American Family Ass'n v. City & County of San Francisco

Opinion by Judge HAWKINS; Dissent by Judge NOONAN

American Family Association, Inc., Donald E. Wildmon, Kerusso Ministries and Family Research Council (collectively, “Plaintiffs”) appeal the district court’s dismissal of their Section 1983 action for failure to state a claim. In their complaint, Plaintiffs alleged that the City and County of San Francisco violated the First Amendment and the California Constitution by formally disapproving of an advertising campaign that espoused the view that homosexuality is a sin and that homosexuals could change their sexual orientation. Because the defendants’ actions did not violate the First Amendment, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs joined other religious groups in sponsoring an advertising campaign called “Truth in Love.” In connection with *1119 the campaign, a fall page advertisement was carried in the San Francisco Chronicle in 1998. The ad proclaimed that Christians love homosexuals, but that “God abhors any form of sexual sin,” whether it is homosexuality, premarital sex or adultery. The ad recognized that a strong same-sex urge drives homosexuality, but stated that everyone “makes a choice in yielding to…

dissenting:

This case is a skirmish in the culture wars of the last century. Our culture has been the product, at least in part, of Jewish and Christian religious teaching; and the culture wars have, almost inevitably, brought about challenges to that teaching. The plaintiffs here emphasize the religious roots and religious nature of their message. The defendants focus on secular consequences of a message that they nonetheless maintain comes from a religious group using such a fundamentally religious category as sin.

We are not meant to be soldiers in the skirmish. We are asked, as much as it lies within our capabilities, to put aside our own freight of values and to put on the neutrality that our Constitution guarantees government will have in religious controversy. We are not asked to determine the religious or secular truth of the plaintiffs’ message or the city’s rebuttal. We have no competence to do so.

Not only are we disabled from entering the fray by our judicial role, but the posture of the case prevents us from digging into possibly relevant facts that a trial might disclose. We are ruling on a motion to dismiss for failure to state a cause of action. We are,…