Religions Have No Immunity From Criticism

By Erwin Chemerinsky

The case involves a non-binding resolution passed by the Board of Supervisors of the city and county of San Francisco criticizing the directive of Cardinal William Levada and the Vatican that Catholic agencies should not place children for adoption in "homosexual households." The resolution called on Cardinal Levada, as head of the Congregation for the Doctrine of Faith of the Vatican, "to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households."

The Board of Supervisors did nothing but express a viewpoint. Their expression has no binding effect or adverse consequences on anyone. Yet, the plaintiffs in the lawsuit, the Catholic League for Religious and Civil Rights and some individuals, contend that the position taken by the Board of Supervisors violates the Establishment Clause. The United States District Court for the Northern District of California granted the defendants motion to dismiss for failure to state a claim upon which relief could be granted. The 9th Circuit affirmed. Astoundingly, the 9th Circuit granted en banc review and the hearing was scheduled quickly, for December 16.

If the 9th Circuit were to reverse en banc and find that the Board of Supervisors cannot express such a message, it would mean that governments can express any viewpoints except those critical of positions taken by religious institutions. Religious institutions alone would be immune from criticism by the government. Such an approach, favoring religious institutions over all others, surely would violate the Establishment Clause. As Justice Harry A. Blackmun explained: "A...preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause is all about and hence is constitutionally intolerable." Texas Monthly v. Bullock, 489 U.S. 1, 28 (1989) (Blackmun, J., concurring in the judgment).

Under the plaintiffs' position in this lawsuit, the government violates the Establishment Clause if it criticizes a policy or position of a religious institution. The Board of Supervisors would be allowed to criticize private adoption agencies that would not place children in "homosexual households," but not a religious group that took the same position. Under this view, a government entity could criticize anything done by any entity, public or private, except not a religious entity or its officials. Such favoritism for religion over all else is the very essence of a violation of the Establishment Clause.

Indeed, there would be enormous implications of the 9th Circuit finding a violation of the Establishment Clause. Imagine that a radical Islamic clergy member or church called for a violent jihad against a city and urged the death of innocent people. Could the city and its officials denounce this? The answer should be obvious, but if the plaintiffs prevail in this lawsuit, such denouncement would be an impermissible violation of the Establishment Clause because it would be criticizing the position taken by a religious entity.

As the panel of the 9th Circuit concluded, under the controlling test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the action of the Board of Supervisors does not violate the Establishment Clause. There the Supreme Court declared: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." A law is unconstitutional if it fails any prong of the Lemon test.

The purpose of the Board of Supervisors was entirely secular: to end discrimination against gays and lesbians. The Board in its resolution was explicit about this. The resolution stated: "Whereas, it is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence the great City's existing and established customs and traditions such as the right of same-sex couples to adopt and care for children." The resolution also stated: "Whereas same-sex couples are just as qualified to be parents as are heterosexual couples." The purpose of the resolution was to end discrimination on the basis of sexual orientation not to advance religion in any way.

Under the second prong of the Lemon test the government's action cannot have the "principal or primary effect of advancing or inhibiting religion." The plaintiffs contend that the Board of Supervisors position has the primary effect of inhibiting religion. It, of course, is true that the Board of Supervisors is criticizing a position taken by a religion through its clerics. But if this is enough to violate the Establishment Clause, then no government ever could criticize the position taken by a religious entity because any such criticism would be seen as inhibiting religion. A religious entity that urged abhorrent acts of violence in the name of God would be immune from government criticism.

The effect of the government's actions must be assessed in context. It is not apparent that the Board of Supervisors actions had the slightest effect in inhibiting religion in any way. Moreover, the effect, if any, was to end discrimination against gays and lesbians. As the panel concluded: "[T]he Board's unequivocal promotion of non-discrimination against same-sex couples in adoption is secular, regardless of whether the Catholic Church may be opposed to it as a religious tenet." As the panel noted, the Board has the "extensive and persistent practice of passing non-binding resolutions denouncing discrimination against gays and lesbians." This strongly indicates the primary effect, if there is any effect, should be seen as ending discrimination.

Finally, under the Lemon test there must not be excessive entanglement with religion. The Board of Supervisors action in no way entangles it with the Catholic Church. It is simply disagreeing with a position of the Church just as it can disagree with the position taken by any entity. The Board did nothing but engage in speech expressing its continued opposition to sexual orientation discrimination.

The 9th Circuit's prior decision in American Family Association v. City and County of San Francisco, 277 F.3d 1114 (9th Cir. 2002), is directly on point. That case, too, involved resolutions by the San Francisco Board of Supervisors supporting equality for gays and lesbians and denouncing positions taken by the "Religious Right." The 9th Circuit concluded that such resolutions, advocating equality and criticizing religious positions favoring discrimination, do not violate the Establishment Clause. The same is true of the resolution at issue in this case.

The District Court and the panel of the 9th Circuit were clearly correct that there was no violation of the Establishment Clause in the Board of Supervisors denouncing discrimination against gays and lesbians. It is inexplicable why the 9th Circuit granted en banc review in this case, but it should strongly affirm the District Court's and the panel's decisions.

Erwin Chemerinsky is Dean and Distinguished Professor of Law of the University of California, Irvine, School of Law.