9th Circuit Says San Francisco's Criticism of Catholics Did Not Violate Establishment Clause

In Catholic League for Religious and Civil Rights v. City and County of San Francisco, (9th Cir., June 3, 2009), the U.S. 9th Circuit Court of Appeals rejected an Establishment Clause challenge to a strongly worded resolution passed by San Francisco's Board of Supervisors criticizing a directive from Catholic Cardinal William Levada instructing Catholic social service agencies to not place children in need of adoption with same-sex couples. Applying the Lemon test, the court found both a secular purpose and effect, as well as no entanglement. It said in part:

To be sure, the Board could have spoken with a gentler tone, but the strength of the Board’s language alone does not transform a secular purpose into a religious one.... [S]ame-sex adoption is "a secular dimension of the City’s culture and tradition that the City believes is threatened by the specific directive issued to the Archdiocese."... [T]he Board’s well-established practice of responding whenever the equality of gay and lesbian families is called into question necessarily colors the message conveyed by the Resolution. In adopting the Resolution, consistent with past practice, the Board sought to champion same-sex families and nondiscrimination as to gays and lesbians. An objective observer would understand as much.

Judge Berzon concurred, saying it was important that the resolution was limited in three ways: no regulation was attached to the resolution; the resolution was merely enacted; it was not made more permanent through plaques or ads; and the resolution was not repeated or pervasive. Yesterday's San Francisco Chronicle reported on the decision.