Catholic League for Religious and Civil Rights v. City of San Francisco: How the Ninth Circuit Abandoned Judicial Neutrality to Strike a Blow at Religion

I. INTRODUCTION Over the last several decades, America has seen an ongoing conflict between advocates of gay rights and supporters of traditional religion.1 This conflict, one of many fronts in the "culture war," as it has sometimes been called,2 has raged in many different contexts through the years.3 In the political arena and in the courts, religion and the gay movement have battled intensely over issues such as treatment of homosexuality in public schools, portrayal of homosexuality in media,4 and, more recently, gay marriage and the adoption of children by gay and lesbian couples.5 Because the conflict involves differing views about some of the most fundamental societal ideals and values,6 local governments have sometimes felt the need to step into the debate. Such involvement presents particularly difficult questions in trying to balance the free-speech interests of the government with the First Amendment protections afforded religious institutions.7 On June 3, 2009, in Catholic League for Religious and Civil Rights v. City of San Francisco,8 the United States Court of Appeals for the Ninth Circuit addressed the question of whether a San Francisco city resolution denouncing a Vatican order not to place adoptive children with same-sex couples was forbidden under the Establishment Clause of the First Amendment. Applying the Lemon test, an analysis commonly used by courts in Establishment Clause cases, the Ninth Circuit found that the resolution passed constitutional scrutiny, despite Catholic League's contention that the city was expressing disapproval of Catholicism in violation of the Constitution.9 This Note will argue that the Ninth Circuit incorrectly decided the case by applying an inherently problematic test, conducting an outcome-driven analysis, and ignoring the correct standard of review. In so doing, the court has arguably sacrificed its required neutrality. This Note will analyze the Ninth Circuit's decision in Catholic League and explain how the court's neutrality was compromised. Part II of the Note presents a summary of the facts and procedural history of the case. Part III then provides some context for the issues involved by discussing the background First Amendment Establishment Clause jurisprudence leading up to the Ninth Circuit's decision. Part IV describes the Ninth Circuit's reasoning and decision in Catholic League in detail, and Part V analyzes that decision to explain how the Ninth Circuit went wrong. Finally, Part VI offers a brief conclusion. II. FACTS AND PROCEDURAL HISTORY In March of 2006, the Board of Supervisors of San Francisco adopted a non-binding resolution concerning the Catholic Church's position against adoptions of children by same-sex couples.10 The resolution, entitled "Resolution urging Cardinal Levada to withdraw his directive to Catholic Charities forbidding the placement of children in need of adoption with same-sex couples," aimed harsh language at both the Vatican and Prefect Cardinal William Levada, who was the head of the Congregation for the Doctrine of the Faith at the Vatican.11 Passed in response to a then-recent directive from Cardinal Levada instructing the Archdiocese of San Francisco that Catholic social services agencies should not place children in need of adoption with gay or lesbian couples,12 the full text of the resolution read as follows: 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"13 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 rhe 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 rhe 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. …