL RIGHTS

LAW, AMERICAN FUND FOR ALTERNATIVES TO ANIMAL

RESEARCH, FARM SANCTUARY, JEWS FOR ANIMAL RIGHTS,

UNITED ANIMAL NATIONS, and UNITED POULTRY

CONCERNS, IN SUPPORT OF RESPONDENT

CITY OF HIALEAH, FLORIDA

HENRY MARK HOLZER

Old Wagon Road

Mount Kisco, New York 10549

(914) 666-3799

Counsel of Record for Amici Curiae

LANCE J. GOTKO

125 Broad Street

New York, New York 10004

(212) 558-3164

Counsel for Amici Curiae

July 31, 1992

Sassi

TABLE OF CONTENTS

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

INTERESTS OF AMICI] CURIAE .......

SUMMARY OF ARGUMENT ........

EE te Ghee a keener eaten

I. STATUTORY/PROCEDURAL ANALYSIS

Ul. MONJUSTICAABILATY 0 ww cee

i hh inh he 6 a 6b 8 8 608 8

. Standing ..

D. Abstention .

C. Mootness. .

. The Factual Finding

CONCLUSION

, +.

; see

il il

Table of Authorities

h Cases Page(s)

| Cases Page(s) Communist Party of United States v. Subversive

Activities Control Board,

. Allen v. Wright, Ee ee )

a Re) 13

q Davis v. Beason,

Bellotti v. Baird, BID gs cc ccccesccccess 10

f 435 U.S. 156 CIPD onc csccstuceeenn 19

: Deakins v. Monaghan,

Bob Jones University v. United States, CMEC ccccececcecccsccess 15

461 U.S. SVS (GED oc cc teases 11

Doe v. Sullivan,

Bowen v. Roy, 938 F.2d 1370 (D.C. Cir. 1991) .......... 15

47 U.S. GB (IUGR wc outs eeee ll, 12, 16

Duke Power Co. v. Carolina

Braunfeld v. Brown, Environmental Study Group,

366 U.S. SUD CIDE)... cn cscnsneeee 10 438 U.S. 59 (1978)... 6... eee eee eee 13

Brockett v. Spokane Arcades, Inc., Elkins v. Moreno,

473 U.S. A CUED) i. vce use eee 18, 19, 435 U.S. 647 (1978) 2... eee 23

20, 24

Employment Division, Department of

Burke v. Barnes, Human Resources v. Smith,

te en ee 15 485 U.S. 660 (1988) ©... 2.6 ee eee 24

Cantwell v. Connecticut, Follett v. Town of McCormick,

URS T eee 10 Pe 10

Church of the Lukumi Babalu Aye, Inc. v. Fowler v. Rhode Island,

City of Hialeah, TE . . powecccscccecess 10

723 F. Supp. 1467 (S.D. Fla. 1989) ........ 23

Gillette v. United States,

City of Houston v. Hill, ED «<< ccceseccncceces 11

eS OO | ee 19, 20, 24

Goldman v. Weinberger,

DT, cocccccececcocecs 11

iV Vv

Cases Page(s) Cases Page(s)

Hamilton v. Regents, Lewis v. Continental Bank Corp.,

See es PD no cccé es becbecees 10 OL eee a ee 12, 17

Harman v. Forssenius, Lujan v. Defenders of Wildlife,

SED “a ins oe als a dee cena a 25 B12 S. Ce. ZISD (IGS) 0. ww cece ccccees 12, 13

Harris County Commissioners Court v. Moore, Lyng v. Northwest Indian Cemetery

Ps Pe biced noe eubaeweeee 19, 20, Protective Association,

2, 23, 24 GBB US. GID CITT oc ccc ccc ccccsces ll, 12, 15

Hawaii Housing Authority v. Midkiff, Marsh v. Alabama,

Gy Gua SPD cc ccericioesceces 19 . | ee 06ers 10

Hernandez v. Commissioner, Martin v. City of Struthers,

GPa POD nc cdédveccbececess 11 DURE, DODGED cecéscccoecees dur 10

Hobbie v. Unemployment Appeals McDaniel v. Paty,

Commission of Florida, SE ... 5 n asaeet eeusede 11

CT nus cacsssbecveées 10

Metropolitan Washington Airports Authority v.

Jehovah's Witnesses v. King County Hospital, Citizens for Abatement of Aircraft Noise, Inc.,

598 U.S. 390 (1968), aff’g, 278 F. Supp. iiR &:-% — |. __. | Se 9

GP ME, 6 bo ccaeceeevuececs 10

Moore v. Sims,

Johnson v. Robison, eT Rarer rc rrr 23

SP 66% cee ee eee 11

. Mormon Church v. United States,

Jones v. Opelika, — 2 “eee oe 10

PE re get ds ee 10

Murdock v. Pennsylvania,

Laird v. Tatum, eS rr ee 10

ee are 9

National Student Association v. Hershey,

Larson v. Valente, 412 F.2d 1103 (D.C. Cir. 1969) .......... 9

Pan sc ekecesuwsebudene 13, 14

vi vii

Cases Page(s) Cases Page(s)

New York State Club Association v. Smith v. Employment Division,

City of New York, Department of Human Resources,

ge a ae ee ee 20 SP GD ct cccccecccececns 12

Ohio Bureau of Employment Services v. Hodory, State v. Office of Comptroller,

ee ae 18 416 So. 2d 820 (Fla. Dist. Ct. App. 1982) .... 21

O'Lone v. Estate of Shabazz, Thomas v. Review Board of Indiana

CI NN a 11 Employment Security Division,

Ses TE ED cc eee ee receneess 10

Pierce v. Society of Sisters,

ee Pr saat 10 Thomas v. Union Carbide Agricultural

Products Co.,

Poe v. Ullman, OR Pree r rrr rrr re 12

REE a SDS Pons i)

Tony & Susan Alamo Foundation v.

Prince v. Massachusetts, Secretary of Labor,

ES ERT nS ees ee er) 10 |. ee | ares ee 11

Railroad Commission of Texas v. Pullman Co., Torcaso v. Watkins,

DEE bo 6 o bb bo bee we ee kes 18 19, 23 .e 7 | | errr rrr rere 10

Reynolds v. United States, United States Parole Commission v. Geraghty,

ea ee ee ee w) 445 U.S. 388 (1980) .........5 5 eee eee 15

Schneider v. State, United States v. Ballard,

I I oa 10 . tte |) rrr rs ers so 10

Sherbert v. Verner, United States v. Ceccolini,

SE RR Ye 10 | |} | res ee ee 26

Simon v. Eastern Kentucky Welfare United States v. Lee,

Rights Organization, ' fk. 7 reer 11

I ira ae eater tag tole 13

Vili ix

Cases * Page(s) Statutes Page(s)

United States v. Salerno, City of Hialeah Ordinance No. 87-71 ace

ne cscsnekveeanees es 20 i» Pree rererreree , 7, 8,

3,2, 3

Warth v. Seldin,

Ee We GUND cb ccc cceececseces 14 City of Hialeah Ordinance No. 87-72

we errr rrr ee eee ee 5, 7, 25

Webster v. Reproductive Health Services,

, iécbweenneebees o> 15 . & 2) | errerrerrrerrr 24

Wisconsin v. Yoder, Ce Ci MO «> sccesceeeeeesevece - . My

S. a St¢heebks eve tinea a

406 U.S. 205 (1972) 11 ag

Wooley v. Maynard,

a ee 11 Fla. Stat. § 775.082 ©... 0. eee eee eee 4

, & 8) *-: eeer rr ree eee 21

Constitutional Provisions & Statutes Page(s)

. % 3) *.. Brrr rrrr ree 4, 21, 22

Fla. Const. of 1868, Dec. of Rts. §4 ........ 24

Fla. Stat. §§ 828.055-065 ...........055. 22

Fla. Const. of 1885, Dec. of Rts. §5 ........ 24

Fla. Const. art. 1, § 3 (1968 Revision)........ 23, 24 Miscellaneous Page(s)

ee a ee 6 Acts 15:29 (King James)... 1... ..-555 eee 26

City of Hialeah Ordinance No. 87-40 Atty. Gen. Op. 87-56 (July 13, 1987) ........ §, 13, 21

ee ei i ea ee a 4,7,

13, 20 Paige Elizabeth-Pruitt, A Comparative Study

of Yoruba Influence in Santeria (1988)

City of Hialeah Ordinance No. 87-52 (unpublished M.A. thesis, Florida

Dn 66a eubpbwes ere cuevewe 4, 7, 25 State University) .... 6.0.0.0 e eee eee 16

Miscellaneous

Migene Gonzalez-Wippler, Santeria: African

Magic in Latin America (6th ed. Original

Publications 1990) (1973)

Laurence H. Tribe, American Constitutional Law

(2d ed. 1988) .......

2.2.82 6,84 8 s+ 8 2 es tS 6S

13A Charles A. Wright, et al.,

Federal Practice

and Procedure: Jurisdiction 2d (1982)

, Three Santeria

Charged With Animal Cru

Worshippers

elty, UPI,

Apr. 26, 1991, available in LEXIS,

Nexis Library, UPI File

UPI, Apr. 15, 1991, avail

Nexis Library, UPI File

, Animal Sacrifice Debate Rekindled,

able in LEXIS,

Page(s)

INTERESTS OF AMICI CURIAE'

Institute for Animal Rights Law, a New York charitable trust,

was created for the purpose of advancing the rights of animals. Its

programs include an active pro bono amicus curiae effort on its

own behalf and on behalf of other animal rights and animal welfare

organizations. By addressing important legal issues affecting the

well being of animals, it is able to further its mission of seeking to

eliminate cruelty to, and other abuses of, animals.

American Fund for Alternatives to Animal Research devotes

the main focus of its energy to giving financial assistance to

scientists to develop, validate, and teach non-animal means of

research and testing. It also supports other means to reduce the

suffering of animals.

Farm Sanctuary is a national, non-profit organization

representing approximately 10,000 members throughout the United

States. The organization was formed in 1986 to address the serious

animal abuse problems associated with “food animal” production.

Among its various educative, legislative, and investigative

programs, Farm Sanctuary operates a 175-acre working farm

shelter for victims of animal agriculture.

Jews for Animal Rights, founded in 1985, seeks to raise the

consciousness of the Jewish community about animal abuse.

Judaism has a very long tradition of ethical concern for animals.

This tradition is commonly called “tsa’ar ba’alei chaim,” or

“remember the pain of living creatures.” This is the organization's

motto, and the organization's goal is to make this millennially-old

Jewish value a contemporary moral issue through promoting

vegetarianism and by seeking to influence the animal-related

decisions of Jewish organizations, rabbis, and Jewish action groups.

United Animal Nations, U.S.A. Chapter (“UAN-USA”) serves

to promote. unity within the animal protection movement; to

' Amici file this brief with permission of respondent; we understand that

the blanket consent of petitioners has been filed with the Clerk of this

Court.

coordinate, but never to compete. It convenes a General Assembly

for organizations and individuals dedicated to humane treatment for

animals; fund projects and supports local or specialized

Organizations and individuals working on behalf of animals:

participates in and orchestrates national protest events; and puts

animal exploiters “on trial” to encourage pressure against them.

UAN-USA has also created an Emergency Animal Rescue Service

to provide assistance to animals, wild or domestic, in times of great

need or disaster, whether manmade or natural. Since the creation

of UAN-USA in 1985, 41 organizations have joined it in support

of unified efforts for animals.

United Poultry Concerns is a non-profit organization which

addresses the use of domestic fowl in food production, science,

education, and entertainment. It seeks to make the public aware of

the ways domestic fowl are used in this society and elsewhere in

the world. It promotes the respectful and companionable, non-

exploitive view and treatment of these birds, holding that the

production and keeping of them for food and other utilitarian

purposes is inherently inhumane, not only because of the physical

pain and suffering involved, but because it humiliates their dignity,

encourages human smugness towards the rest of life, and sustains

a psychological atmosphere that is demeaning and deficient.

SUMMARY OF ARGUMENT

A host of justiciability problems, either singly or in

combination, plague this suit. As the ordinances challenged here

constitutionally have never been enforced, and as petitioners’

applications to sacrifice animals remain pending even today, the

case is not ripe. Moreover, other laws which petitioners have not

challenged would nevertheless prevent them from sacrificing

animals even if petitioners prevail before this Court. The ultimate

problem they face (an alleged inability to sacrifice) will not be

redressed by a favorable decision and therefore petitioners lack

Standing. In addition, as petitioners no longer wish to sacrifice

animals at the current site of the church, the case has become

moot. Because resolution of the constitutional issues depends upon

an initial construction of state law upon which the state courts have

not yet passed, the district court ought to have abstained. And

finally, because the essence of petitioners’ as-applied constitutional

challenge has always been that respondent passed the ordinances

with the express intention of chilling the free exercise of their

religion, since the district court found as a fact that respondent had

no such intent, nothing remains of the case to review but that

factual determination — which the court of appeals affirmed.

Accordingly, the Court should dismiss the writ of certiorari as

having been improvidently granted.

ARGUMENT

STATUTORY/PROCEDURAL ANALYSIS

Before this Court can properly exercise its Article III powers

of review, and because amici have noted in other of the briefs

submitted here a less-than-perfect grasp of exactly what the City of

Hialeah actually did, the Court must be presented with a clear

statement of which statutes are (and are not) involved here; what

these statutes do (and do not) provide; which statutes petitioners

actually challenged (and which they did not); and what the district

court and the court appeals decided (and what they did not).’

Beginning in June of 1987, in response to petitioners’

announcement that the Church of the Lukumi Babalu Aye, Inc., at

its first church site, intended “to function as an established Santeria

2 As the Court is acquainted with the facts from the presentations of

others, those facts are recited herein only to the extent they are necessary

to carry the argument. References to the Trial Record are denominated

“(R___)”; references to the Transcript of Oral Argument after Trial are

denominated “(T___)”; references to the Appendix to the Petition for

Certiorari are denominated “(A____)”; and references to the Joint

Appendix are denominated “(JA___)”.

church| ee 7 perform|[ing] all of the religious rituals of Santeria,

including animal sacrifice,” (A22) the Hialeah City Council passed

several ordinances (A22, A28):°

City of Hialeah Ordinance No. 87-40 (June 9, 1987), promul-

gated due to “concern over the potential for animal sacrifices being

conducted in the City of Hialeah,” incorporated by reference

Florida Statute, Chapter 828. (A52, A56) Of particular note to this

case, Fla. Stat. § 828.12(1), entitled “Cruelty to Animals” makes

it a misdemeanor to “unnecessarily . . . kill[ ] any animal... .”

(A56)* Thus, by Florida state statute and by City of Hialeah

— the “unnecessary killing of animals” was forbidden. It

still is.

City of Hialeah Ordinance No. 87-52 (Sept. 8, 1987), though

certainly not a model of clarity, recites that it was enacted because

of “concern regarding the possibility of public ritualistic animal

Sacrifices within the City of Hialeah.” (A52-53) This ordinance

established the following: i) it forbade the ownership, possession,

Slaughter, or sacrifice of animals by persons “intending to use such

animal for food purposes” and by groups or individuals that

“sacrifice[ ] animals for any type of ritual, regardless of whether

or not the flesh or blood of the animal is to be consumed” (A53);

ii) it defined “sacrifice” to mean “to unnecessarily kill, torment,

torture, or mutilate an animal in a public or private ritual or

ceremony not for the primary purpose of food consumption”

(A52); and iii) it made clear that the slaughter of animals for food

purposes by properly licensed and zoned establishments was not

prohibited. (A53)

> The City Council at that time consisted of members Cardoso,

D*Angelo, Ehevarria, J. Martinez, Mejides, and Robinson; the Mayor

was Raul L. Martinez.

* Per Fla. Stat. § 828.27(6), Hialeah did not adopt the penalty provisions

of § 828.12, but instead provided for punishment by fine not to exceed

$500 and/or a jail term of 60 days. The Florida state statute provides for

a fine of not more than $5,000 and/or a jail term of not more than one

year. See Fla. Stat. §§ 828.12(1), 775.082.

City of Hialeah Ordinance No. 87-71 (Sept. 22, 1987), which

recites that “the sacrificing of animals within the city limits is

contrary to the public health, safety, welfare and morals of the

community” (A53), adopted the same definition of “sacrifice” as

Ordinance No. 87-52 (A53), and provided that “[iJt shall be

unlawful for any person, persons, corporations or associations to

sacrifice any animal within the corporate limits of the City of

Hialeah, Florida.” (A54)

Finally, City of Hialeah Ordinance No. 87-72 (Sept. 22,

1987), which recites that “the City Council of the City of Hialeah,

Florida, has determined that the sacrificing of animals on the

premises other than those properly zoned as a slaughter house, is

contrary to the public health, safety and welfare” (A54), defined

“slaughter” as “the killing of animals for food” (A54), and

provided that only properly licensed and zoned slaughterhouses

could slaughter animals within the city limits of Hialeah. (A54)

In addition to this statutory scheme, an opinion by the

Attorney General of Florida was issued shortly after the promul-

gation of Ordinance No. 87-40. The Opinion, rendered in response

to an inquiry by the City Attorney of Hialeah, advised the City that

“the sacrificial killing of animals other than for food consumption”

came within the state statutory language proscribing the

“unnecessary killing” of an animal and was therefore “prohibited

by s. 828.12.” Atty. Gen. Op. 87-56 July 13, 1987).

In sum, as a result of the laws, ordinances, and Opinion

referred to above, in Hialeah itself and in Florida as a whole, no

one was allowed to kill an animal in a ritual or ceremony not for

the primary purpose of food consumption; and in Hialeah, only

properly licensed and zoned slaughterhouses could kill animals for

food. This case, to the extent that it is about anything at all, is

about only that.

Further facts are necessary to illuminate what is (and is not)

at issue in this case:

On August 7, 1987, Hialeah granted the Church of the

Lukumi Babalu, Inc. a certificate of occupancy to operate a church

on its premises. (A26) Two years later, on July 10, 1989 Gust prior

to the trial of this action), petitioners applied for a slaughterhouse

occupational license; petitioners also applied for zoning

authorization to operate their premises as a slaughterhouse. As

petitioners subsequently explained to the district court at trial, “we

were told by an assistant city attorney that we could do what we're

in this lawsuit about if we file the proper licensing application

which we have done.” (R87) Petitioners’ applications, however,

have been held in abeyance pending the outcome of this litigation.

(A25) Thus, at no time were any of the Hialeah ordinances set

forth above actually applied to petitioners — no one has ever been

fined, and no one has ever been jailed for disobeying the

ordinances by improperly sacrificing or slaughtering animals in

Hialeah. (A29; R149) Petitioners do not contend otherwise.

On September 25, 1987, petitioners filed a complaint in the

District Court for the Southern District of Florida alleging, pur-

suant to 42 U.S.C. § 1983, that respondent had violated their First

Amendment rights as secured by the Fourteenth Amendment. Their

§ 1983 suit was predicated upon a claim that agents of Hialeah had

purposely harassed them because of their religion. Petitioners

alleged that they had been discriminatorily harassed by respondent

during the licensing and inspection process which the Church had

to go through before it opened, but this claim was rejected by the

district court’s findings of fact. This determination was affirmed by

the court of appeals, and was not raised by the petition for

certiorari. Petitioners also sought a declaratory judgment that the

ordinances prohibiting sacrifice were unconstitutional, alleging that

they had been passed with the intent to chill petitioners’ Free

Exercise rights. Petitioners did not in any way challenge the state

law, § 828.12(1), which forbade the “unnecessary killing of

animals” (A3, A29, A49); and they did not mount a constitutional

challenge against the ordinances insofar as they restricted the

Slaughter of animals to properly licensed and zoned

slaughterhouses. (A23, A29)

In July and August of 1989, a nine-day bench trial was held.

In a Memorandum Opinion, dated October 5, 1989, the district

court awarded judgment in favor of respondent, finding that it had

not violated petitioners’ constitutional rights. Preliminarily,

however, the court made several crucial findings of fact and law.

It held, as a matter of law:

e that even if the challenged ordinances were invalid, petitioners

“would still be prohibited from performing ritual sacrifices

under § 828.12 of the Florida Statutes. See Opinion Attorney

General 87-56 (1987)” (A29);

City Code that would apply” to prohibit ritual animal sacrifice

“including zoning provisions . . . and licensing provisions”

(A29);

e that “at no time have [petitioners] raised any free exercise

challenge addressed toward the validity of [the]

slaughterhouse regulations . . .” (A29; see also A23);

e that petitioners “cannot maintain a facial challenge to the

ordinances” (A41); and

e that petitioners’ only remaining constitutional claim going to

the ordinances was an as-applied claim that they “were passed

because of the council members’ intent to discriminate against

the Church and to keep the Church from establishing a

physical presence within the City,” (A28) (emphasis added),

i.e., “that the passage of the ordinances was intended to force

the Church out of Hialeah, and to chill the religious freedom

of Santeria practitioners by imposing criminal sanctions on

practices that are an integral part of that religion.” (A29)

None of these determinations of law were disturbed by the

corn of appeals — which, of course, affirmed the judgment of the

district court — and none of these legal determinations were

challenged in the petition tor certiorari.

Thus, since Ordinance No. 87-40 (“unnecessary killing”) was

redundant in light of Fla. Stat. § 828.12(1), which was not

challenged; and since Ordinance No. 87-72 (slaughterhouses) also

was not constitutionally challenged; and since Ordinance No. 87-52

(no possession of animals intended to be sacrificed) was subsumed

under Ordinance No. 87-71, petitioners’ remaining entire case

came down only to this:

1) an “as applied” constitutional challenge,

2) to the City’s alleged discriminatory intent,

3) to “chill” the alleged free exercise right of petitioners,

4) to “sacrifice,” i.e., to unnecessarily kill an animal in a

ritual or ceremony not for the primary purpose of food

consumption,

5) by promulgating anti-sacrifice Ordinance No. 87-71.

This limited challenge is extremely significant in light of the

district court having found, as @ matter of fact, that there was “no

evidence” to establish petitioners’ contention that the ordinances

had been passed with discriminatory intent (A28) — that

petitioners’ “allegations of discrimination by the-City are not

Supported by the facts” (A49) — that “there was no proof of any

discriminatory action by the City against the . . . Church or any of

its practitioners.” (A49) To the contrary, the court found that the

trial evidence established that

“the council members’ intent was to stop the practice of

animal sacrifice in the City. Although this concern was

prompted by the Church's public announcement that it

intended to come out into the open and practice its religious

rituals, including animal sacrifice, the council’s intent was to

Stop animal sacrifice whatever individual, religion or cult it

was practiced by.” (A28)

In affirming the judgment of the district court, the court of

appeals expressly left the trial court’s determinations undisturbed,

noting that “[t}he district court made extensive findings of fact

- . +» and no party argues that the record does not support these

findings.” (A2) Indeed, as none of the district court's findings of

fact were even challenged by petitioners in the court of appeals,

they therefore have not been raised in the questions presented upon

which certiorari was granted.

Il.

NONJUSTICIABILITY

It is the position of amici that this could not be a worse case

to serve as the vehicle for what could become an extremely impor-

tant Free Exercise precedent. Respectfully, amici believe that this

case’s foundation is built on sand. It is, in amici’s opinion, rife

with justiciability problems which strongly counsel the Court to

dismiss the writ of certiorari as improvidently granted.

A. Ripeness

First, the case is not ripe. See Metropolitan Washington

Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc. ,

111 S. Ct. 2298, 2306 n.13 (1991) (ripeness relates to court's

jurisdiction under Article III, and court must consider it on its own

initiative).* As already indicated supra at 6, the ordinances at Issue

have never been applied to anyone, let alone to the petitioners. This

means that, especially after the district court's fact-finding and the

court of appeals’ affirmance, all that is left in this Court of

petitioners’ complaint is a claim for an as-applied, allegedly

intentional “chill.” However, not every plaintiff who merely

alleges a First Amendment “chill” has thereby established the

existence of a case or controversy, National Student Ass'n V.

Hershey, 412 F.2d 1103, 1113-14 (D.C. Cir. 1969) — something

this Court expressly recognized in both Laird v. Tatum, 408 U.S. 1

(1972), and Poe v. Ullman, 367 U.S. 497 (1961). Indeed, in

contrast to every Free Exercise (or even arguably Free Exercise)

case that has preceded it in this Court, this case — where the

ordinances at issue have never even been applied — is exceedingly

unripe. By the time earlier cases were brought: George Reynolds

had already been charged with and found guilty of bigamy,

Reynolds v. United States, 98 U.S. 145 (1878); Samuel D. Davis

5 As the ordinances have severability clauses, petitioners must present a

; a a.

ripe claim as to each provision of each ordinance to permit them mount

an attack against the ordinances as a body. See Communist Party of United

States v. Subversive Activities Control Bd., 367 U.S. 1 (1961).

had already been indicted for and convicted of obstruction of

justice for falsely taking an oath, Davis v. Beason, 133 U.S. 333

(1890); the United States had already brought suit against the

Mormon Church seeking the dissolution of the church’s charter and

the escheat of much of its property, Mormon Church v. United

States, 136 U.S. 1 (1890); the Compulsory Education Act of 1922

had already caused withdrawal from the Society of Sisters’ schools

of children who would have attended them with the result that the

Sisters had experienced a steady decline of their income, and the

state had proclaimed its intention to strictly enforce the statute,

Pierce v. Society of Sisters, 268 U.S. 510 (1925); Hamilton and his

schoolmates had already been suspended from the university for

refusing to take the prescribed military training courses, Hamilton

v. Regents, 293 U.S. 245 (1934); Schneider had already been

charged, tried, and convicted of soliciting without a permit,

Schneider v. State, 308 U.S. 147 (1939); and Newton Cantwell and

his two sons also had already been charged, tried, and convicted,

Cantwell v. Connecticut, 310 U.S. 296 (1940); see also Jones v.

Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S.

105 (1943); Martin v. City of Struthers, 319 U.S. 141 (1943);

Follett v. Town of McCormick, 321 U.S. 573 (1944); Marsh v.

Alabama, 326 U.S. 501 (1946); Fowler v. Rhode Island, 345 U.S.

67 (1953); Sarah Prince had already been convicted for violating

Massachusetts’ child labor law, Prince v. Massachusetts, 321 U.S.

158 (1944); the Ballards had already been convicted for using and

conspiring to use the mails to defraud, United States v. Ballard,

322 U.S. 78 (1944); Braunfeld was already about to go out of

business because of application to him of the Sunday blue laws,

Braunfeld v. Brown, 366 U.S. 599 (1961); Torcaso had already

been refused a commission as notary public, Torcaso v. Watkins,

367 U.S. 488 (1961); Sherbert had already been fired and then

denied unemployment compensation benefits, Sherbert v. Verner,

374 U.S. 398 (1963); see also Thomas v. Review Bd. of Indiana

Employment Sec. Div., 450 U.S. 707 (1981); Hobbie v.

Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987),

the children of Jehovah's Witnesses had already been administered

blood transfusions against their parents’ wishes, Jehovah's

Witnesses v. King County Hosp., 598 U.S. 390 (1968) (per

curiam), aff'g, 278 F. Supp. 488 (D.D.C. 1967) (three-judge

court); Gillette had already been convicted of wilfully failing to

report for induction into the army, Gillette v. United States, 401

U.S. 437 (1971); Jonas Yoder, Wallace Miller, and Adin Yutsy

had already been convicted of violating the compulsory school

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

Robison, who as a conscientious objector, had already performed

alternate civilian service, and had therefore been denied the

educational benefits accorded veterans of active service, Johnson v.

Robison, 415 U.S. 361 (1974); George Maynard had already been

convicted of knowingly obscuring the state motto on his license

plate, Wooley v. Maynard, 430 U.S. 705 (1977); McDaniel, the

minister, had already been ousted from his position as a state

constitutional convention delegate by the Tennessee Supreme Court,

McDaniel v. Paty, 435 U.S. 618 (1978); Lee had already partially

paid to the IRS assessed employment taxes which he claimed a

religious right to withhold, United States v. Lee, 455 U.S. 252

(1982); the IRS had already revoked Bob Jones University’s tax-

exempt status, Bob Jones Univ. v. United States, 461 U.S. 574

(1983); the Secretary of Labor had already filed an action against

the Tony and Susan Alamo Foundation alleging a violation of

minimum wage laws, Tony & Susan Alamo Found. v. Secretary of

Labor, 471 U.S. 290 (1985); S$. Simcha Goldman had already

received a letter of reprimand, a negative recommendation, and was

threatened with court-martial, Goldman v. Weinberger, 475 U.S.

503 (1986); Little Bird of the Snow’s AFDC payments, medical

benefits, and food stamps had already been cut off, Bowen v. Roy,

476 U.S. 693 (1986); access to Jumu’ah had already been

eliminated for Shabazz, O ‘Lone v. Estate of Shabazz, 482 U.S. 342

(1987); the Forest Service had already determined that it was going

to build a road through sacred Indian grounds, Lyng v. Northwest

Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988); the IRS

had already disallowed deductions for Scientology “auditing”

sessions, Hernandez v. Commissioner, 490 U.S. 680 (1989); and

Alfred Smith and Galen Black had already been fired from their

jobs as drug counselors for taking peyote and had been denied

Oe ee

unemployment benefits, Smith v. Employment Div., Dept. of

Human Resources, 494 U.S. 872 (1990) (Smith II).

Even if the undisputed fact that the Hialeah ordinances were

never applied to petitioners is not enough to show that this case is

technically unripe, the foregoing cases demonstrate that this case

must be the /east ripe Free Exercise case ever, which by itself

should give this Court pause. As the district court stated after trial:

“There is no question that the evidence reveals that no effort was

made by the church to in fact violate the ordinances so as to put

that issue directly before this court on the basis of an unlawful

arrest and challenging the constitutionality of the ordinance on that

basis.” (124)

But there is more than that to petitioners’ ripeness problem.

Hanging in the air, still unresolved, are petitioners’ applications for

a license to slaughter and for a zoning variance to operate as a

slaughterhouse. If these should be granted, petitioners will have the

right to sacrifice animals in Hialeah despite the challenged

ordinances, and petitioners’ alleged Free Exercise rights will not at

all be impeded. “A fundamental and longstanding principle of

judicial restraint requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.” Lyng, 485

U.S. at 445. Because this case involves uncertain or contingent

future events that may not occur as anticipated, or indeed may not

occur at all, rendering constitutional adjudication premature, this

dispute is unripe. See Lewis v. Continental Bank Corp., 494 U.S.

472 (1990); Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.

568 (1985); see also Bowen 476 U.S. at 715 (BLACKMUN, J.,

concurring); id. at 717 (STEVENS, J., concurring). Moreover, not

only are there serious ripeness problems in this case, but petitioners

also lack standing.

B. Standing

The standing doctrine imposes limitations of constitutional

dimension upon the federal courts. Constitutionally, a threshold in

every federal case is whether the plaintiff has made out a “case or

controversy” within the meaning of Article III. Lujan v. Defenders

of Wildlife, 112 S.Ct. 2130, 2136 (1992). Specifically, the plaintiff

must show an injury to him or herself “that is likely to be

redressed by a favorable decision.” Simon v. Eastern Kentucky

Welfare Rights Org., 426 U.S. 26, 38 (1976); see also Lujan, 112

S. Ct. at 2136 (party invoking federal jurisdiction bears burden of

proving, inter alia, redressability). Indeed, that likelihood must be

“substantial.” See Duke Power Co. vy. Carolina Envtl. Study

Group, 438 U.S. 59, 75 n.20 (1978). Without it, a federal court

would not be the “last resort,” and hearing the case would not be

a necessity.” See Allen v. Wright, 468 U.S. 737, 752 (1984)

(quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S.

339, 345 (1892)). Hearing this case is not “a necessity,” and in

fact would be “gratuitous,” because petitioners cannot show a

“substantial likelihood” that the relief they seek would flow from

a favorable decision by this Court. See Simon, 426 U.S. at 38.

While it is true that they “need not show that a favorable decision

will relieve [their] every injury,” Larson v. Valente, 456 U.S. 228

243 n.15 (1982) (emphasis in original), petitioners fail to show

potential relief from any alleged injury at all.°

Suppose that respondent’s ordinances were found to be

invalid. First, petitioners would still be prohibited from performing

ritual sacrifices under unchallenged § 828.12 of the Florida

Statutes, which Ordinance No. 87-40 incorporates (except as to

punishment). (A29)’ Section 828.12, Fla. Stat., prohibits persons

from “unnecessarily” killing any animal “in a cruel or inhumane

manner.” Such “killing,” at least in the opinion of the Attorney

General of the State of Florida, includes ritual sacrifice. See Atty.

Gen. Op. 87-56 (July 13, 1987). And though no reported Florida

State court decision has passed on whether the state statute,

” The language of Ordinance No. 87-71 is similar to that of § 828.12,

but that similarity alone does not render § 828.12 subject to constitutional

challenge by petitioners. In order to remove the barrier to ritual sacrifice

that § 828.12 erects, petitioners are required to mount a constitutional

challenge to that section directly. This they have failed to do.

§ 828.12, prohibits animal sacrifice, see abstention discussion infra

at 18-25, amici note that several arrests have indeed been made

under this statute for animal sacrifice. On one occasion, three

persons were arrested including a Ms. Ofelia Cueli-Garcia who

“was arrested after a policeman saw her cut off a chicken’s head

and drink the blood.”* On another, some 13 Santeria practitioners

were arrested when police were called to a sacrifice scene after

neighbors mistook the screams of the-dying animals for those of a

child.’

Second, various other local prohibitions would also continue

to apply to petitioners, such as those governing zoning, health and

sanitation, and licensing. (A29) Neither § 828.12 nor these local

prohibitions were challenged by petitioners. (A23, A29)

Absent a showing of what would constitute “redressability,”

of course, “there can be no confidence of ‘a real need to exercise

the power of judicial review’” on petitioners? behalf. Warth v.

Seldin, 422 U.S. 490, 508 (1975) (quoting Schlesinger v.

Reservists to Stop the War, 418 U.S. 208, 221-22 (1974)). In this

case, judicial review by this Court would result in what would

amount to the rendering of a purely advisory opinion on a local

ordinance’s constitutionality — a “ruling” which would be contrary

to the overwhelming weight of precedent. See Larson, 456 U.S. at

271. For, again, “[iJf there is one doctrine more deeply rooted than

any other in the process of constitutional adjudication, it is that

[this Court] ought not to pass on questions of constitutionality . . .

unless such adjudication is unavoidable.” Jd. (quoting Spector

Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944).

Ruling on the constitutional question supposedly presented in this

case is clearly avoidable — and to be avoided by this Court. Cf.

Lyng, 485 U.S. at 446 (before passing on constitutional issue,

courts below required to determine whether decision on that issue

* See Three Santeria Worshippers Charged With Animal Cruelty, UPI,

Apr. 26, 1991, available in LEXIS, Nexis Library, UPI File.

* See Animal Sacrifice Debate Rekindled, UPI, Apr. 15, 1991, available

in LEXIS, Nexis Library, UPI File.

would have entitled plaintiffs to more relief than from their

Statutory claims — if no additional relief warranted, constitutional

decision would have been unnecessary and thus inappropriate).

C. Mootness

The justiciability problems inherent in this case are

compounded by the additional problem of mootness. Because of

Article III’s “case or controversy” requirement, the trial court was

without power to decide a case which had become moot; the issues

presented were required to be “live,” and the parties needed a

“personal stake” in the outcome of the litigation. United States

Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980). The

"controversy," moreover, was required to exist throughout the

course of the entire litigation. Deakins v. Monaghan, 484 U.S.

193, 199 (1988); Burke v. Barnes, 479 U.S. 361, 363 (1987); Doe

v. Sullivan, 938 F.2d 1370, 1384 (D.C. Cir. 1991) (THomas, J.,

dissenting).

Petitioners’ claim has been rendered moot on this appeal by

their own actions. See Deakins, 484 U.S. at 200 (holding case

mooted by plaintiff's withdrawal of claim for equitable relief);

Webster v. Reproductive Health Servs., 492 U.S. 490, 512-13

(1989) (same); see also 13A Charles A. Wright, et al., Federal

Practice and Procedure: Jurisdiction 2d § 3533.2 at 231 (1982).

The evidence at trial established that from the time petitioners

sought to establish a church, their mission was changing — and

these changed circumstances have transformed what may have been

a formerly “live” controversy into one whose resolution can have

no impact on petitioners.

Petitioner Church of the Lukumi Babalu Aye, Inc. (“church”)

originally sought to establish itself at 173 West Sth Street in the

City of Hialeah. Even at that early stage, the promoters decided

that the function of the church would be primarily education, not

sacrifice, by “establishing and promoting research among scholars

to research this faith. . . .” (R648) Petitioner Pichardo indicated

that the education function would occur on a broad basis: “[w]e can

in fact educate right across the board our religious community and

those who are not our religious community.” (R660) (emphasis

added) Subsequently, the sacrifice function of the church apparently

dropped out altogether when it moved to its present location at 700

Palm Avenue, for the mission of the church at its new location is

strictly educational (R666), and involves education not of Santeros

but of the non-Santerian public. (R860) /ndeed, that animal

sacrifice would not ever take place at the new location has been

clear to petitioners from the onset. Said petitioner Pichardo at trial:

“Itwle know that 700 Palm Avenue is not zoned for any

animal sacrifices and we never intended to have it at that

location.”

(R848) (emphasis added). In fact, petitioners acknowledged at trial

that animal sacrifice would be inappropriate at its present church

site since it is located in a shopping center. (R849) Since the

church site has been the only location where petitioners in this non-

class-action have sought to sacrifice,"° the disavowal of their

intention to sacrifice at the church site renders this case moot. Cf.

Bowen v. Roy, 473 U.S. 693, 720-23 (STEVENS, J., concurring);

id. at 713-15 (BLACKMUN, J., concurring) (noting probable

mootness problem). Moreover, petitioner Pichardo has indicated

'© At trial, Pichardo repeatedly testified that part of his mission was to

have sacrifice take place only at the church, thus bringing Santeria above-

ground and providing a place where sanitation could be ensured.

Moreover, as the case was not a class action, the only claims before the

district court were those of the church and Pichardo. Petitioners’ assertion

at trial, then, that they were seeking to vindicate the rights of all

Hialeahan Santeros to sacrifice animals wherever and whenever they

wished (R215-16), was not only not their claim to make, but was

inconsistent with their theory of the case. Indeed, it appears that

Pichardo’s dream of bringing Santeria out into the open is not shared by

many Santeros in Hialeah. See Paige Elizabeth-Pruitt, A Comparative

Study of Yoruba Influence in Santeria 1S (1988) (unpublished M.A. thesis,

Florida State University) (“Recently, during the month of June, 1988, .

_. L. Emesto Pichardo established a Santeria church . . . which became

the first formal place of worship for the sect. Many santeros were irate,

claiming they felt Pichardo was trying to establish himself as leader, even

though there is supposedly no hierarchy within Santeria”).

that he no longer is a practicing priest involved with the ritual

sacrifice of animals. He has shifted his attentions instead to

research and education. (R859-60) It is for this reason that he has

almost absolutely no knowledge of Santeria as it is practiced in

Hialeah. (R859-60) In fact, at trial Pichardo admitted that the last

time he had performed an animal sacrifice was ten years ago —

and that sacrifice occurred in Mexico City, Mexico. (R685)

. Since petitioners no longer present an interest in performing

sacrifices at the current church location (if they ever did), and since

the purpose of petitioners’ church has evolved into one of education

exclusively (if it ever was anything else), their case has been

rendered moot because, inter alia, petitioners no longer have a

“personal stake in the outcome” of this controversy. See Lewis v.

Continental Bank Corp., 494 U.S. 472, 478 (1990). For, precisely

because ihe “church” can now most accurately be characterized as

an academi- Santerian think tank, with the “priest” Pichardo as its

chief academician, the question of whether petitioners can

constitutionally be forbidden from sacrificing animals in Hialeah

is an academic one, which fails to present a “case or controversy.”"

'' Of course, to the extent that petitioners are able to argue that the case

only looks moot — i.e., that it is only due to the “chilling effect” of the

ordinances that the “church” is no more than a Santerian studies center

(“[iJn the meantime, we're handcuffed” (R666)) — such an argument is

only possible because the case was so unripe when commenced. Had

Pichardo first been fined $5 or sentenced to a half-day jail” term for

actually sacrificing animals, one could be certain that in fact he wanted to

sacrifice in Hialeah and that he was sacrificing no longer because of the

fear of further prosecutions. As things stand, however, we cannot be

certain whether Pichardo has not broken his decade-long sabbatical from

animal sacrifice because of the mere existence of the ordinances, or

whether it is due to the failed pipe dreams of a self-proclaimed Senterion

“priest” /academic who nonetheless is delighted that his theoretical and

sanitized version of “Santeria” is being aired in the United States Supreme

Court. The possibility of the latter was crystallized by the following

colloquy at trial:

(continued on next page...)

D. Abstention

Moreover, not only are there ripeness, standing, and mootness

problems with this case which render it unsuitable for decision, but

because it also involves difficult threshold issues of unsettled state

law, very real abstention concerns are also present. In general,

federal courts have a duty to adjudicate federal questions which are

properly before them. Brockett v. Spokane Arcades, Inc. » 472 U.S.

491, 508 (1985) (O’Connor, J., concurring). An exception to that

duty is found, however, in the doctrine of abstention. Id. In fact,

“the proper course for federal courts [is to consider] first whether

abstention is required.” Ohio Bureau of Employment Servs. v.

Hodory, 431 U.S. 471, 477 (1977) (emphasis added); see also

Laurence H. Tribe, American Constitutional Law § 3-28, at 195-98

(2d ed. 1988).

Although this Court has developed several forms of

abstention, those principles first enunciated in Railroad Comm n of

Texas v. Pullman Co., 312 U.S. 496 (1941), are applicable here.

Pullman abstention holds that federal courts should abstain from

deciding a case such as this where the federal constitutional

question can be addressed only by first resolving one or more

difficult questions of unsettled state law. Because those questions

(continued from preceeding page)

“THE COURT: Would | be less than candid in saying that this 1s

more right now in your own mind a dream than it is a reality?

{[PICHARDO]: No, | would not say that would be fair.”

(R873) Amici submit that the trial record as a whole, however, fairly

establishes that Pichardo was less than candid in his answer, for it is quite

evident that the Pichardian brand of “Santeria” — replete with a “fining

system” for “deviants” and a “testing” procedure to determine “true

adherents — exists nowhere except perhaps in Pichardo’s mind. See

Migene Gonzalez-Wippler, Santeria: African Magic in Latin America,

passim (6th ed., Original Publications 1990) (1973).

are unsettled, the district court should have “exercise{d] its wise

discretion by staying its hands.” Pullman, 312 U.S. at 501."

Pullman abstention is based upon two principles: first, that

federal courts should avoid the unnecessary resolution of federal

constitutional issues; and second, that state courts should provide

the authoritative adjudication of state law questions. Brockett, 472

U.S. at 508 (O’CoNNor, J., concurring)."? Abstention is parti-

cularly appropriate “where an unconstrued state statute is

susceptible of a construction by the state judiciary ‘which might

avoid in whole or in part the necessity for federal constitutional

adjudication,’” or which might modify the constitutional question

in a material way. Bellotti v. Baird, 428 U.S. 132, 147 (1976)

(quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)). That a

statute is merely “unconstrued” will not dictate abstention. City of

Houston v. Hill, 482 U.S. 451, 469 (1987). Neither will “a bare,

though unlikely” possibility that a statute will be subject to a

limiting construction by state courts. Hawaii Housing Auth. v.

Midkiff, 467 U.S. 229, 237 (1984). Instead, in order to warrant

abstention, this Court has required that a statute be “obviously

Susceptible of a limiting construction.” Jd. (emphasis added)

(internal quotation omitted).

Certain types of cases are more likely to warrant abstention.

Among them

“are those in which the federal constitutional challenge turns

ON a State statute, the meaning of which is unclear under state

law. If the state courts would be likely to construe the statute

in a fashion that would avoid the need for a federal constitu-

'? The prospect of abstention was specifically drawn to the court's

attention at trial. (R22-23)

'? Such abstention is not without its costs, for there are “delays inherent

in the abstention process.” Harris County Comm'rs Court v. Moore, 420

U.S. 77, 83 (1975). For this reason, this Court has counselled that the

doctrine be invoked only in “‘special circumstances,’ and only upon

careful consideration of the facts of each case.” Jd. (quoting Zwickler v.

Koota, 389 U.S. 241, 248 (1967)).

tional ruling or otherwise significantly modify the federal

claim, the argument for abstention is strong. The same consi-

derations apply where . . . the uncertain status of local law

stems from the unsettled relationship between the state

constitution and a statute.”

Harris County Comm'rs, 420 U.S. at 84 (citations omitted). Cases

raising questions under the First Amendment are not immune to

abstention concerns; for “even in cases involving First Amendment

challenges . . . abstention may be required.” Brockett, 472 U.S. at

510 (O’Connor, J., concurring). The First Amendment cases in

which this Court Aas expressed doubt concerning abstention all

have involved facial challenges. See, ¢.g., Hill, 482 U.S. at 467

(“[W]le have been particularly reluctant to abstain in cases

involving facial challenges based on the First Amendment”).

Because this case does nor involve a facial challenge (A41), see

supra at 7,'* abstention is appropriate here. Indeed, this is a case

whose facts “call most insistently for abstention,” in two respects.

See Harris County Comm'rs, 420 U.S. at 84.

Petitioners challenge Ordinance 87-40, which incorporates by

reference Chapter 828 of the Florida Statutes. The meaning of one

section of those statutes, § 828.12, is unclear as a matter of Florida

law. That section provides, in relevant part, that “[a] person who

unnecessarily . . . mutilates, or kills any animal, or causes the

same to be done, . . . is guilty of a misdemeanor of the first

degree.” Fla. Stat. § 828.12(1). The meaning of this section is

‘4 The district court was clearly correct in holding that petitioners could

not mount a facial challenge to the ordinances since petitioners have not

disputed the proposition that the ordinances would be constitutional as

applied to the killing of animals in non-religious rituals or ceremonies, cf.

United States v. Salerno, 481 U.S. 739, 745 (1987), nor have they argued

that the ordinances are “so broad that they may inhibit . . . third parties”

from exercising their First Amendment rights. See New York State Club

Ass'n v. City of New York, 487 U.S. 1, 11 (1988) (citations omitted).

Petitioners have not even attempted to demonstrate “from actual fact that

a substantial number of instances exist” in which the ordinances cannot be

constitutionally applied. See id. at 14.

pivotal because whatever it may mean, that meaning preempts

conflicting local ordinances because of § 828.27(6

Statutes, which provides that .27(6) of the Florida

“[nJothing contained in this section shall prevent any county

or municipality from enacting any ordinance relating to

animal control or cruelty which is identical to the provisions

of this chapter or any other state law, except as to penalty.

However, no county or municipal ordinance relating to animal

control or cruelty shall conflict with the provisions of this

chapter or any other state law.”

Fla. Stat. § 828.27(6) (emphasis added). Clearly, the ordinances at

issue in this case relate to animal control or cruelty. Whether they

conflict with any provision of the Florida Statutes, however, is

much less clear. )

Ruling On petitioners’ wholly separate praye i

seeking a declaration that, as a a dam Ag vel Men

were preempted by state statutes (see JA16), the district court

found that “[t]he ordinances do not conflict with [state law]

but [merely] clarify [it]. . . .” (A22-23)'* While the ordinances

may indeed “clarify” rather than “conflict,” one can easily imagine

a Florida state court ruling to the contrary."° A comparison

'* The only support relied upon by the district court was ini

the Florida Attorney General that the “ritual slaughter” mean tae

Stat. § 828.22(3), applies only to religious slaughtering of animals for the

primary purpose of food consumption. (A31) See Atty. Gen. Op. 87-56

Guly 13, 1987). Although the opinions of the Florida Attomey General

are “persuasive and entitled to great weight in construing the Florida

Statutes,” State v. Office of Comptroller, 416 So.2d 820, 822 (Fla. Dist

Ct. App. 1982), they can be no substitute for the authoritative o iaions

of, for example, the Florida Supreme Court. ‘

'* Of course, amici would ur i

, ge that the ordinances do “clarify” state law

rather than “conflict” with it. The following discussion serves merely to

demonstrate for this Court the obvious susceptibility to limiting

constructions of the state and local laws at issue. th

_ issue, thus calling for Pullman

between the language of the statute and the ordinance is instructive.

Section 828.12 of the Florida Statutes provides for the punishment

of a person “who unnecessarily . . . kills any animal, or causes the

same to be done.” Section 1 of Ordinance No. 87-71 tracks the

language of § 828.12, defining “sacrifice” as “unnecessarily .. .

kill[ing] any animal, or caus[ing] the same to be done.” See

Hialeah Ordinance 87-71 §3 (making it “unlawful for any

person . . . to sacrifice any animal”).

The district court appears to have been considerably

influenced by the apparent symmetry between § 828.12 and

Ordinance 87-71. (See A31-32) Yet such symmetry establishes

nothing per se. For example, suppose the Hialeah City Council had

been concerned with widespread killing, by lethal injection, of

unwanted household pets. If the council included “euthanasia of

animals” within a proscription against “unnecessarily . . . killing

any animal, or causing the same to be done,” the language of the

ordinance would mirror that of the state statute, but would

nonetheless conflict with Chapter 828 of the Florida Statutes, which

clearly permits euthanasia of animals by lethal injection. See Fla.

Stat. §§ 828.055-.065. As a consequence, that ordinance would be

preempted under § 828.27(6) as a matter of Florida law.

The same is arguably true on the facts of this case: Ordinance

87-71 is a “clarification” only if Florida lawmakers would

characterize ritual sacrifice as an unnecessary killing. If they would

not, then Ordinance 87-71 adds too much to § 828.12. It would

add a characterization which the state legislature would not have.

As a consequence, Ordinance 87-71 would then create a “conflict”

within the meaning of § 828.27(6), a “conflict” which is preempted

under § 828.27(6) as a matter of Florida law — which would mean

that Ordinance 87-71 is a nullity irrespective of any federal

constitutional problems there may or may not be with it. Thus, a

Florida court might very well “construe [§ 828.12] ina fashion that

would avoid the need for a federal constitutional ruling.” Harris

County Comm'rs, 420 U.S. at 84. As this Court has noted, in such

a case “the argument for abstention is strong.” Jd.

Related to the abstention problem is a particularly delicate

issue of federalism, because petitioners’ challenge also implicates

a section of the Florida Constitution, article 1, § 3, whose impact

upon the challenged ordinances is unclear as a matter of Florida

constitutional law. That section provides, in relevant part, that

[t}here Shall be no law . . . prohibiting or penalizing the free

exercise [of religion. Yet, on the other hand,] [rjeligious freedom

Shall not justify practices inconsistent with public morals, peace or

Safety.” Fla. Const. art. 1, § 3 (1968 Revision) (emphasis added)

Whatever this section of the Florida Constitution may mean that

meaning, as a matter of state constitutional law, is pivotal because

it perforce works to void as unconstitutional any conflicting local

ordinances. Whether the ordinances at issue here are unconstitu-

tional as “law(s] . . . prohibiting or penalizing the free exercise [of

religion]” under article 1, § 3 is unclear.'’ One can search the

district court opinion in vain for any reference to the Florida

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

of Hialeah, 723 F. Supp. 1467 (S.D. Fla. 1989), but the resolution

of this case under the Florida Constitution may very well be “the

nub of the whole controversy,” Harris County Comm'rs, 420 U.S

at 85 (internal quotation omitted), thus making adjudication of the

federal constitutional issues unnecessary on grounds of federalism

As this Court has noted, “[t}his use of equi i

contribution of the courts in furthering ad eve nto

between State and federal authority.” Pullman, 312 U.S. at 501

This “harmonious relation” can only be furthered if the federal

courts adhere to the proposition that “[s]tate courts are the principal

expositors of state law.” Moore v. Sims, 442 U.S. 415. 429

( 1979). This is particularly true in this case involving important

issues of state law. See Elkins v. Moreno, 435 U.S. 647, 678

” Of course, amici would urge that the ordinances do not conflict with

the state constitution. As with the earlier discussion as to the possibility

of preemption as a matter of state law, the discussion here serves merely

to demonstrate to this Court the obvious susceptibility of the ordinances

to a state court finding of unconstitutionality. This susceptibility counse

for Pullman abstention. : lene “

(1978) (REHNQUIST, J., dissenting). And for the State of Florida,

the importance of the proper, largely state-ascertained balance

between religiously-inspired action and public health, safety,

welfare, and morals is obvious from the history of her Constitution.

In 1868, the Florida Constitution was amended to include the

principle that “the liberty of conscience hereby secured shall not be

so construed as to justify licentiousness or practices subversive of

the peace and safety of the state.” Fla. Const. of 1868, Dec. of

Rts. § 4, 25 Fla. Stat. Ann. 441 (West 1970). In 1885, a further

reference to the requirement that religion had to comport with

“moral safety” was added, and that reference survived for eighty-

three years. Jd. § 5, 25 Fla. Stat. Ann. 479, 482 (West 1970). In

1968, the current version of Florida’s “Free Exercise Clause” was

adopted, tightening the reins on religious practices, providing that

“{rJeligious freedom shall not justify practices inconsistent with

public morals, peace or safety.” Fla. Const. art. 1, § 3 (1968

Revision).

In sum, since it is entirely possible that a Florida court may

“be likely to construe [the ordinances] in a fashion that would

avoid the need for a federal constitutional ruling,” Harris County

Comm'rs, 420 U.S. at 84, that likelihood makes abstention

appropriate here — particularly because state law provides for

certification to the Florida Supreme Court of “questions or pro-

positions of the laws of [Florida] which are determinative of [a]

cause.” See Fla. Stat. Ann. § 25.031 (West Supp. 1992). Although

the mere availability of certification is not in itself sufficient to

warrant abstention, this Court has “recognized the importance of

certification in deciding whether to abstain.” Hill, 482 U.S. at 470,

for “[s]peculation by a federal court about the meaning of a state

[law] in the absence of prior state court adjudication is particularly

gratuitous when, as is the case here, the state courts stand willing

to address questions of state law on certification from a federal

court.” Brockett, 472 U.S. at 510 (O’Connor, J., dissenting). In

fact, in Employment Div., Dept. of Human Resources v. Smith, 485

U.S. 660 (1988) (Smith J) this Court refused to speculate in order

to reach the federal constitutional question. Jd. at 673 (“in the

absence of a definitive ruling by the Oregon Supreme Court we are

unwilling to disregard the possibility that the State’s legislation

regulating the use of controlled substances may be construed to

permit peyotism or that the State’s Constitution may be interpreted

to protect the practice”).

The sovereign State of Florida has declared its dedication to

the free exercise of religion and, at the same time, to public

morals, peace, and safety and to the humane treatment of animals.

The State of Florida, therefore, at least as an initial matter, should

be allowed to place Hialeah Ordinances 87-52, 87-71, and 87-72 on

the scales without having to suffer the “unnecessary friction”

caused by premature federal court adjudication. See Harman v.

Forssenius, 380 U.S. 528, 534 (1965). The district court should

have abstained until the uncertain — and possibly dispositive —

issues of state law had been decided by a Florida state court.

E. The Factual Finding

sd Finally, petitioners face an insurmountable problem with a

critical fact in this case. An allegation of discriminatory “intent” or

“purpose” or “motive” has always been part and parcel of

petitioners’ constitutional challenge to the ordinances. In their

verified complaint (JA6, JA10-14), and at trial (R11, R32, R69-70

R80, R136-37, R144, R148, R158, R178, R182-85, R188, R192-

93, RR196, R250-51, R255, R258-59, R478-80, R514-20), and in

oral argument after trial (T16-17, T28-35, T63, T86), and indeed

in this Court, see Petitioners’ Pet. for Writ of Cert. at 8, 12

Petitioners ‘Br. at 3, 14-15, 27, petitioners have clearly stated their

position that the ordinances are unconstitutional because they were

enacted by respondent with the intent to chill the free exercise of

petitioners’ religion. Atter a 9-day bench trial, this contention was

flatly rejected by the district court who, as already noted, found as

@ matter of fact that there was no evidence to establish petitioners’

contention that the ordinances had been passed with discriminatory

intent (A28, A49) — “the council members’ intent,” said the court,

was only “to stop the practice of animal sacrifice in the City.”

(A28) There is before this Court, therefore, nothing left to

petitioners’ constitutional claim as they framed it but an adverse

finding of fact by the district court, affirmed by the court of

appeals, and corroborated by the singularly striking detail on

respondent actually granted petitioners 4 certificate of occupancy

open their doors as a church in the City of Hialeah. The writ 0

certiorari, then, has brought nothing before this Court but a ener

of fact, agreed upon by both lower courts, which this Court wi

not disturb because that finding of fact is not clearly erroneous. See

United States v. Ceccolini, 435 U.S. 268, 273 (1978).

CONCLUSION

The justiciability problems of this case — of ripeness,

standing, mootness, and abstention — make it an unworthy vehicle

for an important elucidation of this Court’s Free Exercise

jurisprudence, especially as nothing remains for this Court’s review

but a finding of fact upon which the district and circuit courts

agreed. Accordingly, the Court should, metaphorically speaking,

“abstain from meats offered to idols and from blood, and from

things strangled,” Acts 15:29 (King James), and dismiss the writ of

certiorari as improvidently granted.

Dated: New York, New York

July 31, 1992

Respectfully submitted,

Henry Mark Holzer