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. 

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Empathy and Catholic Legal Theory

Over at Mirror of Justice, Rob Vischer of St. Thomas wonders about the role of empathy in Catholic legal theory. After referring to Orin Kerr’s summation of different responses to legal ambiguity, Rob asks:

Wasn’t Brown v. Board of Education driven by empathy, not just the weighing of legal merits?  How about Meyer and Pierce?  Is the recognition that “the child is not the mere creature of the state” as a rationale for a judicial decision driven solely by legal merit, or something else?  And what about abortion?  There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they?  Aren’t we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?

Putting aside Roe (which I think is all about weak constitutional interpretation), Rob’s point goes to the idea that I was trying to explore yesterday about cabined empathy. It can be, to borrow Ed Fallone’s phrase again, useful in reasoning from undisputed (or at least a judge’s accepted) first principles. It isn’t that empathy creates an obligation of equal protection, but it does help us see the flaw in Justice Henry Billings Brown’s (who remembers that name?) assertion in Plessy that the badge of inferiority arising from Jim Crow exists “solely because the colored race chooses to put that construction upon it.” 

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Esenberg on the Establishment Clause

Rick Esenberg has two interesting recent additions to the SSRN database of scholarly papers, both of which develop his theory of “a more modest Establishment Clause.”  Here is the abstract of the first paper, entitled “Of Speeches and Sermons: Worship in Limited Purpose Public Forums”:

Recent decisions of the United States Supreme Court have held that governments who create limited purpose public forums may not exclude even “quintessentially religious” speech that is otherwise within the purpose of the forum. Nevertheless, governments frequently attempt to exclude religious speech that might be characterized as “worship” from such forums and the Ninth Circuit Court of Appeals, in conflict with the Second and (arguably) Seventh Circuits, has upheld such exclusion.

This article addresses whether worship can be regarded as a separate category of speech that may be constitutionally excluded from limited purpose public forums. To assess the idea that worship is “different,” it briefly assesses mainstream Christian theology concerning worship and concludes that worship is likely to communicate ideas about life in the world that are within the boundaries of most broadly defined public forums. Exclusion of such speech would be inconsistent with the Court’s insistence upon neutrality between religion and irreligion and is unnecessary to avoid the risk or appearance of establishing religion.  

The paper is forthcoming in the Mississippi Law Journal. 

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