Osservatorio delle libertà ed istituzioni religiose


Osservatorio delle Libertà ed Istituzioni Religiose

Documenti • 11 Marzo 2004

Sentenza 11 giugno 1993

Corte Suprema degli Stati Uniti d’America. Sentenza 11 giugno 1993.

Pres. Rehuquist – Rel. Kennedy
Church of the Lukumi Babalu Aje, Inc. and Ernesto Pichardo v. City of Hialeah.

Justice Kennedy delivered the opinion of the Court, except as to Part. II-A-2 (*)


The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940), provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” U.S. Const., Amdt. 1 (emphasis added). The city does not argue that Santeria is not a “religion” within the meaning of the First Amendment. Nor could it: Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”. Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714, 101 S. Ct. 1425, 1430, 67 L. Ed. 2d 624 (1981). Given the historical association between animal sacrifice and religious worship, see supra, at 2, petitioners’ assertion that animal sacrifice is an integral part of their religion “cannot be deemed bizarre or incredible”. Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 834, n. 2, 109 S. Ct. 1514, 1518, n. 2, 103 L. Ed. 2d 914 (1989). Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners’ First Amendment claim.

[1, 2] In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that in 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. Employment Div., Dept. of Human Resources of Oregon v. Smith, supra. Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied. 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. We begin by discussing neutrality.


In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general. See, e.g., Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 248, 110 S. Ct. 2356, 2370-71, 110 L. Ed. 2d 191 (1990) (plurality opinion); Grand Rapids School Dist. v. Ball, 473 U.S. 373, 389, 105 S. Ct. 3216, 3225-26, 87 L. Ed. 2d 267 (1985); Wallace v. Jaffree, 472 U.S. 38, 56, 105 S. Ct. 2479, 2489-90, 86 L. Ed. 2d 29 (1985); Epperson v. Arkansas, 393 U.S. 97, 106-107, 89 S. Ct. 266, 271-72, 21 L. Ed. 2d 228 (1968); School Dist. of Abington v. Schempp, 374 U.S. 203, 225, 83 S. Ct. 1560, 1573, 10 L. Ed. 2d 844 (1963); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16, 67 S. Ct. 504, 511-12, 91 L. Ed. 711 (1947). These cases, however, for the most part have addressed governmental efforts to benefit religion or particular religions, and so have dealt with a question different, at least in its formulation and emphasis, from the issue here. Petitioners allege an attempt to disfavor their religion because of the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis.

[3] At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. See, e.g., Braunlfed v. Brown, 366 U.S. 599, 607, 81 S. Ct. 1144, 1148, 6 L. Ed. 2d 563 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U.S. 67, 69-70, 73 S. Ct. 526, 527, 97 L. Ed. 828 (1953). Indeed, it was “historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause”. Bowen v. Roy, 476 U.S. 693, 703, 106 S. Ct. 2147, 2154, 90 L. Ed. 2d 735 (1986) (opinion of Burger, C.J.). See J. Story, Commentaries on the Constitution of the United States §§ 991-992 (abridged ed. 1833) (reprint 1987); T. Cooley, Constitutional Limitations 467 (1868) (reprint 1971); McGowan v. Maryland, 366 U.S. 420, 464, and n. 2, 81 S. Ct. 1153, 1156, and n. 2, 6 L. Ed. 2d 393 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette, 319 U.S. 157, 179, 63 S. Ct. 882, 888, 87 L. Ed. 1324 (1943) (Jackson, J., concurring in result); Davis v. Beason, 133 U.S. 333, 342, 10 S. Ct. 299, 300, 33 L. Ed. 637 (1890). These principles, though not often at issue in our Free Exercise Clause cases, have played a role in some. In McDaniel v. Paty, 435 U.S. 618, 98 S. Ct. 1322, 55 L. Ed. 2d 593 (1978), for example, we invalidated a State law that disqualified members of the clergy from holding certain public offices, because it “impose[d] special disabilities on the basis of… religious status”, Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S., at 877, 110 S. Ct., at 1599. On the same principle, in Fowler v. Rhode Island, supra, we found that a municipal ordinance was applied in an unconstitutional manner when interpreted to prohibit preaching in a public park by a Jehovah’s Witness but to permit preaching during the course of a Catholic mass or Protestant church service. See also Niemotko v. Maryland, 340 U.S. 268, 272-273, 71 S. Ct. 325, 327-28, 95 L. Ed. 267 (1951). Cf. Larson v. Valente, 456 U.S. 228, 102 S. Ct. 1673, 72 L. Ed. 2d 33 (1982) (state statute that treated some religious denominations more favorably than others violated the Establishment Clause). Daniel v. Paty, supra, 435 U.S., at 626, 98 S. Ct., at 1327-28 (plurality opinion); Cantwell v. Connecticut, supra, 310 U.S., at 303-304, 60 S. Ct., at 903 if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, see Employment Div., Dept. of Human Resources of Oregon v. Smith, supra, 494 U.S., at 878-879, 110 S. Ct., at 1599-1600; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words “sacrifice” and “ritual”, words with strong religious connotations. Brief for Petitioners 16-17. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words “sacrifice” and “ritual” have a religious origin, but current use admits also of secular meanings. See Webster’s Third New International Dictionary 1961, 1966 (1971). See also 12 The Encyclopedia of Religion, at 556 (“[T]he word sacrifice ultimately became very much a secular term in common usage”). The ordinances, furthermore, define “sacrifice” in secular terms, without referring to religious practices.

[6, 7] We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality”, Gillette v. United States, 401 U.S. 437, 452, 91 S. Ct. 828, 837, 28 L. Ed. 2d 168 (1971), and “covert suppression of particular religious beliefs”, Bowen v. Roy, supra, 476 U.S., at 703, 106 S. Ct., at 2154 (opinion of Burger, C.J.). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt. “The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders”. Walz v. Tax Comm’n of New York City, 397 U.S. 664, 696, 90 S. Ct. 1409, 1425, 25 L. Ed. 2d 697 (1970) (Harlan, J., concurring).

[8] The record in this case compels the conclusion that suppression of the central element of the Santeria worship, service was the object of the ordinances. First, though use of the words “sacrifice” and “ritual” does not compel a finding of improper targeting of the Santeria religion, the choice of these words is support for our conclusion. There are further respects in which the text of the city council’s enactments discloses the improper attempt to target Santeria. Resolution 87-66, adopted June 9, 1987, recited that “residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety”, and “reiterate[d]” the city’s commitment to prohibit “any and all [such] acts of any and all religious groups”. No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.

[9] It becomes evident that these ordinances target Santeria sacrifice when the ordinances’ operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object. To be sure, adverse impact will not always lead to a finding of impermissible targeting. For exemple, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. McGowan v. Maryland, 366 U.S., at 442, 81 S. Ct., at 1113-14. See, e.g., Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1879); Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890). See also Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1319 (1970). The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals, and health hazards from improper disposal. But the ordinances when considered together disclose an object remote from these legitimate concerns. The design of these laws accomplishes instead a “religious gerrymander”, Walz v. Tax Comm’n of New York City, supra, 397 U.S., at 696, 90 S. Ct., at 1425 (Harlan J., concurring), an impermissible attempt to target petitioners and their religious practices. (Omissis)

We also find significant evidence of the ordinances’ improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends. It is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that a law which visits “gratuitous restrictions” on religious conduct, McGowan v. Maryland, 366 U.S., at 520, 81 S. Ct., at 1186 (opinion of Frankfurter, J.), seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation.

[10] The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice (…). If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal or organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Tr. of Oral Arg. 45. See also id., at 42, 48. Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city’s interest in the public health. The District Court accepted the argument that narrower regulation would be unenforceable because of the secrecy in the Santeria rituals and the lack of any central religious authority to require compliance with secular disposal regulations. See 723 F. Supp., at 1486-1487, and nn. 58-59. It is difficult to understand, however, how a prohibition of the sacrifices themselves, which occur in private, is enforceable if a ban on improper disposal, which occurs in public, is not. The neutrality of a law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation. See, e.g., Schneider v. State, 308 U.S. 147, 162, 60 S. Ct. 146, 151-52, 84 L. Ed. 155 (1939).

Under similar analysis, narrower regulation would achieve the city’s interest in preventing cruelty to animals. With regard to the city’s interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city’s concern, not a prohibition on possession for the purpose of sacrifice. The same is true for the city’s interest in prohibiting cruel methods of killing. Under federal and Florida law and Ordinance 87-40, which incorporates Florida law in this regard, killing an animal by the “simultaneous and instantaneous severance of the carotid arteries with a sharp instrument” – the method used in Kosher slaughter – is approved as humane. See 7 U.S.C. § 1902(b); Fla. Stat. § 828.23 (7) (b) (1991); Ordinance 87-40, § 1. The District Court found that, though Santeria sacrifice also results in severance of the carotid arteries, the method used during sacrifice is less reliable and therefore not humane. See 723 F. Supp., at 1472-1473. If the city has a real concern that other methods are less humane, however, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it.

[11] Ordinance 87-72 – unlike the three other ordinances – does appear to apply to substantial nonreligious conduct and not to be overbroad. For our purposes here, however, the four substantive ordinances may be treated as a group for neutrality purposes. Ordinance 87-72 was passed the same day as Ordinance 87-71 and was enacted, as were the three others, in direct response to the opening of the Church. It would be implausible to suggest that the three other ordinances, but not Ordinance 87-72, had as their object the suppression of religion. We need not decide whether the Ordinance 87-72 could survive constitutional scrutiny if it existed separately; it must be invalidated because it functions, with the rest of the enactments in question, to suppress Santeria religious worship.




In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings, and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.


[12] We turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability. Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S., at 879-881, 110 S. Ct., at 1600-01. All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause “protect[s] religious observers against unequal treatment”, Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U.S. 136, 148, 107 S. Ct. 1046, 1053, 94 L. Ed. 2d 190 (1987) (Stevens J., concurring in judgment), and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.

[13] The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause. The principle underlying the general applicability requirement has parallels in our First Amendment jurisprudence. See, e.g., Cohen v. Cowles Media Co., 501 U.S. -, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991); University of Pennsylvania v. EEOC, 493 U.S. 182, 201, 110 S. Ct. 577, 588-89, 107 L. Ed. 2d 571 (1990); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 585, 103 S. Ct. 1365, 1371-72, 75 L. Ed. 2d 295 (1983); Larson v. Valente, 456 U.S., at 245-246, 102 S. Ct., at 1683-84; Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 606, 21 L. Ed. 2d 658 (1969). In this case we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.

[14] Respondent claims that Ordinances 87-40, 87-52 and 87-71 advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends. They fail to prohibit non-religious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not inconsequential. Despite the city’s proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice. Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. For example, fishing – which occurs in Hialeah, see A. Khedouri & F. Khedouri, South Florida Inside Out 57 (1991) – is legal. Extermination of mice and rats within a home is also permitted. Florida law incorporated by Ordinance 87-40 sanctions euthanasia of “stray, neglected, abandoned, or unwanted animals”, Fla. Stat. § 828.058 (1987); destruction of animals judicially removed from their owners “for humanitarian reasons” or when the animal “is of no commercial value”, § 828-073 (4) (c) (2); the infliction of pain or suffering “in the interest of medical science” § 828.02; the placing of poison in one’s yard or enclosure, § 828.08; and the use of a live animal “to pursue to take wildlife or to participate in any hunting”, § 828.122 (6) (b), and “to hunt wild hogs”, § 828.122 (6) (e).

The city concedes that “neither the State of Florida nor the City has enacted a generally applicable ban on the killing of animals”. Brief for Respondent 21. It asserts, however, that animal sacrifice is “different” from the animal killings that are permitted by law. Ibid. According to the city, it is “self-evident” that killing animals for food is “important”; the eradication of insects and pests is “obviously justified”; and the euthanasia of excess animals “make sense”. Id., at 22. These ipse dixits do not explain why religion alone must bear the burden of the ordinances, when many of these secular killings fall within the city’s interest in preventing the cruel treatment of animals.

[15] The ordinances are also underinclusive with regard to the city’s interest in public health, which is threatened by the disposal of animal carcasses in open public places and the consumption of uninspected meat, see Brief for Respondent 32, citing 723 F. Supp., at 1474-1475, 1485. Neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction. The health risks posed by the improper disposal of animal carcasses are the same whether Santeria sacrifice or some nonreligious killing preceded it. The city does not, however, prohibit hunters from bringing their kill to their houses, nor does it regulate disposal after their activity. Despite substantial testimony at trial that the same public health hazards result from improper disposal of garbage by restaurants, see 11 Record 566, 590-591, restaurants are outside the scope of the ordinances. Improper disposal is a general problem that causes substantial health risks, 723 F. Supp., at 1485, but which respondent addresses only when it results from religious exercise.

The ordinances are underinclusive as well with regard to the health risk posed by consumption of uninspected meat. Under the city’s ordinances, hunters may eat their kill and fisherman may eat their catch without undergoing governmental inspection. Likewise, state law requires inspection of meat that is sold but exempts meat from animals raised for the use of the owner and “members of his household and nonpaying guests and employees”. Fla. Stat. § 585.88 (1) (a) (1991). The asserted interest in inspected meat is not pursued in contexts similar to that of religious animal sacrifice.

Ordinance 87-72, which prohibits the slaughter of animals outside of areas zoned for slaughterhouses, is underinclusive on its face. The ordinance includes an exemption for “any person, group, or organization” that “slaughters or processes for sale, small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law”. See Fla. Stat. § 828.24 (3) (1991). Respondent has not explained why commercial operations that slaughter “small numbers” of hogs and cattle do not implicate its professed desire to prevent cruelty to animals and preserve the public health. Although the city has classified Santeria sacrifice as slaughter, subjecting it to this ordinance, it does not regulate other killings for food in like manner.

We conclude, in sum, that each of Hialeah’s ordinances pursues the city’s governmental interests only against conduct motivated by religious belief. The ordinances “ha[ve] every appearance of a prohibition that society is prepared to impose upon [Santeria worshippers] but not upon itself”. The Florida Star v. B.J.F., 491 U.S. 524, 542, 109 S. Ct. 2603, 2614, 105 L. Ed. 2d 443 (1989) (Scalia, J., concurring in part and concurring in judgment). This precise evil is what the requirement of general applicability is designed to prevent.


[16-18] A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance “interests of the highest order” and must be narrowly tailored in pursuit of those interests. McDaniel v. Paty, 435 U.S., at 628, 98 S. Ct., at 1328, quoting Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1972). The compelling interest standard that we apply once a law fails to meet the Smith requirements is not “water[ed]… down” but “really means what it says”. Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S., at 888, 110 S. Ct., at 1605. A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. It follows from what we have already said that these ordinances cannot withstand this scrutiny.

First, even were the governmental interests compelling, the ordinances are not drawn in narrow terms to accomplish those interests. As we have discussed, see supra, at 16-18, 21-24, all four ordinances are overbroad or underinclusive in substantial respects. The proffered objectives are not pursued with respect to analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. The absence of narrow tailoring suffices to establish the invalidity of the ordinances. See Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 232, 107 S. Ct. 1722, 1729, 95 L. Ed. 2d 209 (1987).

Respondent has not demonstrated, moreover, that, in the context of these ordinances, its governmental interests are compelling. Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that “a law cannot be regarded as protecting an interest Ôof the highest order’… when it leaves appreciable damage to that supposedly vital interest unprohibited”. The Florida Star v. B.J.F., supra, 491 U.S. at 541-542, 109 S. Ct., at 2613-14 (Scalia, J., concurring in part and concurring in judgment) (citation omitted). See Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. -, 112 S. Ct. 501, 510-11, 116 L. Ed. 2d 476 (1991). Cf. The Florida Star v. B.J.F., supra, at 540-541, 109 S. Ct., at 2612-13; Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104-105, 99 S. Ct. 2667, 2671-72, 61 L. Ed. 2d 399 (1979); id., at 110, 109 S. Ct., at 2674-75 (Rehnquist, J., concurring in judgment). As we show above, see supra, at 21-24, the ordinances are underinclusive to a substantial extent with respect to each of the interests that respondent has asserted, and it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions. There can be no serious claim that those interests justify the ordinances.


The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.