Last week, the Ninth Circuit affirmed dismissal of a complaint brought by the Catholic League for Religious Liberties and Civil Rights against the San Francisco Board of Supervisors. The Catholic League and two individual plaintiffs complained about a Board resolution condemning Archbishop William Levada for ordering Catholic Charities to stop placing children for adoption with same-sex couples. Slipping in a reference to the Inquisition, the resolution referred to Levada’s actions as hateful and discriminatory and urged Catholic Charities to disobey.

I think that the outcome is correct, but the rationale is wrong.

This isn’t the first time that the Ninth Circuit has been called upon to address a resolution by the Board of Supervisors condemning positions taken by a religious group. In American Family Association v. Board of Supervisors, a divided panel rejected a challenge to a resolution condemning an ad campaign conveying a religious message about homosexuality and promoting “reparative therapy.”

Without exploring the niceties of the various tests for Establishment, the Ninth Circuit’s point is that the message and its purpose are “secular.”

For reasons that I explore here and here and in a forthcoming piece in the William and Mary Bill of Rights Journal, I don’t think that characterization of the message as “secular” withstands scrutiny. 

There is no ready distinction between “secular” and “religious” messages that is not itself predicated on certain theological and sociological assumptions about religion. More fundamentally, a “secular” message’s harm to religious dissenters and impact on religious institutions and the religious choices of citizens  is indistinguishable from messages (prayer at graduation, etc.) that have been found to be unconstitutional. (Judge Noonan, dissenting in American Family Association, took a similar view.)

But the resolution of this can’t be doctrine that would forbid the government from conveying messages that run afoul of the beliefs of some religious dissenters. That would be, to put it mildly, unworkable.

My suggestion has been a less ambitious Establishment Clause, one that requires more substantial injury to dissenters from government speech. With certain exceptions that I won’t get into here , the question in cases like this would not simply be whether the message is religious, but what impact it has on religious dissenters. I offer as an extreme example the Nazi policy of Gleichshaltung, which included systematic vilification of Jews in preparation for and in aid of more coercive policies.

What I find interesting about Catholic League is that Judge Berzon, concurring, recognized that such government speech might well raise Establishment Clause concerns, offering as examples “a pervasive public campaign by a city to condemn Jews for not shopping on Saturday or Muslims from observing Ramadan because of the effect on the economy.” 

The other thing that I found interesting is that it means one more set of changes to a “finished” article over the summer.