A Santeria church, a Florida city and the unanimous ruling for minority faiths

Here is a test of whether you believe in religious liberty or merely in your own religion's liberty. A small congregation announces that it will open a house of worship in your city. Its rituals are unfamiliar and, to many neighbors, unsettling. Within days the city council meets in a hurry and passes a package of ordinances. The ordinances never mention the congregation by name. They simply ban the one thing it does.

Would you cheer or would you wince?

If you wince, you have the instinct that produced the Supreme Court's unanimous decision in Church of the Lukumi Babalu Aye v. City of Hialeah in 1993. If you cheer, I would ask you to imagine the same council, the same speed and the same cleverly drafted ordinance aimed at something you do on Sunday.

The terms

Four definitions will carry the argument.

• Neutral means a law that does not target religious practice and does not have the suppression of religion as its object.
• Generally applicable means a law that applies to everyone alike, without exceptions that favor comparable secular conduct over religious conduct.
• Smith is Employment Division v. Smith (1990), which held that a law that is both neutral and generally applicable needs no religious exemption. The Scalia rule is discussed in Employment Division v. Smith and the Scalia rule that still splits conservatives.
• Strict scrutiny is the Court's most demanding test: the law must serve a compelling interest and be narrowly tailored to it.

The structure of the case is simple. Smith said a neutral and generally applicable law passes. Lukumi asked: what if the law is neither? The answer was that it must survive strict scrutiny, and this one did not come close.

The facts: Hialeah, 1987

Santeria is a religion that arose in Cuba, blending the Yoruba traditions carried by enslaved West Africans with elements of Roman Catholicism. Its practice includes animal sacrifice, typically of chickens, pigeons, doves, ducks, guinea pigs, goats, sheep and turtles, offered to the orishas, the spirits at the center of the faith. After a ritual, the animal is usually cooked and eaten. For years, Santeria had been practiced in private homes by members of the Cuban-American community. In 1987, the Church of the Lukumi Babalu Aye, led by its president Ernesto Pichardo, leased land in Hialeah, Florida, a city with a large Cuban-American population, and announced plans to open a church, a school and cultural and other facilities.

The community reacted with alarm. The city council called an emergency public session on June 9, 1987. Members of the public spoke against the church. Council members and the city's own officials made statements, preserved in the record, that suggested the aim was to stop the church from opening. The council passed a resolution declaring that residents and citizens of the city objected to ritual animal sacrifice and expressing the city's concern. Over the following months it passed several ordinances.

The ordinances had a common design. One banned possessing an animal for the purpose of sacrificing it. One banned sacrificing an animal within city limits. The ordinances defined "sacrifice" as 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. Another adopted the state's animal cruelty law. And then came the exceptions: Florida law already allowed hunting, fishing, pest control, euthanasia of stray animals, the slaughter of animals for food, and kosher slaughter, which the city specifically left alone. By the time the drafting was finished, the one thing the ordinances covered, once you took out all of that, was the killing of an animal as part of a religious ritual. Santeria was the only practice left standing in the net.

The church sued in federal court. The district court ruled for the city and the court of appeals affirmed. The Supreme Court agreed to hear the case.

The holding

On June 11, 1993, the Court ruled for the church, and it did so without a single vote against the result. Justice Anthony Kennedy wrote the opinion. The ordinances were not neutral and not generally applicable, so they had to meet strict scrutiny. They failed.

His analysis proceeded in numbered stages.

1. Neutrality. A law lacks neutrality if its object is to infringe upon or restrict practices because of their religious motivation. The Court examined the text and found that the ordinances used the words "sacrifice" and "ritual," which are religious terms. Kennedy said that although a law that is facially neutral may still be a covert targeting, the use of those words in the ordinances' text was telling. More important, the effect was telling. The pattern of what was prohibited and what was exempt made it clear that the ordinances were designed to suppress Santeria and nothing else. The legislative history, including the council's resolution and the statements of members, confirmed it. As Kennedy put it, "the net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice."
2. General applicability. The ordinances also failed this test, because they were both overbroad and underinclusive. The city said it was protecting animals from cruelty and the public from health risks. But the ordinances prohibited only killings in a religious ritual. They allowed hunting, fishing, pest control, and killing of animals for food, and by the city's own definition of sacrifice, a kosher slaughter was not a sacrifice. If the aim was to protect animals, the ordinances left unprotected many more animals killed for secular reasons than for religious ones. If the aim was public health, the city had not regulated the disposal of carcasses from the secular killings. Nothing about the evidence suggested that Santeria sacrifices raised greater health risk than the others. A law that burdens religious conduct while leaving comparable secular conduct untouched is not generally applicable.
3. Strict scrutiny. When the Court applied strict scrutiny, the city's interests were either not compelling as applied or the ordinances were not narrowly tailored to them. The city had many other ways to address health and cruelty concerns, such as generally applicable rules for disposal and slaughter. Kennedy wrote that each of the ordinances "pursues the city's governmental interests only against conduct motivated by religious belief."

That is the holding. It is a classic piece of legal reasoning: apply the test, show where the law fails the test, and rule.

The concurrences

The Court was unanimous in the result, but not in every part of the reasoning, and the concurrences are worth reading.

Justice Scalia, joined by Chief Justice Rehnquist, agreed that the ordinances were invalid but did not join the part of Kennedy's opinion that examined the council members' motives. Scalia's view, consistent with his general approach, was that the Court should judge a law by its text and operation, not by what legislators said about it. The effect of the ordinances was enough; looking into legislative motive was a risky business. This is a classic conservative caution, and I think a sound one. It does not change the result.

Justice Souter concurred in part and in the judgment. He used the occasion to say that Smith should be reconsidered in a future case, since the Court did not need to reach that question here.

Justice Blackmun, joined by Justice O'Connor, concurred in the judgment and wrote that the ordinances should fall under the compelling-interest test, and that the Court's ruling showed how little Smith helped believers, because even a case this easy had to be decided by an exercise in finding the law neither neutral nor general. He believed Smith had been wrongly decided, and the case had been resolved in a way that left that doctrine untouched.

Justice Stevens joined most of Kennedy's opinion. The result across the nine was unanimous, and that is the fact that matters.

Why conservatives should cheer

Now to the point. Let me argue why this is a conservative victory and why the temptation to treat it as a case for "other people's religion" is a mistake.

1. It enforces the principle that the government may not target a faith. The First Amendment says Congress shall make no law prohibiting the free exercise of religion. The Hialeah ordinances prohibited the free exercise of one religion. If a conservative believes the clause means anything, that is the easy case. A reading of free exercise that does not protect an unpopular faith from a targeted ban is not a reading at all.
2. Targeting is a method, and methods get reused. The council did not write "Santeria" in the text. It used neutral-looking words and exceptions to reach one target. That technique, writing a law with a long list of exemptions that happens to leave only the disfavored group exposed, is available to any majority against any minority. It could be used against a Christian school, a traditional wedding vendor or a pregnancy center. The case teaches the rule that guards against all of those: look at the pattern, not only at the label.
3. The decision is a textbook example of the rule of law. Kennedy did not decide that the city should have been more tolerant. He applied a test to an ordinance. The decision turned on what the ordinances did and did not cover. That is how a conservative judiciary is supposed to work.
4. The vote proves the point. The Court that decided Lukumi included Scalia and Rehnquist as well as Blackmun and Stevens. Judges who agreed on almost nothing agreed here. When a case unites the whole Court, it is because the principle at stake is beyond ordinary dispute.
5. The case shows how to limit Smith without overruling it. For conservatives who like the Scalia rule, Lukumi shows its limit: neutrality and general applicability are real requirements and not just labels. For conservatives who do not like the rule, Lukumi shows that even under it, targeted laws fail. In 2021, in Fulton v. City of Philadelphia, and in the pandemic cases described in casinos open, churches capped, and the pandemic rulings that restored worship, the Court returned to Lukumi again and again.

The strongest objection

The strongest objection is the animal-welfare case, and I should state it fairly. A society has a legitimate interest in preventing cruelty to animals. Most Americans find the killing of animals in ritual uncomfortable. A city that regulates how animals are killed is exercising its police power. The objection says the Court should have deferred to Hialeah's judgment on how to handle a matter that is within local authority.

The answer comes in three parts. First, Hialeah's stated interest in animal welfare was undermined by its own exceptions. A city truly concerned about cruelty does not exempt hunting, fishing and commercial slaughter and ban the ritual. Second, the rule the Court applied does not forbid animal-cruelty laws. A general law that applies to everyone, such as a requirement that animals be killed humanely, with no religious carve-out, would be reviewed under Smith and would probably survive. Hialeah could have written that law. It chose not to. Third, courts do not have to accept the stated purpose of a law when the structure of the law and the statements of the lawmakers contradict it. That is ordinary judicial skepticism and not an assault on local democracy.

There is a further point about prudence. Animal sacrifice may be foreign to most of us, but the law that protects it is the law that protects what we do. The Establishment Clause and the Free Exercise Clause were written to keep the state from deciding which faiths are respectable. If the state may decide that one faith's slaughter is a crime while another's is a dinner, it has made itself the judge of religion.

What followed

After the ruling, the case went back and the ordinances were struck. Santeria practitioners in Hialeah kept their right to worship. For the Court, the decision became a standard citation for the rule that a law that targets religion or treats religion worse than comparable secular conduct must meet strict scrutiny. Congress had by then passed the Religious Freedom Restoration Act, signed November 16, 1993, a few months after Lukumi, and in the years since, the federal courts have applied the case in contexts ranging from zoning to health rules.

The case also teaches a political lesson. The council acted in haste, under public pressure, in a single emergency session. That is how many bad laws are made. A conservative, who is supposed to distrust the temper of the moment, should be especially suspicious of a law passed in a rush against a particular target. The Founders knew the danger; Madison in Federalist No. 10 defined a faction as a group of citizens, whether a majority or a minority, "united and actuated by some common impulse of passion, or of interest," against the rights of others. That is the Hialeah council in a sentence.

Our own history shows the same instinct at work against other minorities. Missouri's 1838 order against Latter-day Saints, covered in Missouri's 1838 extermination order and what Latter-day Saints endured, was an extreme version of what happens when a majority decides a minority faith is a threat. Hialeah's version was mild by comparison. The principle that forbids both is the same.

And think about why this matters to a family of believers in the mainstream. Today the Santeria church is the target. Tomorrow a council may decide that the traditional teaching on marriage, or a church's hiring rules, or a school's admission policy, is the thing that offends. The only guarantee that the ordinance will not be written against you is a rule that applies to everyone, including the people you do not like. That is what protecting an unpopular faith protects: every faith.

The case in brief

1. Church of the Lukumi Babalu Aye v. City of Hialeah (June 11, 1993) held unanimously that Hialeah's 1987 ordinances against ritual animal sacrifice violated the Free Exercise Clause.
2. The ordinances were neither neutral nor generally applicable: they were drafted with exemptions for hunting, fishing, pest control, food slaughter and kosher slaughter, leaving Santeria rituals as the only thing covered.
3. Under strict scrutiny, the city's stated interests in animal welfare and public health could not justify a law that burdened only religious killings.
4. Conservatives should cheer, because the case enforces the plain text of the First Amendment, shows how targeting works as a method, and protects the same principle that protects every believer.
5. The case does not forbid generally applicable animal-cruelty laws. It forbids singling out a faith.

What you can do: read the minutes of your own city council or county board for the last three ordinances touching houses of worship, and ask whether any of them carves out secular exceptions while burdening religious ones.