SPELLMAN, District Judge.
FINAL JUDGMENT AND FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE was tried before the Court without a jury on July 31, and August 2, 3, 7, 8, 9, 11, 14, and 15, 1989. Plaintiffs brought this lawsuit pursuant to 42 U.S.C. § 1983 to enjoin, declare unconstitutional, and recover damages for the alleged deprivation of Plaintiffs' constitutional rights, under the First, Fourth and Fourteenth Amendments, by the CITY OF HIALEAH. Plaintiffs claim that Defendant's passage of certain ordinances and resolutions, and Defendants' alleged "process of discouragement, harassment, threats, punishment, detention, and threats of prosecution" violate Plaintiff's constitutional rights. The Church specifically is seeking the right of the Church to perform animal sacrifices on Church premises, and for the right of Church members to perform sacrifices in their own homes.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides for original jurisdiction of all civil actions arising under the Constitution and laws of the United States, and 28 U.S.C. § 1343, which provides for jurisdiction of actions brought pursuant to 42 U.S.C. § 1983.
Upon careful consideration of the record, the exhibits, and the memorandum filed by the parties, this Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff, CHURCH OF THE LUKUMI BABALU AYE, INC. ("the Church"), is a not-for-profit corporation organized under the laws of the State of Florida in 1973.
The Church promotes the Lukumi religion, generically referred to as Yoba or Yoruba, and commonly referred to as Santeria. Yoba or Yoruba is an ancient religion that originated almost 4000 years ago with the Bantu people — the protogroup of the Yoruba people of West Africa, who live mainly in Southern Nigeria. Yoruba is one of the three indigenous religions of the Yoruba people and is practiced openly in Nigeria today.
During the 16th, 17th and 18th centuries, great numbers of Yoba practitioners were enslaved and brought to the eastern region of Cuba,
The slaves, to escape the severe penalties and social stigma, began to express the Yoba faith through the use of Catholic
Thus, for 400 years, Santeria was an underground religion practiced mostly by slaves and the descendants of slaves. Eventually it spilled over from the black population to the white population. However, Santeria was seen as backward, as the religion of slaves and remained underground, first from fear of persecution, and later, from fear of discrimination and social stigma.
Santeria first came to the United States with the Cuban exiles who fled the Castro regime in the late 1950's and early 1960's. Other Afro-Caribbean religions, like Voodoo, Macumba, and Palo Mayombe, arose from the same circumstances in other Caribbean islands, and also exist in South Florida, brought here by natives of those islands.
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.
Pichardo testified that although he holds the priesthood rank of "Italero," he can not estimate the number of practitioners in the City of Hialeah, nor does he know how many of the members of his Church are priests, or hold any particular rank in the priesthood.
Santeria has an interrelationship of beliefs with conduct of life, i.e., holidays, sabbath, days of worship. There are ceremonies for life cycle events such as child birth, marriage and death rites. Beliefs and practices have remained fairly constant over time, but are based on the interpretation of an oral tradition. There is no organized worship, with a centralized authority, and, with the exception of written tenets prepared by Pichardo (possibly in preparation of this lawsuit), no written code or tradition appears to exist.
B. Animal Sacrifice
Animals, including chickens, pigeons, doves, ducks, guinea fowl, goats, sheep, and turtles, are sacrificed as an integral part of the rituals and ceremonies conducted by practitioners of Santeria. According to Pichardo, most, but not all, of the animals are consumed as food after they are sacrificed.
There appears to be no prohibition in the Santeria religion against animal burial, animal incineration, or animal disposal in sanitary waste containers or animal disposal in any form. Pichardo testified that the Church would have no problem in complying with legal requirements in those areas; but there was no way in which other practitioners, outside the Church itself, could be monitored or controlled; and no legal requirements to which this Court could address itself.
According to Pichardo, an animal that is to be sacrificed is placed on a table on its left side. The apprentice holds the legs and the priest that will perform the sacrifice stands on the other side of the animal and holds the animal's head, with the head facing away from the priest.
Pichardo testified that the animal is killed within a matter of moments after being placed on the table. The priest punctures the neck of the animal with a knife
There was expert testimony
Dr. Fox also testified, and this Court finds, that with young goats or sheep, there are deeper arteries within the vertebrae so that these animals would not likely be unconscious instantaneously. Only a complete neck severance can make it clear that the arteries have all been severed and a stabbing or poking is not accepted
A chicken is even more problematic because of the fact that poultry have both internal and external carotid arteries. In other words, there are four carotid arteries that must be severed. Those arteries are rubbery and slide, and this increases the possibility of one of the arteries being missed.
The animal being killed is likely to experience both pain and fear. First, the animals are often kept in close confinement and with animals other than its own species while awaiting sacrifice. This causes great stress and anxiety to the animal. Second, an animal led into a room where other animals had just been killed would perceive the body secretions of the animals that had been killed. Animals that experience fear often secrete chemical metabolites know as thermones, and the odor of these thermones can trigger an intense fear reaction in other animals that detect those odors.
The stress and fear experienced by chickens is particularly dangerous because the chickens' immune systems become affected and this leads to the increased growth of bacteria, salmonella especially, in those chickens' systems. Salmonella is very harmful to humans and a visual inspection of a chicken would not reveal that it had this disease.
Although an expert pathologist, Dr. Wetli, testified for Plaintiffs that the death of the animal, as described, would be very rapid,
According to Pichardo, after the animal is killed, the animal's blood is drained into clay pots placed underneath the animal's head. The animal is then decapitated and removed from the area. The pots of blood are placed before the deities until the animal's carcass is removed.
Pichardo testified that in the initiation rite, which lasts for eight days, the sacrifices all occur on the second day, one after another.
The sacrificial animals are brought into the room and led over to the initiate for the initiate to touch. In an initiation ceremony there are between 6 and 13 deities and anywhere from 24 to 56 four-legged animals and fowl are sacrificed.
The animals are butchered, cooked and eaten during the eight day initiation period. The butchering is usually done outside. This Court finds it incredible that so many animals can be properly butchered and cooked in one home in a matter of hours; it is much more likely that this process takes most, if not all, of the remaining seven days.
In the faith healing rites, usually only one animal is sacrificed. The illness is considered to have then passed to the animal. The animal is not eaten, but is either placed on the altar of the deity for several hours, or is disposed of entirely.
A priest can obtain animals from many different sources. Usually a priest works mostly with one botanica.
There was significant testimony about the remains of animals, along with religious paraphernalia, being found in public places.
There have been no instances documented of any infectious disease originating from the remains of animals being left in public places. Animal remains are, however, a health hazard because the remains attract flies, rats and other animals. Both vectors
There was also much testimony regarding the effect on children exposed to animal sacrifices. Dr. Raul Huesmann, a research psychologist, has done extensive research on the development of aggressive
There are three psychological processes that are involved: 1) desensitization; 2) tolerance; and 3) imitation. Desensitization occurs when the child is exposed to repeated scenes of violence. The child stops reacting emotionally to those acts and the acts become more palatable to the child. Tolerance results from this process of desensitization. Imitation is the final stage. A child is more likely to imitate and be influenced by actors that are perceived as being of high status. In other words, if the child perceives the person engaging in the violent act as a high status person, the effects seem to be exacerbated. This effect would be strongest with multiple acts that are spaced out in time. Dr. Huesmann concluded that a child's observation of animal sacrifice would be likely to increase the probability that the child will behave aggressively and violently, not just against animals but against humans.
The observation of violence is only one factor in the development of aggressive and violent behavior. An individual can have violent and aggressive behavior which is totally unrelated to the observation of violence.
What Dr. Huesmann did testify to, and what this Court accepts, is that there is a correlation between the observation of violence by children, especially when conducted by persons of perceived high status, and the likelihood of the development of violent and aggressive behavior.
Dr. Velez-Diaz has never conducted any studies in the area of the observation of violence by children, but agrees that the majority of studies do find a correlation between such observation and the possibility of an increase in violent behavior. Dr. Velez-Diaz did not think that such studies were valid when applied to children observing ritualistic animal sacrifice, but did not support his conclusion factually. This Court, in exercising its function as trier of fact, finds the testimony of Dr. Huesmann more credible.
A third expert, Ms. Hendrix, an educator at Miami Dade Community College, testified that she had done a study on children's attitudes towards death and had found that children exposed to death, both animal and human, saw death as a much more natural process. Ms. Hendrix concluded that a child that had been prepared to view animal sacrifice would view that sacrifice like any normal religious experience. Ms. Hendrix does not view animal sacrifice as a violent act.
This Court did not find Ms. Hendrix's views persuasive. First, she is completely unfamiliar with the studies done by Dr. Huesmann. Second, her own research had to do with attitudes towards death, not violence. Third, she claimed no personal knowledge regarding how animals were sacrificed, nor did she claim to have any contact with children who had observed such sacrifices.
C. The Ordinances
The Church occupied land situated at 173 West 5th Street, in Hialeah, Florida, in June of 1987, and began to seek the appropriate licenses to allow it to function as an established Santeria church. The goal was to establish a church, a school, a cultural center and a museum, and to bring Santeria into the open as an established and accepted religion. The Church fully intended to perform all of the religious rituals of Santeria, including animal sacrifice. The Church is currently located at 700 Palm Avenue, Hialeah, Florida, a commercial area.
Just after the Church began to organize and to prepare the land at 173 West 5th Street for occupancy, the Hialeah City Council enacted several ordinances regulating the killing of animals: No. 87-40 (an emergency ordinance adopting the language of the state's anti-cruelty statute, passed June 9, 1987); No. 87-52 (prohibiting the possession of animals intended for sacrifice or slaughter except where zoned, passed September 8, 1987); No. 87-71 (authorizing registered groups to investigate animal cruelty complaints, passed September 22, 1987); and No. 87-72 (prohibiting the slaughtering of any animals on premises not properly zoned for that purpose, passed September 22, 1987).
The City passed the ordinances pursuant to § 828.27, which authorizes municipalities to enact ordinances which are not in conflict with Chapter 828. The ordinances do not conflict with Chapter 828, Florida Statutes but clarify that religious sacrifice of animals is not included in the exemption provided for ritual slaughter in kosher slaughterhouses, and that animal sacrifices violate the anti-cruelty statute of the State of Florida, and the various zoning regulations of the City of Hialeah.
Although the ordinances are 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
Plaintiffs have not been prosecuted by Defendant for any violations or intended violations of these ordinances. Additionally, no groups have been registered or authorized under 87-71 to investigate animal cruelty complaints. Plaintiffs have not sought to amend the City's laws regulating slaughterhouses, but, on July 12, 1989, for the first time sought zoning authorization to operate their current property as a slaughterhouse. At this time, there are no licensed slaughterhouses in the City of Hialeah, and zoning would not permit a slaughterhouse. Plaintiffs have not tried to challenge this zoning.
D. Discriminatory Treatment
The Church first took possession and began the cleanup of the property located at 173 W. 5th Street, in Hialeah, Florida, on April 1, 1987. The premises required significant work before the Church could move in and actually occupy the buildings.
In early April, 1987, Fernando Pichardo, the administrative director and corporate secretary of the Church, contacted the water and sewer department, Florida Power & Light, and Southern Bell. Fernando Pichardo put a $100 commercial deposit on the water and sewage service and a $200 deposit on the FP & L service. Several problems then arose. First, the waste service was not provided; although the service was billed to the Church. Second, FP & L shut off the existing power at the Church and refused to reconnect the power until the City gave it final approval and issued a Certificate of Occupancy to the Church.
In registering the Church with the City to obtain the necessary occupational license, Fernando Pichardo ran into several delays. The City required that he provide an original certificate of incorporation from the State of Florida for the Church,
The application for licensing and zoning approval was originally filled out on May 27, 1987,
There were three inspections that the Church premises did not pass on June 1, 1987: the fire inspection, the electrical inspection and the plumbing inspection. The failures were not the result of discriminatory action on the part of the inspectors or any City official. The Church passed the fire inspection two days later.
The Church failed the electrical inspection because of faulty wiring in an air conditioner and a faulty disconnect switch on the outside of the building. The electrical inspector also found an electrical meter that was not designed for that use. The inspector notified FP & L and requested that the power be disconnected from that unsafe meter. A permit was taken out by a licensed electrical contractor on July 7, 1987, and the electrical problems were corrected and completed on July 13, 1987.
The Church failed the plumbing inspection because the South Florida Code requires that for this type of use, separate bathrooms must be installed for men and women. There was only one bathroom on the premises and another bathroom had to be added. A building permit for the additional bathroom was obtained on July 29, 1987 and a plumbing permit was filed for on August 3, 1987. A plumbing inspection was done on August 4, 1987, and the final inspection was called for and issued on August 6, 1987. A certificate of occupancy was issued by the City on August 7, 1987, one day after the final inspection.
Florida Power & Light is prohibited from supplying service to a commercial property that has not been approved for an occupational license nor received an approval on the electrical inspection. The Church's power was disconnected, after a five-day notice to the Church, because it was discovered that it had been turned on without authorization and with the use of the improper meter.
The solid waste department failed to pick up the garbage, even though the Church had placed its deposit and was being billed. The water department collects the deposit and does the billing and the waste department has no control over those functions. On the day that the waste department was notified that the Church was not receiving its services, a supervisor went to the premises and obtained a letter of intent to start service on that same day. The waste department then corrected the problem, started service on that same day, and credited the Church's account with the amount that the Church had been billed.
There was testimony to the effect that the council meetings that took place concerning the Church were done in a mob atmosphere and that the council members intended to discriminate against the Church and to stop the Church. There was absolutely no evidence that any council member, at any time, attempted to influence the various licensing, zoning and building departments of the City, or the waste department, FP & L or Southern Bell. The various delays and problems that the Church encountered with its physical plant were either the result of the premises' failure to meet the necessary building requirements, or because of bureaucratic paperwork, and not because of any discriminatory intent on the part of any individual, agency or company.
Plaintiffs complained of two instances of alleged increased law enforcement scrutiny. First, a "police perimeter" was established around the Church premises when the first outdoor mass was held. Second, a police vehicle stopped Fernando Pichardo one night as he was leaving the premises with some trash and asked him what he was doing. When he replied that just leaving the premises, no further conversation was had. This Court does not hold that either of these instances were the result of
The Church also alleges that the ordinances were passed because of the council members' intent to discriminate against the Church and to keep the Church from establishing a physical presence in the City. There was no evidence to support this contention. All the evidence established was that the council members' intent was to stop the practice of animal sacrifice in the City. Although this concern was prompted by the Church's public announcement that it intended to come out into the open and practice its religious rituals, including animal sacrifice, the council's intent was to stop animal sacrifice whatever individual, religion or cult it was practiced by.
CONCLUSIONS OF LAW
Plaintiffs seek to have the ordinances promulgated by the City of Hialeah declared unconstitutional, both in their totality and as applied to Plaintiffs. The Declaratory Judgment Act, 28 U.S.C. § 2201, requires that before a court can issue declaratory relief, an "actual controvery" must exist. Emory v. Peeler, 756 F.2d 1547 (11th Cir.1985). "[T]he continuing controvery may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury." Id. at 1551-522. Further, "federal courts should not consider the abstract constitutionality of municipal policies." Kerr v. City of West Palm Beach, 875 F.2d 1546, 1554 (11th Cir.1989).
Standing to sue requires that a plaintiff has suffered a distinct and palpable injury that is likely to be redressed if the requested relief is granted. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). Redressability is an essential component of the standing requirement and Plaintiffs must fail the test if removal of one purported barrier to their conduct would not secure any meaningful relief because other barriers remained. Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258, 261-65 (D.C.Cir. 1980); Church of Scientology Flag Service Organization, Inc. v. City of Clearwater, 777 F.2d 598, 606 (11th Cir.1985), cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 656 (1986).
If this Court were to find that the ordinances were invalid, Plaintiffs would still be prohibited from performing ritual sacrifices under § 828.12 of the Florida Statutes. See Opinion Attorney General 87-56 (1987). Additionally, there are several provisions of the Hialeah City Code that would apply, including zoning provisions, health and sanitation provisions and licensing provisions.
This Court also remains troubled by the ripeness issue. In the instant case, Plaintiffs have not attempted to show repeated prosecutions, or pointed to any enforcement under the ordinances. Additionally, at no point have Plaintiffs raised any free exercise challenge addressed toward the validity of slaughterhouse zoning regulations that Plaintiffs might encounter. Instead, Plaintiffs assert that the city council passed the ordinances in an attempt to target the Church in particular and the practitioners of Santeria generally. Specifically, Plaintiffs allege that the passage of the ordinances was intended to force the Church out of Hialeah, and to chill the religious freedom of Santeria practitioners by imposing criminal sanctions on practices that are an integral part of that religion. This Court therefore restricts itself to the consideration of those issues, and will not resolve the abstract questions of whether all laws restricting animal sacrifice for religious purposes are unconstitutional, or whether Plaintiffs could practice animal sacrifice if they were in an area zoned for slaughterhouses.
B. State Statutory Preemption
The first argument presented by Plaintiffs is that the City's ordinances are invalid because the ordinances are in conflict
An ordinance need not be identical with a Florida statute in order to be valid. Validity is presumed and the party challenging a municipal ordinance bears the burden of proving that ordinance is invalid. Wallace v. Town of Palm Beach, 624 F.Supp. 864, 869 (S.D.Fla.1985); Bennett M. Lifter, Inc. v. Metropolitan Dade County, 482 So.2d 479, 481 (Fla.Dist.Ct.App.1986); City of Miami v. Kayfetz, 92 So.2d 798, 801 (Fla. 1957). An ordinance is preempted by state law only where the municipal ordinance directly conflicts with the state statute. Boven v. City of St. Petersburg, 73 So.2d 232, 234 (Fla.1954). Thus, the ordinances in the case sub judice are only invalid if they conflict with F.S. § 828.27(4).
Florida Statute § 828.27(4) permits a municipality to adopt an ordinance identical to Chapter 828, but forbids a "municipal ordinance relating to animal control or cruelty [from] conflict[ing] with the provisions of" Chapter 828. A municipality need not adopt the exact wording of Chapter 828. Additionally, a municipality may go beyond the state statute so long as it does not conflict with the statute. Lamar-Orlando Outdoor Advertising v. City of Ormand Beach, 415 So.2d 1312, 1321 (Fla.Dist.Ct. App.1982); City of Miami Beach v. Rocio Corp., 404 So.2d 1066, 1070 (Fla.Dist.Ct. App.1981). Municipalities often exercise this privilege by providing for greater enforcement measures or stricter controls.
Plaintiffs first claim is that the ordinances conflict generally with the state slaughter laws, F.S. §§ 828.22-828.26, and, specifically, with the ritual slaughter exemption contained in F.S. § 828.22(3). Sections 828.22-828.26, Florida Statutes, relate to the use of humane methods in the slaughter of livestock for food. See Opinion Attorney General 87-56 (1987). The statute was enacted to conform Florida law to the provisions of the Federal Humane Slaughter Act of 1958, and is nearly identical to that Act. 7 U.S.C. §§ 1901-1906.
The exemption for "ritual slaughter" contained in § 828.22(3) applies only to religious slaughtering of animals for food. Opinion Attorney General 87-56 (1987).
Animal sacrifice also violates Florida Statutes § 828.12, which makes it a criminal violation for one to "unnecessarily" or "cruelly" kill an animal. See Wilkerson v. State, 401 So.2d 1110, 1112 (Fla.1981). The Attorney General's opinion notes that the ritual killing of an animal does not constitute a "necessary" killing so as to make the prohibition in § 828.12 against unnecessarily or cruelly killing an animal inapplicable. Hialeah ordinance 87-52 defines "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." Thus, the Hialeah ordinance and the Florida Statutes are consistent in their treatment of animal sacrifice.
Plaintiffs next argue that, by exempting ritual slaughter from the provisions of the Act, the legislature intended to preempt municipalities from legislating any regulations whatsoever on ritual slaughter, and thus, Ordinances 87-52 and 87-72 impermissibly regulate slaughter.
The State of Florida left the siting and inspection of slaughterhouses to localities. See Fla.Stat. § 585.34(3) ("Municipal corporations may establish and maintain the inspections of slaughterhouses"). Land-use control is a local prerogative that is exercised through the use of zoning ordinances. See Fla.Stat. §§ 163.3161 — 163.3213; Hillsborough Ass'n for Retarded Citizens, Inc., v. City of Temple Terrace, 332 So.2d 610, 612-13 (Fla.1976). Zoning laws and regulations that are enacted by municipalities in the exercise of the municipalities' police power are proper. Scurlock v. City of Lynn Haven, Fla., 858 F.2d 1521, 1525 (11th Cir.1988) ("Municipalities may zone land to pursue any number of legitimate objectives related to the health, safety, morals or general welfare of the community."). Accordingly, the City of Hialeah acted properly in enacting zoning regulations that clarified that ritual sacrifice was not a protected practice under the ritual slaughter exception to the Humane Slaughter Act, and that all slaughters could only be performed in areas zoned for that use.
Plaintiffs next challenge the validity of the ordinances on the ground that the Hialeah ordinances provide for a criminal penalty, while § 828.27(2) only permits a civil penalty. Thus, Plaintiffs argue that the ordinances are in conflict with the state statute and must be struck down.
Section 828.27(2) controls penalties in "ordinances relating to animal control or cruelty." Ordinance 87-72 is an ordinance "Prohibiting The Slaughtering Of Animals Upon Any Premises in the City of Hialeah, Florida, Except Those Premises Properly Zoned As A Slaughter House." Ordinance 87-72 provides, in part, that "[i]t shall be unlawful for any person, persons, corporations or associations to slaughter any animal on any premises in the City of Hialeah, Florida, except those properly zoned as a slaughter house, and meeting all the health, safety and sanitation codes prescribed by the City for the operation of a slaughter house.
Ordinance 87-52, and the ordinance amended by it, Ordinance 87-40, also relate to zoning, and provide that:
Therefore, all three of these ordinances are zoning regulations that explicitly prohibit certain acts except where properly zoned. The penalty requirements of the ordinances, therefore, do not conflict with any penalty requirement if Chapter 828, which is limited only to "ordinance related to animal control or cruelty." While one of the secular purposes of ordinances 87-40, 87-52, and 87-72 is to prevent cruelty to animals, those ordinances are first and foremost zoning ordinances, and are not in and of themselves, "ordinances related to animal control or cruelty."
The City of Hialeah clearly has the authority to prescribe penalties for zoning
Additionally, even if § 828.27 did apply to the ordinances, that provision specifically authorizes municipalities to enact an ordinance identical to the state law "except as to penalty." While § 828.27 focuses on ordinances with a civil penalty, another section of that Chapter, § 828.12, directly provides a criminal punishment, as a first degree misdemeanor, for unnecessarily or cruelly beating, mutilating or killing an animal.
Plaintiffs last challenge to the validity of the ordinances concerns the provisions in ordinances 87-71 and 87-72 which provide that agents of private organizations may "assist in the prosecution of any violation[s]." Plaintiffs argue that this provision conflicts with the state law.
Ordinances 87-71 and 87-72 do not provide for prosecution by agents, only that such agents may assist in the prosecution.
The ordinances at issuance here clearly do not conflict with Florida state law and, therefore, are not preempted. Accordingly, this Court must now address directly the constitutional issue raised by Plaintiffs.
C. First Amendment Challenge
This Court feels that there is a need to put this case in the proper perspective. Plaintiffs essentially represent immigrants who have brought to these shores not only the traditions and customs normally attributable to a migrating people, but also the religion of Santeria, a religion which has only recently begun to be practiced in this country. Without question, it extends back to Africa, where it was an openly acceptable form of religion some 400 years ago. After having travelled for four centuries and thousands of miles, it came to Miami and has an estimated 50,000 to 60,000 religious followers in this community.
Migration has been the lifeblood of this country. As each of the tens of thousands came, they brought with them their unique heritages which were ultimately integrated and woven into the fabric which is America. The strength of that fabric has grown over two centuries.
Those who fled poverty found opportunity; those who were deprived of the opportunity of expression found freedom of speech; and those who were deprived of the opportunity to worship God found freedom of religion. These newfound freedoms, however, were not unabridged and absolute. The First Amendment to the United States Constitution reads today as it did when it was ratified on December 15, 1791:
With the adoption of the Fourteenth Amendment on July 9, 1868, it specifically made the First Amendment applicable to
No one for a moment would espouse the view that freedom of speech would allow an individual to shout "Fire" in a crowded theater. Although all ideas having even the slightest redeeming social importance have the full protection of the Constitution, implicit in the history of the First Amendment is the rejection of obscenity as being utterly without redeeming social importance. Alberts v. California, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308-09, 1 L.Ed.2d 1498 (1957).
Freedom of religion, like freedom of speech, is subject to a similar analysis when we are dealing, as here, with the manner in which the religion is conducted rather than the beliefs of those seeking to exercise it. It is the former and not the latter which is the subject matter of this Court's opinion.
Plaintiffs claim that the City's ordinances unconstitutionally impinge upon their free exercise of religion. The Eleventh Circuit has set forth a framework to be used when a court is addressing this issue. 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).
First, the ordinances clearly are directed at conduct and not belief. The conduct sought to be prescribed is the performance of animal sacrifice. The ordinances do not attempt to regulate belief and thus the law clearly meets the first threshold test.
The second threshold test is whether the ordinances have a secular purpose and effect. Id. at 733. Defendant acknowledges that the challenged ordinances arose in response to the opening of Plaintiff Church in the City; however, that does not necessarily indicate that the purpose of the ordinances was to exclude the Church from the City. Instead, the evidence showed that the Defendant responded to Plaintiffs' announced intention that Plaintiffs planned to conduct animal sacrifices.
Defendant was aware that animal sacrifices were being conducted in private homes. That practice was becoming an increasing problem and the Church's announcement triggered this legislative action, which was not aimed solely at Plaintiffs, but was an attempt to address the issue of animal sacrifice as a whole.
The ordinances do not on their face violate the secular purpose test. Ordinance 87-40 adopts the State's animal cruelty laws and does not mention religious conduct at all. Ordinance 87-72 prohibits anyone from slaughtering animals anywhere in the City except in properly zoned slaughterhouses. Ordinance 87-52, adopted from the model statute provided by the Humane Society of the United States to the City Attorney's office, provides that "[n]o person shall ... possess, sacrifice, or slaughter any ... animal for food purposes." This section applies to "any group or individual
Ordinance 87-71 amends 87-52 to include prosecutorial assistance by registered agents and reiterates the absolute prohibition of sacrifice.
"Ritual" or "ceremony," therefore, reaches not just demonstrably bona fide religious conduct, but also includes the killing of animals by groups that would probably not enjoy First Amendment protection, such as satanic cults. Further, even if the use of the words "ritual" and "ceremony" are understood as targeting primarily religious conduct, nothing in the First Amendment prevents a municipality from specifically regulating such conduct when it is deemed inconsistent with public health and welfare.
Strict religious neutrality is not required by the First Amendment. See Wallace v. Jaffree, 472 U.S. 38, 82-83, 105 S.Ct. 2479, 2503, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring); McDaniel v. Paty, 435 U.S. 618, 639, 98 S.Ct. 1322, 1334-35, 55 L.Ed.2d 593 (1978) (Brennan, J., concurring) (noting that "government [may] take religion into account when necessary to further secular purposes"). Courts have repeatedly upheld laws explicitly mentioning religious conduct so long as they serve a secular purpose. See e.g., Jones v. Butz, 374 F.Supp. at 1292-93 (noting that explicit religious exemptions in laws are permissible, citing Sunday closing and conscientious objector decisions). Thus, in this case, the ordinances have at most an effect on Plaintiffs' religious conduct that is incidental to the ordinances' secular purpose and effect.
After the two threshold tests are passed, the court is faced with the difficult task of balancing governmental and religious interests. This "balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity." Grosz, 721 F.2d at 734. However, before engaging in that balancing process, the Plaintiffs must identify the costs on their religious activities imposed by the government, and these costs must be the consequence of legally cognizable infringements on religious freedom.
The ordinances at issue were passed by the City because of the perceived need to prevent cruelty to animals, to safeguard the health, welfare and safety of the community, and to prevent possible adverse psychological effects on children exposed to such sacrifices.
1) Health Hazard
Courts have routinely upheld bans on religious conduct when such conduct posed a clear danger to the health of the public. For example, courts have, without exception, upheld ordinances and injunctions prohibiting ritual snake handling even when such snake handling was central to the religious practice. See e.g., State ex rel. Swann v. Pack, 527 S.W.2d 99, 109 & n. 15 (Tenn.1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976). Similar reasoning has been used by courts in upholding ordinances banning the use of marijuana despite its centrality to certain religious practice. See e.g., United States v. Middleton, 690 F.2d 820, 824-26 (11th Cir. 1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1497, 75 L.Ed.2d 929 (1983).
The compelling interests in public health and welfare that motivated the passage of legislation banning snake handling and marijuana use and persuaded the courts to uphold those laws are precisely the government interests at issue here. The evidence at trial revealed a risk of physical harm to members of both Plaintiff Church and the public from disease and infestation. It is beyond dispute that the government has a compelling interest in controlling disease. See e.g., Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Johansson v. Board of Animal Health, 601 F.Supp. 1018, 1027 (D.Minn. 1985); Conner v. Carlton, 223 So.2d 324 (Fla.1969), appeal dismissed for want of a substantial fed. ques., 396 U.S. 272, 90 S.Ct. 481, 24 L.Ed.2d 417 (1969).
As discussed in detail in this Court's findings of fact, animal carcasses are often left in public places, leading to an increased risk of disease. Additionally, the animals are often obtained from sources that have not maintained the animals in sanitary conditions; nor have the animals gone through any inspection process. This is especially dangerous when dealing with chickens, due to the increased risk of salmonella. Priests have no training in recognizing diseased animals, but rely solely on observation of the animals, an unreliable way of detecting disease. The City, therefore, has more than met its burden of proving that there is a substantial health risk generated by the killing of these animals in areas not regulated as slaughterhouses.
2) Welfare of Children
The governmental interest in guaranteeing the welfare of children is particularly strong. See e.g., New York v. Ferber, 458 U.S. 747, 756-58, 102 S.Ct. 3348, 3354-55, 73 L.Ed.2d 1113 (1982); United States v. Nemuras, 567 F.Supp. 87, 89 (D.Md.1983),
The evidence at trial established that exposure to the ritual sacrifice of animals imperils the psychological well-being of children and increases the likelihood that a child will become more aggressive and violent. Based on the expert testimony, the City has shown that the risk to children justifies the absolute ban on animal sacrifice.
3) Cruelty to Animals
Equally compelling is the City's interest in the protection of animals from cruelty and unnecessary killing. "It has long been the public policy of this country to avoid unnecessary cruelty to animals." Human Society of Rochester v. Lyng, 633 F.Supp. 480, 486 (W.D.N.Y.1986). The Florida Supreme Court observed more than two decades ago that "it is now generally recognized that legislation which has for its purpose the protection of animals from harassment and ill-treatment is a valid exercise of the police power." C.E. America, Inc. v. Antinori, 210 So.2d 443, 444 (Fla.1968).
Plaintiffs presented testimony that the killing of the animals is not inhumane. This Court does not agree. Expert testimony established that the method of killing is unreliable and not humane, and that the animals, before being sacrificed, are often kept in conditions that produce a great deal of fear and stress in the animal. Often the animals are kept in filthy, overcrowded conditions, and sometimes are not given adequate food or water. Additionally, the animals perceive both pain and fear during the actual sacrificial ceremony.
The policies and purposes underlying the ordinances therefore reflect three separate and compelling governmental interests; public health and the control of disease, the risk to children, and animal welfare. Moreover, the City has a compelling interest in prohibiting the slaughter or sacrifice of animals within areas of the City not zoned for slaughterhouse use. The interest of the city in prohibiting slaughter of animals in private homes and residential area is particularly strong. The assertion that the slaughter is for religious purposes does not diminish this interest because the City may regulate the place and manner of religious expression as long as there is no content classification and so long as the regulation is reasonable. See Grosz, 721 F.2d at 740.
An ordinance will withstand constitutional challenge if an exception for religious purpose will "unduly interfere with fulfillment of the governmental interest." United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 1056, 71 L.Ed.2d 127 (1982). Whether an exception for religious purposes would "unduly interfere" with government policy is a looser standard than whether an ordinance is "closely tailored" or the "least restrictive means" standards urged by Plaintiffs. Moreover, Plaintiffs have not shown that their proposed alternatives would satisfy the public health and animal welfare concerns.
Most importantly, the carving out of an exception for any group would defeat the City's valid and compelling interests. Courts have consistently refused religious exemptions when they would create administrative or enforcement problems. See e.g., Sherbert v. Verner, 374 U.S. 398, 408-09, 83 S.Ct. 1790, 1796-97, 10 L.Ed.2d 965 (1963); Grosz, 721 F.2d at 739. The testimony revealed the extent of the problems caused by animal sacrifice. A large part of the problem is because of the number of practitioners, who are not limited to those who practice Santeria. It is often difficult, if not impossible, to tell who is responsible for a particular sacrifice. A religious exception for Santeria practitioners is simply unworkable because it is unenforceable. Any contemplated exception would have to cover all religions. See United States v. Aguilar, 871 F.2d 1436, 1469-70 n. 32 (9th Cir.1989). The exception would, in effect, swallow the rule.
A balance of the compelling government interest served by the ordinances against the burden of Plaintiffs of not being allowed to ritually sacrifice animals, with all of the attendant risks to public health and animal welfare, must be resolved in favor of the City. Even absolute proscriptions of religious conduct are constitutional when the law serves a compelling state interest. See e.g., Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879) (cited with approval last Term in Employment Division v. Smith, 485 U.S. 660, ___, 108 S.Ct. 1444, 1451, 99 L.Ed.2d 753, 764 (1988)). Compelling governmental interests, including public health and safety and animal welfare, fully justify the absolute prohibition on ritual sacrifice at issue here, and any effort to exempt purportedly religious conduct from the strictures of the City's laws would significantly hinder the attainment of those compelling interests. Therefore, this Court holds that the challenged ordinances do pass constitutional muster.
D. 1983 Claim
This Court granted Summary Judgment as to the Mayor and City Councilmen and held that the ordinances and resolutions that they passed did not amount to an official policy of harassment. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 688 F.Supp. 1522 (S.D.Fla.1988). At most, this Court found that Plaintiffs had alleged "nothing more than that Defendants, by their policies, created an atmosphere conducive to acts such as these taking place." Id. at 1529.
Where an injury is inflicted solely by its employees or agents, a local government is not liable. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981) (respondeat superior liability unavailable under § 1983). It is only when execution of a municipality's official policy or custom inflicts injury that the government as an entity can be held liable under § 1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Boilerplate allegations of municipal "policy," without any factual allegations to support them, do not establish a § 1983 claim against a municipality. See City of Canton v. Harris, 489 U.S. ___, ___, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412, 427 (1989). A single instance of unconstitutional conduct is insufficient to impose civil rights liability on a city unless there is proof that the activity was covered by an existing, unconstitutional municipal policy that can be attributed to a municipal policymaker. Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). The existence of an unconstitutional policy and its origin must be separately proved and
Cases involving analogous constitutional challenges to municipal land-use restrictions place the burden of proving discriminatory purpose or intent on plaintiffs. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 n. 4, 106 S.Ct. 3172, 3178 n. 4, 92 L.Ed.2d 568 (1986); Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 270, n. 21, 97 S.Ct. 555, 566, n. 21, 50 L.Ed.2d 450 (1977). Nor does evidence of a negative public outcry directed against the Church prove discriminatory zoning. See Town of Hialeah Gardens v. Hebraica Community Center, Inc., 309 So.2d 212, 215 (Fla.Dist.Ct.App.1975).
Plaintiffs have completely failed to prove any acts of discrimination or harassment in violation of Plaintiffs' right to freely exercise their religion. As discussed at length in this Court's findings of fact, the Plaintiffs' allegations of discrimination by the City are not supported by the facts.
The ordinances passed by the City of Hialeah regulating the ritual sacrifice of animals are consistent with both state statutes and the United States Constitution. The ordinances target the indiscriminate slaughter of animals in areas of the City not zoned for such activities because of the many attendant risks to both public health and animal welfare. The ordinances are not targeted at the Church of the Lukumi Babalu Aye and practitioners of Santeria, but are meant to prohibit all animal sacrifice, whether it be practiced by an individual, a religion, or a cult. Additionally, there was no proof of any discriminatory action by the City against the Plaintiff Church or any of its practitioners.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Court finds in favor of Defendant and against Plaintiffs, and FINAL JUDGMENT is hereby entered in favor of Defendant, CITY OF HIALEAH, and against Plaintiffs, who shall go hence without day. Each party shall bear its own costs and attorneys' fees.
DONE AND ORDERED.
Through divination, ifa mandates the type of animal to be sacrificed and the use to which the sacrifice should be put. It is the individual priests, however, who interpret, or misinterpret, the basic principles of ifa. Pichardo interprets the religious principles of Santeria as requiring that a practitioner obey the law; i.e., if the law says that dead animals cannot be disposed of in public roadways, a practitioner could not dispose of the carcass in such a way and still be in compliance with religious principles. However, a priest could interpret ifa to require that an animal carcass be left in the open, or even neglect to consult the ifa at all regarding the disposal. Pichardo testified that he had a strong feeling that lesser nonhierarchy priests do misinterpret the divination process and could in fact order the disposal of animal remains in public places. Pichardo claims that such a priest would be a deviant, but admits that such a priest could interpret ifa in that way.
Pichardo speculated that his Church would be able to stop what he considered to be deviant practices, but gave no indication on how this would be accomplished, beyond just opposing such practices. Pichardo speculates that if the Church is allowed to practice its rituals openly, it will "absorb the thousands that are out there in South Florida and have them come in and not hide behind doors because of fear of persecution and discrimination and what have you." However, Pichardo admits that while he estimates 50,000 — 60,000 Santeria practitioners in South Florida, he has no idea how many are located in Hialeah, or how many would actually come forward and join the Church.