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Unconstitutional Los Angeles Ban on Ritual Animal Sacrifice:

I hadn't known this until today, but L.A. apparently has an unconstitutional ban on animal sacrifice, in Municipal Code § 53.67:

(a) No person shall engage in, participate in, assist in, or perform animal sacrifice.

(b) No person shall own, keep, possess or have custody of any animal with the purpose or intention of using such animal for animal sacrifice.

(c) No person shall knowingly sell, offer to sell, give away or transfer any animal to another person who intends to use such animal for animal sacrifice.

(d) Nothing in this ordinance shall be construed to prohibit any person or establishment lawfully operating under the laws of this city and state from lawfully engaging in the slaughter or ritual slaughter of animals where the preparation or killing of such animals is primarily for food purposes.

(e) For the purpose of this section, the following words and phrases are defined as follows:
"Slaughter" means the killing of any animal for food purposes;
"Ritual slaughter" means the preparation and killing of any animal for food purposes in accordance with California Food and Agricultural Code Section 19501;
"Animal sacrifice" means the injuring or killing of any animal in any religious or cult ritual or as an offering to a deity, devil, demon or spirit, wherein the animal has not been injured or killed primarily for food purposes, regardless of whether all or any part of such animal is subsequently consumed.

This is impermissible under Church of Lukumi Babalu Aye v. City of Hialeah, since it expressly bans religious conduct precisely based on its religiosity. Lukumi also involved evidence that the city council was intentionally trying to go after a particular religion — Santeria — but that wasn't necessary to the analysis: If the statute on its face bans religious conduct based on its religiosity, it's presumptively unconstitutional, and even if that presumption can be rebutted in extraordinary cases, there's no reason to think that it would be here.

If the city had banned certain kinds of killings of animals without regard to the killings' religious nature, that wouldn't violate the Free Exercise Clause even if it ended up barring some religious rituals. But we're not dealing with such a religion-neutral ban here. (Whether applying such a religion-neutral ban to religious conduct would presumptively violate the California Constitution's religious freedom provision is still an open question in California.)

This is in the news, by the way, because of a ritual called kapparot, which is practiced by some Orthodox Jews:

Kapparot is a custom in which the sins of a person are symbolically transferred to a fowl. It is practiced by some Jews shortly before Yom Kippur. First, selections from Isaiah 11:9, Psalms 107:10, 14, and 17-21, and Job 33:23-24 are recited; then a rooster (for a male) or a hen (for a female) is held above the person's head and swung in a circle three times, while the following is spoken: "This is my exchange, my substitute, my atonement; this rooster (or hen) shall go to its death, but I shall go to a good, long life, and to peace." The hope is that the fowl, which is then donated to the poor for food, will take on any misfortune that might otherwise occur to the one who has taken part in the ritual, in punishment for his or her sins.
Apparently the fowl is at least sometimes slaughtered before being donated to the poor.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Lior:
I wonder what the city of LA would think of the Samaritans, who still celebrate passover the biblical way.
10.6.2008 9:04pm
Dilan Esper (mail) (www):
Absolutely right that this is unconstitutional under controlling Supreme Court precedent, and rightfully so.

Also a nice reminder of how "mainstream" faiths get off easy when it comes to their barbaric practices. People associate animal sacrifices with Santeria and Voodoo and the like (Lukemi Babalu Aye was a Santeria case). But here's a group of people sending a defenseless animal to its death in order to further a completely false and baseless superstition, and yet as far as I know this practice gets little criticism. Imagine if a group of Muslims or Mormons or Scientologists did this.
10.6.2008 9:09pm
corneille1640 (mail):
Just a question: would the LA ban be constitutional if it excised banning the sacrifices for the sake of their religiosity and instead opted to ban them because they were cruel to animals? Or would the state have to take a "public health" justification for a ban?
10.6.2008 9:24pm
PersonFromPorlock:

Apparently the fowl is at least sometimes slaughtered before being used for food....

I hope so! [EV: Whoops, didn't say that right; corrected it, thanks.]
10.6.2008 9:40pm
Mike S.:
1) Judaism forbids eating animals while they are still alive. So yes, they are slaughtered before being eaten.

2) Traditionally the chickens are given to poor people to eat.
10.6.2008 9:57pm
Bill Poser (mail) (www):
To me the interesting thing here is that in LA human sacrifice is apparently okay with the city fathers. But I guess that's LA for ya. :)
10.6.2008 10:14pm
Bill Poser (mail) (www):
Dilan Esper,

I think that one reason this has not aroused much attention is the fact that the chicken is not actually sacrificed as part of ritual. The ritual consists merely of the swinging. Insofar as the chicken dies, it is killed and prepared for eating in the usual way.
10.6.2008 10:17pm
Arvin (mail) (www):
If we can treat animals very badly while raising them as food, I don't see why we can't treat them badly to kill them to satisfy superstition. Is it really more valid to say, hey, I'd like a burger than, hey, I think this absolves my soul of sin?
10.6.2008 10:33pm
Milhouse (www):
Bill Poser, actually the slaughter is very much a part of the ritual. Ideally the person is supposed to watch the slaughter, contemplate his own wrongdoing, and consider that God has the power to consign him to death just as easily as he does the chicken. It's also customary to take this opportunity to fulfill the commandment to cover the blood of a slaughtered bird. The fact that the bird is later eaten isn't the primary purpose, so this ritual would indeed have been banned by this law; I've never heard of anyone being prosecuted for it, though. And yes, the ban is thoroughly unconstitutional.

And yes, I intend to do kapparot this Wednesday morning. Not in LA, though.
10.6.2008 11:05pm
David Schwartz (mail):
For those who believe in literal transubstantiation, does this prohibit communion? Is the body of Christ an "animal"? Is it "injured or killed"?
10.6.2008 11:22pm
subpatre (mail):
corneille1640 asks "would the LA ban be constitutional if it excised banning the sacrifices for the sake of their religiosity and instead opted to ban them because they were cruel to animals? Or would the state have to take a "public health" justification for a ban?"

Constitutionality is met when the ban or sham justification is absolutely even across the board for all animals under all circumstances. It wouldn't pass the reality test --citizens would have it overturned and their legislator turned out in a heartbeat-- but it would pass SCOTUS scrutiny.

The LA ban is an "Ewwh, that's gross" law. There is nothing inherently inhumane or unsanitary about killing an animal, whether for butcher, research or otherwise.

Arvin says "If we can treat animals very badly while raising them as food, I don't see why we can't treat them badly to kill them to satisfy superstition."

There is no justification for treating animals badly. Period. Not for belief or for sustenance.
10.7.2008 12:19am
wm13:
There is an interesting (and I think controverted) Constitutional question here: what about the Constitutionality of the provisions of this section and California Food and Agriculture Section 19501, here referenced, which in effect permit exceptions from laws of general applicability for religiously prescribed activity?

And what about rules that on their face apply to any religion but are clearly designed with one particular religion in mind? Constitutional problem?
10.7.2008 12:33am
Waldensian (mail):

First, selections from Isaiah 11:9, Psalms 107:10, 14, and 17-21, and Job 33:23-24 are recited; then a rooster (for a male) or a hen (for a female) is held above the person's head and swung in a circle three times, while the following is spoken: "This is my exchange, my substitute, my atonement; this rooster (or hen) shall go to its death, but I shall go to a good, long life, and to peace."

Religion has an unparalleled knack for being totally, completely absurd. This is like something out of a Monty Python film.


Kapparot is a custom in which the sins of a person are symbolically transferred to a fowl.

Interestingly, that's actually a lot like Christianity, except Christians substitute Jesus for the bird.
10.7.2008 12:40am
Waldensian (mail):

And yes, I intend to do kapparot this Wednesday morning.

Wow, I'm sorry to hear that. But not as sorry as the chicken. Maybe you could choose something else to symbolically transfer your sins to, like an old unmatched sock? Easier for you, better for the chicken -- it's a win-win.

I did some gut-level research on this kapparot thing. According to one source, it isn't actually mentioned in the Torah or the Talmud. Instead:

The custom is first discussed by Jewish scholars in the ninth century. They explain that since the Hebrew word gever means both "man" and "rooster", punishment of the bird can be substituted for that of a person.

Well, that certainly makes sense. For the sake of kapparot, I guess we can all be thankful the Hebrew word gever didn't mean both "man" and "bloated dead donkey."
10.7.2008 12:58am
JoshL (mail):

I did some gut-level research on this kapparot thing. According to one source, it isn't actually mentioned in the Torah or the Talmud.



That's correct. It's probably based, though, at least in part, on the section in Leviticus discussing the scapegoat- the scapegoat is a literal goat, if you haven't read it before.
10.7.2008 1:08am
Mocha Java (mail):
So swinging live birds around your head isn't animal cruelty?
(just devil's advocating)

How about if I eat a lamb shank on Passover because I think it is religiously mandated. Is the butcher who kills it for my religious ritualistic purposes in violation of that Code?
10.7.2008 1:50am
Jeff Boghosian (mail):
subpatre,


There is nothing inherently inhumane or unsanitary about killing an animal, whether for butcher, research or otherwise


This is getting away from the topic of the post, but I didn't want this to slip by. Humane is defined as "marked by compassion, sympathy, or consideration for ...". Killing an animal is only humane when it's with consideration of the animal - not the method of killing, but the determination of whether to kill or not. The only example I can think of for humane killing is when an animal is in a permanent state of suffering, otherwise it is inhumane to kill an animal. This is true whether we think killing animals is moral or immoral.
10.7.2008 2:04am
Waldensian (mail):

It's probably based, though, at least in part, on the section in Leviticus discussing the scapegoat- the scapegoat is a literal goat, if you haven't read it before.

I always try to peruse Leviticus when I'm dragged into a church -- it's clearly the most entertaining thing in the Bible. As just one example, I love it when it says that rabbits are ruminants.
10.7.2008 2:12am
Bruce Hayden (mail) (www):
Just a question: would the LA ban be constitutional if it excised banning the sacrifices for the sake of their religiosity and instead opted to ban them because they were cruel to animals? Or would the state have to take a "public health" justification for a ban?
I think that would be just fine. But that would turn the situation around, so that a non-religious law was being used to ban a religious practice, which I think gets a bit stickier. (EV of course being the expert there too).

I think that many jurisdictions have laws on the book aimed at preventing cruelty to (some) animals. One problem though is that many, if not most, of us eat meat on a regular basis. And, indeed, it appears that people think better over the long term if they do eat meat, as most purely vegetarian seem to lack some needed components. In any case, regardless of health reasons, we like meat, and are likely wired for that. So those meat animals have to be killed somehow, and that is to some extent cruel. So, from a practical point of view, it is unlikely that any big jurisdiction is going to ban all cruelty to animals.
10.7.2008 2:39am
Arvin (mail) (www):
There is no justification for treating animals badly. Period. Not for belief or for sustenance.

So I'd have to ask how you are still drawing breath. Even if you are a vegan, you still eat vegetables raised on land that was plowed through (killing cute bunny rabbits).
10.7.2008 3:47am
S7:
These days a lot of people "swing kapparot" with money, which is then donated to poor people, who then buy chickens. Or other goodies, but really a lot of chickens. Either way, this is definitely a bad week for chickens. Sort of like taxpayers.
10.7.2008 4:58am
J. Aldridge:
Since it would be unconstitutional to ban human sacrifices under the same rational, what is really impermissible here is Church of Lukumi Babalu Aye v. City of Hialeah and not the law in question.
10.7.2008 7:51am
PersonFromPorlock:
At the risk of being tiresome, I'm going to suggest once more that the First Amendment's Religion Clause was written to protect state-established churches (there were three at the time) from federal competition or interference, not to grant 'free exercise' to any religious practice. What was prohibited was federal sponsorship of a church (e.g., Congregational, Methodist, Catholic), not laws condemning, say, human or animal sacrifice.

If that isn't so then it's hard to see how a law against human sacrifice (no constitutional guarantee to life) could trump the guarantee of 'free exercise'.
10.7.2008 8:48am
Sparky:
Is there any evidence that the city is actually enforcing this municipal code section? If not, then it's not really worthy of comment. The ordinance was enacted in 1990, before Church of Lukumi Babalu Aye was decided. Thereafter, the city council had better things to do than expressly repeal a blatantly unenforceable ordinance.

Yes, arguably it has a chilling effect, but if the chilling effect were substantial, somebody would have sued by now.
10.7.2008 11:48am
Ryan Waxx (mail):

If that isn't so then it's hard to see how a law against human sacrifice (no constitutional guarantee to life) could trump the guarantee of 'free exercise'.


The point was that the law in question banned the practice on the grounds that it was religious, THAT is what is forbidden. Murder laws are constitutional weather or not the murder was done for religious purposes, but a law banning murder only when its done for religious purposes would not be.
10.7.2008 12:52pm
PersonFromPorlock:

The point was that the law in question banned the practice on the grounds that it was religious, THAT is what is forbidden.

What I was getting at is that, taken literally, the Religion Clause only protects state establishments of religion from interference by the federal government or from competition by a federal establishment of religion. So no protection whatever is given to the actions of a non-established religion.

If there is constitutional protection for religious actions then it would appear that murder for religious purposes is protected, absent some constitutional right to life that puts it on the same level as the right to practice religion.

Admittedly, these are rather silly arguments but much of the pleasure of law as a hobby lies in its two-headed calf aspect.
10.7.2008 2:00pm
Bill Poser (mail) (www):
Millhouse,

Some people may slaughter the chicken immediately, but my understanding is that many people do not slaughter the chicken until afterwards, if at all.
10.7.2008 2:04pm
subpatre (mail):
Waldesian said "Interestingly, that's actually a lot like Christianity, except Christians substitute Jesus for the bird."

As a point of education on a Jewish blog, Christians do not substitute Jesus; Jesus substituted himself for the scapegoat or bird,
... took bread: And when he had given thanks, he brake it, and said, "Take, eat: this is my body, which is broken for you: this do in remembrance of me." —1 Corinthians 11:23-25

So, David Schwartz, the body of Christ was (past tense) "injured and killed"; transubstantiation or transmogrification of the wafers or host doesn't make a past offense (or state action) current.

Jeff Boghosian, and some others demonstrate their separation from reality by claiming death is "cruelty". It is not, and most killing (slaughter) of animals is more humane, with less pain, less suffering, than the medical injections we get or give to kill animals living within --or upon— our own bodies.

As someone who gets almost half our food from my own or from hands I shake, Milhouse should take this chickens life —and his witness to the end of it— seriously.
10.7.2008 2:41pm
Ryan Waxx (mail):

If there is constitutional protection for religious actions then it would appear that murder for religious purposes is protected, absent some constitutional right to life that puts it on the same level as the right to practice religion.


I still think you are interpreting the clause too actively - it doesn't grant permissions to specific religious practices to trump the law... it prohibits the law from targetting religious aspects. The distinction is a bit fin, but it is real.
10.7.2008 3:22pm
Waldensian (mail):

As a point of education on a Jewish blog, Christians do not substitute Jesus; Jesus substituted himself for the scapegoat or bird,

I respectfully sit corrected, albeit within the context of an absolutely absurd discussion about twirling a chicken around your head, and/or heaping sins upon goats, or upon a Jewish carpenter who rose from the dead.

Incidentally, Jesus wasn't alone in rising from the dead -- lesser Biblical scholars than I frequently forget that the whole town was hopping with reanimated corpses!! It was like a freakin' Dawn of the Dead movie.
10.7.2008 4:18pm
darelf:
And some people believe the fairy tale about the whole universe just popping into existence on its own with a Bang.

Or fish/monkeys/whatever turning into people.

People believe the most absurd things sometimes.
10.7.2008 4:39pm
arg11 (mail):
If you're not going to embrace vegetarianism tout court, it is hypocritical to attack ritual killing of animals. If you've ever seen a ritual killing, you would realize that there's certainly nothing more vile in it than in the way a slaughterhouse functions. In both cases, the animal is obviously terrified. You would be too, if you were about to get killed. There's nothing "satanic" about it, because the purpose of a ritual killing is ultimately to make use of the animal (by eating it). The only major difference is the addition of prayer and perhaps certain ritual gestures. Some would argue that it is a much more human manner of getting one's meat; at least one is forced to see the process and understand what one is eating.
10.7.2008 6:08pm
PersonFromPorlock:
Ryan Waxx:

I still think you are interpreting the clause too actively - it doesn't grant permissions to specific religious practices to trump the law... it prohibits the law from targetting religious aspects.

Oh, granted, I'm doing this mostly for fun; but if the Constitution says "Congress shall make no law... interfering with the free exercise [of religion]" then I'd say it does in fact allow "religious practices to trump [statutory] law." That's why I think there's an outside chance that the Founders really did mean for "the free exercise thereof" to refer to a state's control of its 'establishment of religion" and not to individual belief. And if that's so then individuals and non-established religions have no protection at all, at least from the Religion Clause.
10.7.2008 7:57pm
Waldensian (mail):

People believe the most absurd things sometimes.

You're right. I actually think it's very important to evaluate the basis for beliefs.

So how about this: you identify the evidentiary basis for believing that twirling a terrified chicken around your head is a way to absolve yourself of sin in the eyes of a supernatural deity who, presumably, cares about such things.

Meanwhile, since you mention the fish/monkey thing with apparent disdain, I'll defend the evidentiary basis for the theory of evolution.

Here's a start on my side. Just a start.

Your turn.
10.8.2008 1:19pm
subpatre (mail):
arg11 claims "In both cases [sacrificial or commercial], the animal is obviously terrified. You would be too, if you were about to get killed."

Proving that 'Arg11' has never --not ever-- witnessed a slaughterhouse; not even talked to a person who witnessed the operation of a slaughterhouse.

'Arg11's statement is an example of anthropomorphism, attributing human characteristics to inanimate objects and animals. Another example could be claiming Bambi is terrified of the economic meltdown. In 'Arg11's case, attributing the foreknowledge of death to a cow experiencing human emotion; in the second instance, attributing financial insecurity to a deer experiencing human emotion.

Ironically, it is anthropomorphism that led to the design and (political) implementation of the ASPCA slaughter pen. This particular restraint system produces the appearance of calmness by restriction; in reality the animal is struggling and stressed due to neck and chest pressure that cannot be casually observed. The ASPCA might have been well intentioned, but the road to hell is paved with such and the ASPCA pen was an abomination.

Anthropomorphism leads to cruelty: stress and discomfort. For those that giveadam, Grandin is the authority on slaughterhouses, animal treatment, handling, and design; and includes clear treatment of halal and kosher methods.
10.8.2008 4:05pm