30 juin 2021 | Massimo Introvigne | BitterWinter

Does banning cockfighting amount to promoting a pagan religion that worships animals, thus violating the establishment clause? The question may seem strange, but it kept the Court of Appeals for Texas’s 13th District busy in reviewing a conviction by the County Court of Karnes County.

One Steven Elmer Hinds was convicted of training and preparing a cock for fighting, a Class A misdemeanor, and received a suspended sentence of twelve months in jail. He appealed, claiming inter alia that the laws against cockfighting violate his religious liberty. They constitute, Hinds said, “government establishment of respect of the Pagan Religion.” Hinds argued that paganism is a “nature worshiping religion,” and that “animal rights laws are a clandestinely designed effort to institute laws respecting the establishment of the Pagan religion and animal worship.”

On June 24, 2021, the Appeal Court disagreed. The question focused on § 42.105 of Texas Criminal Code, prohibiting cockfighting. The court agreed that the anti-establishment clause of the Constitution extends to state legislatures via the Fourteenth Amendment. To find that a provision does not violate the Establishment Clause, three criteria should be met: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” “Mere consistency between a statute and religious tenets, the Appeal Court said, does not render a statute unconstitutional. Otherwise, no penal provision would pass constitutional muster.”

Hinds, according to the judges, was not able to refer to any “facts indicating that the Legislature’s purpose in enacting the statute was anything but secular in nature.” § 42.105 “has a clear secular purpose of providing for the humane treatment of animals. The primary effect of the statute is penal in nature. The mere fact that § 42.105 might be consistent with the tenets of a particular faith does not render the statute unconstitutional.”

Prohibiting cockfighting “neither advances nor inhibits a particular religion. Further, the statute contains no provisions that would lead to excessive government entanglement in religion.”

The general principle affirmed is that prohibiting a certain behavior (e.g. homicide—but also cockfighting) can be consistent both with secular laws and religious laws (“Thou shalt not kill”). This in itself does not prove that the secular law was patterned after the religious law with the intent of establishing a particular religion. This intent should be specifically proved.