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

By Heaton, Jonathan W. | Brigham Young University Law Review, January 1, 2010 | Go to article overview

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


Heaton, Jonathan W., Brigham Young University Law Review


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.