Saturday, October 23, 2010

Catholic League v. San Francisco: "Religion Directly Condemned by the Government." Excerpts from the Dissent

In yesterday's opinion, the dissenting judges, members of the Ninth Circuit (the most liberal and overturned Federal court in the country) made powerful statements:


"We have not found another Establishment Clause case brought by people whose religion was directly condemned by their government."

"The only recent Court decision on government hostility to a particular religion that we have found is the free exercise decision of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, where the Court notes that its Establishment Clause cases “have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.” That case, along with many other opinions of the Court, stands for the principle that government has no legitimate role under the Establishment Clause in judging the religious beliefs of the people — either by praise or denunciation. This principle requires that we nullify San Francisco’s governmental condemnation of Catholic doctrine."

"The municipality argues that its purpose was not to condemn Catholicism, but rather to foster equal treatment of people who are gay and lesbian. That is indeed a legitimate purpose, but we would not have this case before us if that were all that the resolution said. The San Francisco government would face no colorable Establishment Clause challenge had they limited their resolution to its fourth “whereas,” that “[s]ame sex couples are just as qualified to be parents as heterosexual couples.” San Francisco is entitled to take that position and express it even though Catholics may disagree as a matter of religious faith. But the title paragraph, the other five “whereas” clauses, and the “resolved” language are all about the Catholic Church, not same-sex couples."

"Regardless of what the underlying motivation may be for the various individuals on the city council, a court must, in deciding whether a government action violates the Establishment Clause, read the words of the government enactment."

To read Resolution 168-06, go here.

"The resolution also must satisfy the second prong of the Lemon test, that its “principal or primary effect must be one that neither advances nor inhibits religion . . . .” Here, the argument seems to be that the resolution has no effect at all, let alone a “principal or primary” one, because it is merely an ineffectual expression of the Board of Supervisors’ sentiment and not a compulsory regulation of behavior. That argument cannot stand because of the extensive Establishment Clause jurisprudence where government, arguably with similar ineffectuality, endorses religion, and the mere endorsement is deemed unconstitutional."

The “effect” prong of the Lemon test “asks whether, irrespective of the government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” That is to say, a mere message of disapproval, even in the absence of any coercion, suffices for an Establishment Clause violation under Lemon. If the government action conveys a message of disapproval of religion, then it violates the Establishment Clause. The “message” in the resolution, unlike, say, the message that might be inferred from some symbolic display, is explicit: a Catholic doctrine duly communicated by the part of the Catholic church in charge of clarifying doctrine is “hateful,” “defamatory,” “insulting,” “callous,” and “discriminatory,” showing “insensitivity and ignorance,” the Catholic Church is a hateful foreign meddler in San Francisco’s affairs, the Catholic Church ought to “withdraw” its religious directive, and the local archbishop should defy his superior’s directive. This is indeed a “message of . . . disapproval.” And that is all it takes for it to be unconstitutional."

All emphases added.

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