Last Friday, an eleven-member panel of the Ninth Circuit Court dismissed a claim by Catholics in San Francisco that the City Board of Supervisors violated the Establishment Clause when they denounced Church teaching and urged the Archbishop of San Francisco to defy the Vatican. A little background is warranted.
Early in 2006, Cardinal William Levada, Prefect of the Congregation for the Doctrine of the Faith, issued a statement clarifying that Church agencies should not place children for adoption with same-sex couples. The statement had particular significance for Levada’s former Archdiocese of San Francisco, whose Catholic Charities agency had been placing children for adoption with same-sex couples.
In response to Cardinal Levada’s statement, the San Francisco Board of Supervisors passed a resolution denouncing the Vatican’s foreign meddling, demanding Levada retract his “hateful,” “insulting,” “discriminatory,” “callous” and ignorant directive, and urging current San Francisco Archbishop George Niederauer and Catholic Charities “to defy all discriminatory directives of Cardinal Levada.” Members of the Board of Supervisors also threatened to remove funding from Catholic Charities’ other programs unless they did defy the Vatican (The City was not funding the adoption program at Catholic Charities).
Two Catholic citizens of San Francisco joined the Catholic League in filing suit against the Board of Supervisors claiming their resolution violated the Establishment Clause by, among other things, sending a message of official state disapproval of Catholic teaching and entangling itself with the internal affairs of a church.
The case was dismissed by a district court, a three member panel of the Ninth Circuit and now, finally by the Ninth Circuit en banc by 8-3. Five members of the court found that the Catholic citizens had no standing, three that they had standing but no valid claim, and three that they had standing and a valid claim. Here’s what the last three succinctly found in dissent:
…a mere message of disapproval, even in the absence of any coercion, suffices for an Establishment Clause violation . . .The “message” in the resolution [that] a Catholic doctrine duly communicated by the part of the Catholic church in charge of clarifying doctrine is “hateful,” “defamatory,” “insulting,” “callous,” and “discriminatory,” showing “insensitivity and ignorance,” the Catholic Church is a hateful foreign meddler in San Francisco’s affairs, the Catholic Church ought to “withdraw” its religious directive, and the local archbishop should defy his superior’s directive. This is indeed a “message of . . . disapproval.” And that is all it takes for it to be unconstitutional.
As to the entanglement issue, the dissent found:
San Francisco entangles itself with the Catholic hierarchy when it urges the local archbishop to defy the cardinal. It is a dramatic entanglement to resolve that the Cardinal “as head of the Congregation for the Doctrine of the Faith” should withdraw his directive. The Catholic Church, like the myriad other religions that have adherents in San Francisco, is entitled to develop and propagate its faith without assistance and direction from government.
Seems straightforward to me, but on the Ninth Circuit sense is held by only a minority of three. There are several other positions on the jurisprudence of the Establishment Clause in the court’s opinion, including this bizarre finding:
We would have a different case on our hands had the defendants called upon Cardinal Levada to recant his views on transubstantiation, or had urged Orthodox Jews to abandon the laws of kashrut, or Mormons their taboo of alcohol. Those matters of religious dogma are not within the secular arena in the way that same-sex marriage and adoption are.
Translated, your freedom of religion encompasses all the superstitious voodoo you care to indulge in, but you may not have a religious dogma at variance with something the City cares about – like sex.
Daniel Piedra with the Thomas More Law Center which represented the plaintiffs said the center will ask the Supreme Court to review the dismissal. If that happens, the Supreme Court could issue a writ ordering the lower court to re-evaluate the case based on the Establishment Clause. As stated above, five of the members didn’t even touch the merits of the case leaving a 3-3 division on the actual Constitutional issue.
“The current jurisprudence on the Establishment Clause is an absolute mess,” Piedra said. “There is no coherent principle,” he said, a fact evident within the Ninth Circuit’s three-way opinion in this case.