There is an interesting ruling out of the Ninth Circuit. The Court of Appeals in San Francisco ruled 8-3 against Catholic organizations that charged that former San Francisco Supervisor Tom Ammiano violated the First Amendment with a 2006 resolution condemning the Vatican for prohibiting Catholic Charities from placing adoptive children with lesbian and gay couples. The Church argued that the resolution violated the prohibitions on establishment of religion. The opinion, however, is remarkably fractured.

The resolution was in part a reaction to Cardinal William Levada’s statement at the time that allowing lesbians and gays to adopt children “would actually mean doing violence to these children.” The Vatican order was called “hateful and discriminatory . . . insulting and callous.”

The court rejected the claims by the Catholic League for Religious and Civil Rights and individual Catholics and held that the resolution did not endorse any particular religious belief or entangle the government in religion. The case raises the question of whether the city could routinely denounce the practices of a given religion without crossing the entanglement line. Three judges — Judges Andrew Kleinfeld, Sandra Ikuta and Jay Bybee — agreed that the resolution was anti-Catholic. Bybee, you may remember, was the Bush official who was instrumental in the torture program before being placed on the federal court.

The majority split on the rationale with only Judges Barry Silverman, Sidney Thomas and Richard Clifton holding that there was a legitimate non-religious rationale. Other judges felt the parties lacked standing.

I love the general vote paragraph describing the division of views:

Parts I and II of this opinion are joined by Judges THOMAS, SILVERMAN, CLIFTON, BYBEE, and IKUTA. Part III of this opinion, addressing the merits of the plaintiffs’ claim, is a dissent, joined by Judges BYBEE and IKUTA. Five of us, including Chief Judge KOZINSKI and Judges RYMER, HAWKINS, and McKEOWN, conclude that the plaintiffs have no standing, as set forth in Judge GRABER’s opinion. Three of us, including Judges THOMAS and CLIFTON, concur in the judgment, concluding that although the plaintiffs do have standing, their claim fails on the merits, as set forth in Judge SILVERMAN’s opinion.

Here is the full resolution:

Resolution urging Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at 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.

WHEREAS, 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; and

WHEREAS, The statements of Cardinal Levada and the Vatican that “Catholic agencies should not place children for adoption in homosexual households,” and “Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children” are absolutely unacceptable to the citizenry of San Francisco; and

WHEREAS, Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors; and

WHEREAS, Same-sex couples are just as qualified to be parents as are heterosexual couples; and

WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and

WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it

RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), 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 basis for the entanglement argument is stated here by the dissent:

As for entanglement, the resolution explicitly entangles itself in church governance. The City would entangle itself with judicial hierarchy, albeit not unconstitutionally, by urging a district judge to defy the court of appeals. And San Francisco entangles itself with the Catholic hierarchy when it urges the local archbishop to defy the cardinal. It is a dramatic entanglement to resolve that the Cardinal “as head of the Congregation for the Doctrine of the Faith” should withdraw his directive. The Catholic Church, like the myriad other religions that have adherents in San Francisco, is entitled to develop and propagate its faith without assistance and direction from government. If the faith leads to actions contrary to San Francisco policy, like not placing children for adoption with homosexual couples, the city may abjure use of its institutions to place children, but it may not entangle itself with development of Catholic religious doctrine. The half-millennium-old Congregation for the Doctrine of the Faith is entitled, under our Constitution, to develop religious doctrine free of governmental interference.

It raises an interesting point of when the government crosses the line in speaking out against particular religions. The test is generally whether the state action “has the principal or primary effect of advancing or inhibiting religion.” Denouncing a church as hateful would seem to discourage and thus inhibit religion. However, the courts go further to ask whether “it would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion.” Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir. 1994). Does the resolution send a message that primarily disapproves with the Catholic faith?

The judges finding no violation insisted that, when placed into the context of the long fight for equal rights in San Francisco, the resolution becomes less problematic:

Just as the “overall holiday setting” can change the message conveyed by a creche, and a “typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content,” Lynch, 465 U.S. at 692 (O’Connor, J., concurring), the Board’s well-established practice of responding whenever the equality of gay and lesbian families is called into question necessarily colors the message conveyed by the Resolution. In adopting the Resolution, consistent with past practice, the Board sought to champion same-sex families and nondiscrimination as to gays and lesbians. An objective observer would understand as much.

The plaintiffs relied on Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir. 2002), to show that the resolution constituted entanglement. In that case, New York prohibited fraud in the sale of kosher food and was found to have violated the Establishment Clause by fostering excessive entanglement. The law essentially adopted the view of what is kosher that was advanced by one faith. The judges dismissed the entanglement claim by holding “the Board’s Resolution did not codify one strain of Catholic belief. It did not ‘take sides in a religious matter,’ nor an ‘official position on religious doctrine.’ The Board expressed its secular view in a non-binding resolution on a matter of public policy.” There is certainly a difference between a prohibition and a non-binding resolution. Yet, it would seem to take an official position on the religious doctrine — at least in denouncing it as hateful.

What if the Board issued similar denouncements of the lack of female priests and the ban on marriage or the view of homosexuality as a sin? At what point does it cross over from public policy to entanglement or disapproval of religion? The line seems a bit murky in this opinion. Conversely, the judges finding a violation in this case can find themselves in equally murky waters in finding that creches and other displays do not constitute an endorsement of religion while a nonbinding resolution contravenes the First Amendment.

I have struggled with this case because I find the language of the resolution troubling — though not the sentiment. Ammiano could have expressed these same sentiments as an individual. I believe the comments of the Cardinal are worthy of condemnation and agree with the views expressed in the following statement from the resolution: “Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance . . .” I also believe that Ammiano has a right to denounce the Church policy as an individual. However, he elected to get the Board to issue the denouncing of the Church as an official act of the Board.

While I also view the comments as prejudiced and callous, the policy against gay and lesbian adoption is tied directly to deep-seated articles of faith in the Church. The resolution has the Board directly calling on Catholic leaders to defy the Cardinal and directly objects to the Vatican policy. That would seem to take an “official position on religious doctrine.” I would be less concerned if the resolution solely addressed the Cardinals statement as hateful rhetoric as opposed to an official rejection of the religious based policy.

Other jurisdictions like Massachusetts have struggled with the Church under its anti-discrimination laws. There is a good-faith debate as to whether such anti-discrimination laws violate the religion clauses. I would not criticize leaders participating in such a debate. However, the resolution in this case calls for defiance of the Cardinal and the removal of the policy.

As addressed in earlier columns, I do not like faith-based politics embraced by both Presidents Bush and Obama. For the same reason, I do not like faith-based politics on the other side — as a form of denouncing religious practices or policies. The Cardinals disturbing language crossed the line and called for a response from individual leaders. However, I feel the resolution crossed the line. While I can see the argument that this does not amount to entanglement based on existing precedent, I can see how it is viewed as “sending primarily a message of either endorsement or disapproval of religion.” It is a bad practice, in my view, that should be opposed from the same standpoint as condemnations of leaders who seek to endorse religious practices as part of their political campaigns and official conduct.

Jonathan Turley