Comerford 1

RIGHT OR RELIGION: THE IMPLICATIONS OF THE UNITED STATES LEGAL

CULTURE ON ANIMAL-HUMAN RELATIONS

Introduction
In 1987, Hialeah, Florida introduced a series of civil ordinances to combat animal

sacrifice, a Santerian religious practice that was becoming increasingly prevalent due to the

city’s growing afro-cuban populations1. These legal bodies at essence forbade the “unessecar[y]

killing of an animal in a public or private ritual or ceremony, not for the primary purpose of food

consumption”2. The primary Santerian religious institution of the area, the Church of Lukumi

Babalu Aye, responded with a civil suit in the district court of south Florida. The church claimed

such laws were overtly biased, and a form of religious discrimination, whereas the city asserted

the ordinances were a protection of public health and animal rights3. Through a lengthy series of

appeals, the case eventually reached the United States Supreme Court. The ruling of the case in

favor of the church was extremely controversial, and set a unique precedence for future

conflicting constitutional rights claims. While this case is most frequently cited in the context of

first amendment religious freedom, it is also deeply entangled in the realm of animal rights. To

better understand the role of animals in the legal and cultural hierarchy, this text will establish

the context of Santerian religious history. Utilizing this foundation, I will outline the process of

and actors involved in the case. This will culminate in an overarching analysis that questions not

only what the Church of Lukumi v. City of Hialeah reveals about the legal view of animals, but

also the tone animal-human relations in American culture. Due to the inextricable link between

law and culture, this case demonstrates a societal hierarchy in which some animals are valued

less than others, and the right of human expression is unquestioningly valued most of all.

1
O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu Aye v. City
of Hialeah. Lawrence, KS: University Press of Kansas, 2004: 42
2
Ibid., 44.
3
Ibid., 83.
 Comerford 2

The Culture of Santeria

To best understand the legal conflict and complex implications of the Church of Lukumi

v. City of Hialeah case, it is pivotal to explain the case’s cultural context. The term Santeria was

originally utilized by Spanish clergy and upper classes to describe the religious and cultural

practices of Afro-Cuban slaves4. Currently the concept is used to describe a wide range of

Creole ideological practices birthed in the Caribbean as a result of the African Diaspora(similar

to the way Christianity is used to describe, for example, Catholic, Protestant, and Episcopalian

institutions)5. These traditions stem from a “forcible” amalgamation of colonized and colonizer

cultures: the Yoruba practices from African Slave populations; the Spanish, French, and

Portuguese versions of Catholicism; aspects of English and Dutch Protestantism; and native

animistic beliefs6. This faith centers around the worship of orishas, or saints, which often

correspond those venerated in Catholicism7. O’Brien goes as far as to call Santeria a “folk

version of Catholicism”, and asserts the connection helped spread the religion throughout diverse

demographics; upper class whites as well as working class black and hispanic individuals

practiced the faith in large numbers8. The nuances of Santerian belief are relatively esoteric, as

they are only transmitted orally. A prominent form of religious practice is the sacrifice of

animals, which is preformed to venerate saints and heal community members. It is noteworthy

4
Olmos, Margarite Fernandez and Lizabeth Paravisini-Gebert. Creole Religions of the Caribbean: An
Introduction from From Voodoo and Santeria to Obeah and Espiritismoso. New York City, NY: NYU
Press, 2011: 2.
5
Ibid., 2.
6
Ibid., 2.; O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu
Aye v. City of Hialeah. Lawrence, KS: University Press of Kansas, 2004: 32
7
O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu Aye v. City
of Hialeah. Lawrence, KS: University Press of Kansas, 2004: 42
8
O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu Aye v. City
of Hialeah. Lawrence, KS: University Press of Kansas, 2004: 12.
 Comerford 3

that the animals sacrificed in these ceremonies, which include goats, chickens and other small

birds, are also sacrificed other historically relevant faiths (including modern Judaism). These

rituals, songs, and prayers are lead by high priests, babalawos and iyaloshas, and initiated

priests, santeros/as. Communities of faith are organized into cabildos9.

While having distinctly Caribbean roots, Santeria spread to the United States through the

waves of Cuban immigration that followed the rise of Fidel Castro in the late 1950s10. One of

these first immigrants was Ernesto Pichardo, who went on to build the physical and institutional

structures of the Church of Lukumi. Pichardo came from a white, middle-class, Cuban family

who was deeply entrenched in various denominations of Santerian faith. In 1974 Pichardo and

his brother Fernando founded the church, which for decades had no physical presence, but was

organized in terms of written tenets, requested dues from members, and established hierarchical

structures for religious leaders and practitioners11. By 1987, the Church finally acquired

property to open a temple.

The Lemon Test and the Appellate Courts

Quickly after the church announced it was opening a central location, media coverage

and protests began. Within days of the Church’s first pre-opening event, Hialeah City Council

called a meeting that resulted in ordinances prohibiting the acts of sacrifice central to the

Santerian faith12. In writing, these texts stressed the risk posed by sacrifice in terms of disease,

9
Ibid., 28.
10
Ibid., 19.
11
Ibid., 25.
12
O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu Aye v. City
of Hialeah. Lawrence, KS: University Press of Kansas, 2004: 33.
 Comerford 4

while also briefly mentioning the inhumane treatment of animals. While animal interest groups

and organizations influenced the Church of Lukumi case, they played a acutely lesser role than

the human interest groups involved. The most prominent influence of animal activists was in

catalyzing the creation of the ordinances. From the initial rise of the Church of Lukumi, the

Humane Society of the United States (HSUS) actively lobbied the Hialeah City Council to take

legal action (eventually as part of a nation-wide campaign to criminalize animal sacrifice), and

proposed 6 months jail time and a $1000 fine as punishment13. While the intensity of their

suggestions was not translated into law, the HSUS applied pressure to create the initial

ordinance.

Pichardo responded with a civil suit against the city, which was initially brought to the

municipal civil court under Judge Spellman. The case, as a contest of religious freedom, was

framed with a deep precedence of case rulings, and a clear structure with which to evaluate such

claims. Both Spellman, the 11 Circuit Courts, and the Supreme Court utilized this body of case

law, know as the Lemon Test. This assessment is threefold: firstly the statute must have a

secular purpose, secondly it must not advance or inhibit religion, and thirdly it must not result in

an “excessive entanglement” of church and state14. Notably this structure does not provide room

for the discussion of animal rights. Based upon this logic, the municipal court and the 11 Circuit

ruled in favor of the City of Hialeah, and upheld the ordinances.

The case was appealed again, and granted by the Supreme Court of the United States in

1992. A series of amicus and opposition briefs were filed by various interest groups, speaking to

their perspectives on the case. While these briefs were filed in the greatest numbers by religious

13
Ibid., 38.
14
O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu Aye v. City
of Hialeah. Lawrence, KS: University Press of Kansas, 2004: 66.
 Comerford 5

organizations (prevalently from Jewish organizations), animal rights activists were also involved.

Prominent groups, such as PETA, the ASPCA, the Institute for Animal Rights Law, and the

Animal Human Alliance, all contributed to these briefs respectively, and pushed the Supreme

Court to revoke the writ of certiorari and dismiss the case as improvidently granted, or “DIG”,

(meaning to reverse the grant to hear the appeal, thus upholding the previous lower court’s

ruling)15. These briefs, however, did not result in a DIG ruling. Furthermore, the animal rights

dialogue made up a small portion of the discussion of the case, not only legally, but also in the

media and general public. This lack of concern about the role of animals in the case narrative

highlights the lesser role animal rights take in both law and culture.

The Supreme Court released a four part, unanimous ruling in favor of the Church,

however several justices disagreed upon the logic for this ruling. The overall sentiment was that

the ordinances were not generally applicable, because they specifically targeted Santerian

practices, and were too broad to target animal cruelty or public health. In this fashion, the

ordinances were ruled discriminatory and unconstitutional16.

Analysis

Objectively ruled cases like Church of Lukumi v. City of Hialeah, feel completely

separated from American culture. The Lemon test, as process of deliberation, is an almost

mathematical understanding of a case. Furthermore, The Church of Lukumi Babalu Aye and

Ernesto Pichado v. City of Hialeah is not expressly a case of animal rights. How can such a

singular legal understanding of a case reveal anything about animals or American culture?

15
Ibid., 38.
16
O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu Aye v. City
of Hialeah. Lawrence, KS: University Press of Kansas, 2004: 96.
 Comerford 6

However, because the case centers around violent human action against animals, the process

through which the case developed and was presented during trial, and the rulings it produced

have distinct implications about the role of animals in American culture.

This understanding can be facilitated through Durkheim’s theory of functionalism, which

describes society as a careful equilibrium. When this overarching conception is applied to the

law, it interprets crime as a necessary method of creating social solidarity based on values.

When a society reacts to a crime negatively, individuals congregate around shared values and

desired behaviors17. The use of law to exclude and punish individuals who threaten shared

values, strengthens society as a whole and reinforces such ideals. Marx, through a similar socio-

legal perspective, also asserts that law is a cultural product18. In this manner, American culture

codifies all its core values through law; law is a reflection of the most widespread and deeply

held facets of culture.

The Church of Lukumi v. City of Hialeah corresponds directly with the logic of Durkheim

and Marx, and produces cultural implications for animal-human relations. Firstly, the Hialeah

ordinances claimed to be focused on public safety, with a subsequent emphasis on animal rights.

In this way the possible harm sacrifice could pose to the human population in terms of disease

head greater importance than the death of animals. Animal rights fell second to the protection of

human liberty.

Durkheim’s understanding of law is epitomized in the actions of the Supreme Court.

While state and federal legislators react to societal trends, the Supreme Court acts as the final

arbitrator. Its rulings affect the entirety of the United States, and speak for the overarching ideals

17
Menkel- Meadow, Carrie. “Restorative Justice: What is It and Does it Work?” Annual Review of Law
and Social Sciences, 2007, 3: 161-87.
18
Cotterrell, Roger. Law, Culture, and Society: Legal Ideas in the Mirror of Social Theory. Hampshire,
England, 2006: 17
 Comerford 7

of American culture. The Supreme Court rulings act as powerfully as laws, and establish

overarching normative precedence that is very rarely challenged. This specific ruling acted as the

final exertion of culture’s legal influence, and viewed the ordinances as unconstitutional. In the

words of Durkheim, the ordinances were not an accurate reflection of the values head by society.

Instead, this ruling asserted that the right of human beings to expression through religion is

integral to human society. The Supreme Court implicitly stated that animal rights are not

important to American culture when in contention with human rights.

Ellickson asserts that the interaction of norms and the law are a further reflection of

culture19. Law without accompanied action is nothing more than an amorphous concept. The

interpretation and application of legal code is the epitome of Durkheim’s thesis, as the action of

law enforcement is what most deeply impacts society. Justice Kennedy ultized this logic in his

reading of the Court’s ruling. While he was not opposed to the language of the law that

promoted the protection of animals, Kennedy felt the the interpretation of the law by police and

city officials was problematic20. The justice did not dispute the protection of animals, rather he

contested the use of such logic to openly discriminate against a religion. This statement

inherently implies that the human right to expression is valued more heavily than the right to life

of animals.

Durkheim's understanding of society also connects to the reasons behind mass

mobilization. Notably, there was very little emphasis on the case in terms of the harm posed to

animals. While there was some protest and involvement of animal activists, their presence was

objectively overshadowed by religious and human rights groups. This fact alone displays the

19
Ellickson, Robert. Order Without Law: How Neighbors Settle Disputes. Cambridge, England: Harvard
University Press: 1991.
20
O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu Aye v. City
of Hialeah. Lawrence, KS: University Press of Kansas, 2004: 140.
 Comerford 8

social hierarchy present within American culture. The mobilization of the media, legal actors,

and general public was focused around the human issues posed by this case, showing the

relatively low status of animals in comparison to their human counterparts. Also, the city of

Hialeah mobilized legally and socially against Santerian animal sacrifice, as opposed to Jewish

kosher slaughter, indicating that society did not value the protection of animals, but rather

rejected the afro-cuban culture that was becoming increasingly prevalent in Hialeah.

Furthermore, in Singer’s revolutionary text on animal rights, he claims there should be no

difference between the privileges and protections awarded to animals and humans21. Both

entities should be addressed by a single body of rights. While this is clearly an aspiration not a

reality, it does help further contextualize the frame of the case. Animal actors in this narrative

objectively suffer more than any other group. While there is some health risks for humans, and

the Cuban practitioners of Santeria face religious discrimination and societal exclusion, the

animals sacrificed face eminent physical suffering and death. This fact received little recognition

in a legal or media setting. This implies that right to life of animals is worth less than the free

will of humans. With this mindset, animals lives are worth very little in comparison to their

human counterparts.

The species of animals involved in this case also deeply affected the way it was framed.

If the Church of Lukumi had been openly sacrificing dogs or cats, the public outcry would have

been much stronger. The case itself would have been framed very differently in court, and

would have centered around animal rights. Thomas touches upon the origins of this animal

hierarchy in his assessment of Victorian England22. His understanding of privileged species

21
Singer, Peter. Animal Liberation. New York City, NY: Harper Collins, 1975: 15.
22
Thomas, Keith. Man and the Natural World: A History of the Modern Sensibility. New York, NY:
Pantheon Books, 1983: 100.
 Comerford 9

profoundly contextualizes this case. Chickens, birds, and goats are not animals that would be

considered privileged, and are historic food sources. On the contrary, Bulleit’s description of

post-domesticity profiles the emotional and social bond humans have with the species of pets23.

These animals are considered companions, cared for as children and family members, and have

distinctly higher positions within the animal-human hierarchy. In this manner, the Church of

Lukumi case reveals distinct differences in the relationship between humans and varying animal

species.

Furthermore, chickens are an example of a domesticated animal raised for slaughter.

Cronon describes how the transition to industrial meat production and processing impacted the

way Americans view such animals24. While chickens and birds have never filled the upper

echelons of the animal hierarchy, these animals are now further removed from humans in post-

industrial America. Cronon goes as far as to assert that these animals are viewed as living

packaging for the commodity of meat25. With this in mind, it is not surprising that the sacrifice

of chickens was not objected to. While the slaughtering of chickens is not an unusual or

emotional facet of American society, the threat of foreign religious practice is. In connection to

Durkheim’s thesis, the presence of Santeria was a greater threat to the unified anglo-Christian

values of American society than the actual slaughter of animals. Because of this, it is clear that

American culture is more deeply concerned with the quality of human life, than the basic right to

live of animals.

23
Bulliet, Richard W. Hunters, Herders, and Hamburgers. New York, NY: Columbia University Press:
2005: 198.
24
Cronon, William. Nature’s Metropolis: Chicago and the Great West. London, England: W.W. Norton
& Company, Inc., 1991: 256.
25
Cronon, William. Nature’s Metropolis: Chicago and the Great West. London, England: W.W. Norton &
Company, Inc., 1991: 256.
 Comerford 10

Conclusion

Law and culture are vague terms used prolifically to describe the normative and

institutional facets that structure human life. It is also evident that the two conceptions are

reciprocally linked; law profoundly shapes culture, just as culture influences which bodies of

legislation come into being. This phenomenon is incredibly pertinent to the discussion of animal

rights within the United States. The Church of Lukumi case, as an example of the American

legal system, presents a perspective of animals that is deeply intertwined with the societal

hierarchy. Animals fall far below humans within this structure. Even their ability to live is

valued less than the human need for free expression. Furthermore, the apathy towards animals

was shaped by the species involved. In an extension of the arguments of both Bulliet and

Thomas, stock animals raised for slaughter are treated with less empathy than the dogs and cats

kept as pets, thus influencing how cases are tried. Because of the influence of culture on law, the

Church of Lukumi v. City of Hialeah is a perfect lens to explore the interaction of animals and

human society.
 Comerford 11

References

Bulliet, Richard W. Hunters, Herders, and Hamburgers. New York, NY: Columbia University
Press: 2005.

Cotterrell, Roger. Law, Culture, and Society: Legal Ideas in the Mirror of Social Theory.
Hampshire, England, 2006: 17

Cronon, William. Nature’s Metropolis: Chicago and the Great West. London, England: W.W.
Norton & Company, Inc., 1991.

Ellickson, Robert. Order Without Law: How Neighbors Settle Disputes. Cambridge, England:
Harvard University Press: 1991.

Menkel- Meadow, Carrie. “Restorative Justice: What is It and Does it Work?” Annual Review of
Law and Social Sciences, 2007, 3: 161-87.

O’Brien, David M. Animal Sacrifice and Religious Freedom: the Church of Lukumi Babalu Aye
v. City of Hialeah. Lawrence, KS: University Press of Kansas, 2004

Olmos, Margarite Fernandez and Lizabeth Paravisini-Gebert. Creole Religions of the Caribbean:
An Introduction from From Voodoo and Santeria to Obeah and Espiritismoso. New York
City, NY: NYU Press, 2011: 2.

Singer, Peter. Animal Liberation. New York City, NY: Harper Collins, 1975.

Thomas, Keith. Man and the Natural World: A History of the Modern Sensibility. New York,
NY: Pantheon Books, 1983.