Monday April 30, 2007

“Miami-Dade County health officials said they have received numerous complaints about the dead birds from visitors of the beach, but there is nothing that can be done because the religious practice is protected by the U.S. Constitution.” Bullcrap — there’s nothing in Santeria that requires leaving a mess (right!?). Kudos to Channel 10 for providing a link to more information about Santeria, but UM’s page is pretty lame. Try Wikipedia next time.

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  1. MiamianLawStudent    Tue May 1, 04:20 AM #  

    Yea, no. Stopping Santeros (or members of any religion that practices animal sacrifice) from “leaving a mess” would violate the constitution.

    Also, why is this tagged “Haitians”?



  2. alesh    Tue May 1, 07:51 AM #  

    (In retrospect, I guess that doesn’t make any sense.)

    Seriously, though, that doesn’t really violate the constitution, righ?



  3. Manola Blablablanik    Tue May 1, 10:23 AM #  

    Seems like the birds are washing up on the beach instead of being sacrificed directly on the beach.

    In any case don’t people get fined for littering?



  4. MiamianLawStudent    Tue May 1, 02:19 PM #  

    If you have a good enough lawyer and a really well written law, you might get away with it. But, it’ll be a long shot. The Constitution prohibits the state from interfering with religious practices by passing a law that does so “on its face” or by applying some other law (e.g. against “littering”) to have the same effect.

    If the government passes a law that prohibits the sacrificing animals for religious practices it has violated the first amendment. If it passes a law that does so in a round about way—for example saying that you can only kill animals in slaughterhouse—it’s also violated the Constitution. A Supreme Court case called Lukumi v. Babalu (or something like that, I don’t remember) stands for this very proposition. There, Hialeah tried to stop Santeros from sacrificing animals by requiring that all killing of animals occur in slaughterhouses (a believe it did so through a zoning code change). The Supreme Court overturned the law.

    What’s more, Santeria is not the only religion in Miami that performs animal sacrifice. So even if it’s not part of Santeria’s religious practices—the Channel 10 report suggests it’s customary in Santeria to actually eat the sacrificed animal—the government may be discriminating against some other religion by attacking animal sacrifice. It would have to be shown at trial that the other religion sacrifices too but that shouldn’t be difficult.

    You could try to argue that leaving the bodies in public is not a part of Santeria, as Alesh argued in his post. But the freedom of religion is never to be taken lightly and a judge is likely to take Santeros’ opinion as to what is and isn’t part of their religious practices above the government’s opinion. This is especially likely because the Supreme Court in Lukumi acknowledged that Santeria is a very secretive religion. This acknowledgement suggests that judicial review should err in the religion’s favor.

    Now, the government could fine them for littering as they would someone who dropped a candy wrapper. But the risk of the Santero complaining that this law was targeted against him because of his religious beliefs isn’t worth the trouble. The cost in time and money of fighting of the suit makes it best to just pay to clean up the birds. Of course all of this is impossible unless you actually catch the Santero in the act.

    The government would really be shooting itself on the foot if it passed a law or even if an agency did something as seemingly minor as passing around a memo telling agents to focus on people who litter sacrificed carcasses. This would indicate systematic discrimination against Santeros.

    Whether the government fined individual “litters” or systematically discriminates, it would be liable to the plaintiffs for tort damages which could be very expensive. The fines would be greatest if they discriminated systematically because the plaintiffs could (possibly) file a class action. In short, it’s not worth the time and money.

    More importantly do keep in mind that this is a religious practice and that the freedom of religion is one of our most cherished liberties. Even if we’re opposed to animal cruelty or littering, they have a right to practice and we must respect it.



  5. Manola Blablablanik    Tue May 1, 03:43 PM #  

    Lawstudent, thank you for such a thorough analysis. I do uphold the freedom of the practice … but seriously, a rotting carcass is a rotting carcass. It’s endangering the public in terms of sanitation and hygiene. If my tax dollars have to pay to make my beaches a cleaner place because of someone’s willful depositing of rotting carcasses into public places (again, with all due respect to the religious practice) where do we draw the line? I don’t get pissed off at the Jews in my hood having an Eruv because it doesn’t cause any detrimental damage to people or places, but decaying animals? Again, there should be a fair compromise between the needs of the practictioners and public welfare.



  6. MiamianLawStudent    Tue May 1, 04:46 PM #  

    I agree that a line needs to be drawn. Everyone does. And that’s the problem. The Supreme Court says the line needs to be drawn to favor religion as much as possible. I kind of agree with that.

    In the Lukumi case, Hialeah advanced exactly the argument you have. They said rotting carcasses are endangering the public hygiene. The Supreme Court essentially said “Tough. Find another way to fix the problem.”

    That said, I think you’re overreacting about carcases. The streets of a city aren’t a hospital. Animals die. Animals get killed. People piss and shit and the streets. Death, piss, shit, and bacteria are especially prevalent in the ocean. Fish do these things all the time.

    The answer to poor hygiene is to clean it up. Not clamp down on someone’s religious practices.

    I wonder, do you think there needs to be as rigid an enforcement against the homeless, illegal dumpers, and every one else who liters?

    Finally, yeah, it is expensive to clean things up and yeah these carcasses are caused by people’s willful acts not the natural life of the ocean. But it’ll be cheaper than fighting the legal battles. And, if you believe in social and political snowballs, cleaning up as opposed to clamping down is least restrictive on ALL our liberties.



  7. kingofrance    Tue May 1, 04:47 PM #  

    I think it’s important to remember that there is absolutely no proof that links the dead birds to Santeria. There’s probably a good possibility that they were used in some religious practice, but I think that story is a little light on the facts and heavy on the voodoo. (Live Team Coverage: Santeria – Will They Turn Your Children To Zombies?) Actually, I’d be more worried about those gigantor iguanas that live over on the Key.



  8. Manola Blablablanik    Tue May 1, 05:08 PM #  

    Lawstudent, your point is well taken, but the issue here is not the normal death and decay we encounter … I’ve done a lot of fishing in these waters and have never seen carcasses and such … would you take your kid to a beach full of rotting birds with maggots and such? Just saying, a line needs to be drawn … and well, if it’s easier to clean up, then clean away. (We do have our seasonal Turkey Vultures to help, and they’re not even on the city’s payroll).

    Kingoffrance: excellent point. The occasional dead bird is common, but a prolonged incidence is. Someone should look into it.



  9. srcohiba    Wed May 2, 01:39 PM #  

    They cannot pass a law prohibiting sacrificing. The case was already decided by the supremes involving the Hialeah santeria group.

    However, the free exercise of religion does not extend to creating a public health hazard by dumping carcases into the water/beach. They have to be disposed properly.

    It’s a bunch of BS for anyone to say that they cannot do nothing about the unlawful dumping of animal carcases. There’s state law on this already on the books and it passes constitutional muster.



  10. kingofrance    Wed May 2, 02:31 PM #  

    “The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.”
    Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520

    Basically, Hialeah (it’s always Hialeah, isn’t it?) tried to pass ordinances against this type of animal dumping and the Supreme Court said they couldn’t do it. And there is a law here in FL against animal dumping; ยง 823.041.



  11. MiamianLawStudent    Wed May 2, 02:40 PM #  

    Srcohiba, please read my comments above.

    Sure there are laws against dumping of animal carcases but you can’t apply them to infringe on the freedom of religious practice.

    You’re right that there’s a public health hazard to be regulated but, as compelling a state interest as the public health may be, under strict scrutiny a judge will undoutably ask, “why not just clean the shit up?”

    You must keep in mind that this is not “dumping” or literring. It’s a dead animal, sure. But to a Santero it’s something much more. We could just as well ban Jewish eruv as littering, Muslim calls to morning prayer and Christian church bells as noise nuisances, but we don’t because it infringes on free exercise. We recognize that as annoying or absurd as we might fight these practices we must respect them. Despite the public health concern, we must respect religious animal sacrifice.



  12. MiamianLawStudent    Wed May 2, 02:43 PM #  

    KingofFrance,
    Thanks for posting that. See my response to SrCohiba about the dumping law.



  13. srcohiba    Wed May 2, 04:19 PM #  

    you folks are missing my point. You cannot pass a law as a guise to prohibit the free exercise of religion. That’s a given. However, the santeria religion does not have as its tenets that it can dump at will all these animals on public streets. The other examples you point out don’t rot and potentially cause diseases. The santeros, if it is them, can kill their chickens and goats and dispose of them properly in accordance with Florida law. They do not have the free exercise to pollute the environment. The Hialeah case was more restrictive in that the law was clearly aimed at forcing the church out of the city limits (a big no no) and it was so vague it could conceivably make illegal the boiling of a live lobster. hence why they lost.

    The statute KOF cites merely states:

    (1) Any owner, custodian, or person in charge of domestic animals, upon the death of such animals due to disease, shall dispose of the carcasses of such animals by burning or burying at least 2 feet below the surface of the ground; provided, however, nothing in this section shall prohibit the disposal of such animal carcasses to rendering companies licensed to do business in this state.

    (2) It is unlawful to dispose of the carcass of any domestic animal by dumping such carcass on any public road or right-of-way, or in any place where such carcass can be devoured by beast or bird.

    (3) Any person violating any of the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
    ——————————————————————

    By requiring santeros or anyone to abide by Fla. law does not infringe upon anyone’s free exercise of religion.

    If those animals are being dumped in the ocean, then there are other laws that would apply.

    where you run into problems is where you have the City of Hollywood trying to ban the orthodox Jews from setting up a shul in a residential neighborhood under the guise of traffic, noise, and litter problem. The city lost big time on that.

    ———————-
    But I do agree that the City should clean up the mess and try to send the bill to whomever caused the problem. I’m so sick of seeing all this trash on our beaches. I’m sure all these folks would not like it if I went and dumped all my crap in their living rooms; they should treat our public beaches the same.



  14. MiamianLawStudent    Wed May 2, 04:54 PM #  

    Sr. Cohiba,

    You’re missing my point. Even an ostensibly benign law can become unconstitutional through Section 1983 if it infringes on someones free exercise AS APPLIED.

    In my prior comments I assumed that Santeria or other religions required placing the carcases in public. I’ve always understood this to be the case. Are you sure Santeria (or some other religion) doesn’t require leaving them in public?

    Either way, whether the religion includes sacrifice would be the government’s words against those Santeria experts. A court seems likely to buy the Santero expert’s claims and the Santero expert’s claims seem likely to allow it. (this is all guess work of course)

    You agree that clean up is the best solution but you musn’t miss site that if the bills for clean up are directed there may well be a violation AS APPLIED. The only way to work your system of billing people for the carcases would be if 1) the person was caught in the act and 2) everyone received a bill whenever they dumped relatively small amounts of litter. Enforcement of all dumping fines faces these precise problems (especially when dumping is small scale).

    At the end of the day it’s cheaper to clean up without calling up CSI to find out who left the mess and then sending them the bill.



  15. Manola Blablablanik    Wed May 2, 04:56 PM #  

    srCohiba my point exactly. It’s biohazardous. The religion can adapt to 21st century community in which it abides. I understand it is a syncretic religion coming out of African-American/Christian customs in the Caribbean but what applied to Cuba or other islands 300 years ago does not necessarily apply to Miami today.

    LOL when you wrote KOF I saw KFC.



  16. MiamianLawStudent    Wed May 2, 05:23 PM #  

    Yes it is biohazardous. But a lot of things are. That’s why we’ve a sanitation department that is supposed to clean up. That’s not a reason to ban a religious practice or purposely target generally applicable laws against that practice.



  17. J-J    Wed May 2, 06:32 PM #  

    I think saying that “the religion should adapt to the 21 century community” is a slippery slope. How and who would decide such a thing, it’s better to just clean up the carcass, rather than infringe on some-one’s religion, which btw has always been marginalised even back in Cuba…



  18. srcohiba    Fri May 4, 12:57 PM #  

    Law Student, you misunderstand the concept of “as applied” The “as applied” std. in 1st amendment jurisprudence is when a facially neutral law is enacted with the intent of infringing on religion. Under 1983 which is the sole basis to sue for constitutional deprivation you must have intent. It would be perverse to argue that enforcing Florida’s law (as cited earlier) was enacted and is being used to “intentionally” discriminate on relgiion. Your argument as I understand it is akin to a disparate impact argument that is used in civil rights cases under Title VII. No such action exists in constitutional law since the supremes decided that in Washington v. Davis ages ago.

    Just like you can impose time, place, and manner restrictions on speech, no one under the guise of religion has free reign to violate any law they want. As far as santeros are concerned, and I’m not one, they are suppposed to sacrifice animals on alters.

    nothing in the tenets of their religion (or any religion justifies them to dump their swill on public streets or waters esp. with the issues of avian flu and whatnot.



  19. MiamianLawStudent    Fri May 4, 03:53 PM #  

    Sr.Cohiba,

    First, I presumed motive could be shown given the tone of the conversation and the original post. The post and subsequent comments suggest that the enforcement be carried out with the necessary motive. So, no, I’m not making a a disparate impact argument but, because of the nature of the blog/audience, I wasn’t clear about all of my presumptions.

    Second, my understanding is that the motive need not exist at the legislative level. Rather the it need only be shown at the enforcement level. Is that correct? If so, I think my presumption upholds my argument.

    Third, I don’t see why it would be perverse to suggest motive at the enforcement level. Indeed Washington v. Davis seems to upholds this precise point. There the court says disparate impact needs to be weighed but it alone cannot be decisive. The more decisive factor, as you’ve noted, is discriminatory motive. The court indicated that if the police department had misapplied the hiring procedures with the necessary motive then there might have been an equal protection violation. (I haven’t read the case in over a year so I’m not sure of this. Correct me if I’m wrong).

    Third and much more important, my argument turns on an evaluation of risks: 1) the risk of a legal challenge and the resultant costs compared to the cost of just cleaning it up; 2) the risk of violating religious practices which neither of us fully understand (you point about the altar requirement noted but not neither of us practice sacrifice); and 3) the increased hygiene problems and danger to children on the beach seem exaggerated.

    The risk of a legal challenge makes it potentially too costly to enforce the law against Santeros as it’s been proposed. If you go through the trouble of tracking down a Santero, you have a good chance of facing a legal challenge (even if it is a losing challenge). It’s therefore more efficient to clean up the mess and move one. This isn’t large or even mid-scale dumping on the side of a road. This is a couple dead birds here and a couple more there.

    That said, the only instance where there should be fining should be where someone is caught in the act by an officer. Then there will be proof of dumping, minimal expense, and the enforcement will look neutral.

    The risk of violating religious practice must be weighed if we want to fully value the freedom of religion.

    Finally, I am no medical or environmental expert (i.e., this is just guess work), but there doesn’t seem to be much of a heightened sanitation risk when we look at the big picture. Sure, sacrificed animals are unsanitary where found but city wide, taking into consideration all the hygiene risks out there, and weighing the frequency at which the problem occurs seems relatively minor concern. Rather, the reaction to sacrificed animals seems motivated more by the shock at nature of the pollution than a rational evaluation of the problem. As I said above, the streets of a city and its public beaches are not hospitals; there’s piss shit and other nasty stuff everywhere.



  20. alesh    Fri May 4, 07:46 PM #  

    LawStudent~

    Thank you for your patient explanations. I wasn’t trying to suggest enforcement to specifically target any particular group, though. I infer from the reporting that what’s happening is that enforcement officials during the course of their regular work, when they discover these violations of existing (and, we all agree, constitutional) laws, are not able to enforce them.

    It seems to me that this is crap, because they’re not looking for Santeros (is that the correct term?) — they just find them during the course of their regular work. I don’t see how taking the appropriate action would constitute “infringement as applied.” — the law was passed without the intent to infringe and the enforcement is without the intent to infringe — they’re just fining someone for leaving dead animals laying around!

    This comes down to a simple test of whether the religious practice is infringing on the rights of others. I don’t think the supreme court would have any problem with this one, any more then it would have a problem with someone getting fined for creating christian graffiti. I’m with srCohiba on this one

    Kingoffrance~

    Thanks for the citation; I think that informed the debate. BTW, what’s up with that site you’re linking to?!



  21. Manola Blablablanik    Fri May 4, 08:32 PM #  

    BTW, after thinking about it, I doubt those birds are “washing up,” based on the depth & currents of Biscayne Bay . most probably sacrificed and dumped on the premises … yay



  22. Perry Mason    Sat May 5, 08:42 AM #  

    Can you guys please get a courtroom?

    Thank you.