Monkey Business

In a case now pending in a federal court in Brooklyn, Mamie Manneh of Staten Island stands accused of having brought smoked bushmeat – known colloquially as monkey meat – into the United States without proper permits, in violation of the Convention on International Trade in Endangered Species.
Ms. Manneh’s defense is that in her religion the eating of bushmeat has both a cultural and a spiritual significance. In an affidavit, 17 of her co-religionists declared, “We eat bushmeat for our souls.” Manneh’s lawyer, Jan Rostal, has analogized the African-based practice to the consumption at a Passover seder of foods like bitter herbs “that might have some reference to the Exodus.” In a motion to dismiss, Rostal said that the case, while apparently novel, “represents the sort of clash of cultural and religious values inherent in the melting pot that is America.”
No, it doesn’t. It represents a more fundamental clash: between the imperatives of religion and the rule of law. The question raised by the case is whether the fact of a religious belief is sufficient to exempt the believer from the application of generally applicable laws — laws (like driving on the right-hand side of the road) that apply to every citizen no matter what his or her religious, ethical or moral convictions. Is religious belief a special case, so special that the devout practitioner gets a pass?
John Locke posed that question in “A Letter Concerning Toleration” (1689), and his analysis of it remains relevant today. Locke asks if it is lawful for Meliboeus (a name borrowed from pastoral poetry) to slaughter a calf and offer it as a sacrifice at a religious meeting. It depends, he says, on whether slaughtering a calf in order to put food on his family’s table is lawful. If it is, then killing the calf for ritual purposes is perfectly allowable, for “what may be spent on a feast may be spent on a sacrifice.”
But the logic also holds in the opposite direction. Suppose, Locke imagines, a disease had destroyed a large number of cattle and the government decreed that no more could be slaughtered. The prohibition would surely extend to religious rituals, not as a specific target of state action, but as a practice swept up in the wake of a general law.
That law, Locke observes, would not be “made about a religious matter, but about a political matter.” It would be true that some people would no longer be able to engage in behavior they considered central to their religious life, but because that would not be the result aimed at — the good of the commonwealth would be the concern — the government could not be accused of contriving to harm religion, even if that were an unintended consequence of its action.
Nor would it be wise to exempt persons of certain beliefs from the general prohibition; for that would amount to bending the law to the preferences and desires of particular citizens, and once you begin to do that there is no logical place to stop and the rule of law would be destroyed.
The upshot of Locke’s argument is that religious practices flourish only at the sufferance of the state. In theory you have the right to worship in the manner dictated by your faith, but should an aspect of that worship run up against a duly enacted regulation, the regulation, provided it is neutral in intention, trumps the demands of worship.
This same line of reasoning can be found in religion clause cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990). (There is an alternative tradition of “accommodating” religion in cases like Sherbert v. Verner and Wisconsin v. Yoder.)
In Reynolds the court considered the argument made by a man convicted of practicing polygamy that it is the religious duty of male members of the Mormon Church to engage in plural marriage, and that the penalty for failing to do so “would be damnation in the life to come.” The court observed that the prohibition against polygamy was general and not directed at any sect, and asked, “can a man excuse” his illegal practice of an interdicted behavior just “because of his religious belief?”
The answer is swift, firm and Lockean. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” In such a circumstance, the court concluded, “government could exist only in name.”
The same logic rules in Smith. Here the issue was the ingestion at a Native American religious ceremony of peyote, deemed a “controlled substance” by the laws of Oregon. Justice Antonin Scalia, writing for the majority, notes that the Native American celebrants “contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice and that is concededly constitutional as applied to those who use the drug for other reasons.” In short, the demand is that the law be applied differently to persons with different beliefs — you can’t use peyote as a recreational drug, but I can use it because I consider it sacramental — and this Scalia refuses to do.
The intention of the Oregon law, he points out, was not to curtail anyone’s free exercise of religion, and the fact that the free exercise rights of some people happened to be impacted negatively is “merely the incidental effect of a generally applicable and otherwise valid principle.” If the affected believers are unhappy, Scalia concludes, let them turn to the “political process” and try to get laws passed that will address their concerns.
That is exactly what happened on two fronts. Congress passed a law making the use of peyote in religious ceremonies an exception to the controlled substances regulations. And the same Congress passed the Religious Freedom Restoration Act (1993), which transferred the burden of proof from the religious practitioner to the government.
Where the assumption in Reynolds and Smith is that the state need only be innocent of the intention to impede free exercise, the distinction between intentional effects and what Scalia calls “incidental” effects is RFRA’s first casualty: “Laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Whatever the source and pedigree of the burden, whether it is designed or accidental, those who suffer it must have a legal recourse.
Accordingly, in any instance where the burden is “substantial,” the state must demonstrate that the law in question “(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” In other words, the fact of a law duly passed by the appropriate bodies is not enough; with respect to a particular class of persons – religious believers – that law cannot take effect unless it can be shown that the highest state considerations require that it be applied without exception.
While RFRA was hailed as a victory for religious freedom by many, others saw in it the realization of the fear expressed by the Reynolds and Smith courts, the fear that any law could be lawfully disobeyed by someone who asserted that it interfered with the free exercise of his or her religion. In effect, they complained, the rule of law was being subordinated to the private convictions of an ever expanding set of citizens. For, as Scalia observes in Smith, who can tell another that a certain practice is not central to the free exercise of his religion? Prison inmates can claim that their religious requires them to eat porterhouse steak every day. And Meliboeus must be allowed to slaughter his calf even when his non-religious neighbors are prevented from doing so.
This brings us back to Mamie Manneh and monkey-meat. How will she fare in the courts? Her attorney is mounting an RFRA defense, but the act was weakened in City of Boerne v. Flores (1997), when Justice Kennedy challenged Congress’s ability to pass it. Congress, he said, has the power to enforce rights, not to create them: “Legislation which alters the Free Exercise Clauses’s meaning” – by creating a special right of exemption from general laws – “cannot be said to be enforcing the clause.” Moreover, said Kennedy, “if Congress could define its own power by altering the Fourteenth Amendment’s meaning, no longer would the Constitution be ‘superior, paramount law, unchangeable by ordinary means.’” In short, saying what the Constitution means is our job, not yours.
That might have seemed the end of it, but in a 2006 case (Gonzales v. O Centro), the Roberts court interpreted Boerne as invalidating only the application of RFRA to the states. Given that Ms. Manneh’s case is being adjudicated in a federal court, an RFRA defense is at least plausible, although the fact that bushmeat is associated with diseases like ebola will likely be enough to satisfy even the “compelling interest” test and give the government a victory.
But no matter how the case turns out, we can be sure of one thing: it won’t be the last, because the issues Locke identified and analyzed will never be resolved. In her dissent in Boerne, Justice O’Connor wrote, “Our Nation’s Founders conceived of a Republic receptive to voluntary religious expression, not a secular society in which religious expression is tolerated only when it does not conflict with generally applicable law.”
Yes, that’s the question. Do we begin by assuming the special status of religious expression and reason from there? Or do we begin with the rule of law and look with suspicion on any claim to be exempt for it, even if the claim is made in the name of apparently benign religious motives? From Reynolds to the present moment, everyone has had an answer to that question, but I predict that no one will ever have the last word.