San Francisco resolution is unconstitutional
A San Francisco Board of Supervisors resolution attacking the Catholic Church over adoption was illegal state interference in a religious matter, a Catholic advocacy group told a federal appeals court.
The 2006 resolution was drafted by political activists who have taken very public positions opposing Church teaching on the morality of homosexuality, attorney Robert Muise of the Thomas More Law Center told the U.S. Court of Appeals for the Ninth Circuit in a written brief.
“These government activists see the Catholic Church and its religious beliefs as an obstacle to promoting their political and personal agendas,” Muise wrote. “Consequently, these activists are now misusing the instruments of government to promote their political agenda against the Church by seeking to undermine the Church’s authority on a matter of religious beliefs, doctrine, and teaching.”
The resolution can only be viewed as an attempt to influence the Church on a matter of consistently applied theology, Muise added in oral argument before the court in San Francisco Dec. 16.
Muise, who represents the Catholic League for Religious and Civil Rights and two Catholic residents of San Francisco in an attempt to strike down the resolution as unconstitutional, called the statement “an insult to all San Franciscans.” He told the judges that even if the resolution had been more respectfully worded, it would still constitute government interference in a religious matter.
The court is weighing whether the resolution was an unconstitutional intrusion in a religious matter or a permissible airing of a political disagreement.
The Catholic League and the two individual plaintiffs are challenging an appellate panel’s 2009 opinion upholding the resolution. The panel of three Ninth Circuit judges found that the March 21, 2006, resolution had a secular purpose and thus did not breach the U.S. Constitution’s ban on government establishment of religion.
The resolution urged Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican, “to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.”
The statement called the Vatican a “foreign country” meddling in the affairs of the city and declared the Church’s moral teaching and beliefs on homosexuality to be “insulting to all San Franciscans,” “hateful,” “insulting and callous,” “defamatory”, “absolutely unacceptable,” and “insensitive and ignorant.”
The resolution, adopted by an 11-to-0 vote, also referred to the Congregation for the Doctrine of the Faith as the successor of the Holy Office of the Inquisition and termed Cardinal Levada, a former Archbishop of San Francisco, as “a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear.”
The statement urged Archbishop George H. Niederauer and Catholic Charities to defy Cardinal Levada’s directives.
In oral argument Dec. 16, San Francisco deputy city attorney Vince Chhabria said that the key question in determining the resolution’s constitutionality under the establishment clause is whether the city has a secular stake in stating its opinion on its own adoption policies.
Judge Sidney Thomas indicated that he was sympathetic with that view, noting that the city had a contract with Catholic Charities to place children with adoptive parents. "If we were to take the inflammatory language out, you still have a contract," he said.
Judge Andrew Kleinfeld was critical of the city's argument, cutting off Chhabria as the attorney began to state his position. “That seems like a very distorted approach,” Kleinfeld said.
“Just speaking on a religious subject -- the Supreme Court has told us over and over again that all it takes is an indication of endorsement or counter-endorsement,” he said.
Chhabria responded that government may speak about a religious matter as long as the primary effect is not to become entangled with, or inhibit, religion.
“We don’t question plaintiffs’ assertion that they were disturbed by the resolution,” he said. “Many people are offended by ‘In God We Trust,’ but that doesn’t violate the establishment clause. What I think is mistaken is that being offended violates the establishment clause.”
Judge M. Margaret McKeown said the criticisms in the resolution taken together show a “level of insensitivity.” She asked Chhabria if the impact is not to effectively condemn the beliefs of the Catholic Church.
Chhabria disagreed, saying the language was intended to express disagreement on a matter that had a significant impact on the well-being of San Franciscans. The supervisors spoke loudly because they were reacting to interference in a vital matter, he said.
Kleinfeld responded: “If I were Catholic, my guess is I would be really offended. I can’t accept the premise that it’s not directed at a particular church.”
Chief Judge Alex Kocinski then asked Chabbria: “The city is telling a religious organization how to practice its religion. Do you agree with me to some extent?”
Chhabria said he agreed.
“Is that permitted under the establishment clause?” the chief judge pressed.
Chhabria said he believes it is permissible under some circumstances.
Kocinski then asked, “How is it different than if the city told the synagogues to tell the Jews not to eat pork?”
By Rick DelVecchio
