Church of the Lukumi Babalu Aye v. City of Hialeah

• Citation: 723 F. Supp. 1467
• Decision Date: 05 October 1989
• Docket Number: No. 87-1795-CIV-EPS.,87-1795-CIV-EPS.
• Parties: CHURCH OF THE LUKUMI BABALU AYE, INC., and Ernesto Pichardo, Plaintiffs, v. CITY OF HIALEAH, Defendant.
• Court: U.S. District Court — Southern District of Florida

723 F. Supp. 1467

CHURCH OF THE LUKUMI BABALU AYE, INC., and Ernesto Pichardo, Plaintiffs, v. CITY OF HIALEAH, Defendant.

No. 87-1795-CIV-EPS.

United States District Court, S.D. Florida, Miami Division.

October 5, 1989.

Jorge A. Duarte, Miami, Fla., Mitchell Horwich, Coral Gables, Fla., Maurice Rosen, North Miami Beach, Fla., Stanley Pred, Arthur B. Calvin, Miami, Fla., for plaintiffs.

Richard G. Garrett, Stuart H. Singer, Laura H. Thomas of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, Fla., for defendant.

MEMORANDUM OPINION

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 1973.¹ Plaintiff, ERNESTO PICHARDO ("Pichardo"), is President of the Church and holds the religious rank of "Italero." Defendant, CITY OF HIALEAH ("the City"), is a municipal corporation situated in the State of Florida.

A. Background

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,² where the practice of their native religion was forbidden. Slaves were expected to become Christians,³ and practitioners of Yoba were persecuted by the authorities and discriminated against by the populace.

The slaves, to escape the severe penalties and social stigma, began to express the Yoba faith through the use of Catholic saints and symbolism.⁴ This syncretism⁵ permitted slaves to practice Yoba, or Santeria, while appearing to practice Catholicism.

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.⁶ In total, there are approximately 50,000 to 60,000 practitioners of Santeria in South Florida today, and an untold number of people who practice animal sacrifice.

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.⁷

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.⁸ Additionally, although Pichardo claims that there are about ten Italeros in Dade County, he has only met two. There is an annual conference of Santeria priests held in New York, but Pichardo testified that he has never been invited to one, nor attended one.

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.⁹

Pichardo testifies that priests are trained as apprentices by other priests, guided by the oral traditions. Different priests perform different functions, such as divination, and sacrifice, and a priest must train in each different discipline he wishes to pursue. There is, however, no central authority which establishes, or verifies, a priest's training or credentials.¹⁰

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.¹¹ A priest that performs sacrifice is taught as an apprentice through observation of sacrifices. Only priests trained in this manner are supposed to conduct animal sacrifice. Those priests are not involved in obtaining, maintaining, butchering, cooking or disposing of the sacrificial animals.¹² Pichardo, even as a high priest, is unaware of how those other functions were actually performed, although he did state that the animals were expected to be healthy, clean and free of disease. The priests receive no training in establishing that an animal is disease-free, but rely on personal observation. Pichardo himself has never been involved in the disposal of animal carcass and has no knowledge of what is actually done with the remains of sacrificed animals, whether or not any part of the animal is consumed.¹³

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.¹⁴

Pichardo testified that the actual killing of the animal is taught by oral apprenticeship. The apprentice, by observing an experienced priest, sees where and how the knife should be inserted. Ultimately, the apprentice priest becomes certain that he can adequately perform the sacrifice and do the actual killings assisted by the teacher.¹⁵ After the teacher is satisfied that the student has the ability to perform the sacrifice, the student is allowed to kill the animal without assistance. A student may be taught by more than one priest.

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.¹⁶ The animal's head extends beyond the edge of the table and is held high on the nose area by the priest's left hand. The knife is held in the priest's right hand (even if the priest happens to be left-handed).

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 knife¹⁷ right into the main arteries in one movement. The knife is inserted into the righthand side of the animal's neck and is pushed all the way through the animal's neck. The knife does not actually cut the throat of the animal, but instead goes directly into the vein area, just behind the throat, and in front of the vertebrae. This hopefully would sever both of the main arteries of the animal.

There was expert testimony¹⁸ that established that this method of killing is not humane because there is no guarantee that a person performing a sacrifice in the manner...