Can the government condemn, even in a "non-binding resolution," the religious beliefs of its citizens and not violate the First Amendment's Establishment Clause? That's the issue in a lawsuit over a 2006 San Francisco Board of Supervisors resolution condemning the Catholic Church's position on gay adoption. After a trial judge and a three-judge panel of the 9th U.S. Circuit Court of Appeals both said "yes" in answer to the question, the rest of the judges on the 9th Circuit voted this week to re-hear the case in front of an 11-judge panel. Bottom line: – A significant number of judges appear to be concerned that neither the trial judge nor the three-judge panel got it right.
That's good news. The San Francisco Board of Supervisors has a history of slandering and condemning any religious behavior that might be construed as not affirming homosexual behavior.
Just so you get a flavor of the language in the Board of Supervisors' resolution, here are some excerpts:
"…It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City's existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need…"
"…Such hateful and discriminatory rhetoric …"
"…The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese to defy all discriminatory directives of Cardinal Levada…"
"…withdraw his discriminatory and defamatory directive…"
Both the trial court and the three-judge 9th Circuit panel that heard this case felt that the city's name-calling and "urging" of the local Catholic clergy and adoption agencies to disobey the teachings and directives of the church hierarchy had a "secular purpose" and, even more incredibly, that the resolution did not have the principal or primary effect of conveying hostility toward religion. Oh, really?
I'm looking forward to seeing if the 11-judge en banc panel reverses this decision.
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