       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT United States Court of Appeals
                                               Fifth Circuit

                                                               FILED
                                                               July 31, 2009
                                No. 08-10358
                                                          Charles R. Fulbruge III
                                                                  Clerk
JOSE MERCED, President Templo Yoruba Omo Orisha Texas, Inc.,

                                         Plaintiff-Appellant
v.

KURT KASSON; MIKE COLLINS; BOB FREEMAN; CITY OF EULESS,

                                         Defendants-Appellees.


                              Cons w/ 08-10506


JOSE MERCED, President Templo Yoruba Omo Orisha Texas, Inc.,

                                         Plaintiff-Appellee
v.

CITY OF EULESS,

                                         Defendant-Appellant.


            Appeals from the United States District Court for the
                        Northern District of Texas


Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
JENNIFER W. ELROD, Circuit Judge:
     The Texas Religious Freedom and Restoration Act (TRFRA), Tex. Civ.
Prac. & Rem. Code ch. 110, prevents the state and local Texas governments from
substantially burdening a person’s free exercise of religion unless the
                                     No. 08-10358

government can demonstrate that doing so furthers a compelling governmental
interest in the least restrictive manner. In this case, we must decide if the city
of Euless, Texas, may practically forbid the keeping—even for brief periods—and
slaughter of four-legged animals within its borders, a ban that prevents
practitioners of the Santeria faith from performing ceremonies essential to their
religion.   We hold that, under TRFRA, the Euless ordinances at issue
substantially burden plaintiff’s free exercise of religion without advancing a
compelling governmental interest using the least restrictive means.
      José Merced is a Santeria Oba Oriate, or priest, and is a native of Puerto
Rico who moved to Euless in 1990.1 In 2006, the city informed Merced that he
could not legally perform certain animal sacrifices essential to Santeria religious
practice, though he had done so for the previous sixteen years without incident.
He sued the city, seeking a permanent injunction that prohibited Euless from
enforcing its ordinances that burdened his religious practice. The district court
entered judgement for the city following a bench trial, but denied its request for
attorney fees. We reverse the former and affirm the latter.
            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 Catholicism. Its practice centers
around spirits called orishas, which are divine representatives of Olodumare,
the supreme deity. Santeria rituals seek to engage these orishas, honor them,
and encourage their involvement in the material world. Doing so requires the



      1
         He is also the president of Templo Yoruba Omo Orisha Texas, Inc., a Santeria
religious organization.
      2
         This section summarizes the testimony of Merced’s expert, who described the tenets
of faith and the practices of the Santeria religion. The district court found the expert’s
testimony credible, and the city agreed.

                                            2
                                       No. 08-10358

use of life energy, or ashé, the highest concentration of which is found in animal
blood. Thus many Santeria rituals involve the sacrifice of live animals to
transfer ashé to the orishas. Although animal sacrifices are used to celebrate a
range of events, including 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, generally 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 fourteen 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 dependent 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 ceremonies and
sacrifices usually take place in the home of the officiating priest, although
occasionally they may take place in a temple 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.




       3
         Merced testified that Templo Yoruba Omo Orisha hopes eventually to build a temple,
where certain ceremonies may take place if and as the orishas allow, but has no concrete plans
to do so currently. Merced does not know where the temple will be located.

                                              3
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B.    Merced’s Religious Practices4
      In 1990, Merced moved to Euless and began to conduct ritual sacrifices.
From 1990 to 2006, Merced performed the sacrifices 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 isolated from the rest of
the house. Merced purchases the animals from local markets and has them
delivered to his house close to the time of the ceremony, usually about 15
minutes beforehand. There is no evidence that he had kept a four-legged animal
in his home before sacrificing it for more than four hours. He keeps the animals
caged outside until he kills them. Merced slits the carotid arteries of the
animals to kill them humanely, and the blood is collected and offered to the
orishas. The paper or plastic mats on which the sacrifices are performed are
wrapped and thrown away. The edible portions of the animals are generally
cooked and eaten (and some portions, like the intestines, are cooked but not
eaten), and any remains are double-bagged and placed either in the trash or in
a dumpster owned by another Santeria practitioner. No one had ever become
sick during one of Merced’s ceremonies, which generally last for several days
(such that participants would presumably be in a position to observe if someone
did become ill).5
      On September 4, 2004, Merced was holding a ceremony at his home. The
police received an anonymous call from a neighbor and went to Merced’s house
to stop the ceremony. Once there, the police called two animal control officers,
who allowed 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

      4
          Except as noted in the text and below, see infra n.9, these facts are undisputed.
      5
        The city admitted in the pretrial order that it did not have any evidence to the
contrary.

                                               4
                                    No. 08-10358

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 supervisor. 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 aspiring priest because the ceremony
must be performed in his home and he cannot perform it legally. Merced is
willing to comply with any disposal or health standards that Euless might
create, but the city denied the availability of a permit or exception 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 42 U.S.C. § 1983, the Religious Land
Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, the First,
Fifth, and Fourteenth Amendments, and TRFRA. The district court dismissed
the suit as to the individual defendants because they had been sued in their
personal capacities.    In December, 2007, the district court dismissed the
RLUIPA claim because no zoning laws were at issue. The parties conducted
discovery and proceeded to trial.
C.    Euless’s Ordinances and Trial Testimony
      Before trial, the parties stipulated that six Euless ordinances prevented
the sacrifice 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.



                                         5
                             No. 08-10358

Sec. 10-5. Exceptions and exemptions not required to be
negated.
In any complaint and in any action or proceedings brought for the
enforcement of any provision of this chapter, it shall not be
necessary to negate any exception, excuse, provision or exemption,
which burden shall be upon the defendant.

Sec. 10-9. Penalty for violations of chapter.
Any person violating the terms and provisions 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 violations
continues shall be a separate offense. 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 humans.
       ....
       (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 combination, to be kept in residential premises.
It shall be unlawful to keep or harbor more than four dogs, cats or
other animals, or combination of animals, beyond the normal
weaning age on any premises, except as permitted in section 10-104.

Sec. 10-104. Restrictions on size and locations of area for
keeping livestock.
It shall be unlawful to keep and maintain 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 human habitation or within an enclosed

                                   6
                                         No. 08-10358

       area of less than one-half acre (21,780 square feet) per animal. All
       such livestock shall be kept within enclosed areas, and a fence of
       sufficient strength to contain such animals shall be provided to
       maintain the 100-foot separation required 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 animals 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 could be kept if the keeper has a sufficiently large piece
of property to meet the requirements of § 10-104.7
       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 ordinance allows designated city employees to kill rabid or vicious
animals.     Euless Ord. § 10-4. In practice, the city does not enforce these
ordinances against homeowners who kill rats, mice, or snakes, nor against
veterinarians who put down large animals.8                      The enforcement of these


       6
          Turtles clearly fall within the prohibition on killing, but it is not entirely clear that
they could not lawfully be kept in Euless. The city suggests in its brief that the possession of
turtles is prohibited, but the portion of the record it cites as support is testimony that turtles
cannot be traded interstate, but says nothing about possession (other than prohibiting them
in daycare facilities). Euless does not cite any authority for a ban on turtle possession, and
Merced suggests the sale and possession of turtles is allowed with some limitation. See 31 Tex.
Admin. Code § 65.331 (permitting possession and sale of certain kinds of turtles); 21 C.F.R. §
1240.62 (forbidding the sale of turtles with a carapace length of less than four inches).
       7
         Merced’s property is described in the record as a single family residence of 3,500
square feet on a wedge-shaped lot with a long driveway. The record is silent on the size of the
lot. Neither party suggests that it is large enough to meet the one-half acre per animal
requirement nor the 100-foot setback.
       8
         At oral argument, Euless stated that veterinarians are limited to non-residential areas
by the city’s zoning laws.

                                                7
                                       No. 08-10358

ordinances is complaint-driven, and Euless was unaware of any violations prior
to the complaints 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 behind the Euless ordinances.
Merced objected 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., runoff of urine and feces, flies, smells,
noise, possible disease transmission). The expert also opined on the health
ramifications 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 governmental
purpose.
       Euless’s second expert, whose expertise was public health, testified that
disposing of numerous animal remains involves contact 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


       9
         The parties also prepared summaries of deposition testimony for other witnesses that
were admitted as evidence. The thrust of the city’s summaries is that Santeria sacrifices can
be performed anywhere. One witness’s summary, to which Merced objected as misconstruing
the deposition, stated that animal carcasses from Merced’s sacrifices found their way into a
local wooded area or pond. The city stipulated, however—and the district court found—that
it did not have any evidence that Merced unlawfully disposed of animal remains. Further, the
district court credited Merced’s expert, who testified that sacrifices occur where the orishas
instruct, which is usually the home of the officiating priest, but could be a temple or the home
of another priest.

                                               8
                                        No. 08-10358

Yet Euless permits the butchering 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 discovery), is not on the agreed list
of ordinances that prevents Merced’s sacrifices. Nor can the city legitimately
object to the disposal of sacrificial animals when it permits the disposal of
hunted animals. Further, Merced has expressed willingness to comply with the
city’s laws in that regard, and there is no evidence that he has unlawfully or
unsanitarily disposed of anything. So long as he lawfully disposes of the dead
animals within twenty-four hours, he has not violated the ordinance’s plain
terms.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 question 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.

       10
          Euless cites a laundry list of Texas statutes and administrative regulations
pertaining to the transportation, inspection, and permitting of livestock and fowl in Texas.
None of these citations, however, with the possible exception of 30 Texas Administrative Code
§ 335.25, directly bears on the issue of a lay person lawfully disposing of the remains of healthy
animals. The other disposal provisions cited by the city pertain to diseased animals. E.g., 4
Tex. Admin. Code § 59.12.
       11
        While the district court couched these statements as findings of fact, the conclusions
regarding the elements of a TRFRA claim are, as noted below, reviewed as matters of law.

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                                  No. 08-10358

            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 question 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 testified the orishas told him to
sacrifice in his house. The court later concluded that the ordinances furthered
a compelling governmental interest and were the least restrictive means of
advancing them. The district 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 42 U.S.C.
§ 1988 as the prevailing party.      Merced timely filed an appeal from the
judgment, and Euless timely filed an appeal from the denial of attorney fees.
These appeals were consolidated in this court.
                               II. DISCUSSION
      Merced raises constitutional claims under the First and Fourteenth
Amendments, claiming this case is “on all fours” with the Supreme Court’s
well-known decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (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, 129 S. Ct. 2504, 2513 (2009) (“[I]t is a
well-established principle governing the prudent exercise of this Court’s
jurisdiction that normally the Court will not decide 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 (1984)); Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 347 (1930) (Brandeis, J., concurring) (“The Court will
not pass upon a constitutional question although properly presented by the


                                       10
                                       No. 08-10358

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 (1905) (“It is not the
habit of the court to decide questions of a constitutional nature unless absolutely
necessary to a decision of the case.”).
       Under TRFRA, “[w]hile we must accept the trial court’s fact findings
supported by the evidence, the ultimate answers determine the legal rights
protected by the Act and are thus matters of law.” Barr v. City of Sinton, ___
S.W.3d ___, 2009 WL 1712798, at *8 (Tex. June 19, 2009). “A district court’s
legal conclusions at a bench trial are reviewed de novo and its findings of fact are
reviewed for clear error.” Adkins v. Kaspar, 393 F.3d 559, 563 (5th Cir. 2004).
       The history of state religious freedom 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
governmental regulation unless they furthered a compelling state interest. See
City of Boerne v. Flores, 521 U.S. 507, 513–14 (1997); Sherbert v. Verner, 374
U.S. 398 (1963). In 1990, the Court in Employment Division, Department of
Human Resources v. Smith, 494 U.S. 872 (1990), exempted from this balancing
test neutral laws of general applicability, such that Oregon’s criminal laws could
proscribe a Native American’s religious use of peyote without violating the First
Amendment.12
       Congress directly responded to Smith by enacting the Religious Freedom
Restoration Act of 1993 (RFRA), Pub. L. No. 103-141, 107 Stat. 1488 (1993)
(codified at 42 U.S.C. §§ 2000bb–2000bb-4), which restored the Sherbert
balancing test by requiring any governmental regulation that substantially



       12
         A neutral law of general applicability must still pass the strict scrutiny test if more
than one constitutional right is implicated. E.g., Wisconsin v. Yoder, 406 U.S. 205 (1972)
(combining the right to free exercise of religion with parents’ fundamental right to raise their
children as they choose).

                                              11
                                  No. 08-10358

burdened the free exercise of religion to employ the least restrictive means of
advancing a compelling governmental interest. Flores, 521 U.S. at 512–16. The
Supreme Court struck RFRA down as applied to the states, however, because it
exceeded Congress’s enforcement power under section 5 of the Fourteenth
Amendment. Id. at 532–34. Texas, among other states, likewise responded to
Smith by enacting TRFRA, which provides the same protections to religious free
exercise envisioned by the framers of its federal counterpart, RFRA. Barr, 2009
WL 1712798 at *5. With this understanding, we turn to the text of TRFRA.
      Texas Civil Practice and Remedies Code § 110.003 provides:
      (a) Subject to Subsection (b), a government agency may not
      substantially burden 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 person:
            (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 recently applied TRFRA for the first time in
Barr v. City of Sinton. 2009 WL 1712798. In Barr, a local pastor set up a
religious halfway house to help non-violent offenders reenter society; applicants
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
Christian living.” Id. at *1. The city then passed a zoning ordinance effectively
banning halfway houses from Sinton, and the pastor sued. Id. at *2. The court
concluded that Sinton’s ordinance violated TRFRA after applying a four-part
test: (1) whether the government’s regulations burden the plaintiff’s free exercise
of religion; (2) whether the burden is substantial; (3) whether the regulations
further a compelling governmental interest; and (4) whether the regulations are
the least restrictive means of furthering that interest. Id. at *8. We apply the
same approach to the application of TRFRA.


                                        12
                                        No. 08-10358

A.    Free Exercise of Religion
      TRFRA defines “free exercise of religion” as “an act or refusal to act that
is substantially motivated by sincere religious belief. In determining whether
an act or refusal to act is substantially motivated 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.” Tex. Civ. Prac. & Rem. Code § 110.001(a)(1). As discussed in
Barr, the focus of this initial prong is on plaintiff’s free exercise of religion; that
is, whether plaintiff’s sincere religious beliefs motivate his conduct. 2009 WL
1712798 at *8–9. For example, if Merced wanted to keep and kill goats and
sheep because he could thereby ensure the quality of the meat he consumed,
such a purpose, while meritorious, is non-religious in motivation and lies beyond
TRFRA’s reach. Euless does not dispute that Merced’s sincere religious beliefs
motived his conduct; his killings were, as described by his expert, sacrifices and
not mere slaughter.
B.    Substantial Burden
      We next consider whether Euless’s ordinances substantially burden
Merced’s sincere religious practices. According to the Texas Supreme Court, a
burden under TRFRA is substantial if it is “real vs. merely perceived, and
significant vs. trivial.” Barr, 2009 WL 1712798 at *9.13 The inquiry is case-by-


      13
           In the context of RLUIPA, this circuit uses the following definition of “substantial
burden”:

      [A] government action or regulation creates 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.

                                              13
                                  No. 08-10358

case and fact-specific. Id.; cf. Adkins, 393 F.3d at 571 (applying RLUIPA).
Federal case law interpreting RFRA and RLUIPA is relevant. Barr, 2009 WL
1712798 at *5.
      In Sherbert v. Verner, 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. 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. The Supreme Court found this
restriction burdened plaintiff’s religious free exercise:
      Here not only is it apparent that appellant’s declared ineligibility for
      benefits derives solely from the practice of her religion, but the
      pressure upon her to forego that practice is unmistakable. The
      ruling forces her to choose between following the precepts of her
      religion and forfeiting benefits, on the one hand, and abandoning
      one of the precepts of her religion in order to accept work, on the
      other hand.

Id. at 404. Similarly, in Wisconsin v. Yoder, the Court found that the state’s
compulsory education law burdened 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
compels them, under threat of criminal sanction, to perform acts undeniably at
odds with fundamental tenets of their religious beliefs.” 406 U.S. at 218; see also
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717–18 (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 religion exists. While the
compulsion may be indirect, the infringement upon free exercise is nonetheless
substantial.”).


                                        14
                                      No. 08-10358

       Our decisions interpreting RFRA and RLUIPA likewise provide guidance.
In Diaz v. Collins, for example, we held under RFRA that a prison’s grooming
regulations substantially burdened a Native American’s religious practice by
preventing him from wearing long hair as required by his religion. 114 F.3d 69,
72–73 (5th Cir. 1997); 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 refusing to cut his hair, which he wore long according to his religious
tradition, stated a claim under RLUIPA based on the substantial burden to his
religious free exercise). We declined to find a substantial burden, however, when
the prison’s regulations 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, in which prison officials severely limited the ability of practitioners of
the Odinist/Asatru faith to meet as a group because a security-trained, religious
volunteer was unavailable to conduct the meetings. 529 F.3d 599, 602 (5th Cir.
2008). We held, based on the summary judgment record, that a finder of fact
could conclude that the prison’s policy imposed a substantial burden on the
plaintiff’s religious free exercise. 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
plaintiff in Adkins).14 The prison also prohibited the plaintiff from possessing


       14
          In Adkins, a member of the Yahweh Evangelical Assembly (YEA) brought a claim
under RLUIPA because inmate-adherents of that faith were not allowed to meet on YEA
Sabbaths and holy days. 393 F.3d at 571. As in Mayfield, the prison had a policy requiring
a religious volunteer at group meetings, but an outside volunteer was able to come about once
a month. Id. at 562. The YEA members also had access to religious materials (e.g., books,

                                             15
                                       No. 08-10358

runestones (small tiles made from various materials with characters of the
ancient rune alphabet carved on them), which are essential to the Odinist faith.
Id. at 602. Here, too, we held that the plaintiff presented evidence from which
a finder of fact could conclude that the prison’s policies substantially burdened
his religious exercise. Id. at 615–16; see also Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 333–34 (5th Cir. 2009) (finding genuine issues of material
fact precluding summary judgment on the “substantial burden” question under
RLUIPA when prison officials denied use of a chapel for religious services, but
allowed its use for secular functions); Baranowski v. Hart, 486 F.3d 112, 125 (5th
Cir. 2007) (holding that a prison’s policy of not providing kosher foods “may be
deemed to work a substantial burden upon [plaintiff’s] practice of his faith”).
       The upshot of these opinions is that, at a minimum, the government’s ban
of conduct sincerely motivated by religious 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 conclusion 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
restricted.” 2009 WL 1712798 at *12; accord Greene v. Solano County Jail, 513
F.3d 982, 988 (9th Cir. 2008 ) (“We have little difficulty in concluding that an
outright ban on a particular religious exercise is a substantial burden on that
religious exercise.”). If a government’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 matters of law, and accordingly undertake




videos, audiotapes). Id. The Adkins court rejected plaintiff’s RLUIPA claim because the policy
did not impose a substantial burden on his religious practice as it was equally applied to all
religions. Id. at 571.

                                             16
                                   No. 08-10358

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,
predicating 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 (“[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’ interpretations 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 determination. 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 officiating priest’s house.
Second, Merced testified 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 2005, 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.



                                         17
                                      No. 08-10358

        The ordaining of new priests, essential to the continuation of the Santeria
religion, is barred by the Euless ordinances. Despite Euless’s protestation to the
contrary, the restriction on killing the four-legged animals needed to initiate
priests is absolute; the ability to kill small numbers of fowl does not alter that
fact.        The relevant inquiry is not whether governmental regulations
substantially burden a person’s religious free exercise broadly defined, but
whether the regulations substantially burden a specific religious practice. See
Tex. Civ. Prac. & Rem. Code § 110.001(a)(1) (defining “free exercise of religion”
as “an act or refusal to act,” indicating that a particular religious activity, not
the religion as a whole, is the appropriate focus of the substantial burden
analysis); Greene, 513 F.3d at 987 (rejecting, under RLUIPA, the broad
interpretation of “religious exercise” as the general practice of one’s religion in
favor of a narrower interpretation that limits the concept to a particular
religious practice). Thus, Merced’s ability to perform some ceremonies does not
mean the city’s ordinances do not burden other Santeria practices. See Barr,
2009 WL 1712798 at *10 (“[A] burden on a person’s religious exercise is not
insubstantial simply because he could always choose to do something else.”).
Likewise, the city’s ban on keeping livestock is effectively outright in residential
subdivisions where lot sizes are often inadequate to meet the city’s size and
setback requirements.15
        Merced cannot perform the ceremonies 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 practicing his religion. Cf. Adkins, 393 F.3d
at 570 (holding that a government’s regulation is significant if it “forces the
adherent to choose between, on the one hand, enjoying some generally available,

        15
        Assuming the five to seven goats or sheep needed to initiate a priest, Merced would
need at least two and one-half to three and one-half acres of land to meet the city’s
requirement. While not impossible, compelling a person to acquire a house on such a lot in a
suburban environment to keep a few animals for a matter of hours is a substantial burden.

                                            18
                                       No. 08-10358

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 criminal prosecution if he engages in conduct essential to his
religion. See 406 U.S. at 218.16
       Euless also argues that a burden is not substantial if it is incidental by
way of a law of general application. Such an interpretation violates TRFRA’s
plain language. TRFRA applies to “any rule, order, decision, practice, or other
exercise of governmental authority.” Tex. Civ. Prac. & Rem. Code § 110.002(a)
(emphasis added). This broad language does not permit this court to read an
exception into the statute for generally applicable laws that incidentally burden
religious conduct.
       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 created both advances a compelling interest and is the least restrictive means
of doing so. Tex. Civ. Prac. & Rem. Code § 110.003(b); Barr, 2009 WL 1712798
at *14. Federal decisions interpreting the Free Exercise Clause are relevant to
this inquiry.     Id. § 110.001(b).       These cases have described a compelling
governmental interest using phrases such as “of the highest order,” Lukumi, 508
U.S. at 546, and “paramount,” Yoder, 406 U.S. at 213.
       Barr cites with approval the United States Supreme Court’s opinion in
Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418



       16
          Euless abandoned on appeal its argument made in the district court that Merced’s
free exercise is not burdened by its ordinances because he could go elsewhere to practice those
elements of his religion. The city failed to include this argument in its brief. See Mosley v.
Dretke, 370 F.3d 467, 474 (5th Cir. 2004).

                                              19
                                    No. 08-10358

(2006), equating the compelling state interest requirements of RFRA and
TRFRA. 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
particular claimant whose sincere exercise of religion is being substantially
burdened.” 546 U.S. at 430–31. 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
justifying the general applicability of government mandates and scrutinized the
asserted harm of granting specific exemptions to particular religious claimants.”
Id. at 431. The courts’ task of balancing 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.
      Barr is particularly instructive. There, the City of Sinton advanced the
interests of “safety, preventing nuisance, and protecting children” to justify its
exclusion of Barr’s religious halfway house. 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 platitudes 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 religious practices jeopardize its stated interests. This it cannot do.
      The two interests Euless claims are compelling are public health and
animal treatment, the emphasis being on the former. But the parties stipulated
to, and the district court found, the following facts:
      25.    Defendant has no evidence that any of the Plaintiff’s religious
             practices in his home, including the killing of goats, sheep,
             and turtles, has adversely affected the health of any person.

                                         20
                                  No. 08-10358

      26.   Defendant has no evidence that any of the Plaintiff’s religious
            practices in his home, including the killing of goats, sheep,
            and turtles, has adversely affected the safety of any person.
      27.   Defendant has no evidence that the Plaintiff ever disposed in
            an illegal manner of the remains (dead animals or their parts)
            of any animal sacrifice in his home.
      28.   Defendant has no evidence that the Plaintiff ever disposed in
            an unsanitary manner of the remains (dead animals or their
            parts) of any animal sacrifice in his home.
      29.   Defendant has no evidence that the Plaintiff ever kept any
            goats, sheep, or other animals on his premises for longer than
            four hours.
      30.   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.
      31.   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.
      32.   Defendant has no evidence that the Plaintiff ever kept any
            goats, sheep, or other animals on his premises in an
            unsanitary manner.
      33.   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.
      34.   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 “beyond speculation” that these killings presented just such a risk. But it is
undisputed that Merced conducted animal sacrifices for sixteen years in Euless
without incident.
      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

                                       21
                                        No. 08-10358

in dumpters or trash cans after double-bagging them17—is both lawful and
sanitary. Even including disposal within the ken of activities relevant to
Euless’s stated interests, the above findings eviscerate any possibility of meeting
Barr’s particularity requirement. The city has absolutely no evidence that
Merced’s religious conduct undermined any of its interests. Euless’s experts did
testify that the city’s interests would be harmed by activities like those Merced
performs,18 but this general testimony does not vitiate the stipulated 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
(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 government’s interests with the particular
practice at issue. Merced has performed these sacrifices for sixteen years
without creating health hazards or unduly harming any animals.
       Euless argues that O Centro stands for the proposition that the
government cannot 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


       17
         We reiterate that the deposition summary of an Euless witness to the contrary is
irrelevant in light of the agreed facts approved by the district court.
       18
          One of Euless’s experts opined that if the keeping and killing of several dozen animals
was “allowed all over the city, it would certainly lower the bar of public health.” The only
evidence of numbers, however, is that there are five Santeria priests in Euless. The danger
of allowing them to sacrifice four-legged animals because everyone in Euless will do it appears,
like the report of Mark Twain’s death, greatly exaggerated.
       19
         See Barr, 2009 WL 1712798 at *14 (noting that Sinton failed to cite a single study
or experience with halfway houses to justify its ban on them). Here, Euless does not cite any
studies or experiences with the Santeria religion in support of its ordinances.

                                              22
                                        No. 08-10358

undermine Euless’s public health interest regarding the consumption of
uninspected meat and disposal of carcases. First, Texas law exempts 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. Tex. Health
& Safety Code § 433.006(a). Also, Euless permits hunters to bring dead animals
into the city, butcher and consume them, and dispose of the unwanted portions.
Such exceptions weaken Euless’s asserted interests. See Lukumi, 508 U.S. at
546–47 (“Where government restricts only conduct protected by the First
Amendment and fails to enact feasible measures to restrict other conduct
producing substantial harm or alleged harm of the same sort, the interest given
in justification of the restriction is not compelling.”).20
       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
disposal of a small number of fowl on a regular basis, which Euless permits, over
time has the same corrosive effect on the city’s interests 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 turkeys, 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.



       20
          Merced also points to various exceptions to Euless’s killing ban, including the killing
of fowl and vermin, which likewise weaken the city’s interests. Even though the city’s manager
admitted that killing of four-legged animals is not an evil in itself, see 7 U.S.C. § 1902(b)
(describing the slaughter technique used by Merced, severing the carotid arteries with a sharp
instrument, as humane), it is still prohibited.
       21
         Merced testified that he has typically performed sacrifices of four-legged animals
about once a year.

                                              23
                                  No. 08-10358

      The balancing of interests is difficult. To carry its burden of proof, a
government’s asserted interest must be particularly directed to the conduct at
issue. In answering this legal question, we are persuaded 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 ordinances that burden
Merced’s religious conduct.
D.    Least Restrictive Means
      Even if Euless marshaled a compelling governmental interest in its favor,
it must also prove that its chosen regulatory 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 restrictive 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 Tex. Civ. Prac. & Rem. Code § 110.003(b)(2); cf. United States v.
Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000) (“If a less restrictive
alternative would serve the Government’s purpose, the legislature must use that
alternative.”).
      Merced proposes no fewer than three less restrictive alternatives to
Euless’s current scheme. For purposes of illustration, one will do. Euless could
create a permit system whereby Santeria adherents comply with conditions
designed to safeguard the city’s interests (e.g., reasonable limitations on the time
the animals can be kept before the killings) and in return are allowed 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
ordinances that burden Merced’s religious free exercise are not the least
restrictive means of advancing the city’s interests.

                                        24
                                      No. 08-10358

E.     Attorney Fees
       Euless moved in the district court for an award under 42 U.S.C. § 1988 of
its attorney fees incurred in defending this action. Section 1988 allows district
courts, in their discretion, to award fees to the prevailing party for actions
brought under, among others, 42 U.S.C. § 1983, RLUIPA, and RFRA. § 1988(b).
While prevailing plaintiff’s are usually entitled to such fees, “prevailing
defendants cannot recover § 1988 fees without demonstrating that the plaintiff’s
underlying claim was frivolous, unreasonable or groundless.” Hidden Oaks Ltd.
v. City of Austin, 138 F.3d 1036, 1053 (5th Cir. 1998). We review the district
court’s decision for abuse of discretion. Id. at 1052.
       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 on the TRFRA claim, it is not entitled to attorney fees under
§ 1988.22 The district court granted Euless’s motion for summary judgment
regarding Merced’s RLUIPA claim, but that fact alone does not mean it was
frivolous, id. at 1053, and Euless offers no additional reasons to deem it so.
Thus, we hold the district court did not abuse its discretion in denying Euless’s
request. Merced did not request attorney fees as allowed by TRFRA, Tex. Civ.
Prac. & Rem. Code § 110.005(a)(4), or § 1988 in the district court nor has he
requested them on appeal. Accordingly, we do not award any.




       22
          Because we do not reach Merced’s constitutional claims, we do not discuss attorney
fees in relation to them.

                                            25
                               No. 08-10358

                           III. CONCLUSION
      Because we conclude that Merced is entitled under TRFRA to an
injunction preventing Euless from enforcing its ordinances that burden his
religious practice of sacrificing animals, see Tex. Civ. Prac. & Rem. Code
§ 110.005(a)(2), we do not reach his claims under the First and Fourteenth
Amendments. For the foregoing reasons, we REVERSE the district court’s
judgment respecting Merced’s TRFRA claim, we AFFIRM the district court’s
denial of attorney fees, and REMAND for further proceedings consistent with
this opinion.




                                    26
