In the 1930s, a white, well off American citizen, well travelled and sympathetic to the culture of Cuba, might have run across ñañigos.
They are the devotees of voodooistic worship who celebrate their orgiastic rites in remote huts or in forest retreats. The appeal of this cult is, of course, to the lowest type of intellect and the basest passions. Practically all of the celebrants are negroes, though a few degenerate whites mingle with them. . . . But the black gods of Africa constitute the real passion of most ñañigos. While they respect the Christian God and Jesus and the Virgin. . . it is the jungle gods that drive them to ecstasies. Sacrifice occupies an important place in their rites and until fairly recently it was not at all uncommon for them to sacrifice white infants at their alters to win the favor of black gods. Fear of the police has now all but stamped out this practice in Cuba. One still hears horrible rumors of the occasional isolated cases, but in general chickens are now sacrificed in place of stolen babies. (Clark 1936, 274-75).This American view reflected the thinking of important elements of the social and cultural elites in Cuba itself—white, economically well off, politically powerful, influential, well educated and well travelled and formally Catholic for the most part. Between 1959 and 1980 waves of all strata of Cuban society migrated to the United States, many settling in South Florida. They brought little with them but themselves and the socio-cultural norms that had marked them as Cuban, including ideas about race, class, religion and the use of state power to protect those norms.
But in the United States, race, class, ethnicity, migration, assimilation, and religion proved to be a highly combustible mix. And it was that mix which was ignited in 1987, when a group of Cuban immigrants who had stepped into elective leadership roles in a predominantly Latino (and principally Cuban) city—Hialeah, Florida—sought to assert their legislative authority to apply the standards of their country of origin to the residents of that city. The flash point was religion, with a healthy dose of class, race, and assimilation thrown in.
The United States has been fertile soil for the growth of many religious sects. It has also been an important place for the birth of new forms of religious expression—from new sects of Judaism, Buddhism, Hinduism and Christianity, to entirely new forms of worship as either organized religious communities, like Scientology, or more amorphous sects. Another set of ancient religions have flourished here as well—the religions of Africa, brought to the Americas on the slave ships from Africa. These religions, derived principally from those of the Yoruba in present day Nigeria and the Bantu peoples of the Kongo regions, in present day Republic of the Congo, were preserved, reordered and enriched by a contact with the Catholicism of the Spanish and Portuguese and the Protestantism of the Americans to produce new and powerful religious communities that flourished in the Caribbean and Latin America. Yet, like the Protestants dissenters of 17th century England, the practitioners of what became Santería, Lukumi, Umbanda, Candamblé, Palo Mayombé, Voodoo and other sects of Amero-African religions, were sometimes and to different degrees persecuted or more often than not driven underground in many places. In others they were left unmolested but marginalized. Arriving in the United States with other migrants from those regions, members of these religious communities each found in this country a place where their religions could flourish openly. But not without struggle.
This is the story of the way that the practitioners of one sect of Santería or Lukumi, the devotees of the deity or guardian spirit (or in the language of Santería, the orisha) Babalu Aye, moved from persecution and secrecy in Cuba to a begrudging tolerance in the United States. In one respect it is the story of conflict within a well organized, sophisticated and ancient ethnic community whose foundations became deeply affected by the political values of a host nation. But it is also the story of assimilation, the religious politics of race, and the reordering of the values of immigrant communities within the United States. Most importantly, though, it is the story of the way in which an intra-ethnic religious dispute served as the basis for a great movement in the discussion about the character of an important constitutional value within the national community. The followers of the path of the Babalu Aye achieved something remarkable from out of a modest church in a small city in South Florida—an important turning point for the protection of religious expression in the United States available to all religious sects.
A. Why this case is important then and now.
Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993) was important then as the first application of the newly announced and highly controversial analytical framework of Employment Division v. Smith (1990), in which the Supreme Court revamped the standard for determining whether governmental action violates the “Free Exercise” Clause of the U.S. Constitution.
The case is still important as the source for the current legal framework—neutrality and general applicability—for determining whether the rational basis standard or the strict scrutiny standard applies to analyze claims under the Free Exercise Clause. It also serves to influence application of statutory protections of “free exercise” under federal and state law.
B. Setting the Stage: Environment of the Times: Political , Legal, Cultural and Economic.
The religions brought to Latin America by African slaves were as varied as the regions from which slaves originated. In the Caribbean the religions essentially became grouped in two major traditions. One, known as Santería or Lukumi or Regla de Osha’s origin can be traced to a historical accommodation between Yoruba and Catholicism in the slave culture of Cuba. The Yoruba people live in what is now the southwestern part of Nigeria and eastern Benin. The other, known as Palo, Palo Mayombé and other names can be traced to the Kongo regions of central Africa and the Luba, Kuba, and other Bantu speaking peoples.
In the New World, Spanish colonists, who were overwhelmingly Catholic, showed little tolerance of Africans religiosity, considering it to be form of paganism. As a consequences, African slaves seeking to preserve what they could hide the oral traditions and practices of their faith within the religion of their European masters. In the parlance of academics and theologians, the African religions brought from Africa were syncretized principally with the outward forms of Roman Catholicism. The idea was to hide what could be preserved of the original religions of the slaves within the iconography and practices of the colonial masters. Though outwardly Catholic, the syncretization was based on African religious conceptions rather than Christian notions of theology or structures of hierarchies of divine power. Thus, for example, male deities or guardians (orishas) could be syncretized with female saints—the connection was the relation of the life or symbolism of that saint with the powers traditionally associated with an African guardian or deity in African theology. As a result, the name given to the religion in the Caribbean, Santería—Spanish for “saint worship”—refers to the outward appearance rather than to the content and cosmology of the religion itself. The name Santería hides as much as it reveals—paralleling the way the syncretism hid as well as revealed the religious practices of Caribbean slaves and their descendants. In this new form, and when practiced discretely by slaves and their descendants, these African religions developed a rich oral tradition and important institutional structures. Santería, Lukumi or Osha was eventually adopted by portions of the white population in Cuba, though usually discretely. Membership rolls were kept only in memory, however, since Osha continued to be a loosely organized religion practiced in private homes rather than in churches or public institutions of any kind. As it had in Africa, its rituals, beliefs and traditions, including its core ideas and practices, have passed from generation to generation mainly as oral history.
As a primarily oral tradition based religion, much of Santería cosmology, theology and practice structures evidence some variation among members of the community. Because there is no strongly centralized governance structure, further variation between practitioners and over time emerged. But there are a set of core beliefs for which there is general agreement. Within the Santería community believe in a hierarchy of divinities—orishas—over which presides a higher power, Olodumare (sometimes Olorun, Eledumare, Eleda and Olofin-Orun). The orishas represent specific manifestations of Olodumare, and are powerful as such within the scope of their powers. In the Caribbean region, the most important orishas (and their syncretized “saints”) attracted large communities of worshipers. Each of these orishas have many aspects (“caminos”) that vary according to the religious community. The usual pantheon of important orishas include:
Elegua/Esu/Legua, represented by “El Nino de Atocha" or Saint Anthony, guardian of the crossroads, beginnings and opportunity; he is the necessary intercessor between people and orishas, but he is also a trickster, a causer of confusion, and the messenger to God;
Obatala, represented by an aspect of the Virgin Mary, “Our Lady of Mercy,” is the guardian of creativity and justice, he is sometimes said to have been charged with the making of humans as a punishment for being drunk when he should have been making the world;
Orunmila, divination and wisdom through his priests (santeros or babalawos);
Ochosi, represented by Saint Norbert, is the guardian of the hunt, dispenser of justice;
Ogun, represented by Saint Peter or Saint Santiago, is the guardian of justice and oaths, related to industry and work, he is sometimes associated with prisons;
Oshun, represented as an aspect of the Virgin Mary, “La Virgen de la Caridad del Cobre” (and in this aspect is revered as the patron of Cuba), is guardian of rivers and fresh waters, has been given a variety of aspects, including curing the sick, fertility, love luxury, and money;
Shango, is represented by Saint Barbara, is the guardian of thunder and lightening, the warrior orisha;
Yemaya, represented as aspect of the Virgin Mary—“La Virgen de Regla” (and an important figure in Cuban Catholicism), is the guardian of the oceans and seas, protector of the family, mother of life;
Oya, the unseen guardian of the wind, weather, and cemeteries, she is connected sometimes to ancestors, watcher of the doorway between life and death;
Babalu Aye, represented by St. Lazarus, is the guardian of healing, protection against infections and epidemics.
The foundations of Santería are grounded in the belief in a strong personal relationship between an individual and their guardian orisha(s). The relationship between individual and orisha must be nurtured through worship. In addition, orishas can be invoked through appropriate ritual when their particular powers are required to aid the suppliant. Thus, for example, individuals seeking protection against epidemics, like tuberculosis, might seek to invoke the aid of the orishas Babalu Aye. The invocation of orishas and their worship requires ritual, offerings and sacrifice. Communication with the orishas, to determine their will, or to seek their advice or prediction for the future, is accomplished through divination. For that purpose a variety of instruments might be used—through common are pieces of coconut or cowerie shells. The mechanics of divination can range from simple throws and readings to complex procedures under the auspices of an appropriate priest.
The forms of worship, invocation, and divination are undertaken through the offices of a priest (known as a santero or a babalawo) dedicated to the particular orishas. There is a rich and complex oral tradition on the steps to priesthood, the limitations on candidacy for certain priestly offices the rituals to be used to confer office, and the hierarchy of priestly authority. Generally there is a twelve month period in which the person seeking priesthood must comply with a number of ritual commands. The initiate (iyawó) is usually compelled to wear white and refrain from certain activity—both in his personal and religious life. The Church of the Babalu Aye in Hialeah had issued in June 1989, a “Decree on Standards Governing Iyawó Vestments and Safety Matters,” in which the traditional rituals were standardized and elaborated for use by its adherents. However, written statements like those produced by the Church of the Babalu Aye are rare within Santería communities. Many still fiercely adhere to the oral traditions and look with suspicion on attempts to reduce the faith to writing.
Cubans fleeing the country in the aftermath of the 1959 Cuban Revolution first brought significant numbers of members of Santería, Lukumi or Osha communities to the United States. Their numbers were considerably increased with the arrival of larger numbers of working class Cubans ands Afro-Cubans to South Florida in the wake of the Mariel boatlift of the late 1970s. This second wave of immigrants brought Cubans from all classes in Cuban life, and included substantial numbers of Osha practitioners (and, to the faithful, the orishas who followed the priests). Although the religion has been practiced underground, the region was covered with evidence of its existence: the remains of animals were found in streets and parks and there were many shops, called botanicas, that sold ritual paraphernalia and filled prescriptions from Santería priests.
C. The Players:
1. The Plaintiffs. Ernesto Pichardo and the Church of the Lukumi Babalu Aye brought the lawsuit.
A. Ernesto Pichardo: According to accounts of his life currently circulating (Frohock 2001: Fausset 2008), Ernesto Pichardo was born in Havana, Cuba to a white middle-class family. His mother was introduced to Osha (a religion known also as Lukumí or Santería) as a child through a first generation olorisha (priest) who was the family cook. The father's side of Ernesto’s family was socially prominent with an economic history that included ownership of some sugar plantations. They were known for being active in both Catholic and Spiritualism groups. Pichardo recalls no conflict in these religious activities, except that the Spiritualism activities were kept private for social reasons. One story has it that the family’s move away from its original faith to Lukumi began following a miscarriage during Pichardo’s mother’s second pregnancy. The doctors were unable to treat her toxic reactions and warned her that a third pregnancy could kill her. This episode helped turn the family towards the Osha as a source of protection and guidance, but discretely. The family moved to the United States in the early 1960s and settled in the "Little Havana" area of Miami, an area with a great concentration of Cuban immigrants, especially recent arrivals. Like many of these immigrants, when the family acquired sufficient funds they sought to better their lives in the suburbs. In the case of the Pichardo family, that led Ernesto to Hialeah. It was here that Pichardo first encountered Santería for himself and exhibited those personal characteristics that would mark him as the head of the Church of the Lukumi Babalu Aye. “At the time, administrators were trying to drum him out of high school for associating with the wrong crowd. They eventually succeeded. He never finished.” (Fausset 2008). For Pichardo, the entry into the religious life was the great shaper of his life. "My entire life as I knew it was disrupted at age 16," he said. "And all of a sudden, here's this explanation for everything." (Fausset 2008). The reaction to his religious choice had social consequences. “His friends' parents, he said, shunned him for joining what they considered a cult.” And these consequences have racial implications as well. Even years after the litigation, Americans, like Cubans tend to see Santería in racial terms. “Pichardo sees nothing odd about a white man defending a religion with roots in West Africa. Many whites have adopted Santería since slaves imported it to the New World.” (Fausset 2008). Pichardo and his brother Fernando served as the founders of the Church of the Lukumi Bablu Aye in Hialeah in 1973. At the time of the lawsuit, Pichardo served as president of the Church, and was also the Church's priest with the religious title of Italero, “the second highest in the Santería faith.” (Church of the Lukumi Babalu Aye, Inc. v. Hialeah 1993, 525).
B. The Church of the Lukumi Babalu Aye. The Church of the Lukumi Babalu Aye was incorporated by Ernesto Pichardo in 1973. (Church of the Lukumi Babalu Aye, Inc. v. Hialeah 1993, 525). According to its website, the Church claimed to be the first of its kind established in the United States as a religious corporation. (Church of the Lukumi Babalu Aye CLBA History). It began its operations in earnest in the 1980s, when it sought to bring the practices of Santería into the open and demand treatment like other mainstream religious communities. The Church came to the attention of city officials in 1987, when it took possession of the site of a former garage in Hialeah which it intended for its church, and sought relevant operating permits. (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 1989, 1477-78). In 1988, during the pendency of the litigation, the Church moved its headquarters to a site across the street from Hialeah City Hall, which became the site of much highly publicized political activity, including protests in support and against the Church by religious, animal rights and other groups. According to the Church, “Pending litigation in Federal Court, this location was vandalized numerous times. Law Enforcement entered Church premises daily. Members were stopped leaving the Church. Christian denominations protested frequently, and its activists implemented a hate campaign, joined by several animal rights organizations.” (Church of the Lukumi Babalu Aye, History CLBA Resume 1974-1999).
2. The Defendants— Named as defendants were city of Hialeah and its mayor and members of its city council in their individual capacities.
A. The City of Hialeah: In its own words:
From a population of 1,500 in 1925, Hialeah has grown at a rate faster than most of the ten largest cities in the State of Florida since the 1960’s and holds the rank of Florida’s fifth-largest city, with more than 236,000 residents. The city is also one of the largest employers in Dade County. Predominantly Hispanic, Hialeah residents have assimilated their cultural heritage and traditions into a hard-working, diverse community proud of its ethnicity, as well as its family oriented neighborhoods. (City of Hialeah website).
The City occupies about 20 square miles in northwest Miami-Dade County. It is organized on a strong mayor model, with a city council of seven members. In the mid to late 1980s, the City of Hialeah was on the receiving end og unfavorable scrutiny by the local major South Florida newspaper, the Miami Herald. In 1985, for example, the Miami Herald ran a story suggesting some unsavory characteristics of city government:
“In Hialeah, the self-proclaimed City of Progress, public office often means personal profit. It is a city where government decisions are clouded by open talk of bribery. Councilmen often use their votes to grant favors. Conflicts of interest are commonplace. It is a city where long-range development plans are altered regularly, often enriching city officials, their relatives and business associates.” (Lowe & Betancourt 1985).
The local papers reported that the focus of investigation at the time involved land deals and zoning issues. (Id.). The media characterized Hialeah, at the time, as a working class Hispanic city, a place where Cuban immigrants looking to improve their lives nd preserve the culture of their homeland might move. (Cubanization Was Foreshadowed Early, 1999). But also a City where public officials might too closely mix personal and pubic affairs. (Mayor and Council are Indicted in Hialeah 1990; Hialeah Journal, Where Politics is Down and Dirty 1991).
B. The Mayor of Hialeah: Raul Martinez, was the first Cuban-born mayor of Hialeah. (Hialeah Journal, Where Politics is Down and Dirty 1991). During his tenure there had been allegations of misconduct. Those allegations blossomed into an indictment. In March, 1991, as the case was winding it way up to the Supreme Court, the mayor was convicted of extortion and racketeering in after a jury found he had accepted cash and property from land developers. (U.S. v. Martinez 1994).
C. The Hialeah City Council: The members of the Hialeah City Council both reflected the diversity of the community and functioned as a place where the traditionalism of the City’s constituents could be given legal expression.
i. Silvio Cardoso: Cardoso immigrated to Hialeah from Cuba with his family at age five. (Bulecza). He received his education from public schools and later earned a full scholarship to the University of Miami (UM) to play football, where he was a running back from 1970-1974. Cardoso has been in the building business since 1972, operating a residential housing construction enterprise, United Homes International. His business focused on starter homes, town homes. At the time of the litigation he was quoted as saying “They (Santería practitioners) are in violation of everything this country stands for. I believe this council has the authority to stop these people," in regards his position on the Lukumi Babalu Aye matter. (Dickerson 1987).
ii. Salvatore D'Angelo: Mr. D’Angelo was a real estate agent with offices in Hialeah.
iii. Herman Echevarria: Mr. Echevarria was in the marketing and advertising business, an enterprise he was setting up with others outside of Hialeah city government during the course of the lawdsuit.
iv. Julio Martinez: Julio Martinez was the Hialeah City Council President at the time the Mayor Martinez and Councilman Mejides were indicted. (Mayor and Councilmen are Indicted in Hialeah 1990). He was then sworn in as Acting Mayor. Two of his supporters found cow's tongues at their office door, another received a fish head in his mailbox, and a severed and muzzled goat's head was discovered in a police department parking lot. (Hialeah Journal Where Politics is Down and Dirty 1991). During his first few days in office, someone broke into Hialeah City Hall and left a mysterious message on the door to acting Mayor Julio Martinez's office: two rows of nails, staggered one under the other and another set forming a triangle. (Hialeah’s Mayor Gets Bizarre Message 1991). "Someone who is supposed to know about these things says it's the devil's triangle -- whatever that means," Martinez said. (Id.). The intruder, who apparently had a key to City Hall, also ripped off Martinez's nameplate from the door and spread some white cream over his secretary's phone. This came a week after someone spray-painted City Hall with a message urging the return of then suspended Mayor Raul Martinez. And no wonder; Martinez had been the council member that introduced the ordinances at issue in the case and had heatedly debated Pichardo on local radio. (Burgos & Harrison 1987). He was quoted in the local paper as saying at the time: “I personally do not want to go back in time. . . . These practices belong in the 14th or 15th century. Nighty-nine percent of the people in this city don't agree with sacrificing an animal to a god. . . . I represent those people.” (Id.).
v. Andres Mejides: Mr. Mejides was a land developer in Hialeah during the 1980s. (Lowe & Betancourt 1985). He was indicted by a Federal grand jury on charges that he conspired with Raul Martinez to extort payoffs from developers in exchange for approving zoning changes. (Mayor and a Councilman are Indicted in Hialeah 1990).
vi. Paulino Nunez: Mr. Nuñez came to Hialeah with the first strokes of revolution in 1959 and became the city's fifth Cuban councilman in 1981. (Cubanization Was Foreshadowed Early 1999). Prior to his election he had served as a member of the Hialeah Housing Authority Board. (Lowe & Betancourt 1985).
vi. Ray Robinson: Was a close friend of Hialeah Mayor Martinez. In the 1980s he had served as a vice president of a local bank. (Lowe & Betancourt 1985). He played a minor role in the corruption case against the Mayor. (U.S. v. Martinez 1994).
D. Setting the Stage: The Dispute.
Mr. Ernesto Pichardo, an Oba priest, founded and incorporated the Church of Lukumi Babalu Aye, as a Florida non-profit corporation in 1973. (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 1988). In April 1987, Mr. Pichardo, attempted to establish and open site in the city of Hialeah, Fl, where the Santería religion could be practiced. Mr. Pichardo indicated that the Church's goal was to bring the practice of the Santería faith, including its ritual of animal sacrifice, into the open. The Church began the process of obtaining utility service and receiving the necessary licensing, inspection, and zoning approvals. Although the Church's efforts at obtaining the necessary licenses and permits were far from smooth, it appears that it received all needed approvals by early August 1987.
The prospect of a Santería church was distressing to many members of the Hialeah community. The local paper reported that the “Hialeah City Council and Mayor Raul Martinez passed the laws after they were flooded with complaints from residents who thought sacrificing animals is barbaric. Church leaders contend the ordinances abridge their religious freedom and has hurt the church financially.” (Hialeah City Council Tentatively Approves Property Tax, Garbage Fee Hikes 1988). Lurking beneath was a prejudice against the African origins of the religion and the race of many of its practitioners. The local newspaper, the Miami Herald, covered the event in a series of articles in 1987. (May 1987). In this atmosphere, that the City Council first acted in an emergency session in June 1987.
The city council adopted Resolution 87-66, which noted the “concern” expressed by residents of the city “that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and declared that “[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety.” The council had also approved an emergency ordinance, Ordinance 87-40, which incorporated in full, except as to penalty, Florida's animal cruelty laws. (Fla.Stat. ch. 828 (1987). Among other things, the incorporated state law subjected to criminal punishment “[w]ho[m]ever ... unnecessarily or cruelly ... kills any animal.” (Fla. Stat. § 828.12).
But the city council wasn’t done. It wanted to take stronger action but thought it was prohibited from enacting more detailed animal cruelty statutes by Florida law. The city council sought to undertake further legislative action, but Florida law prohibits a municipality from enacting legislation relating to animal cruelty that conflicts with state law. (Fla. Stat. § 828.27(4)). To obtain clarification, Hialeah's city attorney requested an opinion from the attorney general of Florida as to whether § 828.12 prohibited “a religious group from sacrificing an animal in a religious ritual or practice” and whether the city could enact ordinances “making religious animal sacrifice unlawful.” The attorney general responded in mid-July. Te office fo the Attorney General concluded that the “ritual sacrifice of animals for purposes other than food consumption” was not a “necessary” killing and so was prohibited by § 828.12. (State of Florida, Annual Report of the Attorney General 1998, 146, 147, 149). The Attorney General’s Report appeared to define “unnecessary” as “done without any useful motive, in a spirit of wanton cruelty or for the mere pleasure of destruction without being in any sense beneficial or useful to the person killing the animal.” (Id., 149, n. 11). He advised that religious animal sacrifice was against state law, so that a city ordinance prohibiting it would not be in conflict. (Id., 151).
On the basis of this response, the city council adopted Resolution 87-90. The resolution drew attention to the Council’s sense of City residents’ “great concern regarding the possibility of public ritualistic animal sacrifices” and drew attention to the state-law animal cruelty prohibition. The resolution emphasized Hialeah’s policy “to oppose the ritual sacrifices of animals,” and announced that any person or organization practicing animal sacrifice “will be prosecuted.”
In September 1987, the city council adopted three substantive ordinances addressing the issue of religious animal sacrifice. Ordinance 87-52 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,” and prohibited owning or possessing an animal “intending to use such animal for food purposes.” It restricted application of this prohibition, however, to any individual or group that “kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed.” The ordinance contained an exemption for slaughtering by “licensed establishment[s]” of animals “specifically raised for food purposes.” Declaring, moreover, that the city council “has determined that the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community,” the city council adopted Ordinance 87-71. That ordinance defined sacrifice as had Ordinance 87-52, and then provided that “[i]t shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida.”
The final Ordinance, 87-72, defined “slaughter” as “the killing of animals for food” and prohibited slaughter outside of areas zoned for slaughterhouse use. The ordinance provided an exemption, however, for the slaughter or processing for sale of “small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law.” All ordinances and resolutions passed the city council by unanimous vote. Violations of each of the four ordinances were punishable by fines not exceeding $500 or imprisonment not exceeding 60 days, or both.
The city maintained that it enacted the ordinances primarily to prevent cruelty to animals. Hialeah officials also alleged that they were concerned about public health because of the disposal of animal remains. The Hialeah law specifically prohibited the sacrifice of any animal, which it defined as killing ''in a public or private ritual not for the primary purpose of food consumption.'' The city argued that the effect of the law was not to single out Santería, which could make the measure unconstitutional. Rather, it was intended only to curb abuse of animals.
Mr. Pichardo and his church alleged that Hialeah enacted the ordinances to keep the followers of Santería from practicing their religion. Mr. Pichardo argued that Hialeah officials were not concerned about cruelty to animals but about the city's image. When Santería sacrifices and rituals were conducted discretely and out of the public eye, no official seemed to mind. It was only when the Church sought to come out of the shadows that the city officials acted.
1. Pichardo Versus the City Round 1 (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 688 F. Supp. 1522 (S.D. Fla. 1988): With the positions now starkly drawn, Mr. Pichardo and the Church acted. They filed suit against the City of Hialeah, and the mayor and city council in their individual capacities. The suit alleged deprivation of the church’s First, Fourth, and Fourteenth Amendment rights, arising out of enactments of ordinances and adoption of resolutions relating to ritual sacrifice of animals, and certain actions taken by police, the city sanitation and electric companies.
In support of its suit, the plaintiffs emphasized the conduct of city officials suggesting bias against their religion. These included: causing a city council meeting to be held as to the issue of granting the church a city permit to use land as a place of worship; establishing a police perimeter at the boundaries and entrance to the church; publicly inciting persons to appear at a public hearing of the City Council for the purpose of presenting protests against the Santería religion; adopting Florida Statutes Chapter 828 (Cruelty to Animals) as an emergency city ordinance; passing resolution number 87-66, reiterating the City of Hialeah’s commitment to a prohibition of acts of any and all religious groups which are inconsistent with public morals, peace or safety; passing resolution 87-90, declaring a policy to oppose ritual sacrifice of animals; and proposing three criminal ordinances relating to the possession, sacrifice, and slaughter of animals within the City of Hialeah, one of which became a law.
Because the petitioner sought relief against the councilmen and the mayor in their individual capacities, the case turned on whether the acts complained of where legislative. Defendants would be absolutely immune from prosecution if the acts were deemed legislative. In deciding whether the passage of the resolutions was a legislative act, the court had to determine whether the action resulted from the nature and execution of the official’s legislative duties. A legislative act involves public-policy making as opposed to mere administrative application of existing policies.
The court held that the enactment of the ordinances was in accordance with a legislative function thus providing absolute immunity to both the councilmen and the mayor. Similarly the court held that in order to impose personal liability on the defendants for the acts of the police and the city sanitation, it was not enough to plead that they may have created an atmosphere antagonistic to Santería worshippers through their adopted legislative ordinances and resolutions. Rather, plaintiff had to show some causal connection between an act of the official and the alleged violations. The defendants could not be held liable as supervisory officials for the actions of the police and city sanitation unless they directed such actions or had personal knowledge of the wrongdoings.
The court thus held that the defendants were entitled to absolute legislative immunity in their individual capacities for their activities and dismissed the suit. In reaching this conclusion, however, the court did not decide whether Plaintiff’s first, fourth and fourteenth amendment rights were violated by any of the alleged activities. The court also did not decide whether the City of Hialeah could be held liable for the activities.
2. Pichardo Versus The City Round 2 (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 723 F. Supp. 1467 (S.D. Fla., 1989): After being unsuccessful in his attempt to hold the council members and mayor personally liable for their actions, Mr. Pichardo and the Church filed suit under 42 U.S. C. §1983 alleging that the city’s enactment of ordinances regulating animal sacrifice violated their rights under the Free Exercise Clause of the First Amendment. The case was tried before Judge Spellman.
The court embraced the Cuban elite’s traditional views of Santería in framing its analysis of the constitutional claims. Judge Spellman explained
Santeria remains an underground religion and the practice was not, and is not today, socially accepted by the majority of the Cuban population. Additionally, Santeria has lost some contact with its own past in Cuba. Most religious activity takes place in individual homes by extended family groups. There is little or no intermingling of the groups, and few practitioners know others outside their own group that practice Santeria. Santeria has remained underground because most practitioners fear that they will be discriminated against. The religion has taken on a private, personal tone that is very different than the way that it is practiced in Nigeria. Although Pichardo feels that the religion would become more open if the Church was allowed to practice its rituals openly, Dr. Lisandro Perez, a sociologist, testified that in his opinion, the outcome of this case would not necessarily affect the degree of which Santeria was practiced in private. (Church of the Lukumi Babalu Aye, Inc. v. Hialeah 1989, 1470).
It was on the basis of this understanding that Judge Spellman sought to apply the Eleventh Circuit’s version of the pre-Smith balancing standard for considering the Free Exercise claims. (Grosz v. City of Miami Beach 1983). On that basis, the district court held that although the ordinances were not religiously neutral but were intended to stop the practice of animal sacrifice in the City of Hialeah, the ordinances were not passed to interfere with religious beliefs, but rather to regulate conduct. The court held that the ordinances had three compelling secular purposes: (1) to prevent cruelty to animals; (2) to safeguard the health, welfare and safety of the community; and (3) to prevent the adverse psychological effect on children exposed to such sacrifices. The court also dismissed Plaintiff’s §1983 claim because the government, as an entity, can only be held liable when execution of a municipality’s official policy or custom inflicts the alleged injury.
The Court of Appeals for the Eleventh Circuit affirmed the district court’s decision in a “Table of Decisions Without Reported Opinions.” (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 1991). Interestingly, the appellate court panel found it unnecessary to consider the effect of Employment Division v. Smith (1990), delivered after the district court decision, because, according to the petitioners, “the District Court “employed an arguably stricter standard” than that applied in Smith.” (Church of the Lukumi Babalu Aye v. City of Hialeah 1993, 529, citing App. to Pet. for Cert. A2, n. 1). The Supreme Court granted certiorari.
E. Rules of law that emerged from the case.
Church of the Lukumi Babalu Aye v. City of Hialeah (1993) provides a basis for applying the baseline rule established in Employment Division v. Smith, 494 U.S. 872 (1990) by emphasizing the “neutrality” and “general applicability” limits of Smith. In effect, while Smith accords free exercise protection against neutral and generally applicable laws only on the basis of the lenient “reasonable basis” test, Lukumi Babalu Aye imposes a standard for determining neutrality and general applicability that permits a court to look to the intent, impact and alternatives to achieving the statutory objectives—ironically enough in a manner that mimics the Sherbert/Yoder style analysis rejected in Smith. (Sherbert v. Verner 1963; Wisconsin v. Yoder 1972) By signaling that neutrality and general applicability analysis could be broadly conceived, the Supreme Court’s Lukumi Babalu Aye opinion made it possible for courts to begin to narrow the applicability of Smith and broaden the set of ordinances under which the pre-Smith standards could continue to be applied.
Like many current Supreme Court decisions interpreting the Religion Clauses, this one divided the justices in ways that showed the reluctance of some judges to participate in the elaboration of the analytical framework of Smith, with its presumption of a reasonable basis test framework. Justice Kennedy delivered the opinion of the Court. The Court’s opinion was divided into three parts. Part I sets out the facts and procedural history of the case. Part II develops the constitutional interpretive standards to be applied to the case derived from the majority’s reading of Smith, focusing on the rule that the reasonable basis test is available only to test legislation that is neutral and generally applicable. Part II-A elaborates principles and standards of a neutrality analysis. Part II-A.2, in particular, suggests the relevance of equal protection analysis to application of neutrality principles in Free Exercise cases. Part II-B applied the developed the form of analysis under the general applicability prong of Smith. Having determined that the ordinances at issue were neither neutral nor generally applicable, the majority opinion applied the more rigorous “strict scrutiny” review of those provisions in Part III. Seven Justices, including Chief Justice Rehnquist, and Justices White, Stevens, Scalia, Souter, and Thomas, joined that majority opinion with respect to Parts I, III, and IV. Part II of the opinion, in many respects the most important section of the Court’s opinion, proved the more difficult to garner stronger support. Six Justices, including the Chief Justice and Justices White, Stevens, Scalia, and Thomas joined the opinion of the Court with respect to Part II-B. Of that group, five Justices, all but Justice White, joined Parts II-A.1 and II-A.3 of the opinion. Joining Justice Kennedy on Part II-A.2, however, was only Justice Stevens. Concurrences were filed by Justices Blackman, Souter and Scalia.
As is common in these cases, Justice Kennedy starts Part II’s discussion “neutrality” starts with the general analytical framework as gleaned from his reading of Smith:
our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. . . . A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. These ordinances fail to satisfy the Smith requirements. (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 1993, 531-532).Justice Kennedy notes that though he distinguishes between neutrality and general applicability standards, the failure to satisfy one is likely to indicate that the other will not be satisfied either. The majority opinion grounds neutrality analysis on the determination that “the object of the law is to infringe upon or restrict practices because of their religious motivation.” (Id., 533). To prove suppression, courts are to examine the text of the ordinance at issue. “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language ort context.” (Id.). Reference to “sacrifice” and “ritual” were insufficient to show a lack of facial neutrality because the words “admits also of secular meanings.” (Id., 533-534).
But “facial neutrality is not determinative.” (Id., at 534). Subtle departures from neutrality and covert suppression also suggest the sort of lack of neutrality that would invoke a strict scrutiny test. “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” (Id.). The purpose of determining this other form of non-neutrality, Justice Kennedy indicated a power to engage in a broad and searching scrutiny, including the use of circumstantial evidence of intent, the legislative record, the likelihood of adverse impact given the peculiarities of the construction of the ordinance, and its over inclusiveness. (Id., 534-538). To be balanced against this evidence are the “legitimate governmental interests in protecting the public health and preventing cruelty to animals.” (Id., 538). Especially important is an analysis of the existence of less restrictive alternatives to meeting governmental objectives.
A determination of lack of neutrality, then, can be made to depend on an analysis of the gravity of the government’s interest, the relation of that interest to the actual form and effect of the regulation, and to a determination of available less burdensome alternatives—an analysis suspiciously like the strict scrutiny analysis rejected in Smith. Ironically, it is possible to suggest that Justice Kennedy is suggesting that in order to determine whether the “rational basis” test of Smith can be applied, the court would first have to apply a perhaps milder strict scrutiny test to determine the question of neutrality. But the majority of the Justices preferred this insight unstated. None but Justice Stevens joined in that portion of Justice Kennedy’s opinion suggesting that equal protection analysis—focusing on “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, as well as the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body. . . . bear on the question of discriminatory object.” (Id., at 540).
Justice Kennedy’s discussion of general applicability, like that of neutrality, starts from insights drawn from Smith. Acknowledging that all laws are selective to some extent, the focus shifts to those laws whose effect incidentally burden religion, the starting point for pre-Smith Free Exercise Clause analysis. Here, again, Justice Kennedy picks up the thread of the language of equal protection, explaining that “inequality results when a legislature decides that the governmental interest it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” (Id., 542). But Justice Kennedy saw no need to define “with precision” the standard for determining the difference between provisions of general applicability and those which impose “burdens only on conduct motivated by religious belief.” (Id., 543). Justice Kennedy argued that the Hialeah ordinances fell “well below” any minimum. (Id.). Justice Kennedy determined that the ordinances were under inclusive in relation to their purported object—the protection of public health and the prevention of animal cruelty. On that basis, Justice Kennedy concluded, for the Court, that the ordinances were not of general application but meant to target the Santería practices of the Church of the Lukumi Babalu Aye, without the necessary narrowly drawn countervailing governmental interest.
On that basis, the general standard of Smith was no longer applicable and the older “strict scrutiny” test applied in Part III of the majority opinion. (Id., 546). The majority opinion determined that even if the governmental interests were compelling, the ordinances were not narrowly drawn. But even if the ordinances had been narrowly drawn, the interests advanced by the City of Hialeah, in the context of the case, were not compelling. Ironically, Justice Kennedy relied, in part on the analysis of “general applicability” to buttress the argument that the ordinances could not survive strict scrutiny. (Id., 546).
Justice Scalia’s concurrence forgave Justice Kennedy a certain perceived flabbiness in reasoning. (Id., 557). Justice Scalia that one can distinguish better between neutrality—that focused analysis on the terms of a provision—with general applicability—that focused analysis on the effects of the provision. Justice Scalia, however, drew the line when it came to the use of the subjective motivation of the legislators for determining the character or effect of the ordinances. Justice Souter also concurred but used the occasion to make a case for the abandonment of Smith. (Id., 559). Justice Blackman also concurred, suggesting that the Hialeah ordinances were facially discriminatory, without mentioning Smith. (Id., 577).
For all that, the elaboration of Smith’s neutrality and general applicability requirements—and their application to find that the ordinances did not meet either standard, has proven to be quite important. It provided a template that encouraged lower courts, especially those uncomfortable with the application of the reasonable basis standard presumption of Smith, to narrow the circumstances under which Smith would be applicable and expanding those circumstances under which a court could find that an ordinance failed to satisfy neutrality or general applicability rules. As a consequence, Lukumi Babalu Aye provided an important mechanism for getting around the Smith standard without appearing to do so.
Critically, the task left unfinished by Justice Kennedy—the definition of the standard to be “used to evaluate whether a prohibition is of general application,” (Id., 543) has been taken up with some gusto by the appellate courts, which have used the opportunity as an invitation to more narrowly define the characteristics of statutes of general applicability. The future of the applicability of this approach may be hinted at in an opinion of Justice Alito writing as a judge of the third Circuit in Fraternal Order of Police v. Newark, 170 F.3d 359 (3rd Cir., 1999) in which that court, at least, was willing to broaden the “generally applicable” standard of Smith to include categorical as well as individual exceptions, and thus broadly defined, applied a revivified compelling interest standard to the rule at issue.
On remand from the Supreme Court, the 11th Circuit remanded, in turn, to the district court. (Church of the Lukumi Babalu Aye, Inc. v. Hialeah 11th Cir. 1993). “A one-dollar compensation was paid to CLBA by acting Mayor Julio Martinez as a symbol of re-conciliation.” (Church of the Lukumi Babalu Aye, History CLBA Resume 1974-1999).
Much has changed to both the Church and in the Hialeah political scene since the Supreme Court’s decision. There is still a bit of negative sentiment among the Church’s neighbors that flared if briefly at the time of the Supreme Court’s decision that was reported in the local newspapers. (Morcate 1993). In 1995, the “first historic group of forty senior Ifa, Oriate, Iyalosha, and Babalosha, priests and priestesses became officially certified as "Clergy" members of the Lukumi/Ayoba religion through CLBA.” (Church of the Lukumi Babalu Aye, History CLBA Resume 1974-1999). The next year a radio program was established with transmission to Cuba. By 1998, Church had relocated again, now serving its community a block away from Hialeah City Hall. In the same year, an article from that year in a local paper reported:
since their court victory, modernization and expansion of their religion have been their principal goals. . . . Lukumi Babalu Aye lists people of seventeen nationalities in its congregation, which is mostly Latin but includes Italian, British, and Russian immigrants as well. It offers for the first time ever in the United States Santería baptism, marriage ceremonies, and funerals in an institutional setting; burial plots were recently contracted for at Woodlawn West Cemetery in West Dade. The Pichardos also visit inmates in local prisons for religious ceremonies and counseling. (Lantugua 1998).
More importantly, the article noted how many local people now more openly sought the services of the local Santeros—politicians, and local elites.
By 2007, Pichardo might be said to have joined that elite himself—lecturing as an Honorary Africana Research Fellow at Florida International University in Miami. (Florida International University, News Release 2007). In early 2008 he was a leading force in a decision to reveal a basic text of the Lukumi religion— The Book of Diagnosis in Ifa Divination—which represents an attempt to preserve the oral traditions of the religion. It “was drawn from the religion’s oral tradition and first published in the 1940s. The original text and its copies were kept from the public until the present day.” (Beras 2008).
Yet, acceptance has also accentuated rivalry and contests for power to speak for the religion and to chart its course. “But those contacts also expose bitter and vituperative divisions among some high-profile practitioners, rifts that have emerged since they all celebrated the Supreme Court decision. It is a power struggle that appears to be tied to the process of modernization and institutionalization of a religion said to be 5000 years old. But there are also accusations that behind the bad blood is competition for the money spent on rituals -- millions of dollars each year in Dade County.” (Lantigua 1998). Pichardo and his Church are at the center of this controversy.
The city of Hialeah remains overwhelmingly Latino. Based on 2000 Census information updated through 2004, a little over 62% of the City’s population identified themselves as Cuban or of Cuban ancestry. (e-Podunk.com Ancestry Maps). But since 1988 the city’s population has seen substantial growth by immigrants from other parts of the Caribbean region and Central America.
The Mayor of Hialeah also fared well. Mayor Martinez’ 1991 conviction “was overturned on appeal, two subsequent trials ended in hung juries and a federal prosecutor ultimately dropped the charges.” (Rejtman 1996). In 1999, again as Mayor, he was involved in a brawl with a Cuban protestor that was caught on tape. “Mayor Raul Martinez leads the charge to create Hialeah county, a battle temporarily sidetracked by an actual brawl. During a traffic-blocking protest, the burly mayor pummels slender butcher Ernesto Mirabal - landing a left and at least five right uppercuts as police officers also jump Mirabal. Prosecutors drop charges against Mirabal after news videos prove he didn't start it.” (Morgan 2000). Martinez continued as mayor until 2005. In 2004 he served as Parliamentarian of the Democratoc National Convention in Boston. (Democratic National Committee 2004). In 2008 he sought to unseat another Cuban-American in a race for a U.S. congressional seat. (Chardy & Figueroa 2008).
Most of the members of the Hialeah City Council resumed their lives, some quite successfully. Herman Echevarria remained on the Council for a while, pushing through a term limits proposal in 1997. “At the time, Echevarria was running against Martinez for mayor, a bid he eventually lost.” (Figueroa 2008). He became the Chairman/CEO of BVK/Meka (a marketing firm targeting Latino markets) and was recognized in 2001 by Miami Business Review as one of the top 100 most influential leaders in South Florida. (Hispanic PR Wire 2005). He is active in public service, serving on a variety of local public and private organizations. In 2000, Echevarria became Chairman of the Miami-Dade 2000 Marketing Initiative, and in 2002 he was appointed by the U.S. Small Business Administration (SBA) as a member of the SBA's National Advisory Council (NAC) where he served a 2 year-term. He remained a political foe of former Mayor Raul Martinez into the 21st century. (Wakefield 2001). Another Council member, Salvatore D’Angelo is currently a real estate agent with offices in Hialeah. Silvio Cardoso became the President of the Builders Association of South Florida (BASF). Cardoso has been named Builder of the Year by BASF, won numerous awards from the Latin Builders Association, and Florida’s BEST Awards in several categories. (Bulecza). He, along with Mr. Echevarria were among the invited to attend a reception for the King and Queen of Spain in 2001 in Miami. (Wakefield 2001). Julio Martinez served as acting mayor of Hialeah at the time of the end of the lawsuit. .
Bibliography & Suggested Additional Reading
Church of Lukumi Babalu Aye v. City of Hialeah, 688 F. Supp. 1522 (SD. Fla. 1988).
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 723 F. Supp. 1467 (S.D. Fla. 1989).
Church of Lukumi Babalu Aye v. City of Hialeah, 936 F.2d 586 (Table) (11th Cir. 1991).
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
Curch of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 2 F.3d 369 (11th Cir., 1993).
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).
Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984).
Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
U.S. v. Martinez, 14 F.3d 543 (11th Cir, 1994).
Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972).
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William Bascom, Sixteen Cowries (Bloomington, IN: Indiana University Press, 1993).
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Jade Bulecza, Florida Home Builders Association, Leadeship and Staff: Silvio Cardoso.
Frank Burgos And Carlos Harrison, Hialeah May Ban Animal Sacrifices: 3 Ordinances Aimed at Santeria Church, THE MIAMI HERALD, September 8, 1987.
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