Can State Disapproval Violate the Establishment Clause?
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.