In 1989, most people had probably never heard of the Santeria Church. I certainly hadn’t. But there I was that year, executive director of the American Civil Liberties Union (ACLU) of Florida, helping to represent this Afro-Cuban religion against a Cuban exile community arrayed against it. Eventually the Santeria case landed in the U.S. Supreme Court, establishing an important precedent for religious freedom for marginalized faiths. But it was a bumpy road to that ultimate victory.

Fast forward more than thirty years. A case that once stood for government neutrality toward religion is now being used to grant all manner of religious privilege. The Santerias were targeted for official discrimination. Now their fight against this bigotry is being relied upon by today’s Supreme Court to give Christians the right to discriminate against same-sex couples, demand taxpayer funding, and more. A soured legacy after such a sweet victory.

Here is how the case came to be. Back in 1987, an organized group of Santerias purchased property in Hialeah, Florida, a city near Miami, and made it known that they intended to establish a church, school, cultural center, and museum. This horrified members of the Hialeah City Council. Made up mostly of Cuban-Americans, the Council members were not going to let Santeria, an underground faith practiced largely by descendants of enslaved Africans, gain a foothold in their city.

Central to the Santeria faith is the ritual slaughter of animals. Mostly chickens but also ducks, goats, and other small animals are sacrificed during ceremonies marking major events, including births, marriages, and deaths. The killing is done in accordance with state laws on humane slaughter. Most of the animals are cooked and consumed, although not those sacrificed for healing or death rituals.

The Hialeah Council passed a series of ordinances that made the ritual slaughter of animals illegal within city limits. You could still kill animals in Hialeah while exterminating pests, fishing, etc., as long as you didn’t pray over them when you did so. Not surprisingly, kosher slaughter was exempted.

A distinct racial overtone permeated the distaste that many Cuban immigrants and Cuban-Americans in South Florida had for Santerias. The Lukumi religion, more generally called Yoba or Yoruba and known as Santeria, had its derivation in West Africa but then melded with Catholicism as enslaved Africans were brought to Catholic Cuba. It was described this way in the 1989 district court decision (that ruled against the Santerias):

Yoba or Yoruba is an ancient religion that originated almost 4000 years ago with the Bantu people the protogroup of the Yoruba people of West Africa, who live mainly in Southern Nigeria. Yoruba is one of the three indigenous religions of the Yoruba people and is practiced openly in Nigeria today.

During the 16th, 17th and 18th centuries, great numbers of Yoba practitioners were enslaved and brought to the eastern region of Cuba, where the practice of their native religion was forbidden. Slaves were expected to become Christians, and practitioners of Yoba were persecuted by the authorities and discriminated against by the populace.

The slaves, to escape the severe penalties and social stigma, began to express the Yoba faith through the use of Catholic saints and symbolism. This syncretism permitted slaves to practice Yoba, or Santeria, while appearing to practice Catholicism.

At the emergency public session called by the Hialeah City Council to respond to the planned Santeria church, the hostility was overt. Here are some morsels featured in the ruling of the U.S. Supreme Court: Hialeah Councilman Julio Martinez proclaimed that prior to the revolution in Cuba “people were put in jail for practicing this religion.” His comments elicited applause from the public. He then wondered aloud, “If we could not practice this [religion] in our homeland [Cuba], why bring it to this country?”

The Council’s president, Herman Echevarria, asked: “What can we do to prevent the church from opening?” Councilman Silvio Cardoso proclaimed that the Santerias “are in violation of everything this country stands for.” Councilman Andres Mejides expressed his complete opposition to “the sacrificing of animals” except for kosher slaughter because that had a “real purpose.” The City Council heard from the chaplain of the Hialeah Police Department who said that the Santeria faith is “an abomination to the Lord,” and the worship of “demons.”

The ACLU of Florida agreed to represent the Santerias and challenge this blatant violation of the Constitution’s guarantees of free exercise of religion. Initially, though, it didn’t look good for the Santerias.

The federal district judge ruled against the church on the grounds that while the ordinances were not neutral, they were targeted toward religious conduct and animal slaughter rather than belief. The ruling was affirmed by a federal appellate court that didn’t even bother writing an opinion; it just rubber-stamped the lower court’s decision. But then the case of Church of the Lukumi Babalu Aye, Inc. v. Hialeah was accepted for review by the U.S. Supreme Court.

(If “Babalu” sounds familiar, think of Cuban-American band leader Ricky Ricardo on the old I Love Lucy show. His signature song was about Babalu-Aye, one of Santeria’s main gods—and a fearsome one at that.)

In 1993, the high court unanimously ruled in the Santerias’ favor. Laws that negatively target religious practices, said the court, have a high bar to meet to be considered constitutional, and the Hialeah ordinances did not meet that bar.

Thereafter, the Santeria case sat quietly for years. After all, how often do government bodies target religion, even a disfavored one? But now, with the high court filled with justices on the lookout for even the slightest imposition on Christianity, this case has come out of hibernation and is being stretched to fit.

For instance, in the Masterpiece Cakeshop case, a Christian baker in Colorado refused to create a wedding cake for a same-sex couple on religious grounds and was cited under the state’s anti-discrimination law that required businesses to treat people equally regardless of sexual orientation. In finding for the baker, the high court referenced the Santeria case extensively. The court grounded its ruling in the claimed hostility of the Colorado Civil Rights Commission toward religion.

Here was the worst offending statement, according to the court:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

This statement of fact about the historic use of religion to justify discrimination is not exactly on a par with musing approvingly of putting Santerias in jail, as happened in Hialeah. But it was enough for the current court to give the baker a win.

Then there was last term’s disappointing Supreme Court decision in Fulton v. Philadelphia, giving Catholic Social Services both the right to refuse to certify same-sex couples as foster parents and maintain a government contract for provision of those services. Again, the Santeria case was cited multiple times. The court said the Santeria case stands for the proposition that government actions that limit religious practices must meet a high bar to pass constitutional muster if they are not neutral and generally applicable. According to the court, the contract provision requiring Catholic Social Services and all foster care providers to treat same-sex couples equally was not generally applicable because exceptions could be granted. Ipso facto, the church’s discriminatory practices must be accommodated.

In the Santeria case, the restrictive ordinances were targeted at the religion, easily defeating neutrality and general applicability. In Fulton, there is no such claim. What Fulton stands for is the notion that any discretion given government officials in laws or rules defeats their general applicability and opens the door to religious dogma overriding secular law—a truly stunning and frightening result.

Going beyond discrimination cases into cases where religion is demanding equal access to government funds and the Santeria case makes a showing there as well. See the Trinity Lutheran case from 2017 awarding a church the right to access government funds under a playground repaving program and the Espinoza case from 2020 that invalidated Montana’s “no aid” to religion clause in its state constitution that barred public funds from supporting religious schools. And there are more like this on the way.

Had the Santeria case never been brought, the high court’s conservative majority would have found other precedents to rely upon to reach the same unfortunate conclusions. But it’s more than galling to see a case brought by the ACLU of Florida, when I was at its helm, used to undo the separation of church and state and expand the ability of businesses to discriminate in the name of religious freedom.