In Catholic League for Religious and Civil Rights v. City and County of San Francisco, (— F.3d —-, C.A.9 (Cal.), June 03, 2009), the United States Court of Appeals considered a church’s challenge to a city resolution that sharply criticized a position taken by the church on the issue of adoptions by same-sex couples.
Citing the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the court ruled that the resolution did not violate the establishment clause of the First Amendment to the U.S. Constitution because its primary purpose was secular, its primary effect neither advanced nor disapproved of religion, and it did not foster excessive government entanglement with religion.
Facts
In 2006, Cardinal William Levada of the Roman Catholic Church (“Church”) ordered Catholic Charities of the Archdiocese of San Francisco (“Catholic Charities”) to cease placing children in need of adoption with same-sex couples. The Board of Supervisors (“Board”) of the City and County of San Francisco (“City”) responded by passing a non-binding resolution urging Levada to withdraw his directive, criticizing him for “hateful and discriminatory rhetoric” and “insensitivity and ignorance,” among other things, and urging Catholic Charities to ignore his directive and to continue placing children with same sex couples.
The Catholic League for Religious and Civil Rights filed suit in U.S. District Court claiming that the resolution violated the establishment clause of the First Amendment because it expressed “disapproval of and hostility towards” the Church and its tenets, and seeking damages and an order enjoining the Board from taking anti-Catholic actions. The district court dismissed the Church’s complaint and the Church appealed.
Decision
The court invoked the three-part Lemon test to determine whether a government action violates the Establishment clause, saying that it passes muster if it 1) has a secular purpose; 2) has a primary effect that neither advances nor disapproves of religion; and 3) does not foster excessive government entanglement with religion.
It was clear, the court said, that the primary purposes of the Board’s resolution were not religious but secular; to protect the rights of same-sex couples and to provide care for children in need of adoption. The court also dismissed the Church’s argument that the hostile language of the resolution conveyed an unconstitutional message of disapproval of religion, reasoning that “the [B]oard’s language alone does not transform a secular purpose into a religious one.”
Secondly, the court ruled that the primary effect of the resolution was neither to advance nor disapprove of religion. The fact that the Board’s policy of supporting equal rights for same sex couples conflicted with Church tenets does not mean that the Board is disapproving of a religion, the court found. The Establishment clause does not prevent governments from enacting public policies simply because they are at odds with some religious views. Rather, it requires government neutrality among religions and between religion and non-religion, and the Board’s resolution did not violate that standard, the court concluded.
Finally, the court found there was no evidence that the resolution fostered any excessive entanglement with religion. It did not codify one strain of Catholic or other religious belief, nor did it intervene in a religious dispute. “Properly contextualized,” the court concluded, “the resolution does not have the purpose or primary effect of expressing hostility towards Catholic religious beliefs, and it does not foster excessive government entanglement with the Catholic Church.”
Accordingly, the judgment of the district court was affirmed.
Questions
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