Friday, November 6, 2009
En Banc Court to Hear Challenge to S.F. ‘Anti-Catholic’ Resolution
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has agreed to decide en banc whether the city and county of San Francisco violated the Establishment Clause by passing a resolution that the plaintiff said was “anti-Catholic.”
Chief Judge Alex Kozinski, in a brief order, said that a majority of the court’s nonrecused judges had agreed to en banc review in Catholic League for Religious and Civil Rights v. City and County of San Francisco, 06-17328.
The case deals with a non-binding resolution criticizing a Vatican official’s edict that Catholic social services agencies in the local archdiocese not place children with same-sex couples for adoption.
The panel affirmed U.S. District Judge Marilyn Hall Patel’s dismissal of a suit by the Catholic League for Religious and Civil Rights against the city and individual supervisors.
The 2006 resolution was spawned by a directive from Cardinal William Levada, head of the Congregation for the Doctrine of the Faith at the Vatican, which the Catholic League described in its complaint as the body responsible for maintaining “faith and morals throughout the Catholic world.”
The congregation was responsible for a 2003 statement, which the supervisors did not mention in their resolution but which the league referred to in the complaint, which says that allowing gays to adopt “would actually mean doing violence to these children.”
‘Insult’ to San Franciscans
The resolution declared that it was “an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City’s existing and established customs and traditions such as the right of same-sex couples to adopt”; that the church had adopted “hateful and discriminatory rhetoric”; that it had been “defamatory” towards same-sex couples by suggesting they would harm children; and that Levada was “ a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear;” and resolved:
“That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.”
The league alleged that the resolution, by its content and tone, violated the Establishment Clause by making hostility to the Catholic religion an official policy of the city. It asked for nominal damages and an injunction requiring the city to repeal the resolution and barring it from adopting similar pronouncements in the future.
Patel, however, applied the Supreme Court’s Lemon test for an Establishment Clause violation and found that the complaint did not state a cause of action. She held that the resolution had a secular purpose of promoting same-sex adoption, did not have a religious purpose or a primary effect of expressing hostility towards Catholicism, and did not excessively entangle government and religion.
While the church views same-sex adoption as a religious issue, she said, San Francisco views it as “a secular dimension of the City’s culture and tradition that the City believes is threatened by the specific directive issued to the Archdiocese.” The city, she said, was entitled to enact the resolution for the secular purpose of fostering its non-discrimination policies.
Judge Richard A. Paez, writing for the Ninth Circuit in June of this year, agreed.
Paez acknowledged that the city’s rhetoric was harsh, but said that fact did not preclude a conclusion that the resolution had a secular purpose.
The enactment, he said, must be placed in the context of San Francisco policy, which has consistently supported equality for gays and lesbians, and protection for same-sex couples in all walks of life, a policy with which Levada’s pronouncement was at odds. The fact that the resolution was passed within days of the directive, he said, also must be considered in determining what the supervisors’ purpose was.
“Keeping in mind the context in which the Resolution arose, the objective observer would conclude that the Board’s purpose in adopting the Resolution was to respond to a public action that would affect both its gay and lesbian constituents, as well as the children in the City and County’s jurisdiction,” the judge wrote. “The Board’s focus was on same-sex couples, not Catholics.”
Paez cited American Family Association v. City and County of San Francisco, 277 F.3d 1114 (9th Cir. 2002), which rejected a challenge to resolutions blaming the “Religious Right” and its denunciations of homosexuality for the “oppression” of, and violence against, gays and lesbians.
The judge also rejected the contention that by criticizing a specific religious directive, the board was excessively entangling itself with religion. He distinguished a Second Circuit ruling striking down a New York law attempting to regulate the sale of kosher food.
The court in that case noted that there are disagreements between Orthodox and non-Orthodox Jews as what qualifies specific products to be labeled kosher. The state, the court held, had intruded into those disagreements by passing a law that adopted the Orthodox position.
This is not what San Francisco did by passing the resolution, Paez said, because the non-binding resolution did not endorse one strain of Catholic belief over another, or intervene in the church’s internal affairs.
Senior Judge Procter Hug Jr. concurred in the opinion.
Judge Marsha Berzon concurred separately, emphasizing that the resolution was “linked to no affirmative governmental regulation nor displayed in any continuing fashion in any public location.”
The concurring jurist expressed sympathy for the view of Senior Judge John T. Noonan, who dissented in American Family, that “the Constitution assures religious believers that units of government will not take positions that amount to the establishment of a policy condemning their religious belief,” and suggested “resolutions such as the ones in American Family and the one in this case are near—if not at—the line that separates establishment of such a policy.”
The line was not crossed, Berzon opined, because the city did nothing “more intrusive and permanent” than pass a non-binding resolution.
“So, for example, a pervasive public campaign by a city to condemn Jews for not shopping on Saturday or Muslims from observing Ramadan because of the effect on the economy would probably trigger Establishment Clause concerns not here present,” she wrote.
Copyright 2009, Metropolitan News Company