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February 05, 2007

Santeria lawsuit update

Yesterday I blogged about Jose Merced, a 45-year-old Santeria priest who is suing the city of Euless, Texas for the right to slaughter animals in his home during religious ceremonies.

The Dallas Morning News has a good synoposis of the case.

According to the DMN, Merced's battle with the city started last May when someone called the police to complain that Merced was going to sacrifice some goats in an initiation ceremony at his home. Merced met with city officials about obtaining a permit for future rituals, but he was informed that the city doesn't give out such permits because animal slaughter is illegal in Euless.

Merced's suit contends that the city is using discriminatory zoning against him. The city of Euless says that the home slaughter violates health and safety regulations, not land use provisions.

I was able to confirm that a municipal ordinance makes it unlawful for anyone to slaughter or to maintain any property for the purpose of slaughtering any animal in the city of Euless.

It seems like a clear-cut win for the city.* The law says that nobody is allowed to slaughter animals anywhere in the city. The law is part of the chapter on animals and animal control in Euless. This is the chapter that bans venomous lizards, wombats and non-poisonous snakes over six feet. The same chapter also contains a ban on distributing baby chicks that have been dyed or artificially colored, but not "natural chicks."

In an ideal world, the city would agree to reassess its animal control laws. The slaughter ban dates back to 1974. I don't know whether ritual sacrifice was widespread in Euless in 1974, but I suspect that it wasn't the first thing on legislators' minds when they banned home slaughterhouses. There are legitimate health and safety reasons to keep slaughterhouses out of cities.

To be fair, Mr. Merced's sacrifices are quite different from those of your average slaughterhouse. He doesn't kill goats every day--only on special occasions. There's no indication that he raises these goats on his property or maintains them on the premises for extended periods. Merced and his followers do eat the goat meat, but they don't appear to sell it or distribute it.

Perhaps the best solution would be for the city to amend the law to allow citizens to practice small-scale slaughter at home. It seems like it would be pretty easy to set up a permit system for this sort of thing that would get around the health risks and still allow Merced to perform his ceremonies. The key thing, IMO, is that small-scale slaughter permits should be available to any citizen who wants to slaughter something at home, not just for people who want to do so for religious reasons.

Maybe a would-be slaughterer should have to file a carcass-disposal plan with the city and show proof that the animal had been cleared for human consumption by a meat inspector. I've been to pig roasts in suburbs where the pig was slaughtered on site. I didn't observe any negative health or environmental consequences of these secular special-occaision slaughters.

I'm not saying that Euless is obliged to change the law. However, I'm sure the city's pig-roast enthusiasts and Santeria practitioners would be grateful for the change.

*By clear-cut win, I mean that the anti-slaughter regulation isn't a zoning regulation in any straightforward sense. It's just a law that applies in the whole city.

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I used to live near Euless.

My guess is that this law, or at least this chapter, originally began as an attempt to make Hispanics, or possibly Asians, there are a lot of Vietnamese in the area, unwelcome.

I lived about 5 miles south in Arlington, the largest city in the US without a bus system, and it got killed year in and year out because they didn't want the "wrong sort" (black folks from Fort Worth) living there.

Anyone have the history of this? 1974 sounds like they were trying to keep Vietnamese out.

BTW, there is a great Asian shopping center in Arlington, and the noodle place is da bomb.

Whatever the original motive, public health and safety should be primary.

I remember when I was growing up (roughly 1947-1955) before suburbs and living on ordinary city (but suburban-like) street with detached homes that there were at least two neighbors who kept chickens in their backyards which they slaughtered and ate.

Now with bird flu and so forth, I don't think that's a good idea.

Lindsay: I'm not sure the case is as easy as you make it out to be. When you say it "seems like a clear-cut win for the city," I assume you're saying that it's an easy question for you in the abstract, perhaps under a Rawlsian moral-philosophical sense (e.g., "what would the rules be if they were written by people who weren't sure whether they'd end up as a city official enforcing those rules or as a citizen and member of a minority religion with out-of-the-mainstream religious practices sense?") -- because regardless of the moral- and political-philosophical implications of the issue and regardless of what the law should be in this area, the law in this area, as it actually is, is quite murky and complicated (as I suggested in my comments below to your original post) and the case actually strikes me as a difficult one given the current state of the law.

Furthermore, I might question the City's legal strategy: I would have thought the City's best argument is not a direct frontal challenge on the constitutionality of RLUIPA, but instead to demur on that question and argue that, even under the strict scrutiny of RLUIPA the City's behavior is permissible because (a) the City has a compelling interest in the health and welfare of its citizens, and (b) the City was pursuing that in the manner least restrictive to religion (since to do otherwise would require the City to get tangled up in deciding what's a legitimate religion and/or what's legitimate ritual behavior and potentially run afoul of the Establishment Clause). Instead (and maybe this is just sloppy reporting), according to the article you link to, "Euless argues in court records that the act is unconstitutional because it amounts to Congress intruding on a state's right to regulate the health and welfare of its residents" -- in other words, the City seems to hanging its defense on a "states' rights" challenge to the federal government's constitutional authority to act in this area at all.

Now maybe they're focusing on the federalism argument because they have concluded that, if RLUIPA is valid, they'll lose under the strict scrutiny analysis, because the current law is clearly not the manner least restrictive to religion (since it wouldn't be difficult at all to establish a licensing regime). But if so, then that suggests the case is anything but a slam-dunk for them (and might even come close to being a slam-dunk for the Santerians).

I find the "is this a land use regulation?" question more interesting than the flashier religious freedom ones, actually. Per RLUIPA itself, "The term `land use regulation' means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest."

If the law only prohibited maintaining land for slaughtering, that might seem applicable. But even if that term, if isolated, might violate RLUIPA, a ban on slaughtering generally wouldn't. Can Texas municipalities enact such a ban, or would it be inconsistent with the terms of their state-granted power? If they can, RLUIPA doesn't apply. But they might not be able to. Often municipal governments have very circumscribed powers.

1974?

My guess would be it started as an anti-hippie ordinance. (I've been re-reading some early 70's Mother Earth News magazines recently; anti-slaughter and anti-livestock laws are a frequent target of complaint.)

I think it's a clear-cut win for the city because Merced's suit hinges on the claim that the city is zoning land in a manner that impinges upon religious expression. Land use is subject to different tests than other kinds of laws.

The law that prohibits home slaughter isn't a land use law. It's a general law that applies to the entire city.

The city is asking for the suit to be thrown out, and I bet it will be.

Granted, this may only be round one. Merced could come back with out objections such as those you raise in your comment.

A very cursory look at the law suggests that municipalities in Texas have pretty expansive legislative powers.

When I was little there used to be live chicken deliveries to the Hassidim in my area. The Greek immigrants would keep lambs in their garages prior to Easter and then slaughter them in the yard. This was in Montreal in the late '60s and early '70s, eventually the city banned all livestock except in areas zoned for the purpose and encouraged specialty butchers.
There are plentiful health and safety issues around keeping livestock and the slaughtering of them. It is always preferable to have an overall ban and then encourage alternatives: a location in the nearby farming areas, near already defined butchering sites and such. Hopefully the priest and local government can figure out a reasonable solution.

I think the proper, though not obligatory, thing for Euless to do would be to permit some sacrifices of this sort in the interests of religious freedom.

Correspondingly, I think the proper, though not obligatory, thing for Jose Merced to do would be to stop sacrificing animals in the interests of benevolence and decency.

(I also think that it would be proper, although not obligatory, for Focus on the Family to stop printing books which encourage borderline-abusive treatment of kids. This doesn't mean I expect it to happen, but so long as we're talking about ideals here...)

If the Santeria priest has enough money to bring the case to a federal court he'll no doubt win as Constitutional protections on religious freedom will prevail, as the local judges could be more biased in favor protecting a city ordinance.

I am however offended as a vegan who supports animal rights at any practice of animal brutality to satisfy some primitive ritual practice. Even grocery stores remind me of disturbing cemetaries for animal flesh. But I cannot decide the dietary demands for others, nor should I, only for myself.

There are legitimate health and safety reasons to keep slaughterhouses out of cities.

Indeed, the U.S. Supreme Court recognized this in the (in)famous Slaughterhouse Cases (1873), in which the majority interpreted the 14th Amendment's "privileges or immunities" clause narrowly to affect only rights of "national citizenship" and not "state citizenship".

Of course, that's not really the issue here. But, having been forced to learn the Slaughterhouse Cases back in law school, I felt compelled to take the opportunity to mention it.

This is crazy. I am an animal lover and he doesn't have the right to kill any animal. And since the Eules has a an ordinance about it then she should not be exempted on it even if it's done inside his house or property.

Next thing you know, they'll outlaw vegetable gardens because the spinach might have E. coli.

Seriously, people have been killing and eating their own food ever since there have been people. Home-grown and small-farm animals are always healthier and more sanitary than any of that factory-raised stuff in the grocery store, and we should be encouraging people to get more involved with the production of the food they eat.

But animal sacrifice? That's just creepy.

But animal sacrifice? That's just creepy.

As compared to ritual cannibalism? Catholics call THAT communion.

All religion is, when observed through the lens of pure intellect, is a bit odd. I go to shul almost every week, and I know that there is a level of absurdity about all of it.

But animal sacrifice? That's just creepy.

As compared to ritual cannibalism? Catholics call THAT communion.

All religion is, when observed through the lens of pure intellect, is a bit odd. I go to shul almost every week, and I know that there is a level of absurdity about all of it.

Uh, unless I missed something the crackers and wine are symbolic ritual cannibalism, wherein nobody dies or is eaten. I'm foresquare against ritual animal sacrifice. What happens when someone insists that infant clitorectomies are an integral part of their religious practice? There may be a bright line between animal sacrifice and genital mutilation to most people, but a sufficient body of case law validating anything that people call religious practice coupled with strong parental rights, it's not and farfetched as one might think.

Uh, unless I missed something the crackers and wine are symbolic ritual cannibalism, wherein nobody dies or is eaten.

You did miss something.

I assume poisonous snakes of any length are out, but what's with the wombats?

"The key thing, IMO, is that small-scale slaughter permits should be available to any citizen who wants to slaughter something at home, not just for people who want to do so for religious reasons."

Thanks for making this explicit. I agree completely with the line of thought that, while we want to make sure that people are able to reasonably practice all of their religious rites and such, we do not need to create a class of special rights for the religious. That someone cannot practice their religion gives us reason to ask, "is this law really necessary? Can it be modified to permit certain reasonable practices?" but these questions should normally not make reference to religion. Whether you want to sacrifice a goat or just roast a pig should be treated the same. I would add, the various laws which have been enacted at times about religious use of controled hallucinogens should have been writen for anyone one wanted to use the substance, without reference to their religion.

Maybe I just don't want to be denied rights because of my atheism.

"The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread."

Anatole France.

I suspect the city will win, because the burden is seen as equal, but I don't think it is. I think, just as the question of "undue burden" applies in issues of choice, this is a case where the burden (no one is allowed any slaughter) is disproportional. The only reason this comes up is because it is recurrent, even if not regular.

If Joe Random Citizen got a couple of chickens, and slaughtered them, no one is likely to complain, because by the time the realise what's happening, the problem is resolved.

But this guy suffers because his religion requires him to do this more than once. And the ban on where such things can be done, effectively, removes from him the free practice of his religion. He has to move his church (shades of the ghetto, and sundown laws) or abandon his faith.

Because, you see, Baptists, Catholics, Jews and Zororastrians are also forbidden to sacrifice, so it's fair.

TK

Danny Yee: precisely, what about the wombats?

Has there been some sort of central-Texas wombat menace that has hitherto escaped my notice? First it was the fire-ants, then the killer bees, now the wombats!

Some obscure sect of wombat-worshipers that are being oppressed by the authorities? Where do I sign up?

Did one of the municipal officials have an ex that kept a chronically incontinent wombat named 'Tiddles', and this was a ploy to drive them out of town?

Or was it ignorance on the part of officials, thinking that wombats were a variety of bat?

Inquiring minds want to know! There's just got to be an interesting story in this. If it was FL (instead of TX), Carl Hiassen would easily get a novel out of this...

I only bring this up because I actually remember the case... my remedies Professor in law school argued it before the Supreme Court. Although the facts are slightly different, it's nearly the same case: Church of the Lukumi Babalu Aye vs. the City of Hialeah.

unless I missed something the crackers and wine are symbolic ritual cannibalism

Well, you missed several centuries of theological debate about transubstantiation, consubstantiation, divine essence, etc, etc.

My guess is that this law, or at least this chapter, originally began as an attempt to make Hispanics, or possibly Asians, there are a lot of Vietnamese in the area, unwelcome. -Matthew Saroff

My guess would be it started as an anti-hippie ordinance.-SamChevre

My guess would be that y'all are bound and determined to see this attempt to regulate the slaughter of animals as an example of xenophobia. There may be an element of xenophobia involved--a fear of people who, regardless of their race, ethnicity or political leanings, don't buy their meat at the A&P--but their may have been genuine health and safety concerns, as well as generous nationwide precedent, that lead to the law. Just because animal slaughter can be performed hygienically doesn't mean it will be. People have been shitting in pits in the ground for thousands of years, but I'll bet if you dug a two-foot deep pit in your backyard in Euless for your "convenience," the law would come down pretty hard on you, too.

That said, I think a system of licensure could easily be enacted to deal with the present problem. Licensure would insure that slaughter would be hygienic, that animals would be present on the property for a limited amount of time, and that it wouldn't be something everyone does. I think just striking the slaughter prohibition off the books could be asking for trouble down the line, when barely-dead goat becomes the next trendy cuisine, and a bunch of silly yuppies with no farming experience start attacking designer goats with sporks.


"unless I missed something the crackers and wine are symbolic ritual cannibalism"

Well, you missed several centuries of theological debate about transubstantiation, consubstantiation, divine essence, etc, etc.

What you missed is that he's a heretic. Prepare the auto da fe!

How about letting people slaughter mentally handicapped orphans in their homes, so long as these orphans' mental capacities do not exceed that of a goat, and the slaughter is done in a hygienic manner? Sounds reasonable to me. Anything else would be hypocritical, unless one believes in a divinely favoured human soul.

Paul Hooson writes: "But I cannot decide the dietary demands for others, nor should I, only for myself."
Enough with this moral relativism. Paul, of course you can -- and should -- decide what it is morally permissible for others to eat, just as you can and should decide whether it is morally permissible for others to rob banks, invade other countries on false pretences, or sacrifice mentally handicapped orphans in their homes. Morality that applies only to oneself is not morality but mere personal taste.

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