Nicholas Mignanelli, Vodou and the Law: A Literature Review @nmignanelli
Vodou and the Law: A Literature Review
The expansion of federal regulation of the healthcare industry, the legal recognition of same-sex marriage, and the rise of local and state restrictions on public gatherings in the wake of COVID-19 have set the stage for a clash of ideologies over the contours of the Establishment Clause. The plaintiffs at the heart of this controversy are typically adherents of the dominant faith traditions in American life: Roman Catholic religious orders, fundamentalist Christian business owners, and evangelical Protestant church congregations, among others. But what if our ability to easily place the cases brought by these plaintiffs into the context of an ongoing and decades-old culture war risks forgetting the special promise—albeit an often broken one—that the guarantee of religious freedom holds for religious minority groups, especially those subject to a long history of suppression and negative stereotyping? This literature review is an attempt to gather the materials that tell the story of how one such group has evaded and negotiated regulation. It is also an opportunity to amplify the work of scholars studying this area.
Given its regional variations, it might seem foolish to describe Vodou in general terms. Yet Vodou adherents share a common heritage, for Vodou beliefs and practices endure across the nations where the descendants of enslaved persons from West Africa reside. Although stripped of their very humanity by European captors, these ancestors carried in the storehouses of their collective imagination and shared reality the Vodun belief system of their homeland. It was in the dreamscapes of the mind that this faith was guarded against the prying eyes of the slaver and the overseer. No amount of hardship or suffering could take it from them, and only death could part them from it. But this faith also transcended death, for it was handed down from one generation to the next through oral tradition and clandestine ceremonies.
The clandestine nature of these ceremonies was itself a direct result of law. In West Africa, these ceremonies had been communal events held in marketplaces. But in colonial America, slave codes prohibited enslaved persons from gathering together. For instance, an influential 1680 Virginia statute forbade an enslaved person from “depart[ing] from . . . his master’s ground without a certificate from his master, [mistress,] or overseer, and such permission not to be granted but upon [particular] and necessary occasions.” The punishment for violating this statute was twenty lashes.
In the French colonies, the Code Noir, promulgated by Louis XIV in 1685, similarly forbade enslaved persons “belonging to different masters to gather in the day or night whether claiming for wedding or otherwise, whether on their master’s property or elsewhere, and still less in the main roads or faraway places.” Offenders were to be whipped and branded. Frequent offenders and those violating the article under aggravating circumstances could be punished with death.
The Code Noir also contained articles requiring that enslaved persons be baptized in the Roman Catholic Church and prohibiting the public exercise of any religion other than Roman Catholicism, respectively. The latter article even provided for the punishment of slavers who tolerated the practice of other religions among enslaved persons. It is in these articles of the Code Noir that we find the origins of Vodou’s departure from Vodun, for these articles forced enslaved persons living in the French colonies to conceal their faith in the trappings of the Catholicism of their oppressors. For example, the most popular Lwa (powerful spiritual beings who act as intermediaries between Vodou adherents and the distant universal creator) became identified with the icons of saints. This syncretism of West African Vodun and Roman Catholicism took place in Saint-Domingue (modern Haiti) and Louisiana alike, with Haitian Vodou influencing Louisiana Voodoo as countless Haitian immigrants arrived in New Orleans in the years following the Haitian Revolution.
The relationship of the Haitian government to Vodou is a long one, extending at least from the Bois Caïman ceremony held on the eve of the Haitian Revolution to efforts by President François “Papa Doc” Duvalier to model his public image on that of Bawon Samdi, a Lwa of the dead. This complex history is recounted by University of Miami historian Kate Ramsey in her 2011 book The Spirits and the Law: Vodou and Power in Haiti. Ramsey not only examines why many popular expressions of Vodou were banned in Haiti between 1835 and 1987 but how Vodou adherents persevered in the face of religious persecution.
Of particular interest in this saga is one of several anti-Vodou provisions added to the Code Pénal and the Code Rural during the presidency of General Fabre Nicolas Geffrard, a devout Roman Catholic whose government sought “to put an end to all . . . pratiques superstitieuses that dishonor the nation.” Article 246 of the Code Pénal, as amended in 1864, reads in relevant part: “The use of substances that, without leading to death, produce a more or less prolonged lethargic state is also qualified as an attempt on the life of a person through poisoning . . . . If, as a result of this lethargic state, the person was buried, the attempt will be defined as an assassination.” To be clear, this prohibition and others like it were not accurate descriptive statements of the existence of these practices so much as performative texts intended to “repudiate the barbarism relentlessly attributed to Haiti by foreign detractors” and “signal the state’s willingness to ‘civilize’ and modernize rural Haiti.”
However, Americans visiting Haiti in the early years of the twentieth century—recall that the United States invaded Haiti in 1915 and occupied Haiti until 1934, during which time state persecution of Vodou adherents intensified—interpreted article 246 as evidence of the existence of zombies (an appropriation of the Haitian folkloric concept of the zonbi). Returning to the United States, they used references to this statute to disparage Haitian Vodou in highly racialized terms. Sensationalist literary works and films that incorporate article 246 (however miscited or poorly translated) include William Seabrook’s 1929 travelogue The Magic Island, Victor Halperin’s 1932 horror film White Zombie (complete with movie posters depicting a doctored version of the statute), and Inez Wallace’s May 1942 American Weekly Magazine article “I Walked with a Zombie” (later adapted into a 1943 film of the same name directed by Jacques Tourneur). This strange and troubling genealogy of the zombie movie is explored in an October 2014 In Custodia Legis blogpost by Anne Guha, now a reference librarian and adjunct professor of law at Georgetown University Law Center.
Of course, long before the rise of the zombie genre, the United States had never been a hospitable place for Vodou adherents. Even after the Civil War, the abolition of slavery, and the ratification of the Fourteenth Amendment, neither the First Amendment of the United States Constitution nor the guarantees of religious freedom enshrined in various versions of the Louisiana Constitution served to protect the diverse Vodou faith communities living in and around New Orleans in the late 19th and early 20th centuries. As Louisiana State University historian Kodi A. Roberts recounts in his 2015 book Voodoo and Power: The Politics of Religion in New Orleans, 1881–1940:
Ironically, some of the most significant influences on Voodoo in New Orleans were the municipal, state, and federal legal apparatuses used to prosecute workers in attempts to curtail or stamp out the practice of Voodoo. Almost none of the legal statutes under which workers were prosecuted were explicitly aimed at the practice of Voodoo. Federal authorities prosecuted workers who communicated with clients and did business through the U.S. Postal Service for fraudulent use of the mails. State officials became involved when suspects were accused of practicing medicine without a license or violating other regulations put in place by the state board of health. Finally, local courts, most frequently the recorder’s courts, created in New Orleans to deal with petty offenses, prosecuted workers for violating city ordinances against everything from loitering and vagrancy to malicious mischief and disturbing the peace.
Over time, efforts by authorities to use facially neutral laws to suppress Vodou abated as communities of adherents accumulated wealth and property by restructuring their organizations to resemble the traditional American church congregations that had long enjoyed legal protections like tax exemption.
However, freedom from formal harassment at the hands of the state did not bring with it the respect extended to other faiths, even in the American courtroom. As Danielle Boaz, now an Africana Studies scholar at the University of North Carolina at Charlotte, demonstrates in her 2011 law journal article Dividing Stereotype and Religion: The Legal Implications of the Ambiguous References to Voodoo in U.S. Court Proceedings, “media portrayals” that depict Vodou as “a religion based on zombies, cannibalism, child sacrifice, and black magic” produce stereotypes that serve as “the foundations for prejudicial legal arguments and decisions implying that the practice of ‘Voodoo’ indicates social and mental deficiencies.”
Yet, the legal problems facing Vodou adherents in Haiti and the United States today are not merely sociolinguistic—to the extent that any legal problem is not also a sociolinguistic one. As Boaz argues in her 2021 book Banning Black Gods: Law and Religions of the African Diaspora, “The twenty-first century has brought a renewed age of repression of African diaspora religions” like Vodou. In Haiti, relief organizations have been known to deny aid to Vodou adherents in the aftermath of disasters, using the threat of starvation to coerce disaster victims to abandon their traditional faith. Meanwhile, the proliferation of anti-Vodou rhetoric in the public square has led to a rise in physical assaults on Vodou adherents, desecrations of Vodou religious sites, and even lynchings. So far, the Haitian government has failed to adequately address these acts of violence, vandalism, and murder.
In the United States, Vodou adherents have been charged with possessing human remains. Admittedly, the ritual use of human remains by Vodou adherents is “one of the most contentious aspects of the right to practice some African diaspora religions,” for it is a controversy “grounded in the tensions between the Eurocentric notion that deceased persons should be interred in the ground and African-derived beliefs that the remains of the dead should be kept among the living to communicate and develop a relationship with the spirits of the departed.” In other instances, American Vodou adherents have been punished for wearing religious paraphernalia. In one 2015 incident, a North Carolina judge held a defendant in contempt for refusing to remove or place under his shirt several necklaces designed to protect him from evil in accordance with his Vodou faith. One wonders whether this or any judge has ever held a defendant in contempt for wearing a cross.
The legal academy has long sought to advance the rights of discrete and insular minorities, but it seems the plight of Vodou adherents has escaped us. Given the way Vodou faith communities are disproportionately affected by negative stereotyping, religious and racial discrimination, restrictive immigration policies, and the legacy of slavery and Jim Crow laws, one hopes that more legal scholars will begin examining how the law can be reformed to improve the lives of Vodou adherents seeking to freely practice their religion. As Boaz writes, “Hidden beneath a deep layer of . . . Hollywood legends, there are genuine belief systems . . . that warrant the same legal protections as other faiths.”
Copyright © 2021 Nicholas Mignanelli
 See, e.g., Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___, 140 S. Ct. 2367 (2020).
 See, e.g., Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___, 138 S. Ct. 1719 (2018).
 See, e.g., Tandon v. Newsom, 593 U. S. ____, 141 S. Ct. 1294 (2021).
 In this essay, I cautiously use the unmodified word “Vodou” to encompass Haitian Vodou, Louisiana Voodoo, and other expressions of this particular African diaspora religion. For more on the orthographic shift away from “Voodoo,” see Kate Ramsey, From ‘Voodooism’ to ‘Vodou’: Changing a US Library of Congress Subject Heading, 18 J. Hatian Stud., no. 2, Fall 2012, at 14.
 See 2 Statutes at Large 481 (William Waller Hening ed., 1823) (1680).
 Code Noir art. 16 (1685) (translation by John Garrigus).
 See Code Noir arts. 2 & 3 (1685).
 Kate Ramsey, The Spirits and the Law: Vodou and Power in Haiti (2011).
 Id. at 90.
 Id. at 89; see also Code Pénal, mis à jour et annoté art. 246 (2011).
 Ramsey, supra note 10, at 90–91.
 Id. at 160.
 Anne Guha, Does the Haitian Criminal Code Outlaw Making Zombies?, Library of Congress: In Custodia Legis – Law Librarians of Congress (Oct. 31, 2014), https://blogs.loc.gov/law/2014/10/does-the-haitian-criminal-code-outlaw-making-zombies/.
 Kodi A. Roberts, Voodoo and Power: The Politics of Religion in New Orleans, 1881–1940, at 158–59 (2015).
 See id. at 165–66.
 Danielle Boaz, Dividing Stereotype and Religion: The Legal Implications of the Ambiguous References to Voodoo in U.S. Court Proceedings, 14 Scholar 251, 298–99 (2011).
 Danielle Boaz, Banning Black Gods: Law and Religions of the African Diaspora 7 (2021).
 Id. at 31–32
 Id. at 32–33.
 Id. at 33.
 Id. at 53–54
 Id. at 54.
 Id. at 119–20
 Id. at 139.