Religion and the Law

Holy Fight Ministries Loses Cockfighting Religious Freedom Lawsuit

|The Volokh Conspiracy |

From Judge Brian A. Jackson's opinion yesterday in Plumbar v. Perrilloux (M.D. La.):

[T]he Louisiana Criminal Code … makes it unlawful for any person to … "organize or conduct any commercial or private cockfight wherein there is a display of combat or fighting among one or more domestic or feral chickens and in which it is intended or reasonably foreseeable that the chickens would be injured, maimed, mutilated, or killed."

Plaintiffs … argue that the burden imposed on their religious practice of cockfighting is at odds with the Louisiana Preservation of Religious Freedom Act ("LPRFA"). They adequately summarize the core of their argument in the following syllogism: "[i]f the use of peyote, a Schedule I drugs [sic], is permitted…then it stands to reason that an exception should be carved out…for the Plaintiffs and their congregation [to engage in cockfighting] to practice their faith." …

Several photographs taken during a police raid were offered by [the government]. The photos depicted a cockfighting arena littered with discarded food and alcohol containers; a handwritten betting ledger; "cockhouse" fees and membership rules; rooster corpses; and other indicators of a commercial cockfighting operation. Signs were discovered in the area, including one reading "Milk Dairy Game Club House Rules," and another smaller sign reading "Holy Fight Ministries"—apparently the only indicator of any religious object in the facility. At oral argument, Plaintiffs argued that while they lease the premises from the Game Club, they are not a commercial operation and were not present the night of the raid when the incriminating evidence was seized….

[Plaintiffs] are unlikely to succeed on the merits of their claims [1] because Defendants have provided satisfactory evidence to show that the state has a compelling interest in enacting a law banning cockfighting and [2] because the evidence casts doubt upon the type of institution operated by Plaintiffs. In other words, the evidence suggests that the cockfighting activities were more commercial in nature than a bona fide religious ritual….

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  1. Huh, I thought we were not supposed to ask whether a person’s beliefs were “sincerely held”…

    1. You have that exactly backwards. Whether the beliefs are sincerely held is the only question you get to ask. If the beliefs are sincerely held, you may not challenge them for logic, internal consistency, alignment with any organized religion or text, etc. A person’s idiosyncratic religious beliefs are his/her own and must be accepted as valid.

      If, however, the beliefs are not sincerely held (that is, a pretext), then all bets are off and the religious freedom analysis does not even apply.

    2. You thought wrong.

      “Sincerely held belief” is an element of religious freedom claims, and litigants defending against them are entitled to challenge it. Government defendants often decline to contest the sincerity, for strategic reasons that (I would imagine) are sometimes driven by the case, and sometimes by public relations. But there’s nothing saying they’re “not supposed to” do so.

      1. The “strategic reason” being that such an argument is vanishingly unlikely to succeed. (Unless the other party is someone unpopular, like a polygamous Mormon, a Native American caught with ayahuasca, or a church organising cock fights.)

        1. Yep. And courts go out of their way NOT to adjudicate sincerity. Which I think is nuts.

          indeed, this case should be the poster child for why sincerity should always be an issue in religious freedom cases.

          1. They go out of their way because it’s a losing racket. You can point to commercial benefits, the sale of alcohol, and gambling tickets all you want, but at some point you’re talking about an ordinary church-run bingo game. What’s the evidence that a court can evaluate to conclude insincerity, besides the religious objector’s confession or secret diary? If he stands up in court and says “I believe this insane shit” is the court going to say “Since the belief in cock fighting is crazier than believing in burning bushes or drinking blood, I’m going to say it is insincere”?

            1. No it isn’t.

              I’m more of an appellate person than a trial person, but I have tried cases and taken many depositions. You give me 2 hours of examination with a lot of these religious freedom plaintiffs and I could convince a jury they aren’t sincere.

              For instance, the Hobby Lobby guys aren’t one bit sincere. Nor are the Little Sisters of the Poor.

              Now, you might ask me, how can the Little Sisters of the Poor not be sincere? But this is the rub- they are clearly sincere Catholics. But they are not sincere in their claim that merely filling out a form to seek an exemption from Obamacare is formal cooperation with evil under Catholic doctrine.

              Lots of religious claimants in these cases are either running scams underneath their religions or invoking their religions to fight the culture wars or further their political interests. And the courts treat them as sincere when they shouldn’t.

              1. So tell us what testimony you would elicit that would cause a jury to so conclude, and be upheld on appeal.

                1. I don’t think I would be upheld on appeal. Because appellate courts don’t uphold sincerity.

                  But I would ask, for instance, the little sisters, what specific catholic doctrine precludes filling a form out to seek a governmental exemption, when they discovered it, whether they have always followed it. I would then explore the notion of formal cooperation with evil in other circumstances. E.g., is it OK to call the police if you are being robbed even though the police might shoot the robber. Is it OK to file papers to get tax free status even though that facilitates the operation of the tax system to pay for causes the church objects to. Etc.

                  1. Oops appellate courts don’t let you litigate sincerity., I meant.

                  2. Those all deal with doctrinal inconsistency but not insincerity. Religious beliefs don’t have to be consistent or logical. (In fact it’s very difficult for them to be either, given the subject matter.) A straight-forward answer is that they object to abortion under prevailing papal rule. Canon 1398 addresses it directly.

          2. Yep. And courts go out of their way NOT to adjudicate sincerity. Which I think is nuts.

            I don’t follow these cases religiously, but that’s not a trend I’ve noticed. Can you cite some examples where you see courts doing that?

            1. Why not start with Hobby Lobby? The plaintiffs there were obviously insincere. They had paid for comprehensive contraceptive coverage for years. It was only when a Democratic President got a health care law passed that was a bete noir of the American right that suddenly they discovered that funding certain contraceptives that allegedly caused abortions (but didn’t actually do so) violated their sincerely held religious beliefs.

              1. Accepting your point about the plaintiffs’ sincerity, which part of which decision in the proceedings do you see as “courts go[ing] out of their way NOT to adjudicate sincerity”?

                1. Even the dissents didn’t touch on what was a really obvious point.

        2. My perception is that the low odds of success are a result of the fact that there is rarely much basis to question claimants’ sincerity. Are there cases you can think of where you think the claim was pretextual and yet went unchallenged?

          1. Very few people really live their claimed religious faiths. Most people are “Cafeteria Catholics”, or Jews, or Christians, or whatever they identify as. They pick and choose.

            And in an ideal world, the law would require TOTAL sincerity. Getting an exemption from a law I have to follow is serious business. It’s unequal treatment. It’s the government doing you a great favor. You should have to prove that you are absolutely serious and devout and that you have held the belief for a long time and lived by it consistently before the government lets you out of a civic obligation.

  2. This ruling seems totally at odds with the Supreme Court rulings that all you need to do is have a religious belief about something to be exempt from the laws of the land. Can’t wait for Justice Thomas’s defense of these folks.

    1. Is Reynolds is still good law?

    2. I agree that this ruling would be at odds with such a Supreme Court ruling. In this case, I believe the paradox is resolved by the fact that no such Supreme Court ruling exists.

    3. Employment Division v Smith*

      *at least for now, I believe next term SCOTUS has taken a case challenging whether it should be overturned.

      1. Fulton v. City of Philadelphia

    4. You have to have that belief. The point here is that the state argued that the plaintiffs did not have the belief they claimed to have, and the court agreed.

  3. Upon reading that blog post title, I had to think for a second that it wasn’t April 1 … that’s quite a collection of words there, Professor Volokh!

  4. It is not the job of the courts to question one’s religious beliefs. This is a disgusting attack on freedom of religion.

    1. It’s like you deliberately avoided reading any of the earlier comments before you posted.

  5. This case was decided under Louisiana state law, not the Federal constitution.

    I agree that people who form novel religions organized specifically around individual illegal practices deserve greater scrutiny than in cases where something historically practiced has become relatively recently forbidden. The “ministry” here seems likely as much a sham as the religion of the prisoner who declared porn to be scriptures in order to avoid the rule against porn in prison.

    That said, I don’t think there’s any compelling interest in prohibiting cockfighting. The state interest here is in legislating morality. Cockfighting doesn’t directly hurt anybody here. The interest here is basically the same as the state interest in things like civil rights laws and sodomy laws. Cockfighting doesn’t even risk spreading disease. I think the Civil Rights cases were correct to characterize civil rights laws as morals legislation, similar to laws against prostitution and gambling.

    I have long argued that the state have a rational basis to legislate morality, and judges have no right to twist the constitutional analysis to suit their personal moral beliefs. On the one hand, this means judges have no right to declare morals legislation irrational just because they happen to disagree with it. On the other hand, judges have no right to declare morals legislation compelling just because they happen to agree with it really, really strongly. Judges should treat morals legislation they personally agree with and morals legislation they personally disagree with the same.

    1. I stand with the chickens

    2. If you could demonstrate there is no consciousness inside a chicken’s brain, and that they’re just little robots, fine. Otherwise it’s real, if tiny, minds feeling hurt and terror and anger.

      Religion used to believe animals had no such thing, a soul in that case, and hence there was no mind there as they vivisectioned dogs.

      1. I think the chicken’s consciousness is irrelevant to Reader Y’s argument. Chicken’s are not citizens of the state; they are property. The state has no compelling interest in this sort of property legislation–anymore than it would if they were having little robot fights. The only reason consciousness/chicken pain makes a difference is morally; I think that shows the state is legislating based off a moral interest alone.

        1. I don’t think that’s true. I think that callous indifference to pain tends to spill over into other areas, and the state has an interest in preventing, for utilitarian reasons, the spread of callous indifference to pain. Allowing cockfighting fosters a culture in which the people who participate in it become worse and worse people, which can’t not have an effect on how they treat other humans.

          People go to cockfights because they enjoy witnesses pain and suffering. You really think encouraging the enjoyment of pain and suffering won’t eventually produce more pain and suffering for other humans?

        2. “Chicken’s are not citizens of the state…”

          Neither are non-citizens, but I assume you agree the state can legislate to protect non-citizens.

          “The only reason consciousness/chicken pain makes a difference is morally…”

          Right. The only reason human consciousness/human pain makes a difference is moral, too.

          1. “Right. The only reason human consciousness/human pain makes a difference is moral, too.”
            I agree. I think many laws are morally based, and I’m fine with that. There are some laws that are not morally based (making roads etc.).
            I took ReaderY’s point to be that once a law is passed judges should refrain from attaching their own morals to it. Which I think is a pretty basic point. I’m not so sure what chicken consciousness really has to do with anything actually.

            1. ReaderY’s post is confusing. On the one hand he talks about “compelling interest” (not rational basis), that a Legislature can only “legislat[e] morality” with a compelling interest, and this one doesn’t pass because chickens aren’t people. (Whether that distinction is morally relevant is, of course, disputed.) Then he switches to rational basis. So on the one hand judges should stop moral legislation unless compelling interest, but really it’s rational basis, but judges should treat it the same as things they disagree with, or some shit. I don’t know what his fucking point is, frankly. But his analysis for both is wrong. If it’s compelling interest, he’s already stacking the deck against chickens with his own moral conclusions (which he acknowledges judges aren’t experts on). If it’s rational-basis, this should be a lay down. So what difference does it make, unless we already accept his “no human harm” principle?

      2. It has nothing to do with consciuousness. The Supreme Court just held that aliens outside US territory aren’t persons and have no constitutional rights, just as it previously held for fetuses. On the other hand, corporations ARE persons.

        Fetuses (at least late-stage ones) and foreigners are conscious. Corporations aren’t. Nothing to do with consciousness.

        Your belief that conscious beings shouldn’t suffer pain is just a moral belief, same as the moral belief that gambling or prostitution is wrong. The early Civil Rights cases characterized the Civil Rights laws as ordinary morals legislation based on a moral belief that racial discriminanation is wrong, a belief that, just like the belief that prostitution or gambling is wrong, people could agree or disagree with but which achieved a legislative consensus.

        This is no different. The fact that you personally happen to believe it very strongly doesn’t make any difference from a constitutional perspective.

        Fetuses are potential future citizens and foreigners implicate foreign policy, so a state sometimes can have a compelling interest in them. There’s no special constitutional interest in animals that makes them different from any other object.

        1. “The Supreme Court just held that aliens outside US territory aren’t persons and have no constitutional rights…”

          That’s not what they held, but you’re confusing issues. We were discussing what states could legislate, not what rights foreigners had constitutionally. Or are you prepared to say that a state law that affords rights to foreigners cannot pass compelling or rational-basis scrutiny?

          “Fetuses are potential future citizens and foreigners implicate foreign policy, so a state sometimes can have a compelling interest in them.”

          The argument for prohibiting the murder of fetuses is not based on their “potential future citizens”. It’s a moral argument.

          1. As I wrote above, a moral argument is a rational basis, not irrational but not compelling either. To the extent a state interest in a fetus can be compelling, as it is post-viability, it is because of interests other than the purely moral one. The Supreme Court has ruled on this many times and followed these principals. Purely moral intersts justify things like not funding abortions which require only a rational basis, but the Supreme Court has held that more is required to prohibit them.

            One can agree or disagree with the Supreme Court’s finding of a fundamental right to an abortion. But assuming that right exists, then the Supreme Court’s jurisprudence fits the “morality is rational but not compelling” framework.

            The court’s more liberal members have argued that the moral interest is irrational, in disagreement with this assertion.

            The court’s liberal members have from time to time won on either elevating or dismissing an interest. For example In Atlanta Hotel the Supreme Court said the interest in prohibiting racial discrimination was moral and rational as such. The Court has since said it is compelling. The Supreme Court in Bowers v Hardwick said the interest in prohibiting sodomy was moral and therefore rational as such. In Lawrence v. Texas, the Supreme Court said it was irrational. I think the original calls were correct, amd I think the court exceeded its mandate by substituting the justices’ personal opinions on morals for the legislature’s. Morals are rational. Especially liking them doesn’t make them compelling, and especially disliking them doesn’t make them irrational.

            1. I will review. But I think you’re confused.

    3. “The “ministry” here seems likely as much a sham as the religion of the prisoner who declared porn to be scriptures in order to avoid the rule against porn in prison.”

      It’s hardly unusual for a religion to be formed to avoid legal or social rules. One of the defining characteristics of many emerging religions is combating existing mores. That’s also true of emerging religious sects, cults, etc. As one example, several dioceses abandoned the Episcopal Church to form ACNA in protest to the liberalization of the Episcopal Church proper, which itself is an offshoot of the Church of England famously created to avoid Papal rules about divorce. The Catholic Church was a Christian sect that emerged in part from the dispute between James/Peter and Paul over the old covenant. It’s shams all the way down, depending on whose perspective you look from.

      The case can be easily explained by the fact that it was a TRO, was not filed urgently, addresses a state statute that may not require anything other than “general applicability” (based on the language in the opinion), etc.

      “I have long argued that the state have a rational basis to legislate morality, and judges have no right to twist the constitutional analysis to suit their personal moral beliefs.”

      Can the rational basis be the conduct at issue is immoral? Your moral argument seems to be that anything which does not “hurt anybody” is therefore not permissible legislation. I assume “anybody” excludes chickens, since I doubt the chickens are enjoying the cock fighting all that much. We must have competing moral theories (I think it’s immoral to torture animals that have the capacity for pain conceivably similar to what we suffer.) But our competing moral theories are of no moment, I would think. Courts are no more qualified to adjudicate our moral disagreement, than we are.

      1. That’s my point. The reason the California legislature prohibits cockfighting is because they think it’s immoral.

        I’m totally fine with that. I think a state has a rational interest in morality and in prohiniting things its citizens think are just plain wrong. Having a moral sensibility as a society is rational even if we think some of the calls made are bad ones.

        But my point here is that if your majority gets to impose its morality, you have to let other people’s majorities impose theirs. In a diverse country, people are sometimes going to disagree on things. I don’t think courts can treat them as absolutes and give preference to their own personal opinions on these things while being consistent with a republican form of government.

        1. You misumderstand my argumentI am arguing that morals legislation is rational and permissable, but not compelling. I’m not arguing that just because it doesn’t hurt anybody, the state can’t prohibit it.

          This means that in an appropriate case, a religious claim could succeed. This isn’t that case because I agree there is no legitimate religious claim.

          1. How did you conclude there was no valid religious claim?

  6. So if these good ol’ boys revere their charismatic leader George as among the wisest of men, and George says their club as described is the one true path to fellowship and fulfillment. they’re out of luck; but if they up the ante by throwing reason and evidence to the four winds, regarding George as God’s infallible prophet, and George declares their club and it’s rites a holy sacrament, they are golden? (Assume provable sincerity in both scenarios).

  7. Does the State have to prove insincerity or does the defendant have to prove sincerity? And how would either one prove their position? I could sincerely hold a belief that is thought by others to be foolish or ridiculous, but hold that belief sincerely. I could have had a sudden enlightenment – like on the road to Damascus – even for a belief totally out of keeping with my past expressions of belief.

    Any time the discussion of the legitimacy of religious beliefs comes up, I am reminded to the Church of the New Song. A religion created by prisoners in Leavenworth. A Federal Judge granted them use of the prison’s chapel even tho he had grave doubts about the true nature of their beliefs.

    1. I think this is workable. I think the burden is on the plaintiff to prove sincerity. But for a long-standing religious practice facing a new law it shoud be relatively easy to establish sincerity, especially if the rule is one of an umbrella of beliefs and practices. The Catholic Church has long prohibited contraceptives, and the contraceptive mandate is relatively new. So it should be relatively easy for members of a Catholic religious order to establish their sincerity about this issue.

      On the other hand, somebody who comes up with a novel religion that post-dates a rule, especially someone with a prior history of conflict with that rule, should get more skepticism and have a more uphill battle to prove sincerity, especially if the religion is focused narrowly on the rule. So the prisoner refused porn who then claims to found a religion with porn as its scripture deserves much greater skepticism.

      This case seems much more like the prisoner with porn case than the Catholic nuns case.

      I acknowledge this approach tends to favor longer-established religions over novel ones. But workable rules require evidence. And any rule that requires a plaintiff to produce evidence to meet a burden of proof will tend to favor plaintiffs who have more evidence over plaintiffs who have less. As a practical reality, older and broader-based religions will simply tend to have more evidence than newer, narrower ones.

      In my view there have to be workable rules to distinguish genuine religious belief from people just making shit up to give them a legal advantage.

      I understand people so removed from religion as to think all religious belief crazy (or all religion nothing but pretexts to get around rules) wouldn’t think such a distinction legitimate. In my view the distinction is not merely legitimate, it is essential for the Religion Clauses to be workably enforcable.

      The intention here is to permit people who adhere to a religion strongly enough to make sacrifices for it to live within the state and avoid being made criminals by it for non-compelling reasons as long as they maintain minimum social responsibility of a sort the Supreme Court discussed in Yoder (e.g. generally law-abiding, generally economically self-supporting). The intention is not to let people to fabricate religions to get around laws they don’t like.

      The religion clauses have to protect the first and not the second to remain viable. This means distinctions have to be made, and rules and standards to make them have to be formulated and applied. These tests doubtless can’t be perfect. But the fact that they aren’t perfect is not an argument for not having them.

      1. I also acknowledge an evidence-based approach will tend to favor traditional practices over novel ones, separate from making it more likely that the profession of religion is independent of the rule rather than caused by it. Using the chapel is far from a novel practice, it’s something almost every religion does. This fact makes it more likely to be genuinely motivated by religion than things like watching porn or cock-fighting. It also makes the burden on society by allowing it less.

      2. Thanks ReaderY. The thing about this whole scheme which is tough for lots of folks to accept is the privileging of beliefs grounded in reason and superstition over ones grounded in reason and evidence, not least because almost all moral and material progress comes from the latter.
        While I realize that this isn’t going away anytime soon, it is consoling that things are slowly moving in the right direction.

        1. *unreason* and superstition, sorry about that

      3. “The Catholic Church has long prohibited contraceptives, and the contraceptive mandate is relatively new. So it should be relatively easy for members of a Catholic religious order to establish their sincerity about this issue.”

        That assertion seems inconsistent with Catholics’ conduct in the reality-based world. If Catholics genuinely believed what you describe, contraceptive sales would plummet.

        1. I wouldn’t put it quite this way, but it’s definitely true that you shouldn’t simply assume that people believe stuff just because the leaders of their church claim they are church rules. It’s like the Nicene Creed- millions of people recite it in church services but have zero actual opinion on trnitarianism.

    2. The state proved insincerity. “Here’s a religious poster on the wall; everything else is a filthy criminal enterprise, bog standard.”

      Imagine putting such a thing on the wall of the back room in Casablanca, and throwing dead chickens and garbage about. “Your religious winnings, sir.”

    3. It depends on the situation. Generally the State has to prove insincerity. Which, as you suggest, is a high bar but not impossible. Courts and juries are actually pretty good at evaluating pretextual claims.

      A counter-example, however, is the evaluation of a religious conversion justifying discharge from the military under conscientious objector status. In that case, the servicemember requesting release from his/her contract has the burden of proving sincerity. And even in time of war, that’s not as high a bar as you might think. I was the investigating officer in a conscientious objector claim during the First Gulf War. The fact that the soldier was willing to transfer from artilleryman to the much more dangerous job of ambulance driver had great weight in my evaluation.

      1. “Generally the State has to prove insincerity.”

        I didn’t see anything in the LPFA saying this (but I didn’t look very carefully). I would assume for constitutional claims, the plaintiff asserting a constitutional right (i.e. not the state) has to prove sincerity. Is it different under the federal RFRA? Again, I would assume a person claiming to invalidate a statute by invoking the RFRA, would have to prove that some other statute interfered with the objector’s sincerely held religious belief, which would place the burden on the objector.

    4. “Does the State have to prove insincerity or does the defendant have to prove sincerity?”

      I don’t know the answer generally but since this was a TRO hearing so I assume it was the religious objector who had to prove sincerity (here the plaintiff). Ostensibly a religious objector has the burden of proving a sincerely held religious belief, but I could be wrong based on any given state’s statute.

  8. Distinguishing between religious purpose and commercial purpose seems to me a difficult test. From my perspective most churches seem to be primarily commercial. I know others will disagree but that’s because the test is entirely subjective.

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