Split Ninth Circuit Rejects Catholic League Suit

But the issue is apparently not decided.

The Catholic League's suit is an ongoing part of the Catholic Charities/Family Builders by Adoptions fiasco. As we argued in part two of a June 7, 2009 post, the true genesis of this lawsuit was not the action by the city, in issuing Resolution 168-06, but the action by Catholic Charities CYO of San Francisco:

"...the lawsuit was in response to the resolution by the city, which was in response to a statement from the Vatican, which was in response to actions by Catholic Charities. The entire series of events was set in motion by Catholic Charities’ defiance of the teachings of the our Church."

From today's San Francisco Chronicle:

"A splintered federal appeals court rejected a lawsuit Friday by Catholics who objected when San Francisco supervisors condemned the Vatican for prohibiting Catholic Charities from placing adoptive children with gay and lesbian couples.

The Ninth U.S. Circuit Court of Appeals in San Francisco denied requests by a Catholic organization and two local residents to order the city to repeal the supervisors' 2006 resolution.

But the 8-3 ruling failed to decide whether the city had expressed official hostility toward Catholicism, in violation of the constitutional separation of church and state."

Three judges said yes, Resolution 168-06 was anti-Catholic, three said no, and five said the Ninth Circuit did not need to decide the case:

"Only six judges addressed the question of whether San Francisco had attacked Catholicism, splitting 3-3.

Judge Andrew Kleinfeld, joined by Judges Sandra Ikuta and Jay Bybee, said the resolution was anti-Catholic, portrayed the church as a 'hateful foreign meddler in San Francisco's affairs,' and entangled the city in 'church governance' by urging the local archbishop to defy the Vatican.

Judge Barry Silverman, along with Judges Sidney Thomas and Richard Clifton, countered that the resolution had a legitimate non-religious purpose, 'to promote equal rights for same-sex couples,' and the supervisors were entitled to criticize church officials who 'have chosen to enter the secular fray.'

The other five judges said there was no need to decide the issue. They said private citizens who are merely offended by a government resolution that requires no action on their part have no concrete interests at stake and thus no standing to sue.

From the ruling, it's easy, to me at least, to see why Robert Muise, of the Thomas More Law Center, vowed an appeal, saying: "the ruling left the law so murky that 'the only one that can clarify this is the Supreme Court.'"

Opinion

KLEINFELD, Circuit Judge:

A majority of the court has concluded that the plaintiffs have standing. A separate majority, for differing reasons, affirms the district court’s dismissal of the plaintiffs’ claim.

Parts I and II of this opinion are joined by Judges THOMAS, SILVERMAN, CLIFTON, BYBEE, and IKUTA.

Part III of this opinion, addressing the merits of the plaintiffs’ claim, is a dissent, joined by Judges BYBEE and IKUTA. Five of us, including Chief Judge KOZINSKI and Judges RYMER, HAWKINS, and McKEOWN, conclude that the plaintiffs have no standing, as set forth in Judge GRABER’s opinion. Three of us, including Judges THOMAS and CLIFTON, concur in the judgment, concluding that although the plaintiffs do have standing, their claim fails on the merits, as set forth in Judge SILVERMAN’s opinion.

The full opinion may be read here.

More on this later.