Documents Cited in the Supreme Court Ruling - 14
Oral Arguments

No. 91-948.

United States Supreme Court Official Transcript.

Wednesday, November 4, 1992.

 Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:01 a.m.


 DOUGLAS LAYCOCK, ESQ., Austin, Texas; on behalf of the Petitioner.
 RICHARD G. GARRETT, ESQ., Miami, Florida; on behalf of the Respondent.
[Oral Arguments 2]


ORAL ARGUMENT OF DOUGLAS LAYCOCK, ESQ. On behalf of the Petitioner ... 3

ORAL ARGUMENT OF RICHARD G. GARRETT, ESQ. On behalf of the Respondent ... 26

REBUTTAL ARGUMENT OF DOUGLAS LAYCOCK, ESQ. On behalf of the Petitioner ... 51

[Oral Arguments 3]


(10:01 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in Number 91-948, Church of the Lukumi Babalu Aye, Inc. v. the City of Hialeah.

Mr. Laycock.


MR. LAYCOCK: Mr. Chief Justice, may it please the Court:
     This is a case about open discrimination against a minority religion. The four ordinances challenged here were enacted in direct response to the church's announcement that it would build a church and practice in public. They were enacted for the express purpose of preventing the central rituals of this faith. That purpose is recited in the preambles to the ordinances and in the accompanying resolutions. The preambles say that the city's --
QUESTION: Is that true of each of the ordinances?
MR. LAYCOCK: It is not recited in all four of them, no, Justice White. It is recited in two of the preambles and in one of the resolutions.
QUESTION: So it's possible that some of the [Oral Arguments 4] ordinances could be upheld --
MR. LAYCOCK: Well, we do need --
QUESTION: Or at least it's possible that some of the ordinances might not be discriminatory on their face is that it?
MR. LAYCOCK: It is possible in theory, yes.
QUESTION: Okay. All right.
MR. LAYCOCK: All four ordinances have merged from the same pattern of legislation. I think they all share the intent, but the intent is recited principally in 87-52 and 87-71.
     The accompanying resolution that goes with the ordinance recites that the target is certain religions and certain acts of any and all religious groups. The ordinances are written in religious terminology. They do not forbid killing, they forbid sacrifice, and indeed, these ordinances do not forbid any physical act as such. All the prohibitions depend in part upon an analysis of the purposes or motives of the actor, and when the analysis is complete, the religious motive is always forbidden.
    But I think what is most revealing about these ordinances is that they are written on the assumption that animal sacrifice is unnecessary. The city's brief says it's unnecessary, the State Attorney General's opinion [Oral Arguments 5] says it's unnecessary, all of the city's amici say it is unnecessary, and lack of necessity is an element of the offense in three of the four ordinances.
QUESTION: Mr. Laycock, may I ask you a preliminary question? There is a State law that touches on some of this as well, is there not?
MR. LAYCOCK: There is a State law that is incorporated into one of the ordinances. The State law is not challenged in this case. I think --
QUESTION: Well, has the Attorney General of the State interpreted the State law to encompass the practices at issue here?
MR. LAYCOCK: Yes. The State -- the sequence was, was the Hialeah City Council enacted ordinance 87-40, which incorporates the State statute, and then the city requested of the Attorney General an opinion as to whether the State statute that had thus been incorporated applied to animal sacrifice, and he responded that it did apply because sacrifice is unnecessary.
QUESTION: So even if you win here, presumably the State law would be in effect.
MR. LAYCOCK: Whether the State law remains in effect, the State is not a party. There was no ripe threat of prosecution from the State. There was a ripe threat from the city.
[Oral Arguments 6]
QUESTION: And so do we have any of the concerns expressed in Renee v. Geary, our case dealing with redressability?
MR. LAYCOCK: I'm not familiar with Renee, but I am familiar with the redressability issue. This lawsuit can resolve all of the ripe threats of prosecution and entirely redress that injury.
     The State may or may not at some point in the future attempt to enforce the State law. It has not yet done so. There are a variety of other general statutes that the city may at some point construe to apply against us. None of those controversies are ripe either.
QUESTION: Well, the State law may not suffer from what you claim to be the principal flaw in these ordinances, namely, an express intent to affect religious rituals, and the State law may be neutral on its face.
MR. LAYCOCK: Well, the State law is not neutral on its face as applied to this practice, but you're right, Justice White, that the history of the State law is very different. That would be a different case, but an attempt to enforce the State --
QUESTION: Well, if there was an attack on the State law, would you be arguing that it is specifically aimed at religious practices and nothing else?
MR. LAYCOCK: No. If we were attacking the [Oral Arguments 7] State law, I would be arguing that the theory, the legal theory of the Attorney General to make the State law applicable targeted religion. The statute as a whole has many secular applications, but the theory by which it might apply to us is a theory that violates the First Amendment and is specifically targeted at religion.
QUESTION: Well, would the attack on the State law be somewhat more difficult for you to sustain than the attack on the local ordinance?
MR. LAYCOCK: I think that if the ordinances are struck down, the stare decisis effect will pretty much take care of us on the State statute, but the history, the way in which the ordinances were enacted, is unique to the ordinances and does not apply to the statute. The --
QUESTION: Mr. Laycock, what do you rely on for the threat of prosecution from the city? It's just the prologue, or have there been other threats of prosecution?
MR. LAYCOCK: Well, the finding of fact is that the city firmly intended to prevent all animal sacrifice in the city, the city adopted resolutions reciting that intention, the entire legislative package was targeted at my clients. The threat of prosecution seemed quite real, and then they have complied for 5 years as a result of that threat of prosecution.
QUESTION: Are some of these ordinances zoning [Oral Arguments 8] ordinances?
MR. LAYCOCK: No, none of them are zoning ordinances, and zoning is a red herring in the case.
     Some of the ordinances say that with proper zoning you can have a commercial food business or a commercial slaughterhouse, but none of the ordinances say or even imply that with proper zoning you could sacrifice. Sacrifice is absolutely forbidden.
     So there are farms within the city limits with proper zoning. You can slaughter hogs and cattle with proper zoning. Slaughterhouses turn out millions of pounds of meat per day, and in theory, although not in fact, they could be zoned into Hialeah, but sacrifice will remain absolutely forbidden by these ordinances even with those -- even with slaughterhouse zoning.
QUESTION: And does your client still intend to perform these sacrifices within the City of Hialeah?
MR. LAYCOCK: Yes, he does.
QUESTION: Does the ordinance define sacrifice?
MR. LAYCOCK: The ordinance defines sacrifice as the unnecessary killing of an animal in a ritual or ceremony not for the primary purpose of food consumption.
QUESTION: And when you say sacrifice, you are using it in the term that the ordinance defines it, then.
MR. LAYCOCK: That's right. That's right.
[Oral Arguments 9]
QUESTION: Mr. Laycock, if you were attacking solely the State statute and you were doing so following an opinion of the Attorney General that a sacrifice was unnecessary, what would your argument be consistent with Smith?
MR. LAYCOCK: Well, Smith says that religious acts are subject to neutral and generally applicable regulation, but Smith also reaffirms the long line of cases that says Government cannot resolve religious controversies. Government cannot decide whether sacrifice is necessary or unnecessary.
     An element of the offense under the State law is that the killing of the animal be unnecessary. That's also an element under three of the four ordinances. The only way to prove that sacrifice is unnecessary is to prove that Santeria is a false religion.
     To believers in Santeria, sacrifice is directly commanded by the gods in considerable detail on each occasion when it is required. To prove it unnecessary, you must prove the religion false, and when the prosecutor has to prove a religion false, the prosecutor is engaged in a heresy trial.
QUESTION: Gee, there -- I'm sure there are a lot of statutes, local, State and Federal, that use the term unnecessary. Do you mean whenever somebody says that [Oral Arguments 10] God tells him it is necessary, that statute is invalid as applied to that person? That can't be right.
MR. LAYCOCK: The prohibition has to depend upon something other than the lack of necessity, Justice Scalia.
     If Hialeah had a generally applicable prohibition on killing animals, if it said no one may kill an animal in the City of Hialeah, the religious necessity would be irrelevant under this Court's decision in Smith, but Hialeah doesn't have anything like that. Hialeah says, you can kill animals for a whole range of reasons that we the city consider necessary, but not for this religious reason that we the city consider unnecessary.
     So the necessity element is applied directly to the theological question, and that is forbidden, I think, by the most central principal of the First Amendment and reaffirmed in Employment Division v. Smith.
     It's also important that none of these ordinances interfere with any of the routine killings of animals that the citizens of Hialeah depend upon every day. The city tells us that all of those killings are not only necessary, they're important. Bow and arrow hunting is very important. Getting rid of surplus pets is important.
QUESTION: Is there a lot of bow and arrow [Oral Arguments 11] hunting in the City of Hialeah?
MR. LAYCOCK: Well, there is bow and arrow hunting by citizens of Hialeah who bring their kill, bring the entire carcass back to the city. There are farms in the City of Hialeah. There are veterinary offices that kill animals in Hialeah.
QUESTION: Well, certainly under our cases the city can deal with one perceived evil at a time without having to deal with the whole ball of wax, can't it?
MR. LAYCOCK: I disagree, Mr. Chief Justice. When the first step is the First Amendment, they can't deal with that one step at a time. They have to deal with constitutionally protected activities in a generally applicable way.
     They can distinguish bow hunting from killing surplus pets one step at a time, but they can't say our one and only step is to suppress this religion and distinguish that from all of the secular killings of animals that they permit.
QUESTION: Even though that's the only evil that is occurring in the -- and you say that's not so, but supposing that the city council thought that was the only evil that were occurring in the City of Hialeah?
MR. LAYCOCK: But the reason they think it's the [Oral Arguments 12] only evil is that they disapprove the religion.
QUESTION: Well, yes, but let's withdraw from that a little bit and just say, supposing the city council sees what they perceive as this evil, or something that they want to regulate. You say it violates the First Amendment, and you say one reason it does is there are lots of other things that they should have embraced, and their response to that is, well, none of those were going on in the City of Hialeah.
MR. LAYCOCK: They have not said that none of those things go on --
QUESTION: No, but I'm giving --
MR. LAYCOCK: And the record does not show that none of those things go on.
QUESTION: I'm giving you a hypothetical.
MR. LAYCOCK: Okay. Then -- yeah, if no other killings of animals are going on in the City of Hialeah, then their solution under Smith would be to draft an ordinance that simply says, it is illegal to kill an animal in the City of Hialeah. That would be unfortunate for my clients, but under Smith that would be a neutral and generally applicable law. And then --
QUESTION: They can't make any exceptions to it. Once they make any exception at all, it's no longer a law of general applicability.
[Oral Arguments 13]
MR. LAYCOCK: I'm inclined to think they can't make any exceptions, but this case doesn't get us anywhere close to that question.
QUESTION: You mean, you couldn't say you may kill animals for food but not for other purposes -- not for sport, not for sacrifice, not for anything but food. You couldn't even make that exception.
MR. LAYCOCK: I can imagine an exception you'd kill an animal in self defense if you're being attacked by a bear.
QUESTION: Yes, an animal in self -- or --
MR. LAYCOCK: Right, okay. I can imagine very narrow exceptions, but what they cannot do is create broad exceptions that eliminate the political resistance to the law and enable them merely to target the unpopular religion. They have to treat -- as I read your opinion in Smith, they have to treat religion at least as well as they treat favored secular activities.
QUESTION: Well, but it may not be targeting the unpopular religion, it may be targeting the unpopular act, which may be an act that happens to be practiced only by the religion.
MR. LAYCOCK: The act is not different. The animal is equally dead whether killed in a ritual or ceremony or killed otherwise.
[Oral Arguments 14]
QUESTION: Yes, but you've acknowledged that the act becomes different depending upon what its purpose is, that you'll allow it in self defense, you might allow it for food, but you might not want to allow it for other purposes.
MR. LAYCOCK: I -- I --
QUESTION: It's a different act depending on what the --
MR. LAYCOCK: I do not believe they can allow animals to be killed for food without a ritual or ceremony and forbid these sacrifices where the animals are killed in a ritual or ceremony and then eaten. They can't do that.
QUESTION: Take, for example, United States v. Reynolds, which was the case in which we upheld the constitutionality of a law prohibiting bigamy in the territory of the United States.
     Suppose that -- in fact, the only -- there was no problem with bigamy, that the only reason the law was enacted was because there was a single -- a single religious group that practiced it. Would that law therefore, since the only people who do that act happen to do it for religious reasons, is that law invalid?
MR. LAYCOCK: That law was not invalid. That law was not analogous to this one. It did not say bigamy [Oral Arguments 15] is forbidden when done pursuant to the teachings of celestial marriage, bigamy is bad when done for religious reasons. It was an across-the-board prohibition, and --
MR. LAYCOCK: It implemented a prohibition that had been present in Anglo- American law for centuries, and there had been bigamy by people who were not Mormons and who were not religiously motivated.
QUESTION: That hinges on your saying -- or ignoring, I think, the definition of sacrifice though, doesn't it, because the definition of sacrifice includes any ritualistic killing which would include a killing by a fraternity group.
      Now, you may say well, there aren't any fraternity groups, but that just brings you back to the problem in Reynolds. There may not have been anybody else practicing bigamy, either.
MR. LAYCOCK: There may not have been anybody else in Utah at that moment, but bigamy laws have been around for a long time because there had been a problem that the legislatures and the common law had addressed.
     The legislatures and the common law have never tried to suppress the killing of animals in any systematic way, and if this Court is willing to accept that a definition of sacrifice that contains a hypothetical [Oral Arguments 16] fraternity ritual is thereby not targeted religion, I think you would equally have to accept that a prohibition on communion is nondiscriminatory and neutral because it might include a fraternity initiation.
QUESTION: Could the city council require that all slaughter of animals within the city be done in a humane manner and define humane in a way that the result of which was to either prohibit or require the alteration of these sacrifices?
MR. LAYCOCK: Again, I think they could do that if they did it in a neutral and across-the-board way, but many of the killings that they permit are slower and less reliable, crueler than the method of sacrifice by slicing the carotid arteries, which is the method specified in the State and Federal humane slaughter acts.
QUESTION: Well, Mr. Laycock, in your view as you read Smith, what is the purpose of the neutrality requirement? Is it an end in itself?
MR. LAYCOCK: I don't think it's an end in itself.  I hope that the purpose is to build into the political process some of the protection for religious minorities that the other half of Smith says that the courts are not going to be providing on their own.
QUESTION: Well, we have a neutrality standard that we administer. What is the purpose of that standard?
[Oral Arguments 17]
MR. LAYCOCK: Well, I think the purpose is that this Court stands ready, it says in Smith, to say that if you -- if a Government singles out religion for special burdens or special prohibition, that is forbidden. You have to at least treat religious acts as well as you treat analogous secular acts.
QUESTION: And that is the ultimate end.
MR. LAYCOCK: Well --
QUESTION: We don't have a further reason that --
MR. LAYCOCK: Well --
QUESTION: We are concerned with --
MR. LAYCOCK: No, I -- I --
QUESTION: Prohibiting legislatures --
MR. LAYCOCK: Well --
QUESTION: From acting with hostility to religion.
MR. LAYCOCK: I -- I can't read your minds, but I think the purpose for which you enunciated that requirement is that requiring the legislature to treat an unpopular minority faith as well as it treats the bulk of the population will give a sort of self-enforcing political protection to the religious minority.
     They cannot suppress sacrifice unless they are willing to suppress food killings, poison in people's [Oral Arguments 18] yards, exterminators --
QUESTION: Well, but I take it the underlying purpose for that is to avoid a regime which is hostile to religion.
MR. LAYCOCK: Well, I think that's right, but whether or not the whole regime is hostile to religion or whether only a particular body of legislation or a single law is hostile to a particular religion, I think the neutrality requirement is designed to protect religious practices at least to keep -- it's a way of avoiding open persecution if they can single out a religion and treat it differently from how they treat everybody else.
QUESTION: Well then the ultimate -- our ultimate inquiry, our ultimate purpose, is to avoid a particular subjective motivation on the part of the State.
MR. LAYCOCK: Well, certainly avoiding that subjective motivation I think is part of your purpose, but I don't think it should be all of the purposes. Whatever you find about the subjective motive of the council, if the ordinances on their face forbid sacrifice and do not forbid other killings, I think that's discriminatory.
QUESTION: Well, that might be simply an objective mechanism --
MR. LAYCOCK: That's right. But I think either --
[Oral Arguments 19]
QUESTION: For probing the existence of the forbidden intent.
MR. LAYCOCK: Both the objective and the subjective I think are evidentiary on each other, but as I read Smith and as I read analogous cases in the equal protection context -- Washington v. Davis and Massachusetts v. Feeney, I think either objective discrimination in the text of the statute or a subjective discriminatory motive is sufficient to put us into the compelling --
QUESTION: Because they both are probative of the forbidden purpose.
MR. LAYCOCK: I think that's right.
QUESTION: Did the district court make any finding on the question of discrimination?
MR. LAYCOCK: Yes, he did. He made two findings:
     1) The city council's specific intention was to prevent animal sacrifice anywhere in the city. I think that, in terms of discrimination against religion, is a finding of discrimination.
     And 2) that the city council did not intend to discriminate against Santeria as opposed to Palo Mayombe or any other animal sacrificing religion. It was going to treat all these minority religions equally, but there was [Oral Arguments 20] intent to suppress this family of religions.
QUESTION: The family of religions, or the practice of sacrifice. I mean, was there a finding that there was an antagonism towards Santeria? Was there any attempt to suppress the religion as such?
MR. LAYCOCK: When you suppress the central ritual, I think you suppress the religion.
QUESTION: Well, that's true, but you know, --
MR. LAYCOCK: The finding is --
QUESTION: There have been people like the Thugs were a religious group, I believe, and their central ritual was killing other people.
QUESTION: Surely that can be suppressed.
MR. LAYCOCK: That can be suppressed pursuant to neutral and generally applicable laws against murder, and I suppose even pursuant to the compelling interest, but --
QUESTION: And Hialeah says they have a universal, generally applicable law against ritualistic killing of animals.
MR. LAYCOCK: But that is not a universal or generally applicable law at all.
MR. LAYCOCK: It applies only to religion.
QUESTION: No. Anybody who wants to have a [Oral Arguments 21] ritual and -- you're quite right, it doesn't happen very often in fraternities, though I imagine it happens now and then. But why isn't that a valid argument, that -- they don't care whether you're doing it for religious reasons or not. They really don't care what your reason is.
MR. LAYCOCK: If that's a valid argument, you really have repealed the free exercise clause. Any lawyer in the country with that standard of drafting can draft an ordinance to get any church that happens to be at crosswise with the city council. You know, it's --
QUESTION: In effect you're saying you've got to define the act without reference to the intention of the people who perform the act.
MR. LAYCOCK: You have to define the act without reference to the religious or secular motives, and you have to define the act without reference to things that are themselves inherently religious. In Smith, you --
QUESTION: You must ban all killing of animals or else no killing of animals because the purpose can't be taken into account, is that what you're saying?
MR. LAYCOCK: You must ban all killing of animals or you must permit religious killing of animals. Of course --
QUESTION: I thought you said you could at least allow self defense. That's a purpose.
[Oral Arguments 22]
MR. LAYCOCK: I said we would have a much harder and closer case if there were a couple of narrow --
QUESTION: I don't think it's close at all. I think it's obvious you can say -- I think it's obvious you're allowed to allow the killing of animals in self defense, and that doesn't mean you have to allow all other --
MR. LAYCOCK: That's right, but if the self defense exception would be permitted it would be because of the indication in Smith that the permitted reasons are compellingly different from the religious reasons.
QUESTION: The purpose makes a difference, so you can take purpose into account.
MR. LAYCOCK: You can -- but you don't take it into account at the neutrality stage, you take it into account at the compelling interest stage.
     The argument would be that saving human life by killing an animal in self defense is a compelling interest, and that that distinguishes that narrow exception from the religious killings of animals, but what they've done here is say, you can kill animals for almost any reason -- just because you're tired of taking care of them, that's a good enough reason. That's necessary -- but not for religious reasons.
QUESTION: Did the courts below here apply a [Oral Arguments 23] compelling interest standard in analyzing the ordinances?
MR. LAYCOCK: I think not, Your Honor. They --
QUESTION: Well, they --
MR. LAYCOCK: Recited the compelling interest.
QUESTION: They purported to do so.
MR. LAYCOCK: They purported to, but --
MR. LAYCOCK: They effectively equated it with rational basis.
QUESTION: And specifically, where do you find the fault with the analysis of the courts below?
MR. LAYCOCK: Well, there's no effort to require the city to show that its compelling interest fit the discrimination in these statutes. Its ritual and ceremony has nothing to do with the pain to the animals or the problem of disposal. There is no effort to insist that the compelling interest be pursued in a neutral or generally applicable way. There is no insistence that the interest be especially important.
     What all of these interests are are incremental reductions in quite general problems that the city manages for secular purposes. We have carcasses lying on the road when pets are killed by cars. The city doesn't ban cars and it doesn't ban pets. It responds to the problem.
     An incremental reduction in a general problem [Oral Arguments 24] cannot be obtained at the expense of the First Amendment. That can -- the incremental reduction can never be a compelling interest, and that's really what the district court found over in --
QUESTION: Certainly city can distinguish between accidental killings of pets by cars and treat them one way and intentional killing of animals on the other, can't it?
MR. LAYCOCK: Yes, but the accident intention distinction doesn't go to the disposal problem. The disposal problem is this. There are -- some small fraction of all the animals that are sacrificed are apparently improperly disposed of by certain members of these faiths. To eliminate that small fraction, the city says, we have to forbid the entire practice of sacrifice.
     The analogous pursuit of the interest would be to forbid all ownership of pets because some of them wind up dead and lying on the roads. They've applied a prophylactic total ban to --
QUESTION: Yeah, but --
MR. LAYCOCK: To sacrifice.
QUESTION: One act is intentional and the other is just accidental.
MR. LAYCOCK: But most of the people who intentionally sacrifice do not improperly dispose of the [Oral Arguments 25] animal. The finding is most of the sacrificed animals are eaten.
QUESTION: Well, like so many cases it depends on how you describe your class.
MR. LAYCOCK: Well, I understand, but they've described the class in a discriminatory way. They've described the class as -- in religious terms and enacted a total prohibition on the religious conduct to get a tiny reduction in problems that they simply manage and deal with in secular context and they do not have any comparable prohibition on the secular activities that produce the very same harms.
     They don't prohibit hunting and other means of cruel killing, and they don't prohibit other sources of garbage, but they prohibit this religion because they think the religion is unnecessary.
QUESTION: Is it their failure to preclude broadly enough, is it the underinclusiveness of it which precludes the finding of a compelling State interest?
MR. LAYCOCK: You can describe this as underinclusiveness if you want, but this is underinclusiveness with a vengeance, because nothing is included.
QUESTION: You're saying it's underinclusive with a purpose. Ah, yeah.
[Oral Arguments 26]
MR. LAYCOCK: No killings of animals are included except the religious killings of animals, so it's underinclusive in a sense, but they really have singled out religion for a prohibition that is applied nowhere else.
      If there are no further questions, I'll reserve my remaining time.
QUESTION: Very well, Mr. Laycock.

Mr. Garrett, we'll hear from you.


MR. GARRETT: Mr. Chief Justice and may it please the Court:
     As the record reflects, in the summer and the fall of 1987, the councilmen observed that the citizens of the City of Hialeah were concerned over the potential for animal sacrifices being conducted in the City of Hialeah.
     I think it is extremely important that the factual setting be clear in order that the Court can make the evaluation of whether or not in fact this religious practice was targeted or whether a legitimate governmental purpose was the subject of these ordinances. I believe that important factual consideration leads to answer many of the questions that are posed with respect to the alleged subjective targeting and the underinclusiveness [Oral Arguments 27] that is alleged with regard to the ordinances.
     Specifically, what Hialeah was facing in the summer and fall of 1987 was a situation where tens of thousands of animals, according to the district court findings, were being sacrificed in the area of South Florida. The specific problems that the city encountered in connection with these sacrifices --
QUESTION: But not in Hialeah.
MR. GARRETT: Excuse me, Your Honor.
QUESTION: But not yet in Hialeah.
MR. GARRETT: Your Honor, there are facts in the record that reflect that sacrifices had in fact been occurring in Hialeah, that dead animals were being found in public places --
QUESTION: All right.
MR. GARRETT: Within Hialeah, that animals were being, in effect, tortured in Hialeah and subjected to cruel treatment in the form of possession prior to sacrifice. The problems were certainly existent in Hialeah.
MR. GARRETT: I think that the record should reflect very clearly that Hialeah was responding to the problem of ritualistic sacrifices taking place in the city.
[Oral Arguments 28] What type of problems are we talking about? We're talking about human health hazards. The human health hazard evidence was evidence concerning the fact that when sacrifices take place, that as many as 52 animals in a single day are killed, and they are killed in a private residence in many instances and then they are decapitated, blood is put into pots, the animals are then oftentimes left out in public places if there is a ritual that requires the animal to be left in a public place.
     There are problems connected with disease. The disease problems were discussed directly at the trial court as being a problem associated with the fact that the killings take place in residences, and as a result of that you have spilled blood, you have animal parts left in and around houses. That is different than the general problem of garbage, and --
QUESTION: Well -- well --
MR. GARRETT: It is significantly --
QUESTION: May I interrupt you for a minute? I suppose it would have been possible for the city to approach this problem by adopting ordinances spelling out the ways in which animals may be killed and the ways or requirements for disposition of any remains, is that not right? I mean, it could have enacted such ordinances.
MR. GARRETT: We believe not, in terms of [Oral Arguments 29] effectiveness, Your Honor. We believe that the nature of the animal sacrifice problem begins all the way from the point in which the animals are possessed for the purposes of animal sacrifice, that the evidence at the district court level was that the inhumane treatment to the animals, which is one of the problems that we cite, begins at that point, and that enforcement is almost impossible because the botanicas and other farms that sell these animals, you have a quickly moving problem. Enforcement is very difficult.
     More importantly, with respect to the possession of the animals during the sacrifice, there is no evidence that you can solve all of the problems in a house, in a private residence, with respect to a quiltwork of ordinances designed to regulate everything that goes on in that private residence from the standpoint of how many animals you have in that residence, how many -- how they can be killed, what you do with the blood cauldrons, how you have to hold the knife.
     Then you have problems associated with the disposal of the animals, and that the religions oftentimes mandate they be left in public places.
     The point is that with respect to effectively solving the problems, it is our position that, 1) you couldn't solve all the problems with a series of [Oral Arguments 30] ordinances, and 2) that the nature of the kind of entanglement that you would be getting involved in as a result of passing this patchwork of ordinances would itself cause a constitutionality problem of entanglement with the religion.
     Finally, the kind of ordinances that would be required to deal with this problem even to begin approaching effectiveness -- and we contend the city is not required constitutionally to enact a large number of ordinances which still don't solve the problem.
 But assuming that you did enact a large number of ordinances, it's our position that they would be back in court saying you've in effect prohibited us from doing what we need to do in our religion, because now you have told us how we have to hold our knives, how we have to kill them, how we have to handle the blood in the particular ceremonies, and how we have to dispose of the animals, and our gods say that's not what we can do, and therefore we would have the same problem.
     We'd be back here with a different type of argument, but with the same kind of argument that the regulatory framework that we had created effectively precluded them from practicing their religion, and that is the problem that the city was facing.
     I'd like to go back to these --
[Oral Arguments 31]
QUESTION: You might have an ordinance that was easier to defend, though, in that situation, if it had been directed more precisely at the results of these proceedings rather than at the proceedings themselves.
MR. GARRETT: Well, our ordinances, Your Honor, are not directed at religion, they are directed at the practice of animal sacrifice. They are specifically directed at the conduct.
     Now, a lot of argument has been made in the neutrality area here, that really by targeting animal sacrifice we are targeting the religions that do those animal sacrifices. That is not in our opinion a proper analysis of the situation, because our legitimate problem was animal sacrifices.
     Our legitimate problem the record doesn't reflect was hunting, it isn't euthanasia, it's not pest control, it is the problem with animal sacrifice, all the way from the beginning of the process and the damage to the animals to the end of the process and the disposal of the remains. So we addressed what our problem was, we didn't address what other kinds of problems may exist, and we're not required --
QUESTION: But maybe you have to. But maybe you have to. That's what it -- maybe what a generally applicable law means. You don't address the problems of [Oral Arguments 32] hunters who kill animals cruelly, or dispose of their carcasses in a manner that you don't approve of or that's unsanitary, but you do pick upon this religious practice.
MR. GARRETT: Your Honor, there are two responses to that:
     1) This is not only a religious practice. There is evidence in the record which has not been mentioned that groups engage in this activity -- malevolent magic is mentioned by one of their witnesses to describe what existed with respect to a goat that was cut in half and found on Miami Beach.
     There are also -- there's also evidence in the record with respect to the fact that this particular type of practice is engaged in by Satanists, by witchcraft, voodoo, and this Court has never gone so far as to particularly extend protection to those groups.
QUESTION: Well, why shouldn't that go to the compelling interest? You could say that these ordinances do target religion, but they're a compelling interest.
MR. GARRETT: We believe that there are two ways, certainly, to reach the result of the district court. The first way is the come to the conclusion that we really do have a neutrality in terms of meeting the neutrality standard of Smith, because we are not underinclusive.
[Oral Arguments 33] We dealt with our particular governmental problem. We didn't have any record of evidence of any problems of hunting, any problems of euthanasia, and therefore we meet the neutrality standard.
     But I think that there's a second separate ground that doesn't even require a Smith analysis and conclusion of neutrality, which is simply that we had substantial compelling governmental interests that justified the particular ordinances at hand, and we mentioned at the trial court and we argued that the human health hazards are substantial.
     The human health hazards, which I want to get back to a for a moment -- when you talk about killing of large numbers of animals, and blood and goat heads being present in a community where people live, in residence areas, you are dealing, according to the expert testimony, with a problem of creating vectors for disease.
     These vectors come about because in an area where you have animal parts or blood in residential areas, you create harborages for rats, who generally like to travel only within 150 feet of their particular food supplies.
     Then you have the possibility of the fleas, the flies transmitting the diseases. Now, the diseases don't come from the animals in particular. They may come from [Oral Arguments 34] other animals that feed on them that are diseased.
QUESTION: But you let householders who have animals slaughter -- there is an exception made for slaughter of a small number, outside of a slaughterhouse, of a small number of pigs and such. Isn't there an exception for that?
MR. GARRETT: There is not an exception in the city ordinances of Hialeah that would permit an individual to slaughter his own animals for any reason in his house. The ordinances cannot be read as permitting any individual killing of animals in the City of Hialeah by a resident, and so --
QUESTION: Supposing somebody had a sick cat, that he thought he had to put him out of his misery, is it unlawful in Hialeah to kill your own cat?
MR. GARRETT: There is a situation in Hialeah where you may, for the purposes of --
QUESTION: Well, for no purpose except to put him out of its misery.
MR. GARRETT: Yes, that would be permitted in the City of Hialeah, but we believe that it would be permitted by an establishment that is qualified to do that.
QUESTION: You mean, I couldn't just drown my own cat in the bathtub or something like that?
[Oral Arguments 35]
MR. GARRETT: No, that would certainly be cruel.
QUESTION: It would.
MR. GARRETT: That would be a cruel killing. That would certainly not be permitted under the ordinance.
QUESTION: It's forbidden to do that.
MR. GARRETT: It's forbidden. It's clearly forbidden under 87-40.
QUESTION: But supposing I gave him an injection of something to put him to sleep, then, instead of doing it in the bathtub.
MR. GARRETT: In that situation it would be a permitted -- it would be a permitted killing, yes.
QUESTION: Let's go back to your reason for not targeting the unsanitary practice rather than targeting the religious practice that you say ultimately leads to it. Why are you likely to be more effective in targeting a religious practice so defined than you are in targeting an unsanitary practice defined as such?
MR. GARRETT: Because the sanitary problem that we have identified is one that is unique to animal parts in public places growing out of sacrifice.
QUESTION: Yes, but the sacrifice is unique to private practices in private houses, and I don't see how you are likely to be very effective in reaching that.
[Oral Arguments 36]
MR. GARRETT: Because if you prohibit the sacrifice, because you are in a position to stop it at a point when the animals are possessed, because you also have a possession statute and you have animals lined up going into a residence, you in effect preclude the problem from developing.
QUESTION: Well, I know you do if you can do it, but I guess my question is, why are you likely to be more effective in preventing the practice within the private house than you are to be in preventing the disposal in a public place?
MR. GARRETT: Because our view is that there are indications of when an animal sacrifice is about to take place in a house. There are large numbers of people, there are animals outside, and it is the view that we would be able to stop that.
     On the other hand, with respect to the placement of individual animals throughout the community, that doesn't nearly create the level of conduct or problem that would be perceived by the governmental authorities from an enforcement point of view.
 QUESTION: Did the district court make findings on these indicia of approaching sacrifice?
MR. GARRETT: The district court made some very specific findings about how overwhelming the sacrifice [Oral Arguments 37] process can become in terms of large numbers of animals being sacrificed in one initiation ceremony in a very small house in Hialeah with a 6 x 10 kitchen, and the district court judge marveled how this could all be done in a sanitary condition under circumstances where the animals were cared for properly under circumstances where the killing was --
QUESTION: But you don't allow that. I mean, you don't allow that no matter how sanitary, no matter how easy it is rendered for you to police it. There is not even exception -- you make an exception for slaughterhouses. You can have a licensed slaughterhouse where killing may occur, because I guess it can be inspected and so forth.
MR. GARRETT: It can be inspected, it can be regulated --
MR. GARRETT: The method of killing can be monitored --
QUESTION: But if you're talking about sacrificial killing, you don't even allow it to be done at a place -- a temple, a church, whatever -- where they say, come in and inspect. Do you want to come in and inspect? Do it.
MR. GARRETT: Your Honor, I think --
[Oral Arguments 38]
QUESTION: You allow it to be done nowhere, no matter how easy it is for you to police, no matter how willing they are to have you inspect it. You just say, no sacrifice.
MR. GARRETT: I think there is an open question with respect to the ordinance 87-72, under circumstances where all of the other problems associated with animal sacrifice were alleviated -- and when I'm talking about that, the cruelty to the animals, the situation of the method of slaughter, whether it is humane or not -- which could permit the animal slaughtering where the food is consumed, under 87-72, in an area that was properly zoned for slaughterhouses, and I think that that is something that the petitioners have never pursued.
     The record reflects that on the eve of trial of this case the petitioners made an application for the purpose of being able to conduct animal sacrifice as a slaughterhouse in the location of the church, and that was never pursued. There is also quoted in the --
QUESTION: When you say never pursued, did the city act on it?
MR. GARRETT: The -- it was in effect withdrawn. It was not pursued. It was immediately on the verge of trial. It was not pursued. There was no action.
QUESTION: So there is no pending application in [Oral Arguments 39] the City of Hialeah.
MR. GARRETT: As we understand at this point there is no pending application at the City of Hialeah.
QUESTION: Does the City of Hialeah allow people in their homes to trap mice and rats --
QUESTION: If they're killed in the process --
QUESTION: And to boil live lobsters and eat them?
MR. GARRETT: There is clearly a prohibition in the ordinances about the boiling of lobsters, if you read the ordinances as saying, as I think they do -- or any other animals, so I don't believe that the lobsters --
QUESTION: You can't boil the lobster --
QUESTION: You can't eat lobster --
QUESTION: In Hialeah.
MR. GARRETT: I think that technically -- a technical reading of the ordinance would say that the boiling of lobsters is claused by, other animals. In your house, I think there is an exception --
QUESTION: And what's the exception for the mice and rats? Where do I find that?
[Oral Arguments 40]
MR. GARRETT: The exception for the mice and rats would be in the State statute with respect to ordinances.
QUESTION: I thought we were looking at the city ordinances.
MR. GARRETT: Yes, and there are --
QUESTION: I just wondered where I found the exception. Can you show me?
MR. GARRETT: I believe I can. I believe that the exception is that it would not fall within a sacrifice --
QUESTION: Could you give us the page number of the --
MR. GARRETT: Well --
QUESTION: Are you referring to the text of some ordinance, and where would I find it?
MR. GARRETT: Yes. I think that none of the ordinances would define it as a sacrifice. I believe that it is not being killed for food, and therefore it would not be covered under the particular ordinances.
QUESTION: The trapping and so forth are not sacrifices.
MR. GARRETT: That's correct.
QUESTION: And that's because what the city was trying to prohibit here was just the ritual sacrifice as [Oral Arguments 41] performed by this church and others like it.
MR. GARRETT: No, I think that what the effort was here was -- and we make -- we don't try and argue against this. We were trying to prevent animal sacrifices. The question --
QUESTION: By this church and others like it.
MR. GARRETT: Not only churches, by any person, by any religion, by any cult, by any secular act --
QUESTION: You talked earlier about the slaughterhouse possibility. Suppose there is an area that's zoned for a slaughterhouse and it is a slaughterhouse, can it be used on Saturdays and Sundays for animal sacrifices?
MR. GARRETT: I believe that there are no slaughterhouses at this point in the City of Hialeah.
QUESTION: Well, I want -- I have a hypothetical city and a hypothetical slaughterhouse.
MR. GARRETT: In that situation, I believe that there would under the rulings of this Court probably have to be either a Saturday or Sunday available in order to conduct the rituals in those particular slaughterhouses.
QUESTION: That is to say that the sacrificial rites that are conducted in a slaughterhouse are protected by the First Amendment.
MR. GARRETT: I think that they would be. Yes, [Oral Arguments 42] I do.
QUESTION: There is a First Amendment right to sacrifice animals.
MR. GARRETT: No, I believe that there is a First Amendment right to, in a situation where you have a circumstance where you are allowing some religious practices to occur in a slaughterhouse, that you would have to allow them to occur on a Saturday or a Sunday.
QUESTION: Well, let me ask you this. If a church finds a slaughterhouse that is properly zoned and if it follows standards of applicability that are general for the disposal of animals, does it have a constitutional right to engage in its sacrificial services?
MR. GARRETT: No, we do not believe that a church would have a right to engage in animal sacrifice under circumstances that you have now described.
MR. GARRETT: Because we believe that the Constitution does not allow all religious practices to be engaged in even if they are central to the religion. The Reynolds case made it very clear that even though polygamy was central to the Mormon Church, that laws basically outlawing the polygamists activities were laws that were constitutional. We would submit that the fact that it is [Oral Arguments 43] important to a religion, if there is a legitimate governmental purpose to the particular restrictions --
QUESTION: Then is the legitimate governmental purpose here the prohibition of sacrifice, per se?
MR. GARRETT: We submit that it is. We submit that animal sacrifice is an appropriate category to be specifically focused on by a series of --
QUESTION: And is it a fair reading of these ordinances to find that that policy is implicit in these ordinances?
MR. GARRETT: I think it is a fair reading of the ordinances that they in effect attempt to preclude animal sacrifice, and they do that in a number of different ways, and I think that is the question that the Court is facing, whether or not the attempt, and in this case a successful attempt to preclude the animal sacrifice as a governmental problem, is one that can be done under the First Amendment, free exercise provision.
QUESTION: But would you not agree that in order for the prohibition to be legitimate, the public values that you assert are being furthered by the prohibition must not be allowed to be compromised through other exceptions to the killing that you allow, because otherwise you would have nothing left but an antagonism towards the religion. You do not like sacrifice to be [Oral Arguments 44] done.
     If you have other values -- cruelty to animals or public sanitation or whatever else -- at least the other exceptions that you make from your general prohibition cannot permit those things to happen.
MR. GARRETT: I believe that the question becomes what particular problems the municipality is facing, and if the municipality has to go and deal with the hypothetical problems in the scope of the ordinance that are not really facing the community, I don't see why that is constitutionally mandated.
     It would seem that if the problems that we have been able to identify are problems that grow specifically out of animal sacrifice, that it is not required that the city, for example, exempt hunting or any other particular type of problem or deal with them in the ordinances.
     It's clear that animal sacrifice carries with it very specific problems that are not attendant with the other types of exceptions that the petitioners point to. There is no record evidence that we have any of those particular problems, and I think that it's a question of the classification.
QUESTION: Mr. Garrett, can I interrupt you for a moment? The Court found specific harms to the animals. They were cruel in the way they did it and there were some [Oral Arguments 45] disposal problems and certain other specific problems that they found.
     He also found, as I remember it, there's a lot of varieties of this religion. Some have more of some customs and some have slightly different customs.
     Supposing there was one branch of the religion that required as a part of the ceremony that it be conducted in a slaughterhouse as Justice Kennedy suggests, that it dispose of the remains in a lawful manner, and that it had none of the side effects that trouble you, and very properly. But you have a religion that does sacrifice animals.
     Now, that religion would be prohibited by your ordinance even if none of the side effects occurred, or were permitted to occur by the religion, is that not correct?
MR. GARRETT: That's correct. That would be an incidental impact of the ordinance, and we believe that that would be constitutional under Smith.
QUESTION: And the other thing that puzzles me, on the one hand you say there are tens of thousands of these sacrifices going on regularly and that's what prompted the ordinance, and then you say, as one very dramatic example of a goat being found on the beach that was apparently very unattractive and unhealthful --
[Oral Arguments 46]
QUESTION: But -- and that dramatic evidence is kind of appealing, you have to say. But if that happens only once when there are thousands and thousands of sacrifices, which way does the example cut?
MR. GARRETT: Well, I don't believe by giving you that one example, which was provided to you to show --
QUESTION: And there's only one in the record, is that right?
MR. GARRETT: No, that is not true at all. There are numbers of animals --
MR. GARRETT: That are testified to as having been placed throughout the community. The testimony is replete with evidence of dead animals being left in Sewell Park, being left throughout the community. There are pictures, photographic pictures of animals --
QUESTION: Now, did those -- they violate some other neutral statute before this ordinance was passed? I mean, there must have been some municipal regulation against leaving carcasses around in public parks. Littering, maybe.
MR. GARRETT: Certainly, but they were ineffective. They were obviously not accomplishing the [Oral Arguments 47] purpose for which they were enacted, because it's very difficult to police a situation where people go out at night time or early in the morning with whole animals and leave them in parks, leave them under palm trees as it's dictated under the religious tenets, leave them at railroad crossings, leave them at the steps of courthouses in some instances -- all of these dispersal of animal problems are problems that are in the record, and they are not simply a single goat. That is not --
QUESTION: Okay, but an easier way to police them would be to go back to the example that Justice Kennedy was working you towards to provide some regulated place like a slaughterhouse in which the -- kind of the core practice could occur, and yet you reject that.
MR. GARRETT: I do not reject the possibility that under 87-72, under circumstances where there was an area zoned for slaughterhouses or an application was made for a change in the zoning plan and the animals were in fact consumed, that there would be a situation where constitutionally and under the laws of the city, that would be permitted.
QUESTION: They don't want to consume them. They just want to sacrifice.
MR. GARRETT: Currently --
QUESTION: That's right. You still maintain [Oral Arguments 48] that they may define the practice -- the prohibited practice merely as sacrifice, regardless of where it might take place and under what regulated conditions, isn't that correct?
MR. GARRETT: The way the ordinances are drafted now, sacrifice would not be permitted in that circumstance.
QUESTION: And it's your position that that is perfectly constitutional.
MR. GARRETT: It is our position that that is constitutional.
     Your Honors, the circumstance that the City of Hialeah was facing was a very specific circumstance -- animal sacrifice, inhumane treatment to animals. I would point out that when we talk about putting this activity into a slaughterhouse we are not solving the claim of petitioners that they are entitled to practice their religion as they wish, and the reason why we are not solving that problem is because we never got to the manner in which the sacrifices occur.
     This is not ritualistic slaughter as it occurs in kosher slaughter, for example. This is an indifferent type of killing. The district court judge was able to conclude that this was an inhumane type of killing because he understood that in -- for example, with respect to a [Oral Arguments 49] four-legged animal an individual hoists it, puts it on a table or altar, attempts to hold it down with one hand, raises a knife in the right hand and attempts in a jabbing motion to cut the carotid arteries in an unreliable method of killing.
QUESTION: Isn't it also the case that that same witness rejected the State law definition of humane killing? In other words, he wishes to impose a different standard from that which State law imposes, isn't that correct?
MR. GARRETT: His position was that State law --
QUESTION: Well, isn't that correct?
MR. GARRETT: His position was that State did not go far enough in being humane.
MR. GARRETT: That was his position, and he's not a lawyer, and he wasn't rejecting it legally. His view was that that type of killing was not as humane as he would like it to be.
     But the bottom line is that this type of killing was so unreliable, according to Dr. Fox, that you couldn't be in any way assured that both carotid arteries would be cut, the animal, in effect, would remain conscious for a period of time, and it wouldn't be apparent that you hadn't cut the carotid arteries because of the blood, and [Oral Arguments 50] so we're talking about altering the manner in which they actually kill the animals.
QUESTION: But as I understand it, there's an exemption in the statute so that there's killing for food, and if it's less than, I think, 35 lambs a week or 20 cattle, something like that, it's permitted.
MR. GARRETT: It is permitted, but the method of humane slaughter is not altered by that exception. Humane slaughter must still be practiced in killing the animals, and so simply moving this religion into a slaughterhouse doesn't solve the problems of meeting the humane slaughter standards.
QUESTION: Well, your opponent I thought agreed that the city could prohibit inhumane slaughtering so long as it did it across the board.
MR. GARRETT: I believe that the petitioner's claim that they are entitled to slaughter the animals according to their religious dictates, and that that would not be subject to the regulation that we propose and that the State proposes with respect to humane slaughter.
QUESTION: Would this method of slaughter violate the State statute?
MR. GARRETT: Yes, it is our position that it would.
QUESTION: Has any of these people ever been [Oral Arguments 51]  prosecuted under the State statute?
MR. GARRETT: To my knowledge there have been no prosecutions either at the State or at the local level.
QUESTION: Thank you, Mr. Garrett.

Mr. Laycock, you have 4 minutes remaining.


MR. LAYCOCK: The question of whether this could be done in a slaughterhouse, the ordinances are clear, the ritual or ceremony would be illegal in Hialeah in any kind of slaughterhouse under any kind of conditions. The testimony --
QUESTION: Do you agree, Mr. Laycock, that the limited slaughter that is allowed can only be allowed in a slaughterhouse?
MR. LAYCOCK: That is not correct. It can only be allowed where properly zoned. The city attorney, Mr. Gross, testified that on the farms in Hialeah animals are slaughtered under the limited slaughter exceptions in the ordinances. I think it is the case that commercial slaughter is not going on in residential or nonfarm neighborhoods.
     With respect to the alleged uniqueness of the problem, Mr. Garrett summarized the testimony of the city's expert witness, Mr. Livingstone, about disease [Oral Arguments 52]  factors and the like, but remember, Mr. Livingstone said repeatedly, I'm not talking about animal sacrifice at all, I'm talking about organic garbage. He said it is no different, and the sources of supply of organic garbage are much greater from all of the secular food consumption in the city than they are from these sacrifices.
     Now, my clients have always been willing to accept regulation of the farms and botanicas which are not protected by the First Amendment. They're willing to accept reasonable zoning on the church itself.
 They are not willing to give up the rights of their members to sacrifice on special occasions such as births and weddings in the homes, but the church itself can be reasonably zoned, they're willing to comply with disposal regulations, but none of that would satisfy the city. The city sees a special --
QUESTION: How about humane slaughter regulations?
MR. LAYCOCK: We believe that we are in compliance with humane slaughter. There is a neutral prohibition on torture and torment that is not challenged. The district court did not find that --
QUESTION: Why not?
QUESTION: Why not? Why shouldn't you be able [Oral Arguments 53]  to slaughter any way you want -- humane or inhumane?
MR. LAYCOCK: Well, it may --
QUESTION: If the theory of your case is correct, why -- you know, why not go all the way?
MR. LAYCOCK: Well, because -- because we're not tormenting and we're not torturing we don't have to go all the way. I may be back some year with a different client who does.
MR. LAYCOCK: The testimony is the method of sacrifice is very quick, except when it fails. The trial judge said it is somewhat unreliable and therefore it is cruel. There is no finding of how often it is unreliable, how often it misses. Those who are experienced in the method said they believe they don't miss, but the intended method of sacrifice is not cruel.
QUESTION: Well, if the intended method is not cruel, could not the city take into account that the intention just wasn't fulfilled sometimes and it turned out to be cruel in fact?
MR. LAYCOCK: Well, perhaps they could take that into account in a neutral and generally applicable way, but again, look at all the other methods of killing which they permit with no regulation whatever, with no claim that they might be -- that they have to be always [Oral Arguments 54]  instantaneous and never a mistake. No human activity has never a mistake.
     I can put poison out in my yard in Hialeah and they don't tell me what kind. They don't say it has to be a quick-acting poison. The animal can wander off and suffer for a week, and that's okay with the city. That's expressly authorized in ordinance 87-40. It's only the religion that has to be perfect if it is to exist at all inside the city.
 CHIEF JUSTICE REHNQUIST: Thank you, Mr. Laycock. The case is submitted.

 (Whereupon, at 11:01 a.m., the case in the above-entitled matter was submitted.)

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