Lead Opinion
Opinion by Judge KLEINFELD; Concurrence by Judge SILVERMAN; Partial Concurrence and Partial Dissent by Judge GRÁBER.
OPINION
A majority of the court has concluded that the plaintiffs have standing. A separate majority, for differing reasons, affirms the district court’s dismissal of the plaintiffs’ claim.
Parts I and II of this opinion are joined by Judges THOMAS, SILVERMAN, CLIFTON, BYBEE, and IKUTA. Part III of this opinion, addressing the merits of the plaintiffs’ claim, is a dissent, joined by Judges BYBEE and IKUTA. Five of us, including Chief Judge KOZINSKI and Judges RYMER, HAWKINS, and McKEOWN, conclude that the plaintiffs have no standing, as set forth in Judge GRABER’s opinion. Three of us, including Judges THOMAS and CLIFTON, concur in the judgment, concluding that although the plaintiffs do have standing, their claim fails on the merits, as set forth in Judge SILVERMAN’S opinion.
I. Facts
We address whether Catholics and a Catholic advocacy group in San Francis
Pope Paul III established the Congregation for the Doctrine of the Faith a half millennium ago.
San Francisco immediately responded with official hostility. The San Francisco Board of Supervisors adopted the resolution giving rise to this lawsuit. The resolution urges the Cardinal to withdraw his instructions; denounces the Cardinal’s directive as “meddl[ing]” by a “foreign country”; calls it “hateful,” “insulting,” and “callous”; and urges the local archbishop and Catholic Charities to “defy” the Cardinal’s instructions. Here is Resolution 168-06 in full:
Resolution urging Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican, 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.
WHEREAS, It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City’s existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need; and
WHEREAS, The statements of Cardinal Levada and the Vatican that “Catholic agencies should not place children for adoption in homosexual households,” and “Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children” are absolutely unacceptable to the citizenry of San Francisco; and
WHEREAS, 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; and
WHEREAS, Same-sex couples are just as qualified to be parents as are heterosexual couples; and
WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and
WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it
RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), 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.3
Plaintiffs sued the City, claiming that this official government resolution violates
II. Standing
The complaint alleges that plaintiffs are a Catholic civil rights organization and two devout Catholics who live in San Francisco. They aver that the resolution conveys a government message of disapproval and hostility toward their religious beliefs. It “sends a clear message,” they plead, “that they are outsiders, not full members of the political community.” They allege that they have been injured by “misuse of the instruments of government to criticize, demean and attack their religion and religious beliefs, thereby chilling their access to the government.” The individual plaintiffs aver that they “will curtail their activities to lessen their contact” with the city and county government, and the two members of the Board of Supervisors sued because of the resolution.
After raising the question of standing sua sponte, we asked the parties for letter briefs addressing it. The City and County conceded standing, arguing that “the individual plaintiffs have successfully pleaded standing, having alleged that they are members of the community who have had contact with the resolution and have suffered spiritual harm as a result.” Were the result otherwise, the municipality concedes, a resolution declaring Catholicism to be the official religion of the municipality would be effectively unchallengeable. The municipality also concedes that the Catholic League has “associational standing.”
“At bottom, ‘the gist of the question of standing’ is whether petitioners have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’ ”
Nevertheless, some of us have dissented on standing, so we address the issue. 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 representa
The constitutional requirement of standing has three elements: (1) the plaintiff must have suffered an injury-in-fact— that is, a concrete and particularized invasion of a legally protected interest that is actual or imminent, not conjectural or hypothetical; (2) the injury must be causally connected — that is, fairly traceable— to the challenged action of the defendant and not the result of the independent action of a third party not before the court; and (3) it must be likely and not merely speculative that the injury will be redressed by a favorable decision by the court.
It is, of course, incumbent upon the courts to apply standing doctrine neutrally, so that it does not become a vehicle for allowing claims by favored litigants and disallowing disfavored claimants from even getting their claims considered. Without neutrality, the courts themselves can become accessories to unconstitutional endorsement or disparagement. Standing is emphatically not a doctrine for shutting the courthouse door to those whose causes we do not like. Nor can standing analysis, which prevents a claim from being adjudicated for lack of jurisdiction, be used to disguise merits analysis, which determines whether a claim is one for which relief can be granted if factually true.
Standing was adequate for jurisdiction in Establishment Clause cases in the Supreme Court in the following contexts: prayer at a football game,
We have concluded that standing was established in cases involving displaying crosses on government land,
The leading Supreme Court Establishment Clause case for the absence of Establishment Clause standing is Valley Forge Christian College v. Americans United for Separation of Church and State,
One has to read the whole Valley Forge sentence quoted, and not stop at “psychological consequence,” to understand it. A “psychological consequence” does not suffice as concrete harm where it is produced merely by “observation of conduct with which one disagrees.” But it does constitute concrete harm where the “psychological consequence” is produced by government condemnation of one’s own religion or endorsement of another’s in one’s own community. For example, in the school prayer and football game cases, nothing bad happened to the students except a psychological feeling of being excluded. Likewise in the creche and Ten Commandments cases, nothing happened to the non-Christians, or to people who disagreed with the Ten Commandments or their religious basis, except psychological consequences. What distinguishes the cases is that in Valley Forge, the psychological consequence was merely disagreement with the government, but in the others, for which the Court identified a sufficiently concrete injury, the psychological consequence was exclusion or denigration on a religious basis within the political community.
Plaintiffs allege that they are directly stigmatized by San Francisco’s actions. They allege that the stigmatizing resolution leaves them feeling like second-class citizens of the San Francisco political community, and expresses to the citizenry of San Francisco that they are. The cause of the plaintiffs’ injury here is not speculative: it is the resolution itself. Plaintiffs allege that their “Sacred Scripture” “presents homosexual acts as acts of grave depravity,” and that “Catholic tradition has always declared that homosexual acts are intrinsically disordered.” Plaintiffs believe
The concreteness of injury is sufficiently pleaded here because plaintiffs aver that: (1) they live in San Francisco; (2) they are Catholics; (3) they have come in contact with the resolution; (4) the resolution conveys a government message of disapproval and hostility toward their religious beliefs; that (5) “sends a clear message” “that they are outsiders, not full members of the political community”; (6) “thereby chilling their access to the government”; and (7) forcing them to curtail them political activities to lessen their contact with defendants.
Standing also requires redressability, that is, that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
inal damages for the violation of their rights. By declaring the resolution unconstitutional, the official act of the government becomes null and void.
[t]he basic purpose of the religion clause of the First Amendment is to promote and assure the fullest possible scope of religious liberty and tolerance for all and to nurture the conditions which secure the best hope of attainment of that end.
The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief.
III. Merits
I dissent with regard to the merits of the Board’s resolution.
“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”
We have not found another Establishment Clause case brought by people whose religion was directly condemned by their government. Though there have been lapses, as with Mormons and Jehovah’s Witnesses, tradition even more than law has generally restrained our national, state, and local governments from expressing condemnation or disrespect for anyone’s religion. George Washington set the tone for our governmental relationship to religion even before the First Amendment was ratified, in his 1790 expression of goodwill to the Hebrew Congregation in Newport, Rhode Island:
All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.39
The only recent Court decision on government hostility to a particular religion that we have found is the free exercise decision of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, where the Court notes that its Establishment Clause cases “have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.”
The municipality argues that its purpose was not to condemn Catholicism, but rather to foster equal treatment of people who are gay and lesbian. That is indeed a legitimate purpose, but we would not have this case before us if that were all that the resolution said. The San Francisco government would face no colorable Establishment Clause challenge had they limited their resolution to its fourth “whereas,” that “[s]ame sex couples are just as qualified to be parents as heterosexual couples.” San Francisco is entitled to take that position and express it even though Catholics may disagree as a matter of religious faith. But the title paragraph, the other five “whereas” clauses, and the “resolved” language are all about the Catholic Church, not same-sex couples.
The municipality argues that any reasonable recipient of its message would also be familiar with its forty-one other resolutions condemning discrimination against homosexuals and anti-homosexual speech in Russia,
The resolution also must satisfy the second prong of the Lemon test, that its “principal or primary effect must be one that neither advances nor inhibits religion ....”
As for entanglement, the resolution explicitly entangles itself in church governance. The City would entangle itself with judicial hierarchy, albeit not unconstitutionally, by urging a district judge to defy the court of appeals. And 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.
Lemon requires government to satisfy all three prongs to avoid an Establishment Clause violation.
The Establishment Clause might arguably have been limited, long ago, to prohibiting something like the Church of England, where taxes support the church and the government appoints its head, the Archbishop of Canterbury. Or the clause might have been limited to laws imposing fines for failure to attend church at proper times.
No practical or fair reading could construe the Establishment Clause as prohibiting only government endorsement and not government condemnation of religion. Though it is hard to imagine that government condemnation of the Catholic Church would generate a pogrom against Catholics as it might at another time or for a religion with fewer and more defenseless adherents, the risk of serious consequences cannot be disregarded.
Our Founding Fathers were well aware of the strife in Europe during the Thirty Years War, and in England in the English Revolution, over religion. They put together a nation of Protestants of various disagreeing sects, Catholics, and Jews, by excluding government from religion. The exclusion was not anticlerical, and did not invite government hostility to any church. Our revolution, unlike the French, Mexican, or Russian revolutions, had no element of anticlericalism. Our Bill of Rights established freedom of religion, not hostility to or establishment of any religion.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens by word or act their faith therein.71
Yet the San Francisco Board of Supervisors took upon itself authority to “prescribe what shall be orthodox” in Catholic doctrine. Government cannot constitutionally prescribe a religious orthodoxy and condemn heresy on homosexuality, or anything else. “[NJeither Pagan nor Mahometan, nor Jew, ought to be excluded from the civil rights of the commonwealth because of his religion.”
IV. Conclusion
Although three of us would reverse, a majority of this court concludes that we should affirm, either on standing grounds or on the merits. Accordingly, the judgment of the district court is AFFIRMED.
Notes
. Because the complaint was dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief could be granted, we take the factual allegations from the complaint to determine whether, if proved, they would establish a claim. Sacks v. Office of Foreign Assets Control,
. 1542, 468 years ago.
. S.F. Res. No. 168-06 (Mar. 21, 2006), available at http://www.sfbos.org/ftp/uploadedfiles/ bdsupvrs/resolutions06/r0168-06 .pdf.
. Catholic League for Religious and Civil Rights v. San Francisco,
. See Massachusetts v. EPA,
.Cf. Reed Elsevier, Inc. v. Muchnick,-U.S. -,
. Lynch v. Donnelly,
. Lujan v. Defenders of Wildlife,
. Vasquez v. Los Angeles Cnty.,
. Santa Fe Indep. Sch. Dist. v. Doe,
. Cnty. of Allegheny v. ACLU,
. Lynch v. Donnelly,
. Van Orden v. Perry,
. McCreary Cnty. v. ACLU of Ky.,
. Salazar v. Buono, -U.S.-,
. Engel v. Vitale,
. Wallace v. Jaffree,
. Sch. Dist. of Abington Twp. v. Schempp,
. Lee v. Weisman,
. Judge Graber’s argument appears to be that since this case does not involve a challenge to a religious display on government property, a religious exercise at a public ceremony, or a “specific governmental policy or statutory provision,” there is no standing. There is not a single standing case that limits Establishment Clause standing to these three categories. Most of the cases fall into them because American governments have typically been sympathetic to religion rather than hostile to it. Establishment Clause challenges, because of this typical governmental sympathy for religion, tend to challenge governmental endorsement. The Supreme Court, though, has carefully linked rejection of endorsements to rejection of condemnations in virtually every discussion of the subject. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
. Buono v. Norton,
. Vasquez v. Los Angeles Cnty.,
. Graham v. Deukmejian,
. Newdow v. Rio Linda Union Sch. Dist.,
. Barnes-Wallace v. City of San Diego,
. Judge Graber cites many, many standing cases and faults us for not discussing all of them to the same extent. The reason why all need not be patiently explicated is that not a single one of Judge Graber's cited cases involves a government condemnation of a par
.
. Id. at 468,
.
. Valley Forge,
. Id. at 485-86,
. Id. at 485,
. Judge Graber argues that standing is appropriate in the religious display cases, but not this case of condemnation of a religion, because those who challenge a religious display have frequent or regular contact with it and are harmed because they cannot freely use public areas. This distinction cuts the other way, however, as explained above. Living in a city that condemns one’s religion is a daily experience of contact with a government that officially condemns one’s religion. A plaintiff's having visual contact with a cross is immaterial, and would not raise a question if it were merely in a painting in the city art museum, because a reasonable person would not infer a government's position on a religion from the painting. The ‘'contact” that matters is in the mind — acquisition of the knowledge that the government endorses (or condemns) a religion. An official government condemnation of a religion unambiguously and inescapably conveys knowledge of that condemnation. Judge Graber’s notion that the public display cases involve restriction on movement relies on a false factual proposition. In none of the religious display cases is there any law prohibiting free use of public areas by those who are not adherents to the religion. The nonadherents simply feel uncomfortable in the presence of a display endorsing someone else’s religion. There is no principled basis for assiduously addressing that discomfort, yet treating as trivial the discomfort of those whose religion is condemned by their government. The plaintiffs are as affected by what the San Francisco government has done — condemning their religion'— as an atheist would be if the San Francisco government erected a giant cross on top of its biggest hill, on which he happened to live and which he would be walking past on the way to work. The government cannot constitutionally endorse a religion by erecting the cross; nor, analogously, can it condemn religion by erecting a gigantic sign on city hall of a cross with a line through it: a “no Christianity” sign with the design of a “no smoking” sign. The Board's resolution accomplishes the same thing as the aforementioned sign, but even more plainly and unambiguously. Symbols endorsed or adopted by a government are often ambiguous, but the words in this resolution are not. Consequently, this is an easier and more direct case for standing than any of the religious-symbolism cases cited by Judge Graber.
. Lujan v. Defenders of Wildlife,
. See, e.g., Powell v. McCormack,
. Sch. Dist. of Abington Twp. v. Schempp,
. Lynch v. Donnelly,
. Lynch,
. Critical Documents of Jewish History 3 (Ronald H. Isaacs & Kerry M. Olitzky eds. 1995).
. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
. See, e.g., Lynch,
.See, e.g., Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
.
. See Lamb's Chapel,
. Lemon,
. S.F. Res. No. 364-06 (June 13, 2006), available at http://www.sfbos.org/ftp/ uploadedfiles/bdsupvrs/resolutions06/r036406.pdf.
. S.F. Res. No. 220-00 (Mar. 13, 2000), available at http://www.sfbos.org/ftp/ uploadedfiles/bdsupvrs/resolutions00/r022000.pdf.
. S.F. Res. No. 73-05 (Jan. 25, 2005), available at http://www.sfbos.org/ftp/uploadedfiles/ bdsupvrs/resolutions05/r0073-05 .pdf.
. S.F. Res. No. 234-99; see Am. Family Ass’n v. City & Cnty. of San Francisco,
. S.F. Res. No. 308-03 (May 6, 2003), available at http://www.sfbos.org/ftp/uploadedfiles/ bdsupvrs/resolutions03/r0308-03.pdf.
. See, e.g., S.F. Res. No. 199-00 (Mar. 6, 2000), available at http://www.sfbos.org/ftp/ uploadedfiles/bdsupvrs/resolutionsOO/rO 199— 00.pdf.
. S.F. Res. No. 454-05 (June 14, 2005), available at http://www.sfbos.org/ftp/ uploadedfiles/bdsupvrs/resolutions05/r045405.pdf.
.Judge Silverman suggests that the resolution should be read in the context of San Francisco's history of promoting gay rights and supporting the rights of same-sex couples. A strong city policy of favoring gay rights, though, does not justify official attacks on religion. The San Francisco government used the group version of an ad hominem argument. Instead of a resolution simply favoring same-sex adoption and criticizing the arguments against it, the resolution attacked the religion of those against it. A secular motive for smearing anti-Catholic graffiti on a cathedral would not erase the anti-Catholic message conveyed. The Board of Supervisors went out of its way to characterize Catholicism as coming from a "foreign country[:] the Vatican,” its teachings as "hateful,” and implicitly compared modern-day Catholic officials to the Inquisition. These are traditional anti-Catholic tropes employed for centuries by anti-Catholic bigots. See, e.g., Thomas E. Watson, Rome's Law, Or Our’s — Which?, The Jeffersonian, Sept. 7, 1916, at 4 (using the same rhetorical device as the Board of Supervisors, Tom Watson, the Populist supporter of the Ku Klux Klan, characterized Catholic religious convictions as "laws of [a] foreigner [that] are absolutely antagonistic to ours.... The Pope's is the only church that is foreign; the only church whose laws antagonize democracy and republican institutions ...; the only church whose theology teaches murder, and whose literature is so obscene that she savagely prosecutes [those] who expose it”).
. McCreary Cnty. v. ACLU of Ky.,
. Int’l Union, United Auto., Aerospace & Agrie. Implement Workers of Am. v. Johnson Controls, Inc.,
. Lemon v. Kurtzman,
. See, e.g., McCreary Cnty.,
.Lynch v. Donnelly,
. Id.
. Id.
. See Cnty. of Allegheny,
. Though Henry II and Thomas Becket, as well as Henry VIII and Thomas More, explored the consequences of governmental direction to Church leaders and religious followers respecting their conformance with their Church’s directives, we Americans, since long before Lemon, have rejected what Madison called “intermeddling]” in church affairs. Lemon,
. Edwards v. Aguillard,
. Lynch,
. Id.
. Wallace v. Jaffree,
. Cnty. of Allegheny v. ACLU,
. See, e.g., The Laws and Liberties of Massachusetts 20 (Max Farrand ed., 1929) (1648) (requiring church attendance on the "Lords days” and any other days "as are to be generally kept by the appointment of Authoritie,” with anyone who violated this law being required to "forfeit for his absence from everie such publick meeting five shillings”).
. See Cnty. of Allegheny,
.San Francisco is quite a metropolitan city, with many people coming from other countries than our own. Some of those countries persecute their religious minorities — including Christians. See Lolong v. Gonzales,
. West Va. State Bd. of Educ. v. Barnette,
. John Locke, A Letter Concerning Toleration 56 (James H. Tully ed., Hackett Publ'g Co. 1983) (1689).
Concurrence Opinion
concurring:
I agree with Judge Kleinfeld that the plaintiffs have standing to sue, and therefore join Parts I and II of his opinion. However, we part company when it comes to the merits of the plaintiffs’ claims. In my opinion, the district court correctly dismissed the plaintiffs’ lawsuit because 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.
Government speech or conduct violates the Establishment Clause’s neutrality-only requirement when it: (1) has a predominantly religious purpose; (2) has a principal or primary effect of advancing or inhibiting religion; or (3) fosters excessive entanglement with religion. Lemon v. Kurtzman,
There is no denying that marriage and adoption are secular issues regulated by state law, even though they can (but do not necessarily) involve religious ceremonies and traditions. The same-sex marriage debate surely has religious significance to many, but it is also a hot-button political issue of considerable secular interest to the defendants’ constituents at large. The defendants passed their March 2006 resolution in direct response and contemporaneous to Cardinal Levada’s March 2006 directive. The title of the resolution refers explicitly to Cardinal Levada’s directive to local Catholic charities to “stop placing children in need of adoption in homosexual households.” Its stated purpose is to “urge[ ] Cardinal William Levada ... to withdraw [tjhis ... directive.” The reasons given are purely secular, not theological. For example, the resolution contains nothing like, “The Church has misread the Bible,” or “Our God approves of same-sex marriage.”
I agree with the district court that under Lemon’s first prong (the purpose prong), an “objective observer” who is “presumed to be familiar with the history of the government’s actions and competent to learn what history has to show” would conclude that the defendants acted with a predominantly secular purpose, i.e., to promote equal rights for same-sex couples in adoption and to place the greatest number of children possible with qualified families. Moreover, San Francisco has a well-known and lengthy history of promoting gay rights. See Catholic League v. City & County of S.F.,
Under Lemon’s second prong (the effect prong), an objectively reasonable observer familiar with the history of the government practice at issue here would conclude that the primary effect of the resolution was to promote same-sex adoption. See Am. Family,
Finally, under Lemon’s third prong (the entanglement prong), this resolution does not excessively entangle the defendants with religion. It was an isolated, non-binding expression of the Board of Supervisors’ opinion on a secular matter, which the plaintiffs have not alleged even potentially interfered with the inner workings of the Catholic Church. This type of one-off entreaty does not violate Lemon’s third prong; “[a]dministrative entanglement typically involves comprehensive, discriminating, and continuing surveillance of religion.” Vernon,
In American Family, we concluded that the Board of Supervisors did not violate the Establishment Clause by passing resolutions similar to those at issue here. The resolutions in American Family criticized a religious political coalition for its moral position on homosexuality, assailed the scientific and sociological bases for the coalition’s position, and urged secular television stations not to support the coalition’s message of intolerance. See Am. Family,
The plaintiffs would have us distinguish the resolution in this case from the one in American Family on the grounds that the Board directed this resolution toward a religious entity rather than a political one. But the mere fact that a resolution calls out a church or a clergyman cannot carry the day. Otherwise, the Establishment Clause would gag secular officials from responding to religious entities even when those entities have chosen to enter the secular fray.
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. The speech here concerns a controversial public issue that affects the civic lives of the citizens of San Francisco, religious and nonreligious alike. I would not construe the First Amendment to prohibit elected officials from speaking out, in their official capacities, on matters of such clearly civil im
I would affirm.
Dissenting Opinion
joined by dissenting on the issue of jurisdiction but concurring in the judgment:
Plaintiffs Catholic League for Religious and Civil Rights (“Catholic League”), Dr. Richard Sonnenshein, and Valerie Meehan brought this 42 U.S.C. § 1983 action against Defendants City and County of San Francisco, San Francisco Board of Supervisors President Aaron Peskin, and Supervisor Tom Ammiano, challenging their enactment of Resolution of March 21, 2006, No. 168-06. Plaintiffs argue that the resolution violates the Establishment Clause of the First Amendment by impermissibly attacking Plaintiffs’ religion, Catholicism. The resolution concerns a Catholic cardinal and his directive to Catholic Charities CYO of San Francisco (“Catholic Charities”), a non-profit provider of social services, on the topic of adoption by same-sex couples. I would not reach the merits of this dispute. Instead, I would hold that we lack jurisdiction over this case because Plaintiffs lack Article III standing.
The doctrine of standing requires that Plaintiffs demonstrate a concrete and particularized injury caused by the passage of Resolution No. 168-06. But the resolution plainly applies (albeit in a non-binding, hortatory way) only to persons and entities other than Plaintiffs. Plaintiffs do not allege any form of concrete and particularized injury resulting from the resolution; they allege only a deep and genuine offense. It is a bedrock principle of federal courts’ limited jurisdiction that a person’s deep and genuine offense to a defendant’s actions, without more, generally does not suffice to confer standing. Here, Plaintiffs do not allege more.
The doctrine of standing not only ensures robust litigation by interested parties, but also protects the interests of those potential plaintiffs who have chosen, for whatever reason, not to bring suit. Plaintiffs’ allegations suggest that several entities and individuals — including Cardinal Levada, Archbishop Niederauer, and Catholic Charities — likely have standing. Just as much as we must resolve all cases within our jurisdiction, we also must respect the decision by those persons and entities not to sue.
Because a majority of the en banc panel holds that we have jurisdiction, I dissent from that portion of the disposition. But, because I agree with the judgment affirming the district court’s dismissal of the action, I concur in the judgment.
FACTUAL AND PROCEDURAL HISTORY
Catholic Charities is an agency of the San Francisco Archdiocese of the Catholic Church. It operates as a non-profit provider of social services in the Bay Area. Until 2006, Catholic Charities’ services included placing children with adoptive parents.
In March 2006, Cardinal William Joseph Levada, the head of the Congregation for the Doctrine of the Faith, issued a directive to Catholic Charities. The directive instructed Catholic Charities to stop placing children in need of adoption with same-sex couples. The San Francisco Board of Supervisors responded by unanimously adopting a non-binding resolution:
[Resolution urging Cardinal Levada to withdraw his directive to Catholic Charities forbidding the placement of children in need of adoption with same-sex couples]
Resolution urging Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican, 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.
WHEREAS, It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City’s existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need; and
WHEREAS, The statements of Cardinal Levada and the Vatican that “Catholic agencies should not place children for adoption in homosexual households,” and “Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children” are absolutely unacceptable to the citizenry of San Francisco; and
WHEREAS, 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; and
WHEREAS, Same-sex couples are just as qualified to be parents as are heterosexual couples; and
WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and
WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it
RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), 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.
Resolution of Mar. 21, 2006, No. 168-06 (bracketed sentence in original). According to the complaint, Defendants also threatened to withhold funding from Catholic Charities if that organization refused to place children with same-sex couples.
Soon thereafter, Plaintiffs brought this action. Plaintiffs allege that the resolution violates the Establishment Clause of the First Amendment. They seek “nominal damages, a declaration that this anti-Catholic resolution is unconstitutional, and a permanent injunction enjoining this and other official resolutions, pronouncements, or declarations against Catholics and their religious beliefs.” In the complaint, Plaintiffs identify themselves and their injuries as follows:
Plaintiff Catholic League is the nation’s largest Catholic civil rights organization. Founded in 1973, the Catholic League defends the right of Catholics— lay and clergy alike — to participate in American public life without defamation or discrimination. The Catholic League has approximately 6,000 members who reside in the City and County of San Francisco. The Catholic League and its members object to, and have been injured by, the anti-Catholic resolution adopted by Defendants. Defendants’anti-Catholic resolution attacks the deeply held religious beliefs of Catholics, conveys the impermissible, state-sponsored message of disapproval of and hostility toward the Catholic religion, and sends a clear message to Catholic League, its members, and others who are adherents to the Catholic faith that they are outsiders, not full members of the political community.
Plaintiff Dr. Richard Sonnenshein is a resident of the City and County of San Francisco. He is a devout Catholic, and he objects to and has been injured by the anti-Catholic resolution adopted by Defendants. Defendants’ anti-Catholic resolution attacks Plaintiff Sonnenshein’s deeply held religious beliefs, conveys the impermissible, state-sponsored message of disapproval of and hostility toward the Catholic religion, and sends a clear message to Plaintiff Sonnenshein and others who are adherents to the Catholic faith that they are outsiders, not full members of the political community. Plaintiff Sonnenshein is a member of the Catholic League.
Plaintiff Valerie Meehan is a resident of the City and County of San Francisco. She is a third-generation San Franciscan and a devout Catholic. Plaintiff Meehan objects to and has been injured by the anti-Catholic resolution adopted by Defendants. Defendants’ anti-Catholic resolution attacks Plaintiff Meehan’s deeply held religious beliefs, conveys the impermissible, state-sponsored message of disapproval of and hostility toward the Catholic religion, and sends a clear message to Plaintiff Meehan and others who are adherents to the Catholic faith that they are outsiders, not full members of the political community.
Plaintiffs Sonnenshein and Meehan have had direct contact with and have been injured by the offending anti-Catholic resolution, which stigmatizes Plaintiffs on account of their religious beliefs and conveys a message to them that they are outsiders, not full members of the political community. Plaintiffs Sonnenshein and Meehan, who are citizens and municipal taxpayers of Defendant City and County of San Francisco, have been injured by the abuse of government authority and the misuse of the instruments of government to criticize, demean, and attack their religion and religious beliefs, thereby chilling their access to the government. As a result of Defendants’ anti-Catholic resolution, Plaintiffs Sonnenshein and Meehan will curtail their activities to lessen their contact with Defendants, thereby causing further harm. Plaintiff Catholic League, through its members, has been similarly injured and harmed by Defendants’ anti-Catholic resolution.
(Paragraph numbering omitted.)
Defendants filed a motion to dismiss for failure to state a claim. Defendants argued, on the merits, that the resolution does not violate the Establishment Clause. The district court agreed. In a published opinion, the district court held that the resolution does not violate the Establishment Clause and, therefore, dismissed the case. Catholic League for Religious & Civil Rights v. City of San Francisco,
Plaintiffs timely appealed. In a published opinion, a three-judge panel of our court unanimously affirmed, agreeing with the district court that the resolution does not violate the Establishment Clause. Catholic League for Religious & Civil Rights v. City of San Francisco,
The parties never raised the issue of Plaintiffs’ Article III standing, and neither the district court nor the panel addressed the issue. Shortly before the date of our
STANDARD OF REVIEW
We review de novo the district court’s dismissal for failure to state a claim. Barker v. Riverside Cnty. Office of Educ.,
DISCUSSION
Before reaching the merits of any case, including an Establishment Clause challenge, we must ensure that the plaintiff has Article III standing. Elk Grove Unified Sch. Dist. v. Newdow,
A. Article III Standing in Establishment Clause Cases
The Article III standing requirements “are familiar: The plaintiff must show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.” Newdow,
That imprecision is manifest in the Establishment Clause context. Courts regularly have noted that it can be difficult to determine whether an Establishment Clause plaintiff has alleged an “injury in fact” for purposes of Article III standing. See, e.g., Cooper v. U.S. Postal Serv.,
The Supreme Court has made clear that this sort of harm — injury to interests of a spiritual nature — can suffice to establish an “injury in fact” for purposes of Article III standing. See, e.g., Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
Even though the injury is spiritual in nature, the injury also must be direct and personal to the particular plaintiff. “ ‘The essence of the standing inquiry is whether the [plaintiffs] have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ” Larson v. Valente,
The plaintiffs in Valley Forge maintained that the Court’s earlier cases had held “that any person asserting an Establishment Clause violation possesses a ‘spiritual stake’ sufficient to confer standing.” Id. at 486 n. 22,
The courts have developed a substantial body of case law interpreting Valley Forge’s holding that the plaintiff must allege a direct and personal injury other than “the psychological consequence presumably produced by observation of conduct with which one disagrees.”
The requirement that the plaintiff demonstrate that the policy or provision applies directly to him or her is consistent with the courts’ approach in the second and third categories of cases. In religious exercise cases, the courts have addressed situations in which the plaintiff challenges
Those principles — established through longstanding and consistent analysis by the Supreme Court, by us, and by our sister circuits — constitute an important source of law and guide our analysis here. Accordingly, I cannot understand the majority’s assertion that my opinion requires that these “cases must somehow be distinguished ... or overruled.” Maj. op. at 1050. In no way do I suggest that these cases do not “retain their vitality” or that they “are overruled.” Id. To the contrary, I extract from these cases certain principles of law that we must apply here, to this case. Accordingly, my analysis of standing is entirely consistent with the existing body of law. It is the majority opinion that fails to explain how a conclusion of standing in this case is consistent with that substantial body of law — a body of law discussed in detail in this opinion but referenced only in passing, in list form, in the majority opinion.
Furthermore, the list in the majority opinion identifies the constitutional issues that either the Supreme Court or we have addressed in an earlier case. Maj. op. at 1049-50. The majority then concludes that, because the courts have addressed those issues, surely a finding of standing in this case is consistent with those cases. See id. at 1050 (“If we conclude that plaintiffs in the case before us have standing, we need not decide whether those cases retain their vitality or are overruled, because our conclusion would be consistent with them.”). But standing focuses on the plaintiff, not on the issue. That this case raises an interesting constitutional issue similar to issues addressed in previous cases is, quite simply, beside the point.
1. Governmental Policies or Statuto'ry Provisions
In many cases, including recent ones, plaintiffs have raised Establishment Clause challenges to specific governmental policies or statutory provisions. See, e.g., Larson,
2. Religious Exercise Cases
In a second category, plaintiffs have brought Establishment Clause challenges to some form of religious invocation at a public gathering or ceremony. See, e.g., Schempp,
The Eighth Circuit considered an interesting combination of these two ex
The court had “little trouble” concluding that the plaintiffs had standing to challenge the actions of the School Board member who read the prayer (and the other defendants, on the theory that they were complicit). Id. at 609. After all, the plaintiffs “were subjected to an unwelcome religious recitation at a school function.” Id. But whether the plaintiffs had standing to challenge the school’s “past policy of allowing prayer at graduation ceremonies[] present[ed] a much closer issue.” Id. The court acknowledged that the school’s announcement to the students at the mandatory rehearsal that, consistent with the school’s tradition, the graduation ceremony would include an invocation and benediction constituted some personal contact with an endorsement of religion. Id. at 609-10. Nevertheless, the court concluded that the plaintiffs lacked standing to pursue this claim, both because the plaintiffs’ contact with endorsement was insufficient and because the plaintiffs did not allege that the past policy caused them any particularized injury. Id.
3. Religious Display Cases
In a legion of cases, plaintiffs have challenged religious displays. See, e.g., Lefevre,
The courts consistently have applied the same general legal rules. A plaintiff has standing to challenge a religious display if he or she alleges a change in behavior (for instance, affirmative avoidance of the religious display). Rabun Cnty.,
A plaintiff who challenges a religious display meets the “direct and unwelcome contact” requirement by demonstrating some level of frequent or regular contact with the display during the course of the plaintiffs regular routine, such that the plaintiff was “forced” to encounter the display. For example, in Vasquez,
Unlike plaintiffs in Valley Forge, who were physically removed from defendant’s conduct, Vasquez is a member of the community where the allegedly offending symbol is located, and his contact with the symbol was frequent and regular, not sporadic and remote. In fact, ... the offending symbol “will be displayed on county buildings, vehicles, flags, stationary [sic], forms, commendations, uniforms, and elsewhere through LA County,” thereby forcing Vasquez into unwelcome “daily contact and exposure” of the most pervasive kind. These facts and allegations make Vasquez’s status fundamentally different from that of plaintiffs in Valley Forge.
Id. at 1252 (emphases added).
As another example, in Suhre,
Vasquez and Suhre are but two examples: In all other cases, too, the courts have held that the plaintiff has standing because of some level of regular or frequent contact with the religious display during the course of the plaintiffs routine business. See, e.g., Lefevre,
To be sure, courts have “recognized that ‘[t]he practices of our own community may create a larger psychological wound than someplace we are just passing through.’ ” Suhre,
Finally, the injury arises not purely from the psychological harm of viewing the display, but from the consequence of that harm. That is, a plaintiffs negative reaction to a religious display on public property interferes with the plaintiffs right to “ ‘freely use public areas.’ ” Ellis, 990 F.2d
B. Resolution No. 168-06 and Alleged Harm to Plaintiffs
Plaintiffs challenge Resolution No. 168-06. They allege that the resolution “attacks [their] deeply held religious beliefs,” “stigmatizes Plaintiffs on account of their religious beliefs,” and “sends a clear message ... that they are outsiders, not full members of the political community.” Plaintiffs allege that, as residents of San Francisco and members of the Catholic Church, the resolution “chill[s] their access to the government.” “As a result of [the] resolution, Plaintiffs ... will curtail their activities to lessen their contact with Defendants, thereby causing further harm.”
In some ways, Plaintiffs’ allegations evince a much stronger connection to the challenged governmental action than the plaintiffs’ allegations in Valley Forge. The plaintiffs in Valley Forge had never visited, and had no other connection to, the land in question. Here, Plaintiffs reside in San Francisco, and Defendants operate as the San Francisco municipal government. There is no geographical separation. Additionally, Plaintiffs view the resolution as a direct attack on their specific religion: Catholicism. There may be some stronger connection to the challenged government action when the action is perceived as a direct attack on one’s own religion, as distinct from a more general offense that the government is condoning or conveying religious messages with which one generally disagrees or to which one does not adhere. I acknowledge that Plaintiffs’ residency and their perception of the government action as attacking their specific religion distinguish this case in significant ways from the Supreme Court’s Valley Forge decision.
In other ways, however, the allegations in the complaint suggest that Plaintiffs are more akin to “concerned bystanders,” Valley Forge,
As discussed above, Plaintiffs are not the first to challenge a governmental policy or provision.
Plaintiffs do not, and could not, claim that they are subject to the provisions of the non-binding resolution. They do not claim to be subject to the government’s action — the “urging” of Cardinal Levada to retract his earlier directive. Instead, they claim harm from the “message” that the resolution’s terms “sends” to Plaintiffs. I agree with the District of Columbia Circuit that, “[wjhen 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.” In re Navy Chaplaincy,
Plaintiffs here have expressed then-deep and genuine offense. Their status as Catholics and San Francisco residents distinguishes their concerns, at least to some extent, from the concerns of others who may view the resolution as offensive. In the end, however, the resolution carries no legal effect and, perhaps most importantly, does not apply to Plaintiffs.
Plaintiffs effectively ask us to hold that any person has standing to challenge any governmental action on Establishment Clause grounds, so long as the plaintiff resides within the government’s territory and is offended by the action’s alleged attack on the plaintiffs religion. As discussed above, in Part A, a governmental action within one’s own community suggests that standing is more likely to lie. But the courts have declined to apply a per se rule that those who reside within the geographic boundaries of the government automatically have standing to challenge the government’s actions. Instead, the courts have required a showing that the challenged action actually affects these particular plaintiffs. Resolution No. 168-06 simply does not apply to Plaintiffs.
Nor does the fact that Plaintiffs perceive the resolution as a direct attack on their specific religion suffice to meet the “particularized” requirement.
The same analysis applies to our recent decisions involving atheist plaintiffs’ challenge to the national motto, “In God We Trust,” Lefevre,
Here, Plaintiffs challenge the resolution only. As in Lefevre and Rio Linda, Plaintiffs allege that the governmental action makes them feel like political outsiders and stigmatizes them because of their religious beliefs. And, as in Lefevre and Rio Linda, those allegations are insufficient. Plaintiffs’ contact with the resolution here is no greater than the plaintiffs’ contact with the federal statutes at issue in Lefevre and Rio Linda.
In those cases, we held, of course, that the plaintiffs had standing to challenge other statutes and policies — those statutes that put the plaintiffs in direct and unwelcome contact with the religious statement or religious exercise. But, in this case,
In conclusion, Plaintiffs’ allegations are, in all relevant respects, identical to the plaintiffs’ allegations in our recent decisions in Bio Linda and Lefevre and to the plaintiffs’ allegations in Flora. Just as the allegations in those cases were insufficient to confer standing, so too are Plaintiffs’ allegations here.
The majority fails to grapple with our holdings in Bio Linda and Lefevre. In particular, our holding in Lefevre,
Plaintiffs next argue, by way of analogy, that the resolution is similar to a religious display. They contend that, because they have been exposed to the “display,” they have alleged sufficient “contact” with the “display” to constitute an injury in fact. The complaint does not allege the manner in which Plaintiffs encountered the resolution or the form of “display” to which Plaintiffs object, but it appears that Plaintiffs mean that they have read the resolution. That fact does not confer standing.
To begin with, the resolution is not a display; it is an act (albeit a non-binding act) of a legislative body. Had Defendants reproduced the resolution, for example, in giant letters above the entrance to City Hall, Cnty. of Montgomery,
The mere existence of an enactment on the books (or virtual books) is not enough. In the religious display context, a plaintiff has standing when he or she encounters the display with some level of frequency or regularity during the course of the plaintiffs typical routine. It is that “direct and unwelcome contact” with the display that confers standing on the plaintiff. Here, Plaintiffs read the resolution. But apart from that initial contact, Plaintiffs allege no facts to suggest that they ever would have reason to read the resolution again, as part of their regular routine or otherwise (except to facilitate this litigation). In summary, even if I construed the resolution as a religious display, which it is not, Plaintiffs could not meet the “direct and unwelcome contact” requirement that courts consistently have applied in religious display cases.
In this regard, our recent decision in Caldwell,
like the plaintiffs in [religious display] cases, she also came into direct contact with a religious symbol on property owned by the government which she finds offensive; and that, just as the inability of plaintiffs in those cases freely to use public land sufficed as injury in fact, so too should it suffice that she is inhibited from freely using a government resource without running into religious symbols and theological statements which offend her.
Id. at 1131. We rejected her argument, because her interest in using the website was no different than anyone else’s: Her interest was “not sufficiently differentiated and direct to confer standing on her.... An interest in informed participation in public discourse is one we hold in common as citizens in a democracy.” Id. at 1133. Judge Fletcher wrote separately “to elaborate more fully why Caldwell lacks standing.” Id. (B. Fletcher, J., concurring). Judge Fletcher held that the plaintiff could not establish an injury in fact because:
Caldwell also does not allege that her contact with the offensive views expressed on the [government] website was “frequent and regular” or “unwelcome.” [Vasquez,487 F.3d at 1251-52 ], There is no allegation that Caldwell had any reason to visit the offending web page more than once. Nor did the single offending web page prevent Caldwell from freely using the rest of the [Understanding Evolution] website: the site comprises approximately 840 pages, each of which can be viewed without having first viewed the offending page.
Id. at 1134 (one citation omitted).
The same reasoning — of both the opinion and the concurrence- — -applies here. Plaintiffs’ interest in reading the resolutions of their municipal government is no different than anyone else’s interest and, therefore, “is not sufficiently differentiated and direct to confer standing.” Id. at 1133. Additionally, Plaintiffs here do not allege that their contact with the resolution was anything more than a one-time occurrence, and “[t]here is no allegation that [Plaintiffs] had any reason to visit the offending web page more than once.” Id. at 1134 (B. Fletcher, J., concurring). In sum, Plaintiffs’ allegations do not constitute an injury “other than the psychological consequence presumably produced by observation of conduct with which one dis
Plaintiffs next protest that their allegations constitute more than pure psychological harm, because they also allege that Defendants’ abuse of power has “ehill[ed] their access to the government. As a result of [the] resolution, Plaintiffs ... will curtail their activities to lessen their contact with Defendants, thereby causing further harm.” Plaintiffs refer us to cases in which courts have held that plaintiffs have standing because of an affirmative change in behavior to avoid a particular religious display. See, e.g., Ellis,
Plaintiffs’ allegations suffer from lack of specificity. It is unclear, for instance, when Plaintiffs “will” curtail their activities. It also is unclear what contacts Plaintiffs maintain with Defendants and how, if at all, they “will curtail their activities to lessen [that] contact.” These vague allegations are a far cry from the allegations sufficient to confer standing in religious display cases, in which the plaintiff alleges that he or she regularly sees the offending display and explains how his or her normal routine has changed so as to avoid those encounters. See, e.g., City of St. Charles,
Plaintiffs also point to the primary reason for the standing doctrine: “ ‘The essence of the standing inquiry is whether the [plaintiffs] have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ” Larson,
Plaintiffs also suggest that they must have standing to challenge the resolution because, if they do not have standing, no one would have standing, and that result cannot be correct. I disagree with Plaintiffs’ major premise and their minor premise. It is a bedrock principle that the federal courts are courts of limited jurisdiction. A wide variety of doctrines, including standing, prevent us from hearing cases — even otherwise meritorious cases— because of the constitutional limits on our authority. As a general matter, I simply cannot accept an argument that begins with the premise that the federal courts must have jurisdiction over a dispute. More specifically, the Supreme Court has roundly rejected Plaintiffs’ argument in this very context: “ ‘The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge,
Perhaps most importantly, however, Plaintiffs are wrong to suggest that, if they lack standing, then it is clear that no one would have standing to challenge the resolution at issue. To the contrary, it is likely that the parties who are personally the subjects of the resolution, such as Cardinal Levada, Archbishop Niederauer, and Catholic Charities, could demonstrate cognizable harm. The record is silent as to why those parties have not joined as plaintiffs. But their interests, which likely are directly affected, matter. “The Art. Ill aspect of standing ... reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order.” Valley Forge,
C. Municipal Taxpayer Standing
Plaintiffs also allege that they are municipal taxpayers of San Francisco and that they “have been injured by the abuse of government authority and the misuse of the instruments of government to criticize, demean, and attack their religion and religious beliefs.”
CONCLUSION
I recognize that the failure to reach an important, disputed constitutional issue leaves something to be desired. But I cannot ignore the constitutional bounds of our jurisdiction: “Article III, which is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power, is not merely a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit which a party [or, as the ease may be, both parties] desires to have adjudicated. ...” Valley Forge,
. For those reasons, it is incorrect to state that Defendants have "conceded standing.” Maj. op. at 1048. As the majority elsewhere recognizes, a party may not “concede” that we have subject matter jurisdiction. (A majority of the en banc panel has voted for Judge Kleinfeld's opinion with respect to standing but not with respect to other Parts. Because I cite only those Parts of Judge Kleinfeld's opinion that command a majority, I refer to his opinion throughout as the majority opinion.)
. We have rejected the proposition that the plaintiffs in Valley Forge lacked standing because their offense was grounded in ideological, rather than religious, beliefs. Buono v. Norton,
. I could not agree more that "[standing is emphatically not a doctrine for shutting the courthouse door to those whose causes we do not like.” Maj. op. at 1049. Indeed, at least some of those who join this opinion might have been inclined to agree that the resolution violates the Establishment Clause, had a proper plaintiff brought this case. Equally important, however, standing is emphatically not a doctrine for opening the courthouse door to everyone who wishes us to resolve their questions of constitutional law — however academically interesting those questions may be.
. In American Family, we did not discuss standing but, rather, asserted jurisdiction over the Establishment Clause issue sub silentio. Sub silentio holdings on jurisdiction occupy an interesting place in our jurisprudence. We cannot ignore such holdings. See E. Enters, v. Apfel,
. In the four cases following the "see also” indicator, I list the cases in which the Supreme Court did not discuss standing but, rather, asserted jurisdiction over the Establishment Clause issue sub silentio. As explained above, supra note 4, sub silentio holdings on jurisdiction can present interesting challenges. But, here, there are no difficulties because the facts of the listed cases plainly establish that the standing requirements I discuss in text were met in those cases (which may explain the Court's silence on the issue of standing).
. In the four cases following the "see also” indicator, I again list the cases in which the Supreme Court did not discuss standing but, rather, asserted jurisdiction over the Establishment Clause issue sub silentio. As explained above, supra note 4, sub silentio holdings on jurisdiction can present interesting challenges. But, here again, as with the cases noted in the preceding footnotes, the facts of the listed cases plainly establish that the standing requirements I discuss in text were met.
. The Seventh Circuit’s position on this point is a bit uncertain. Compare Zielke,
. The majority opinion incorrectly asserts that I conclude that this case does not involve a challenge to a governmental policy or provision. Maj. op. at 1050-51 n.26. To the contrary, Plaintiffs here challenge a resolution enacted by Defendants, and I agree completely with the majority that “an official resolution of the City of San Francisco is indeed a case involving a specific governmental policy.” Id. (internal quotation marks and brackets omitted). In text, I apply, as we must, the clear standing requirements that we and other courts have developed in cases involving challenges to governmental policies. The majority opinion fails even to acknowledge those requirements or, in large degree, even the relevant cases.
. It is easy to overstate this distinction. A person who adheres to a religion other than, for example, Christianity may perceive the government's placement of a cross on a hill as a direct negative attack on that person’s non-Christian religion, rather than as an affirmative endorsement of Christianity. Precisely for this reason, the courts have treated an endorsement and a disapproval as two sides of the same coin in the Establishment Clause context. See, e.g., Lynch,
. Although we need not reach the issue, we note in addition that Plaintiffs almost certainly cannot satisfy the "redressability'' requirement. Lujan,
. Although Plaintiffs have never argued that they have standing as municipal taxpayers, we must consider our jurisdiction independently of a party's arguments. Because they allege in the complaint that they are taxpayers of San Francisco, I address municipal taxpayer standing.