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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 520

## Text

OCTOBER TERM, 1992 ,

CHURCH OF THE LUKUMI BABALU AYE, INC. AND
ERNESTO PICHARDO, PETITIONERS

v.

CITY OF HIALEAH

On Writ of Certiorari to the United States
Court of Appeals for the Eleventh Circuit

BRIEF FOR THE HUMANE SOCIETY OF THE
UNITED STATES, AMERICAN HUMANE ASSOCIATION,
THE AMERICAN SOCIETY FOR THE PREVENTION OF

CRUELTY TO ANIMALS, ANIMAL LEGAL DEFENSE
FUND, INC., AND MASSACHUSETTS SOCIETY FOR
THE PREVENTION OF CRUELTY TO ANIMALS AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

ROGER A. KINDLER ANITA W. COUPE
General Counsel MAUREEN BEYERS
MELISSA SEIDE P. UBIN MICHAEL T. MURRAY
KAREN B. FORNEY MORGAN, LEwIs & BOCKIUS
THE HUMANE SOCIETY OF 101 Park Avenue
THE UNITED STATES New York, NY 10178
2100 L Street, N.W. (212) 309-6000
Washington, D.C. 20037 PETER BUSCEMI *
(202) 462-1100 | Morgan, Lewis & BOCKIUS

1800 M Street, N.W.
Washington, D.C. 20036
(202) 467-7190

* Counsel of Record
(Add.tional Counsel Are Listed on the Inside Cover)

— cutie.
WILSON - Epes PrintinGc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

ROGER A. KINDLER
Special Counsel
AMERICAN HUMANE ASSOCIATION
63 Inverness Drive East
Englewood, CO 80112
(303) 792-9900 '

EUGENE UNDERWOOD, JR.
Vice President and General Counsel
THE AMERICAN SOCIETY FOR THE PREVENTION
OF CRUELTY TO ANIMALS
424 East 92nd Street
New York, NY 10128
(212) 876-7700

JOYCE TISCHLER
Executive Director
ANIMAL LEGAL DEFENSE FUND, INC.
1363 Lincoln Avenue
San Rafael, CA 94901
(415) 459-0885

ROGER A. KINDLER
Special Counsel
MASSACHUSETTS SOCIETY FOR THE PREVENTION
OF CRUELTY TO ANIMALS
350 South Huntington Avenue
Boston, MA 02130
(617) 522-7400

"BEST AVAILABLE COPY|

QUESTIONS PRESENTED

1. Whether, under this Court’s decision in Employment
Division v. Smith, 494 U.S. 872 (1990), the challenged
Hialeah ordinances should be sustained as “neutral, gen-
erally applicable regulatory law{s],” not requiring any
“compelling state interest” justification.

2. Whether the ordinances are in any event justified
by the City’s compelling interests in public health and
animal protection.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............2.2......ecececeeeee >
TEED dceceiiccnsnceceiicinsnecsiiosunesintente
INTEREST OF THE AMICI CURIAE 0...

STATEMENT OF THE CASE ...............................-.-...-..
A. Hialeah’s Regulation Of The Killing Of Animals..

B. Church Of The Lukumi Babalu Aye ......000........
— & 2 = ESTES TCnereiesenae
EE EATS RE EE ee or

C. The District Court’s Decision .......0000000
D. The Court Of Appeals’ Decision —.......................

SUMMARY OF ARGUMENT. ..QWWW...........2...--.cc-ec-00-0

GE wisinnsicitnciincnianccrignistcniiieemsinnntinitniiianmenin

I. THE HIALEAH ORDINANCES ARE NEU-
TRAL AND GENERALLY APPLICABLE
i

A. The Ordinances Prohibit All Animal Sacri-
fices—They Do Not Discriminate Against
ENE eee eee ek a roe a ee

B. The Ordinances Do Not Have A Discrimina-
Ee eS ee

1. A Regulatory Law Is Not Discrimina-
tory Simply Because Its Enactment Is
Prompted By The Emergence Of New
I alain

2. The Subjective Intent Of Persons Sup-
porting The Ordinances Is Irrelevant ......

(iii)

comodcuranrn we Ww

11

11

11

14

14

16

iv
TABLE OF CONTENTS—Continued

C. The City Is Not Obligated By The Constitu-
tion To Consider Religiously Motivated Ex-
ceptions To Its Regulatory Laws .................

Il. PROTECTING ANIMALS FROM UNNECES-
SARY KILLING OR CRUELTY IS A COM-
PELLING STATE INTEREST ..........................

A. Animal Protection Laws Developed More
I

B. Protecting Animals From Unnecessary Kill-
ing Or Cruelty Is A Fundamental Public
NI chiens a acca

C. Statutes Protecting Animals Directly Serve
The State Interest In Preserving Public
Morals And Protecting Human Life _............

D. The Lawful Purposes For Killing Animals
Do Not Make The Public Policy Against
Unnecessary Killing Or Cruelty Any Less
Compelling

ee eee eee

CONCLUSION

Page

17

20

20

25

27

30

v

TABLE OF AUTHORITIES

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

REID .xccipcscsucininsctsennensscnanssaatnpaninimcmmmmnesenenies a calli ae 15
Aguilar v. Felton, 473 U.S. 402 (1985) -.................. 19
Arizona v. California, 283 U.S. 423 (1931) -~.......... 17
Braunfeld v. Brown, 366 U.S. 599 (1961) ...... 16
Commonwealth v. Higgins, 178 N.E. 536 (Mass.

RRS 23
Commonwealth * v. . Tilton, 49 ‘Mass. (& Met.) 232

DEINE": <cisisscasianisdiiietiiiesainaisuianatetabeineiians 26
Commonwealth v. Turner, 14 N.E. 130 (Mass.

AREA 2 Sieh mie Meer ream ncenneneee 25-26
Edwards v. Aquillard, 482 U.S. 578 (1987) -........... 17
Employment Division v. Smith, 494 U.S. 872

(1990) . ELEN DRO
Fletcher v. Peek, 10 US. 87 (1810) EAA ae nN 17
Green v. Bock Laundry Machine Co., 490 U.S. 504

IID. cccntoceceunsintoeseneciocemmscstiiemsinmenninitienninmnmnansteiioss 17
Grise v. State, 37 Ark. 456 REESE rrares roan 23
Holbrook Island Sanctuary v. Inhabitants of Town

of Brooksville, 214 A.2d 660 (Me. 1965) ........ ie 28
Humane Soc’y of Rochester v. Lyng, 633 F. Supp.

[ F ci i i 23
Hunt v. State, 29 N.E. 933 (Ind. App. 1892) ....... it 26
Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y.), aff'd,

BOE TEE, GD GD cniccncccetstipctiinmiecencintnpaninnnsinnnn 13
Lawson v. Commonwealth, 164 S.W.2d 972 (Ky.

TD ..n:enncansmnctenctigawnansiemetananinasnniaaiinniinnenmeinnnen 15
Lemon v. Kurtzman, 403 U.S. 602 (1971) ............ 19
Lunch v. Donnelly, 465 U.S. 668 (1984) .............. 17
McCray v. United States, 195 U.S. 27 (1904) aECee 17
McGowan v. Maryland, 366 U.S. 420 (1961) ....... 15-16, 17
Palmer v. Thompson, 403 U.S. 217 (1971) ............ 17

Reynolds v. United States, 98 U.S. 145 (1878) _.. 14-15, 20
Semler v. Oregon State Bd. of Dental Examiners,

SF en 19
Sharon v. Sharon, 16 P. 345 (Cal. 1888) Ns EE 13
Sherbert v. Verner, 374 U.S. 398 (1963) +............. 9,18

Simon v. Eastern Kentucky Welfare Rights Org.,
I, 13

vi

TABLE OF AUTHORITIES—Continued
Page

State v. Capitol Benefit Ass'n, 21 N.W.2d 890
RU I gi kh 13
State v. Hodsdon, 289 A2d 635 (Del. Super. Ct.
1972) ‘* Eas ae 13
State v. Massey, 51 S.F.2d 179 (N.C.), appeal dis-
missed sub nom. Bunn v. North Carolina, 336

U.S. 942 (1949) presaeetendengdaensnepmatnmeiatas tn ieee ie i 15
State v. Porter, 16 S.E. 915 (N.C, 1893) a Sa os 26
Stephens v. State, 3 So. 458 (Miss. 1888)... ss « 22, 25
Swaagart Ministries v. California Board of Equali-

zation, 493 U.S. 878 (1990) = 19
Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975), cert.

denied, 424 U.S, 954 (1976) . ASTRA 15
United States v. Lee, 455 U.S. 252 (1982) nha 19
United States v. O'Brien, 391 U.S. 367 (1968) 17
Wallace v. Jatfree, 472 U.S. 88 (1985)... 17
Waters v. People, 46 P. 112 (Colo. 1896) 22, 26
Wisconsin Publie Intervenor v. Mortier, 111 S. Ct.

2476 (1991) . Pe OS ek EE Lela cipiaaiiited 17

STATUTES

Animal Welfare Act of 1970, 7 U.S.C. §§ 2131-2159
SS on

Cal. Corp. Code § 10404 (West 1991). tees 24
Chicago Code § 1- | Eee 3
D.C. Code Ann. § § 32-806 (1962) ............................... 24
Endangered Species Act, 16 U.S.C. $$ 1531-1544
(1988) ins cabphalaanabeertnssslcT lar tee aN 19
Fla. Stat. § 233.061 HE ae NES RA kN dc 23
Fla. Stat. § 233.0674 EDEN Me PON ne Ala Bae 23
RE RR ke oe I SEP i9
et ST AL DE ei Ee 19

I ak rl hh ek 19

SRT REE CRE OR, ee APE coe ee 19
8s has 19
Fla. Stat. § 372.75 se Be Saitele 19
Fla. Stat. § 372.85 Be ETN sede ATE RB 19
S REREESSEERRS esac nea eee 19
NE Rt eS RE AIS 19
ETRE cham eae Oe ee 19

vii
TABLE OF AUTHORITIES—Continued

Page
Fla. Stat. § 482.021 Stee
Fla. Stat. § 482.071 aR er Sh ies mene 19
Fla. Stat. § 482.132 i Fie RAE LEVER WRC 19
Fla. Stat. § 823.15 _. 23-24
Fla. Stat. ch. 828 (1987) oe re
Fla. Sta. § 828.02 a
Fla. Stat. § 828.03 24
Fla. Stat. § 828.05 19, 29
Fla. Stat. § 828.055 TSO TNR,
Fla. Stat. § 828.058 eee 19, 24, 29
ESE eestor
Fla. Stat. § 828.12 neem
Fla. Stat. § 828.122 ..... a aa 24
_RESREEER E er senenon ees 5
Fla. Stat. § 828.25 ple De as een ed AS 5
Fla. Stat. $$ 828.22-828.26 a I a od eae Ee 4,5,19
i tn IE. scsneepeesesnninnnnsantens 4
Fla. Stat. ch. 4971 (1901) sehieiabaieacaaiiciebiatiiahbiiaiie 4
Horse Protection Act, 15 U.S.C. §§ 1821-1831
(1988) | et EC a een. Hee LORS 24
Humane Methods of Slaughter Act, 7 U.S. C.
ES oe 19, 24
Los Angeles Code § 53.67 (1990) ....................-.........- 3
Marine Mammals Protection Act, 16 U.S.C.
$§ 1361-1407 (1988 & 1990 Supp.) —.................... 24
N.Y. Agric. & Mkts. Law § 371 (McKinney 1991). 24
N.Y. Agric. & Mkts. Law § 373 (McKinney 1991).. 24
Ohio Rev. Code Ann. § 2931.18 (1991 Supp.) ......... 24
Twenty-Eight Hour Law, 45 U.S.C. §§ 71-74
eens 24
Va. Code Ann. $ 3.1-796. 109 (1991 Supp. ) a ee ; 24
Va. Code Ann. § 3.1-796.115 (1991 Supp.) ..0.0....... 24
Wild and Free Roaming Horses and Burros Act,
16 U.S.C. §§ 1331-1340 (1988 & 1990 Supp.) ....... 24
REGULATIONS
© Cte. BE B.BOBBe CIGGED .nccccccccecscccseccrcccscccrccssseeee 19
9 C.F.R. $§ 302, 313 (1992) Ti ee 19
Fla. Admin. Code Ann. 39-13.001 to 39-13.008 19
Fla. Admin. Code Ann. 39-15.004 to 39-16.005 _....... 19
Fla. Admin. Code Ann. 39-24.002 0000. 19, 24

viii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

American Humane Association, Report on the Sum-
mit on Violence Towards Children and Animals
RES ERIS oy Sa a RO Dn eRe ARTO SSA ARO

American Society for the Prey ention of Cruelty to
Animals, Annual Report (1990) —....00.....0000eee...

G. Braxton, Challenge to Sacrifice Law Blocked,
*y. § = Peano

G. Carson, Man, Beasts, and Gods (1972) .....0...000.....

G. C. Chavez, Santeria: A Cult of Sacrifice, U.P.1.,
Oct. 11, 1981 . Ay.

M. Chazanov, The Slaughter ¢ on | Franklin Street—
‘It’s Not a Big Deal’, L.A. Times, Mar. 21, 1991...

Cong. Globe, 37th Cong., Ist Sess. 2506 (1862)...

D. Favre and M. Loring, Animal Law (1983) ........

Fla. Atty. Gen’l Opinion 87-56 (1987) ......0...0000000...

T. Jefferson, A Bill for Establishing Religious
Freedom (June 12, 1779), in 5 The Founders’
Constitution 77 (P. Kurland and R. Lerner eds.,
1987) ........ a ee

A. Jetter, Goat Head in Park Stirs Santeria Fear,
Is I te i edeniianiiamiaininnes

S. Kellert, “Attitudes and Characteristics of
Hunters and Anti-Hunters and Related Policy
Suggestions” (1976) .......... socksetaancamaciaiaaaine

E. Leavitt & D. Halverson, “Animal Protective
Organizations and Law Enforcement Agencies,”
in Animals and Their Legal Rights (4th ed.
RR PPA OE SNS EBS ae

E. Leavitt & D. Halverson, ““The Evolution of Anti-
Cruelty Laws in the United States,” in Animals
and Their Legal Rights (4th ed. 1990) 00.0...

Letter from James Madison to Edward Livingston
(July 10, 1822), in 5 The Founders’ Constitution
105 (P. Kurland and R. Lerner eds., 1987) .........

R. Lockwood and G. Hodge, “The Tangled Web of
Animal Abuse: The Links Between Cruelty to
Animals and Human Violence,” 31 Humane So-
ciety News No. 3 (Summer 1986) ......................

27

21

16

26

ix

TABLE OF AUTHORITIES—Continued

R. McCrea, The Humane Movement (1910) ...........
J. Meyer, Animal-Slaughter Cult Growing, Police
I, rei, GUY TEIE : TID ss cetesctconcsshicetnterenbicsbentinsennaai
S. Morison, Builders of the Bay Colony (1930) ......
H. Nelson, “The Case for Hunting on National
Wildlife Refuges,” in Advances in Animal Wel-
fare Science 1986/87 (M. Fox & L. Mickley eds.,
III «ccecoushdecaicesahacdaassiuaddaesieine saaematsidieen aed piescasemieliiehcdai ia eaeain
Police Rescue Animals From Alleged Cult Group,
CE, aS re
W. Robinson, ““The Case for Hunting,” in Advances
in Animal Welfare Science 1986/87 (M. Fox &
= REESE eenerseeeremnenereemnnerinTe
C. Sanchez, Animal Sacrifice Ritual Spurs Rights
Debate in D.C.; Santeria Priest Threatens
Slaughter Protest, Wash. Post, Nov. 30, 1987....
C. Stevens & D. Halverson, “Fighting and Bait-
ing,” in Animals and Their Legal Rights (4th
SS _ FRRERSRSTRREERE SEEPS: RUS RE eee deocnte ort tsee taco od ee
Strange Cemetery Rituals Reported, U.P.1., Nov.
I aa
M. Warren, That Dirty Water; Miamians Love
and Hate Their Smelly River, L.A. Times, Apr.
NER Sr a Raa ee Rinne enn a nes
Webster’s New Collegiate Dictionary (9th ed.
SUITE crucnpnsceenneiddinnseatiuntiegneeiesianeuniaieatesiianitinabiiniiakiionsiaiihiasin
J. Wynne-Tyson, The Extended Circle: A Dic-

tionary of Humane Thought (1985) ....0.00000000000... ;

Page
21, 27

7
21

29

29

23

13

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

No. 91-948

CHURCH OF THE LUKUMI BABALU AYE, INC. AND
. ERNESTO PICHARDO, PETITIONERS

Vv.

City oF HIALEAH

On Writ of Certiorari to the United States
Court of Appeals for the Eleventh Circuit

BRIEF FOR THE HUMANE SOCIETY OF THE
UNITED STATES, AMERICAN HUMANE ASSOCIATION,
THE AMERICAN SOCIETY FOR THE PREVENTION OF

CRUELTY TO ANIMALS, ANIMAL LEGAL DEFENSE
FUND, INC., AND MASSACHUSETTS SOCIETY FOR
THE PREVENTION OF CRUELTY TO ANIMALS AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

The amici, the Humane Society of the United States
(“HSUS”), American Humane Association (“AHA”), the
American Society for the Prevention of Cruelty to Ani-
mals (“ASPCA”), Animal Legal Defense Fund, Inc.
(“ALDF”), and Massachusetts Society for the Prevention

2

of Cruelty to Animals (“MSPCA”), are organizations
that nave long dedicated themselves to preventing cruelty
to animals, promoting animal welfare, and ensuring re-
spect for the well-being of all living creatures. They
have a substantial interest in supporting government
measures that seek to protect animals and to prevent the
wanton and willful infliction of cruelty upon animals.
To further the interests of animals locally, nationally,
and internationally, the amici sponsor, draft, and testify
in support of legislation advancing animal welfare, in-
vestigate and enforce state laws and ordinances prevent-
ing cruelty to animals, educate the populace concern-
ing the humane treatment of animals, and operate ani-
mal hospitals and shelters. The questions raised here
are of specific concern to amici, one of which (HSUS)
was directly involved in drafting and testifying in favor
of the Hialeah ordinances being challenged. '

STATEMENT OF THE CASE

Petitioners’ attack on the Hialeah ordinances proceeds
from the erroneous premise that the ordinances prohibit
only the sacrifice of animals for religious reasons. In
fact, however, the ordinances broadly ban al! ritualistic
killing of animals, as well as other forms of animal cruelty
and unnecessary killing. Petitioners attempt to draw com-
fort from this Court’s recent decision in Employment Di-
vision v. Smith, 494 U.S. 872 (1990), but in fact Smith
strongly supports the validity of the ordinances. The
Court in Smith acknowledged that a Free Exercise Clause
violation could occur if a state “sought to ban | physical |
acts or abstentions only when they are engaged in for
religious reasons, or only because of the religious belief
that they display.” Jd. at 877 (emphasis supplied). Pe-

1 Letters reflecting the parties’ consent to the filing of this brief
have been filed with the Clerk of the Court.

3

titioners try throughout their brief to characterize the
Hialeah ordinances as just such measures, but they do so
only by disregarding the language of the ordinances them-
selves and the well-supported factual findings of the dis-
trict court. The district court’s thorough opinion, which
itself was cited with apparent approval in Smith, id. at
889, demonstrates that the ordinances are measures of
general applicability, not limited to religious practices,
and that the ordinances serve compelling state interests
in public health and animal protection.

A. Hialeah’s Regulation Of The Killing Of Animals

The four ordinances at issue here were adopted by the
City of Hialeah in 1987. The ordinances are similar to
provisions that have been adopted in other cities.*

Initially, on June 9, 1987, the Mayor and City Council
of Hialeah, observing that the citizens of Hialeah had
“expressed great concern over the potential for animal
sacrifices being conducted in the City,” adopted in its
entirety an existing Florida statute dealing with cruelty
to animals. Pet. Br. Al.* Chapter 828 of the Florida Stat-
utes, which was adopted by the City in Ordinance No. 87-
40, had for years provided criminal penalties for anyone
who “unnecessarily . . . tortures, torments, deprives of
necessary sustenance or shelter, or unnecessarily or cruelly
beats, mutilates, or kills any animal, or causes the same
to be done... .” Pet. Br. A5. Hialeah chose to make
such conduct a violation of local, as well as state, law.

Three months later, on September 8, 1987, the City
adopted Ordinance No. 87-52, the operative portion of
which is entitled “Prohibition Against Possession of Ani-
mals for Slaughter or Sacrifice.” Pet. Br. Al-A2. The
ordinance generally prohibits the sacrifice or slaughter
of any animal, except for the slaughtering of animals

2 See, e.g., Chicago Code § 7-12-300 (1990); Los Angeles Code
§ 53.67 (1990).

3“Pet. Br.” refers to petitioners’ brief in this Court.

1

that were specifically raised for food purposes and that
are slaughtered by licensed establishments operating in
properly zoned areas and in accordance with state and
local law and regulations. Under the ordinance’s defini-
tion, “sacrifice’’ means “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.” /d. at Al.

Finally, on September 22, 1987, the City adopted Ordi-
nance No. 87-71 and Ordinance No. 87-72. Based on the
City Council's finding that “the sacrificing of animals
within the city limits is contrary to the public health,
safety, welfare and morals of the community,” Ordinance
No. 87-71 flatly prohibits the sacrifice of any animal in
Hialeah. The ordinance’s definition of “sacrifice” is the
same as that used in Ordinance No. 87-52. Pet. Br. A2-
A3. Ordinance No. 87-72 prohibits the “slaughter |[of!
any animal on any premises in the City of Hialeah,
Florida, except those properly zoned as a slaughter house,
and meeting all the health, safety and sanitation codes
prescribed by the City for the operation of a slaughter
house.” /d, at A3. Under the ordinance’s definition, which
follows the definition used in Ordinance No. 87-52,
“slaughter” means “the killing of animals for food.”
Ordinances 87-71 and 87-72 also authorize registered
societies and associations for the prevention of cruelty to
animals to investigate animal cruelty complaints.

For more than a century, Florida has sought to out-
law animal cruelty. See Fla. Stat. ch. 3921 (1889).
Chapter 828 of the Florida Statutes, which Hialeah
adopted in Ordinance No. 87-40, prohibited animal sac-
rifice and other forms of animal cruelty long before
Hialeah enacted the ordinances now under attack. Sec
Fla. Stat. ch. 4971 (1901), the precursor of Fla. Stat.
§ 828.12 (1987).

Like the Oregon controlled substances statute that
was at issue in Smith (see 494 U.S. at 874), the Florida
statute adopted by Hialeah included some secular excep-
tions. See, «.4., Fla. Stat. Ann. §§ 828.22-828.26 (slaughter

~-

5

of animals for food); § 828.02 (advancement of medical
science). The Florida law expressly exempted the ritual
slaughter of animals, see Fla. Stat. Ann. § 828.22:3),
provided the slaughter was humane, see § 828.23(7) (b),
but ihe State never permitted animal sacrifice. See Fla.
Atty. Gen’l Opinion 87-56, at 5, 8 (1987) (the term
“slaughter” as used in sections 828.22 to 828.26 refers
only to killing animals for food, and Section 828.12 pro-
hibits sacrifice of animals for a purpose other than food).
As the distriet court recoenized, “|t|his Ordinance |i.¢.,
Ordinance No. 87-52] was not meant to single out persons
engaged in ritual sacrifice, but to put those persons on
notice that the state exemption for ritual slaughter only
applied to commercial ritual slaughter, done in slaughter-
houses.” Pet. App. A39.

B. Church Of The Lukumi Babalu Aye
1. General Background

Petitioner Church of the Lukumi Babalu Aye, Ine. is a
non-profit corporation that promotes and practices the
Lukumi religion in South Florida. The religion is also
referred to as Yoba, Yoruba, or Santeria. Pet. App. A4.
Petitioner Ernesto Pichardo is the president of the peti-
tioner church. Although the practice of Santeria dates
back many years, the religion lacks any written code or
doctrine ‘with the exception of written tenets recently
prepared by Pichardo, possibly in contemplation of this
litigation’. Jd. at A7-A8. The religion involves no or-
ganized worship and no central authority for the train-
ing or certification of priests. 7d.

On April 1, 1987, the petitioner church took possession
of a site in the City of Hialeah, intending to use the
property to establish a church, school, and cultural center.
Pet. App. A22. After routine administrative inspections,
the City issued a certificate of occupancy to the Church.
Id. at A26.

2. Animal Sacrifice

As a part of their rituals and ceremonies, practitioners
of Santeria sacrifice animals, including chickens, pigeons,

6

doves, ducks, evinen fowl g@eats, sheep, and turtles. Pet.
App. A®%. The sacrifices are performed in rites of initia-
tion, healing, and funerals. /d. at Al15-A17. On the basis
of Pichardo’s testimony, the district court estimated that
between 12,000 and 18,000 animals are sacrificed an-
nually in Dade County in initiation rites alone. Jd. at
Al5 n.22. Most of these animals are obtained from
botanicas or local farms that breed the animals specifi-
cally for sacrifiee.' /¢. at Al7. While at the botanicas or
farms, the animals are fed and watered only irregularly
and they are frequently housed in “overcrowded and
filthy” conditions. These conditions can cause intense
suffering. Jd, at Al7-A18.

After being purchased for Santeria rituals, animals
are often stored with animals of other species under
crowded conditions, causing “great stress and anxiety.”
Pet. App. Ald. During the sacrifices, animals can sens
the bodily secretions of other animals that have just
been killed, thus producing intense fear, and sometimes
pain, in those animals awaiting sacrifice. /d. at Al4 &
n.19. Moreover, as the district court correctly found, the
method of killing used in Santeria sacrifices is not hu-
mane. 7d. at Al3. The stabbing or puncture method
used by Santeria practitioners “is not a reliable or pain-
less method of severing both carotid arteries” and there-
fore “is not accepted from either a traditional standpoint
or a humane standpoint.” /d.

The Santerta sacrifices create wastes, resulting in ob-
vious disposal problems. After an animal is killed, it»
blood is drained into clay pots. Pet. App. Al5. The
animal is then decapitated and its carcass removed. /d.
The animal's blood is either placed before the Santeria
deities or sprinkled on worshipers or drunk. /d. at Al5
& n.21. Some of the animals are butchered and eaten.
although the sheer number of animals sacrificed makes
it highly implausible that this precedure is followed for

* Botanicas are religious specialty stores, many of which traffic
in sacrificia! animals and other items associated with Santeria.
Pet. App. Al7 n.28.

7

all of them. Jd. at Al6. Moreover, it is undisputed
that animals used in healing and death rites are not con-
sumed and must be disposed of in other ways. /d. at Al6-
Al7 & n.27.

Not coincidentally, animal remains are often found in
public places in South Florida, including near rivers and
canals, by four-way stop signs, under palm trees, and on
people's lawns and doorsteps. Pet. App. Al8 & n.29.
At least some of these remains have been found to be the
result of Santeria practices. /d. at Al8.°

—

*In what has become part of the aquatic scenery, decapitated
chickens and other animals are routinely seen floating in the
canals and waterways that meander through South Florida. G.C.
Chavez, Santeria: A Cult of Sacrifice, U.PA., Oct. 11, 1981. Prac
titioners of Santeria “keep garbage crews busy hauling 48 decapi-
tated chickens from the water each month.” M. Warren, That
Dirty Water; Miamians Love and Hate Their Smelly River, L.A.
Times, Apr. 12, 1992, at A2, col. 1.

Lamentably, the carnage is not limited to South Florida. In
Washington, D.C., when a gathering of about 200 people was in-
terrupted by Humane Society officers who seized a goat, calf, pig,
and other animals intended for sacrifice, the person in charge of
the sacrifice threatened to kill the animals in front of the White
House. C. Sanchez, Animal Secvijsice Ritual Spurs Rights Debate
in DC.; Santeria Priest Threatens Slaughter Protest, Wash, Post,
Noy. 30, 1987, at Cl. As a result of animal sacrifices in New York
City, park officials often find items like a goat's head or paper bags
filled with chicken feet and blood-smeared paper dolls. A. Jetter,
Goat Head in Park Stirs Santeria Fear, Newsday, May 2, 1989,
at 19. In suburban New Jersey, men were arrested after beheading
animals in a ceremony, smearing their garments with the animals’
blood, and drinking some of the blood. Twenty-one people in the
nearby Atlantic City area were arrested for similar cruelty to
animals. Authorities found not only animal carcasses at the sites
of these rituals, but cauldrons of blood as well. J. Meyer, Animal-
Slaughter Cult Growing, Police Say, U.P.1., July 25, 1985. There
have been so many complaints in Los Angeles concerning the dis-
covery of animal bodies in parks and trash containers that the
City Council recently enacted an ordinance banning the sacrifice of
animals. G. Braxton, Challenge to Sacrifice Law Blocked, L.A.
Times, Nov. 10, 1990, at Metro B4. In Santa Monica, California,
the sacrifice of three lambs and a doxn chickens caused an
overflow of blood from the basement drain into the parking lot of

8

C. The District Court's Decision

In September 1987, petitioners brought this action, seek-
ing declaratory and injunctive relief against the City
on the ground that the Hialeah ordinances allegedly vio-
lated petitioners’ First and Fourteenth Amendment rights
to the free exercise of religion. J.A. 6-17. Following a
nine-day bench trial, during which the court heard ex-
tensive factual and expert testimony regarding Santeria,
the effect of Santeria practices on animals, and public
health and safety concerns arising from animal sacrifice,
the district court granted judgment for the City.

The court flatly rejected petitioners’ contention that the
ordinances were passed to discriminate against the church
or to prevent the church from establishing a_ physical
presence in the City. The court found that “|t|here was
no evidence to support this contention.” Pet. App. A28.
The City Council did not intend to single out petitioners
for special treatment; rather, “the council’s intent was
to stop animal sacrifice whatever individual, religion or
cult it was practiced by.” Jd.; see also id. at A49 (“The
ordinances are not targeted at the Church of the Lukumi
Babalu Aye and practitioners of Santeria but are meant
to prohibit all animal sacrifice, whether it be practiced
by an individual, a religion, or a cult”). Likewise, the
court stressed that the ordinances focused on conduct, not
on the beliefs associated with Santeria or any other re-
ligion: “|Tjhe ordinances were not passed to interfere

an apartment building. M. Chazanov, The Slauwghter on Franklin
Street—It's Not a Big Deal’, L.A. Times, Mar. 21, 1991, at
Metro B3. The Chicago police found more than a dozen heads of
goats, chickens, and other animals in a single apartment often
frequented by white-robed worshipers who participated in animal
sacrifices. Police Rescue Animals From Alleged Cult Group, Reuters,
June 9, 1987. In a Falls Church, Virginia cemetery, the site of at
least five other incidents, a grieving widow found a gutted chicken,
stuffed with a rubber doll in a heart-shaped piece of meat, splayed
across her husband's grave and a lamb’s carcass decaying on another
grave. Strange Cemetery Rituals Reported, U.P1.. Nov. 12, 1991.
(All of the articles cited in this footnote are available in LEXIS,
Nexis Library, Omni File).

)

with religious beliefs, but rather to regulate conduct.”
Id. at A23; see also id, at A88 (“the ordinances clearly
are directed at conduct and not belief”).

The district court acknowledged that the Hialeah ordi-
nances do impose a burden on petitioners’ religious prac-
tices. Pet. App. A42. Accordingly, acting prior to this
Court's decision in Smith, the cdurt applied a balancing
test derived from Sherbert v. Verner, 374 U.S. 398
(1963), to determine whether that burden was justified.
The court found that “|t]he ordinances have three com-
pelling secular purposes: 1) to prevent cruelty to animals;
2) to safeguard the health, welfare and safety of the com-
munity; and 3) to prevent the adverse psychological effect
on children exposed to such sacrifices.” Pet. App. A23.
The court concluded that these interests were sufficient to
justify the absolute prohibition on animal sacrifice, and
it further held that “any effort to exempt purportedly
religious conduct from the strictures of the City’s laws
would significantly hinder the attainment of those com-
pelling interests.” Jd. at A47.

D. The Court Of Appeals’ Decision

The court of appeals affirmed. Giving petitioners the
benefit of the doubt, the court of appeals found that the
ordinances satisfied Sherbert’s “arguably stricter stand-
ard”; the court therefore had no occasion to apply this
pee intervening decision in Smith. See Pet. App. A2

n.1."

SUMMARY OF ARGUMENT

I.

State and loeal governments are not obliged by the
First Amendment to create religious exemptions to neutral
and generally applicable regulatory laws. Because of this
principle, the City may lawfully prohibit the ritual or
ceremonial killing of animals. The Hialeah ordinances fall
squarely within the category of neutral and generally ap-

* The court of appeals did not consider the governmental interest
in guaranteeing the welfare of children.

10

plicable laws described in Smith. The ordinances do not
discriminate against religion; rather, they generally pro-
hibit animal saerifiee and other forms of animal cruelty,
regardless of the reasons for such actions,

This result is not changed because the ordinances may
have been adopted in response to petitioners’ announced
intention to conduct animal sacrifice in Hialeah. This
Court has not hesitated to uphold the regulation of socially
harmful conduct even where the conduct is directly or
even exclusively grounded in religion, Nor are the ordi-
nances invalid because of an‘ alleged improper or dis-
eriminatory motive among concerned citizens in Hialeah
who supported the measures. As the district court cor-
rectly found, the purpose of the ordinances was to promote
the health and welfare of the community and to prevent
cruelty to animals. Neither of these purposes singles out
religious practices for special regulation.

II.

Even if the Hialeah ordinances cannot be sustained as
neutral, generally applicable regulatory laws, they should
nevertheless be upheld because of the compelling gov-
ernmental interests that they serve. In addition to the
interest in public health and safety (well deseribed in the
district court’s opinion), the ordinances are grounded in a
fundamental public policy against unnecessary cruelty or
killing of animals. That public policy originated in 17th
century New England, and was manifested, throughout
the 19th century, by the universal enactment of anti-
cruelty statutes (supplemented by a mass of more spe-
cialized state and federal protection statutes). The policy
continues to be reflected in the broad remedial effects that
such laws have had upon animal use, and by the wide-
spread establishment of and public support for humane
societies, many of which have been granted enforcement

_powers. Under this legal regime, the “necessity” of ani-
mal killing has generally been determined by reference
to tangible human needs such as food, the prevention and
treatment of disease, and safety. The public policy against
animal cruelty and unnecessary killing is a hallmark of

11

the progress of American civilization and a part of the
hasie legal and moral fabric of this society. lurthering
that policy clearly constitutes a compelling government
interest.

Moreover, as the courts have recognized for more than
a century, the anti-cruelty statutes were based on the
moral idea that cruelty and unnecessary killing of animals
deadens conscience toward all forms of life, thereby pro-
moting violence toward human beings. The state interest
in protecting animals is therefore closely related to, and
directly serves, the compelling state interest in human
life, safety, and publie order.

ARGUMENT

I. THE HIALEAH ORDINANCES ARE NEUTRAL
AND GENERALLY APPLICABLE REGULATORY
LAWS

A. The Ordinances Prohibit All Animal Sacrifices—
They Do Not Discriminate Against Religion

The challenged ordinances do not apply merely to peti-
tioners or to the Santeria religion or to religious groups;
they impose a neutral and generally applicable ban on
animal sacrifices by anyone. The objectives that the ordi-
nances advance—the enhancement of the community’s
health and welfare and the prevention of cruelty to ani-
mals—are clearly secular. As a result, the ordinances
satisfy the standard set forth by this Court in Smith.

Smith determined that the Free Exercise Clause does
not require a neutral and generally applicable regulatory
law to make special exceptions for religious practices.
Respondents in Smith were fired from their jobs with a
drug rehabilitation organization because they used peyote,
a hallucinogen listed as a controlled substance under both
federal and state law. Respondents ingested peyote as
part of a religious ceremony at their church. Oregon de-
nied respondents unemployment compensation benefits be-
cause respondents were discharged for work-related mis-
conduct. The possession or consumption of peyote was a

12

crime under Oregon’s controlled substance law. _ A;
though the Oregon law had certain secular exceptions,
which regulated the use of narcotics through licensed
practitioners, it provided no exception for the religious
use of peyote. This Court held that the First Amendment
does not require Oregon to provide a “religious practice
exception to the State’s general prohibition against peyote
use.

A law is valid, Smith concluded, when it regulates the
conduct of all citizens without discrimination, and does
not target “religious beliefs, the communication of re-
ligious beliefs, or the raising of one’s children in those
beliefs.” 494 U.S. at 881-82. Any other rule the Court
said, inevitably “would open the prospect of constitu-
tionally required religious exemptions from civic obliga-
tions of almost every conceivable kind... .” ld. at 888.
As an example of the kind of “civic obligations” that
would be affected, the Court listed “social welfare legisla-
tion such as... animal cruelty laws,” and it cited the
district court’s decision in this case. /d. at 889.

Nor would it be possible, the Court said, to limit re-
ligious exemptions solely to conduct that is “central” to
a person’s religion. Such a rule would embroil the courts
unavoidably in efforts to determine how important or
hew central a particular regulated or prohibited practice
is to a person’s religious beliefs. 494 U.S. at 886-87.
Such efforts to measure the “centrality” of particular
practices or beliefs and, on that basis, to require legisla-
tures to carve out personal exceptions to general laws

~—and regulations would, in the Court’s view, merely ex-

acerbate the tension between the First Amendment and
the obligation of state and local governments to regulate
the conduct of their citizens. Jd. at 885.

The Hialeah ordinances, like the state law they adopt,
fit well within the description of “neutral and generally
applicable” regulatory laws.’ The plain meaning of the

7 That ritua! or ceremonial animal killing would be prohibited
by state Jaw, even if the ordinances were invalidated, raises serious
questions about the Church’s standing under Article III of the Con-

13

ordinances’ text proves the point. As the district court
found, the ordinances effect an outright ban on ritualistic
or ceremonial animal killings, whether such acts are per-
formed by a fraternity, a practitioner of voodoo, a satanic
worshiper, a follower of Santeria, or a person who simply
gets his kicks out of sacrificing animals. See Pet. App.
A28 (“the council’s intent was to stop animal sacrifice
whatever individual, religion or cult it was practiced by”).
Contrary to petitioners’ argument, the killer’s motivation
—to be initiated into an organization, to worship, or to
seek a warped sense of pleasure—is irrelevant.

The City’s use of the phrase “ritual or ceremony” is
religiously neutral. As the district court observed, “ ‘rit-
ual’ is not synonymous with ‘religion.’” Pet. App. A39
(citing Jones v. Butz, 374 F. Supp. 1284, 1292-93 (S.D.
N.Y.), aff'd, 419 U.S. 806 (1974)). Nor does the phrase
“ceremony” have a religious significance. The word “cere-
mony,” defined as “a formal act or series of acts pre-
scribed by ritual, protocol, or convention . . . a conven-
tional act of politeness or etiquette . . . an action performed
only formally with no deep significance . . . prescribed
procedures,” Webster’s New Collegiate Dictionary 222
(9th ed. 1990), has been used to describe numerous non-
religious acts, including fraternity and sorority activities,
see State v. Capitol Benefit Ass’n, 21 N.W.2d 890, 892
(lowa 1946), marriages, see Sharon v. Sharon, 16 P. 345,
350 (Cal. 1888), or certain forms of political protest, see
State v. Hodsdon, 289 A.2d 635, 638 (Del. Super. Ct.
1972). .

The word “sacrifice” is also religiously neutral. Con-
trary to petitioners’ claim that “sacrifice is an explicitly
religious practice,” Pet. Br. 16, the word “sacrifice” is
expressly defined in neutral terms in the ordinances. Pet.
Br. Al, A2-A3. Whatever meaning “sacrifice” may have
in the abstract is irrelevant. |

Thus, as the plain meaning of the ordinances confirms.
Hialeah does not ban sacrifices “only when they are
stitution. See Simon v. Eastern Kentucky Welfare Rights Org.,
426 U.S. 26, 37-39 (1976).

14

engaged in for religious reasons, or only because of the
religious belief that they display,” Smith, 494 U.S. at 877;
animal sacrifice is banned altogether as inconsistent with
the community’s values.

B. The Ordinances Do Not Have A Discriminatory
Purpose
1. A Regulatory Law Is Not Discriminatory Simply

Because Its Enactment Is Prompted By The
Emergence Of New Religious Practices

The district court found as a matter of fact that the
challenged ordinances have a neutral and secular purpose.
The circumstances surrounding the enactment of the or-
dinances do not alter that fact. Even if the ordinances
were adopted in response to petitioners’ activities, that
would not mean that the ordinances discriminate against
religion. Lawmakers are empowered to eradicate socially
harmful conduct even if the only people who engage in
the conduct are inspired to do so by religious tenets.

Reynolds v. United States, 98 U.S. 145 (1878), for
example, demonstrates that a regulatory law can pass
muster under the Free Exercise Clause even if it was
promulgated in specific response to moral objections to a
religious practice. The federal statute at issue in Reyn-
olds was enacted to address the social problems associated
with polygamy, which was practiced by members of the
Church of Jesus Christ of Latter-Day Saints. The federal
law specifically annulled an ordinance in which the Terri-
tory of Utah had adopted Mormon laws—including those
encouraging polygamy—as the laws of the Territory.
See Cong. Globe, 37th Cong., Ist Sess. 2506 (1862). This
-€ourt rejected a First Amendment challenge to a convic-
tion for violating the federal prohibition against bigamy:
(T}he only question which remains, is whether those

who make polygamy a part of their religion are ex-
cepted from the operation of the statute. If they are,
then those whe do not make polygamy a part of their
religions belief may be found guilty and punished,
while those who do, must be acquitted and go free.

15

This would be introducing a new element into crimi-
nal law. .. . To permit this would be to make the
professed doctrines of religious belief superior to the
law of the land, and in effect to permit every citizen
to become a law unto himself. Government could exist
only in name under such circumstances.

Reynolds, 98 U.S. at 166-67.

Similarly, there was no legislative need to address snake
handling until such a ceremonial religious practice
emerged. Yet every free exercise challenge to the constitu-
tionality of snake handling laws has been rejected. See,
e.g., Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975), cert.
denied, 424 U.S. 954 (1976); Lawson v. Commonwealth,
164 S.W.2d 972 (Ky. 1942); State v. Massey, 51 S.E.2d
179 (N.C.), appeal dismissed sub nom. Bunn v. North
Carolina, 336 U.S. 942 (1949). Like the ordinances at
issue here, the snake handling laws are generally appli-
cable to the community at large. It is undisputed that
such laws were enacted to regulate socially harmful con-
duct in religious ceremonies, but that fact has not affected
the validity of the statutes. Both Lawson and Massey
have been favorably cited by this Court as a proper exer-
cise of state police power, despite the religious overtones
of the regulations. See Smith, 494 U.S. at 889 (citing
Massey); Abington School District v. Schempp, 374 U.S.
203, 249 n.14 (1963) (Brennan, J., concurring) (citing
Lawson and Massey).

The Sunday closing cases also provide examples of
religiously-motivated, yet generally applicable and neutral
laws. This Court recognized in McGowan v. Maryland,
366 U.S. 420 (1961), that Sunday closing laws evolved
from “wholly religious sanctions.” Jd. at 435. The Mary-
land statute challenged in McGowan could not have been
more explicit in its religious underpinnings; the statute
prohibited work or labor on “the Lord’s day, commonly
called Sunday” or “|{t|he Sabbath day, commonly called
Sunday.” /d. at 453, 456. Notwithstanding the obvious
religious backdrop, this Court held that Sunday closing
laws offend neither the Establishment Clause, see id.

16

at 449. nor the Free Exercise Clause, see Braunfeld v.
Brown, 266 U.S. 599, 603 (1°61) (plurality opinion).

These cases demonstrate that laws can be neutral and
generally applicable, despite the presence of religious con-
duct as a catalyst for the legislation. They establish that
the government always retains a paramount interest in
the preservation of life, health, and safety, and in the
suppression of societal violence, even in the face of con-
duct that is grounded in religious belief.” .

2, The Subjective Intent Of Persons Supporting
The Ordinances Is Irrelevant

The neutral and secular purpose of the Hialeah or-
dinances also is not abrogated by speculation about the
individual motives of persons who sought to prevent ani-
mal sacrifice in their community. By citing to selective
portions of the minutes of the City Council’s meetings,
petitioners misdirect the Court’s inquiry from the pur-
pose of the ordinances to the subjective motivations of con-
cerned citizens and a few Counci! members. This Court,
however, has recognized the important distinction between
leislative purpose and motive. A law appropriating
funds for military weapons, for example, may have the
purpose of advancing national security; a particular legis-
lator voting in favor of the law may be motivated pri-
marily by the opportunity to employ his constituents.
Here, the City’s legitimate secular and neutral purposes
for the ordinances have been established. Speculation
about the circumstances in which the ordinances were

* The Founding Fathers, aware as they were of the potential for
religious belief to be a deep reservoir of justifications for extremes
ef nonconforming behavior, contemplated similiar limits to free
exercise. Jemes Madison believed that religion must be subject to
civil power when it trespasses on private rights or the public peace.
Letter from James Madison to Edward Livingston (July 10, 1822),
in 5 The Founders’ Constitution 105 (P. Kurland and R. Lerner
eds., 1987). Thomas Jefferson's views were in accord. T. Jefferson,
A Bill for Establishing Religious Freedom (June 12, 1779), re-
printed in id. at 77.

17

adopted—including the subjective motives and comments
of individual Council members and citizens—is improper.

The Court has cautioned repeatedly, and in a variety
of contexts, that an otherwise constitutional statute will
not be struck down on the basis of an alleged illicit legis-
lative motive. See Lynch v. Donnelly, 465 U.S. 668, 6890-
81 (1984); Palmer v. Thompson, 403 U.S. 217, 224-25
(1971): United States v. O’Brien, 391 U.S. 367, 383
(1968); Arizona v. California, 283 U.S. 423, 455 n.7
(1931); McCray v. United States, 195 U.S. 27, 56
(1904); Fletcher v. Peck, 10 U.S. 87, 180 (1810). More-
over, as several Justices have observed, the task of dis-
cerning, let alone evaluating, the collection of relevant
motives underlying a law is a hazardous and nearly im-
possible one.” The legislative process is by design one of
compromise, collective decision-making, and mixed moti-
vation. The motives of individual Council members and
citizens who chose to speak on the record cannot now
be ascribed to the full City Council and the Mayor, who
together adopted the ordinance.’ Where legitimate secu-
lar purposes for legislation have been advanced by the
City and affirmed through judicial review in the courts
below, the Court’s inquiry into those purposes is neces-
sarily a deferential one.

C. The City Is Not Obligated By The Constitution To
Consider Religiously Motivated Exceptions To Its
Regulatory Laws

That the City and the State of Florida have condoned
non-sacrificial killings in no way discredits the validity of

® See Edwards. Aguillard, 482 U.S. 578, 636-27 (1987) (Scalia,
J., dissenting): Wallace v. Jaffree, 472 U.S. 38, 86-87 (1985)
(Burger, C.J., dissenting); Palmer v. Thompson, 4023 U.S. at 225
(Black, J.); id. at 229 (Blackmun, J., concurring): O'Brien, 391
U.S. at 383-84 (Warren, C.J.); MeGowen, 366 U.S. at 469 (Frank-
furter, J., concurring).

-

” See, ¢.g., O'Brien, 391 U.S. at 383-84; see also Wisconsin Public
Intervenor v. Mortier, 111 8S. Ct. 2476, 2488 (1991) (Sealia, J.,
concurring): Green v. Bock Laundry Machine Co., 490 US. 504,
527-28 (1989) (Scalia, J., concurring) ; Edwards, 482 US. at 610-14
(Sealia, J., dissenting).

18

the Hialeah ordinances. Petitioners erroneously claim
that if the ordinances recognize secular reasons for kill-
ing animals, then they-must also exempt religious saeri-
fices. Remarkably, petitioners argue that this result is
mandated by Smith's alleged “reinterpretation” of the
unemployment compensation cases.

Smith, however, says just the opposite. Smith teaches
that in promulgating a generally applicable regulation, a
state or local government is not required to provide an
exemption for religious practices.

Respondents in Smith argued that the Oregon drug
law there at issue should be evaluated under the test
derived from-Sherbert v. Verner, 374 U.S. 398 (1963),
i.e.. whether the governmental action substantially bur-
dens a religious practice and, if so, whether the ac-
tion is justified by a compelling governmental interest.
This Court rejected the argument and made clear that
application of the Sherbert test is limited to certain un-
employment compensation cases and eases involving the
Free Exercise Clause in conjunction with other constitu-
tional protections. Smith, 494 U.S. at 881-85. Indeed, as
Smith itself demonstrates, not even all unemployment
compensation cases require the Sherbert test. .

This case does not involve any “hybrid” constitutional
claim. Petitioners challenge the Hialeah ordinances solely
on Free Exercise Clause grounds.

Nor can petitioners succeed in their attempt to extend
the logie of the unemployment compensation cases to ani-
mal cruelty laws. As the Court explained in Smith, the
rationale behind the unemployment compensation cases
is that the “eligibility criteria invite consideration of the
particular circumstances behind an applicant's unemploy-
ment.” 494 U.S. at 884. But neither Florida nor Hialeah
has established any regime for evaluating individual
claims of entitlement to kill or sacrifice animals. The
limited categories of permissible animal killing are not
dependent on personal circumstances.

19

Moreover, each of the examples of authorized animal
killings is a highly regulated activity."' The regulation
of religiously motivated animal killing, by comparison,
could easily run afoul of the Establishment Clause. Gov-
ernmental regulation of ritual or ceremonial animal kill-
ing would “enmesh government in religious affairs,”
Swaggart Ministeries v. California Board of Equaliza-
tion, 493 U.S. 378, 395 (1990), and create “comprehen-
sive measures of surveillance and controls,” Lemon v.
Kurtzman, 403 U.S. 602, 621 (1971), on matters “of deep
religious significance.” Aguilar v. Felton, 473 U.S. 402,
414 (1985) (Powell, J., concurring).

In essence, petitioners seek not merely a religious ex-
emption, but an unregulated, unimpeded, and unprece-
dented license to kill animals. Indeed, if petitioners’ in-
terpretation of Smith were accepted, petitioners’ argu-
ments would lead logically to the conclusion that reli-
giously motivated human sacrifice is protected by the Free
Exercise Clause. Laws forbidding human killing contain
secular exceptions for, infer alia, war, criminal execu-

1! See, e.g.. Humane Methods of Slaughter Act, 7 U.S.C. §§ 1901-
1906 (1988), 9 C.F.R. §§ 302, 313 (1992); Fla. Stat. §§ 828.22-
828.26 (1990) (regulating slaughterhouses); Endangered Species
Act, 16 U.S.C. §§ 1531-1544 (1988); Fla. Stat. §§ 372.663, 372.671,
372.912, 372.99, 372.75, 372.85, 372.651, 372.66, 372.988, 372.5717
(1991 & 1992 Supp.); Fla. Admin. Code Ann. r. 39-13.001 to 39-
13.008, 39-15.004 to 39-16.005, 39-24.002 (regulating hunting, trap-
ping, and fishing); Fla. Stat. §§ 828.05, 828.073, 828.055, 828.058
(1991) (regulating euthanasia); Animal Welfare Act of 1970, 7
U.S.C. §§ 2131-2159 (1992), 9 C.F.R. §§ 2.30-2.38 (1992) (regulating
medical research) ; Fla. Stat. § 482.021, 482.132, 482.071 (regulating
pest control).

That the City and the State of Florida have chosen to regulate
rather than outlaw these other forms of animal killing is of no
consequence. Even if these animal killings posed the same threat to
the community and were performed with the same level of cruelty—
which they do not and are not—the Constitution does not mandate
a wholesale antidote. It is sufficient for the City to address social
ills one at a time. Sree United States v. Lee, 455 U.S. 252, 259
(1982) ; Semler v. Oregon State Bd. of Dental Examiners, 294 U.S.
608, 610-11 (1935).

20

tions, withdrawal of life-support systems, self-defense,
and defense of others. This does not mean, however, that
the State must include religious practice among the accept-
able grounds for killing. See Reynolds, 98 U.S. at 166
(“Suppose one believed that human sacrifices were a nec-
essary part of religious worship, would it seriously be
contended that the civil government under which he lived
could not interfere to prevent a sacrifice?” ).™

Il. PROTECTING ANIMALS FROM UNNECESSARY
KILLING OR CRUELTY IS A COMPELLING STATE

INTEREST
Even assuming that the Hialeah ordinances single out
religion for special treatment, their prohibitions against
sacrificing animals—killings in the context of a public
or private ritual or ceremony—are constitutionally jus-
tified by a compelling government interest in protecting
animals from unnecessary killing or cruelty.

A. Animal Protection Laws Developed More Than A
Century Ago

At common law, there was no crime of animal cruelty
or unnecessary killing. D. Favre and M. Loring, Animal
Law 122 (1983). The common law rule was first abro-
gated in 1641 by the Massachusetts Bay Colony, which,
in its first legal code, “The Body of Liberties,” prohibited
“Tirrany or Crueltie towards any bruite Creatures which

'. Petitioners’ unsupported assertion that “[alny resident of
Hialeah can kill an unwanted pet in his yard or in his home, so
long as he does not do so in a ritual or ceremony,” Pet. Br. 13,
is simply not correct. Speaking as an organization whose regional
office in Tallahassee commonly works with local societies and prose-
cutors in Florida, amicus HSUS can confirm that any such incident
would be investigated and referred to the state's attorney for prose-
cution as an unnecessary killing. By way of example, cases im
Pinellas County involving a farmer killing his horse by hitting it
on the head with a “2 x 4,” the owner of peacocks shooting them in
his backyard, and a homeowner trapping and drowning sqwirrels
have been successfully prosecuted, apparently without reaching the
appellate courts. One's own animals are not excluded from the pro-

tections of § 828.12.

21

are usuallie kept for man’s use.” S. Morison, Builde
the Bay Colony 232 (1930). Thus, the Bay Colony, nd

_ keeping with John Winthrop’s vision of it as a “Citty

upon a hill” with the eyes of all people u i

u pon it, took
Tn place among the governments of the Western world
or having elevated mercy into law.” Jd. at 73: G. Car-
son, Man, Beasts, and Gods 71 ( 1972). :

After the establishment of the United States, sta
the « hme ' the states
and territories, beginning with New York in 1828, pro-
gressively enacted anti-cruelty statutes. The most in-

(4th ed. 1990). New York’s 1867 Statute was landmark
legislation, extending its protection to all living animals,
uetining a broad battery of crimes (ineluding needless

liing), imposing an affirmative duty to provide food and
water to any animals in human custody, and providing
for enforcement by private humane agents. /d. at 6-7.

By 1913, every state and terri of i
cept the Virgin Islands) had aon “i epie eda
laws. Twenty-eight of these Statutes expressly outlawed
not only broad categories of inhumane treatment, but also,
variously Stated, “unnecessary,” “unjustifiable,” or “need-
less” killing of animals. E. Leavitt & D. Halverson
supra, 13-47. In keeping with their broad remedial pur-

of animals employed in agriculture, ranchi

' ° ng, commerce,
and transportation. R. McCrea, The Humane Movement
59-89 (1910). These laws, along with the rise and spread
of sowiet ies for the prevention of cruelty to animals,
worked substantial changes in the moral climate of this
country.

: 22
B. Protecting Animals From Unnecessary Killing Or
Cruelty Is A Fundamental Public Policy
In keeping with a remark attributed to Mahatma

Gandhi that the moral progress of a people can be meas-
ured by its treatment of animals (see J. Wynne-Tyson,
The Extended Circle: A Dictionary of Humane Thought
91 (1985)), a distinctive hallmark of American law and
civilization is the steadily enhanced protection afforded to
animals since colonial times, and the concurrent narrow-
ing of justifications for killing or otherwise exploiting
animals, even for purposes related to tangible, objectively
established human needs—such as food, clothing, and
health and safety. The law has long recognized animal
protection laws as hallmarks of progress and as indica-
tions of a shift of public standards of behavior towards
animals.

It is of common knowledge that within the past few

years, as incident to the progress of civilization, and

as the direct outgrowth of that tender solicitude for

the brute creation which keeps pace with man’s in-

creased knowledge of their life and habits, laws,

such as the one under consideration, have been en-

acted by the various states having the common object

of protecting these dumb creatures from ill treat-

ment by man.
Waters v. People, 46 P. 112, 113 (Colo. 1896); see
Stephens v. State, 3 So. 458 (Miss. 1888) (“laws for the
protection of dumb brutes from cruelty, are, in my judg-
ment, among the best evidence of the justice and benevo-
lence of men”).

The extended comments of the Supreme Court of Ar-

kansas, in construing the “needless killing” provision of

Arkansas’ early animal protection law, confirm the sense -

progress and enl tenment that these laws inspired.
Se diemuen at Ge Guhgmans of ath
cruelty laws, the court noted that the laws:
must be considered wholly irrespective of property,
or of the public peace, or of the inconvenience
nuisances. .. . It is in this view that such acts are

to be construed, to give them, if possible, some bene-
ficent effect, without running into such absurdities
as would in the end, make them mere dead letters
. ... So construed, this class of laws may be found
useful in elevating humanity, by enlargement of its
sympathy with all God’s creatures, and thus society
may be improved.
Grise v. State, 37 Ark. 456, 458-59 (1881).

Thus, the original anti-cruelty laws are evidence of an
important and historie commitment by American society
toward the general protection of animals, traditional
property values and economic interests notwithstanding.
Later courts simply and confidently declared the existence
of a public policy against unnecessary cruelty. See Hu-
mane Soe’y of Rochester ». Lung, 633 F. Supp. 480, 486
(W.D.N.Y. 1986): Commonwealth v. Higgins, 178 NE.
526, 587 (Mass. 1931). The continued advancement of
this policy is reflected in the district court’s opinion. See
Pet. App. A44-A45,

Many states have confirmed and broadened the commit-
ment to this public policy by going beyond the core anti-
cruelty statutes to strike at customs, sports, or practices
once deemed reputable, or at least not illegal, but now
considered unacceptable in the twentieth century ''nited
States."’ Florida’s body of statutory and regulatory law
is itself an example of the breadth of this public policy
at work."* On a national level a series of federal laws

'™ For example, forty-two states now not only outlaw dogfighting
but punish the offense as a felony. Cockfighting is specifically out-
lawed in forty-four states. C. Stevens & D. Halverson, “Fighting
and Baiting,” in Animals and Their Legal Rights 152-53 (4th ed.
1990) —

“Kindness to animals” is an expressly required part of the
public school curriculum. Fla. Stat. Ann. § 233.061 (1992 Supp.).
State educational policy forbids dissertion of live animals as well
as physical harm to animals used in school biology experiments,
encourages observational studies of anumals, and requires live ani-
mals used in schools to be housed and cared for humanely. Fla.
Stat. Ann. § 233.0674 (1929). Sterilization of dogs and cats released
from animal shelters is required to reduce unwanted surplus animals
and the “privation and death” suffered by such animals. Fla. Stat.

24

has clearly established and embodied a federal public pol-
icy in favor of the protection of animals from cruelty.
Underscoring the public policy favoring animal protec-
tion in this country are the legislative grants of special
police powers to private humane societies to enforce the
auti-eruelty laws, in addition to the normal enforcement
jurisdiction residing in local police and prosecutors,’ This
double-layering of enforcement systems Is a further testa-
“ment to the importance of animal protection in the legal
enlture of this country, and is a feature virtually unique
to animal protection law. Indeed, the depth of public
commitment to the efforts begun by the Massachusetts
Bay Colony is evidenced by the public willingness to sup-

Ann. § 822.15 (1992 Supp). Mumame methods of euthanasia of
shelter animals are mandated amid specified. Fla. Stat. Ann. § 828.058
(1992 Supp.). Fighting or towitime animals is a felony. Fla. wo 0
Ann. § 828.122 (1992 Supp.) A\ cin) statate, apparently groun
in the notion that animals, like citiiren, are ultimately wards
the state, provides for seizure and custody of abused or neglect '
animals pending a hearing im court to determine whether the aon r
is able to provide adequately for the animal and is fit to have custe y
of the animal. Fla. Stat. Ann § 828.075 (io Supp.) a +
leghold traps are banned throughout the State. Fla. Admin. Cor
Ann. r. 39-24.002(3) (199%).

1S See, e.g. Animal Welfare Act, T USC. §82131-2159 (1992) ;
Twenty-Eight Hour Law, 4 USC. 6879-74 (1988); Humane
Methods of Slaughter Act, 7 USC. ©? 1901-1906 (5988) ; Horse
Protection Act, 15 U.S.C. &§ D822-D83y (3988) : Wild and yom
Roaming Horses and Burros Act, 16 Sc. $8 2331-L40 (1988
& 1990 Supp.); and Marine Mammals Protection Aet, 16 USC.
$$ 1361-1407 (1988 & 1990 Supp.)

The degree of such private enforcement authority ranges f ww
the power to investigate and collect evidence to assist prosecutorial
efforts. «ce Cal. Corp. Code § 10404 (West 1991), Fla. Stat. Ann.
§ 828.03 (1992 Supp.), to the seizure of abused animals, with ”
without a warrant, eee Fla. Stat, Ann. § 828.07" (199% Supp.) :
N.Y. Agric. & Mkts. Law § 975 (McKinney 1991). Ya. Code Aan.
§ 3.1-796.115 (1991 Supp.), to full investigatory and arrest powers,
wee DC. Code Ann. § 22-806 (1981); N.Y. Aerie. & Mkts. Law
£271 (MeKinney 1991); Va. Code Ann. § 2.7-796.109 (1991 Supp.),
to the hiring of private prosecutors to prosecute animal ernetty
offenders without avsent from district attorneys. See Ohio Rev.
Code Ann. § 2931.18 (1991 Supp.).

port the more than two thousand animal protection or-
ganizations that exist in the United States today.

C, Statutes Protecting Animals Directly Serve The
State Interest In Preserving Public Morals And
Protecting Human Life

Underlying petitioners’ arguments about the compelling
state interest test is the erroneous assumption that a
broad and definite line separates the state interest in
human life, safety, and health from the state interest in
animal life. This assumption in turn lays the ground-
work for a false balancing test wherein any free exercise
interests of any religion must perforce outweigh the state

interest in protecting animals. The courts have not agreed
with that assumption.

For over a century, American jurisprudence has ac-
knowledged that laws protecting animals from cruelty are
justified by the link between such eruelty and violence
among humans. Such laws tend to lessen violence and
brutality in society by suppressing conduct that desensi-
tizes human sympathies and devalues sentient life. In

Stephens v. State, 3 So. 458 (Miss. 1888), the court
noted:

Cruelty to |animals| manifests a vicious and de-
graded nature, and it tends inevitably to cruelty to
men... . Often their beauty, gentleness and fidelity
suggest the reflection that it may have been one of
the purposes of their creation and subordination to
enlarge the sympathies and expand the better feel-
ings of our race. But, however this may be, human
beings should be kind and just to dumb brutes; if
for no other reason than to learn how to be kind and
just to each other.

Id. at 459. Other cases echo this concern. In holding
that setting hounds upon a fox constituted the crime of
abetting unnecessary suffering or cruelty, the Supreme
Judicial Court of Massachusetts stated: “The offense is
against the public morals, which the commission of cruel
and barbarous acts tends to corrupt.” Commonwealth v.

26

Turner, 14 N.E. 130, 132 (Mass. 1887). In an earlier
Massachusetts case, Commonwealth v. Tilton, 49 Mass.
(8 Met.) 232 (1844), Chief Justice Shaw described cock-
ear 1, leading to disorder
sing barbarous and cruel, leading to dis
ny ad and tending to deaden the feelings .
humanity, both in those who participate In it, an
those who witness it.... |
Id. at 234-35; see State v. Porter, 16 S.E. 915 “.—"
1893); Hunt v. State, 29 N.E. 933 (Ind. App. 1892). In
Waters v. People, 46 P. at 113, the Colorado Supreme
Court upheld a conviction for the “needless ay nage
and killing of doves by a gun club, noting that the on )
the state’s anti-cruelty law “is not only to protect t one
animals, but to conserve public morals, both of which are
undoubtedly proper subjects of legislation.

The link between permitting violence toward —
and engendering violence toward human beings, Ww "
nineteenth century jurists readily accepted, is confirmes
by modern sociological research. A growing body ~ he
dence suggests that violence toward animals in chil 100¢
may be a leading indicator and precursor of adult crimi-
nal and antisocial behavior, that animal abuse —o
families often goes hand in hand with spousal and chil
abuse, that permitting a child to abuse animals without
punishment or correction can lead to progressively more
violent and antisocial acts as the child develops and that
children exposed to animal abuse are being taught to
devalue sentient life. See generally American Humane
Association, Report on the Summit on Violence To-
wards Children and Animals (1991); R. Lockwood and
G. Hodge, “The Tangled Web of Animal Abuse: The
Links Between Cruelty to Animals and Human Violence,
31 Humane Society News No. 3, at 10 (Summer 1986).
As the district court found, “[t|he evidence at trial estab-
lished that exposure to the ritual sacrifice of animals im-
perils the psychological well-being of children and in-
creases the likelihood that a child will become more
aggressive and violent.” Pet. App. A44,

27

Thus, the state interest in protecting animals from
cruelty and unnecessary death is part and parcel of the
broader, irreducible, and paramount state interest in
societal peace, order, health, and safety. It is against
that very concrete interest that petitioners’ desire to

kill animals for reasons of abstract religious ideology
must be weighed.

D. The Lawful Purposes For Killing Animals Do Not
Make The Public Policy Against Unnecessary
Killing Or Cruelty Any Less Compelling

Petitioners contend that no generally applicable ban on
killing animals exists in Hialeah or Florida. See Pet. Br.
12, They then list a number of purposes for which Flor-
ida law expressly permits animals to be killed, raise a
number of hypothetical situations involving the killing of
animals for which no reported prosecutions can be
found,'’ and then conclude that religious faith is “almost
the only unacceptable reason” for killing animals in Flor-
ida, arguing both that “[t]his is rank discrimination
against religion,” id. at 13, and that the various lawful
purposes for killing or inflicting pain upon animals de-
cisively undermine any compelling state interest, id. at
37-40. A fair and comprehensive reading of Florida’s
laws relating to animals belies these contentions.

First, Florida’s anti-cruelty statute, Fla. Stat Ann.
§ 828.12, upon which the Hialeah ordinances are based.
is a general ban on killing (as well as tormenting, over-
working, beating, or mutilating) animals in the State,

17 The absence of reported prosecutions of particular kinds of
abuses proves little, since the vast majority of cruelty cases are
resolved at the field level by humane investigators delivering a
warning of possible prosecution or educating the perpetrator. In
1907, amicus ASPCA, out of 6,567 complaints of cruelty received
and investigated, made arrests and prosecutions in 1,015, a typical
percentage. R. McCrea, The Humane Movement, 63-65 (1910).
This pattern continues to hold today. E. Leavitt & D. Halverson,
“Animal Protective Organizations and Law Enforcement Agencies,”

Animals and Their Legal Rights 258 (4th ed. 1990) ; ASPCA, 1990
Annual Report 9.

28

qualified only by reasons of necessity. By force of the
definitional section, Fla. Stat. Ann. § 828.02 (1976), the
bun protects “every living dumb |[ie,, nonhuman |
ereature.” The statute could not be more generally ap-
plicable on its face.

Second, the various de jure exceptions to the general
ban are almost invariably related to basic, tangible, ob-
jectively established human_ needs (food, clothing, the
prevention or treatment of disease), which in turn are
grounded in the same, overriding policy considerations of
public health, safety, and order, in the face of which
religious practices must yield.

Florida, like many other states, excepts otherwise cruel
acts done “in the interest of medical science” from the
coverage of the anti-cruelty statute. Fla. Stat. Ann.
$ $28.02. Such provisions reflect a policy judgment by
the legislatures of the overriding importance of regulated
biomedical research in the prevention and treatment of
diseases, both human and animal.

Hunting is a traditional food-gathering activity that
continues to be practiced as such. Obtaining meat re-
mains the reason most frequently offered by hunters
for this activity.'* The Florida Game and Fresh Water
Fish Commission in Florida (not hunting, fishing, and
trapping per se, as the Church would have it, see
Pet. Br. 12), does have constitutional status by force
of Article IV, $9 of the Florida Constitution. However,
“management, protection, and conservation of wild animal
life and fresh water aquatic life’ are the only purposes
alluded to in §9, not recreation. Indeed, a rationale
for hunting often echoed by state fish and game authori-
ties, and hunting organizations, is the prevention of
crowding, disease, and malnutrition caused by overpopu-
lation. See, e.g., Holbrook Island Sanctuary v. Inhabitants
of Town of Brooksville, 214 A.2d 660, 664 (Me. 1965) ;

18S. Kellert, “Attitudes and Characteristics of Hunters and Anti-
Hunters and Related Policy Suggestions” (paper presented to the
U.S. Fish and Wildlife Service (1976) and to the Hunter Safety
Education Conference, Charleston, S.C. (1978) ).

29

W. Robinson, “The Case for Hunting,” and H. Nelson,
“The Case for Hunting on National Wildlife Refuges,”
in Advances in Animal Welfare Science 1986/87 273 and
283 (M. Fox & L. Mickley eds., 1986). It is thus sim-
plistie to contend that hunting, fishing, and trapping, as
administered by the states, represent a fatal inconsistency
to the existence of a humane public policy. Moreover,
sport hunting has been under increasing attack over the
past thirty years as public sensibilities toward animals
continue to evolve. This phenomenon is itself a testa-
ment to the protective public policy towards animals.

Laws permitting discretionary euthanasia of injured,
sick, or abandoned animals, see e.g., Fla. Stat. Ann.
$§ 828.05, 828.055, 828.058, spring from and promote the
public policy of humane animal treatment. Contrary to
petitioners’ argument, Pet. Br. 13, the purpose of these
statutes—to terminate or prevent animal suffering—is
hardly inconsistent with such a policy. Sections 828.02
and 482.021 allow the extirpation of vermin, and are
obviously grounded in fundamental considerations of
health, safety, and protection of property.

As a reflection of public policy, then, the corpus of
Florida law relating to animals is most accurately de-
scribed as imposing a general condemnation against kill-
ing or abusing animals without necessity—the historic
anti-cruelty statute. That general condemnation has been
reinforced by an accretion of specialized statutes target-
ing particular abuses such as animal fighting, providing
procedures for removing animals from unworthy owners,
administering the shelter system, and mandating humane
education. Deviations from this protective statutory struc-
ture are not arbitrarily permitted, but either relate to
basic human needs—food, clothing, disease prevention and
treatment, protection of property—or spring from the
same public policy of humane treatment—euthanasia of
unwanted or injured animals. Thus, the exceptions serve
the same overriding state interests in human health,
safety, and public order to which religious practices
themselves must yield.

CONCLUSION
The judgment of the court of appeals should be affirmed.

ROGER A. KINDLER *
General Counsel

MELISSA SEIDE RUBIN

KAREN B. FORNEY
THE HUMANE SOCIETY OF

THE UNITED STATES

2100 L Street, N.W.
Washington, D.C. 20037
(202) 452-1100

EUGENE UNDERWOOD, JR.

Vice President and
General Counsel

THE AMERICAN SOCIETY
FOR THE PREVENTION OF
CRUELTY TO ANIMALS

424 East 92nd Street

New York, NY 10128

(212) 876-7700

JOYCE TISCHLER
Executive Director
ANIMAL LEGAL DEFENSE
FUND, INC.
1363 Lincoln Avenue
San Rafael, CA 94901
(415) 459-0885

* Counsel for HSUS and
Special Counsel for
AHA and MSPCA

July 31, 1992

Respectfully submitted,

ANITA W. COUPE

MAUREEN BEYERS

MICHAEL T. MURRAY
MorGAN, LEWIs & BOCKIUS
101 Park Avenue
New York, NY 10178
(212) 309-6000

PETER BUSCEMI **
MorGAN, LEwIs & BOCKIUS
1800 M Street, N.W.
Washington, D.C. 20036
(202) 467-7190

** Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0225%3A19. Public record. Not legal advice.