5th Circuit Says Ban On Santeria Sacrifices Violates Texas RFRA

In Merced v. Kasson (consolidated with Merced v. City of Euless) , (5th Cir., July 31, 2009), the U.S. 5th Circuit Court of Appeals held that a city's prohibition of animal sacrifices essential to Santeria religious practice violates the Texas Religious Freedom Restoration Act (TRFRA). Jose Merced, a Santeria priest, had been ritually sacrificing sheep, goats and turtles in a room attached to his garage approximately once a year for 16 years without incident when the city of Euless, Texas informed him that he could no longer do so under its ordinances. Merced sued seeking an injunction to prevent enforcement of the ordinances against him.

Reversing the trial court, the 5th Circuit concluded that the ordinances substantially burden Merced's free exercise of religion. It also concluded that (while a close case) the city failed to show that it had a compelling interst in barring Merced's activities, and that the ordinances completely banning Merced's slaughter of four-legged animals are not the least restrictive means of carrying out the city's interests. The district court had found no burden, saying Merced had not proven that orishas required sacrifices to be located at his home. (See prior posting.) The 5th Circuit said, among other things, that "predicating a substantial burden on the results of a religious ceremony (divining the will of the orishas) impermissibly allows judges to evaluate the intricacies of a religious practice." By relying on TRFRA, the court avoided having to deal with the constitutional free exercise claim that Merced had also raised. Yesterday's Fresno Bee, reporting on the decision, says that the city of Euless plans to seek a rehearing.

UPDATE: A press release on the case from Becket Fund links to briefs in the case and to a recording of the oral arguments.

Texas City Sued By Santeria Priest Over Animal Sacrifice Ban

Jose Merced, a Santeria priest, has filed suit against the city of Euless, Texas because it refuses to permit him to conduct religious ceremonies that include animal sacrifices. The Associated Press yesterday reported that the federal lawsuit filed in Fort Worth charges that city officials refused to grant Merced a permit even to conduct the ceremonies inside his home where neighbors would not see or hear them. City officials say that killing animals inside the city is illegal. Merced argues that animal sacrifice as a form of worship is central to Santeria and is protected by the First Amendment, citing a 1993 U.S. Supreme Court case, Church of Lukumi Babalu Aye v. City of Hialeah.

Santeria Priest Rejects Settlement Offer In RLUIPA Suit

The city of Euless, Texas has offered a compromise to settle a lawsuit under the Religious Land Use and Institutionalized Persons Act brought against it by a Santeria priest. (See prior posting.) Yesterday's Dallas Morning News reported that instead of totally prohibiting animal sacrifices, the city would permit the priest to kill chickens and hold weekly gatherings of up to 25 people at his home. However, the city would continue to prohibit the sacrifice of goats. That restriction has led Jose Merced to reject the city's offer. He says that using an animal with four legs is critical to his religious practices. Followers of Santeria believe that the energy in blood from animal sacrifice opens a channel of direct communication with orishas (spirits).

Santeria Priest Who Won Legal Victory Is Profiled

Yesterday's Dallas Observer carries a long background piece on Jose Merced, the Santeria priest who recently won a 5th Circuit victory allowing him to continue animal sacrifices at his Euless, Texas home, despite the city's health and safety concerns. (See prior posting.) Here is a short excerpt:

The litigation had taken its toll on Merced. His testimony and the media attention that followed brought many of Santería's secrets into the open and unnerved those devotees who saw its mystery as part of its theology as well as its enchantment.

He had written letters to the several hundred Santeros he had met over the years, asking each to contribute $100 to his legal defense fund. But many turned him down. Some were fearful that his case would reveal the secrets that gave power and meaning to their religion; others felt his case was his own personal crusade and not a cause for all who practice Santería. "They want to keep on hiding," Merced says, "which I don't understand."

Last night, for the first time in over three years, Merced was to resume his sacrifices of four-legged animals in a ceremony designed to heal the severe back pain, depression and loneliness of a follower. She would be initiated into the priesthood through the sacrifice of animals which, according to Santeria belief, must die so she can live a healthy and spiritual life. Meanwhile the Euless city attorney is exploring whether there are other routes available to end Merced's practices.

Appeal Filed In Santeria Sacrifice Case

The Becket Fund for Religious Liberty, representing Santeria priest Jose Merced (press release), yesterday filed an appeal with the U.S. 5th Circuit Court of Appeals in Merced v. City of Euless. (See prior postings 1, 2.) In the case, a Texas federal district court upheld a decision by the the City of Euless to deny Merced a permit to sacrifice a goat. The animal slaughter was to be part of a Santeria religious ceremony. Today's Houston Chronicle covers the story.

Santeria Priest Loses Bid To Sacrifice Animals In City

After a one-day trial yesterday, a Texas federal district judge ruled against a Santeria priest who wanted to sacrifice animals at his home in Euless, Texas. Jose Merced sued after the city refused him a permit to sacrifice animals, saying that the refusal infringes his religious freedom. The city cites prohibitions on animal cruelty, keeping livestock and disposing of animal waste. U.S. District Judge John McBryde, apparently in a ruling from the bench, said that the city has a compelling interest in public health that justified its refusal. The court said that Merced can perform his religious rituals elsewhere. Yesterday's Houston Chronicle reported on these developments. (See prior related posting.)

Court Says Animal Slaughter Ban Not A Land Use Regulation Under RLUIPA

In Merced v. City of Euless, 2008 U.S. Dist. LEXIS 3685 (ND TX, Jan. 17, 2008), a Texas federal district judge ruled that a Euless, Texas ordinance banning the slaughter of animals or maintaining property to slaughter animals is not a land use regulation. Therefore it is not covered by the Religious Land Use and Institutionalized Persons Act. The ruling was made in a lawsuit brought by an ordained Santeria Oba who views animal sacrifice as an essential part of his religion. The priest was told by authorities in 2006 that he could not kill goats as part of a religious ceremony. The court wrote: "If defendant's ordinance regulating the activity of slaughtering animals were construed as a land use regulation under RLUIPA, then any ordinance that regulates a person's activities, as all activities are in some way conducted on land, would potentially be subject to RLUIPA." Yestereday's Dallas Morning News reports on the decision.

City Says Prohibition On Animal Sacrifice Is Not "Land Use" Law

In Euless, Texas, the city has moved to dismiss a RLUIPA suit brought against it by a Santeria priest who who was refused a permit to sacrifice animals at his home in a religious ceremony. (See prior posting.) The city ordinance permits the slaughter of chickens so long as they are used for food. But it would not permit the slaughtering of goats that Santeria priest, Jose Merced, and his followers were preparing to do. According to yesterday's Dallas Morning News, the city claims that its law prohibiting the slaughtering of animals anywhere in the city is a health and safety law, not a "land use" regulation covered by RLUIPA. RLUIPA, Sec. 8(5), defines a "land use regulation" as "a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land)".

5th Circuit Hears Arguments On Santeria Slaughter Ban

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Merced v. City of Euless (recording of full arguments). In the case, a Texas federal district court upheld a decision by the the City of Euless to deny Jose Merced a permit to sacrifice a goat. The animal slaughter was to be part of a Santeria religious ceremony. (See prior posting.) AP and a release from Becket Fund reported on the oral arguments. Becket Fund's Eric Rassbach, representing Merced, argued: "If Euless permits animal killing for hunting, fishing, meat production, pest control and euthanasia, it cannot ban it for religious reasons." The Becket Fund release also links to all the parties' briefs in the case.

Recent Prisoner Free Exercise Cases

In Dunn v. Catoe, 2016 U.S. Dist. LEXIS 22252 (ED TX, Feb. 23, 2016), a Texas federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 23148, Jan. 15, 2016) and dismissed a Muslim inmate's complaints about policies requiring an outside volunteer at religious services, gang members infiltrating Muslim religious meetings, insufficient food when lock downs occur during Ramadan, and denial of the right to wear a beard.

In Vincent v. Stewart, 2016 U.S. Dist. LEXIS 23304 (WD WA, Feb. 25, 2016), a Washington federal magistrate judge held that unless a proper amendment is filed, she would dismiss a complaint by a Hare Krshna inmate that he has been unable to obtain fresh milk as part of his diet as required by his religious beliefs.

In Todd v. California Department of Corrections, 2016 U.S. Dist. LEXIS 23338 (ED CA, Feb. 24, 2016), a California federal magistrate judge recommended that an inmate be permitted to proceed with free exercise, Establishment Clause and equal protection claims stemming from refusal to recognize Creativity as a religion, denial of a religious diet and banning of the Holy Books of Creativity.

In Fernandez-Torres v. Watts, 2016 U.S. Dist. LEXIS 23964 (SD GA, Feb. 26. 2016), a Georgia federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to have Santeria Bead Necklaces sent to him by his "spiritual family," and could only obtain them from an approved vendor.

In Thody v. Ives, 2016 U.S. Dist. LEXIS 24092 (CD CA, Feb. 25, 2016), a California federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 24095, Jan. 5, 2016) and dismissed as not congnizable in a habeas corpus action an inmate's complaint that members of their non-Judaist, Messianic, Sabbitarian, Zionist belief group have been denied the right to assemble, teach and practice their religion.

In Schlemm v. Wall, 2016 U.S. Dist. LEXIS 24332 (WD WI, Feb. 29, 2016), a Wisconsin federal district court held that because of disputed issues of material fact, the case should proceed to trial on claims that an inmate's RLUIPA rights were infringed when he not permitted to serve venison during the annual Native American Ghost Feast; and was prevented from wearing a multicolored bandana while praying or meditating in his cell and during group religious ceremonies.

In Monroe v. Walker, 2016 U.S. Dist. LEXIS 24475 (D NV, Feb. 26, 2016), a Nevada federal district court adopted a magistrate's recommendations (2016 U.S. Dist. LEXIS 24474, Jan. 11, 2016) and allowed a Muslim inmate to proceed against one of the defendants on his complaint that he was admonished for wearing his religiously approved Kufi and was treated differently than similarly situated Jewish inmates.

Recent Prisoner Free Exercise Cases

In Neal v. Campbell, (9th Cir., Nov. 23, 2011), the 9th Circuit upheld a California district court's finding of qualified immunity based on the failure to show a substantial burden on the practice of religion in a case brought by an inmate who complained that he was placed in administrative segregation for becoming an "ameer" (a Muslim leader) at the prison. (See prior posting.)

In Kailey v. Zavaras, 2011 U.S. Dist. LEXIS 133277 (D CO, Nov. 17, 2011), a Colorado federal district court dismissed various free exercise (as well as a number of other) claims, partly on statute of limitations grounds and partly on the merits. Plaintiff claimed certain of his magazines had been destroyed, that he was prevented from obtaining emergency outreach community relief for his daughter, was strip searched after attending a Jewish service, was prevented from participating in a "Kairas" four-day weekend event as an "inside team member," and was prevented from attending Passover services.

In  Whitehouse v. Johnson, 2011 U.S. Dist. LEXIS 133822 (ED VA, Nov. 18, 2011), a Virginia federal district court dismissed a claim by by an inmate that his rights under RLUIPA and the 1st Amendment were infringed when a correctional center to which he was transferred interfered with his ability to complete his correspondence coursework from a Protestant theological seminary in which he was enrolled.

In Abel v. Martel, 2011 U.S. Dist. LEXIS 133713 (ED CA, Nov. 18, 2011), a California federal magistrate judge allowed an inmate to proceed with claims that he was not allow to purchase for personal use certain items used for Wiccan religious worship, but instead was limited under prison policy to using these for group worship. Plaintiff was also permitted to move ahead with a claim that various religious items were confiscated from his cell in retaliation for his filing a complaint. Plaintiff failed to exhaust his administrative remedies as to other claims.

In Ouahman v. Hillsborough County Department of Corrections, 2011 U.S. Dist. LEXIS 133751 (D NH, Nov. 16, 2011), a New Hampshire federal district court approved two separate magistrate's opinions (2011 U.S. Dist. LEXIS 133756, Aug. 29, 2011 and 2011 U.S. Dist. LEXIS 134060, Oct. 25, 2011) and permitted an inmate to proceed on RLUIPA and First Amendment claims that correctional officers denied him a prayer rug and a Qur'an, denied accommodations for observing Ramadan, and discriminatorily placed him in unnecessarily restrictive housing conditions.

In Runnels v. Banks, 2011 U.S. Dist. LEXIS 133892 (D MS, Nov. 18, 2011), a Mississippi federal magistrate judge permitted a Rastafarian inmate to move ahead with his claim for nominal and punitive damages for burdening his practice his religion while incarcerated. His claims for injunctive relief were found to be moot.

In Chance v. TDCJ, 2011 U.S. Dist. LEXIS 132664 (ED TX, Nov. 17, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 133972, Oct. 13, 2011) and denied a preliminary injunction to a Native American inmate who sought to have weekly religious ceremonies that include sacred pipe ceremonies and smudging and wished to carry a lock of his parents' hair in a pouch.

In Wakefield v. Indermill, 2011 U.S. Dist. LEXIS 134795 (ED CA, Nov. 21, 2011), a California federal magistrate judge recommended dismissing a Seventh Day Adventist inmate's complaints under the 1st Amendment and RLUIPA that the Protestant chaplain did not provide him with weekly Communion and foot washing.

In Groves v. Gusman, 2011 U.S. Dist. LEXIS 134869 (ED LA, Nov. 21, 2011), a Louisiana federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 134883, Oct. 17, 2011), and dismissed for failure to prosecute the case an inmate's claim that he was unable to practice his Santeria religion.

Recent Prisoner Free Exercise Cases

In Phillip v. Schriro, 2014 U.S. Dist. LEXIS 117720 (SD NY, Aug. 22, 2014), a New York federal district court allowed a Muslim inmate to proceed with most of his claims that his free exercise rights were violated when he was denied participation in Friday Jumu'ah services while in punitive segregation.

In Vann v. Fischer, 2014 U.S. Dist. LEXIS 118247 (SD NY, Aug. 25, 2014), a New York federal district court dismissed a complaint by a Santeria practitioner that his religious rights were violated by Directives requiring that he obtain approval to wear his religious beads, conceal them while wearing them, and not wear them while in transit.

In Moon v. Pratte, 2014 U.S. Dist. LEXIS 118707 (ED MO, Aug. 26, 2014), a Missouri federal district court allowed a Muslim inmate to proceed with his claims for religious discrimination. Plaintiff had claimed denial of halal food, a clean place to pray, Islamic religious materials, and services or speakers.

In Ex parte Herrera, 2014 Tex. App. LEXIS 9511 (TX App., Aug. 26, 2014), a Texas state appeals court denied habeas corpus relief to petitioner, in pre-trial home confinement under charges of sexually assaulting a child, who was barred from attending church services as a condition of his electronic monitoring.

In Kyles v. Chartier, 2014 U.S. Dist. LEXIS 119270 (D SC, Aug. 26, 2014), a South Carolina federal district court adopted a magistrate's recommendation and held that the religious exercise of a Hebrew Messianic Yisraelite inmate was not substantially burdened by allowing him to worship with the Jewish congregation but not in separate services.

In Hoeck v. Miklich, 2014 U.S. Dist. LEXIS 119490 (D CO, Aug. 27, 2014), a Colorado federal district court denied injunctive relief to an inmate who claimed that authroties were preventing him from observing his religion of Biblical Christianity that has its own times for various holidays and its own dietary requirements. The court concluded that the relief requested either related to past events or was too vague to implement.

In Williamson v. Twaddell, 2014 U.S. Dist. LEXIS 119566 (CD IL, Aug. 25, 2014), an Illinois federal district court permitted a Messianic Black Hebrew Israelite inmate to proceed with his complaint that he was denied kosher meals, access to Messianic service, baptism, a prayer cap and a ATanach@ religious book.

In Farrad v. Evans, 2014 U.S. Dist. LEXIS 119704 (SD NY, Aug. 15, 2014), a New York federal district court dismissed an inmate's complaint that he was denied Islamic services and ministerial consultation while he was in the prison's medical ward.

In Lloyd v. City of New York, 2014 U.S. Dist. LEXIS 119706 (SD NY, Aug. 4, 2014), a New York federal district court allowed Muslim inmates held at Rikers Island to move ahead with their complaint that they were not provided adequate or appropriate worship space, but dismissed their complaint that they were not furnished an adequate supply of religious materials.

LA Times Profiles Becket Fund

The Los Angeles Times yesterday profiled The Becket Fund for Religious Liberty, saying in part:

The Supreme Court's controversial Hobby Lobby decision has thrust a once-little-known boutique law firm into the center of a growing conservative movement to make faith-based exemptions as potent a legal tool as free speech has been for liberals....

With just a dozen full-time attorneys, the fund's string of high-court successes is earning it a reputation in legal circles as a powerhouse, though its leaders downplay talk about the firm's growing influence....

The fund insists it represents all denominations, from "A to Z, from Anglicans to Zoroastrians." It once defended a Texas Santeria priest who wanted to sacrifice goats at home. This fall the firm heads back to the Supreme Court to represent a Muslim inmate prevented by prison rules from growing a beard in keeping with his faith....

But critics say in recent years Becket has turned its focus primarily toward representing Christians and the religious right.

Curandero Indicted For Practicing Medicine Without License

In Travis County, Texas on Tuesday, William G. Martinez of San Antonio was indicted for practicing medicine without a license after he advertised his services as a "curandero" (a Santeria spiritual healer or witch doctor). Today's Austin-American Statemsan reports that an Austin man suffering from stomach pains responded to Martinez's television advertisement, and was told that he had three animals in his stomach. Martinez treated the man with charcoal and an unknown liquid, and later conducted religious rituals to rid him of his ailments, for which Martinez (also known as Gregorio) was paid almost $9000.