Jose MERCED, President, Templo Yoruba Omo Orisha Texas, Inc., Plaintiff-Appellant, v. Kurt KASSON; Mike Collins; Bob Freeman; City of Euless, Defendants-Appellees. Jose Merced, President, Templo Yoruba Omo Orisha Texas, Inc., Plaintiff-Appellee, v. City of Euless, Defendant-Appellant.
Nos. 08-10358, 08-10506.
United States Court of Appeals, Fifth Circuit.
July 31, 2009.
William Michael McKamie, Bradford Eugene Bullock (argued), Law Offices of William M. McKamie, P.C., San Antonio, TX, for Defendants-Appellees.
Before BARKSDALE, DENNIS and ELROD, Circuit Judges.
JENNIFER W. ELROD, Circuit Judge:
The Texas Religious Freedom and Res-toration Act (TRFRA),
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Santeria Religion2
Modern-day Santeria originated in Cuba and is a fusion of western African tribal religion and some elements of Roman Ca-tholicism. Its practice centers around spirits called orishas, which are divine representatives of Olodumare, the su-preme deity. Santeria rituals seek to en-gage these orishas, honor them, and en-courage their involvement in the material world. Doing so requires the use of life energy, or ashe, the highest concentration of which is found in animal blood. Thus many Santeria rituals involve the sacrifice of live animals to transfer ashe to the orishas. Although animal sacrifices are used to celebrate a range of events, includ-ing birth, marriage, and death, the most complex ceremony takes place when a new priest is initiated. This ceremony, at which a new shrine is consecrated, gener-ally involves a sacrifice of five to seven four-legged animals (lambs or goats), a turtle, a duck, ten to fourteen chickens, five to seven guinea hens, and ten to four-teen doves in addition to other elements (songs, drum music, and the offering of other objects). The animals are usually cooked and eaten after these sacrifices.
Santeria ceremonies are highly depen-dent on the will of the orisha to which they are directed. Home shrines, which are symbols or physical manifestations of the orishas, are integral to Santeria, and cere-monies and sacrifices usually take place in the home of the officiating priest, although occasionally they may take place in a tem-ple or at the home shrine of another priest. The orishas determine where sacrifices are to be conducted, and the priests divine the orishas’ will by a complex divination process. There are more than 250,000 practitioners of Santeria in the world, but only two Santeria temples, neither of which is in the continental United States.3 Thus, home sacrifice is not only the norm, but a crucial aspect of Santeria, without which Santeria would effectively cease to exist.
B. Merced‘s Religious Practices4
In 1990, Merced moved to Euless and began to conduct ritual sacrifices. From 1990 to 2006, Merced performed the sacri-fices without any interference from Euless, initiating, on average, one new priest a year. The sacrifices take place in a room attached to Merced‘s garage, which is iso-
On September 4, 2004, Merced was hold-ing a ceremony at his home. The police received an anonymous call from a neigh-bor and went to Merced‘s house to stop the ceremony. Once there, the police called two animal control officers, who al-lowed Merced to finish the ceremony. In May 2006, the police received another anonymous call stating that several goats were about to be killed. Merced was, in fact, hosting a birthday celebration for which no sacrifices were planned. When the officers arrived they told Merced not to conduct any sacrifices because they were likely illegal in Euless. Merced asked how he could obtain a permit for the sacrifices and was told to contact a super-visor. A few weeks later, Merced and another priest went to a permits office attempting to obtain a permit. They were told by two different employees that no such permit existed because animal slaughter was strictly prohibited. Merced ceased performing the sacrifices illegal in Euless (although he continued to perform Santeria rituals that are not prohibited).
Merced has delayed initiating an aspir-ing priest because the ceremony must be performed in his home and he cannot per-form it legally. Merced is willing to com-ply with any disposal or health standards that Euless might create, but the city de-nied the availability of a permit or excep-tion for sacrificing four-legged animals, and intends to prosecute Merced if he attempts any further sacrifices of four-legged animals.
On December 22, 2006, Merced filed a complaint against Euless and several city officials alleging violations of
C. Euless‘s Ordinances and Trial Testi-mony
Before trial, the parties stipulated that six Euless ordinances prevented the sacri-fice of four-legged animals:
Sec. 10-3. Slaughtering animals.
It shall be unlawful to slaughter or to maintain any property for the purpose of slaughtering any animal in the city.
Sec. 10-5. Exceptions and exemp-tions not required to be negated.
In any complaint and in any action or proceedings brought for the enforce-ment of any provision of this chapter, it shall not be necessary to negate any exception, excuse, provision or exemp-tion, which burden shall be upon the defendant.
Sec. 10-9. Penalty for violations of chapter.
Any person violating the terms and pro-visions of this chapter shall be deemed guilty of a misdemeanor and shall be punished as provided in section 1-12 of this Code. Each day that such viola-tions continues shall be a separate of-fense. This penalty shall be cumulative of all other remedies. No fine imposed hereunder shall be less than $25.00.
Sec. 10-65. Animal care.
If the following shall occur, the animal may be impounded and the owner shall be guilty of a violation of this chapter:
. . . .
(2) A person shall beat, cruelly ill treat, torment abuse, overload, overwork or otherwise harm an animal or cause, instigate or permit any dog fight, cock fight, bullfight or other combat between animals or between animals and hu-mans.
. . . .
(4) A person shall willfully wound, trap, maim or cripple by any method any animal, bird or fowl. It shall also be unlawful for a person to kill any animal, bird or fowl, except domesticated fowl considered as general tablefare such as chicken or turkey, within the city.
Sec. 10-68. Restriction on number of dogs, cats or other animals, or combi-nation, to be kept in residential prem-ises.
It shall be unlawful to keep or harbor more than four dogs, cats or other ani-mals, or combination of animals, beyond the normal weaning age on any premis-es, except as permitted in section 10-104.
Sec. 10-104. Restrictions on size and locations of area for keeping live-stock.
It shall be unlawful to keep and main-tain any mule, donkey, mare, horse, colt, bull, cow, calf, sheep, goat, cattle or other livestock at a distance closer than 100 feet from any building located on adjoining property that is used for hu-man habitation or within an enclosed area of less than one-half acre (21,780 square feet) per animal. All such live-stock shall be kept within enclosed ar-eas, and a fence of sufficient strength to contain such animals shall be provided to maintain the 100-foot separation re-quired hereby. All premises upon which such livestock are kept or maintained shall be brought into compliance with the terms of this section.
Taken together, these ordinances forbid the keeping of any more than four animals at a time, and even then only certain kinds of animals are permitted. Four-legged an-imals such as those typically used in Santeria ceremonies (sheep and goats) are expressly disallowed to be kept—even for a brief period—or killed.6 Such animals
Euless‘s ordinances make exceptions to these general rules, however, both on their face and in practice. Section 10-65 allows domesticated fowl to be killed, and also allows the use of rodent control materials. See Euless Ord. § 10-65(8). Another ordi-nance allows designated city employees to kill rabid or vicious animals. Euless Ord. § 10-4. In practice, the city does not enforce these ordinances against home-owners who kill rats, mice, or snakes, nor against veterinarians who put down large animals.8 The enforcement of these ordi-nances is complaint-driven, and Euless was unaware of any violations prior to the com-plaints against Merced, who, for his part, was unaware that he was violating the law before he spoke with city officials in 2006.
At trial, the city called two experts to testify, the first of which, an attorney, described the governmental purposes be-hind the Euless ordinances. Merced ob-jected to this testimony, but the district court allowed it on the understanding that the expert would not merely state the law. The purpose of the prohibition on keeping livestock, according to the city‘s expert, is to protect the public‘s health and safety, primarily by eliminating the unpleasant concomitants of live animal care (e.g., run-off of urine and feces, flies, smells, noise, possible disease transmission). The ex-pert also opined on the health ramifica-tions of post-slaughter disposal, noting that carcasses attract bugs and vermin. He further stated that keeping various kinds of animals together in tight quarters leads to interspecies conflicts, which could lead to injury, indicating that the humane treatment of the animals is another gov-ernmental purpose.
Euless‘s second expert, whose expertise was public health, testified that disposing of numerous animal remains involves con-tact between humans and blood, which can create a breeding ground for disease. Also, he stated that enteric diseases, such as salmonella and typhoid, can result from concentrations of animal waste, and that disposal of animal remains in bodies of water is unlawful, encourages flies to breed, and causes odor and sanitation problems.9 Yet Euless permits the butch-ering and disposal of large animals, like deer, if they are dead when brought into the city. Restaurants sometimes dispose of organic waste in dumpsters, which, per the city‘s expert, presents the same health concerns.
The focus on disposal of the animals’ remains appears to be something of a red herring. The relevant city ordinance, § 10-70 (requiring the lawful disposal of a dead animal within twenty-four hours of 10
D. The District Court‘s Decision
The district court adopted the parties’ stipulated facts, and found that the city ordinances did not burden Merced‘s free exercise of religion.11 Specifically, the court stated:
Well, you know, this is a difficult ques-tion because if [Merced] had received the communication that said he ought to [sacrifice in his house], and refrain from doing it because of the ordinances of the city, I think I would have to say I‘m persuaded that the answer to that part is yes [i.e., the ordinances burden Merced‘s free exercise of religion], but I haven‘t heard that.
I don‘t know that I can say from a preponderance of the evidence, which is the burden that I have to apply, that the enforcement of the ordinances in ques-tion against the plaintiff burdens the free exercise of his religion. I can‘t do that.
In short, the district court concluded that the ordinances did not burden Merced‘s religious practice because he had not testi-fied the orishas told him to sacrifice in his house. The court later concluded that the ordinances furthered a compelling govern-mental interest and were the least restric-tive means of advancing them. The dis-trict court did not issue a written opinion, but entered judgment in favor of Euless and awarded costs against Merced. It denied Euless‘s motion for attorney fees, which the city requested under
II. DISCUSSION
Merced raises constitutional claims un-der the First and Fourteenth Amend-ments, claiming this case is “on all fours” with the Supreme Court‘s well-known de-cision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). While this case shares many similarities with Lukumi, we begin by analyzing Merced‘s statutory claim under TRFRA, which, if successful, obviates the need to discuss the constitutional questions. See, e.g., Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 129 S.Ct. 2504, 2513, 174 L.Ed.2d 140 (2009) (“[I]t is a well-established principle governing the prudent exercise of this Court‘s jurisdic-tion that normally the Court will not de-cide a constitutional question if there is some other ground upon which to dispose of the case.” (quoting Escambia County v. McMillan, 466 U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984))); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.“); Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905) (“It is not the habit of the court to decide ques-tions of a constitutional nature unless ab-solutely necessary to a decision of the case.“).
Under TRFRA, “[w]hile we must accept the trial court‘s fact findings sup-ported by the evidence, the ultimate an-swers determine the legal rights protected by the Act and are thus matters of law.” Barr v. City of Sinton, 295 S.W.3d 287, 2009 WL 1712798, at *8 (Tex.2009). “A district court‘s legal conclusions at a bench trial are reviewed de novo and its findings of fact are reviewed for clear er-ror.” Adkins v. Kaspar, 393 F.3d 559, 563 (5th Cir.2004).
The history of state religious free-dom acts is, by now, well known. Before 1990, the United States Supreme Court interpreted the Free Exercise Clause of the First Amendment to protect religious practices substantially burdened by gov-ernmental regulation unless they furthered a compelling state interest. See City of Boerne v. Flores, 521 U.S. 507, 513-14, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In 1990, the Court in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), exempted from this balancing test neutral laws of general applicability, such that Or-egon‘s criminal laws could proscribe a Na-tive American‘s religious use of peyote without violating the First Amendment.12
Congress directly responded to Smith by enacting the Religious Freedom Resto-ration Act of 1993 (RFRA),
(a) Subject to Subsection (b), a govern-ment agency may not substantially bur-den a person‘s free exercise of religion.
(b) Subsection (a) does not apply if the government agency demonstrates that the application of the burden to the per-son:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that interest.
The Supreme Court of Texas re-cently applied TRFRA for the first time in Barr v. City of Sinton, 295 S.W.3d 287, 2009 WL 1712798. In Barr, a local pastor set up a religious halfway house to help non-violent offenders reenter society; ap-plicants were required to sign a statement of faith indicating belief in basic Christian doctrines, and to agree to a list of rules described as “biblical guidelines for Chris-tian living.” Id. at 291, at *1. The city then passed a zoning ordinance effectively banning halfway houses from Sinton, and the pastor sued. Id. at 292, at *2. The court concluded that Sinton‘s ordinance vi-olated TRFRA after applying a four-part test: (1) whether the government‘s regula-tions burden the plaintiff‘s free exercise of religion; (2) whether the burden is sub-stantial; (3) whether the regulations fur-ther a compelling governmental interest; and (4) whether the regulations are the least restrictive means of furthering that interest. Id. at 299, at *8. We apply the same approach to the application of TRFRA.
A. Free Exercise of Religion
TRFRA defines “free exercise of religion” as “an act or refusal to act that is substantially motivated by sincere reli-gious belief. In determining whether an act or refusal to act is substantially moti-vated by sincere religious belief under this chapter, it is not necessary to determine that the act or refusal to act is motivated by a central part or central requirement of the person‘s sincere religious belief.”
B. Substantial Burden
We next consider whether Eu-less‘s ordinances substantially burden Merced‘s sincere religious practices. Ac-cording to the Texas Supreme Court, a burden under TRFRA is substantial if it is “real vs. merely perceived, and significant vs. trivial.” Barr, 295 S.W.3d at 301, 2009 WL 1712798, at *5.13 The inquiry is case-by-case and fact-specific. Id.; cf. Adkins, 393 F.3d at 571 (applying RLUIPA). Federal case law interpreting RFRA and RLUIPA is relevant. Barr, 295 S.W.3d at 296, 2009 WL 1712798, at *9.
In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, the case setting the standard TRFRA seeks to restore, a member of the Seventh-day Adventist Church was terminated by her employer for not working on Saturday, and applied for unemployment benefits as provided by South Carolina law. 374 U.S. at 399-400, 83 S.Ct. 1790. The state denied benefits because she was able to work and refused to do so, a refusal that lacked, in the state‘s opinion, good cause. Id. at 400-01, 83 S.Ct. 1790. The Supreme Court found this restriction burdened plaintiff‘s reli-gious free exercise:
Id. at 404, 83 S.Ct. 1790. Similarly, in Wisconsin v. Yoder, 406 U.S. 205, the Court found that the state‘s compulsory education law bur-dened Amish parents’ religious practices: “The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively com-pels them, under threat of criminal sanc-tion, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” 406 U.S. at 218, 92 S.Ct. 1526; see also Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (“[Where a state] denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon reli-gion exists. While the compulsion may be indirect, the infringement upon free exer-cise is nonetheless substantial.“).
Our decisions interpreting RFRA and RLUIPA likewise provide guidance. In Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997), for example, we held un-der RFRA that a prison‘s grooming regu-lations substantially burdened a Native American‘s religious practice by prevent-ing him from wearing long hair as re-quired by his religion. 114 F.3d at 72-73; accord Longoria v. Dretke, 507 F.3d 898, 903 (5th Cir.2007) (holding that a prisoner who alleged that he was punished per the prison‘s rules for refus-ing to cut his hair, which he wore long according to his religious tradition, stated a claim under RLUIPA based on the sub-stantial burden to his religious free exer-cise). We declined to find a substantial burden, however, when the prison‘s regula-tions prevented the inmate from carrying sacred items (a headband and a medicine pouch) for approximately two hours each day when he was not in his cell. Diaz, 114 F.3d at 72.
We reached a similar result in Mayfield v. Texas Department of Criminal Justice, 529 F.3d 599 (5th Cir. 2008), in which prison officials severely limited the ability of practitioners of the Odin-ist/Asatru faith to meet as a group because a security-trained, religious volunteer was unavailable to conduct the meetings. 529 F.3d at 602. We held, based on the summary judgment record, that a finder of fact could conclude that the prison‘s policy imposed a substantial bur-den on the plaintiff‘s religious free exer-cise. Id. at 614-15 (distinguishing Adkins v. Kaspar on the grounds that the plaintiff there had the ability to gather in a group at least once a month, a frequency not present in Mayfield; because the policy may not have been uniformly implemented as in Adkins; and because the Mayfield plaintiff did not have the same access to alternative means of worship as the plain-tiff in Adkins).14 The prison also prohibit-
The upshot of these opinions is that, at a minimum, the government‘s ban of conduct sincerely motivated by reli-gious belief substantially burdens an adherent‘s free exercise of that religion. While not a general rule—the inquiry is fact-specific—we note that such a conclu-sion accords with the Texas Supreme Court‘s decision in Barr: “A restriction need not be completely prohibitive to be substantial; it is enough that alternatives for the religious exercise are severely re-stricted.” Barr, 295 S.W.3d at 303, 2009 WL 1712798, at *12; accord Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir.2008) (“We have little difficulty in conclud-ing that an outright ban on a particular religious exercise is a substantial burden on that religious exercise.“). If a govern-ment‘s restriction of religious conduct may be a substantial burden, then a complete ban presents a much stronger case. We turn now to the record before us. As noted above, we review the answers to ultimate questions under TRFRA as mat-ters of law, and accordingly undertake a review of the evidence to determine whether Euless‘s ordinances substantially burden Merced‘s religious exercise.
The district court concluded that Merced‘s free exercise of religion was not burdened because he did not testify that the orishas told him to sacrifice at his Euless home. We are troubled by this conclusion for two reasons. First, predi-cating 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. The judiciary is ill-suited to opine on theological matters, and should avoid doing so. See Smith, 494 U.S. at 887, 110 S.Ct. 1595 (“[I]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpre-tations of those creeds. Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” (quotation marks omitted)).
Second, the evidence does not support the district court‘s conclusion. Two pieces of evidence are significant to this determi-nation. First, Merced‘s expert testified, and the city conceded, that animal sacrifice is essential to the Santeria religion, and that it is usually performed in the officiat-ing priest‘s house. Second, Merced testi-fied that he ceased to perform Santeria rituals outlawed by the Euless ordinances, including the initiation of a priest. He stated that he could not initiate an aspiring priest because he could not do so in his house:
Q. Mr. Merced, since May of 2006, have you known somebody who might have wanted to be initiated?
A. That is correct, sir, and they are on hold. Yes.
Q. Do they want you to initiate them?
A. That‘s correct.
Q. And you did not initiate them?
A. Correct.
Q. And why not?
A. Because I cannot do it at home.
The ordaining of new priests, essential to the continuation of the Santeria religion, is barred by the Euless ordinances. De-spite Euless‘s protestation to the contrary, the restriction on killing the four-legged animals needed to initiate priests is abso-lute; the ability to kill small numbers of fowl does not alter that fact. The relevant inquiry is not whether governmental regu-lations substantially burden a person‘s reli-gious free exercise broadly defined, but whether the regulations substantially bur-den a specific religious practice. See
Merced cannot perform the cere-monies dictated by his religion. This is a burden, and it is substantial. It is real and significant, having forced Merced to choose between living in Euless and prac-ticing his religion. Cf. Adkins, 393 F.3d at 570 (holding that a government‘s regula-tion is significant if it “forces the adherent to choose between, on the one hand, enjoy-ing some generally available, non-trivial benefit, and, on the other hand, following his religious beliefs“). Indeed, the burden on Merced is even greater because, like the Amish parents in Yoder, he faces crim-inal prosecution if he engages in conduct essential to his religion. See 406 U.S. at 218, 92 S.Ct. 1526.16
Euless also argues that a burden is not substantial if it is incidental by way of a law of general application. Such an inter-pretation violates TRFRA‘s plain lan-guage. TRFRA applies to “any rule, or-der, decision, practice, or other exercise of governmental authority.”
In conclusion, we hold that the Euless ordinances at issue substantially burden Merced‘s free exercise of religion. We move next to consider the governmental interests Euless advances in their defense.
C. Compelling Governmental Interest
TRFRA places on the government the burden of proving that the burden it creat-ed both advances a compelling interest and
Barr cites with approval the United States Supreme Court‘s opinion in Gonzales v. O Centro Espirita Beneficente Un-iao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), equating the compelling state interest requirements of RFRA and TRFRA. Barr, 295 S.W.3d at 304, 2009 WL 1712798, at *13. In O Centro, the Supreme Court interpreted RFRA to require “the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person‘—the partic-ular claimant whose sincere exercise of religion is being substantially burdened.” 546 U.S. at 430-31, 126 S.Ct. 1211. The government cannot rely upon general statements of its interests, but must tailor them to the specific issue at hand: “In [Sherbert and Yoder], this Court looked beyond broadly formulated interests justi-fying the general applicability of govern-ment mandates and scrutinized the assert-ed harm of granting specific exemptions to particular religious claimants.” Id. at 431, 126 S.Ct. 1211. The courts’ task of balanc-ing the interests is difficult, but the goal is to “strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.” Id. at 439, 126 S.Ct. 1211.
Barr is particularly instructive. There, the City of Sinton advanced the interests of “safety, preventing nuisance, and protecting children” to justify its ex-clusion of Barr‘s religious halfway house. Barr, 295 S.W.3d at 305, 2009 WL 1712798, at *14. The Texas Supreme Court‘s next sentence is revealing: “But there is no evidence to support the City‘s assertion with respect to ‘the particular practice at issue‘—Barr‘s ministry.” Id. While not requiring the city to wait for disturbances before taking preventive measures, the court required more than general plati-tudes to justify the practical exclusion of a religious ministry from the city limits. Thus, for Euless to prevail, it must show by specific evidence that Merced‘s reli-gious practices jeopardize its stated inter-ests. This it cannot do.
The two interests Euless claims are compelling are public health and ani-mal treatment, the emphasis being on the former. But the parties stipulated to, and the district court found, the following facts:
- Defendant has no evidence that any of the Plaintiff‘s religious practices in his home, including the killing of goats, sheep, and turtles, has ad-versely affected the health of any person.
- Defendant has no evidence that any of the Plaintiff‘s religious practices in his home, including the killing of goats, sheep, and turtles, has ad-versely affected the safety of any person.
- Defendant has no evidence that the Plaintiff ever disposed in an illegal manner of the remains (dead ani-mals or their parts) of any animal sacrifice in his home.
- Defendant has no evidence that the Plaintiff ever disposed in an unsani-tary manner of the remains (dead animals or their parts) of any ani-mal sacrifice in his home.
- Defendant has no evidence that the Plaintiff ever kept any goats, sheep, or other animals on his premises for longer than four hours.
Defendant has no evidence that the Plaintiff ever kept any goats, sheep, or other animals on his premises in a manner that before the killing caused any injury to any animal. - Defendant has no evidence that the Plaintiff ever caused any animal on his premises to suffer any cruelty or harm, other than the killing of the animal.
- Defendant has no evidence that the Plaintiff ever kept any goats, sheep, or other animals on his premises in an unsanitary manner.
- Defendant has no evidence that the Plaintiff ever kept any goats, sheep, or other animals on his premises in a manner that denied to any animal sufficient food and water.
- Defendant has no evidence that any of the Plaintiff‘s religious practices in his home caused any animal greater suffering than is normal in the legal, commercial slaughter of animals for meat.
In addition, the city‘s manager admitted that killing livestock would still be illegal in Euless even if it did not present a health hazard, though he considered it “be-yond speculation” that these killings pre-sented just such a risk. But it is undisput-ed that Merced conducted animal sacrifices for sixteen years in Euless without inci-dent.
In their briefs, the parties dwell at length on the health implications of carcass disposal even though, as noted above, the disposal ordinance is not one that prevents Merced‘s activities. And the city admits, based on these unchallenged findings, that Merced‘s method of disposal—placing the remains in dumpsters or trash cans after double-bagging them—is both lawful and sanitary. Even including disposal within the ken of activities relevant to Euless‘s stated interests, the above findings evis-cerate any possibility of meeting Barr‘s particularity requirement. The city has absolutely no evidence that Merced‘s reli-gious conduct undermined any of its inter-ests. Euless‘s experts did testify that the city‘s interests would be harmed by activi-ties like those Merced performs,18 but this general testimony does not vitiate the stip-ulated facts respecting Merced‘s practice,19 and the government bears the burden at this stage to prove its interests are harmed. Cf. O Centro, 546 U.S. at 428-29, 126 S.Ct. 1211 (upholding under RFRA the issuance of a preliminary injunction when the evidence equally supported harm to the plaintiff‘s religious practice and to the government‘s asserted interests when the government bore the burden of proof). Again, we are not concerned with keeping, killing, and disposing of animals in the abstract, but with balancing the govern-ment‘s interests with the particular prac-tice at issue. Merced has performed these sacrifices for sixteen years without creat-
Euless argues that O Centro stands for the proposition that the government can-not refuse to exempt one kind of religious conduct when it already exempts a similar kind of religious conduct; that is, it cannot discriminate between similar practices. We note several exceptions that undermine Euless‘s public health interest regarding the consumption of uninspected meat and disposal of carcasses. First, Texas law ex-empts from inspection requirements the slaughter and consumption of meat for the personal use of the livestock‘s owner, his family, and his non-paying guests.
The city denies that these and other exceptions fall into the same category as allowing a citizen to briefly keep and kill dozens of animals at one time. But the difference is one of degree and not one of kind. The keeping, slaughter, and dispos-al of a small number of fowl on a regular basis, which Euless permits, over time has the same corrosive effect on the city‘s in-terests as infrequent sacrifices of a larger number of animals.21 The city‘s experts did not explain any public health rationale behind the differing treatments afforded different animals. The ordinances allow the killing of several large fowl, like tur-keys, but forbid the killing of even a single goat. Also, a hunter could presumably bring home as many deer as he could legally shoot and butcher them without running afoul of any ordinance.
The balancing of interests is difficult. To carry its burden of proof, a govern-ment‘s asserted interest must be particu-larly directed to the conduct at issue. In answering this legal question, we are per-suaded that, on this record, the scales tip in favor of Merced. Thus, we hold that Euless has failed to assert a compelling governmental interest in support of its or-dinances that burden Merced‘s religious conduct.
D. Least Restrictive Means
Even if Euless marshaled a com-pelling governmental interest in its favor, it must also prove that its chosen regulato-ry method is the least restrictive means of furthering that interest. Euless does not expend much effort on that score, arguing that it does not totally ban the killing of all animals, and thus implements a less re-strictive alternative. But it does entirely ban the killing of goats, sheep, and turtles, which is necessary to initiate a Santeria priest. And TRFRA requires the least restrictive means, not merely less than a complete ban. See
Merced proposes no fewer than three less restrictive alternatives to Euless‘s cur-rent scheme. For purposes of illustration, one will do. Euless could create a permit system whereby Santeria adherents com-ply with conditions designed to safeguard the city‘s interests (e.g., reasonable limita-tions on the time the animals can be kept before the killings) and in return are al-lowed to sacrifice animals as dictated by their religion. Euless does not rebut any of Merced‘s alternatives; it does not even try. Thus, as an alternative to our holding that Euless failed to identify a compelling interest, we hold that the Euless ordi-nances that burden Merced‘s religious free exercise are not the least restrictive means of advancing the city‘s interests.
E. Attorney Fees
Euless moved in the district court for an award under
As is plain from our resolution of the merits, Merced‘s case is not only non-frivolous, it is meritorious and prevailing. Because Euless is not a prevailing party 22 on the TRFRA claim, it is not entitled to attorney fees under
III. CONCLUSION
Because we conclude that Merced is en-titled under TRFRA to an injunction pre-venting Euless from enforcing its ordi-nances that burden his religious practice of sacrificing animals, see
Notes
[A] government action or regulation cre-ates a “substantial burden” on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs . . . [T]he effect of a government action or regulation is significant when it either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and, on the other hand, following his religious beliefs. Adkins, 393 F.3d at 570.