Catholic League for Religious & Civil Rights v. City & County of San Francisco

Opinion by Judge PAEZ; Concurrence by Judge BERZON.

Appellants, Catholic League for Religious and Civil Rights, Dr. Richard Sonnenshein, and Valerie Meehan (collectively, “Catholic League” or “the League”), appeal the dismissal of their civil rights action under 42 U.S.C. § 1983 for failure to state a claim. At issue is the constitutionality of a non-binding resolution adopted by the Board of Supervisors of the City and County of San Francisco (“the Board”) concerning the adoption of children by same-sex couples and the Catholic Church’s position against such adoptions. Catholic League argues that in adopting the resolution the Board expressed disapproval of the Catholic religion in violation of the First Amendment’s Establishment Clause. Because we conclude that the resolution passes constitutional scrutiny, we affirm. 1

I.

In March, 2006, the Board passed a nonbinding resolution, Res. No. 168-06, titled: “Resolution urging Cardinal Levada to withdraw his directive to Catholic Charities forbidding the placement of children in need of adoption with same-sex couples.” (“Resolution”). The Resolution provides in full:

The Board passed this resolution in response to a then-recent…

concurring:

I concur in the majority’s opinion, as it carefully and faithfully applies contemporary Establishment Clause jurisprudence to an unusual circumstance, the disapproval rather than approval of religion, embodied in a single Board of Supervisors resolution linked to no affirmative governmental regulation nor displayed in any continuing fashion in any public location.

In particular, this case is largely controlled by American Family Association v. City and County of San Francisco, 277 F.3d 1114 (9th Cir.2002), which also involved San Francisco Board of Supervisors resolutions supporting equality for gays by calling upon persons with religious views to the contrary — in that instance, calling on the “Religious Right,” to cease denouncing and opposing tolerance toward gays and lesbians. Similarly to the Resolution here at issue, the ones in American Family denounced religion-based anti-gay views as “ ‘erroneous and full of lies,’ ” and denounced anti-gay advertisements by “the Religious Right” as “ ‘creating] an atmosphere which validates oppression of gays and lesbians,’ ” and encouraging mistreatment of and violence toward them. Id. at 1119-20 . The American Family…

Robert J. Muise, Thomas More Law Center, Ann Arbor, MI, for the appellants.

Vince Chhabria, City Attorney's Office of San Francisco, San Francisco, CA, for the appellees.

Before: PROCTER HUG, JR., RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge PAEZ; Concurrence by Judge BERZON.

PAEZ, Circuit Judge:

Appellants, Catholic League for Religious and Civil Rights, Dr. Richard Sonnenshein, and Valerie Meehan (collectively, "Catholic League" or "the League"), appeal the dismissal of their civil rights action under 42 U.S.C. § 1983 for failure to state a claim. At issue is the constitutionality of a non-binding resolution adopted by the Board of Supervisors of the City and County of San Francisco ("the Board") concerning the adoption of children by same-sex couples and the Catholic Church's position against such adoptions. Catholic League argues that in adopting the resolution the Board expressed disapproval of the Catholic religion in violation of the First Amendment's Establishment Clause. Because we conclude that the resolution passes constitutional scrutiny, we affirm. [1]

In March, 2006, the Board passed a non-binding resolution, Res. No. 168-06, titled:…