Over the last few days, I have received several inquiries about a Pennsylvania case
that has been getting considerable media coverage. The headlines read
something like: “Hundreds of Dead Animals Found in Philly Home.” While
the media coverage is less than ideal in its lack of legal detail (and
we do not yet have access to any of the incident reports),
investigators are quoted as saying this appears to be a case where the
suspect practiced some form of Santeria
(no, not that song by Sublime, but the religion). Unfortunately, the
following misleading statement is attributed to the lead investigator
in the current media coverage (and I’m paraphrasing here): “There is no
law against sacrificing animals for religious purposes as long as it is
That statement is not technically accurate.
There is, in fact, a law against killing (sacrificing) animals and it
makes no express exception for religious conduct: 18 Pa. Cons. Stat. § 5511. Moreover, Pennsylvania’s “Religious Freedom Protection Act” 71 P.S. § 2401, et seq. does not apply to any of the crimes codified in Title 18 (including animal cruelty). 71 P.S. § 2406(b)(1).
then can a trained law enforcement professional make such a statement?
The answer lies, most likely, in the officer’s understanding of the
practical application of the state law in light of the First
Amendment’s “free exercise of religion clause.” As the Supreme Court
has already noted, in places where animal killings for religious
reasons are outlawed (making the religious sacrifices subject to
state-imposed sanctions), but other forms of animal killing are
tolerated (e.g., for research, eradication of pests, control of the
unwanted pet population, hunting, food production--including kosher
slaughter), the U.S. Supreme Court will take a dim view of this
apparent religious targeting and strike down the criminal law in such a
case. And so too, in all likelihood, will a Pennsylvania Court of
Common Pleas Judge. In fact, it is highly likely that, assuming the
investigation in this PA case actually bares out the fact that the
underlying conduct was part of a recognized religious practice, this
case wouldn’t get to a jury as the defense has a very strong basis for
winning a motion to dismiss on the theory that 18 Pa. Cons. Stat. §
5511 would be “unconstitutional, as applied” on the unique facts of the
case. While not directly on point, the analysis in Merced v. Kasson, 577 F.3rd 578 (5th Cir. Tex. 2009) (PDF) may prove helpful if you want to read more on this topic.
might ask, how can one reconcile this “unconstitutional, as-applied”
outcome with all of those drug cases (e.g., the denial of unemployment
compensation to employees fired for using peyote
as part of a Native American ritual or those Rastafarians who
unsuccessfully defended their marijuana use on religious grounds)? The
answer, I believe, flows from two facts: (1) historically it has been
easier to articulate compelling governmental interests in regulating
the ingestion of compounds that alter one’s personality (ignoring for
now the obvious hypocrisy in the legal use of alcohol) and (2) in
Anglo-American/Judeo-Christian cultures, animals have been viewed as
having been placed on this earth for our use and exploitation, and the
courts have mirrored societal/religious views that the rights of human
beings to religious freedom should therefore trump animal rights or the
interest of the government in deterring animal cruelty, unless a
“significant demonstrable harm” can be shown to exist. Overtime, these
views will evolve and we (society) will strike a better balance in
recognizing the significant and demonstrable harm.
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notwithstanding all of the legal obstacles present in a case like this,
I remain encouraged by the willingness of PA investigators to continue
their work to learn the true facts underlying this case. Only then can
an accurate legal assessment of the matter be made.