(Note: This is a more thorough treatment of last week’s Legal Brief about Catholic League for Religious and Civil Rights v. City and County of San Francisco.)
In 2006 the City Council of San Francisco adopted a resolution that criticized the Catholic Church’s stance on homosexuality. Catholic Charities, like LDS Social Services, acts as an adoption agency. The Archdiocese of San Francisco had instructed the agency to not place children with gay couples, and the San Francisco City Council’s response called the policy an “insult to all San Franciscans” and “unacceptable to the citizenry of San Francisco, and also stated:
Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors
The Catholic League for Religious and Civil Rights filed a 42 U.S.C. § 1983 civil rights suit against the City for violations of the Establishment Clause. That action was quickly tossed out on a 12(b)(6) motion for failure to state a claim, and the Catholic League appealed to the Ninth Circuit Court of appeals. The Ninth Circuit issued its ruing on Wednesday, and once again rejected the Catholic League’s claims.
At its heart, this case is an application of the misnomered Lemon test. As the Ninth Circuit cites it, the Lemon test permits government action if it “(1) has a secular purpose; (2) has a principal or primary effect that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.” Failure to meet any of the three factors will cause the action to fail constitutional scrutiny.
In what I believe is a flawed analysis, the Ninth Circuit held that the City’s statement passed the Lemon test. As an initial matter, it is worth pointing out that the so-called Lemon test can be somewhat misleading, since the balancing process was really established in two previous Supreme Court cases. Under U.S. v. O’Brien and Clark v. Community for Creative Non-Violence, the courts are to balance the secular purposes of the government with the principal or primary effect of advances/prohibits religion. This is essentially the same framework the Supreme Court established to deal with accidental interferences with religion or free speech. Under the O’Brien/Clark doctrine, an interference with religion is unconstitutional if the interference is intentional. I think it is clear that the City of San Francisco’s pointed statement intentionally targeted a specific denomination and criticized its beliefs.
The Ninth Circuit found that the City’s purpose was primarily secular. I can see good arguments on both sides, since sexual orientation equality is a valid secular purpose under California law. I’m not sure I agree that the City’s purpose was to establish equality — more likely it was to criticize the Catholic Church — but reasonably minds could differ. What I find untenable is the Ninth Circuit’s finding that the primary effect of the City’s resolution did not disapprove of religion.
This is not a well-crafted opinion. The Ninth Circuit’s language on pages 11-12 of the preliminary copy of the opinion is ambiguous at best, and may even evince the judges’ predispositions. That portion of the decision refers to the City’s secular interest in promoting same-sex adoption; if the City indeed had such a goal to support same-sex adoptions over heterosexual adoptions it would be unconstitutional.
Another significant flaw in the decision was pointed out by Richard Thompson, who argued the case on behalf of the Catholic League:
“This dismissal was based on grounds that the pleadings failed to state a claim under the rules of civil procedure. Although the panel correctly posited the rule that they must accept all of Plaintiffs’ allegations as true and draw all reasonable inferences in favor of the Plaintiffs, the court totally ignored the rule in its opinion and drew all inferences in favor the San Francisco including their intent in enacting the resolution without allowing Plaintiffs to engage in any discovery.”
Even though the decision was unanimous, Judge Marsha Berzon filed a concurring opinion that signaled at least some discomfort with government criticism of religious views. Citing Judge John Noonan’s dissent in the similar case American Family Association v. City and County of San Francisco, Judge Berzon wrote:
“. . .I am acutely aware 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 that 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.”
In my opinion, that line was crossed in both American Family and Catholic League.
The issue is probably not settled yet — the Thomas Moore Law Center, which conducted the appeal, plans on seeking rehearing en banc.
Photo credit: brothergrimm.