Catholic League for Religious and Civil Rights v. City and County of San Francisco

above, would not Finally, discussed the new evidence For the reasons if “probably” acquittal result in an a new the National Research conclude we above, granted. trial were As outlined the FBI’s discontinued report and Council significant circumstantial evidence con- were no more than evidence use CABL to the nected the defendants robberies and testimo impeaching evidence of CABL fact, bombings. even without trial. also Berry’s We ny introduced evidence, evi- CABL there was sufficient reject Berry’s contention that the evidence Berry’s conviction. The support dence to false statement was more than Lundy’s district court did not abuse its discretion The false statement “merely impeaching.” by finding Berry’s new evidence Berry’s years almost five after occurred any not have made difference would bullet-manufacturing to a trial and related outcome of his trial. not at issue in his case. process that was Further, Lundy accused of fabri was not CONCLUSION IV. case, in this cating the results of tests reasons, reject foregoing For the we that she commit and there is no evidence Berry’s constitutional to his con- Thus, Berry’s trial. there is perjury ted request viction and his for a new trial. new evidence would little doubt § The district court’s denial of his credibility on only impeach serve to her therefore motion is retrial. AFFIRMED.

Berry on three cases—Mesarosh relies States, v. United (1956), Williams v. United

L.Ed.2d (9th Cir.1974), States, F.2d 105 (9th Chisum, v. 436 F.2d 645 United States Cir.1971) argument his that he de- —for CATHOLIC LEAGUE FOR RELI- appli- trial. have limited serves a new We RIGHTS; AND CIVIL Rich- GIOUS however, cases, cation of to those those Sonnenshein; Meehan, ard Valerie credibility “where the “rare” situations Plaintiffs-Appellants, key government Svholly witness has been v. discredited’ the witness’ commission of AND CITY COUNTY OF SAN FRAN- perjury involving in other cases substan- CISCO; Peskin; Ammi- Aaron Tom subject tially similar matter.” See United ano, capacity in his official as a Su- (9th Krasny, 607 F.2d States Supervisors, City pervisor, Board Cir.1979); see also United States Stof- County Francisco, Defen- (2d Cir.1975) sky, dants-Appellees. (“[T]his court has noted that Mesarosh is case, No. 06-17328. involving generis sui that rare situa- key ... tion where a witness had been Appeals, United States Court of to have conceded testi- Ninth Circuit. ... as to fied such bizarre fashion Argued and Submitted Dec. 2009. raise the inference that he was either Filed Oct. perjurer inveterate or a disordered mind.” (internal quotation citations and marks

omitted)). statement, Lundy’s limit- false trial, cry a far

ed to one date one high from this standard. KOZINSKI,

Before: ALEX Chief RYMER, Judge, PAMELA ANN KLEINFELD, ANDREW J. MICHAEL HAWKINS, DALY R. SIDNEY THOMAS, SILVERMAN, BARRY G. GRABER, P. M. SUSAN MARGARET McKEOWN, CLIFTON, R. RICHARD IKUTA, JAY S. BYBEE and SANDRA S. Judges. Circuit KLEINFELD; Opinion by Judge SILVERMAN; by Judge Concurrence Partial Concurrence and Partial Dissent by Judge GRÁBER.

OPINION

KLEINFELD, Judge: Circuit Muise, Joseph

Robert Thomas More majority A of the court has concluded Center, Arbor, MI, Law Ann appel- for the plaintiffs standing. sepa- have A lants. majority, reasons, differing rate for af- firms the district court’s dismissal of the Chhabria, City Deputy Attorney, Vince plaintiffs’ claim. Francisco, CA, appellees. San for the opinion I and II of joined Parts this are Newdow, Sacramento, CA, Michael for THOMAS, SILVERMAN, Judges amicus curiae Michael Newdow. CLIFTON, BYBEE, Part and IKUTA. Wilson, Bridget Rosenstein, Jeanne Wil- opinion, III of this addressing the merits Dean, P.L.C., CA, Diego, son & San for claim, dissent, plaintiffs’ joined is a DignityUSA. amicus curiae by Judges BYBEE and IKUTA. Five of us, including Judge Chief Chemerinsky, University Erwin KOZINSKI and of Cali- RYMER, HAWKINS, fornia, Irvine, CA, Judges and for amicus curiae Law McKEOWN, conclude that plaintiffs Brownstein, Budd, Professors Alan Jordan standing, Judge have no as set forth in Chemerinsky. and Erwin us, opinion. GRABER’s Three of includ- Blair-Loy, David ACLU Foundation of CLIFTON, ing Judges and THOMAS con- Counties, Diego Imperial San & San Die- judgment, cur in the concluding that al- CA, go, for amicus curiae ACLU though do standing, Diego Imperial & Counties. merits, their claim fails on the as set forth

in Judge SILVERMAN’S opinion.

I. Facts1 We address whether and Catholics advocacy group Catholic in San Francis- complaint proved, they 1. Because the was dismissed under would establish claim. Sacks 12(b)(6) Federal Control, Rule of Civil Procedure for Foreign Assets Office of failure to state a claim on which relief could (9th Cir.2006). We therefore state granted, allegations be we take the factual pleaded. the facts as whether, complaint from the to determine if right couples adopt and may sue the on account of same-sex co need; care for children in and denouncing their church official resolution religion. They may. WHEREAS, and of their doctrines The statements of Cardinal Levada and the Vatican “Catholic III Pope Congrega- Paul established the agencies place should not children for tion for the Doctrine of the Faith a half households,” adoption homosexual and ago.2 safeguards pro- It and millennium “Allowing adopted by per- children to be motes Catholic doctrine on faith and mor- living actually sons in such unions would Congregation addressed als. mean violence to doing these children” con- marriage adoption, homosexual and absolutely unacceptable to the citi- immoral, cluding that both were and that it Francisco; zenry of San and duty oppose the moral of Catholics to was WHEREAS, Such hateful and discrimi- decision, carry both. To out this doctrinal natory insulting rhetoric is both cal- Joseph Cardinal William Levada directed lous, insensitivity a level of shows the Archdiocese of San Francisco that ignorance which has seldom been agencies place should not children Catholic encountered this Board of Supervi- households. adoption homosexual sors; and immediately responded Francisco San WHEREAS, couples just Same-sex are hostility. with official The San Francisco qualified parents as to be as are hetero- Supervisors adopted Board of the resolu- couples; sexual and to this lawsuit. giving tion rise The reso- WHEREAS, Cardinal Levada is a decid- urges lution the Cardinal to withdraw his edly unqualified representative of his instructions; denounces the Cardinal’s di- city, people former home and of the “meddl[ing]” by “foreign a coun- rective they San Francisco and the values hold “hateful,” it try”; “insulting,” calls and dear; and “callous”; urges archbishop and the local WHEREAS, The Supervisors Board of “defy” and Catholic Charities to the Cardi- urges Archbishop Niederauer and the nal’s instructions. Here is Resolution 168- Catholic Charities of the Archdiocese of in06 full: defy discriminatory San Francisco to all urging Resolution Cardinal William Levada; now, directives of Cardinal Levada, capacity in his as head of the therefore, be it Congregation for the Doctrine RESOLVED, Super- That the Board of Vatican, Faith at the to withdraw his urges Levada, visors Cardinal William discriminatory defamatory and di- his capacity Congregation as head of the rective that Catholic Charities of the for the Doctrine of the Faith at the stop Archdiocese of Francisco San (formerly Holy Vatican known as Office placing adoption children in need of Inquisition), of the to withdraw his dis- criminatory defamatory with homosexual households. directive that Catholic Charities the Archdio- WHEREAS, It an insult to all San stop placing cese of San Francisco chil- a foreign country, Franciscans when adoption dren in need of with homosexu- Vatican, like the meddles with and al households.3 attempts negatively influence this great City’s existing and established City, claiming Plaintiffs sued the that government customs and traditions such as the this official resolution violates (Mar. 21, 2006), years ago. 3. S.F. Res. No. 168-06 avail- http://www.sfbos.org/ftp/uploadedfiles/ able at bdsupvrs/resolutions06/r0168-06 .pdf. religion municipali- the official of the Clause. The district be the Establishment ty effectively unchallengeable. be their lawsuit for failure would court dismissed municipality The also concedes that upon a claim which relief could be state has “associational stand- initially League affirmed.4 Catholic granted, and we We banc, ing.” rehear the case en then voted to dismissal on

now affirm the district court’s bottom, gist question “At ‘the differing grounds. standing’ petitioners is whether have ‘such personal stake in the outcome of the Standing II. controversy that as to assure concrete ad- complaint alleges are sharpens presentation verseness which organization and two rights civil Catholic the court upon largely of issues which so ”5 who live San Francis- devout Catholics depends for illumination.’ Had a Protes- conveys that the resolution They co. aver suit, brought tant Pasadena this he message disapproval government standing. not have had would Catholics It hostility toward their beliefs. Francisco, hand, on the other message,” they plead, a clear “that “sends interest, sufficient so well-established outsiders, not full members of the litigate doctrine entitles them to political community.” They allege whether anti-Catholic resolution vio- injured by have been “misuse of the Standing, lates Establishment Clause. criticize, de- it, instruments may or the lack of be intertwined with religion mean and attack their and reli- complaint upon whether the states claim beliefs, gious thereby chilling their access granted, which relief can be but it is not plain- government.” thing.6 Standing to the The individual the same is not about lawsuit; they tiffs aver that “will curtail their activi- who wins the it is about who is city ties to lessen their contact” with the allowed to have their ease heard in court. if county government, outrageous government and and the two mem- It would be Supervisors Board of could condemn reli- bers of the sued San Francisco citizens, gion yet because of the resolution. of its Catholic those citi- zens could not defend themselves court raising question standing After against preferment of government’s their sponte, parties sua we asked the for letter religious other views. addressing County briefs it. The Nevertheless, standing, arguing conceded that “the indi- of us have some dissented successfully pleaded standing, vidual have we address the so issue. standing, having alleged they standing question, plain English, that are is community religion have had to a members who whether adherents contact with the resolution and have suf- an official condemna- spiritual by fered harm as a tion result.” Were their their otherwise, views, municipality urging by govern- the result con- and official their cedes, a that declaring religious representa- resolution Catholicism ment their local Elsevier, Muchnick,-U.S. League Religious 4. Catholic and Civil Inc. v. Reed for 6.Cf. Francisco, (9th -, 1237, 1244, Rights v. San 567 F.3d 595 130 S.Ct 176 L.Ed.2d 17 Cir.2009), reh’g granted en banc (2010); Arbaugh Corp., v. Y & H 546 U.S. (9th Cir.2009). 511-12, 126 S.Ct 163 L.Ed.2d 1097 (2006). EPA, See Massachusetts 549 U.S. (2007) 167 L.Ed.2d 248 Carr, (quoting Baker v. (1962)). context ... because the Establish- “personal church. Their Clause defy their tive protect- aimed at primarily adverseness” ment Clause is the “concrete stake” assures message ing spiritual, non-economic interests of a sends required. “Endorsement outsiders, physical pecuniary, to a opposed that are nonadherents communi- nature.”9 political full members of the message to ad- accompanying an ty, and is, course, upon It incumbent insiders, favored herents doctrine neutral- apply courts political community. Dis- members of the ly, so that it does not become a vehicle for opposite message.”7 approval sends the allowing litigants favored claims only aver that not does the reso- Plaintiffs claimants from even disallowing disfavored them feel like second-class lution make getting their claims considered. Without citizens, participation that their in the but neutrality, the courts themselves can be- community will be chilled political come accessories to unconstitutional en- City’s hostility to their church and disparagement. Standing dorsement or religion. emphatically shutting not a doctrine for the courthouse door to those whose causes requirement The constitutional standing analysis, we do not like. Nor can (1) plain three elements: standing has adjudi- prevents being which claim from injury-in-fact— tiff must have suffered jurisdiction, lack cated for be used to is, particularized a concrete and inva disguise analysis, merits which determines interest that is legally protected sion of a a claim is one for which relief can whether imminent, conjectural actual or granted factually be if true. (2) injury must be caus hypothetical; is, fairly ally connected—that traceable— Standing adequate jurisdiction was challenged action of the defendant to the in Establishment in the Clause cases Su- independent ac preme following and not the result of the Court contexts: court; party prayer game,10 tion of a third not before the at a football a creche in a (3) likely merely county public park,12 it must be and not courthouse11 or displayed will be re Ten Commandments on the speculative by grounds capitol13 a favorable decision of a state or at a court- dressed house,14 at a concept display court.8 “The of a ‘concrete’ a cross national a moment of particularly park,15 prayer,16 is elusive the Establishment school si- 11. ACLU, 668, 688, 573, Cnty. Allegheny Lynch Donnelly, v. 492 U.S. 7. v. 465 U.S. 104 1355, (1984) (O’Connor, 3086, (1989). S.Ct. 79 L.Ed.2d 604 S.Ct. 472 109 106 L.Ed.2d J., concurring); Cnty. Allegheny see also v. ACLU, 3086, S.Ct. 492 U.S. 109 106 668, Lynch Donnelly, 12. v. 465 U.S. 104 S.Ct. (1989) (adopting 472 Justice O'Con L.Ed.2d 1355, (1984). 79 L.Ed.2d 604 Lynch). nor's rationale 555, Lujan Wildlife, 8. v. 504 U.S. 677, Perry, 13. Van Orden v. 545 U.S. 125 S.Ct. Defenders of 560-61, 2130, 112 S.Ct. 119 L.Ed.2d 351 2854, (2005). 162 L.Ed.2d 607 (1992); Valley Forge Christian Coll. v. Ams. State, Separation United Church and for McCreary Cnty. Ky., 14. v. ACLU 545 U.S. Inc., 464, 475-76, 752, 454 U.S. 102 S.Ct. 70 844, 2722, (2005). 125 S.Ct. 162 L.Ed.2d 729 (1982). L.Ed.2d 700 1246, Cnty., Vasquez Angeles v. 487 F.3d 9. Los Buono, -U.S.-, 15. v. 130 S.Ct. Salazar (9th Cir.2007). 1250 1803, (2010). L.Ed.2d 176 634 Doe, Indep. 10. Santa Fe Sch. Dist. v. 530 U.S. Vitale, 421, Engel U.S. 82 S.Ct. 290, 313-14, 2266, 16. v. S.Ct. L.Ed.2d 295 1261, (1962). 8 L.Ed.2d 601 (2000). standing school,17 public We have concluded that reading Bible lence school,18 religious a invocation at a involving display in cases was established pray, No was made to graduation.19 one land,21 government on remov ing crosses church, or to or in someone else’s pray seal,22 ing city disciplining a from a cross church, or limited support someone else’s physicians performed surgery who without own, or made they prayed in how on in a lawsuit Jeho blood transfusions from worship, prohibited worshiping, or Witnesses,23 “un including vah’s the words of these cases. The Court treated Pledge Allegiance,24 der God” (and therefore the concreteness Boy with the to admin contracting Scouts in all of standing) element of as sufficient city facility.25 a ister recreational The cases, though nothing was af- these even harm to the in those cases was religious irreligious fected but the or senti- spiritual psychological harm.26 That is plaintiffs.20 ments of the 38, Jaffree, merely respect to show 17. Wallace v. 472 U.S. 105 S.Ct. ment wishes 2479, (1985). friendship Christianity. 86 L.Ed.2d 29 for The resolution at issue, symbol, conveys message, like a a but Abington Twp. Schempp, 18. Sch. Dist. of symbol, message unambiguous. unlike 1560, 374 U.S. 10 L.Ed.2d 844 Judge opinion ignore Graber’s would (1963). plain Francisco’s denunciation of the Catholic unaccompanied by sym- Church because it is Weisman, 19. Lee v. public opinion ignores bolic art. The also (1992). 120 L.Ed.2d 467 govern- binding Supreme precedent Court on Judge argument appears 20. Graber’s to be speech: Speech ment "The Free Clause re- that since this case does not involve chal- government regulation private stricts lenge religious display ato speech; regulate government it does not property, at a cere- exercise speech.... This does not mean there mony, governmental “specific policy or a government speech. are no restraints on For statutory provision,” standing. there is no example, government speech comport must single standing There is not case that limits with the Establishment Clause.” Pleasant Establishment Clause to these three —(cid:127) Summum, -, City Grove categories. Most of the cases fall into them 1131-32, (2009). governments typically because American sympathetic religion been rather than hos- Norton, (9th 21. Buono v. 371 F.3d 543 Cir. challenges, tile to it. Establishment Clause 2004); Separation Church & State Comm. v. typical governmental sympa- because of this (9th Eugene, n. 2 thy religion, challenge governmen- tend to 1996) curiam). (per Cir. Court, Supreme tal endorsement. though, carefully rejection linked of en- Vasquez Angeles Cnty., v. Los rejection dorsements to of condemnations in (9th Cir.2007). See, virtually every subject. discussion of the e.g., Aye, Church the Lukumi Babalu Inc. v. 518, Deukmejian, 23. Graham v. 713 519 of Hialeah, City 508 U.S. 113 S.Ct. (9th 1983). Cir. 2217, (1992) (”[T]he First purpose Dist., Amendment forbids an official to dis- 24. Linda Newdow Rio Union Sch. ”). approve particular religion.... (9th Cir.2010). of a More- F.3d 1007 over, City an official resolution of the of San involving Diego, spe- Francisco is indeed a a 25. Barnes-Wallace v. ”case[] (9th Cir.2008). governmental policy,” condemning, cific F.3d 776 case, this the Catholic Church. The distinction Judge many, many standing 26. Graber cites Judge governmental Graber draws between a discussing display government’s cases and faults us for not all of and a official resolution why against symbol them to the same extent. The reason all cuts her view. A such aas city patiently explicated that a ambiguous. creche It need not be is hall lawn is single Judge may government one cited cases in- mean that endorses Graber's Christianity, may govern- government par- or it mean that the volves a condemnation of avowedly claim here. If we con- because the was plaintiffs college the harm sued plainly sectarian Christian institution plaintiffs that in the case before us clude operate would for sectarian Christian standing, we need not decide whether purposes. The Court held Americans vitality retain their or are those cases standing, only lacked United for a overruled, because our conclusion would be taxpayers suit under Flast Cohen29 but reject them. But if consistent with we also as a group by individuals and affected case, standing plaintiffs for this then action government respecting establish- those cases must somehow be distin- religion.30 they ment of The reason lacked (a task), guished convincingly difficult injury necessary standing the concrete for overruled. that, regardless gov- was of whether leading Supreme The Court Establish- ernment action violated the Establishment ment Clause case for the absence of Es- Clause, they had no concrete be- standing Valley Clause tablishment yond the offense to their desire to have the College v. Forge Christian Americans government conform to the Constitution.31 Separation United Church and for “They identify any to in- personal fail[ed] State,27 conveyed The had jury suffered them as a consequence of surplus property religious college, to a for error, alleged constitutional other than free, subject subsequent to a condition re- the psychological consequence presumably quiring thirty years solely use for as an produced observation of conduct with plaintiffs educational institution.28 The which disagrees.”32 plaintiffs one These religion. attempt Hardly. Eighth ticular church or to The Circuit held that explaining plaintiffs standing challenge provi- tease out of the rhetoric the hold- lacked to other, different, ings quite factual circum- sion in the making Arkansas Constitution language every incapable holding stances fails because the atheists office or True, witness, explained testify plaintiffs case a different result. there where the had many standing plans are so Establishment Clause being no to do either. Id. at 54. Their (as language opposed cases that the to the offended because were atheists was anal- holdings) ogized plaintiffs in some to the furnishes ammunition for offended but not affect- Judge Valley Forge up- College ed in Graber's view. Newdow v. Christian v. Ameri- Lefevre Separation standing challenge cans United holds federal statutes Church and State, 464, 752, requiring currency, 102 S.Ct. 70 L.Ed.2d “In God We Trust” on but Flora, (1982). See 692 F.2d at making 54. Un- not the federal statute “In God We cases, 638, like either of these here Trust” the national motto. 598 F.3d suing (9th Cir.2010). principle are not on the mere of dis- Newdow v. Rio Linda Union Francisco, agreeing with San but because of parent School District has dicta that a city’s disparagement direct attack and challenge child lacked the federal religion. adding pledge statute “under God” to the allegiance, but holds that had 27. 454 U.S. 70 L.Ed.2d requiring the California law (1982). pledge’s though recitation in the schools even required no child was to recite it. 597 F.3d (9th Cir.2010). Id. at 102 S.Ct. 752. Judge Graber’s regarding stretch from federal statutes tradi- 29. 392 U.S. 20 L.Ed.2d patriotic vague tional formulas that include (1968). general religiosity, and to a local ordinance condemning religious the church and views of 479-80, 485-86, residents, Valley Forge, 30. 454 U.S. at municipality’s some of the takes the language 102 S.Ct. 752. explanatory of these cases too far. Additionally, Judge argues that a Graber one- 485-86, page Eighth per opinion, Circuit curiam 31. Id. at 102 S.Ct. 752. Flora White, "indistinguishable” is from this case. (8th 1982) curiam). (per 692 F.2d 53 32. Id. at Cir. 102 S.Ct. 752. distinguishes the cases is quences. in Pasadena su- What like the Protestants were Valley Forge, psychological that the its anti-Catholic ing Francisco over merely consequence disagreement was resolution. others, government, with the but Valley Forge the whole has to read One sufficiently identified a which Court stop “psycho- and not quoted, sentence injury, psychological conse- concrete it. A consequence,” to understand logical denigration or on a quence was exclusion not suf- consequence” does “psychological religious political within the commu- basis produced harm it is fice as concrete where nity.33 of conduct with merely by “observation allege they directly Plaintiffs that are disagrees.” But it does consti- which one stigmatized by San Francisco’s actions. “psychologi- concrete harm where the tute by govern- They allege stigmatizing that resolu- consequence” produced cal is religion feeling one’s tion leaves them like second-class ment condemnation of own political Francisco com- of another’s one’s own citizens the San or endorsement citizenry community. example, munity, expresses For in the school and cases, game nothing San Francisco that are. The cause of prayer and football except plaintiffs’ injury specula- a here is not happened bad to the students being excluded. tive: it is the itself. Plaintiffs psychological feeling resolution allege Scripture” “pres- in the creche and Ten that their “Sacred Likewise Command- cases, grave acts as acts of nothing happened ments to the non- ents homosexual de- Christians, disagreed pravity,” and that “Catholic tradition has people or to who always or their reli- declared that homosexual acts are with the Ten Commandments basis, gious except psychological intrinsically conse- disordered.” Plaintiffs believe argues ap- religion. simply Judge Graber is The nonadherents feel un- cases, religious display presence display propriate in the but comfortable in the of a en- religion, dorsing religion. of condemnation of a someone else’s There is no this case principled assiduously addressing who a dis- basis for because those discomfort, frequent regular yet treating play have contact with as trivial the dis- it freely religion and are harmed because cannot comfort of those whose is condemned by government. public their as use areas. This distinction cuts however, way, explained govern- other as above. Liv- affected what the San Francisco condemning ing city religion religion'— a ment in a that condemns one’s has done— daily experience government a would be if the San Francisco of contact with atheist officially religion. government giant top condemns one’s A erected a cross on of its hill, plaintiff's having biggest happened a live visual contact with cross is on which he immaterial, question walking past way and would not raise a if which he would be on the government merely painting city a art it were in the to work. The cannot constitu- museum, person tionally religion by erecting because a reasonable would endorse a cross; nor, analogously, government's position a a reli- can it reli- not infer on condemn gion painting. gion by erecting gigantic sign city from the The ‘'contact” that hall of acquisition through matters is in the of the a cross with a line it: a “no Chris- mind— (or knowledge government tianity” sign design endorses with the of a “no smok- condemns) religion. government ing” sign. accom- An official The Board's resolution religion plishes thing unambiguously as the condemnation of same aforementioned inescapably conveys knowledge sign, plainly unambigu- of that but even more adopted by Judge ously. Symbols condemnation. Graber’s notion that endorsed public display ambiguous, cases involve restriction on are often but proposi- Consequent- relies on a false factual words in this resolution are not. movement religious display ly, tion. In none of the cases is this is an easier and more direct case for any religious-symbolism prohibiting there law free use of than by Judge who are adherents to the cases cited Graber. areas those religion damages that “Catholics inal for the violation of their part of their as By clearly rights. declaring im- the resolution uncon- obligation to state have an stitutional, act govern- the official of the nature of homosexual unions so as to moral null ment becomes and void.35 Even more all, morality, and above safeguard declaratory important, judgment would young people to erroneous exposing avoid people plaintiffs’ communicate of the sexuality marriage. and Clear ideas about community that government is con- un- opposition to homosexual emphatic and stitutionally from prohibited condemning Fran- duty of all Catholics.” San ions is religion, the plaintiffs’ any and that such religious directly disparages cisco these condemnation is itself to be condemned. through by calling its resolution beliefs prin- This would reaffirm the fundamental discriminatory,” “hateful and “insult- them ciple that callous,” ing and and and “insensitiv[e] purpose basic of the religion [t]he clause ignoran[t].” of the First promote Amendment is to injury The concreteness of is suffi and possible scope assure fullest ciently pleaded here because religious liberty and tolerance for all and (1) Francisco; they live in aver that: to nurture the conditions which secure (2) (3) Catholics; they they are have come hope best of attainment of that end. (4) resolution; in contact with the the res religious fullest realization of true conveys government message olution liberty requires government neither hostility and toward their reli disapproval engage in nor compel religious practices, (5) beliefs; that “sends a clear mes gious that it effect no among favoritism sects outsiders, “that not full sage” religion or between and nonreligion, and (6) political community”; members that it work deterrence noof “thereby chilling gov their access to the belief.36 (7) ernment”; curtail forcing them to political them activities lessen their con III. Merits tact with defendants. regard I dissent with to the merits of the Board’s resolution.

Standing requires also redressa is, bility, “likely, opposed that it is “The Establishment prohibits Clause merely speculative, will government making from to a adherence by a be redressed favorable decision.”34 religion any way person’s relevant in to a declaratory judgment Plaintiffs seek political community.”37 unconstitutional, the resolution is and nom- Government runs afoul of the Establish- Wildlife, Lujan conformity 34. v. 504 U.S. have been exercised in to the Con Defenders 555, 561, stitution; not, 112 S.Ct. 119 L.Ed.2d 351 and if to treat their ” omitted). (1992) (internal quotation (quoting ‘‘language marks acts as null and void.’ which time has not dimmed” from Kilbourn v. See, McCormack, e.g., 35. Powell v. 395 U.S. 168, 199, Thompson, 103 U.S. 26 L.Ed. 377 486, 506, 89 S.Ct. 23 L.Ed.2d 491 (1880))). (1969) (" ‘Especially competent prop- is it (the er for this court to consider whether its Abington Twp. Schempp, 36. Sch. Dist. v. legislature's) proceedings conformity are in 203, 305, 374 U.S. 10 L.Ed.2d laws, because, with the Constitution and liv- J., (1963) (Goldberg, concurring) (empha- constitution, ing under a written no branch added), quoted approval sis in Larson v. department supreme; of the Valente, 228, 246, 456 U.S. province duty judicial and it is the (1982). L.Ed.2d 33 department regularly to determine cases them, brought Lynch Donnelly, powers before whether (1984) (O’Connor, government, branch of the and even those laws, J., legislature concurring); Cnty. Allegheny in the enactment of see also of indulgence or dis- if it was one class through “endorsement ment Clause enjoyed people, sends of that another the exer- religion. Endorsement approval of rights. of their inherent natural they that are cise message to nonadherents outsiders, happily government For of the Unit- political not full members of States, gives bigotry ed which to no community, accompanying message assistance, insiders, sanction, persecution fa- no that to adherents community. requires only that who live under political of the vored members demean themselves opposite protection mes- its should Disapproval sends citizens, just it on all occa- complain good giving here of as sage.”38 Plaintiffs disparagement support.39 of their sions their effectual governmental such religion. govern- only recent Court decision hostility particular religion ment to a that not found another Establish-

We have have the free exercise decision we found is brought by people whose ment Clause case Aye, of Church the Lukumi Babalu Inc. directly condemned religion was of Hialeah, City where the Court notes Though there been government. of that “have its Establishment Clause cases lapses, as with Mormons and Jehovah’s principle often stated the the First Witnesses, than tradition even more law purpose Amendment forbids an official national, our generally has restrained disapprove particular religion of a or of state, from governments express- and local case, religion general.”40 along That ing disrespect any- condemnation Court, many opinions other George Washington religion. one’s set principle stands for the governmental relationship tone for our legitimate has no role under the Establish- religion before the First even Amendment judging ment be- Clause ratified, expression in his 1790 was people by praise liefs of the goodwill Congregation to the Hebrew —either principle denunciation.41 This requires Newport, Rhode Island: nullify govern- we San Francisco’s liberty All possess alike of conscience mental condemnation of Catholic doctrine. citizenship. and immunities of It is now of, criticized,42 Though that toleration spoken no more much Lemon v. ACLU, 573, 595, 3086, 42.See, e.g., Kiryas 492 U.S. 109 S.Ct. Bd. Educ. Joel Vill. Grumet, 687, 720, (1989) (adopting Sch. Dist. v. 512 U.S. L.Ed.2d 472 Justice O’Con 2481, (1994) (O’Con- 129 L.Ed.2d 546 Lynch). nor's rationale in nor, J., concurring) (warning that "the bad Lynch, may good. 38. test out the 465 U.S. 104 S.Ct. 1355 drive Rather than J., narrower, (O'Connor, taking opportunity concurring). to derive law, precise more tests from case courts History continually try patch up 39. Critical Jewish Documents tend to test, the broad (Ronald Kerry Olitzky making amorphous H. Isaacs & eds. it more and more M. This, afraid, 1995). hap- and distorted. I am ”); pened Chapel with Lemon Lamb’s v. Ctr. Dist., Aye, 40. Church the Lukumi Babalu Inc. v. Moriches Free 508 U.S. Union Sch. Hialeah, (1993) 113 S.Ct. 124 L.Ed.2d 352 J., (Scalia, (1992) (citing concurring) (lamenting that "[l]ike six cases). ghoul late-night some in a horror movie that repeatedly up grave sits in its and shuffles See, e.g., Lynch, abroad, 465 U.S. at being repeatedly after killed and bur- ("Nor ied, require does the Constitution our Lemon stalks Establishment Clause state; complete separation juris prudence again, frightening of church and it once the lit- accommodation, affirmatively attorneys....” mandates tle And children school tolerance, merely religions, detailing years all ... "[o]ver how no fewer forbids have, added)). hostility any." (emphasis sitting than five [then] toward Justices

1055 parents on Estab- fied to be as heterosexual cou- controlling remains Kurtzmcm43 violations, Francisco subject ples.” to sub- San is entitled to take Clause lishment position express though “endorse- that and it even emendations as the sequent may disagree “neutrality” principles have Catholics as matter of and ment” Lemon, paragraph, faith. But the title developed.44 Under clauses, purpose, “its the other five “whereas” and the must have a secular action all language effect must be one “resolved” are about primary principal Church, couples. not same-sex advances nor inhibits reli- Catholic that neither and it “must not foster excessive gion,” any municipality argues The rea religion.”45 entanglement recipient message sonable of its would also forty-one municipality argues purpose that its be familiar with its other resolu The Catholicism, rath- condemning against to condemn but tions discrimination was not who and equal people speech to foster treatment of homosexuals anti-homosexual er Russia,46 Florida,48 Germany,47 and lesbian. That is indeed a Alab gay are ama,49 state,50 purpose, by but we would not have a senator from another legitimate celebrities,51 case before us if that were all that the various and a football this gov- municipality resolution said. The San Francisco team.52 The claims that these homosexuals, would face no colorable Establish- show its concern is ernment Catholicism, had limited and that inference of anti- ment Clause “whereas,” decisively to its fourth Catholicism is because their resolution rebutted couples just quali- anyone sex would know that the councilman “[s]ame personally pencils uploadedfiles/bdsupvrs/resolutions06/r0364- opinions, own driven (the through 06.pdf. heart author of creature's today's opinion repeatedly), sixth has so”); joined opinion doing Cnty. Alle- (Mar. 13, 2000), 47. S.F. No. Res. 220-00 ACLU, 573, 669, gheny v. 492 U.S. http://www.sfbos.org/ftp/ available at 3086, (1989) (Kennedy, 106 L.Ed.2d 472 con- uploadedfiles/bdsupvrs/resolutions00/r0220- curring part) (expressing his view "that the 00.pdf. in its fundamen- endorsement test is flawed Comm, practice”); tals and unworkable in (Jan. 25, 2005), 48. S.F. Res. No. 73-05 avail- Regan, Ed. v. Pub. http://www.sfbos.org/ftp/uploadedfiles/ at able 840, (1980) (Stevens, S.Ct. J. bdsupvrs/resolutions05/r0073-05 .pdf. dissenting) (explaining that the Court should sisyphean trying "the abandon task of 234-99; Family 49. S.F. Res. No. see Am. 'blurred, indistinct, together patch Francisco, City Cnty. Ass’n v. & ") variable barrier' described Lemon (9th Cir.2002). 43. 403 U.S. 29 L.Ed.2d 6, 2003), (May 50. S.F. Res. No. 308-03 avail- (1971). http://www.sfbos.org/ftp/uploadedfiles/ at able Chapel, 44. See Lamb's 508 U.S. at n. bdsupvrs/resolutions03/r0308-03.pdf. (stating, response 113 S.Ct. 2141 to Justice "ghoul Scalia’s assertion that Lemon was a See, (Mar. 6, e.g., 51. S.F. Res. No. 199-00 movie,” late-night horror that "there is a 2000), http://www.sfbos.org/ftp/ available at proper way to inter an established decision uploadedfiles/bdsupvrs/resolutionsOO/rO199— Lemon, frightening might however it be 00.pdf. some, overruled”). has not been (June 2005), 52. S.F. Res. No. 454-05 Lemon, 612-13, 91 S.Ct. 2105. http://www.sfbos.org/ftp/ available (June 2006), uploadedfiles/bdsupvrs/resolutions05/r0454- 46. S.F. Res. No. 364-06 http://www.sfbos.org/ftp/ available 05.pdf. objective readily from discov emerges cial the resolution is Catholic. who introduced fact, any judicial psychoana erable without Why would seems bizarre. argument lysis of a drafter’s heart of hearts.”54 religious faith anyone personal know the of a malevolent motive does absence “[T]he familiar with Or be city each councilman? facially discriminatory policy a not convert municipal gov of their all the resolutions discriminatory a policy into a neutral with ernment, attacking then- just the one effect.”55 underlying why should the church? And satisfy the sec The resolution also must gov from other secular motive inferable test, of the Lemon its prong ond an anti- expressed ernment actions cure effect must be one “principal primary challenged? in the action purpose Catholic religion that neither advances nor inhibits underlying what the motiva Regardless of Here, argument the seems .”56 ... for the various individuals on may tion be all, resolution has no effect at be the must, council, city deciding a court the one, “principal primary” a let alone the government a action violates whether merely expres it is an ineffectual because Clause, the. words of Establishment read senti Supervisors’ sion of the Board of If zon government the the enactment.53 compulsory regulation ment and not a of ing prohibited synagogues all and board argument That cannot stand be behavior. city operating from within the mosques cause of the extensive Establishment limits, action not be saved even would jurisprudence government, where Clause history persuasively legislative ineffectuality, en arguably with similar avoiding of demonstrated a secular motive religion, dorses and the mere endorsement “[Ojffi Muslims. is deemed unconstitutional.57 strife between Jews and antagonize suggests only de- 53.Judge Silverman that the resolu- church whose laws ...; mocracy republican institutions tion should be read in the context of San murder, rights only theology history promoting gay church whose teaches Francisco's of rights that she supporting of same-sex cou- and whose literature is so obscene it”). favoring gay savagely prosecutes expose ples. strong city policy A of who [those] rights, though, justify does not official attacks McCreary Cnty. Ky., religion. government 54. v. ACLU 545 U.S. on The San Francisco 844, 862, 2722, group 162 729 used the of an ad hominem 125 S.Ct. L.Ed.2d version (2005). argument. simply fa- Instead of a resolution voring adoption criticizing same-sex Union, it, Auto., against Aerospace arguments attacked 55. Int’l United & the resolution religion against Agrie. Implement Workers Am. v. of those it. A secular Johnson Controls, Inc., 187, 199, smearing graffiti U.S. 111 S.Ct. motive for anti-Catholic 499 1196, (1991). cathedral would erase the anti-Catholic 113 L.Ed.2d 158 message conveyed. Supervisors The Board of Kurtzman, 602, 612, way went of its to characterize Catholi- 56. Lemon v. 403 U.S. 91 out 2105, (1971). coming "foreign country[:] L.Ed.2d 745 cism as from a S.Ct. 29 Vatican,” "hateful,” teachings its and im- 844, See, e.g., McCreary Cnty., plicitly compared modern-day 545 U.S. at Catholic offi- (display Inquisition. of Ten Command- cials to the These are traditional 125 S.Ct. Doe, ments); Indep. tropes employed for centuries Santa Fe Sch. Dist. v. anti-Catholic 2266, See, 290, bigots. e.g., E. 147 L.Ed.2d 295 anti-Catholic Thomas Watson, Law, Which?, (2000) (prayer game); Lee v. The before football Rome's Or Our’s— Weisman, Jeffersonian, Sept. (using S.Ct. at 4 505 U.S. (1992) (religious Super- invocation at same rhetorical device as the Board of L.Ed.2d visors, Watson, Cnty. Allegheny supporter graduation); Populist school Tom Klan, ACLU, 492 U.S. the Ku Klux characterized Catholic reli- (creche (1989) display gious foreigner L.Ed.2d 472 at a court- [a] convictions as "laws of house); Jaffree, absolutely antagonistic to ours.... Wallace [that] are (1985) (moment Pope's only foreign; is the church that is of the Lemon test prong proval.” The “effect” And that is all it for it takes to be unconstitutional.60 whether, irrespective of the govern- “asks purpose, practice actual ment’s under for entanglement, As the resolution ex- conveys message in fact of en- review plicitly entangles gover- itself church disapproval.”58 dorsement or That is to nance. The entangle would itself judicial hierarchy, albeit not unconsti- say, message disapproval, a mere even tutionally, by urging judge a district coercion, in the absence suffices defy appeals. the court of And San Fran- Clause violation under Establishment entangles cisco itself with the Catholic hi- Lemon. If conveys action erarchy it urges when the local archbishop message disapproval of religion, then defy to the cardinal. It ais dramatic it violates the Establishment Clause.59 entanglement to resolve that the Cardinal resolution, unlike, “message” Congregation “as head of the for the Doc- say, message might be inferred trine of the Faith” should withdraw his symbolic display, explicit: from some is Church, directive. The Catholic like the duly by Catholic doctrine communicated myriad religions other that have adherents part charge church in Catholic Francisco, develop is entitled to “hateful,” clarifying of doctrine is “defama- its faith propagate without assistance and “callous,” tory,” “insulting,” and “discrimi- government.61 direction from If the faith natory,” showing “insensitivity and igno- contrary leads to actions to San Francisco rance,” the Catholic Church is a hateful policy, like not placing adop- children for foreign affairs, meddler San Francisco’s tion with homosexual couples, city may ought the Catholic Church to “withdraw” abjure use of place its institutions to chil- directive, religious its and the local arch- dren, may but it entangle itself with bishop defy superior’s should his directive. of development religious Catholic doc- “message This is indeed a of ... disap- trine.62 The Congre- half-millennium-old school); voluntary prayer silence or at Sch. 59. Id. Abington Twp. Schempp, Dist. v. 374 U.S. of 83 S.Ct. 203, 1560, (1963) 60. Id. 10 L.Ed.2d 844 (Bible school); Vitale, reading Engel v. Cnty. Allegheny, 61. See 492 U.S. at (1962) U.S. 8 L.Ed.2d 601 ("[T]oday S.Ct. 3086 [the Establishment and Norton, school); (prayer at Buono recognized Free Exercise Clauses] are as (9th Cir.2004) (cross land); public guaranteeing religious liberty equality Separation City Church & State Comm. v. infidel, atheist, or the adherent of a (9th 1996) (same); Eugene, 93 F.3d 617 Cir. non-Christian faith such as Islam or Judaism. (9th Deukmejian, Graham v. 713 F.2d 518 government It is settled law that no official in 1983) (disciplining physicians per Cir. who may this Nation violate these fundamental surgery religious formed in accord with be rights regarding constitutional matters of con- liefs); see also Pleasant Grove v. Sum (internal quotation - science.” marks and cita- mum, -, 1125, 1139, U.S. omitted)). tion (2009) (Stevens, J., 172 L.Ed.2d 853 concur ring) (suggesting though govern that even Becket, Though Henry II and Thomas as expression impeded by ment is not the Free More, Henry well as VIII and Thomas ex- Clause, Speech "government speakers are plored consequences governmental di- proscrip bound the Constitution's other rection to Church leaders and fol- tions, including supplied by those the Estab respecting lowers their conformance with Clauses”). Equal lishment and Protection directives, Americans, their Church’s we since Lemon, 58.Lynch Donnelly, long rejected before what Madi- (1984) (O’Connor, “intermeddling]” S.Ct. son called in church af- J., Lemon, (Justice concurring) O’Connor’s rationale fairs. 403 U.S. at 91 S.Ct. 2105 Wallace, J., adopted (Douglas, concurring) (quoting was later the Court in James Madison, 2479). Against Memorial and Remonstrance any way person’s relevant in to a religion of the Faith is for the Doctrine gation ”67 community.’ political Constitution, entitled, develop under our in- governmental free of religious doctrine might argu- The Establishment Clause terference. limited, ably long ago, prohib- have been iting something Eng- like the Church of satisfy Lemon requires government land, support where taxes the church and to avoid an Establishment prongs all three head, government appoints its Even if we were to violation.63 Clause Archbishop Canterbury. Or the clause Francisco satisfied one conclude that San imposing have been limited to laws might them, satisfy all it would not or two of failure church proper fines for to attend crucial that a govern- three. is “What times.68 But it has not been so limited. not have the effect of com- practice ment it The Establishment Clause as has devel- municating message en- oped may by government be violated even disapproval religion.”64 dorsement expression action that is no more than of a Messages disapproval of endorsement or sentiment, by displays religious sym- relevant, reality religion “make government property. bols on None of political to status com- perception, compel anyone any- these violations to do 65 munity.” principle It is an “established thing anything, or refrain from but government pursue must course subjects usual are the of Establishment neutrality complete religion.”66 of toward prohibition. The Clause Court has assidu- Clause, very at the The “[Establishment] ously limiting avoided its doctrines to en- least, government appear- dorsement, from prohibits by saying “endorsement or dis- questions on of reli- ing position disapproval to take a so is much a approval,”69 as ‘making govern- or from adherence to violation as endorsement. For the gious belief (1785)); para. Religious 65. Id. Assessments 11 see Madison, James Address to the Conven- also (June 12, 1788), Virginia reprinted, of in 3 tion 38, 60, Jaffree, v. 66. Wallace Conventions, The Debates in the Several State 2479, (1985). S.Ct 86 L.Ed.2d 29 Constitution, Adoption the Federal On the as of by Recommended the General Convention at 573, ACLU, Cnty. Allegheny 67. v. 492 U.S. ed., (Jonathan Philadelphia, in 1787 330 Elliot 574, 3086, (1989) 109 S.Ct. 106 L.Ed.2d 472 1888) ("There right is not a shadow of in the Lynch, (quoting 465 U.S. at 104 S.Ct. general government to intermeddle with reli- J., (O’Connor, concurring)). it, gion. interference Its least with would be flagrant usurpation.”). to most contrast See, e.g., 68. The Laws and Liberties Massa- intermeddling, high such school case ed., (Max 1929) (1648) chusetts 20 Farrand graduation about "Ave Maria” at cited (requiring church attendance the "Lords Silverman, Whitehead, Judge Nurre v. days” any days gener- other "as are to be (9th Cir.2009), any F.3d 1087 did not involve Authoritie,” ally kept by appointment religion, just attack on an avoidance of what might appeared governmental anyone being to be a who violated this law re- religion. quired endorsement of Id. at 1098-99. to "forfeit for his absence from everie publick meeting shillings”). such five 578, 583, Aguillard, 63. Edwards 482 U.S. (1987) ("State 107 S.Ct. Cnty. Allegheny, 69. See 492 U.S. action violates the Establishment Clause if it 3086; Ball, Rapids Sch. Dist. Grand satisfy any to [the test] fails Lemon L.Ed.2d 473 U.S. prongs.”). Wallace, (1985); 472 U.S. at 2479. Lynch, 104 S.Ct. 1355 (O'Connor, J., concurring). officially gether that “Catholic a nation of Protestants of various ment to resolve plainly sects, Catholics, Jews, as violative of wrong,” disagreeing is is doctrine gov- Clause as excluding the Establishment from government religion. The to resolve that “Catholic doctrine anticlerical, ernment not exclusion was and did not right.” is hostility any church. government invite revolution, French, Our unlike the Mexi- reading or fair could con- practical No can, revolutions, or Russian had no ele- prohib- the Establishment Clause as strue Rights ment of anticlericalism. Our Bill of iting only government endorsement religion, freedom of established hostili- religion. condemnation of government ty any religion. to or establishment of imagine govern- it hard Though ment condemnation of the Catholic Church very a Bill purpose Rights generate pogrom against Catholics would subjects certain was withdraw from might it at another time or for a reli- controversy, of political vicissitudes and more defenseless ad- gion with fewer beyond them ma- place reach of herents, consequences the risk of serious jorities and officials and to establish disregarded.70 might be cannot Vandals legal principles applied by them as to be by knowledge that be emboldened the courts. agrees Catholic discriminatory. Pa- is hateful and Church If there is fixed star in our consti- might about driv- rishioners be concerned constellation, tutional it is that no offi- might that it ing their car to Mass for fear cial, high petty, prescribe can what keyed parking Zoning be lot. offi- nationalism, politics, shall be orthodox in deny might cials be emboldened to vari- religion, or opinion other matters of building grounds on permits ances and force citizens word or act their faith they might apply not to other churches. therein.71 city employees might Catholic fear for if show too much promotions their Supervi- Yet the San Francisco Board of by coming to on religiosity, as work Ash upon authority “pre- sors took itself to Wednesday with ash crosses on their fore- scribe what shall be orthodox” in Catholic very good why heads. There are reasons doctrine. cannot Government constitution- government the Constitution directs to ally prescribe religious orthodoxy and stay religious out of matters. heresy homosexuality, any- condemn on Pagan thing “[NJeither else. nor Maho- Founding Our Fathers were well aware metan, Jew, during Thirty ought nor to be excluded from Europe strife War, rights England English Years and civil of the commonwealth be- Revolution, religion. They put religion.”72 over to- cause of his America allows quite metropolitan city, pogrom, might put immigrants 70.San Francisco is of a but from many people coming gov- with from other coun- some other countries in fear of what a might tries than our own. Some of those countries ernment hostile to their church some- persecute religious day minorities —includ- do to them. Gonzales, ing Lolong Christians. See 1215, 1217-18, Barnette, (9th Cir.2005) 1221-22 71. West Va. State Bd. Educ. (describing persecuted how Christians are a 87 L.Ed. rev’d, Indonesia), (1943). minority in (9th Cir.2007) (en banc). An official resolu- Locke, government Concerning United States John A Letter tion in the Toleration ed., (James condemning religious Tully Publ'g a Christian denomina- H. Hackett Co. 1983) (1689). put tion would not American Catholics in fear denying marriage There is no faith and first-class citizen- loyalty to both regulated by adoption are secular issues ship. (but law, though they even can do state Conclusion IV. necessarily) involve ceremonies reverse, a Although three of us would marriage and traditions. The same-sex that we majority of this court concludes surely religious significance to debate affirm, standing grounds either on should many, political but it is also a hot-button Accordingly, judg- or on the merits. of considerable secular interest to issue AFFIRMED. court is ment of the district large. constituents at the defendants’ their March passed defendants 2006 reso- SILVERMAN, with Judge, Circuit response contempora- lution in direct CLIFTON, Circuit whom THOMAS March 2006 neous to Cardinal Levada’s join, concurring: Judges, directive. The title of the resolution refers explicitly to Cardinal Levada’s directive to agree Judge I Kleinfeld “stop placing local charities to Catholic sue, and there- adoption children need of homosexual join opinion. I and II of his fore Parts purpose households.” Its stated However, company when it comes part we Levada ... “urge[ ] Cardinal William plaintiffs’ to the merits of the claims. [tjhis ... withdraw directive.” The rea- my opinion, correctly the district court dis- secular, purely given theologi- sons plaintiffs’ duly- lawsuit because missed example, cal. For the resolution contains right officials have the elected like, nothing “The Church has misread the capacities out in their official speak Bible,” approves or “Our God of same-sex to their constit- matters of secular concern marriage.” uents, if even their statements offend the religious feelings of some of their other agree I with the district court that key constituents. The here is that (the prong purpose under Lemon’s first question primarily resolution in had a sec- “objective prong), observer” who is purpose ular and effect and addressed “presumed history to be familiar with the indisputably matter of civic concern. government’s competent actions and history speech

Government or conduct vio to learn what has to show” would that the acted a lates the Establishment Clause’s neutrali conclude defendants with (1) i.e., ty-only it: requirement predominantly purpose, pro when has secular (2) for predominantly religious purpose; equal rights couples mote same-sex advancing adoption place greatest of and to principal primary or effect or number (3) inhibiting religion; possible qualified fosters excessive of children with families. Moreover, entanglement religion. Lemon v. San Francisco has a well-known Kurtzman, lengthy history promoting gay 403 91 of (1971). rights. League City L.Ed.2d 745 & 29 We See Catholic S.F., previously applied tripartite County F.Supp.2d Lemon 946 & of judicial governmental expressions (taking test of al n. notice of other San hostility. rights leged religious Family promoting See Am. Francisco resolutions S.F., County couples). A City Ass’n v. & F.3d of same-sex reasonable ob (9th Cir.2002); see also server would consider the resolution in the Vernon (9th L.A., history and the F.3d context of both this Catho Cir.1994). The resolution in this case lic efforts to frustrate sat Church’s unabashed Francisco, prongs. adoption isfies each of Lemon’s three same-sex in San Family, American In we light concluded that political bailiwick. defendants’ context, an would con- Supervisors such observer the Board of did not this violate primary purpose that the behind clude by passing the Establishment reso- Clause promote same- was secular—to resolution lutions similar to those at issue here. The adoption. sex Family in American resolutions criticized religious political coalition its moral (the Lemon’s second prong Under homosexuality, position on assailed the sci- objectively reasonable prong), effect sociological entific and bases for the coali- history familiar with the observer position, urged tion’s secular television at here would practice issue support stations not to the coalition’s mes- primary effect of the conclude Family, of intolerance. See Am. sage promote adop was to same-sex resolution at 1119-20. One the coalition’s Family, 277 F.3d at 1122. tion. See Am. id,., ads, whole, placed Chronicle, in the San Francisco see as a the resolution’s Read message couples proclaimed is that “same-sex primary “God abhors form of parents to be as are just qualified sin,” as Id. including homosexuality. sexual couples” placing heterosexual and that passed 1119. The Board the resolutions in homosexual households does children ad, Id. in response to that and others. objectively them. An not do violence to 1119-20. conclude, observer would reasonable plaintiffs distinguish would have us purpose in the context of the they would resolution this case from the one in history Francisco’s prong, both San Family American grounds on the gay rights timing and the promoting Board directed resolution this toward a resolution, incendiary though defendants’ religious entity political rather than a one. be, expressing the de may it aimed But the mere fact that a resolution calls on the position fendants’ secular issue clergyman out a church or a carry cannot adoption. same-sex Otherwise, day. the Establishment under Lemon’s third Finally, prong gag Clause would secular officials from (the entanglement prong), this resolution responding entities even when excessively entangle the defen does those entities have chosen to enter the isolated, religion. dants with It was an fray. secular non-binding expression of the Board of We would have a different case on our matter, Supervisors’ opinion on secular upon hands had the defendants called Car- alleged which the have not even dinal Levada to recant views on tran- his potentially interfered with the inner work substantiation, urged or had Orthodox ings type of the Catholic Church. This kashrut, Jews to abandon the laws of does not violate Lemon’s entreaty one-off Mormons their taboo of alcohol. Those prong; entangle third “[a]dministrative matters of not religious dogma are within typically comprehensive, ment involves dis way the secular arena in the that same-sex of criminating, continuing and surveillance marriage adoption speech and are. The Vernon, religion.” 27 F.3d at 1399. To here concerns a controversial issue Whitehead, like effect is Nurre that affects the civic lives of the citizens of (9th Cir.2009), holding that a school Francisco, religious nonreligious San and single request district’s that student not alike. I would construe the not First play graduation, “Ave Maria” at because of prohibit Amendment elected officials music, about multiple complaints out, in speaking capaci- from their official entanglement did not constitute excessive ties, religion. clearly on matters of such civil im- insolent, principle It is a bedrock of federal stu- fense. speech if their port, even every right jurisdiction A a person’s worse. church courts’ limited that pid, or is- position on secular take a firm moral genuine and offense to a defendant’s deep sues, prevent public right it has no actions, more, but generally without does criticizing position from its officials Here, standing. Plaintiffs suffice confer when one especially those secular more. allege do not issues— the first salvo. clergy of its fires only doctrine of en- The affirm. I would by par- litigation sures robust interested ties, protects the of those but also interests GRABER, Judge, joined by Circuit chosen, plaintiffs who have for potential RYMER, KOZINSKI, Judge, and Chief reason, bring Plain- whatever not to suit. HAWKINS, DALY and MICHAEL allegations suggest tiffs’ several enti- McKEOWN, Judges, dissenting on Circuit Cardinal including ties individuals— concurring in jurisdiction but issue Levada, Niederauer, Archbishop and Cath- the judgment: likely standing. olic Just Charities — League Religious Plaintiffs Catholic for as much as we must resolve all cases with- (“Catholic Rights League”), Dr. and Civil jurisdiction, respect in our we also must Sonnenshein, Richard and Valerie Meehan persons the decision those and entities § brought this 42 U.S.C. 1983 action not to sue. County against Defendants Francisco, Francisco Board of San San majority panel Because a of the en banc Peskin, Supervisors President Aaron jurisdiction, I holds that we have dissent Ammiano, challenging Tom Supervisor But, portion disposition. from their enactment of Resolution of March I agree judgment because with the affirm- argue No. 168-06. Plaintiffs ing the district court’s dismissal resolution violates the Establishment action, I judgment. concur by imper- Clause of the First Amendment missibly attacking religion, Plaintiffs’ Ca- FACTUAL AND PROCEDURAL tholicism. resolution concerns Cath- HISTORY olic cardinal and his directive to Catholic (“Catholic Charities CYO San Francisco agency Catholic Charities is an Charities”), a non-profit provider of social Francisco Archdiocese of the Catholic services, topic adoption by on the same- operates non-profit pro- Church. It as a couples. sex I would not reach the merits Bay vider of social services Area. Instead, I hold that dispute. of this would in- Until Catholic Charities’ services jurisdiction we lack this over case because placing adoptive par- cluded children with standing. Plaintiffs lack Article III ents. standing requires The doctrine Joseph In March Cardinal William par- Plaintiffs demonstrate a concrete and Levada, Congregation the head of the passage ticularized caused Faith, the Doctrine of the issued a di- No. 168-06. But the resolution Resolution rective to The di- Catholic Charities. (albeit non-binding, in a plainly applies to rective instructed Catholic Charities way) hortatory only persons to and entities in stop placing adoption children need other than Plaintiffs. Plaintiffs do not al- couples. with same-sex The San Francisco lege any particular- form of and concrete resolution; Supervisors responded by Board of unani- injury resulting ized from the mously they allege only deep genuine adopting non-binding and of- resolution: urging Cardinal Levada to Catholic Charities of the Archdiocese of [Resolution his directive to Catholic Chari- withdraw defy discriminatory San Francisco to all forbidding placement ties of children Levada; now, directives of Cardinal adoption with cou- in need of same-sex therefore, be it ples] RESOLVED, That the Board of Su- urging Resolution Cardinal William pervisors urges Cardinal William Leva- Levada, capacity head of the his as da, in capacity his as head of the Con- Congregation for the Doctrine of gregation for the Doctrine of the Faith Vatican, at the Faith withdraw his at the (formerly Holy Vatican known as discriminatory defamatory and di- Inquisition), Office of the to withdraw rective that Catholic Charities of the discriminatory his defamatory and di- stop Archdiocese of San Francisco rective that Catholic Charities of the placing adoption children in need of stop Archdiocese of San Francisco plac- with homosexual households. ing adoption children need of WHEREAS, It is an insult to all San homosexual households. foreign country, when Franciscans like Resolution of Mar. No. 168-06 Vatican, attempts meddles with and (bracketed in original). sentence Accord- negatively great City’s influence this ing to the complaint, Defendants also existing and established customs and threatened to withhold funding from Cath- right traditions such as the of same-sex olic Charities if that organization refused couples adopt and care for children in place children with couples. same-sex need; and thereafter, Soon brought Plaintiffs this WHEREAS, The statements of Cardi- action. allege Plaintiffs that the resolution nal Levada and the Vatican that “Catho- violates the Establishment Clause agencies place lic should not children for They First Amendment. seek “nominal households,” adoption in homosexual and damages, a declaration that this anti-Cath- “Allowing adopted by per- children to be unconstitutional, olic resolution is and a living actually sons such unions would injunction permanent enjoining this and doing mean violence to these children” resolutions, other pronouncements, official absolutely unacceptable are to the citi- against or declarations and Francisco; Catholics zenry of San and complaint, beliefs.” Plain- WHEREAS, Such hateful and dis- identify injuries tiffs themselves and their criminatory rhetoric insulting is both as follows: callous, and and shows a level of insensi- tivity ignorance which has seldom Plaintiff League Catholic is the na- been encountered this Board of Su- largest rights tion’s Catholic civil organi- pervisors; and zation. Founded in the Catholic

WHEREAS, couples Same-sex are League right defends the of Catholics— just qualified parents as to be lay and clergy participate alike—to couples; heterosexual American public life without defamation WHEREAS, Cardinal or discrimination. The League Levada is a de- Catholic cidedly 6,000 unqualified representative approximately of his members who city, former home and of people County reside of San Francisco and the values hold League Francisco. The Catholic and its dear; and to, object members and have been in- WHEREAS, jured by, the anti-Catholic resolution Supervisors Board of urges Archbishop adopted Niederauer and the Defendants. Defendants’ conveys message a to them that attacks the and

anti-Catholic resolution Catholics, outsiders, religious beliefs of full deeply held are not members of conveys state-spon- impermissible, the community. political the Plaintiffs Son- message disapproval of and sored Meehan, nenshein and who are citizens hostility religion, toward the Catholic municipal taxpayers and of Defendant message to Catholic and sends clear Francisco, City County and of San members, and others who League, its injured by govern- been the abuse of the faith that are adherents to Catholic authority ment and misuse of the outsiders, full they are not members criticize, instruments community. political demean, religion attack and and Plaintiff Dr. Richard Sonnenshein is beliefs, religious thereby chilling their City County of San resident of the and government. access to the As a result Catholic, Francisco. He is a devout and resolution, of Defendants’ anti-Catholic objects injured by has been he and Plaintiffs Sonnenshein and Meehan will adopted by the anti-Catholic resolution curtail their activities to lessen their Defendants. Defendants’ anti-Catholic Defendants, thereby contact with caus- Plaintiff resolution attacks Sonnen- harm. ing further Plaintiff Catholic beliefs, deeply religious shein’s held con- members, League, through its has been veys impermissible, state-sponsored similarly injured and harmed Defen- hostility message disapproval dants’ anti-Catholic resolution. religion, toward the and sends a Catholic omitted.) (Paragraph numbering message clear to Plaintiff Sonnenshein Defendants filed a motion to dismiss for and others who are adherents to the outsiders, failure to state a claim. Defendants ar- Catholic faith that merits, not full political gued, members of the commu- on the the resolution nity. Plaintiff Sonnenshein is a member violate does not the Establishment Clause. League. of the Catholic agreed. published The district court In a opinion, Plaintiff is a resident the district court Valerie Meehan held that City County of San Francisco. resolution does violate the Establish- third-generation is a and, therefore, She San Franciscan ment Clause dismissed the and a Plaintiff devout Catholic. Meehan League case. Catholic Religious & for objects injured by to and has been Francisco, Rights Civil San adopted by anti-Catholic resolution De- (N.D.Cal.2006). F.Supp.2d fendants. Defendants’ anti-Catholic res- timely Plaintiffs appealed. publish- deeply olution attacks Plaintiff Meehan’s opinion, three-judge panel ed of our beliefs, religious conveys held the imper- affirmed, unanimously agreeing court missible, state-sponsored message of the district court that the resolution does disapproval hostility of and toward the violate Establishment Clause. religion, Catholic and sends a clear mes- League Religious Catholic & Civil sage to Plaintiff Meehan and others who Francisco, Rights City are adherents to the Catholic faith that (9th Cir.2009). granted We re- outsiders, they are not full members (9th hearing en banc. 586 Cir. political community. 2009). Plaintiffs Sonnenshein Meehan parties never raised the issue of have had direct contact with and have Article III standing, Plaintiffs’ and neither injured by offending been anti-Cath- resolution, court nor panel olic Plain- district addressed stigmatizes which Shortly tiffs on account of their beliefs issue. before the date of our

1065 judgment a argument, sponte we sua favorable will redress.” New en banc oral dow, 12, to file simultaneous 124 parties (citing directed the 542 U.S. S.Ct. 2301 standing III Wildlife, briefs on the issue of Article Lujan v. 504 U.S. Defenders of 560-61, 2130, to discuss the issue prepared 555, be 112 S.Ct. 119 L.Ed.2d argument. (1992)). oral though 351 Familiar the require be, may ments the Supreme Court also has OF REVIEW

STANDARD that standing precise cautioned is not a de novo the district court’s We review 11, doctrine. See id. at 124 2301 failure a claim. dismissal for to state (“The standing requirement partly is born Educ., Cnty. Barker v. Riverside Office of idea, of ‘an which is more than an intuition (9th Cir.2009). 821, F.3d than a rigorous explicit but less theo ry, prudential about the constitutional and DISCUSSION unelected, powers to the limits of an un case, reaching Before the merits of judiciary in representative gov our kind of an chal including Establishment Clause ”) (quoting Wright, ernment.’ Allen v. lenge, plaintiff we must ensure that U.S. 104 S.Ct. 82 L.Ed.2d standing. Article III Elk Grove Uni has (1984)); Valley Forge Christian Coll. Newdow, 1, 11, 542 U.S. Sch. Dist. fied Separation v. Ams. United Church (2004). 124 S.Ct. 159 L.Ed.2d 98 State, Inc., 464, 475, & 102 S.Ct. question standing subject “The is not (1982) 752, 70 (stating L.Ed.2d required waiver ...: to address We concept “the of ‘Art. Ill standing’ has not if the issue even the courts below have not complete consistency been defined with it, even if the fail to passed parties ... cannot [and] be reduced to one- the issue before us.” raise United States definition”). one-paragraph sentence or Hays, 515 U.S. imprecision That is manifest in the Es (1995) (brackets and in regu tablishment Clause context. Courts omitted). quotation ternal marks “This ob larly have noted that it can be difficult to ligation subject- to notice defects in ... determine whether an Establishment jurisdiction im special matter assumes plaintiff alleged “injury Clause portance question when constitutional purposes standing. fact” for of Article III presented. strictly In such eases we have See, Serv., e.g., Cooper v. U.S. Postal require adhered ” Cir.2009) (2d (“[S]o 489-90 far ments .... Bender v. Area Williamsport the [Supreme] Court has announced no Dist., 534, 541-42, Sch. handy principles analy reliable and (1986).1 1326, 89 L.Ed.2d 501 sis.... Lower courts are left to find a A. III Standing Article in Establish- injury threshold for and determine some

ment Clause Cases arbitrarily what whether threshold short, has been reached.... there is The Article III standing requirements uncertainty concerning apply “are familiar: The how to plaintiff must show that requirement the conduct of which he fact in the complains has Estab context.”), ‘injury caused him to suffer an in fact’ that lishment Clause cert. de- reasons, opinion respect 1. For those it is incorrect to state Kleinfeld's standing.” respect that Defendants have "conceded but not with to other Parts. Because Maj. op. majority only Judge at 1048. As elsewhere I cite those Parts of Kleinfeld's recognizes, may party opinion majority, not “concede” that that command a I refer to (A subject jurisdiction. opinion throughout majority opin- we have matter ma- his as the ion.) jority panel Judge of the en banc has voted for — 485, nied, -, 1688, challenges. Valley Forge, 176 454 U.S. at U.S. 130 S.Ct. (2010); Ange v. Vasquez L.Ed.2d 180 Los 102 S.Ct. 752. (9th 1246, Cnty., les 487 F.3d 1250 Cir. though injury spiritual Even the is

2007) (“The injury of a ‘concrete’ concept nature, injury the also must be direct and in the Establishment particularly is elusive “ personal particular plaintiff. to the ‘The context.”); Haywood Clause Suhre v. standing inquiry essence of the is whether (4th Cir.1997) 1083, Cnty., 131 F.3d 1085 Austin, (same); alleged person- such a Murray [plaintiffs] 947 v. of (5th Cir.1991) (same); 147, 151 Sala controversy al stake in the outcome of the 687, City Milledgeville, 812 F.2d din as to assure that concrete adverseness of (11th Cir.1987) (same). difficulty The 691 sharpens presentation which of issues stems, at from the nature of part, least upon largely depends which the court so “injury in fact.” most asserted Unlike for illumination of difficult constitutional cases, types plaintiff other in which the ” Valente, questions.’ Larson v. 456 U.S. physical injury pecuniary suffers a or a 228, 238-39, 1673, 72 S.Ct. L.Ed.2d 33 loss, in an plaintiff Establishment (1982) (quoting Duke Power Co. Car- usually case does not those Clause suffer Inc., Study Envtl. Group, olina 438 U.S. at types Vasquez, of harm. 487 F.3d 59, 72, 2620, 57 98 S.Ct. L.Ed.2d 595 Suhre, 1250-51; 131 F.3d at In (1978)). standing is not “[B]ut measured stead, plaintiff an Establishment intensity litigant’s of the interest or typically only Clause case asserts advocacy.” of his Valley Forge, fervor government’s injury action an has caused 486, at U.S. S.Ct. 752. an “[A]t in fact to “non-economic interests of a minimum, requires to a irreducible Art. Ill spiritual, opposed pecu physical niary, nature.” Vasquez, 487 F.3d [plaintiff] to personally ‘show he 1250-51; Suhre, see 131 F.3d actual inju- suffered some or threatened “ (holding that spiritual, ‘the value-laden 472, ry. ...’” (empha- Id. at 102 S.Ct. 752 plaintiffs’ beliefs are often most added) Gladstone, (quoting sis Realtors v. directly by an alleged affected establish Bellwood, 91, 99, Vill. 99 S.Ct. of religion” (quoting ment ACL U v.Ga. 1601, (1979)); 60 L.Ed.2d 66 see also Lu- Commerce, Inc., Cnty. Rabun Chamber of jan, 504 U.S. at 560 & n. 112 S.Ct. 2130 (11th Cir.1983) (per (holding “injury that an in fact” “must curiam))). plaintiff personal affect the in a and indi- The Supreme Court has made clear that added)). way” (emphasis plain- vidual A injury this sort of to interests of a “ harm — allege tiff showing ‘must facts that he is spiritual nature —can suffice to establish adversely himself ... part] affected [in “injury an in fact” purposes of Article put the decision as to whether review will See, III standing. e.g., Ass’n Data Pro- be in the sought hands of those who have a cessing Orgs., Serv. Inc. v. Camp, 397 U.S. ” direct stake in the outcome.’ Valley 150, 154, (em- Forge, 454 U.S. at 102 S.Ct. 752 (1970) (“A person family or a may have added) (quoting phasis Sierra Club v. Mor- spiritual stake First Amendment values ton, 405 U.S. give sufficient to standing to raise issues (1972)). requirement L.Ed.2d 636 The concerning Establishment personal injury part direct and “re- ”). But it equally Clause.... clear that regard autonomy flects a due for the asserted nature does not likely persons directly those to be most grant plaintiff carte blanche to federal- court by judicial resolution of Establishment Clause affected order.” Id. demonstrated, 467-68, 102 Doremus is insuffi- Valley Forge, brought an Estab plaintiffs impressionable cient—but because school- subjected transfer lishment Clause children were to unwelcome reli- to a from the federal gious land exercises or were forced to assume had religious organization. special Valley burdens avoid them.” question, the land in nor did never visited 22, 752; Forge, 454 U.S. at 487 n. 102 S.Ct. to it. have other direct connection 9, at 224 Schempp, see also 374 U.S. n. plaintiffs that the “fail[ed] The Court held (“The parties here are S.Ct. 1560 school by identify any personal injury suffered to parents, and their who are direct- children alleged con consequence them as a ly by practices affected the laws and error, psycholog other than the stitutional against which their are direct- complaints consequence presumably produced ical ed.”). of conduct with which one dis observation The have a substantial developed courts injury That sufficient to agrees. is not body interpreting Valley of case law ” Art. Ill.... standing under Id. confer Forge’s holding that the al- plaintiff must omitted). 485, 102 (emphasis lege personal a direct and other Valley Forge in main- plaintiffs The psychological consequence pre- than “the cases had tained that the Court’s earlier sumably produced by of con- observation any person asserting “that an Estab- held disagrees.”2 duct with which one 454 U.S. possesses ‘spir- violation a lishment Clause 485, Below, I 102 S.Ct. 752. describe standing.” confer itual stake’ sufficient to First, general categories of three cases. 22, Id. at 486 n. 102 S.Ct. 752. The Court here, directly I and most relevant describe plaintiffs’ and illustrated the er- disagreed a involving specific governmental cases raising chal- ror reference to two cases policy statutory provision, or in which the required readings Bible in lenges plaintiff challenges policy provision or Schempp, District v. schools: School below, directly. As discussed the cases 203, 1560, 83 S.Ct. U.S. that a plaintiff standing have held has (1963); and Doremus Board Edu- only if challenge policy provision or cation, 342 U.S. 72 S.Ct. 96 L.Ed. plaintiff proves applies that the enactment (1952). Doremus, In the Court lacked directly generalized to him or her. A ob- jurisdiction grad- because the student had jection policy provision to the or is insuffi- but, in Schempp, uated the student was cient. school, in so the held that the still Court requirement plaintiff that the dem- standing. Compare had Dore- plaintiffs policy provision ap- onstrate that mus, 432-33, 72 S.Ct. with plies directly to him or her is consistent at 224 n. Schempp, 374 U.S. approach with the courts’ in the second Valley Forge, 1560. In the Court ex- categories religious and third of cases. in plained: Schempp “The had cases, exercise the courts have addressed standing, complaint rest- because in plaintiff challenges ed on the Establishment Clause—for as situations which the that, (2010). Valley rejected proposition 2. We have L.Ed.2d 634 We held Supreme plaintiffs Valley Forge standing Forge, lacked Court "drew a distinction be- grounded ideologi- grievances personal their offense was between abstract in- cause cal, religious religious, juries, ideological and beliefs." rather than beliefs. Buono v. Norton, (9th Cir.2004), interpreting Valley Significantly, all on Id. cases remand, (9th infra, rejected prop- Forge, appeal 527 F.3d 758 Cir. discussed after 2008), religious harm to beliefs rev’d and remanded on other osition abstract - -, standing. grounds, alone to confer is sufficient religious pub- majority some form of invocation at a 1049-50. The then concludes ceremony. gathering that, lic The courts because the courts have addressed a plaintiff standing have held that has issues, surely those finding standing challenge religious only exercise if the this case is consistent with those cases. directly subjected to the unwel- plaintiff (“If See id. at 1050 we conclude that plain- Similarly, in come exercise. tiffs in the case before us have standing, cases, display the courts have addressed we need not decide whether those cases plaintiff challenges situations which overruled, vitality retain their or are be- religious display public property. cause our conclusion would be consistent plaintiff The courts have held that a them.”). But focuses on the religious display plaintiff, not on the issue. That this case only plaintiff if the has altered his or her interesting raises an constitutional issue plaintiff behavior or if the has direct and previous similar to issues addressed in display. contact unwelcome with the is, quite simply, cases the point.3 beside principles through Those —established questions relevant are whether the longstanding analysis by and consistent plaintiff cognizable injury has suffered a Court, us, Supreme the our injury and whether that is It redressable. sister circuits—constitute an important questions is to those relevant that I now guide analysis source of law and our here. turn. I Accordingly, cannot understand ma- jority’s that my opinion requires assertion 1. Statuto'ry Governmental Policies or that these “cases must somehow be distin- Provisions guished Maj. ... or op. overruled.” cases, many ones, In including recent way suggest 1050. no do I that these plaintiffs raised Establishment cases do not “retain vitality” their or that challenges specific governmental Clause contrary, “are overruled.” Id. To the See, policies statutory provisions. e.g., I extract from princi- these cases certain Larson, 230-34, 456 U.S. at 102 S.Ct. 1673 ples here, that apply of law we must to this (state imposing registration statute and re- Accordingly, my analysis case. of stand- porting requirements on “religious organi- ing entirely is consistent with the existing zations”); Lefevre, Newdow v. 598 F.3d body majority of law. It is the opinion (9th Cir.2010) (federal statute de- that explain fails to how a conclusion of claring the national “In standing in this motto God We case is consistent with that Trust”); body body substantial of law—a of law Newdow v. Rio Linda Union opinion (9th discussed detail in this Dist., but ref- Sch. 597 F.3d 1012-13 form, only passing, erenced Cir.2010) (federal list codifying statute majority opinion. pledge allegiance including words God”); Chaplaincy “under Gospel Full Furthermore, majority the list in the (In Navy v. Navy Churches U.S. re Cha- opinion identifies the constitutional issues (D.C.Cir. plaincy), that either the 534 F.3d 758-59 Supreme Court or we have 2008) (federal in an Maj. op. addressed earlier case. policy concerning navy ehap- agree "[standing proper plaintiff brought I could not more that Equally is this case. however, emphatically shutting important, not a emphatically doctrine for is opening courthouse door to those whose causes we do doctrine for the courthouse Indeed, Maj. op. everyone not like.” at 1049. at least door to who wishes us resolve join opinion might some of questions those who this of constitutional law—howev- agree academically interesting questions have been inclined to that the resolu- er those Clause, may tion violates Establishment had a be. benefits), injury, that have suffered cert. de must show lains’ retirement — threatened, -, nied,. is as a future (2009); v. Deukme Graham L.Ed.2d of the defendants’ conduct. The result (9th Cir.1983) 518, 519 713 F.2d jian, alleged, claiming have so Witnesses (state blood transfusions requiring policy contrary to their blood transfusions are contrary to reli surgeries, certain during and that ac- religious beliefs California’s Witnesses); Flo of Jehovah’s gious beliefs discourage physicians threaten to tions (8th Cir.1982) White, 53, 54 692 F.2d ra operations with- performing from certain curiam) (state provision constitutional (per omitted)). (citation out such transfusions.” officeholders and wit requiring certain subject If the are not in the exis their belief profess nesses to however, they lack challenged provision, God”); Family Am. “a see also tence of requisite particularized harm. See Le- Francisco, 277 F.3d Ass’n v. fevre, (holding Cir.2002) (9th (municipal 1119-20 lacked plaintiff disapproval of supervisors’ formal board of declaring the national motto “In statute campaign by religious advertising that, allegation God We Trust” because the Orange, 447 Cnty. groups);4 Smelt cf. statute, plaintiff because of the Cir.2006) (9th (challenge 676-77 “a “political stigmatic outsider” and suffers concerning same-sex federal statute to injury” standing”); to confer “is insufficient constitutional on other marriages Linda, (holding at 1016 that Rio 597 F.3d that, if have held The courts grounds). standing to plaintiff challenge lacked policy applies plaintiff to the statute codifying the pledge the federal statute manner, plaintiff then the has in a concrete allegiance including the words “under Larson, 241,102 at 456 U.S. standing. See plaintiff God” sustained no because (“The application threatened 1673 S.Ct. injury “nothing in personal where to the Church statutory provision] [the actually Pledge codifying the statute [or it] palpable surely amounts to a distinct it”); Navy In re requires anyone to recite It them plaintiffs]: disables [the (holding at that Chaplaincy, 534 F.3d 758 contributions the State of soliciting from navy plaintiffs challenge could not chaplain complies the Church Minnesota unless Navy’s alleged policy of discrimi- U.S. reporting require registration system, retirement favor of minimis.”)', nation its hardly that are de Gra ments (“The plain- ham, navy chaplains, because the 713 F.2d at 519 Witnesses Catholic because, definition, Family, there is we did not discuss ficult to assess In American rather, but, reasoning opinion may that we standing jurisdiction no in the asserted event, any apply at hand. In no Clause issue sub si- to the case over the Establishment here, holdings jurisdiction difficulty presented because the facts lentio. Sub silentio Family plainly interesting place jurispru- of American establish that the occupy an in our standing ignore holdings. requirements I discuss in text were dence. We cannot such Enters, 498, 522, (which may explain Apfel, 118 met in that case our si- See E. 524 U.S. instance, issue). 2131, (1998) (‘"While judi- on the For I take S.Ct. 141 L.Ed.2d 451 lence complaint by previous in American we exercises of cial notice are not bound alleged gov- Family. plaintiffs jurisdiction power our there in cases in which policy spe- directed passed ernment’s statement was questioned act but was sub was silentio, cifically plaintiffs and that the state- disregard we the im- at the neither should placing authority prevented plaintiffs from judicial ment plications of an exercise of advertisements that proper’ previous cases.” certain television assumed to be short, States, placed. would have In (quoting Co. v. United 370 otherwise Brown Shoe 1502, applied directly plain- policy to the 82 S.Ct. 8 L.Ed.2d 510 statement U.S. (1962))). import necessarily is dif- tiffs. But their 1070 (2000) (student prayers high

tiffs themselves had suffered discrimi- 295 at school nation); Flora, (holding Weisman, 54 games); football Lee v. 505 U.S. plaintiffs standing 577, 580-83, 2649, atheist lacked 112 S.Ct. 120 L.Ed.2d challenge discriminatory (1992) state constitu- (prayers graduation ceremo- provision provision tional had because nies); Jaffree, Wallace v. 40- U.S. never been to the applied plaintiffs); see 42, (1985) 86 L.Ed.2d 29 Smelt, (holding also 447 F.3d at 683-86 (school meditation); prayer and Engel v. plaintiff couple same-sex lacked stand- Vitale, 421, 422-23, ing denying federal statute (1962) (school prayer).5 couples, benefits to married same-sex be- Valley Forge, 454 n. plaintiffs cause the were not married un- S.Ct. the Court examined Doremus der state law and had not been denied and Schempp explained plaintiff that a federal benefits or rights). has if he or she actually been “subjected to unwelcome religious exercis- 2. Religious Exercise Cases Accordingly, plaintiff es.” who did not In a category, plaintiffs second religious attend event at which the invo- brought challenges Establishment Clause cation occurred had actually never been religious to some form of invocation at a “subjected to unwelcome exercis- See, public gathering ceremony. e.g., es,” id., standing. and therefore lacked 205-06, Schempp, 374 U.S. at Parish, Tangipahoa See 494 F.3d at 497- school); (daily scripture readings in public (holding lack Doremus, 342 U.S. at 72 S.Ct. 394 because “there evidentiary proof is no (same); Linda, Rio 597 F.3d at 1012-13 any of the [plaintiffs] ever attended (recitations of the pledge allegiance prayer school board session at which a ... school); Pelphrey Cnty., v. Cobb recited”); Madison, was see also 177 F.3d (11th Cir.2008) (invoca- 1263, F.3d 1266 at 797 (holding parent plaintiff that a did at beginning county planning tions standing not have where “she does not meetings); Tangipahoa Doe v. Parish Sch. claim that gradua- she will attend another Bd., (5th Cir.2007) 494, 494 F.3d 496-99 future”). tion ceremony When (en banc) (invocations at school board plaintiffs regularly attend events at which meetings); v. Norfolk, Doe Sch. Dist. of occurs, however, an invocation plain- (8th (sched- 605, Cir.2003) 340 F.3d 607-08 because, tiffs standing have been uled invocation high and benediction at subjected to unwelcome religious exercis- graduation); school v. Doe Sch. Bd. of es. Pelphrey, See 547 F.3d at 1279-80 (5th Parish, 289, Ouachita 274 F.3d 291 (regular county attendee at planning com- Cir.2001) school); (prayers at public Doe v. Parish, mission meetings); Ouachita 274 321, 789, Madison Sch. Dist. No. 177 F.3d (students at public F.3d 292 at schools (9th (en Cir.1999) banc) (student 791 pray- exposed daily prayer). high ers at graduations); school see also Doe, Indep. Santa Fe v. Eighth Sch. Dist. 530 Circuit an in- considered 2266, U.S. 147 teresting L.Ed.2d combination of these two ex- But, here, following challenges. the four cases the "see also” there are no difficul- indicator, I list the cases in which the Su- plain- ties because the facts of the listed cases but, preme standing Court did not discuss ly standing requirements establish that the I rather, jurisdiction asserted over the Estab- (which discuss text were met in those cases lishment Clause issue sub silentio. As ex- may explain the Court's silence on the issue of above, 4, plained supra note sub silentio hold- standing). ings jurisdiction present interesting on can

1071 currency); Ky. Grayson Cnty., v. There, ACLU public tremes Norfolk. (6th Cir.2010) (Ten 837, at body, 591 F.3d 840-41 to the student announced school rehearsal, courthouse); county mandatory graduation Commandments ceremony graduation impending (religious displays at 484 577 F.3d Cooper, benedic- invocation and office); include an Cnty. would at Green v. Haskell Bd. post After F.3d at 607. Norfolk, (10th 340 Comm’rs, 784, tion. 568 F.3d 787-88 con- parent expressed the ACLU Cir.2009) (Ten on court Commandments — invocation cern, dropped the the school denied, U.S.-, green), cert. house cere- from the scheduled and benediction (2010); 1687, L.Ed.2d 180 S.Ct. 176 ceremony, howev- During the mony. Id. Caldwell, 1126, 545 F.3d Caldwell inter- er, of the school board a member Cir.2008) (9th statements on (religious the audience to lead rupted speech his website), de university’s cert. Prayer. the Lord’s recitation of through a —nied, -, U.S. student and his An offended Id. at 608. (2009); L.Ed.2d 995 Bames-Wallace district and cer- the school mother sued (9th Diego, 530 F.3d school board. Id. tain members (order) Cir.2008) symbols in (Boy Scout concluding — had “little trouble” cert, The court denied, -, public park), to chal- had plaintiffs (2010); Board actions of the School lenge the (removal F.3d at 1247-48 Vasquez, 487 (and the prayer who read member seal); county O’Connor v. Wash- cross on defendants, theory on other (10th Univ., bum 416 F.3d 1218-19 all, the at 609. After complicit). Id. were Cir.2005) (statue bishop of Roman Catholic subjected to an unwelcome plaintiffs “were public university outdoor displayed function.” at a school religious recitation show); Cnty., 401 art Books v. Elkhart had But whether Id. (7th Cir.2005) (Ten Com “past policy of challenge the school’s public property); ACLU mandments graduation ceremo- allowing prayer Found., Ashbrook, Inc. v. Ohio a much closer issue.” present[ed] nies[] (6th Cir.2004) (Ten Command acknowledged that The court Id. wall); Buono, on courtroom ments announcement to students school’s (cross hill); on a Neb. F.3d at 544 ACLU that, consistent mandatory rehearsal Found, Plattsmouth, City v. 358 F.3d of tradition, graduation the school’s (8th Cir.2004) (Ten 1020, 1024-25 Com an invocation and ceremony would include adopted in in public park), mandments con- personal constituted some benediction (8th 772, 775 n. 4 part, relevant 419 F.3d religion. of Id. tact with an endorsement Cir.2005) (en banc); Moore, v. Glassroth Nevertheless, court con- at 609-10. (Ten (11th Cir.2003) 1282, F.3d 1284 335 standing plaintiffs that the lacked cluded monument at Alabama Commandments claim, both pursue this because Russ, Building); Adland v. State Judicial with endorsement was plaintiffs’ contact Cir.2002) (Ten (6th 471, 307 F.3d 474-75 plaintiffs did insufficient and because public property); on Commandments policy caused them allege past Wall, 258, 246 Twp. v. F.3d ACLU-NJ injury. Id. particularized of (3d Cir.2001) (holiday display public on 260 Display Religious 3. Cases Elkhart, City v. 235 property); Books of (Ten (7th Cir.2000) 292, 294 Com F.3d cases, have chal- legion In a of municipal on front lawn of mandments See, displays. e.g., Le- lenged religious (Ten Suhre, (national 131 F.3d at 1084 building); “In at 640 motto fevre, 598 F.3d courthouse); county in the nation’s coins and Commandments God We Trust” on 1072 county

Separation “posted very Church & State Comm. v. courthouses of (9th 617, (inter- City Eugene, 93 F.3d 618 high traffic area of the courthouse” of Cir.1996) curiam) (51-foot (per Latin cross omitted)); quotation nal marks Van Orden city Cnty. park); on butte Doe v. 677, 681, 2854, Perry, v. 545 U.S. 125 S.Ct. of (7th 1156, Montgomery, 41 F.3d 1157 Cir. (2005) (Ten 162 L.Ed.2d 607 Command- 1994) (the “THE words WORLD NEEDS standing high ments monolith “6-feet county GOD” above entrance to court public 3 park); Cnty. wide” 1/2-feet of house); v. Washegesic Bloomingdale Pub. Allegheny Pittsburgh v. ACLU Greater (6th Cir.1994) Schs., 679, 33 F.3d 681 573, 578, Chapter, 3086, 492 U.S. (painting public of Jesus Christ in school (ceéche (1989) county 106 L.Ed.2d 472 hallway); Twp. v. N. Gonzales Lake courthouse and menorah county outside (7th Cir.1993) 1412, Cnty., 4 1414 F.3d building); Lynch Donnelly, 465 U.S. (crucifix in public park); City Ellis v. of 668, 671, 1355, 79 L.Ed.2d 604 Mesa, (9th 1518, La 990 F.2d 1520 Cir. (creche (1984) containing figures “ranging 1993) (giant public crosses on land and on [feet]”).6 in height from 5 [inches] 5 city insignia); Murray, 947 F.2d at 149 case, each the plaintiffs alleged (cross seal); city Joyner, on Hewitt v. 940 deeply were presence offended (9th Cir.1991) 1561,1562-63 (religious F.2d religious display public property on in public park); City statues Harris v. sought its removal. (7th Zion, Cir.1991) 927 F.2d 1402 consistently The courts applied (crosses seal); city on Freedom Reli from general legal same A plaintiff rules. has Found., Zielke, gion Inc. v. 845 F.2d display if (7th Cir.1988) (Ten 1465 Commandments (for alleges change he or she in behavior Saladin, in public park); F.2d at 688- instance, affirmative avoidance of the reli- (the “Christianity” seal); city word on gious display). Cnty., Rabun 698 F.2d Charles, City ACLU Ill. v. St. But, 1108. although allegation of a (7th Cir.1986) (lighted F.2d cross change in behavior is sufficient to confer property); Hawley City standing, required. it Vasquez, Cleveland, (6th Cir.1985) 1251-52; Suhre, F.3d at 131 F.3d at 1087- (chapel public airport); Cnty., Rabun 88; George, Foremaster v. St. (lighted 698 F.2d at 1100-01 cross in a (10th Cir.1989); 1490-91 public park); McCreary see also Sala- Cnty. v. din, Ky., 812 F.2d at A plaintiff ACLU 692-93.7 also (2005) (“large, gold- alleged when he or she has copies” framed of the Ten Commandments “direct and unwelcome contact” with the following In the four position point cases "see also” 7. The Seventh Circuit’s on this indicator, Zielke, again Compare is a bit uncertain. I list the 845 F.2d at cases in which the (suggesting but, allegation 1467 that an that the Supreme standing Court did not discuss plaintiff necessary rather, altered behavior is to es- jurisdiction asserted over the Estab- standing), Cnty. Montgomery, tablish with lishment Clause issue sub silentio. As ex- of (discussing F.3d sug- at 1161 Ziellceand above, plained supra note sub silentio hold- broad); gesting holding that its was not so see ings jurisdiction present interesting on can Plaltsmouth, City also 358 F.3d at 1029 n. 7 But, challenges. again, here as with the cases ("It appears likely the Seventh Circuit has footnotes, preceding noted in the the facts of disowned the ‘altered behavior' test and dis- plainly the listed cases establish that the tinguished language this contained in Zielke.” standing requirements I text discuss in were (citing Cnty. Montgomery, 41 F.3d at 1160- met. 61)). most, At Seventh Circuit constitutes minority a of one circuit. Vasquez, in 487 F.3d example, For Cnty., play. Grayson religious display. 794; Green, 843; 1251-52, at the ex- plaintiff challenged 568 F.3d at at F.3d 861; Books, Platts at 401 F.3d county a seal—which of a cross on istence 1030; mouth, Lefevre, accord F.3d at regular basis as a encountered on a he (“unwelcome con at 642 direct F.3d county employee. and We county resident (same); Caldwell, at tact”); 545 F.3d plaintiff standing had be- held that (same); Ash F.3d at 1253 Vasquez, 487 out as a member cause he “held himself (“direct, brook, unwelcome at 490 375 F.3d located, community the seal is where (“direct Suhre, contact”); at 131 F.3d frequent regular as someone into forced contact”). In the absence unwelcome seal, perhaps most contact with the and contact,” however, “direct and unwelcome ‘directly affected’ as someone importantly, standing re cannot meet plaintiff a with the by his ‘unwelcome direct contact’ contact even if he or she has quirements, added). (emphases at 1251 We seal.” Id. offended religious display and is with a further: explained cases, a contact plaintiffs “In certain it: Valley Forge, in who plaintiffs Unlike religious or allegedly offensive from defen- physically were removed remain too tenu anti-religious symbol will conduct, a Vasquez dant’s is member ous, indirect, give rise or abstract community allegedly of- where the standing.” Vasquez, 487 Article III located, and his con- fending symbol is Caldwell, 1251; 545 F.3d see also symbol frequent tact with the was injury plaintiffs that the (holding 1132-33 sporadic and remote. regular, standing purposes be insufficient for was fact, offending symbol nature of the connec ... “will be of the tenuous cause vehicles, and the reli a website user county buildings, tion between displayed webpage on a and because gious message [sic], forms, stationary commenda- flags, was less contact with the web site her tions, uniforms, through elsewhere Cnty. in Mont Vasquez)-, than forced County,” thereby forcing Vasquez LA (holding that a 41 F.3d at 1161-62 gomery, “daily expo- contact and into unwelcome not have lawyer did kind. These pervasive sure” of the most where display in a courthouse religious a allegations Vasquez’s make facts would lawyer alleged had not he fundamentally from that different status display); any contact with the Wash Valley Forge. (noting “psycho at 682 egesic, 33 F.3d added). (emphases at 1252 Id. always a harm alone is not suffi logical Suhre, example, another As when standing purposes cient 1084-85, challenged a dis- plaintiff display such as religious contact [with of the Ten play Commandments in a school’s hall picture of Jesus Christ county main courtroom of the courthouse. Harris, indirect”); 927 F.2d at way] is plaintiff Fourth held Circuit plain (holding that “the fact regular of his visits had because by the seals ... does may tiffs be offended courtroom, frequent as a liti- standing”). to that both not confer govern- in local gant participant and as a challenges plaintiff A who (as and witness meetings plaintiff ment and unwelcome meets the “direct display actions, as a defendant past civil by demonstrating requirement contact” actions, an attendee at four criminal and as regular or contact frequent some level of at meetings government). of local Id. past during the course of the display with the that the The court found it relevant routine, the such that plaintiffs regular religious sym- the “must plaintiff the dis- was “forced” to encounter plaintiff confront sure, bolism whenever he enters the courtroom To courts have “recognized be legal municipal on either or business.” Id. practices community may of our own ‘[t]he added). (emphasis larger psychological create a wound than ” just someplace passing through.’ we are Vasquez and Suhre are but two exam- (alteration Suhre, orig- 131 F.3d at 1087 in cases, too, ples: all other the courts inal) 683). (quoting Washegesic, 33 F.3d at plaintiff have held that the Accordingly, personal “where there is a regular because some level of or fre- plaintiff connection between the and the quent religious display contact with the challenged display in his or her communi- during plaintiffs the course of the routine See, Id.; e.g., Lefevre, ty, standing likely is more business. 598 F.3d at lie.” see (the plaintiff Plattsmouth, City encounters the national also at 358 F.3d (“That on currency everyday motto “coins and in injuries the are caused [the life” which him repeatedly to en- plaintiffs] own is all the more alienat- “forces religious counter a belief he finds offen- Charles, ing.”); City St. 794 F.2d at 268 added)); (emphasis Green, sive” 568 F.3d (“Maybe it ought to make a if difference (the plaintiff at 793-94 visits the court- ... a plaintiff complaining is about the weekly house “on a basis” for business and unlawful establishment of a religion by the avocational purposes and “cannot avoid” town, lives.”). city, state which he O’Connor, religious the display); 416 F.3d But adopted no court has a per se rule (the plaintiff professor and student religious display location of a “were frequently brought into direct and plaintiffs hometown or home state au- unwelcome contact” with a religious dis- tomatically confers on plain- play prominent “at a location campus” on Suhre, tiff. See (holding 131 F.3d at 1087 added)); (emphasis Ashbrook, 375 F.3d at that, display where the is in plaintiffs (the plaintiff 489-90 “who travels to and community, “standing is likely more to lie” practice must law within [the relevant] only personal “where there ais connection courtroom from time to time” and who plaintiff between the and the challenged n “has and would continue to come into display” added)); (emphases Cnty., Rabun direct, unwelcome contact with the Ten (holding 698 F.2d that the location display, Commandments the removal of display plaintiffs’ in the home state would, doubt, which no prevent further “factors”). was one of several relevant As injury added)); to him” (emphases Glass- cases, in all even when the dis- roth, (“The 335 F.3d at 1292 plain- three play hometown, plaintiffs is attorneys tiffs are professional whose plaintiff must establish direct and unwel- require duties them to enter the Judicial See, come contact with display. e.g., Building regularly, and when do so Suhre, 131 F.3d at 1090 (determining (em- pass must the monument.” whether plaintiff requisite has the di- added)); Saladin, phases rect and unwelcome contact with the dis- (the plaintiffs “regularly receive corre- play, even though display located spondence city stationery on bearing the plaintiffs municipality). seal ‘Christianity’]” [that contains the word Finally, arises not purely added)); (emphasis Wall, Twp. see also psychological from the harm viewing (noting 246 F.3d at 266 that it was relevant display, consequence but from the of that plaintiff whether the holiday visited a dis- is, harm. That a plaintiffs negative reac- play only “to display describe the for this whether, religious display tion to a litigation public proper- for example, he ob- ty served the display satisfy- the course of interferes with the right “ ” ing obligation”). Ellis, a civic ‘freely use areas.’

1075 1564); action than the Hetvitt, challenged governmental 940 F.2d (quoting at 1523 Valley Forge. in The Parish, allegations plaintiffs’ at 292 accord Ouachita had never visit- Valley Forge (“use facility”); plaintiffs public of a enjoyment or to, ed, connection and had no other (“freely n. F.3d at 619 Eugene, 93 City of Here, question. Plaintiffs reside public land [the on and around using the area (“full Francisco, operate as and Defendants Gonzales, at 1417 use San park]”); municipal government. Francisco Haw the San public park”); of the enjoyment separation. Ad- geographical of their There is no (“impairment 773 F.2d at ley, Plaintiffs view the resolution as facility ditionally, public of a which use beneficial use”). religion: specific re a direct attack on their “We have they frequently may stronger unreservedly There be some inability to Catholicism. held that peatedly challenged government to the injury-in-fact. connection land suffices use perceived the action is as a ‘personal injury action when inhibition constitutes Such religion, attack on one’s own as dis- consequence of the al direct ... as a suffered error,’ general a more offense that the beyond simply tinct from constitutional leged condoning conveying or reli- presumably government consequence psychological ‘the generally one gious messages of conduct with with which by observation produced ” Buono, not adhere. disagrees F.3d at or to which one does disagrees.’ which one omitted) (citations residency that Plaintiffs’ (ellipsis original) acknowledge I perception government their Forge, 454 U.S. at 102 and (quoting Valley Barnes-Wallace, 752); attacking specific religion action as their see also 5.Ct. (“As Buono, significant ways this case in plaintiffs] distinguish [the F.3d at 784 Supreme Valley Forge injuries beyond psycho ‘the from the Court’s alleged consequence presumably produced decision. logical with which of conduct observation however, ways, allegations In other inhibition inter disagree,’ because complaint suggest in the that Plaintiffs are use of the land.” personal feres with their bystanders,” more akin to “concerned Val- omitted) (brackets Valley Forge, (quoting ley Forge, 454 U.S. S.Ct. 752)). 485, 102 (internal omitted), quotation marks who no “other than the have suffered Alleged B. No. 168-06 Resolution consequence presumably psychological Harm to Plaintiffs of conduct with by observation produced challenge Resolution No. 168- Plaintiffs disagrees,” id. at which one “at- They allege that the resolution 06. parties dispute do not beliefs,” deeply religious held

tacks [their] entirely non-binding and that resolution is account of their Plaintiffs on “stigmatizes legal it no effect. It confers no bene- beliefs,” a clear mes- and “sends It no legal rights. imposes or obli- fits outsiders, they are not full sage ... anyone. It gations responsibilities community.” political members of the ordinance, process, alters no that, allege as residents of San Plaintiffs short, anything, it not do plan. In does of the Catholic Francisco and members Levada to “urge” other than to Cardinal Church, their access “chill[s] the resolution concerning Catholic withdraw his directive “As a government.” [the] to the result This hortato- adoption policies. Charities’ resolution, ... will curtail their Plaintiffs text in a precatory is like ry resolution contact with De- activities to lessen their plaintiffs lack preamble, which statute’s fendants, causing further harm.” thereby ap- unless the text standing to way.” “in concrete allegations plies to them some ways, Plaintiffs’ some Servs., 492 U.S. Reprod. Health stronger connection to the Webster evince a much 106 L.Ed.2d 410 Catholics and San Francisco residents dis- (1989); 504-07, concerns, see also id. at tinguishes their at least to some (discussing generally). extent, this issue from the concerns of others who may view the resolution as offensive. In above, As are discussed Plaintiffs end, however, the resolution carries no challenge the first to a governmental poli- and, legal perhaps effect importantly, most And, cy above, or provision.8 as discussed apply does not to Plaintiffs. developed courts consistent re- quirements establishing standing: for In effectively Plaintiffs us to ask hold that standing, order to establish Plaintiffs must any person challenge any to allege that provision applies to them governmental action on Establishment some direct and concrete manner. Plain- grounds, long Clause so plaintiff as the allegations tiffs’ here do not suffice. government’s resides within the territory by and is offended alleged action’s not, not, Plaintiffs do and could claim attack plaintiffs religion. on the As dis- they subject are provisions to the above, A, cussed governmental Part a the non-binding They resolution. do not action within community sug- one’s own subject claim government’s to be to the gests that standing likely is more to lie. “urging” action—the of Cardinal Levada to But the courts have declined Instead, apply per a retract they his earlier directive. se rule that those who reside within claim “message” harm from the geographic government boundaries of the resolution’s terms “sends” to Plaintiffs. I automatically have agree challenge District of Columbia Circuit “[wjhen that, government’s Instead, actions. are not themselves courts have required showing affected except action challenged actually action through their abstract offense at affects these the mes- sage allegedly conveyed action, particular plaintiffs. by that Resolution No. 168- they injury-in-fact simply have not shown does not bring apply to Plaintiffs. an Establishment claim.” Clause In re Nor does the fact that perceive Plaintiffs Navy Chaplaincy, 534 F.3d at 764-65. the resolution as a direct attack on their

Plaintiffs here have expressed specific religion then- “partic- suffice to meet the deep and genuine offense. Their requirement.9 status as ularized” In that regard, majority opinion 8. The incorrectly example, asserts that Christianity may perceive government's I placement conclude that this case does not involve a aof cross on a hill challenge governmental policy provi- negative to a as a direct person’s attack on that religion, Maj. op. sion. non-Christian rather than 1050-51 n.26. To the con- as af- trary, Christianity. firmative endorsement of Plaintiffs Pre- here a resolution reason, Defendants, cisely for this the courts have agree complete- enacted treated and I disapproval an endorsement and a ly as majority with the two that “an resolu- official sides of the same coin in the Establishment tion of the of San Francisco is indeed a See, e.g., Lynch, Clause context. 465 U.S. at involving specific governmental case poli- (O'Connor, J., (internal S.Ct. 1355 concur- cy.” quotation Id. marks and brack- ("Endorsement ring) text, message sends a omitted). must, to no- ets apply, I we outsiders, nadherents that are not full standing requirements clear that we and oth- political community, members of the and an developed er courts have involving in cases accompanying message to adherents that challenges governmental policies. The ma- insiders, political favored members of the jority opinion acknowledge fails even to those community. Disapproval the opposite sends or, requirements large degree, even the message.”). Similarly, might an atheist view relevant cases. motto, Trust,” the national “In God We as an easy It is to overstate this distinction. A attack on his or her beliefs. But than, person religion who adheres to other standing. that fact is insufficient to confer indistinguishable adding here and the federal the Plaintiffs’ claims are statute Flora, “under God” to plaintiffs’ pledge claims in 692 words our of alle- from the Linda, There, giance, Rio at 1016. The plaintiffs, the atheist F.3d F.2d at 54. fact that a statute on Arkansas, in a the books made the challenged who resided plaintiff feel like provision “political that barred outsider[]” constitutional state stigmatic “in- injury” “inflict[ed] was certain opportunities. atheists from civic standing.” Lefevre, sufficient to confer that, Eighth unless Id. The Circuit held 643; Linda, F.3d at see also Rio they plaintiffs could demonstrate that the (holding that, at 1016 F.3d “because the been, be, subject actually had or would to (which Pledge anyone say does not that mandate not), the provision they the could it, plaintiff] personal injury no to [the Citing lacked plaintiffs standing. Id. Val- wording contest its courts” and the rejected plaintiffs’ the court ley Forge, standing challenge therefore lacks to that, atheists, theory “as have suf- pledge). By federal statute declaring consequences psychological fered adverse contrast, we held plaintiff that did presence of the as result continued “standing to challenge statutes in the this section Arkansas Constitution.” require inscription that of the motto on Flora, Like the atheists in Id. Arkansas currency ubiquity coins and ... given the Francisco here cannot the San Catholics life,” and currency everyday of coins subject that demonstrate Lefevre, at plaintiff 598 F.3d and that challenged provision, though they al- even parents schoolchildren did have stand- lege psychological consequences adverse ing challenge the state statute and passage. of the as a result resolution’s policy district permitting school teachers stand- Accordingly, Plaintiffs do not have through to lead students recitation of the ing. Linda, allegiance, pledge of Rio 597 F.3d analysis recent applies The same to our at 1016. Those statutes had a direct effect involving plaintiffs’ atheist chal- decisions plaintiffs. on the motto, “In lenge to the national God We Here, Plaintiffs challenge the resolution Trust,” Lefevre, 598 and to the F.3d at Linda, only. As and Rio Plain- Lefevre of the in the inclusion words “under God” allege that the action governmental tiffs Linda, pledge allegiance, national Rio political like makes them feel outsiders and cases, F.3d at 1016. In those religious them stigmatizes because of their challenged plaintiffs only the federal And, Linda, beliefs. as and Rio Lefevre declaring statute our national motto and allegations those are insufficient. Plain- statute the words “un- adding the federal with the no tiffs’ contact resolution here is allegiance, to our but pledge der God” greater plaintiffs’ than the contact with the also the statutes plaintiffs challenged at federal statutes issue in and Rio Lefevre policies required that the motto Linda. currency on our be inscribed coins and cases, held, course, be Le- we pledge that the recited schools. those Linda, 643; challenge had fevre, plaintiffs standing 598 F.3d Rio plaintiffs policies at 1016. We other statutes and statutes held —those unwel- type put lacked the first in direct and declaring religious the federal come contact with the statement of statute: statute But, case, motto, exercise. in this Lefevre, our national 598 F.3d standing purposes. Lefevre, decline I therefore tion for significance to attribute much to this distinc- policies there are no such other statutes or of religion dorsement is even mentioned reviewing and no such direct and unwelcome contact. purposes court for Clearly, way not, course, Defendants have in no in- inquiry. I do scribed the resolution on an item every- question that Plaintiffs view the resolution day life such that Plaintiffs must encounter attack on their religion. Similarly, it, and Defendants have in way required though, no in previous courts cases have not participate daily Plaintiffs to in a questioned recitation the plaintiffs viewed the of the resolution. Plaintiffs’ challenge challenged governmental is action as an at- itself, on, limited to the of, resolution which sets tack or an endorsement a specific policy forth Defendants’ religion. statement on a Whether the members of the City matter of to the precise reviewing concern perceive alleged court the attack —the parallel to the setting federal statutes or “plain” endorsement or “ambiguous” forth our pledge national motto and fraught And, seems with difficulty. in allegiance. plaintiffs’ Just as the deep many cited, of- of the cases I have I see no fense at national pledge the motto and ambiguity. example, For the statute de- allegiance standing, could not confer claring nei- our “In motto as God We Trust” is can deep ther Plaintiffs’ unambiguous offense at Defen- an endorsement of theistic dants’ resolution confer standing here. religions expense at the of the beliefs of Similarly, atheists. placement the of a conclusion, are, In Plaintiffs’ allegations city’s cross seal is an unambiguous in respects, all relevant identical to the endorsement of Christianity at the expense plaintiffs’ allegations in our recent deci- Yet, religions. non-Christian in in sions Bio Linda and Lefevre and to the Lefevre and Vasquez, and in all our previous other plaintiffs’ allegations in Flora. Just as the cases, the ambiguity plainness allegations in those cases were insufficient challenged governmental played action no to confer standing, so too are Plaintiffs’ in part analysis standing. allegations here. argue, by way Plaintiffs next analogy, majority The grapple fails to with our that the resolution is similar to a religious holdings in Bio Linda and In Lefevre. display. They that, contend because particular, our holding Lefevre, 598 F.3d exposed have been “display,” they to the applies equal force here: “Al- alleged sufficient “contact” with the though allege[ [Plaintiffs] ] [resolution] “display” to constitute an in fact. turns political into [Catholics] outsiders The complaint does allege the manner stigmatic them, and inflicts a injury upon in which Plaintiffs encountered the resolu- an stigmatic ‘abstract injury’ resulting tion or the form “display” to which from such outsider status is insufficient to object, Plaintiffs it appears but that Plain- standing.” confer The majority distin- tiffs mean that have read the resolu- cases, guishes those and all prece- other tion. That fact does not standing. confer dent, only on the ground that this case unambiguous involves an with, begin condemnation of To the resolution is not a a specific religion, previous (albeit while display; ones in- it is an act a non-binding act) “vague volved general religiosity.” of a legislative body. Had Defendants Maj. op. at 1050-51 n. reproduced resolution, 26. As an initial example, matter, despite great previ- giant number of letters above the entrance to ous involving challenged Hall, decisions govern- Cnty. Montgomery, 41 F.3d at actions, mental majority cites not a or chiseled the resolution into a block single one in ambiguity which the plain- of stone eight feet tall and three feet wide ness of perceived Green, condemnation or in a public park, en- 568 F.3d at 789- rejected argument, her Id. at 1131. representation in those We resolution’s religious display. using constitute because her interest website would forms is, complaint fails to though, As anyone it no than else’s: Her was different resolution has received this allege sufficiently interest was differentiated “not than other. greater prominence standing on her.... and direct to confer like res- posted, every was other resolution participation An interest informed olution, See on Defendants’ website. hold in public discourse is one we common http://www.sfbos.org/ftp/uploadedfiles/ Id. at democracy.” as citizens in a bdsupvrs/resolutions06/r0168-06.pdf. separately “to elabo- Judge Fletcher wrote lacks fully why enactment on rate more Caldwell stand-

The mere existence books) (or (B. Fletcher, J., enough. virtual ing.” concurring). books Id. context, display plaintiff Judge plaintiff could Fletcher held she standing when he or encounters injury in fact not establish an because: level of frequency the with some display that allege not her Caldwell also does plain- the course of the regularity during views contact with the offensive ex- It is that and routine. “direct typical tiffs pressed [government] on the website display with the that contact” unwelcome “frequent regular” was and “unwel- Here, plaintiff. on the standing confers 1251-52], [Vasquez, come.” apart read the resolution. But Plaintiffs There is that allegation no Caldwell had contact, allege Plaintiffs from that initial any offending reason to visit the web they that would suggest no facts to ever did the page more than once. Nor sin- again, to read the resolution have reason gle offending page prevent web Caldwell regular as of their routine or other- part freely using [Under- from the rest of the (except litigation). to facilitate this wise standing website: Evolution] site I summary, In if construed the reso- even comprises pages, approximately not, religious display, a which it is lution as viewed each which can be without could not meet the “direct and Plaintiffs having offending page. first viewed the requirement that unwelcome contact” (one omitted). Id. at 1134 citation consistently applied have in reli- courts opin- gious reasoning The same both display cases. —of -applies ion and the here. concurrence-— our recent regard, In this decision reading Plaintiffs’ the resolu- interest Caldwell, is instructive. municipal government tions of their is no There, objected plaintiff webpage to a and, interest anyone different than else’s on website. at 1128. government a Id. therefore, sufficiently not differentiated “is that, plaintiff argued standing.” Id. and direct to confer [religious display] plaintiffs like the Plaintiffs here do Additionally, cases, also came into contact she direct allege that contact with the resolu- their religious symbol property a tion was more than a anything one-time owned which she occurrence, allegation and is no “[t]here that, offensive; just as the finds that to visit had [Plaintiffs] reason inability plaintiffs those cases free- offending page more than once.” web Id. injury in ly to use land sufficed as (B. Fletcher, J., concurring). at 1134 fact, it so too should suffice that she is sum, allegations Plaintiffs’ do consti- freely using govern- from inhibited psychologi- tute an “other than running resource without into reli- ment consequence produced by presumably cal gious symbols theological state- with which one her. observation of conduct dis- ments which offend true, in the Forge, complaint wholly vague 454 U.S. at agrees.” Valley conelusory allegations not sufficient to Plaintiffs therefore lack S.Ct. 752. dismiss.”); withstand a motion to Vasquez, standing. 487 F.3d at n. 4 (noting that allega- that their protest Plaintiffs next disregarded district court an allegation pure than psycholog- tions constitute more plaintiff had “altered his behav harm, allege ical also because ior,” declining but to decide the issue be power Defendants’ has “ehill[ed] abuse allegations cause other sufficed to confer government. access to the As re- omitted)). (brackets Moreover, if standing resolution, sult of Plaintiffs ... will [the] allegations Plaintiffs’ vague some un curtail their to lessen their con- activities specified governmental avoidance enti Defendants, thereby tact with fur- causing ties standing were sufficient confer ther harm.” refer Plaintiffs us to cases in proclamation govern of that plaintiffs which courts have held have entity, any plaintiff residing mental then change because of an affirmative within governmental the boundaries particular religious in behavior to avoid a body satisfy “injury could in fact” re Ellis, See, display. e.g., 990 F.2d at 1523 quirement simply by alleging, general, (holding that threatened curtailment of activities with they allege pub- because avoid a governmental entity. No court has located). park lic where a Plain- cross accepted sweeping proposition. such a Cf. that, argue tiffs like the those Tatum, 1, 13-14, Laird v. U.S. 92 408 S.Ct. cases who avoided lands to avoid a (1972) 2318, 33 (“Allegations L.Ed.2d 154 religious display, Plaintiffs here have subjective of a are adequate ‘chill’ not an standing access to govern- because their of specific present substitute for a claim they ment has been and “chill[ed]” “will objective specific harm or a threat of fu curtail to lessen their activities their con- harm; ture the federal courts established tact with I am unpersuaded. Defendants.” pursuant III to Article of the Constitution allegations Plaintiffs’ suffer from lack of (internal advisory do not opinions.” render unclear, specificity. instance, It for omitted)). is quotation marks when curtail Plaintiffs “will” their activi- Plaintiffs also to the point primary rea- “ It ties. also is unclear what contacts standing son for the doctrine: ‘The es- Plaintiffs maintain with Defendants and standing sence inquiry of the is whether how, all, if at curtail they “will their activi- [plaintiffs] alleged person- such a have ties to lessen vague contact.” These [that] controversy al stake in of the outcome allegations cry allega- are a far from the as to concrete assure that adverseness tions sufficient standing to confer in reli- sharpens presentation which issues of cases, display which gious plaintiff upon which largely depends the court so alleges regularly that he or she sees the illumination constitutional for of difficult ” offending display explains how his or Larson, 238-39, questions.’ 456 U.S. at her normal changed routine has so as to added) 102 S.Ct. (emphasis (quoting See, avoid those e.g., City encounters. Power, 2620). Duke Charles, 794 at 269 (holding St. F.2d Plaintiffs con their deep opposi- tend that plaintiff standing one has because “she patent tion to the is genuine resolution detours from her accustomed route to and that their determined adverseness to cross”); [lighted] avoid the see also Mann the resolution the basic purpose satisfies Tucson, (9th standing They doctrine: are fervent Cir.1986) curiam) (per (“Although we provide sharp presenta- advocates who must, accept in general, alleged the facts tion of the issues. specifically, Supreme of More Court question the commitment

I not do rejected argument roundly Plaintiffs’ the skill with to this case or Plaintiffs “ assumption that very this context: ‘The undoubt- presented, have they which sue, no no standing if have to respondents the issues. present, continue edly would to to have is not a reason standing, one would has re- expressly Supreme But the Court ” standing.’ Valley 454 U.S. at Forge, find Article as a for jected passion substitute omitted) (alteration 489, 102 S.Ct. not measured standing. “[Standing is III Comm, Schlesinger v. (quoting Reservists interest or intensity litigant’s by the War, Stop the to U.S. con- advocacy. of his ‘[T]hat the fervor (1974)). 2925, 41 L.Ed.2d 706 sharpens crete adverseness which Carr, issues,’ however, Baker v. presentation Perhaps importantly, most that, [186,] wrong they if suggest 7 L.Ed.2d 663 Plaintiffs are [82 S.Ct. U.S. (1962) it ], consequence standing, lack then is clear that no one anticipated is the standing challenge have the reso- who has would commenced one proceedings contrary, likely To the it is fact; lution issue. injured permissible it is not been who parties personally injury itself.” showing for the substitute resolution, subjects of the such as Cardinal 486, 102 Forge, 454 Valley Levada, Niederauer, Archbishop and Cath- Smelt, (“Mo- 752; also 447 F.3d at 685 see Charities, cogniza- olic could demonstrate satisfy enough [to tivation alone why harm. The record ble is silent as standing requirements].”). parties joined plaintiffs. those have also must suggest Plaintiffs interests, likely But their which are direct- resolution have affected, matter. ly aspect “The Art. Ill because, no standing, if do not have regard ... reflects due and that result standing, one would autonomy those persons likely to be disagree be correct. I with Plain- cannot directly affected by judicial most a order.” prem- major premise and their minor tiffs’ Valley Forge, 454 U.S. at that the principle It is a bedrock ise. 489-90, 752; see also id. 102 S.Ct. 752 juris- limited federal courts courts of “unwilling (holding that the Court was to doctrines, A includ- variety diction. wide of theory whereby exis- “[t]he countenance” hearing ing standing, prevent us from injured parties might tence of who cases— irrelevant”). cases—even otherwise meritorious bring to suit wish becomes the on our because of constitutional limits Plaintiffs, however, car- For the resolution matter, general simply I authority. direct, As legal ries no con- particularized, begins an accept argument crete, cannot that practical Accordingly, effect. courts premise “injury with the that the federal cannot Plaintiffs establish jurisdiction dispute. must have over a fact.”10 issue,

10. Although we make we need reach the declaration on Plaintiffs would be to happy. negative psycho- certain- Just note in addition that Plaintiffs almost Plaintiffs as the ly satisfy "redressability'' require- logical consequence government’s of ac- cannot the 560-61, Lujan, satisfy "injury tion is insufficient to ment. U.S. exists; requirement, positive psychological it is on the 2130. The resolution fact” books; policy expression consequence an action is likewise and it is of court’s satisfy “redressability” preferences court is to re- Francisco. This insufficient powerless change opinion quirement. aspect Hints of of redressa- of the Board this See, e.g., subject bility within law. Supervisors on of same-sex are found the case Ashbrook, (holding F.3d at that adoptions. Even if the resolution 489-90 we declared unconstitutional, plaintiff that "has and would continue to come only real effect of (“It standing Plaintiffs lack because no indi- apparent S.Ct. is griev that the vidual Plaintiff “injury can establish in ance sought it is litigate which here is fact.” For that reason and because the not a direct dollars-and-cents but is complaint allege any party fails to that religious difference.”); Barnes-Wallace, directly targeted by the resolution is a 530 F.3d at (holding that “municipal member of League, Catholic Catholic taxpayers must expenditure show an League likewise lacks associational stand- public funds to have standing” (citing ing. See Hunt v. Apple State Ad- Wash. Madison, 793-97)). 177 F.3d at Comm’n, ver. (1977) 2434, 53 that, L.Ed.2d 383 (holding CONCLUSION to establish standing, associational an or- recognize I must, failure to reach ganization among other things, dem- important, disputed onstrate that its constitutional members would otherwise issue leaves something have to sue in right). be desired. But I own cannot ignore the constitutional bounds of C. Municipal Taxpayer Standing jurisdiction: our III, “Article which is ev- Plaintiffs also allege are mu ery important bit as in its circumscription nicipal taxpayers of San Francisco judicial power of the United States injured “have been the abuse granting its power, is not government authority and the misuse of merely a troublesome hurdle to be over- criticize, instruments of possible come if so as to reach the ‘merits’ demean, and their religion attack reli [or, a lawsuit which party as the ease gious beliefs.” Plaintiffs do not allege be, may both parties] adju- to have desires any specific expenditure funds, Valley ...” dicated. Forge, 454 U.S. at and none apparent is from the record. 102 S.Ct. 752. subject We lack matter so, being That Plaintiffs cannot establish jurisdiction. I therefore concur in the taxpayer standing. Doremus, See 342 judgment affirming the district court’s or- 72 S.Ct. 394 (holding that der dismissing the complaint. municipal taxpayers do not because allegation “[t]here is no that this

[government-sponsored] activity sup by any ported separate tax or paid for any particular from appropriation or that it adds sum whatever to the cost of school”);

conducting the id. direct, into schools.”); unwelcome contact Doremus, [reli- in their see also gious] display, would, the removal of which (holding S.Ct. 394 doubt, prevent him”); no further could not suit maintain because the Glassroth, ("[A] 1292-93 graduated favor- had student from the school likely able decision plain- will redress [the decision we "no render could now would injuries. protect tiffs'] If required any rights [the may had”). defendant] is she once have [religious to remove the display] from public area Building, plain- of the Judicial Although argued Plaintiffs have never longer tiffs will no have to observe it or take they municipal taxpayers, as actions going to avoid building.”); into the we jurisdiction must consider indepen- our Parish, (”[I]t Ouachita 274 F.3d at 293 party's dently arguments. of a Because finding certain that a unconstitutionality allege complaint taxpayers Francisco, would plaintiffs' redress injury, it municipal I address taxpay- would practice ... prayer end[ ] the standing. verbal er

Case Details

Case Name: Catholic League for Religious and Civil Rights v. City and County of San Francisco

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 22, 2010

Citation: 624 F.3d 1043

Docket Number: 07-17328

Court Abbreviation: 9th Cir.