Chapter 10 - Animals, Religion and Cultural Practices

The use of animals in religion and cultural practices is a polarising issue. Freedom of religion and culture are perceived as fundamental rights in many democratic jurisdictions. While many people oppose certain religious practices such as animal sacrifice, others would argue any restriction on the expression of religion or culture is a violation of human rights. These considerations were critical to the decision in Church of the Lukumi Babulu Aye v City of Hialeah.

However, in The Queen on the application of Swami Suryananda as a representative of The Community of The Many Names of God v The Welsh Ministers, the court held that religious freedom based on the sacredness of animals cannot override public health issues.

10.1 Church of the Lukumi Babalu Aye v City of Hialeah [1993] USSC 77; 508 U.S. 520 (1993)

Prepared by Tiffany Lasschuit

Court

United States Supreme Court

Facts

In September 1987, the Council of the City of Hialeah (‘the City’), the respondent, adopted ordinances concerning ‘sacrifice’. The ordinances made animal sacrifice unlawful within the City of Hileah. The City enacted this law shortly after learning that the Church of the Lukumi Babalu Aye (‘the Church’), the appellant, planned to relocate to Hialeah. The Church practiced the Santeria religion, which involved animal sacrifice as one of its principal forms of devotion.

At first instance, while the Court acknowledged that the foregoing ordinances were not religiously neutral, it found in favour of the City, concluding that government interests in preventing public health risks and cruelty to animals justified the City’s prohibition on ritual sacrifices. The Court of Appeals upheld this decision. It was appealed to the United States Supreme Court.

Issues

• Whether the ordinances were neutral
• Whether the ordinances were of general applicability
• Whether the ordinances were justified by a compelling governmental interest

Decision and Reasons for the Decision

The Court referred to “the general proposition” that under the Free Exercise Clause of the First Amendment “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice”. The Court held that the ordinances were neither neutral nor of general application, and that they accordingly offended the Free Exercise Clause.

Neutrality

Justice Kennedy stated that the Free Exercise Clause prevents discrimination against some or all religious beliefs. The Court observed, “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral”. In this case, the Court found that the use “words with strong religious connotations” such as “sacrifice” and “rituals” proved that the religious exercise of animal sacrifice was targeted. The Ordinances were designed to prohibit killings of animals by Santeria church members, but to exclude almost all other animal killings.

General applicability

The Court also held that each of the ordinances pursued the City’s governmental interests only against religious beliefs and therefore violated the requirement that laws burdening religious practice must be of general applicability. The Ordinances expressly prohibited animal killing by religious sacrifice, but many other types of animal slaughter were neither prohibited nor expressly approved. Therefore, the Ordinances could not be seen as being of general applicability.

Compelling governmental interest

The Court identified that a law lacking neutrality and general applicability was required to be both justified by a compelling governmental interest and narrowly tailored to advance that interest. The Court held that the ordinances could not satisfy these criteria,since they were not narrowly tailored to accomplish ostensible governmental interests. The ordinances were overbroad or under-inclusive and the interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. Further, the City was unable to demonstrate that the government interests were compelling.

Significance of the Case

This decision illustrates the way in which the law may subordinate animal interests to religious freedom. Further, the case demonstrates that governmental interest in preventing cruelty to animals cannot be enshrined in legislation if the restrictions are narrow and only prohibit the conduct of a religious institution.

10.2 R (on the application of Swami Suryananda as a representative of The Community of The Many Names of God) v The Welsh Ministers [2007] EWHC 1736

Prepared by Jae-Hee Park

Court

High Court of Justice of England and Wales (Queen’s Bench Division – Administrative Court)

Facts

Shambo, a temple bull adopted by The Community of Many Names of Gods (‘the Community’) at the Hindu Monastery and Temple at Skanda Vale in Carmarthenshire, tested positive to bovine tuberculosis (‘BTB’) after a routine skin test in April 2007.As a result, the Department for Environment, Food and Rural Affairs (‘DEFRA’) issued a Notice of Slaughter, dated 3 May 2007. The notice, which provided that the bull was to be slaughtered for the protection of public and animal health was served under s 32 of the Animal Health Act 1981 (‘the Act’).The Community submitted letters to various government departments urging them to reconsider alternatives to slaughter by exercising their discretion under s 32 of The Act. These submissions were rejected and a letter dated 3 July 2007 was sent to the Community confirming that Shambo was to be slaughtered.

The Monks of the Community made an application on 6 July 2007 to the Administrative Court of the High Court for judicial review seeking to:

• Quash the Welsh Assembly Government’s decision to issue a slaughter notice; and
• Challenge the decision of the Minister of Sustainability and Rural Development, Jane Davidson (‘the Minister’)not to exercise her discretion under s 32 of the Act to prevent the slaughter of Shambo.

The Committee argued that the slaughter of Shambo would breach art 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), which guarantees “the right to freedom of thought, conscience and religion” and the right “to manifest religion or belief in worship”. Furthermore, the Community claimed that the Government made its decisions unlawfully by failing to take out a proper balancing exercise as required under art 9(2) of the Convention and by failing to justify why slaughter, rather than other viable alternatives, was necessary.

The Government submitted that the slaughter of Shambo would not engage art 9 at all and that it would not interfere with the manifestation of the Community’s beliefs. The Government argued that it was necessary to slaughter the bull for two main reasons:

1. To eliminate the possibility of the risk of infection from Shambo to other cattle or humans; and
2. To carry out post mortem examinations of Shambo in order to assess and manage the disease in the rest of the herd at Skanda Vale and to ensure elimination of infection.

In addition, the Government claimed that if art 9(1) was engaged, the Community’s right to religious freedom could be lawfully overridden under the second limb of art 9.

Shambo’s welfare was only briefly mentioned in paragraph 62, where the National Assembly of Wales justified their decision for rejecting the Community’s submission for alternatives to slaughter by suggesting that slaughter was in the “interests of the bullock”, further providing that “[BTB] is a chronic debilitating disease and it would be unacceptable simply to allow symptoms to progress which would cause prolonged suffering before an eventual death.”

Issues

• Whether the decisions to order the slaughter of Shambo were unlawful under art 9 of the Convention

Decision and Reasons for the Decision

The Court ruled that the slaughter notice of 3 May 2007 and the decision to pursue the slaughter on 3 July 2007 were both unlawful and should be quashed.

In accepting beyond any doubt that art 9 of the Convention was engaged, the Court considered the issue of whether the Government’s interference with the Community’s right to manifest their religious beliefs was justified under art 9(2) of the Convention. According to his Honour, such interference must be prescribed by law and must also be “necessary in a democratic society in pursuit of a legitimate aim”.The legitimate aim relied on by the Government was the protection of public health including the health of animals and humans.

In addressing the issue of proportionality, the Court adopted the three-stage test laid down in De Freitas v Permanent Secretary for Ministry of Agriculture, Fisheries, Lands and Housing [1998] UKPC 30; [1999] 1 AC 69. His honour ruled that the Government had failed to carry out the balancing exercise required by art 9 of the Convention by “failing properly to identify and give appropriate weight to the public interest objective they were pursuing”.

However, in handing down his judgment, his Honour reiterated that his ruling merely rendered the decisions unlawful and did not guarantee that Shambo or any other animal in the care of the Community, would be immune of slaughter under the government’s future exercise of its discretion and powers under the Act.

The Welsh Assembly Government appealed. On 23 July 2007, the Court of Appeal upheld the appeal. Pill LJ ruled that the Minister had acted lawfully in refusing to exercise her discretion under s 32 of the Act to prevent the slaughter of Shambo.Shambo was eventually killed.

Significance of the Case

The decision demonstrates that there is an element of “public interest” with respect to animals with religious significance. However, this may not take precedence when animal health issues are at stake.