Rick DelVecchio reports today in Catholic San Francisco in the Resolution 168-06 case. For those unaware, two San Francisco Catholics (Valerie Meehan and Richard Sonnenshein) are suing the City of San Francisco over the Board of Supervisors unaimous issuing of a March 21, 2006 resolution calling the Church "hateful," etc. The case is currently before the Ninth Circuit Court of Appeals. The plaintiffs are represented by the Thomas More Law Center.
From Mr. DeVecchio's report:
"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?”
Posted by Gibbons J. Cooney