Catholics' Challenge To Critical San Francisco Resolution Dismissed By En Banc 9th Circuit

In Catholic League for Religious and Civil Rights v. City and County of San Francisco, (9th Cir., Oct. 22, 2010), the U.S. 9th Circuit Court of Appeals yesterday, en banc, dismissed a lawsuit brought by the Catholic League and two individual Catholics challenging on Establishment Clause grounds a resolution passed by the San Francisco (CA) Board of Supervisors. The Resolution, adopted in in 2006, "urg[ed] Cardinal William Levada ... 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." A 3-judge panel of the 9th Circuit had dismissed the case. (See prior posting.)  A majority of the eleven judges of the 9th Circuit en banc agreed that the case should be dismissed-- 5 would dismiss on standing grounds (without reaching the merits) and 3 would dismiss on the merits.  Conversely 6 judges concluded that the plaintiffs had standing, but only 3 concluded that plaintiffs should have prevailed on the merits.

Judge Kleinfield, joined by Judges Thomas, Silverman, Clifton, Bybee and Ikuta, comprised the majority finding standing.  Judge Kleinfield wrote:

The standing question, in plain English, is whether adherents to a religion have standing to challenge an official condemnation by their government of their religious views, and official urging by their government that their local religious representative defy their church. Their “personal stake” assures the “concrete adverseness” required.... Plaintiffs aver that not only does the resolution make them feel like second-class citizens, but that their participation in the political community will be chilled by the City’s hostility to their church and their religion.

Judge Graber, joined by Chief Judge Rymer and Judges Kozinski, Hawkins and McKeown would have dismissed on standing grounds. Judge Graber wrote:

I agree with the District of Columbia Circuit that, "[w]hen plaintiffs are not themselves affected by a government action except through their abstract offense at the message allegedly conveyed by that action, they have not shown injury-in-fact to bring an Establishment Clause claim."

On the merits, Judge Silverman, in an opinion joined by Judge Bybee and Ikuta, concluded:

duly-elected government officials have the right to speak out in their official capacities on matters of secular concern to their constituents, even if their statements offend the religious feelings of some of their other constituents. The key here is that the resolution in question had a primarily secular purpose and effect and addressed a matter of indisputably civic concern.

However Judge Kleinfield, joined by Judges Thomas and Clifton, wrote:

We have not found another Establishment Clause case brought by people whose religion was directly condemned by their government.... For the government to resolve officially that "Catholic doctrine is wrong," is as plainly violative of the Establishment Clause as for the government to resolve that "Catholic doctrine is right."

SF Appeal today reports on the decision. [Corrected].