In 1993, the U.S. Supreme Court upheld a First Amendment religious free exercise challenge brought by a Florida Santerían church in Church of Lukumi Babalu Aye v. City of Hialeah. However, Lukumi may be the most misunderstood legal precedent in recent history. The decision is often cited for the proposition that religious practitioners have a constitutional right to engage in animal sacrifice. This is far from the truth. Lukumi was decided in a unique context, and its holding was not based on the merits of animal sacrifice. This article will demonstrate that Lukumi does not force government to acquiesce to animal sacrifice, or the “litter” it creates.
FREE EXERCISE DOES NOT PROTECT ANIMAL SACRIFICE: The Misconception of Church of Lukumi Babalu Aye v. City of Hialeah and Constitutional Solutions for Stopping Animal Sacrifice
Shannon L. Doheny *
In Springhill, a box containing a decapitated pig and two decapitated pigeons is discovered in a residential neighborhood. In Norfolk, cow tongues hang from trees, and a disemboweled lamb is found on a public street. In Philadelphia, park workers increasingly find themselves cleaning up the carcasses of decapitated animals left in the public parks.  Every morning in Miami, city workers clear the county courthouse steps of animal carcasses left the night before.  Nearby, decapitated chickens frequently line the banks of the Miami River.  All these animals have been sacrificed, their carcasses left as offerings to Santerían deities, called Orishas.
Many practitioners of the Santería religion will claim they have a constitutional right to practice animal sacrifice. And many local governments are also convinced that this is the state of the law. In fact, law enforcement officials and animal control workers often feel their hands are tied when reports of Santería sacrifices are directed their way. They are all mistaken.
In 1993, the U.S. Supreme Court upheld a First Amendment religious free exercise challenge brought by a Florida Santerían church in Church of Lukumi Babalu Aye v. City of Hialeah . However, Lukumi may be the most misunderstood legal precedent in recent history. The decision is often cited for the proposition that religious practitioners have a constitutional right to engage in animal sacrifice. This is far from the truth. Lukumi was decided in a unique context, and its holding was not based on the merits of animal sacrifice. This article will demonstrate that Lukumi does not force government to acquiesce to animal sacrifice, or the “litter” it creates.
Part II of this article begins with an overview of the religion of Santería, and the ritual of animal sacrifice within the religion. It then discusses the history of the conflict between the Santería Church of Lukumi Babalu Aye and the City of Hialeah, Florida, which was eventually brought before the Supreme Court in Lukumi .
Part III of the article begins with discussing the Free Exercise Clause of the United States Constitution, and gives a concise historical overview of Supreme Court’s changing treatment of free exercise challenges. Next, this section engages in an in-depth analysis of the Lukumi opinion, and why the Supreme Court had to uphold the church’s challenge as a matter free exercise jurisprudence. The section concludes with a summary of what the Supreme Court actually held regarding the right to engage in animal sacrifice.
Part IV of the article outlines some constitutionally permissible ways the law can be used to prevent and deter the practice of animal sacrifice. The two legal solutions advanced are municipal licensing and zoning laws, and state and local animal cruelty statutes. This section proposes how legislation in each legal area can have the effect of hindering animal sacrifice.
II. History of the Issue
A. The Religion of Santería
1. the evolution and background of the religion
The religion of Santería, also known as Regla de Ocha,  began its evolution in Cuban slave society during the Spanish colonial period.  Spain purchased slaves from a variety of countries, melding together slave populations from diverse areas of Africa.  After 1800, the Yoruba-speaking groups from southwest Nigeria, Dahomey, Togo and Benin came to dominate Cuba’s slave population.  Their religious tradition of Regla de Ocha was a major contribution to Cuban slave culture.  Eventually, Regla de Ocha came to be the island’s most widespread Afro-Cuban religion. 
Regla de Ocha translates into “the rule or religion of the Orisha.”  The central and highest deity in the religion is Olodumare (also known as Olorun and Olofi in Cuba).  According to practitioners, he exists in many energy forms throughout the universe, and is also deemed to be creator of heaven and earth.  Olodumare communicates with man through use of divine intermediaries, known as Orishas.  These Orishas are seen as spiritual forces, some of whom existed prior to the earth’s creation, others who were human at one time and became Orishas though supreme qualities they possessed during their human lives.  Hundreds of Orishas were acknowledged in African worship, but far fewer survived in Regla de Ocha as it was established in Cuba. 
Further, Cuban Regla de Ocha underwent another unique evolution. In Colonial Cuba, Catholicism was the official religion.  Upon being exposed to Catholicism, a process of “syncretization” of Regla de Ocha and Roman Catholicism began.  The slaves continued to worship the Orishas, but expressly identified them as Saints.  This syncretism of the Orishas with Catholic Saints may have been an attempt by the slaves to secure the perceived powers of Catholicism. On the other hand, it may simply have been an endeavor to mask the continuance of their native religious practices in a colony that would only permit the Catholic religion.  As the Orishas gradually came to be identified with Catholic counter-parts, the Saints or Santos , the religion gradually took on the name Santería , the “worship or way of the Saints.” 
However, in Santería, the concept of the Orisha as a natural force remains distinctly African. Likewise, the natural force, or power, associated with each of the traditional Orishas remains intact.  It is based on these identifying powers that Santería has established a correlating Catholic Saint for each Orisha.  For example, Changó is the Orisha of fire and war, and is usually associated with Santa Barbará, the patroness of Spanish artillery.  Saint Lazarus, the leper from the Christian biblical parable, is associated with the Orisha Babalú Ayé. Babalú Ayé, like his Catholic counter-part, suffers part of his existence with sores all over his body. The Tradition of Regla de Ocha says he is later deemed the Orisha of epidemics and health.  Santeros and Santeras will often keep statues of the Catholic Saints in their house-temples.  Depending on the stage of their faith in Santería, they may even invoke the power sought in the name of the Saint, rather than the corresponding Orisha. 
It is difficult to estimate the number of Santería practitioners in the United States. Santería is a decentralized religion, with many independently operating house-temples.  It lacks a centralized membership roll or leadership hierarchy.  Most sources seem to estimate the number of practitioners to be between half a million to five million within the United States.  Most practitioners are of Hispanic heritage, mainly Cuban and Puerto Rican.  However the religion has also developed its share of African American believers.  A former practitioner also indicates that “Euro-American” Santeros and Santeras are becoming increasingly common.  In sum, it seems that the religion is appealing to a diverse cross-section of the United States population, and its practitioners are growing in number.
2. animal sacrifice in Santería
Santería is a secretive religion,  and it is difficult for a researcher to establish all the facts surrounding Santería’s practice of animal sacrifice. There is no dispute that sacrifice occurs, or that sacrifices are conducted in order to receive the assistance of the Orisha to whom the sacrifice is made. However, factual certainty regarding most aspects of Santería animal sacrifice is difficult, due to the clandestine nature of the rituals. This author relies on the book of a former practitioner, the evidentiary findings of the courts in the Lukumi case, and various newspaper articles, in an attempt to form a complete picture of how often Santería sacrifices occur, the method employed to sacrifice the animal, how the sacrificial animals are obtained, and how the animal carcasses are disposed of afterward.
In Lukumi , the Supreme Court found practitioners of Santería performed animal sacrifices rarely, outlining a handful of religious events which called for such rituals.  However, one former practitioner, Miguel De La Torre, indicates that sacrifices can be conducted more frequently. He states that sacrifices may be made on occasions of thanksgiving, to combat an illness, to ward off attack by enemies, during initiation into the religion, and upon other life events.  Additionally, each Orisha is lord of certain days, and an ebbó, or offering, performed on those days is especially powerful.  Further, Santeros possess sacred stones, called otanes, each believed to contain the spirit of an Orisha.  These stones ideally need a blood offering at least once a year to satisfy the Orishas they contain.  Thus, it seems the practice of animal sacrifice might occur frequently in a practitioner’s worship, depending on her life events and her need for assistance from the Orishas.
The method of conducting a sacrifice is also difficult to discern. De La Torre states that before each sacrifice a divination ceremony is performed, in order to make certain that the sacrificial animal is acceptable to the Orisha.  Once it is deemed acceptable, the ebbó can then be made to this Orisha.  Orishas need such offerings in order to have sufficient ashé, or spiritual force, to accomplish what is asked by the practitioner. 
In the district court, Ernesto Pichardo, the head priest of the Santerían church bringing suit, testified that the sacrifices were conducted very carefully and deliberately.  He testified that only priests conducted sacrifices.  These priests had apprenticed in the art of sacrifice under other trained priests.  In a typical sacrifice, the animal was led into the room and was placed on a table, with its head overhanging the edge of the table.  The priest would use a knife and puncture the neck and carotid arteries in one move, thus the animal would feel little pain and be rendered unconscious by anemia swiftly.  The animal’s blood was then drained into a clay pot placed under the head, and the animal was decapitated and removed from the area. 
The district court found that the method of sacrifice described by Pichardo was not humane. The court found the Santería practice of severing the arteries lacked reliability, and great pain could be caused to the animal if the blood vessels were missed.  In sum, the court found the sacrifices were likely to cause animal suffering.
The district court was also concerned with animal suffering prior to the ritual. The court found that the animals were not necessarily obtained from reputed dealers, and often suffered mistreatment while being housed awaiting sale.  De La Torre is silent on this subject. At least one recent news article seems to confirm some of the district court’s findings. In 2004, San Francisco animal control authorities seized one hundred animals from a Santería priest’s residence. The priest apparently was a supplier of animals to other practitioners. Among the animals seized were a variety of birds, some goats, rabbits, and a pot belly pig. A fire department safety inspector, who was the first to respond, told the reporter that the animals were being kept in extremely unsanitary conditions, surrounded by excrement. He further stated many were without water or proper food, and some appeared dead or dying.  One hopes this is an extreme case, but it can probably be concluded that some sacrificial animals do suffer mistreatment while being housed prior to sacrifice.
The district court had further concerns regarding how the animal carcasses were disposed of afterwards, citing fear for public health.  With respect to disposal, even De La Torre acknowledges that the public disposal of animal carcasses has become a problem in areas with large populations of practitioners.  News accounts also confirm this concern, and indicate the problem may not be only in areas associated with a large population of practitioners.  De La Torre explains the phenomenon of public disposal, saying the ebbó may be left in a place that is significant to the Orisha. For example, the Orisha Ochosi has power over court rooms. This explains why in Miami the Dade County Courthouse opens each morning to steps strewn with numerous sacrificed animals, burning candles, and food left as ebbós to Ochosi the night before.  So, at least for some ebbós, it appears practitioners are required to engage in “public” disposal of the animal carcasses to complete the ritual’s requirements.
B. Conflict Between the Church of Lukumi Babalu Aye and Hialeah, FL
In June of 1987, the Santería Church of the Lukumi Babalu Aye relocated to 173 West 5 th Street in Hialeah.  The members of the Church sought to establish a religious and cultural center, complete with a school and museum, at this location.  They wished to practice all the rituals of Santería, including ritual animal sacrifice.  They hoped to bring the practice of Santería out into the open, and they began to organize and prepare the building for occupancy. 
The City Council of Hialeah reacted quickly. Upon meeting on June 9, 1987, the council adopted Resolution 87-66, which noted that the residents of the city were concerned “that certain religious groups may propose to engage in practices inconsistent with public morals, peace and safety.”  The city then “reiterated its commitment” to prevent such practices.  Further, the city adopted Ordinance 87-40, which incorporated into city code, except as to penalties, Florida Statutes Chapter 828.  This chapter contained Florida state laws regulating animal control and animal cruelty.  Within this chapter is Florida’s animal cruelty statute, § 828.12. This statute states it is a misdemeanor to “unnecessarily” kill any animal.  Because Chapter 828 prohibits local governments from passing laws that conflict with state laws, the city sought the advice of the Florida Attorney General regarding their ability to pass additional ordinances prohibiting animal sacrifice.  An opinion was issued which assured the city that the state misdemeanor anti-cruelty statute “prohibits the sacrificial killing of animals other than for the primary purpose of food consumption.”  Thus, according to the opinion, municipal ordinances prohibiting Santería animal sacrifice were permissible under state law.
Armed with this information, the city passed Resolution 87-90, a hortatory enactment adopted on August 11 th .  This resolution declared it was city “policy” to oppose ritual sacrifice of animals within Hialeah. Later, in September, the city adopted three substantive ordinances.  Ordinance 87-52 prohibited possession or use of animals for ritual slaughter outside of properly zoned and licensed establishments.  Ordinance 87-71 declared in “unlawful . . . to sacrifice any animal within the corporate limits of the City of Hialeah” if it were not done for the primary purpose of food.  The final of the three, Ordinance 87-72, declared it unlawful to slaughter any animal in the city on any premise not zoned for slaughter and “meeting all health, safety and sanitation codes prescribed by the City.”  This provision exempted small farm operations that were exempted by state law.  With these enactments, the city had blocked the Santeros from conducting animal sacrifices at the church. 
The church responded by filing a claim in federal district court under 42 U.S.C. § 1983.  The church, led by head priest Ernesto Pichardo, challenged all four ordinances by asserting they were in violation of the First Amendment right to free exercise of religion.  The district court held that the ordinances were not in violation of the Constitution’s Free Exercise Clause of the First Amendment.  The court found the city had had asserted compelling interests to justify the ordinances: preventing animal cruelty and protecting the public health.  Interestingly, the district court concluded the ordinances’ effect of prohibiting animal sacrifice was not aimed specifically at the practices of the Church of Lukumi Babalu Aye or Santería: 
All the evidence established was that the council members’ intent was to stop the practice of animal sacrifice in the City. Although this concern was prompted by the Church’s public announcement that it intended to come out into the open and practice its religious rituals, including animal sacrifice, the council’s intent was to stop animal sacrifice whatever individual, religion, or cult it was practiced by . 
In an unpublished opinion, the Eleventh Circuit Court of Appeals affirmed the district court’s decision.  However, on June 11, 1993, a unanimous Supreme Court reversed the decision.  The Church of Lukumi Babalu Aye had prevailed in their constitutional free exercise claim, defeating Hialeah’s ordinances.
III. Free Exercise and Animal Sacrifice in the U.S. Supreme Court
The Free Exercise Clause of the First Amendment  of the U.S. Constitution is usually asserted in one of three situations. It may be invoked when a government regulation burdens a religious practice or makes religious observance difficult.  Additionally, it may be used to challenge a regulation that compels an individual to engage in conduct which their religion forbids.  Finally, a violation may be claimed when a law prevents an individual from engaging in conduct which his religion requires.  The latter of the three situations was at issue in Lukumi .
A. History of Free Exercise Jurisprudence
1. free exercise jurisprudence before Smith
The Supreme Court has historically distinguished between state regulation of religious belief, and state regulation of religious conduct.  The former was strictly forbidden, but the latter was necessarily more permissible. In Cantwell v. Connecticut , the Court stated: “ Thus the Amendment embraces two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”  Thus, if religious conduct was being regulated for the purpose of promoting public health, safety, welfare, or another public interest, the law was generally found constitutionally permissible.
Under the belief/action dichotomy, free exercise challenges to regulations compelling, burdening, or forbidding conduct were almost always unsuccessful. For example, challenges to regulations requiring adherence to military uniform requirements,  observance of Sunday closing laws,  payment of social security taxes and other federal taxes,  and use of social security numbers  all failed. In each case the U.S. Supreme Court found the challenged law did not violate the Free Exercise Clause.
In fact, successful free exercise challenges were few and far between. One successful challenge occurred in Wisconsin v. Yoder , when the Court upheld an Amish father’s challenge to Wisconsin’s compulsory education requirement for minors.  Other successful challenges occurred in cases where the government had denied unemployment benefits because the individual had declined jobs requiring work on their day of worship.  These were largely the only successful challenges in the Supreme Court prior to Lukumi .
After the early 1960s, the Court purported to apply strict scrutiny to evaluate any valid assertion of a free exercise violation.  This is the most rigorous level of constitutional scrutiny. When the Court applies this level of constitutional review, the government is required to defend the challenged regulation by asserting a compelling public interest to justify it. However, as summarized above, the Court rarely struck down any regulations of conduct in the name of free exercise. Instead, the Court would swiftly determine the state’s interest satisfied the “compelling public interest” burden. 
Further, the Court occasionally refused to apply strict scrutiny at all. For example, in Bowen v. Roy , Native American parents challenged a state law requiring the use of social security numbers to obtain welfare benefits.  The parents said their Native American religion forbid using such numbers, as using the number would endanger their child’s spirit. In upholding the constitutionality of the law, the Court stated: “The test applicable in cases like Wisconsin v. Yoder is not appropriate in this setting. In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs . . . the Government is entitled to wide latitude.”  The Court further went on to say that “absent proof of intent to discriminate against particular religious beliefs or against religion in general” the government could meet its burden of demonstrating a regulation was valid if the regulation were a “reasonable means of promoting a legitimate public interest.”  In Bowen , the Court seemed to dwell on the type of regulation--a requirement in order to obtain government benefits.  Despite this limiting context, the Court’s language indicates the seeds of the Smith test were already being planted in free exercise jurisprudence. The use of strict scrutiny review in most free exercise challenges was soon to be a thing of the past.
2. Employment Division v. Smith : a new constitutional test for Free Exercise challenges
In 1990, the Court expressly changed the constitutional test applicable to free exercise challenges. In Employment Division v. Smith , the Court held that members of the Native American Church, fired and denied unemployment benefits for their religious peyote use, were not exempt from Oregon’s criminal statute prohibiting the possession of controlled substances.  In deciding Smith , the Court applied a new constitutional test to the challenged law. This new analysis first determined whether the law regulated conduct in a neutral and generally applicable way. If so, the state needed only justify the law with a legitimate public interest. Though a six-three split on the holding, only five of the nine justices agreed to officially change the free exercise standard of constitutional review. 
The Court’s new test significantly weakened an individual’s ability to assert a violation of the Free Exercise Clause. Now neutral and generally applicable laws could freely burden religious conduct as long as they served a legitimate public interest.  Nearly any interest that in some way served the public good would satisfy this “legitimate public interest” requirement. The meaning of Smith was clear: there need not be legal accommodation for conduct simply because it was religious.
The Court defended the departure from strict scrutiny review. According to the Court, if the Free Exercise Clause required a government to defend regulations burdening religious conduct with a compelling interest, each citizen was given a private right to ignore generally applicable laws.  Effectively, each individual was then a law unto themselves.  Such a system could not uphold social order.
The Court did not escape from the Smith decision unscathed by criticism. In fact, the political process, which the Court had entrusted to protect minority religions in Smith ,  reacted swiftly. In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) which functioned to override the Smith decision. The act mandated that a government could not substantially burden a person’s religious conduct without a “compelling government interest.”  However, the Supreme Court later declared RFRA unconstitutional as applied to state and local governments (but apparently still good law with regard to the federal government).  The Court stated the scope of the act was beyond the powers of Congress as enumerated in the Constitution. 
Undaunted, Congress enacted the Religious Land Use and Institutionalized Person Act (RLUIPA) in 2000.  Using congressional powers granted via the U.S. Constitution’s Commerce Clause,  Congress sought to demand a “compelling state interest” when a law regulating land use or institutionalized persons burdened religious conduct. The future of this act is uncertain, as it has not yet come before the Supreme Court. However, a federal district court in California has held the act to be unconstitutional, and higher courts may follow suit.  Therefore, in spite of opposition, the Smith test remains applicable to most free exercise challenges.
Despite Smith ’s retreat from heightened free exercise protection, the Smith decision did fire one warning shot at state and local legislatures. The Court indicated regulations of conduct would be unconstitutional if the motive of the legislature was to target the conduct because it was inspired by religion:
It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used for worship purposes," or to prohibit bowing down before a golden calf. 
These words established the outer limit of permissible regulations interfering with religious conduct. If the conduct was regulated only because it was motivated by religious belief, the regulation would be in violation of constitutional free exercise rights.
At the time, the Justices may never have foreseen such a unique legal challenge arising before the Court. However, these words foreshadowed the free exercise conflict the Court would entertain only three years later in Lukumi .
B. Church of Lukumi Babalu Aye v. City of Hialeah :
Protecting Animal Sacrifice?
Lukumi came before the Supreme Court six years after the conflict had arisen between the church of Babalu Aye and the city of Hialeah, and almost four years after the Florida District Court decision had been entered. In the interim, with the Court’s Smith decision in 1990, free exercise law had undergone major changes. In fact, the dearth of successful free exercise challenges prior to Smith , coupled with Smith ’s reformation of the free exercise constitutional test, seemed to indicate that the church had an almost insurmountable battle. Without strict scrutiny, the interests the city had asserted, protection of public health and prevention of animal cruelty, seemed more than sufficient to defeat the challenge to Hialeah’s four ordinances. The Petitioners needed a heightened level of constitutional review. To invoke this, they needed to argue that the ordinances targeted conduct because it was inspired by religious belief. This is precisely what they asserted, and it worked.
1. the context of the Lukumi analysis
The Supreme Court began its opinion by establishing that Santería was a religion within the meaning of the First Amendment.  The Court further stated that the practice of animal sacrifice in Santería, though disagreeable to some, need not be commonly acceptable to warrant First Amendment protection.  With these words, the Court had established that the church had a viable free exercise claim.
Next, the Court reiterated that the proper method of review was applying the test articulated in Smith . If the ordinances were neutral and of general application, their incidental effect of burdening a religious practice would not prove them unconstitutional, so long as they served a legitimate public interest.  However, if the ordinances were not found neutral and generally applicable, strict scrutiny review would be invoked. The ordinances would then need to be justified by a compelling government interest, and be narrowly tailored to serve that interest.  Having laid out the framework of the inquiry, the Court then proceeded to engage in its application.
2. the neutrality of the ordinances
The Court analyzed the ordinances’ neutrality in progressive stages. Beginning with the text of the ordinances, the Court noted a law would lack facial neutrality if it referred specifically to “a religious practice without a secular meaning discernable from the context.”  The Court found though the words “animal sacrifice” and “ritual” seemed to have some religious connotations, there were also plausible secular meanings for the words. The Court concluded the wording of the ordinances was not sufficient to demonstrate an impermissible objective.  The ordinances did not lack facial neutrality.
However, this did not end the neutrality inquiry. The Court asserted that a facially neutral law could still harbor an impermissible object.  The Court turned to Resolution 87-66,  in which the city had expressed its commitment to prevent religious action “inconsistent with public morals, peace or safety.” The Court concluded that this resolution supplied evidence that the object of the ordinances was to suppress a “central element of the Santería worship service.” 
The Court also looked to the effect of each of the ordinances in their collective operation. The Court found that Ordinance 87-71,  specifically prohibiting sacrifice of animals, exempted almost all types of animal killing except for animal sacrifice.  The Court further felt the language “not for the primary purpose of food consumption” went even further, appearing to operate as an exception for kosher slaughter.  From this the Court determined the true object of the ordinance was simply to stop Santería animal sacrifices.
Regarding Ordinance 87-52,  prohibiting possession and use of animals to be killed in rituals, the Court found that it harbored numerous suspicious exemptions, indicating a legislative “gerrymander.”  The Court found it failed to cover animal killings not for food purposes, killings not done during a ritual, or killings done during a ritual but in a properly zoned establishment.  In operation, the Court concluded, the burden of the ordinance fell almost exclusively on Santería. 
Finally, ordinance 87-40,  incorporating state animal control and cruelty laws, also failed the neutrality inquiry. Here, the Court dwelled on the attorney general’s opinion construing Florida’s animal cruelty statute. The Court stated that to deem a killing “unnecessary” when it was done for religious reasons, yet allow most other animal killings to fall outside the prohibition, again specifically operated to target Santería. 
The Court admitted Ordinance 87-72,  which confined animal slaughter to properly zoned slaughter houses, might survive the neutrality inquiry were it not for its relationship to the previous three impermissible ordinances.  Ordinance 87-72 was thus found guilty by association. The Court concluded that because the ordinances, in sum, had the effect of targeting Santería animal sacrifice, all the ordinances seemed to solely target a specific religious conduct.
Further, the Court indicated they could “find guidance in our equal protection cases” in determining the ordinances’ neutrality.  By this, the Court meant they could determine the true object of the ordinances from circumstantial evidence, for example the historical background leading to the enactments. This stage of the inquiry reflected dismally on the city council. The legislative record showed the city harbored great hostility towards the church and its practitioners.  This final step in the analysis forced the Court to conclude that the only object of the ordinances was to prevent Santeros from engaging in animal sacrifice.
The Court found the ordinances were not neutral laws, but laws directly targeting a religious practice. After examining the language of the ordinances, their effect in operation, and the historical record of the legislation, the Court found the ordinances worked in tandem to target one object: Santería animal sacrifice. The city’s ordinances did not satisfy Smith’s requirement of neutrality.
3. the general applicability of the ordinances
Having found the ordinances were not neutral, the Court was more perfunctory with the second prong of the Smith test. In fact, the Court prefaced this stage of the inquiry by stating: “In this case we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.”  From there, the Court focused mainly on the under inclusiveness of the ordinances.
The Court lashed out again at Ordinance 87-40  and the Florida Attorney General’s construction of the term “unnecessary.” The Court enumerated how many secular killings were deemed “necessary” and permissible under state law: “For example, fishing . . . is legal. Extermination of mice and rats within a home is . . . permitted. [E]uthanasia of ‘stray . . . or unwanted animals’; . . . infliction of pain or suffering ‘in the interest of medical science’; . . . and the use of a live animal to ‘pursue or take wildlife or to participate in any hunting,’ . . . and to ‘hunt wild hogs. . . .’”  To the city’s response that such killings were “important” or “obviously justified” the Court retorted: “These ipse dixits do not explain why religion alone must bear the burden of the ordinances, when many of these secular killings fall within the city’s interest in preventing the cruel treatment of animals.” 
The Court also found the ordinances under inclusive in protecting public health.  With regard to the assertion that the public health was threatened by improper disposal of animal carcasses: “The city does not . . . prohibit hunters from bringing their kill to their houses, nor does it regulate disposal after that activity.”  The Court even strained to find Ordinance 87-72  under inclusive, by finding that the state’s small farm exemption for persons slaughtering small numbers of hogs and cattle suspect.  Upon finding the ordinances did not reach far enough to achieve the city’s asserted justifications, the Court found the laws were not generally applicable.  In sum, the Court concluded the ordinances would impose a prohibition upon conduct because it was religious, but not prohibit the same conduct done by a secular society at large. This would lead to the “precise evil …the requirement of general applicability is designed to prevent.” 
4. strict scrutiny and the need for a compelling government interest
Because the ordinances were not neutral or generally applicable, the Court found the ordinances “must undergo the most rigorous of scrutiny.”  This meant that the ordinances needed to serve a compelling government interest, and be closely tailored to accomplishing this interest.
However, other than asserting the justifications for the ordinances must be “of the highest order,” the Court seemed to decline a determination of whether the interests the city asserted in their defense were compelling. Employing somewhat circular reasoning, the Court concluded because the government had failed to enact other measures to prevent “substantial harm . . . of the same sort” the interests could not be compelling.  Thus, because the Court found the ordinances so under inclusive, it found “there can be no serious claim that those interests justify the ordinances.”  The Court seemed to intimate that the interests asserted by the city were not the true justifications for the ordinances.
However, before establishing that the city’s asserted interests could not be compelling, the Court first addressed the tailoring of the ordinances to the city’s purported interests. The Court found that the ordinances were not narrowly tailored to accomplish the city’s asserted interests.  For example, the Court decided laws regulating disposal of animal carcasses could satisfy Hialeah’s public health concern, and still permit animal sacrifice.  The Court concluded that narrower ordinances could suffice in protecting the city’s interests in public health protection and animal cruelty prevention, while burdening religion to a far lesser degree. 
With this brief inquiry, the Court found the ordinances did not withstand strict scrutiny. The Court apparently did not find the ordinances were designed to serve the compelling public interests asserted by the city. And even if they were, the Court concluded the laws could be more narrowly tailored to serve these interests. The ordinances failed constitutional review, and all were held unconstitutional under the Free Exercise Clause.
C. The Law of Lukumi : What the Supreme Court Said, and Didn’t Say
As a matter of free exercise law, the Supreme Court probably decided Lukumi properly. The Court apparently felt it was confronted with the type of situation expressly forbidden in Smith , a government banning conduct simply because it was inspired by religious belief: “It is only in the rare case that a state or local legislature will enact a law directly burdening religious practice as such. Because respondent here does single out religion in this way, the present case is an easy one to decide.”  Unlike the district court, the Supreme Court refused to distinguish animal sacrifice from other animal killings.  Without this distinction, the conduct at issue appeared permissible in many secular circumstances, and only barred when motivated by religion.
The historical record behind the enactments was incredibly damaging.  Had Hialeah been more cautious in its public debate and hortatory enactments, it may have been more difficult for the Court to conclude that the city had acted to target Santería. Ultimately, the record simply revealed an intense discrimination against a religious practice.
The Lukumi decision reiterates a fundamental First Amendment principle: legislators cannot persecute religious conduct through methods overt or disguised. In its final paragraph, the Court admonished: “The Free Exercise Clause commits government itself to religious tolerance . . . all officials must pause to remember their own high duty to the Constitution and the rights it secures.” 
However, Lukumi stops far short of declaring a constitutional right to sacrifice animals. The challenged ordinances failed because they were found to be not neutral and not generally applicable. The Court found the historical record of the legislation, coupled with ordinance’s numerous exemptions, revealed the aim of the ordinances was to persecute a religious practice. If the ordinances had instead been neutral in their aims, and largely applicable to both secular and religious conduct, strict scrutiny would never have been invoked. The ordinances would then have withstood the free exercise challenge, the Court no doubt finding that protection of public health and prevention of animal cruelty were legitimate public interests to justify the laws.
In fact, it is worth noting that the Court didn’t find preventing animal cruelty was not a compelling public interest. Justice Blackmun, who declined to adopt the majority’s new rule in Smith , expressly qualified the Lukumi holding on this point: “This case does not present, and I therefore decline to reach, the question whether the Free Exercise Clause would require a religious exemption from a law that sincerely pursued the goal of protecting animals from cruel treatment.”  Thus, even Justice Blackmun, an accomodationist, was uncertain about whether the interest of protecting animals from cruelty could be superseded by free exercise rights. Clearly, the Lukumi holding was one turning on the invidious discrimination of a legislature, not on the merits of preventing animal sacrifice. 
IV. Solutions: How the Law Can
Constitutionally Prevent Animal Sacrifice
The Lukumi decision does indicate that a direct ban on animal sacrifice will probably never be found constitutional.  Though the Court in Lukumi did not find the term animal sacrifice to include only religious conduct, it seemed to find the language, and thus the law’s object, suspect. This resulted in a further, deeper inquiry into the Hialeah ordinances’ true objects and historical background. No doubt this in-depth inquiry would be repeated by any court when reviewing a challenged law prohibiting animal sacrifice. It would be overly optimistic to expect that any law banning animal sacrifice per se could withstand this inquiry without indicating that its target was not, at least substantially, religious conduct. This would probably lead the court to conclude the law violated Smith ’s requirements of neutrality and general applicability. Strict scrutiny would then be invoked, and would operate to defeat the law.
However, there are constitutionally permissible ways the law may operate to prevent animal sacrifice. Both Smith and Lukumi indicate that if a law is neutral in its object, and applicable to both secular and religious conduct, it will pass constitutional muster. To be neutral, Lukumi indicates a law must be facially neutral and not harbor numerous exemptions that operate in effect to target a religious practice. Further, the historical background of the legislation should not indicate the motivation for the law was prohibiting religious conduct. Lukumi also indicates that a law is generally applicable if it targets conduct that has both secular and religious motivation. If a law genuinely has these qualities of neutrality and general applicability, its incidental effect of burdening animal sacrifice will not amount to a violation of religious free exercise rights.
Two areas of the law can work to prevent animal sacrifice in constitutionally permissible ways, albeit indirectly. Below is a discussion of how both municipal zoning and licensing laws, and animal cruelty laws, can be used as a potential barrier to animal sacrifice. Neither area represents a perfect solution, in the sense neither is to likely stop sacrifice completely. However, in both areas legislation can be passed and enforced which is neutral, generally applicable, and a burden to animal sacrifice.
A. Zoning Laws
1. zoning laws regulating slaughter zones
In the Lukumi decision, the Supreme Court treated Ordinance 87-72 more favorably than any other of Hialeah’s ordinances. The ordinance simply prohibited any animal killing within the city that was not conducted in a properly zoned slaughter house meeting applicable health, safety and operational codes. The Court was only able to criticize the law for harboring the state’s small farm exemption. The ordinance largely failed only because it had been passed in tandem with the other impermissible ordinances.
If this ordinance had been examined independent of the others, the Court likely would have found it to be neutral and of general applicability. This type of regulation is facially neutral in its object of protecting the public health. It would also be neutral in its effect, and this would be especially true if no exemptions were present. Further, it is generally applicable because it regulates both religious and secular slaughter. Such a regulation would likely survive the Smith test.
A municipal law relegating animal slaughter to authorized slaughter zones would have the incidental effect of preventing many animal sacrifices. Most animal sacrifices take place in Santeros’ Ilés, or house-temples. These house-temples are usually in residential zones, within city limits. The law would prevent the sacrifices that take place in these locations.
The solution is not perfect, however. First, the Religious Land Use and Institutionalized Person Act  may extend to such zoning laws, and is still the applicable law in many jurisdictions unless and until it is found unconstitutional. RLUIPA states that governments cannot implement land use regulations which substantially burden religious free exercise unless the regulation serves a compelling public interest, and is narrowly tailored to achieve this interest .  Essentially, RLUIPA mandates strict constitutional scrutiny of land use laws affecting religious free exercise rights. RLUIPA’s primarily goal seems to be preventing local governments from denying permits for church construction or operation.  However, if RLUIPA was determined to apply to slaughter zoning laws affecting Santería house-temples, a government advancing municipal zoning laws might be required to demonstrate how burdening religious animal sacrifice served a compelling public interest. A court reviewing the challenged law may find the law was justified by the compelling interest of protecting public health. However, the court may also find a narrower law, such as one regulating the method of sacrifice and disposal, would serve this interest without placing such a substantial burden on religious practices. This issue would be one of first impression under RLUIPA.
Additionally, such a law would not prevent Santeros from conducting sacrifices in rural areas outside the scope of the zoning regulation. However, for practitioners who do not live in rural areas, the need to travel a distance could be a deterrent. Such a burden would probably render frequent sacrifices less feasible for most practitioners.
2. zoning and licensing laws regulating animal possession
Similarly, a law regulating possession of certain animals within city limits may indirectly prevent sacrifice. Ordinance 87-52 did attempt such a prohibition, but went further. In addition to prohibiting possession, the ordinance prohibited killing during a ritual, but allowed killing if the animal was not going to be consumed, or was ritualistically slaughtered for food purposes within properly zoned areas. The Court found this pattern of prohibitions and exemptions to be a sign of a legislative gerrymander. From this, the Court concluded the ordinance was directed only, in effect, at Santería sacrifice.
A prohibition solely against possession would not be likely to raise such concerns. Such a law would simply prohibit possession of certain animals, such as chickens, goats and other livestock, outside of properly zoned areas and/or licensed establishments. As long as there were few or no exemptions, the ordinance would in effect operate neutrally to protect the public health. The law would apply to animals housed both for secular and religious uses, therefore prohibiting both secular and religious conduct. Because such a law would then be neutral and generally applicable, it would not be subjected to strict scrutiny and would likely survive constitutional review.
Many Santería practitioners obtain animals from specialized shops called botanicas, which sell religious supplies for Santería.  These botanicas are usually located in commercially zoned areas.  These botanicas also do not generally have a license to house the animals they keep.  Such a law would prevent botanicas lacking proper zoning and/or licensing from possessing sacrificial animals. This would stop a large portion of sacrificial animal supply to practitioners.
This is also not a perfect solution. If a botanica established itself in a proper zone and/or obtained a license to house animals, such actions would be then be legally permissible. Further, the law would not prevent Santeros from obtaining animals from other licensed and/or properly zoned dealers. However, by requiring proper zoning and licensing, the conditions under which animals are held could be better regulated. The law would work to prevent cruel conditions like those reported in the San Francisco account, above.  At the very least, such a law imposes a burden on the practice of animal sacrifice, and takes steps towards the safeguarding of animal welfare.
B. Animal Cruelty Statutes
State and local animal cruelty statutes may function to prohibit animal sacrifice in some circumstances. In Lukumi , the Supreme Court found that Ordinance 87-52, incorporating Florida’s animal cruelty statue, lacked general applicability because it construed animal sacrifice to be an “unnecessary” killing while permitting many secular killings. Thus, an animal cruelty law probably cannot flatly prohibit all animal sacrifices unless it also prohibits a great number of secular animal killings. However, the state can mandate that religious sacrifices are conducted in a humane manner. Sacrificial conduct that rises to the level of animal cruelty can then be prosecuted under animal cruelty statutes.
Shortly after the Lukumi decision was handed down by the Supreme Court, another Santero was prosecuted under Florida’s animal cruelty statute.  Rigoberto Zamora, a professed Santero, was charged with four counts of animal cruelty stemming from a Santería sacrifice he performed for reporters in celebration of the Lukumi decision.  He motioned to dismiss the charges, stating that the state animal cruelty statute, as applied to him, violated his right to free exercise of religion.  The prosecution asserted that the First Amendment did not prevent animal cruelty prosecutions under Fla. Stat. § 828.12, where the sacrifice was conducted in a cruel and inhumane manner.  The county court agreed, and denied Zamora’s motion to dismiss.  Zamora plead no lo contendre to all counts, reserving his right to appeal the denial. However, the 11 th Judicial Circuit per curiam affirmed the denial of the motion. 
Animal cruelty laws provide a viable solution for preventing animal sacrifice. Every state has enacted animal cruelty legislation that provides for criminal penalties.  Thus, even though a state cannot flatly prohibit animal sacrifices, the state can mandate that the practice occur in a humane manner. Practitioners of animal sacrifice who do not adhere to the state requirements can be criminally prosecuted. Such prosecutions should have a deterrent effect on the practice.
As with the former solutions, this solution is also not perfect. Though the prosecution of an offender may deter future conduct, it cannot prevent the initial harm from occurring. The solution also has other practical short comings. For a prosecution to take place, the offense must first be reported. Additionally, the facts demonstrating the inhumane method of the sacrifice have to be proven in court beyond a reasonable doubt, the standard of proof required in criminal prosecutions. Since Santería’s practitioners usually conduct sacrifices away from the eyes of anyone but fellow practitioners, both of these requirements can be difficult to satisfy. However, the attitude of fellow practitioners towards Zamora’s conduct  indicates some self-policing and reporting can be possible within the Santería community.
The solutions discussed above are not exhaustive of the constitutionally permissible ways the law can burden or prevent animal sacrifice. Any law that satisfies the Smith test can withstand constitutional scrutiny when challenged under the Free Exercise Clause. Local and state governments are free to enact and enforce laws that have the effect of burdening or preventing animal sacrifice if the laws are neutral and of general applicability.
The Court’s decision in Lukumi has been criticized for not protecting animals by recognizing that governments have a substantial interest in preventing animal sacrifice.  However, because animals have very little legal protection in the United States and in Western Society in general,  it is unfair to expect the Supreme Court to draw an arbitrary line at animal sacrifice. After all, if animals can be bought, sold, and used with impunity to satisfy most human needs, how can using them to engage in religious conduct suddenly be deemed impermissible? This quandary was undoubtedly an undercurrent in the Lukumi decision.
Those who disagree with animal sacrifice on an ethical level should reflect on why that practice is more disagreeable than other practices involving the use of animals. Some have asserted that the varying treatment of animals across cultures has erected yet one more barrier between the U.S. majoritarian culture and the cultures of marginalized races and ethnicities.  If so, it follows the majority culture establishes the norm for treatment of animals. Punishment for deviation from that norm is often then directed at minority races and ethnicities. Such a pattern is arguably one more symptom of institutionalized racism. Such a proposition may seem radical, but it does challenge society to rationalize why the current morays regarding animal treatment lie where they do.
Therefore, Lukumi forces one final question. Though laws can constitutionally prevent and burden animal sacrifice, should such laws be enacted and enforced? The government, via the legal system, is often called upon to enforce the popular morality of society. However, the Constitution’s place is to guarantee all members of society some fundamental protections of belief, speech, and action that otherwise might be annihilated in the process of enacting and enforcing legislation to satisfy democratic demand.
The Supreme Court was unable to distinguish animal sacrifices from the many legally permissible secular animal killings. Because of this, the Court could not find any justification in prohibiting one and not the others. This justification should be found; if possible, the citizens of Hialeah and other municipalities seeking to prevent animal sacrifice should explain why their reprehension towards animal sacrifice largely does not extend to the many secular killings of animals for other uses. Until this is done it seems arguably unfair, and perhaps dangerous, to employ the legal system to establish a distinction that has not yet been defended by any clear and satisfactory argument.
* J.D. Florida State University College of Law 2006. The author extends her gratitude to Laura Bevan for her assistance with this paper. The author would also like to express appreciation to Ms. Bevan and the other employees of the Humane Society of the United States for their tireless efforts in the fight to protect animal welfare.
 See infra note 53.
 See infra note 54 and accompanying test.
 See infra note 52.
 Olmos & Paravisini-Gerbert, Creole Religions of the Cariabbean 24 (2003). Regla de Ocha preserves the language of Yoruba in the names of deities and rituals, and the designation of ranks of priesthood. See generally Miguel A. De La Torre, Santeria: The Beliefs and Rituals of a Growing Religion in America (2004).
 Olmos & Paravisini-Gerbert , supra note 4, at 24.
 Id .
 Id . These groups collectively are called the Lukumi. Id .
 Id .
 Id . at 25.
 Id . at 24. The language is Yoruba, the traditional language of the Lukumí. Id .
 Oba Ecun, Ita: Mythology of the Yoruba Religion 18 (1989); Olmos & Paravvisini-Gerbert , supra note 4, at 24.
 Ecun , supra note 11, at 18-20. Olodumare appears to possess many characteristics similar to the traditional Judeo-Christian concepts of a supreme deity. For example, Olodumare has existed since the beginning of time, controls the destiny of mankind, and sees everything a person really is, including his innermost thoughts and feelings. Olodumare does not punish a person for breaking man’s natural laws (this is the job of the Orishas); instead he doles out any just rewards (or punishments) at the end of a man’s life. Id .
 Olmos & Paravisini-Gerbert, supra note 4, at 30.
 Id .
 De La Torre states that original number of Orishas in African Regla de Ocha is unknown, and is estimated to be between four hundred and seventeen hundred. Only a handful are recognized by Afro-Cuban American practitioners, and his work delineates the eighteen most worshipped Orishas. De La Torre , supra note 4 at 45.
 Olmos & Paravisini-Gerbert, supra note 4, at 26.
 Id . at 26. De La Torre, a former practitioner of Regla de Ocha, points out that many, if not all, religions are a product of “syncretization,” and that using such a term to describe Regla de Ocha marginalizes the importance of the practitioners’ belief system. He states Santería is best viewed more as a distinct religion rather than a distorted version of Catholicism. See De La Torre , supra note 4, at 6-12. This author means no disrespect by using the term here, and incorporates it only because it is so frequently used by others when referring to the transformation of “Regla de Ocha” to “Santería”.
 De La Torre , supra note 4 at 2-3.
 See Olmos & Paravisini-Gerbert , supra note 4, at 36 (suggesting that by adopting the Catholic Saints, Cuban slaves may have wished to incorporate the perceived powers of Catholicism into their religion, or gain social status in society); but see De La Torre , supra note 4, at 2-3 &12 (stating that any incorporation of Catholic Saints or rituals was merely an act by practitioners to mask and protect their ability to worship).
 Olmos & Paravisini-Gerbert , supra note 4, at 32-33.
 “Neither gods nor deities in the Western Sense, Orishas are personified natural forces that interact with human beings.” Id . at 33.
 Id . at 34.
 Ecun , supra note 11, at 37-38; and De La Torre , supra note 4, at 54.
 Ecun , supra note 11, at 46; and De La Torre , supra note 4, at 54.
 De La Torre , supra note 4, at 8-11 & 106-07. De La Torre calls these casas de santos (Spanish) or Ile´ (Yoruba). These are generally rooms within their residence that Santeros have devoted to the worship of Santería. If it is the home of a Santero priest, persons will come to consult the priest and will wait outside the room for their “appointment” just as one would wait at a doctor’s office. These persons are often devout Catholics or Protestants, and simply see consulting the Santero as complimentary to their faith and regular worship. Id .
 Id. at 106-07. The level of “masking” is usually dependant on the stage or evolution of the Santero’s belief. Beginning worshippers are often more comfortable invoking the Catholic Saint while performing worship rituals. As one’s spiritual development (and curiosity) in Santería grows, he will be instructed by other Santeros about the ways of the Orishas. See generally id.
 Id. at 4.
 Id .
 Id . at xiv; but see The American Religious Identification Survey , CUNY Graduate Center (estimating the number of U.S. practitioners at 22,000) at http://www.gc.cuny.edu/studies/key_findings.htm (last visited Apr. 19, 2005). However, due to the study’s high response refusal rate, this may be significantly lower than actual numbers, especially given the typical practitioner’s secrecy regarding their faith. See infra note 33.
 Eugene Bernard Filipowicz, Santería As Revitalization Among African Americans (1998) (unpublished Masters thesis, Florida State University) (on file with Florida State University Robert Manning Strozier Library).
 Id .
 De La Torre , supra note 4, at 4.
 De La Torre credits this to the religion’s historic persecution in Cuba, and the fact that most original practitioners were Cuban refugees in the United States, thus the practices were of a marginalized and distrustful people. This led to a tradition of secretive practicing within the United States. Id . at 174-80.
 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 525 (1993). Specifically, Justice Kennedy, writer of the opinion, concluded that sacrifices were performed during birth, marriage and death rites, to cure the sick, for initiation of new members and priests, and during an annual celebration. In reaching this conclusion, he relied on the district court’s opinion, and the Encyclopedia of Religion. Id .
 De La Torre , supra note 4, at 123.
 Id . Ebbós do not just take the form of sacrificial animal parts or blood. Food offerings and herbal baths may also be what is required, as determined by divination. Id . at 121-22.
 Id . at 135.
 Id .
 Id . at 126. For example, Babalu´ Aye´ prefers doves, hens, gelded goats, snakes, wild pigs, rooster and quails. Id. at 124.
 Id . at 121-22.
 De La Torre says ashe´ can be created in a variety of ways, such as burning a candle. However, the greatest amount of ashe´ is achieved with animal sacrifice because “blood contains the life and soul of a creature.” Id .
 Church of Lukumi Babalu Aye v. City of Hialeah, 723 F. Supp. 1467, 1472 (S.D. FL, 1989).
 Id . De La Torre says that only the highest Santero priest, a Bablawo, can sacrifice four legged animals. Ordained Santeros and Santeras are permitted to sacrifice birds. De La Torre , supra note 4, at 126. However, he also seems to indicate that an ordained Santero can choose to “specialize in animal sacrifice” thus eliminating the need for the skills of a Babalawo. Id . at 106.
 Lukumi, 723 F. Supp. at 1472.
 Id .
 Id .
 Id . at 1473.
 Id . at 1472-73. The court relied on the expert testimony of Dr. Michael Fox, Vice President of the Humane Society of the United States. Dr. Fox testified that under the method described the animal was not likely to be unconscious instantaneously, and would experience pain, because arteries were located in places that the blade would not reach under this method. Id .
 Id . at 1474. The court found that typically animals were kept in stores ( botanicas) selling Santería religious articles. They were often confined with animals other than their own species, often without food or water, both conditions causing distress. The court also found that the botanica s were usually not licensed to sell or house animals, and often transported them illegally into the state. Id . at 1473-74 .
 Lukumi , 723 F. Supp. at 1473-75. With regard to disposal, Pichardo was unable to say what became of any portion of the uneaten carcass, and speculated it was simply disposed of in the residence’s trash. Other testimony indicated numerous disposals in public areas had been taking place. Id .
 De La Torre acknowledges that the number of decapitated chicken and dove carcasses in the Miami river, left as an ebbo´ to Oshun, the goddess of love and the river, is becoming a problem. See De La Torre , supra note 4, at 210.
 Duane Borne, Decapitated Pig, Birds Found in Spring Hill , St. Petersburg Times , May 21, 2004, at A5 (reporting a decapitated pig and two pigeons found, along with coins and coconuts, in an abandoned box in a residential neighborhood. One of the pigeons had a red identification band on its leg); Stephen Vegh, Authorities Credit Animal Sacrifices to Santería Religion, The Virginian Pilot , Nov. 8, 2001, at A1 (reporting a disemboweled lamb, cow tongues, and a variety of decapitated chickens found in public streets and parks within a short period in Norfolk); Julian Walker, The Sacrificial Lambs , Northeast Times , Aug. 21 st 2002, available at http://www.northeasttimes.com/2002/0821/animals.html (reporting an alarming rise in the number of decapitated animals found in dumpsters and public parks in Philadelphia).
 These animals are not eaten as other sacrificial animals are, because they are used in rituals, such as the cleansing ritual, where the negative energy of the practitioner is transferred back to the animal. If the animal were consumed the negative energy could not be dispersed. Thus, the animal must be left in an area near where the targeted Orisha resides, in order to decompose and return back to the earth. See De La Torre , supra note 4, at 126.
 Lukumi , 723 F. Supp. at 1476.
 Id .
 Id .
 Id .
 City of Hialeah, Fla. Resolution No. 87-66 (June 9, 1987), reprinted in Lukumi , 508 U.S. at 548.
 City of Hialeah, Fla . Ordinance No. 87-40 (June 9, 1987), reprinted in Lukumi , 508 U.S. at 548-49. The maximum municipal penalty could not exceed five hundred dollars, and the maximum jail sentence could not exceed sixty days. Id .
 Id .
 Fla . Stat. § 828.12 (1) (2004).
 Lukumi . 508 U.S. at 526-27 (1993). Advice was sought because Fla. Stat. § 828.27 only permits municipalities to enact animal control or cruelty ordinances that are not in conflict with chapter 828 of the state statutes. Fla . Stat. § 828.27 (7) (2004).
 146 Fla. Op. Att’y Gen. 5 (1987).
 City of Hialeah, Fla . Resolution No. 87-90 (Aug. 11, 1987), reprinted in Lukumi , 508 U.S. at 549-50.
 Id .
 City of Hialeah, Fla. Ordinance No. 87-52 (Sept. 22, 1987), reprinted in Lukumi , 508 U.S. at 550-52.
 City of Hialeah, Fla . Ordinance No. 87-71 (Sept. 22, 1987), reprinted in Lukumi , 508 U.S. at 552-54.
 City of Hialeah, Fla. Ordinance No. 87-72 (Sept. 22, 1987), reprinted in Lukumi , 508 U.S. at 555-57.
 Id .
 Lukumi , 723 F. Supp. at 1476-77.
 Id . at 1469.
 Id .
 Id . at 1486.
 Id . It should be noted here, to avoid confusion, this decision was handed down prior to the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990). Prior to Smith , strict scrutiny was the standard of review applied, at least expressly, in cases where a free exercise violation had been alleged. The district court also found a third compelling interest asserted by the city: protecting the welfare of children by not exposing them to animal sacrifice. This interest was not re-asserted by the city in the Supreme Court.
 Lukumi , 723 F. Supp. at 1476-77.
 Id . (emphasis supplied).
 Church of Lukumi Babalu Aye v. City of Hialeah, 936 F.2d 586 (11th Cir. 1991).
 Lukumi , 508 U.S. 520.
 U.S. Const . amend. I.
 See , e.g ., Braunfield v. Brown, 366 U.S. 599 (1961) (challenging Sunday closing laws on the grounds that petitioners, Orthodox Jews, also must observe Saturday closing for Sabbath and their stores were thus placed at a disadvantage); Sherbert v. Verner, 374 U.S. 398 (1963) (challenging denial of unemployment benefits on the basis that Petitioner was offered a job, which she refused because it required her to work on her religious Sabbath).
 See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (challenging compulsory education to age sixteen on the grounds that Petitioner’s Amish religion forbid public high school education); Bowen v. Roy, 476 U.S. 693 (1986) (challenging use of social security numbers in federal assistance programs on the grounds that Petitioner’s Native American religious beliefs forbid giving out the number, as it harmed their child’s spirit).
 Reynolds v. United States, 98 U.S. 145 (1878) (challenging criminal ban on polygamy on the grounds that, as a Mormon, Petitioner’s religion required him to have multiple wives); and Prince v. Massachusetts, 321 U.S. 158 (1944) (challenging child labor laws preventing children selling and distributing periodicals on grounds that Petitioners’ belief system, as Jehovah’s Witnesses, required all members to circulate the religious information).
 See Reynolds , 98 U.S. at 164. (“Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”).
 Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). Cantwell was also the first time the Court officially extended the First Amendment Free Exercise Clause to the states via the Fourteenth Amendment.
 Goldman v. Weinberger, 475 U.S. 503 (1986) (holding military regulations which forbid the wearing of yarmulkes while in Air Force uniform were not a violation of free exercise; military had a sufficient interest in subordination of individuals in order to facilitate the overall group mission).
 Braunfield , 366 U.S. at 599 (holding state’s asserted interest in a uniform day of rest a sufficient secular goal, no exemption was required for Orthodox Jews who were placed at an economic disadvantage when they had to close both Saturday (their Sabbath) and Sunday).
 See, e.g. , United States v. Lee, 455 U.S. 252 (1982) (holding Amish free exercise challenge to payment of Social Security taxes failed, the payment was essential to accomplish the important government interest of maintaining a nation social security system).
 Bowen , 476 U.S. at 693 (holding that the state’s interest in using social security numbers to administer government benefits was valid and permissible, and requiring Native American parents to obtain and use a social security number for their daughter was not a violation of free exercise).
 406 U.S. at 205.
 Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review Board, 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987); Frazee v. Illinois Department of Income Security, 489 U.S. 829 (1989).
 Sherbert , 374 U.S. at 398 (establishing that the correct standard for the Court to apply in evaluating a valid free exercise challenge was strict scrutiny).
 See e.g. Gillette v. United States, 401 U.S. 437 (1971). In Gillette , Petitioner sought exemption from military duty in Vietnam, on the basis his religious belief required he conscientiously object to “this war.” He challenged the Military Selective Service Act of 1967, which only allowed religious conscientious objection to “all wars” as violating the Free Exercise Clause and the Establishment Clause. The Court determined within a few sentences of the opinion that there were substantial governmental interests relating to military conscription, which justified not permitting religious objection to specific wars. Id . at 463.
 476 U.S. at 693.
 476 U.S. at 707 (citations omitted).
 Id . at 708.
 Id .
 494 U.S. at 872.
 Specifically, Justice O’Connor, who concurred in the holding, vehemently criticized the new test for not giving enough protection to minority religions, which she felt were more likely to be significantly burdened and have no recourse in the political process. Id . at 902-03 (O’Connor, J., concurring). The dissenters, Justices Blackmun, Brennan, and Marshall, also agreed that elimination of the previous strict scrutiny test was unwarranted, and stated the decision to adopt a new test rested on misconstruing past precedent. Id . at 908 (Blackmun, J., dissenting).
 Id . at 885.
 Id . at 885-86.
 Id .
 Id . at 890.
 42 U.S.C. § 2000bb (1993).
 City of Bourne v. Flores, 521 U.S. 527 (1997).
 Id . at 536.
 42 U.S.C. § 2000cc (2004).
 U.S. Const . art. I, § 8, cl. 3
 Elisnore Christian Ctr. v. City of Lake Elisnore, 291 F. Supp. 2d 1083 (C.D. Cal. 2003).
 Smith , 494 U.S. at 877-78.
 Lukumi , 508 U.S. at 531.
 Id .
 Id .
 Id . at 532-33.
 Id . at 533-34.
 Id . at 534.
 Id .
 See supra note 59.
 Lukumi , 508 U.S. at 534.
 See supra note 69.
 Lukumi , 508 U.S. at 535-36.
 Id . at 536.
 See supra note 68.
 Lukumi , 508 U.S. at 537.
 Id . at 536-37.
 Id . at 537.
 See supra note 61.
 Lukumi , 508 U.S. at 537-38.
 See supra note 70.
 Lukumi , 508 U.S. at 539-40.
 Id . at 540.
 Id . at 540-42. Specifically, the Court found that many city council members had made comments at the meetings directed towards Santería and the church members. For example, one councilman said that people in Cuba were put in jail for practicing the religion, and that the religion was against everything the country stood for. Apparently, at the public meetings, such comments were greeted by the public with cheers, while Ernesto Pichardo’s brief attempts to speak were met with taunts. Id .
 Id . at 543.
 See supra note 61.
 Lukumi , 508 U.S. at 543-44.
 Id . at 544.
 Id .
 Id . at 544-45.
 See supra note 61.
 Lukumi , 508 U.S. at 545 (citing Fla . Stat . § 828.24 (3) (1991)). But note that this exemption was later repealed, when § 828.24 was substantially rewritten and amended. Act effective July 1, 2001, ch.01-279, § 39, at 120, Law of Fla. (amending § 828.24 Fla . Stat. ( 2000)).
 Id . at 545-46. “We conclude, in sum, that each of Hialeah’s ordinances pursues the city’s governmental interests only against conduct motivated by religious belief. The ordinances ‘have every appearance of a prohibition that society is prepared to impose upon [Santería worshippers] but not upon itself.’” Id . (citations omitted).
 Id . at 546.
 Id .
 Id . at 546-47.
 Id . at 547.
 Id . at 543.
 Id . at 538-39.
 Id . at 546.
 Id . at 580 (Blackmun, J., concurring).
 See Lukumi, 723 F. Supp. at 1472.
 See De La Torre , supra note 4 at 174-80.
 Lukumi , 508 U.S. at 547.
 Id . at 580 (Blackmun, J., concurring).
 For another evaluation, reaching a similar conclusion, see Professor Francione’s critique of the Supreme Court decision which was published shortly after the decision was handed down. Gary L. Francione, Supreme Court Did Not OK Animal Sacrifices , The Houston Chronicle, June 24, 1993 (pointing out that the decision rested on the law’s failure to be neutral, and that neutral statutes preventing inhumane treatment should still be permissible).
 These solutions are advanced in the context of the current legal status of animals. Of course, if laws were passed prohibiting animal killing or granting some legal rights to animals, the assertion that a direct ban on animal sacrifice would fail may not be true. If such laws preceded a law banning animal sacrifice, then animal killing would likely be prohibited in many secular areas. The current Court would almost assuredly not accommodate a religious exception. However, such sweeping changes in the state of animal law are probably, unfortunately, far off and not helpful to this analysis which seeks immediate solutions.
 42 U.S.C. § 2000cc (2004).
 42 U.S.C. § 2000cc (a) (1) (2004).
 Roman P. Storzer & Anthony P. Picarello, Jr., The Religious Land Use and Institutionalized Person Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices , 9 Geo. Mason L. Rev. 929, 945-968 (2001).
 De La Torre , supra note 4 at 133; Lukumi, 723 F. Supp. at 1474.
 De La Torre, supra note 4 at 133 (describing the botanica and merchandise it carries to cater to practitioners).
 The district court found botanicas are likely to be the suppliers of the animals used in the sacrifices, and that the botanicas were unlikely to be licensed to house or sell animals. Lukumi, 723 F. Supp. at 1474.
 Fraily, supra note 50.
 Manny Garcia, Santeria Priest Claims Constitutional Right in Animal Killings , The Miami Herald, Aug. 9, 1995.
 Rigoberto Zamora sacrificed five roosters, three goats, two hens, two pigeons, two guinea hens, and a lamb to celebrate the Lukumi decision. According to the reporters, the sacrifices did not all proceed smoothly. For example, Zamora had to trade out knives in the middle of a goat sacrifice when his first knife was too dull to finish the cut. Aminda Marques Gonzalez, Protesters, Church Rap Unusual Public Santería Sacrifices, The Miami Herald , June 27, 1993 at A1. It should also be noted that Zamora’s actions were condemned by some fellow practitioners and by Ernesto Pichardo, the head priest of the Church of Lukumi Babalu Aye. Pichardo stated that Zamora’s conduct was “taken totally out of the religious experience” and that he and church elders planned to investigate the Santero’s training and background. Id .
 Initial Brief of Appellant at 4, State v. Zamora, No. 96-375AC (Fla. 11th Cir. Ct. 1997).
 State of Florida’s Response to Defendant’s Motion to Dismiss at 1-2, State v. Zamora, No. M95-28476 (Fla. Dade Cty. Ct. Feb. 14, 1996). The State prosecuted Zamora for misdemeanor animal cruelty, the four counts stemming from his inept sacrifice of the sheep and the three goats. Apparently, none of the animals had their carotid arteries severed in the manner required by the state statute governing humane ritual slaughter. Id .; Fla . Stat . §828.23 (6) (b) (2004).
 Order, State v. Zamora, No. M95-28476 (Fla. Dade Cty. Ct. Feb. 14, 1996).
 State v. Zamora, No. 96-375AC (Fla. 11 th Cir. Ct. Oct. 10, 1997).
 M. Varn Chandola, Dissecting American Animal Protection Law: Healing the Wounds with Animal Rights and Eastern Enlightenment , 8 Wis. Envtl. L.J. 3, 4 (2002).
 See Gonzalez, supra note 165.
 See, e.g., Henry Mark Holzer, Contradictions Will Out: Animal Rights vs. Animal Sacrifice in the Supreme Court , 1 Animal L . 79, 95-98 (1995).
 See Chandola, supra note 170, at 3-12.