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

to consider court’s discretion a district RELI LEAGUE FOR CATHOLIC decision, weight of

soundness RIGHTS; Rich AND CIVIL GIOUS appli- potential authority, and contrary Meehan, Sonnenshein; Valerie ard hand when determin- case at cation Plaintiffs-Appellants, permit a just to it is fair ing whether valid otherwise an to withdraw defendant did so here Judge Cebull plea guilty. de- unpersuasive Powers

and found FRAN SAN AND COUNTY OF CITY weight. no serving of Peskin; CISCO; Tom Ammi Aaron Super capacity as a Powers n —an ano in his official sum, issue is whether Supervisors, visor, Board of court decision isolated, non-binding district Defendants- of San dis- that our federal circuit another Appellees. legally unsound—entitles found trict court guilty his valid to withdraw Ensminger No. 06-17328. concluded court The district plea. just reason a fair and present

this did Appeals, States Court United Rule so, under required do Ninth Circuit. 11(d)(2)(B). of discre- was no abuse There July Argued and Submitted ruling. tion so 3, 2009. Filed June

Ill long recognized, “[a] have As we right always have does not

defendant because the decision plea

to withdraw solely within plea of a withdrawal

allow Nos the district court.”

the discretion

tratis, teth at 1208. We remain court did The district to this rule.

ered concluding abuse its discretion Middle Dis from the Powers decision a fair not constitute of Florida did

trict entitling Ensminger just reason Ensminger does guilty plea. his

withdraw 2250(a), § the crimi

not here contend SORNA, provision of penalty

nal con

invalid, exercise of unconstitutional authority under the Commerce

gressional Therefore, another we leave to

Clause. constitutional of this

day the resolution

question.

AFFIRMED.

ality adopted resolution Supervisors the Board (“the Board”) of San Francisco of children concerning the same-sex Catholic such position against adoptions. Church’s League argues adopting Catholic expressed the disap- resolution religion in proval of the Catholic violation First Amendment’s Establishment Because we conclude that the res- Clause. scrutiny, we passes olution constitutional affirm.1 I. March, passed the Board a non- resolution,

binding Res. No. titled: urging “Resolution Levada to Cardinal withdraw his directive to Catholic Chari- Muise, J. Thomas More Law Robert forbidding placement ties children Arbor, MI, Center, appellants. Ann for adoption need of with same-sex couples.” (“Resolution”). Chhabria, provides The Resolution Attorney’s Office Vince Francisco, CA, full: San for appellees. Resolution Cardinal William

Levada, capacity in his as head of the Congregation for the Doctrine of the Vatican, Faith at to withdraw his discriminatory defamatory di- rective Catholic Charities of stop Archdiocese San Francisco JR., HUG, Before: PROCTER placing adoption children in need of PAEZ, RICHARD A. and MARSHA S. with homosexual households. BERZON, Judges. Circuit WHEREAS, It an insult to all San PAEZ; by Judge Opinion Concurrence foreign country, Franciscans when a like BERZON. Judge Vatican, and attempts meddles with great PAEZ, negatively City’s influence this Judge: Circuit existing and established customs and for Appellants, League Reli- right such as the traditions gious Rights, Dr. Richard and Civil Son- adopt couples to and care for children in nenshein, (collectively, and Valerie Meehan need; and League”), or “the League” ap- “Catholic WHEREAS, rights peal of their civil ac- The statements dismissal Cardinal § tion under U.S.C. failure to Levada and Vatican “Catholic agencies place state a claim. At issue is the constitution- should not children for § jurisdiction 1. We under U.S.C. have households,” agencies in homosexual and Catholic social services should not

adoption “Allowing adopted per- children to be place gay children need of with actually in such living sons unions couples.2 or lesbian Cardinal Levada is doing mean violence to these children” Congregation head of the the Doc- absolutely unacceptable to the citi- body trine of the Faith —an official within Francisco; zenry of San that, according the Catholic WHEREAS, Such hateful and discrimi- charged complaint, “promoting] natory insulting rhetoric is both and cal- and safeguard[ing] the doctrine on the lous, of insensitivity and shows level faith throughout morals ignorance which seldom been has quotes world.” Resolution by Supervi- this of encountered Board a statement in 2003 document issued sors; and the Congregation, titled “Considerations WHEREAS, just Same-sex Regarding Proposals Legal Recog- to Give qualified parents as to be as are hetero- nition to Unions Between Homosexual couples; sexual and (“Considerations document”). Persons” WHEREAS, is a Cardinal Levada decid- The Resolution does not name or specifi- edly unqualified representative of his cally document, refer the Considerations city, people former home and of the of but League alleges the language San Francisco and the values hold “Allowing adopted by per- children to be dear; and living sons in unions [homosexual] WHEREAS, Supervisors The Board actually doing mean violence to these chil- urges Archbishop and Niederauer dren” is taken the 2003 document. Catholic Charities the Archdiocese of Shortly adopted after Board defy discriminatory San Francisco to all Resolution, a League filed Levada; now, of Cardinal directives § U.S.C. suit Northern District therefore, be it California, alleging that the Resolution RESOLVED, Super- That the Board of violates the Establishment Clause ex- Levada, Cardinal urges visors William pressing disapproval of hostility to- capacity his Congregation head of the wards the Catholic Church and Catholic for the Doctrine Faith of the at the League sought tenets. Catholic (formerly Holy Vatican known as Office damages, “nominal a declaration that this of the Inquisition), to withdraw his dis- unconstitutional, anti-Catholic resolution is criminatory defamatory directive permanent injunction and a enjoining this that Catholic Charities of the Archdio- resolutions, pronounce- other official cese of stop placing San Francisco chil- ments, or against declarations Catholics dren in of adoption need with homosexu- and their religious beliefs.” al households. passed Defendants-Appellees3 this filed a resolution re- Fed- 12(b)(6) sponse to a eral then-recent directive from Rule of Pre- Civil Procedure mo- Levada, dismiss, fect Cardinal William instructing tion to which the district court granted Archdiocese San Francisco that thorough a and well-reasoned communique part Supervisors, City Cardinal Levada’s County San Francis- co; Ammiano, in this record case. capaci- and Tom in his official ty Supervisor, Supervisors, City as a Board of Defendants-Appellees 3. The include the County San Francisco. Peskin, Francisco; County of San Aaron President, capacity in his official Board of long pervasive religion played Lemon has social three-part Applying the decision. role; religion towards test, court conduct district determined judged unique circum- second- “must be did not have a Resolution nor to determine whether constitutes religious purpose stances ary predominant to a hostility or of reli- an endorsement expressing effect v. Lynch Donnelly, and that the U.S. religion gion.” the Catholic (1984) govern- 79 L.Ed.2d excessive S.Ct. did foster resolution (O’Connor, J., concurring). See entanglement religion. ment (1971); Kurtzman, 403 v. U.S. Lemon apply three-part We Lemon League City and to determine whether test F.Supp.2d through endorsement of conduct—either (N.D.Cal.2006). result, court con- As a religion or towards it—-violates failed state League that Catholic cluded the Establishment Clause. Government § 1983 violation of under a claim “(1) if it has pass will muster Clause and dismissed Establishment purpose; principal has a timely appeal- League complaint. Catholic effect that neither advances nor ed. (3) does disapproves religion; not entangle governmental foster excessive II. religion.” Vasquez, 487 F.3d ment with at for fail- de novo a dismissal We review Lemon, (citing 403 U.S. 91 12(b)(6). a claim under Rule to state ure 2105). any of satisfy Failure to these S.Ct. Angeles County, 487 F.3d v. Los Vasquez inquiries condemns con three (9th Cir.2007). addressing 1246, as unconstitutional. duct accept the posture, in this we must cases often Although the courts have not had true, and complaint in the as allegations to determine whether occasion in favor of reasonable inferences draw all religion, disapproval effects a “ However, ‘conclusory alle- plaintiff. endorsement, the to an Establish opposed inferences’ gations of law unwarranted applies neutrality mandate ment Clause’s motion proper not defeat otherwise will guided equal force. We here v. U.S. (quoting Schmier to dismiss.” Family analysis by American Associa our Circuit, Appeals the Ninth Court tion, only disapproval one of a handful Cir.2002)). (9th 817, cases, set of which dealt with another reso adopted by the San Francisco lutions III. Supervisors. Family American disapproval en mandates Association treated ‘First Amendment “[T]he flip-sides of the same coin— religion neutrality between dorsement governmental underlying legal tests and First and non- the same religion religion and between ACLU, phrased apply. values We McCreary County v. Amendment religion.’ ways— 860, 2722, 844, principle several applicable 545 U.S. religion, disapprove Epperson the state (quoting L.Ed.2d religion, nor inhi Arkansas, 97, 104, express S.Ct. 393 U.S. Ass’n, (1968)). Family religion, American This constitution bit 21 L.Ed.2d 228 used the three 11224 —and requires and nuanced F.3d mandate careful al interchangeably. in a ours where terms society like consideration Aye, Babalu Inc. v. Lukumi language appears to come 4. The A. guage, it passed the resolution for secular purposes.5 step The first in the Lemon anal ysis is to discern government’s actual explained As we in American Family purpose in taking challenged action— Association, question we do not whether case, adopting this the Resolution. A wise; the Board’s actions were “rather we “predominantly religious purpose” violates determine the constitutionality of those ac- . the Establishment Clause McCreary tions.” 277 F.3d County, 545 U.S. at 125 S.Ct. 2722. at 1122. See also Brown v. Woodland action, however, Government satisfies the District, Joint School Unified purpose prong if it “grounded in a secu (9th Cir.1994) (“[0]nce the state lar purpose.” Vasquez, 487 is free to a secular use means of attaining Furthermore, legislature’s “[a] stated rea required is not goal, use an alterna- generally deference, sons will get [but] tive secular means that likely is less to be purpose required genu has to be religion.”). sure, associated with To be ine, sham, not a merely secondary spoken Board could have gentler to a with a religious objective.” McCreary Coun 864, 125 tone, ty, strength 545 U.S. at but the S.Ct. 2722. of the Board’s lan- guage alone does not transform a secular Catholic League argues that it is purpose into a one. The constitu- evident from the face of the Resolution tional question remains whether City’s predominant purpose was in adopting the Resolu- to attack beliefs. The tion was secular in nature. In other League points to the resolution’s harsh words, we must first decide whether the and forceful language as betraying the in purpose Board’s criticizing the Cardi- Board’s true intentions: “discriminatory,” nal’s directive was of “defamatory,” “absolutely unacceptable,” doctrine, or a call for “hateful non-discrimination in and discriminatory,” “insulting callous,” adoption children, the and of and “showflng] a level second of insensitivity ignorance whether for which has Establishment pur- sel Clause dom been poses encountered.” The Board coun there is a difference between the that, ters despite the inflammatory lan- two.6 Hialeah, City 520, 532, 508 U.S. 113 S.Ct. Supreme believe that the Court has of articulat 2217, (1993), 124 L.Ed.2d 472 test, slightly a Free ed stringent more which re Exerr case; cise Clause language the inhibit quires that the 'actual' 'primary' purpose Lemon, Lemon, drawn from see 403 U.S. at government secular.”). of the action be 612, 2105, predecessors, 91 S.Ct. clarifies, however, and its McCreary in County cluding Abington School Dist. Tp. inquiry is whether the acted with 203, 222, Schempp, 1560, 374 U.S. 83 S.Ct. "predominantly” purpose. See (1963). 10 L.Ed.2d 844 862, McCreary County, 545 U.S. at 125 S.Ct. ("predominantly 2722 purpose”); 863,

5. Our id. at ("predominant earlier 125 S.Ct. 2722 pur cases held that even one secular purpose is, pose 881, advancing religion”); out of several was sufficient. That id. at 125 S.Ct. 2722 ("predominantly purpose prong pur failed "the 864, 'only pose”); (secular if it id. at wholly by [was] motivated 125 S.Ct. 2722 imper an purpose purpose.’ missible "merely secondary cannot be Ass'n v. to a City religious objective”). San 277 F.3d 1114, (9th Cir.2002) (quoting Kreisner v. 775, City Diego, (9th San Cir. 6. We revisit the Resolution’s tone in the ef- 1993)). But Angeles, see Vernon v. Los analysis, fects where the language choice of 1385, (9th Cir.1994) ("[W]e impact. have a different forbidding place- the be Charities eyes purpose that look to “The ” McCreary ‘objective adoption in observer.’ children need of with long to ment of 862, U.S. at 125 S.Ct. County, emphasize, the couples.” And to Independent School Santa Fe (quoting declares: “Resolution preamble 308, Doe, 290, 120 S.Ct. 530 U.S. Dist. v. Levada, capacity in his Cardinal William (2000)). objec L.Ed.2d 295 the Doc- Congregation as head famil to be presumed is “one tive observer Vatican, at to the Faith with- trine of history government’s of the iar with defamatory discriminatory and draw his histo competent to learn what actions that of the directive Catholic Charities 866, 125 S.Ct. show.” Id. at ry has to placing stop of San Francisco Archdiocese objective ob describing In so 2722. in with homosex- adoption children need server, Supreme has instructed Court This born out ual households.” theme is out of the cannot “cut the context” we that paragraph, places which opening 125 S.Ct. inquiry. purpose in the Francis- Resolution context Examining the Board’s resolution customs and “existing co’s established context, correctly con the district court right such as the of same-sex traditions observer cluded adopt and care for children couples behind purpose a secular ascertain text, need,” throughout and continues Resol adoption Board’s explains which “[s]ame-sex ution.7 just qualified parents as are to be argues predominant that its The Board couples.” apparent It is heterosexual Resolution was adopting the purpose the Resolution about non-discrimination against same-sex discrimination “denounce adoption. for San try preserve and to couples, ' addition, timing of the Resolution to be opportunity children the Francisco supports lends further context and families qualified placed McCreary purpose. asserted See orientation.” regard to sexual without County, 545 U.S. the title is set out both That Fe, Santa 530 U.S. Indeed, (quoting of the Resolution. preamble 2266) (“[Reasonable have observers S.Ct. urging Cardi- the title states: “Resolution memories, precedents to and our directive reasonable Levada to withdraw his nal unknowable, 'purpose' purpose always called that “true is Although the test has assertion 7. pur- merely [is] search an excuse for courts government’s the actual and its on us to discern selectively unpredictably picking in 277 F.3d at act and pose, to see Kreisner, 782, 1121; McCreary McCreary subjective evidence of intent.” 1 out 861, recently inquiry. County, U.S. at 125 S.Ct. 2722. As County sharpened the The inquiry explained, purpose is evalu- Court the purpose announced that must be Court the. cherry pick; objective ob- an to courts to perspective the an not invitation ated from of instead, “scrutinizing purpose make suggested does The Circuit has server. Second sense, McCreary Clause County practical courts must in Establishment after the that understanding an of official inquiries analysis, to where engage in two now distinct —one ' emerges readily discoverable purpose, objective government’s the actual” assess fact, any judicial psychoanalysis of a without government's to “the and another ask how 862, 125 perceived objective heart of hearts.” Id. at purpose by an observ- drafter’s 1, York, City Toward the Court rioted S.Ct. 2722. that end Skoros v. New er.” ,. Cir.2006) belong (2d (internal eyes purpose that quotations omit- look to ”[t]he that' ” words, ted). County 'objective other McCreary observer.’ In We do read objective takes evaluating who part inquiry we use the observer — one adopting a two history discern the objec- and context — to purpose. By adopting an account test, purpose. “actual” petitioners’ government’s Court the tive dismissed sensibly discriminatory, ‘to turn less is defamatory, forbid an observer a blind and eye policy expresses to the context in which toward their [the] hateful — Fe, homosexuality beliefs that (quoting arose.’ Santa U.S. “deviant,” 2266)). disordered,” 315, “intrinsically and Congregation 120 S.Ct. The homosexual of grave acts are “acts de- for the Doctrine the Faith issued its pravity,” “clearly homosexual unions are against gay clarion call legalization and immoral,” ... “[allowing and- children to unions, exposition lesbian as an adopted by be in persons living such un- belief, in It not until was March ions would mean actually doing violence 2006, days after Cardinal Levada directed to these children.” Charities, agency a social services City stop plac of San noted, As the district court same-sex ing children adoption gay adoption is “a secular dimension of couples, lesbians adopted City’s culture City and tradition that the Keeping this resolution. mind the con specific believes is threatened di arose, text which the Resolution rective issued to the Archdiocese.” Catho League, F.Supp.2d lic observer would conclude at 944. Board considers its Resolution as a adopting secular Resolu message promoting same-sex respond tion was to ato action that —a message that bevy is in accord with a affect gay would both its and lesbian con California and San Francisco pol laws and stituents, as well as children in the promote equal icies that rights for gays City jurisdiction. County’s families, and lesbians and their see In re couples, Board’s focus on same-sex. was Cases, Marriage 757, 43 Cal.4th 76 Cal. Catholics. (2008) (docu Rptr.3d 183 P.3d 384 Moreover, reviewing court “[a] must be menting City County of San Fran ‘reluctant to attribute unconstitutional mo- plaintiff cisco’s ás a involvement tives’ to government actors in the face of a litigation legalize same-sex marriage); Kreisner, plausible purpose.” Lockyer City San Fran Allen, F.3d at 782 (quoting Mueller v. cisco, 17 Cal.Rptr.3d 33 Cal.4th 388, 394-95, U.S. 95 P.3d (holding (1983)). L.Ed.2d 721 light pro- this County officials lacked the authority to scription, and the Resolution’s focus on marriage issue licenses to same-sex cou goal and stated of protecting promot- ples, practice they adopted at May- ing adoption by couples, an ob- direction); or’s § SF Admin. Code 62.1 jective observer conclude (officially recognizing partner domestic to champion needy was § ships); SF Admin. 12B1 (prevent Code children, lesbians, gays, and same-sex cou- ing entities that contract with the ples jurisdiction; within officially its not to from discriminating the basis of on sexual disapprove of the faith Catholic or its reli- orientation, partner status, domestic or gious tenets. status), marital and resolutions that de maintains, League however, Catholic nounce against gays discrimination that this is a distinction without a differ- sources, lesbians from all see pp. infra argues ence. It that the Board’s support (listing 606-07 Francisco Board of Su resolutions). for same-sex adoption, and its un- pervisors basic put To derlying assumption that same-sex plainly, cou- it what the Board considers secu ples lar, should be no differently treated than considers League hostile to heterosexual that anything religious tenets. —and intended to deliver ... is insufficient gress not uncom- characterization is dual This finding on that that the statute recognized have to warrant long mon. Courts beliefs, views, advancing positions face has the effect secular certain (not- views, beliefs, 605, id. at religious religion.”); 108 S.Ct. with coincide cases, government In such as an alter- ing “promoting] that positions. to a secular respect parents]” ap- action with adolescent is an [for or native speech re- “inherently religious, endorsément not proach is not considered that is issue government’s simply may approach because it ligion although coincide with tenets. Brown, are consistent with views certain religions.”); taken is, (“ have both the same belief can That consistency at 1381 with ‘[M]ere dimensions; gov- and secular tenets is insufficient to constitute stripped pur- is not of its secular ernment religion.’ advancement of unconstitutional concept can because the same simply pose v. (quoting Smith Bd. Sch. Comm'rs of religious. See McGowan be construed (11th 684, County, Mobile 420, 442, 81 S.Ct. Maryland, v. U.S. Cir.1987))).8 sum, consistency In if with (“[T]he 1101, ‘Estab- L.Ed.2d 393 is not of reli- religious beliefs endorsement or federal Clause does not ban lishment’ inconsistency to it. gion, is whose reason regulation conduct state opinion Family Our Asso- or merely to coincide happens or effect In particularly instructive. ciation all or tenets of some harmonize religious groups sponsored several instances, many In Con- religions. advertising campaign multimedia titled that legislatures conclude gress or state Family “Truth Love.” American wholly apart society, welfare of general advertisement, at 1118. considerations, de- any religious Chronicle, in the printed San Francisco regulation .... fact [T]he such mands any that “God abhors form of sexual stated of the agrees with the dictates policy] [a sin,” including homosexuality, and claimed religions while Christian Judaeo help gays and les- that Jesus Christ could not invalidate with others does disagree homosexuality out into bians “walk[] Kendrick, regulation.”); Bowen celibacy.” Id. at 1119. The ad also sexual U.S. homosexuality, included “statistics” about (1988) (“On sensi- an issue as L.Ed.2d 520 infections, sexually transmitted and “de- sexuality, it important teenage tive and behavior.” structive surprising the Government’s response campaign, In the San ad concerns would either coincide Supervisors Board of sent a let- Francisco of religious those institutions. conflict with campaign plaintiffs (among ter to the other likelihood possibility or even the But stating “Supervisor Leslie sponsors), who institutions that some your rhetoric Act fund- Katz denounces hateful Adolescent Life receive gays, transgendered agree message against with the that Con- lesbians and ing will Molinari, message F.Supp.2d gion____ criticizing Okwedy v. 8. See (E.D.N.Y.2001) (rev’d homosexuality, part Okw Molinari did intolerance 519-20 Molinari, Cir.2003)) (2d (quot violate the Clause.” edy 333 339 not Establishment v. F.3d Smith, 692)); ("Government message ing F.2d Gheta Nassau of a dissemination College, F.Supp.2d entirely ap diverse Co. Comm. views ‘is tolerance (‘‘[I]t effect,’ (E.D.N.Y.1999) unconstitutional mere consis is not propriate secular and its happen religious principles to coincide ten to criticize tency inconsistency with the or religious teachings of certain to constitute ets of certain faiths insufficient groups.”). of reli- an unconstitutional establishment and lesbian gay and that “there is a direct correla- tives on issues are rooted people,” discrimination, these acts of in religious tion between belief cannot overwhelm gays as when are called such lesbians gay fact that and lesbian are also issues organiza- major religious and when sinful matters. policy Any ap- secular other tried, say they can change if tions proach stymie government’s ability against horrible crimes committed on all “potentially to take action lesbians,” such as brutal'mur- gays issues, abortion, use, including alcohol The Shepard. der of Matthew Id. other sexual issues.” at 1123. [and] adopted then two resolutions —one simply That purpose or function sexual legislators to or- Alabama include govern- of the Establishment Clause. The legislation, their hate ientation crimes among maintain neutrality ment must reli- calling Right on “Religious to take gions religion between and nonreli- accountability impact long- for the of their gion, but it cannot be to it. hostage held standing denouncing gays rhetoric and les- pur- It is well within the Board’s secular id.; bians,” addressing the other the ad- promote adoptions view to of children vertisements. The second resolution and denounce discrimina- the ad’s statistical “erro- called assertions “general society.” tion for the welfare of lies,” and full neous and stated that the McGowan, 366 U.S. at 1101. campaign encouraged maltreatment of and against gays violence and lesbians. Id. at B. 1120. Although the purpose was plaintiffs, organizations, secular, the resolution still violate the Board, §a against filed 1983 action if Establishment Clause princi “has the claiming that the letter and resolutions pal primary or effect of advancing or inhib violated the Establishment dis- Clause Ass’n, iting religion.” American Family of a approving “particular religion.” Id. effect, F.3d at To ascertain we we appeal On concluded that the defen- “it ask whether would be rea objectively plausible pur- dants’ actions had a secular sonable for the be pose and the effect of docu- sending primarily message construed in question “encouraging equal ments was of either endorsement or gays rights discouraging hate religion.” Vernon v. City Angeles, Los crimes,” id. at “to- (9th Cir.1994). This wards view that homosexuali- inquiry is conducted “from (em- perspective immoral,” ty is sinful id. added). of a ‘reasonable observer’ in who is both phasis recognized the dual We reasonable,” formed and American Fami homosexuality, nature views on and de- ly 277 F.3d at 1122 (quoting termined that San Kreis Francisco should not be ner, 784), hamstrung in simply be- and who is “familiar policy position history its secular government prac cause was at odds with with the views; Kreisner, perspec- certain that some tice at issue.” F.3d at 784.9 ation, previously ensuring ques- 9. We encountered observer in this he addresses both nuanced, purpose inquiry. Post-McCreary County our tions from same contextualized remain, objective perspective. we turn to the observer assess Two differences howev- First, question both and effect. purpose inquiry, arises er. whereas in the we " inquiries substantially whether these have 'reluctant attribute unconstitutional instances, merged. In both ob- motives' to actors in the of a face Kreisner, history plausible purpose.” server takes context and into consider-

605 isolation, above, convey may disparage- be said to the Board’s un As discussed of non-discrimination Church. equivocal promotion ment towards the Catholic But to is couples adoption against Clause, same-sex be violative of the Establishment secular, of whether the Catholic regardless those statements must overwhelm the Res- to it opposed as a be Considering olution’s secular dimensions. promotion is whether question tenet. The whole, its the Resolution as a with focus on reasonably is under of same-sex City’s promoting the tradition de- message conveyed primary stood as the fending relationships, same-sex do enough It is not that by the Resolution.10 not. ” “ ‘infer’ of Catholic might one Again, League argues Catholic that the rather, tenets; disapproval or in “ conveys a language message Board’s harsh ‘objectively be hibition must construed above, disapproval. explained As we focus or effect.’ American primary strong generally, the Resolution’s lan- Ass’n, (quoting F.3d at 1122 Family 277 speaks message: guage to its secular “de- 1398-99).11 Vernon, 27 nounc[ing] against discrimination message by the conveyed primary The by couples” supporting adoption such large part scope on the Resolution turns children need. Resolu- which we it. We through of the view lens tion, however, statement, targets sufficiently is that a broad lens believe attributed to Levada Cardinal Vat- read the Resolution essential. We must “Allowing adopted ican children be whole,” Family “as a American unions persons living such 1122; message can affected its be actually doing mean violence these chil- analyzed given its and must be context dren,” it, among things other calls Lynch, circumstances.” “unique “absolutely unacceptable citizenry of (O’Connor, J., U.S. at 104 S.Ct. That statement sure, San Francisco.” comes To be there are state- concurring). document, that, from the the Resolution taken in Considerations which ments in Allen, League argues that (quoting Mueller v. U.S. 11. Catholic if Resolu- conveys any message 103 S.Ct. L.Ed.2d tion (1983)), presumption applies such in the no secondary, religion it terti- —be Moreover, analysis. ob- effects ary, or otherwise—the Resolution fails the presumed to server must be understand test, Lemon and the district court erred as a government between what in- difference concluding matter law in produces. it tends and what primary dispositive. purpose is message prong asks what League's argument unavailing. prece- Our convey, prong while effects asks meant to dents that we treat no make clear inhibition government actually message the con- what advancement; differently we are than tasked veyed. Lynch, U.S. at primary determining whether the effect J., (O’Connor, concurring). Given the challenged government action endorses gay history salience of San Francisco's See, religion. disapproves religion or a or advocacy inquiry, each two lesbian Ass'n, e.g., 277 F.3d at 1122 questions closely related here. ("[T]he prong of this is on focus conduct.”) matter, government's (empha- we note it is not effect of the As an initial Vernon, non-binding immediately reso- original); obvious F.3d at 1398 sis definition, By any (“|T]he has “effects.” lution key in this second consideration imposes regulation obligation. Estab- no prong analysis whether the ac- cases, however, regularly Clause lishment ‘primarily’ disapproves of tion be- display symbolism. holiday Just as a turn on liefs.”). convey message, too can so resolution. was exposition is an Catholic tenets those statements complaint explains of secondary at best. alone, Standing tenets.

Catholic therefore, might con- observer persistent The Board’s extensive and expressing disap- that the Board was clude practice of passing resolutions belief, of Catholic rather proval denouncing against gays discrimination endorsing position. a But the than shapes message and lesbians also It alone. is em- statement does stand conveys. Resolution Board’s secular larger in the Resolution which is bedded of aspects defense same-sex all adoption. same-sex primarily defense of of life is the dominant theme of the fairly be one statement cannot said to Board’s actions. See Resolution No. 73- That (“Resolution urging primary Supreme embody message. the Resolution’s Court of the States to United rescind urges “Archbishop Resolution hearing accept their refusal and to of and the Charities of Niederauer Catholic legal to challenge prohibition Florida’s defy Archdiocese of Francisco to by gays of adoption of children and lesbi- discriminatory of all directives Cardinal (“Resolution ans”); Resolution No. 129-06 Levada,” urges William “Cardinal Le- ruling urging the IRS to reconsider them vada, capacity in his head of the as Con- Community on Domestic Partners for the Doctrine of the gregation Faith (“Res- Property”); No. Resolution 166-06 (formerly Holy Vatican known as Of- urging Schwarzenegger olution Governor of to Inquisition), fice withdraw his brief to Su- submit amicus New York defamatory discriminatory and directive.” preme of Appeals support Court of League argues that those state- Catholic right marriage”); civil same-sex Reso- express religion/Ca- ments (“Resolution lution No. 364-06 condemn- tholicism, they and that are not incidental ing sanctioned violence primary message, but rather place took during chaos which Mos- agree the message. define We with the march”); Gay cow’s first Pride Resolution court’s observation that “[t]he district fact (“Resolution urging No. 127-05 ... Secre- City commenting poli- was on the tary to publicly apologize of Education cy regard of the Archdiocese in this does lesbian, bisexual, gay, transgender not violate the Establishment Clause sim- community”); Resolution No. 454-05 activity ply adop- because the secular [i.e. (“Resolution condemning the offensive being performed by was a tion] discriminatory training video shown organization.” League, players”); San Francisco 49er Resolution Bowen, F.Supp.2d at 945 (citing (“Resolution 487 U.S. No. 308-03 Senator 2562).12 any event, step Rick down his Santorum to however, given the Resolution’s in the leadership position Republican Par- message of promoting adoption, ty and to apologize his comments any conveyed particular [comparing homosexuality to polygamy, clear, distinguish judicial 12. To be we do 13. The district took between court notice record, implementation beliefs and of those public these matters resolutions as directive, beliefs. The far as the as League, F.Supp.2d see Catholic concerned, very may just well be Angeles, do we. Lee v. Los "religious” as statements belief in the Con- Cir.2001) (9th ("[A] may take court document. The siderations Board's state- judicial notice of matters record” respect ments to the directive none- (internal omitted)). quotation convey message be secular theless adoption. non-discrimination incest, adultery]”); holding government practice No. a Resolution unconstitu- and Ass’n, (“Resolution Family Dr. Laura tional.’ American 199-00 Brown, 1383). at (quoting inac- at 1123 27 F.3d making to refrain from Schlessinger gays and lesbians curate statements about League’s primary argu hate”); see that incite violence and that the ment is resolution fosters exces 277 F.3d “an entanglement by taking official sive (concluding and two that letter 1119-23 doctrine,” religious on position that Board of by the San Francisco resolutions has attempted “improperly the Board criticizing religious groups Supervisors authority influence Church and meddle in violate denouncing homosexuality did not affairs.” The case cited Catho Clause). the Establishment League, lic Commack Kosher Self-Service setting” can holiday as the “overall Just Meats, Weiss, (2d Inc. v. 294 F.3d 415 creche, message conveyed by change Cir.2002), simply support does ar though not “typical setting, museum gument Res religious a reli- neutralizing the content of entanglement. fosters olution excessive negates message of gious painting, any Commack that New York’s held statutes content,” Lynch, of that endorsement fraud prohibiting in the sale of kosher food (O’Connor, J., 692, 104 S.Ct. U.S. at violated Establishment Clause fos- concurring), the Board’s well-established tering entanglement. excessive Id. 425. equal- practice responding whenever The Second Circuit concluded that into ity and lesbian families is called gay “excessively entangle government laws necessarily message question colors the (1) religion they because take sides in a adopting conveyed by the Resolution. matter, religious effectively discriminating Resolution, prac- past consistent with in favor of the Orthodox Hebrew view tice, sought champion same- the Board dietary requirements; require [and] sex families and non-discrimination as position to take an State official on gays and lesbians. An observer religious doctrine....” Id. would understand much. The laws challenged Commack are C. in kind different than the Board’s Resolu- Last, New we consider whether tion here. York’s kosher fraud laws in a matter in governmental religious excessive took sides “foster[s] kosher, one entanglement religion.” Vasquez, took definition of codified it, it, entangle- regulated at 1255. to the exclusion “Administrative competing involves dis- of kashrut typically comprehensive, ment other doctrines with- criminating, continuing state surveil- in Judaism.14 See id. at 426. The laws Vernon, religion.” position religious took an official on lance doc- “politi- Entanglement determining 1399. in the form of trine because whether each divisiveness,” is, cal ac- requirements, food article met kashrut’s interpret religious that cause the to fracture the State had to tions “either “ lines, interpretations re- along religious ‘has never been doctrine or defer to the independent By officials.” at 427. upon ground lied con- Commack, preparation explained “kashrut” is consumed as As be well as term 'ko- “the Hebrew noun from which the those foods” under this "centuries-old Jewish derived,” "encompasses Commack, the en- sher' law.” F.3d at 418. body relating rules tire to foods contextualized, trast, codify Properly the Board’s did Resolution Resolution ef- does not have the It strain of did not one Catholic belief. expressing hostility fect of matter,” Catho- in a nor an “take sides beliefs, lic and it does not foster doctrine.” position on “official government entanglement excessive with in view a expressed its secular Accordingly, the Catholic Church. pub- non-binding resolution on a matter judgment of district court is AF- policy. lic FIRMED. attempt to in Nor does the Resolution policy way Church in a that creates fluence BERZON, Judge, Circuit concurring: sure, the entanglement. excessive To be it majority’s opinion, I concur in govern prohibits Establishment Clause carefully faithfully applies contempo- and in a dis intervening ment rary jurisprudence Establishment Clause The federal courts “are not arbiters pute. circumstance, disapprov- to an unusual Thomas v. scriptural interpretation.” approval al religion, rather than embod- Bd., 716, 707, Review 101 S.Ct. U.S. single Supervisors ied in a Board of resolu- 1425, (1981). But 67 L.Ed.2d 624 no governmental tion linked to affirmative with Board has crossed that line regulation displayed any continuing nor resolution; en the resolution any public fashion in location. no policy regulation simply acts or —it In particular, largely this case is con- on same- position statement Family American Association by trolled adoption.15 sex San and (9th Cir.2002), F.3d 1114 which in- also IV. Supervisors volved Francisco Board of is inevitable that inter- “[I]t the secular supporting equality by gays resolutions for ests and the inter- calling upon persons views of various ests sects and their adherents instance, contrary calling —in conflict, frequently intersect, will and com- “Religious Right,” on the to cease de- Jaffree, bine.” Wallace v. 38, 69, U.S. opposing nouncing and tolerance toward 2479, 105 S.Ct. 86 L.Ed.2d gays Similarly and lesbians. to the Reso- (O’Connor, J., judgment). concurring in issue, ones American lution here at Invalidating government where this Family religion-based anti-gay denounced “ ” overlap present incidental create lies,’ full views as ‘erroneous and and id. at “chaos,” anti-gay denounced advertisements “ cripple government’s ability to take Religious Right” “the an ‘creating] “action that potentially reli- affect[s] [all] atmosphere oppression which validates issues, abortion, gious including alcohol lesbians,’ gays encouraging mis- use, [and] other sexual American issues.” treatment of and violence toward them. Family 277 F.3d at 1123. The Family Id. at 1119-20. The American rights same-sex families are no differ- recognized that majority “the documents ent. contain from which may statements be complaint alleged allegation that the Board reference this its brief is not funding "threatened to from Catho- why sup- withhold argument allegation as to this violation; lic Charities of the of San Fran- Archdiocese ports an Establishment Clause teaching cisco if do not violate Church allegation consider therefore we this aban- oppose authority.” The district League's doned as a basis Estab- allegation did court not address this in its lishment Clause claim. analysis. League's cursory Lemon that amount to positions will not take are hostile [supervisors] inferred condemning policy of a their that homosexu- establishment religious view belief,” id. at and that reso immoral,” id. but ality is sinful in American Fam whole, lutions such as the ones that, as a concluded ily and the one this case near —if “encouraging the documents was effect of separates not at—the line establish discouraging rights gays equal that, policy. crimes,” as ment of such id. hate prong here, entanglement excessive “[t]he reason, I it critical that For that think easily fit the current case.” does the result and in this at 1123. as limited three case be understood first, regulation that no for a different only possible basis considerations — case than in American all was attached to the in this outcome resolutions — governmental purely speech, law were albeit Family is that Establishment Clause second, American speech speech; was refined since slightly has been public, appears as far as broadcast to Family, requires, purpose now for the only by in the enactment of opinions, analysis, governmen- prong itself, other, any and not in the resolution predominantly have a reli- tal action not permanent way intrusive and gov- more rather than that gious purpose, —for wholly through public places, in example, plaques be “motivated ernmental action Id. at 1121. or advertisements newspapers or on purpose.” impermissible ACLU, radio; third, that the resolutions were McCreary County 545 U.S. See pervasive, not but discrete. If repeated 162 L.Ed.2d different, (2005). were any here of these circumstances purpose But the secular would think that the notion that there than I considerably more evident religion rather was an establishment of Family, as the Resolution was American predominant than of a secular pursuit opin- simply expression directed predominantly a secular ef- purpose with re- particular, secular but at ion force, considerably more fect would have adop- place Charities sult—that Catholic So, might the result be otherwise. couples. That with same-sex tive children public campaign example, pervasive one, plainly predominant purpose is city shop- for not by a to condemn Jews Resolution does criticize although the Saturday on or Muslims observ- ping adoptions disapproving document Vatican the effect on the ing Ramadan because of no couples. I therefore see by same-sex trigger Estab- economy probably American distinguishing basis pres- concerns not here lishment Clause McCreary, any differ- on the basis need not address such matters ent. We purpose of the secular strength ence in the Resolution, here, however, as far as stronger in favor of a cuts shows, passed was but then left the record McCreary here, to meet sufficient dormant, pervade public and so did standard. or Catholics as perception Catholicism said, I do find result All of campaign. would a advertisement troublesome, agree and find much to caveats, opin- I concur With those eloquent dissent Judge Noonan’s ion. Family. American Fami See (Noonan, J., dis ly, 277 F.3d at 1126-28 acutely I am

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Case Details

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

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 3, 2009

Citation: 567 F.3d 595

Docket Number: 06-17328

Court Abbreviation: 9th Cir.